07-18-2002
The City of
Aventura
,(a,
''''"rp,//'
at)' rn",m;..ina
Jeffrey M. Perlow, Mayor
Ci(r M6II~r
Eric M. Soroka
Arthur Berger
Jay R. Beskin
Ken Cohen
Manny Grossman
Harry Holzberg
Patricia Rogers-Libert
CiI;Y Clerk
Teresa M. Soroka, CMC
City An-o.mev
Weiss Serota Helfman
Pastoriza & Guedes
AGENDA
COMMISSION MEETING
JULY 18, 2002 - 9:30 AM
Aventura Government Center
19200 West Country Club Drive
A ventura, Florida 33180
1. CALL TO ORDER/ROLL CALL
2. OVERVIEW AND REVIEW OF PROPOSED BUDGET
A. GENERAL FUND
. REVENUES
. GENERAL GOVERNMENT DEPARTMENTS (CITY
COMMISSION, OFFICE OF THE CITY MANAGER,
FINANCE SUPPORT SERVICES, LEGAL, CITY CLERK)
. PUBLIC SAFETY DEPARTMENT
. COMMUNITY DEVELOPMENT DEPARTMENT
. COMMUNITY SERVICES DEPARTMENT
. NON-DEPARTMENTAL
. CAPITAL OUTLAY
B. MOTION TO ADOPT RESOLUTION TO ESTABLISH TENTATIVE
MILLAGE RATE
July 18,2002 CommiIIion Meeting
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA, ESTABLISHING A PROPOSED MILLAGE
RATE FOR THE 2002/03 FISCAL YEAR; PROVIDING FOR THE DATE,
TIME AND PLACE OF THE PUBLIC HEARING TO CONSIDER THE
PROPOSED MILLAGE RATE AND TENTATIVE BUDGET; AND
PROVIDING FOR AN EFFECTIVE DATE.
C. POLICE EDUCATION FUND
D. STREET MAINTENANCE FUND
E. POLICE CAPITAL OUTLAY IMPACT FEE FUND
F. PARK DEVELOPMENT FUND
G. DEBT SERVICE FUNDS
H. CAPITAL CONSTRUCTION FUNDS
I. STORMWATER UTILITY FUND
J. POLICE OFF-DUTY SERVICES FUND
3. PUBLIC HEARING: ORDINANCES: SECOND READING:
A. AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
A VENTURA, FLORIDA, AMENDING ORDINANCE NO. 2001-13,
WHICH ORDINANCE ADOPTED A BUDGET FOR THE 2001/2002
FISCAL YEAR BY REVISING THE 2001/2002 FISCAL YEAR
OPERATING AND CAPITAL BUDGET AS OUTLINED IN EXHIBIT "A"
ATTACHED HERETO; AUTHORIZING THE CITY MANAGER TO DO
ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS
ORDINANCE; PROVIDING FOR AN EFFECTIVE DATE.
B. AN ORDINANCE OF THE CITY OF A VENTURA, FLORIDA,
AUTHORIZING THE ISSUANCE OF NOT TO EXCEED
$13,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF
OBLIGATIONS OF THE CITY TO FINANCE AND/OR
REIMBURSE COSTS RELATING TO THE SITE ACQUISITION,
CONSTRUCTION AND EQUIPPING OF A K-S CHARTER
ELEMENTARY SCHOOL AND THE COMPLETION OF A
COMMUNITY RECREATION CENTER AND TO PAY COSTS AND
EXPENSES OF ISSUING SUCH OBLIGATIONS; PROVIDING FOR A
COVENANT TO BUDGET AND APPROPRIATE LEGALLY
AVAILABLE NON-AD VALOREM FUNDS EACH YEAR TO PAY
2
July 18, 2002 CommiIIion Meeting
THE PRINCIPAL OF, REDEMPTION PREMIUM, IF ANY, AND
INTEREST ON THE OBLIGATIONS; PROVIDING FOR THE
RIGHTS OF THE HOLDERS OF SUCH OBLIGATIONS;
PROVIDING SEVERABILITY AND AN EFFECTIVE DATE.
4. RESOLUTIONS:
A. A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
A VENTURA, FLORIDA, APPROVING THE CHANGE OF
CONTROL OF THE TCI TKR OF SOUTH FLORIDA CABLE
TELEVISION FRANCHISE TO AT&T-COMCAST; PROVIDING
FOR AN EFFECTIVE DATE.
B. A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
A VENTURA, FLORIDA, APPROVING THE CHANGE OF
CONTROL OF THE COMCAST CABLEVISION OF
HALLANDALE, INC., CABLE TELEVISION FRANCHISE TO
AT&T COMCAST CORPORATION; PROVIDING FOR AN
EFFECTIVE DATE.
C. A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
A VENTURA, FLORIDA, AUTHORIZING THE BORROWING OF
NOT EXCEEDING $13,000,000 AGGREGATE PRINCIPAL
AMOUNT FROM THE FLORIDA INTERGOVERNMENTAL
FINANCE COMMISSION LOAN PROGRAM TO FINANCE
AND/OR REFINANCE CERTAIN CAPITAL PROJECTS OF THE
CITY; AUTHORIZING THE EXECUTION AND DELIVERY OF
ONE OR MORE LOAN AGREEMENTS IN CONNECTION
THEREWITH; AUTHORIZING THE ISSUANCE OF ONE OR
MORE NOTES NOT TO EXCEED $13,000,000 AGGREGATE
PRINCIPAL AMOUNT TO EVIDENCE THE OBLIGATION OF
THE CITY TO REPAY THE LOANS; PROVIDING FOR THE
TERM AND REPAYMENT PROVISIONS THEREOF;
AUTHORIZING CERTAIN OTHER MATTERS IN CONNECTION
THEREWITH AND PROVIDING FOR AN EFFECTIVE DATE.
S. ADJOURNMENT
This meeting is open to the public. One or more members of the City of Aventura Advisory Boards maybe in attendance. In accordance with
the Americans with Disabilities Act of 1990, all persons who are disabled and who need special accommodations to participate in this meeting
because of that disability should contact the Office of the City Clerk, 305-466-8901, not later than two days prior to such proceeding.
Anyone wishing to appeal any decision made by the AventuTa City Commission with respect to any matter considered at such meeting or hearing
will need a record of the proceedings and, for such purpose, may need to ensure that a verbatim record of the proceedings is made, which record
includes the testimony and evidence upon which the appeal is to be based.
Agenda items may be viewed at the Office of the City Clerk, City of Aventura Government Center, 19200 West Country Club Drive. Aventura.
Florida, 33180. Anyone wishing to obtain a copy of any agenda item should contact the City Clerk at 305-466-8901.
3
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
DATE: July 9, 2002
TO: City Commission
FROM: Eric M. Soroka, City
SUBJECT: Resolution Establishing Proposed Millage Rate 2002/03 Fiscal Year
July 18, 2002 City Commission Meeting Agenda Item zjj
RECOMMENDATION
It is recommended that the City Commission adopt a millage rate of 2.2270 for fiscal
year 2002/03. This rate includes no increase and adopts the same Unincorporated
Municipal Services Area (UMSA) rate as adopted by the County for the 1995/96 fiscal
year. This will generate $8,818,000 based on an assessed value of $4,167,885,994.
BACKGROUND
Attached hereto is a Resolution that establishes the proposed millage rate for the
2002/03 fiscal year and public hearing date. State statutes require the City to establish
a tentative millage rate and the first public hearing date that will be transmitted to the
County Property Appraisal Department. The County Property Appraisal Department
issues a notice to all property owners in the City. The notice includes the proposed tax
rates and public hearing dates for all government agencies imposing ad valorem taxes.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
CC01092-02
RESOLUTION NO. 2002-42
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA, ESTABLISHING A PROPOSED
MILLAGE RATE FOR THE 2002/2003 FISCAL YEAR;
PROVIDING FOR THE DATE, TIME AND PLACE OF THE
PUBLIC HEARING TO CONSIDER THE PROPOSED MILLAGE
RATE AND TENTATIVE BUDGET; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, Chapter 200, Florida Statutes, Determination of Millage, sets forth
the procedures that must be followed in establishing a millage rate and adopting an
annual budget; and
WHEREAS, the Miami Dade County Property Appraisal Department has certified
the taxable value of property within the City of Aventura, as required by Chapter 200,
Section 200.065(1) and Chapter 193, Section 193.023, Florida Statutes; and
WHEREAS, pursuant to Chapter 200, Section 200.065(2)(b), the City of
Aventura is required to establish its proposed millage rate and the date, time and place
that the public hearing will be held to consider the proposed millage rate and tentative
budget.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, THAT:
Section 1. The following is hereby established as the proposed millage rate for
the 2002/2003 fiscal year: 2.2270 per $1,000.00 of taxable assessed value.
Section 2. September 3, 2002 is hereby established as the date for a public
hearing on the tentative budget and proposed millage rate, to be held at 5:45 p.m., at
the Aventura Government Center, 19200 West Country Club Drive, Aventura, Florida.
Resolution No. 2002-42
Page 2
Section 3. The City Clerk be and is hereby authorized and directed to place all
necessary advertisements in accordance with Chapter 200, Florida Statutes, the Truth
in Millage (TRIM) Bill.
Section 4. This Resolution shall become effective immediately upon its
adoption.
The foregoing resolution was offered by Commissioner
,who
moved its adoption. The motion was seconded by Commissioner
, and
upon being put to a vote, the vote was as follows:
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Manny Grossman
Commissioner Harry Holzberg
Commissioner Patricia Rogers-Libert
Vice Mayor Arthur Berger
Mayor Jeffrey M. Perlow
PASSED AND ADOPTED this 18th day of July, 2002.
JEFFREY M. PERLOW, MAYOR
ATTEST:
TERESA M. SOROKA, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
CITY OF AVENTURA
FINANCE SUPPORT SERVICES DEPARTMENT
FROM:
Eric M. Soroka, City
'A;k~ ;
Harry M. i1gore, Fin
Services Director
TO:
DATE: July 9,2002
SUBJECT: Certification of Taxable Value/Dates for Public Hearings
We received the Certification of Taxable Value from Miami Dade's Department of
Property Appraisal on Monday, July 1 st. A copy of the form is included as Attachment I.
There were no surprises on the form. The Total Taxable Value of $4,167,885,994 is
somewhat higher than the $4.15 billion estimate, which we received from the Property
Appraisal Department on May 31st. The form includes a breakdown of the increase in
taxable value into two segments. The first segment is the increase in taxable value due
to new construction of $91,541,686 (line 5 of the form). The second segment is the
portion of the total increase which is due to increases in taxable value on existing
property. This increase is computed as $188,135,168 by subtracting the $3,888,209,140
shown on line 7 of the form from the $4,076,344,308 shown on line 6 of the form.
The differentiation between the increase due to net new taxable value (new construction)
and the increase due to changes in taxable value of existing property is important
because the latter determines the computation of the "rolled back tax rate". Section
200.065 (1), Florida Statutes, defines the "rolled back rate" as that millage rate "which,
exclusive of new construction, additions to structures, deletions, increases in the value of
improvements that have undergone a substantial rehabilitation... will provide the same ad
valorem tax revenue." as was levied during the previous year". In simpler terms, the
rolled back rate is the tax rate necessary to generate exactly the same dollar amount of
tax levy as the previous year's levy had there been no growth or new construction in the
City.
The rolled back rate for Aventura for 2002 (the 2002/2003fiscal year) is 2.1242 as shown
on lines 10 and 18 of Attachment II. This is important because if we levy any rate above
the 2.1242 rolled back rate, we will be required to place a quarter page ad in the Herald
before the second public hearing on the budget and tax rate in September which is titled
"NOTICE OF PROPOSED TAX INCREASE". We will also be required to include the
statement that the proposed rate exceeds the rolled back rate by 4.84% in the ordinance
adopting the millage rate which will be read at the two public hearings in September.
Page (2)
Memo to City Manager
Certification of Taxable Value/Dates for Public Hearings
I spoke to the Property Appraisal Department today and they advised me that the County
Commission's public hearings are tentatively scheduled for September 4th and 18th and
the School Board's hearings are scheduled for July 24th and September 11th. Our
meetings cannot conflict with these meeting dates. In addition, Labor Day is observed on
September 2nd, Rosh Hashanah begins at sundown on September 6th and Yom Kippur
begins at sundown on September 15th Between the timeframes required by the TRIM
bill, state law on publishing ordinances, holidays and religious days, the scheduling of the
meetings gets somewhat complicated. The most logical dates based on all these criteria
are:
First public hearing
Second public hearing
5:45PM, Tuesday, September 3rd
5:45PM, Tuesday, September 17th
The September 3rd meeting will be held immediately preceding the regular Commission
Meeting.
Since we need to include the date of the first meeting on the Certification of Taxable
Value, we need to have a commitment from the Mayor and Commission by no later than
the July 18th budget review meeting.
The information contained in the preceding paragraphs is based on my review of the
"Manual of Instructions for TRIM Compliance" published by the Division of Ad Valorem
Tax of the Florida Department of Revenue. Please feel free to call or stop by my office to
discuss this matter.
HMKlmn
SECTION I
Certification of Taxable Value
ATIACHMENT I
DR-420
R.01/95
Miami-Dade
To City of Aventura
(Name of Taxing Authority)
(6)
(7) Prior Year Final Gross Taxable Value
(From Prior Year Applicable Form DR-403 Series)
I do hereby certify the values show herein to be correct to the best of my knowledge and belief. Witness my hand and official signature
at Miami-Dade County , Florida. this the 1st day of JULY 20 02 .
~ \\ ' -
," ," _ ,p. _ - ~I;::~~r~;;-~l'~~~~~~''''''''_~_~_'''_''''''~M>
TAXING AUTHORITY: If this portion of the,orm is not completed in FULL your Authority will be denied TRIM certification and
possibly lose its millage levy privilege for the tax year. If any line is inapplicable, enter N/A or -0-.
SECTION II
(8) Prior Year Operating Millage Levy
unty
(1) Current Year Taxable Value of Real Property for Operating Purposes
(2) Current Year Taxable Value of Personal Property for Operating Purposes
(3)
(4)
(5)
Current Year Taxable Value of Centrally Assessed Property for Operating Purposes
Current Year Gross Taxable Value for Operating Purposes (1) + (2) + (3)
Current Year Net New Taxable Value (New Construction + Additions + Rehabilitative
Improvements Increasing Assessed Value By At Least 100% + Annexations - Deletions) $
Current Year Adjusted Taxable Value (4) - (5) $
$
(9) Prior Year Ad Valorem Proceeds (7) x (8)
(10) Current Year Rolled-Back Rate (9) divided by (6)
(11) Current Year Proposed Operating Millage Rate
12) Check TYPE of Taxing Authority: D County D vependent District
II Municipality D Independent D Multi-County
~ Special District
$
$
$
$
4.007,501.399
158.919.746
1.464.849
4.167,885,994
91,541,686
4,076.344,308
3.888.209.140
$
$
$
$
per $1.000
per $,1.000
per $1.000
D Municipal Service Taxing Unit
D Water Management District
(13) IF DEPENDENT SPECIAL DISTRICT OR MSTU IS MARKED, PLEASE SEE REVERSE SIDE.
(14) Current Year Millage Levy for VOTED DEBT SERVICE $
(15) Current Year Millage Levy for OTHER VOTED MILLAGE $
:'DEPENDENTSP.ECIAL DISTFlICtS.SKIP.line's.(t6);'t~r9ug~ (?-2.t.d?;;~~~,::;'.['iM;:.';t,?j);;];'\~1r~~l,lt:;;~';t$~\181%.t:;ji,:~
(16) Enter Total Prior Year Ad Valorem Proceeds of ALL DEPENDENT Special Districts $
and MSTU's levying a millage. (The sum of Line (9) from each District's Form DR-420)
(17) Total Prior Year Proceeds: (9) + (16)
(18) The Current Year Aggregate Rolled-back Rate: (17) divided by (6)
(19) Current Year Aggregate Rolled-back Taxes: (4) x (18)
(20) Enter Total of all non-voted Ad Valorem Taxes proposed to be levied by the Principal
Taxing Authority, all Dependent Districts, and MSTU's if any. Line (11) x Line (4)
(21) Current Year Proposed Aggregate Millage Rate: (20) divided by (4)
(22) Current Year Proposed Rate as a PERCENT CHANGE of Rolled-back Rate:
[(Line 21 divided by Line 18) -1.00] x 100
Date, Time and Place of the first Public Budget Hearing: and telellhone number:
$
$
$
$
per $1.000
$
per $1,000
%
I do hereby certify the millages and rates shown herein to be correct to the best of my knowledge and belief. FURTHER, I certify that
all millages comply with the provisions of Section 200.071 or 200.081, F.S. WITNESS my hand and official signature at
, Florida, this the day of .20_
Signature of Chief Administrative Officer and Title
Address of Physical Location
Mailing Address
Name of Cnnt~ct PAr.c:nn
(6)
(7) Prior Year Final Gross Taxable Value
(From Prior Year Applicable Form DR-403 Series)
I do hereby certify the values show herein to be correct to the best of my knowledge and belief. Witness my hand and official signature
at Miami-Dade County , Florida. this the 1st day of JULY 20 02 .
ffi~\\~ ' -
""""',',""','. "...',.:....,.,. '..'C:',", "".,., ....it;'..'." . ."'" ,co .':.' i" ','.';.; "(.'''.O:'''l,'''c;;~'','~U''" C,(,:,.;""~./!!;;,,:';gr;l"'"',';;",""";',,., ;'{O~i,~.~~:~~,~.~;t.';~"~;~':'Z~~~:~=:'~)~!!;~''''''!!r..,.-a''<!l'''.,~,l;r.q;'I!~\'l!i'~J""j\':l>
TAXING AUTHORITY: If this portion of the iorm is not completed in FULL your Authority will be denied TRIM certification and
possibly lose its millage levy privilege for the tax year. If any line is inapplicable, enter N/A or -0-.
SECTION II
(8) Prior Year Operating Millage Levy
(9) Prior Year Ad Valorem Proceeds (7) x (8)
SECTION I
d Certification of Taxable Value
ear To Ci ty
unty
Miami-Dade
(1) Current Year Taxable Value of Real Property for Operating Purposes
(2)
(3)
(4)
(5)
Current Year Taxable Value of Personal Property for Operating Purposes
Current Year Taxable Value of Centrally Assessed Property for Operating Purposes
Current Year Gross Taxable Value for Operating Purposes (1) + (2) + (3)
Current Year Net New Taxable Value (New Construction + Additions + Rehabilitative
Improvements Increasing Assessed Value By At Least 100% + Annexations - Deletions) $
Current Year Adjusted Taxable Value (4) . (5) $
(10) Current Year Rolled-Back Rate (9) divided by (6)
(11) Current Year Proposed Operating Millage Rate
(12) Check TYPE of Taxing Authority: c=J County C=:J Oependent District
~Municipality C=:J Independent c=J Multi-County
~ Special District
ATTACHMENT II
DR.420
R. 01/95
of Aventura
(Name of Taxing Authority)
$
$
$
$
4,007,501,399
158,919,746
1, 464,849
4,167,885,994
$
91,541,686
4,076,344,308
3,888,209,140
$
$
$
$
2., 2- :l.. I Q per $1,000
B,~s9Ie+~
z . \ "'L ",\}- per $1,000
2... , ~ d-- 'l-.J per;1 ,000
C=:J Municipal Service Taxing Unit
C=:J Water Management District
~1~S9 Oy...'J-
\
2" I z-'i ~ per $1,000
$ '6 ~ S3 ~ ').---3
$ ~ " .., cr',1 0 CY . "l-
(20) Enter Total of all non-voted Ad Valorem Taxes proposed to be levied by the Principal ---\ ; ...... eo l_ 'tl tl
Taxing Authority, all Dependent Districts, and MSTU's if any. Line (11) x Line (4)
(21) Current Year Proposed Aggregate Millage Rate: (20) divided by (4) $ 2.., '2 'l. I Q per $1,000
(22) Current Year Proposed Rate as a PERCENT CHANGE of Rolled-back Rate, ll- '-+
[(Line 21 divided by Line 18) - 1.00] x 100 \ . ~, I %
Date, Time and Place of the first Public Budget Hearing: and telephone number: .-,- ~cl"---o . ~ ~"o,r ~. .....(0)..,..
<; : -{<;~ r-.. 4 1.-.0 oJ W c....~ ~ Q. (" . ., ~ (. 0 V
I do hereby certify the millages and rates shown herein to be correct to the est of my knowledge and belief. FURTHER, I certify that
all millages comply with the provisions of Section 200.071 or 200.081, F.S. WiTNESS my hand and official signature at
~~6... , Florida, this the "'2.. 2- ~ day of -:!:',...J...-.. ,20...Q.!...
)
\<1 '").-.~ ~ \1-) \ c.........-...." t \....4 \ r
Address of Physical Location d
\4~'t~ \< ,'\ ~~<~
Name o( Contact Person f..)
(30-r-) 1{(.,<O~~1.." ... \.:.o{"' ~~C-~C:; 3'
(13) IF DEPENDENT SPECIAL DISTRICT OR MSTU IS MARKED, PLEASE SEE REVERSE SIDE.
(14) Current Year Millage Levy for VOTED DEBT SERVICE $
(15) Current Year Millage Levy for OTHER VOTED MILLAGE $
~..bEP EN 0 EN'T..SP..ECIA!-[)I~Tl3jC"tS. SKI,P .lil'es.'(f6fi~ rcia9~.t~~}!:~B!~;I~i;~J~~~f:~;rJB);~'~,j:J~r;~;ft~%lL
(16) Enter Total Prior Year Ad Valorem Proceeds of ALL DEPENDENT Special Districts $
and MSTU's levying a millage. (The sum of Line (9) from each District's Form DR-420)
(17) Total Prior Year Proceeds: (9) + (16)
(18) The Current Year Aggregate Rolled-back Rate: (17) divided by (6)
(19) Current Year Aggregate Rolled-back Taxes: (4) x (18)
c..~ Ih --~~
Signature of Chief Administrative Officer and lit e
\Cj ':L~ -=:. \.IJ. ~--~O et..... \" ~ t" \ ~
Mailing Address
..... <e::J
$
$
~
CITY OF AVENTURA
BUDGET IN BRIEF
, FISCAL YEAR 2002/03
CITY COMMISSION
Mayor Jeffrey M. Perlow
Vice Mayor Arthur Berger
Commissioner Jay R. Beakin
Commissioner Ken Cohen
Commissioner Manny Grossman
Commissioner Harry Holzberg
Commissioner Patricia Rogers-Libert
CITY MANAGER
Eric M. Soroka
DEPARTMENT DIRECTORS
Weiss serote Helfman Pasloriza & G_, P A, City AIIorney
....rry M. KIIgora, FinlInee Support Sarvices
Robert M. Shannan, Conmunlty Sarvices
Teresa M. Soroka, CMC, City Clerk
Thomas Rlbel, PoIiee Chis!
City Atlllrney
Legal Services
Public Safety
Department
Police
Patrol
Community Relations
Criminal investigations
Traffic Enforcement
Emergency Preparedness
Organization Chart
CITY OF AVENTURA
City Clerk
Residents
City Commission
City Manager
Minutes
Records Retention
Clerical Support
Community
Development
Department
, ~1
Financel Support
Services
Department
.,r"" ~
Planning
Zoning
Building Inspections
Code Enforcement
Economic Development
Occupational Ucenses
Finance/Accounting
Purchasing
Risk Management
Information Management
Personnel
Charter School
Department
Community
Services
Department
Community Facilities
ParkslBeautification
ROWlMedian Main!.
Public Works
Mass Transit
Special Events
RecreationlCultural
m'" \II I/,__
::: : E-;:'
~ ....1.',/
-'. '1 . .
.., . - --
/~, .. ,-"
.:- LL
~ !J.L~
e.:l'~.~ S ",
BUDGET IN BRIEF
2002/03 BUDGET
This document has been prepared by the City of Aventu,.. to provide Important Infonnation to the public
The budget document emphasizes a professional and conservative fiscal approach. It is
primarily intended to establish an action, operation, and financial plan for the delivery of City
services. This budget continues to build upon the solid foundation created in the past to
provide quality municipal services that our residents deserve and expect to fulfill the dream of
creating this great City. Importantly, it also serves as an aid to the residents in providing a
better understanding of the City's operating and fiscal programs. This government promotes
and supports a high quality of life for its citizens, businesses and visitors, Notably, it begins to
set in motion the implementation of a long term vision which addresses the social
infrastructure to establish a sense of community.
HIGHLIGHTS
· For the seventh year, no property tax increase. Adopts 1995 County UMSA millage rate of
2.2270.
· Added 1 School Resource Officer for the new Charter Elementary School. A total of 108
positions are included. Of that number, 75 are sworn officers.
· Provides funding to open and operate the new Community Recreation Center in January
2003 including the outsourcing of operations to the private sector.
· Implements Police Services Agreement with Aventura Mall and increases overtime in the
Police department to address security and safety issues.
· Proposes to improve traffic management by integrating video monitoring devices at key
intersections throughout the City.
· Includes funding to continue the Citywide shuttle bus public transportation service without
imposing a fare and provide for year round Saturday service.
. Provides for $2,367,857 worth of capital improvements and $10,006,996 CIP reserve, The
City's infrastructure needs are addressed through a broad mix of Capital Improvement
projects, which will enhance the City's quality of life, and the attractiveness of the City.
· Continues Lease Book Program to address improvements to the book collections and
business materials at the Northeast branch of the Miami-Dade Library system.
Budgelln Brief
1
. Continues to implement technology enhancements that develop our "Electronic
Government" to allow the public to interact more easily and conveniently with the City and
to automate City operations.
· Special Events such as July 4th, Founders Day, Veterans Day, Arbor Day, as well as
cultural programs and recreational activities are included.
· Provides resources to address $425,000 increase in insurance and worker's compensation
costs.
. Continues contracting most maintenance functions, engineering and inspection services to
the private sector.
· Provides funding for increased costs associated with maintaining newly landscaped areas
and acquired roadways.
· Funds police equipment needs from laptop computers to new police vehicles in the amount
of $766,617.
· Includes $225,000 to fund drainage and road improvements on Yacht Club Way and N.E.
1901h Street.
2002/03 Budget Priorities/Goals
The following represents the pre-established priorities and goals that provided a framework for the
preparation of the 2002103 Budget Plan. In many areas the budget contains resources to address
and accomolish the ore-established oriorities and coals.
./ Construct, operate and maintain a Charter Elementary School by 2003, adjacent to the
Community Recreation Center of the City to serve the growing school age population of
the City.
./ Construct and operate the community recreation center by early 2003, to provide
additional recreational opportunities for all age groups.
./ Provide funding in Police services to address "Homeland Security Issues".
./ Continue the Lease Book Program to address improvements to the book collections and
business materials at the Northeast branch of the Miami-Dade Library system.
./ Implement Police Services Agreement with Aventura Mall and provide a School
Resources Officer at the Charter Elementary School.
./ Improve traffic management by integrating video monitoring devices at key intersections
throughout the City.
./ Continue Citywide Shuttle Bus Service and expand ridership.
./ Provide funding to maintain newly landscaped areas and continue to provide a high
quality maintenance program.
./ Continue to implement technology enhancements that develop our "Electronic
Government" to allow the public to interact more easily and conveniently with the City
and to automate City operations,
./ Implement and fund the fifth year of the City's first 5 Year Capital Improvement Program.
./ Provide resources to address significant increases in insurance and worker's
compensation costs.
SIGNIFICANT FACTORS AFFECTING BUDGET PREPARATION
Although the City's economic base continues to be strong, nationally these are still uncertain
economic times. The budget reflects this uncertainty with a conservative approach that limits
Budget In Brief
2
the number of new positions and continues to outsource new services to the private sector.
This upcoming year the City will begin two new areas of service to the residents; a Charter
Elementary School and Community Recreation Center. They both represent major
undertakings for a young City in terms of cost and impact on City staff. In the process of
adding new services and facilities and mirroring national industry trends we will experience
significant increases in both insurance and workers' compensation premiums. Increased costs
associated with expanded security and safety measures in light of the September 11 tragedy
has impacted the budget as well. In spite of these limitations the budget does not contain a tax
increase and continues to expand services to the community.
The residents of the City deserve quality municipal services provided in a productive and The
residents of the City deserve' quality municipal services provided in a productive and efficient
manner at the lowest possible cost. They also deserve proper justification when a budget is
proposed. I believe the budget contained within does all of this. In its short history, the City
government has gained a reputation for providing quality services in a professional manner
while emphasizing a customer service focus. By privatizing and outsourcing many services the
City has stabilized costs and emulated a business like approach. Over the past 6 and half
years, a great deal of progress has been made to accomplish the goals of incorporation and to
improve the quality of life for our residents. This budget includes the completion of important
projects that build the foundation blocks for the next five years toward the goal of developing a
sense of community for our City. The addition of a Charter Elementary School, Community
Recreation Center and more parks and recreational opportunities will address the changes in
demographics toward a younger family oriented population and assist in achieving our goals.
Summary of All Budgetary Funds
The total proposed budget for 2002/03, including all funds, capital outlay and debt service, is
$30,435,322. This is $15,431,425 less compared to the prior year. This is primarily due to the
completion of major capital projects. Operating expenditures total $15,790,000. Capital Outlay
expenditures total $12,374,853 and Debt Service expenditures are $2,270,469.
Individual fund budget amounts are as follows:
FUND
General
Police Education
Street Maintenance
Police Impact Fee
Park Development
Charter School
Debt Service
Capital Construction
Stonnwater Utility
Police Offduty Services
Subtotals
Interfund Eliminations
Totals
2001/02
$29,156,196
24,150
729,000
108,000
1,352,000
110,000
2,272,309
12,075,000
2,813,971
450.000
$49,091,626
13.224.8791
$45,866,747
2002103
$28,630,637
4,390
573,000
105,000
140,000
o
2,270,469
15,000
930,433
411.000
$33,080,429
12.645.1071
$30,435,322
INCREASE
IDECREASEI
$(558,559)
(19,760)
(156,000)
(3,000)
(1,212,000)
(110,000)
(1,840)
(12,060,000)
(1,883,538)
139.0001
$(16,011,197)
1579.7721
$(15,431,425)
Budget In BrIef
3
CATEGORY
Personal Services
Contractual Services
Other Charges & Services
Commodities
Other Operating Expenses
Capital Outlay
Debt Service
TOTALS
......OIrduty_
,...
c_
n.%
DIbt Slrvice
7'"
.................
......
_lItH...
&'%
fiDllcelmp8CtF.
....
PROPOSED AMOUNT
$9,620,666
3,623,000
2,221,450
345,044
179,840
12,374,863
2.270.469
$ 30,436,322
% OF BUDGET
31.3%
11.6%
7.3%
1.1%
0.6%
40.7%
~
100.0%
Fund Summary By Percentage
-...
......
The following chart shows a comparison of the department's budgets for the past two years.
Total costs decreased by 33.6%.
Deoartmental Budaet Comoarison
Increase
2001/02 2002103 (Decreasel % Chanae
City Commission $106,106 $ 106,306 $ 200 0.2%
omce of the City Manager 633,144 660.360 27,216 5.1%
Finance Support Services 862,887 924,273 61,386 7.1%
Legal 206,000 208,000 3,000 1.6%
City Clerk 186,875 219,877 34,002 18.3%
Public Safety 7,036,419 7,890,807 866,388 12.2%
Community Development 1,366,670 1,462,661 116,981 8.6%
Community Services 2,930,314 3,408,826 478,612 16.3%
Non-Oepartmental 830,000 989,000 169,000 19.2%
Subtotals $14,066,316 $15,790,000 1,734,686 12.3%
Capital Outlay 22,094,774 2,367,867 (19,726,917) (89.3%)
CIP Reserve 6,944,349 10,006,996 3,062,647 44.1%
Debt Service 2,772,309 2,270,469 (601,840) (18.1%)
Totals $45,866,747 $30,436,322 $(15,431,426) (33.6%)
Budget In _ 4
The total number of employees is 160, which is unchanged from the prior fiscal year. One
additional employee was added in the Police Department which was offset by a reduction of
one unfilled Maintenance position in the Community Services Department. The per capita
number of employees is significantly lower than adjacent municipalities. This is due to the
City's emphasis on privatizing major functions of City services for greater productivity.
Personal Services expenditures increased by 11.6%. A major impact is attributed to increased
workers' compensation costs ($220,000) and overtime costs associated with homeland
security issues ($100,000).
Position additions are as follows:
. Public Safety Department - Added 1 School Resource Officer for the new Charter
Elementary School. A total of 108 positions are included. Of that number, 75 are sworn
officers. The department provides a full range of services including criminal
investigations, preventive patrol, bike patrol, crime prevention, traffic enforcement and
dispatch functions.
Expansion of Services
The budget includes funds to expand City provided services as follows:
The budget includes funds to expand City provided services as follows:
. Security and Safety of Residents - Police Services - Added School Resource Officer and
increased overtime to address security and safety issues. Additional cost -$140,000
. Maintain Newly Landscaped Areas at a High Standard. Additional cost - $150,000.
. Opening of new Community Recreation Center- Additional cost - $275,000.
Capital Outlay
This budget marks the sixth year of the implementation of the City's original five year Capital
Improvement Program. The CIP defines a long term plan of proposed capital expenditures to
address infrastructure needs and the maintenance of a desirable high quality of life. Major
emphasis was placed on beautification and landscape projects. A total of $2,032,031 has
been budgeted in the General Fund for Capital Outlay projects along with a $9,719,426
reserve to fund future projects,
Major capital outlay items, which are included in the General fund, are as follows:
. Beautification Projects 900,000
. Police Vehicles 411,781
. Computer Equipment 284,750
. Reserve for Building Equipment 250,000
. Radio Purchase & Replacement 100,000
. Vehicles & Equipment 48,500
. Newspaper Stands 30,000
. Aventura Park Improvements 7,000
Budgelln Brief
5
SUMMARY OF EXPENDITURES BY DEPARTMENT
GENERAL FUND
Increase
2001/02 2002103 (Decreasel %Chanae
GENERAL GOVERNMENT
City Commission $106,106 $106,306 $ 200 0.2%
Office of the City Manager 633,144 660,360 27,216 6.1%
Finance Support Services 862,887 924,273 61,386 7.1%
Legal 206,000 208,000 3,000 1.5%
City Clerk 186.876 219.877 (12.1631 18.3%
Total Gen. Gov't $1,893,012 $2,018,816 $126,804 6.6%
PUBLIC SAFETY
Police $6,661,269 $7,476,417 914,148 13.9%
Comm. Development 1.366.670 1.482.661 115.981 ~
Total Public Safety $7,927,839 $8,967,968 1,030,129 13.0%
COMMUNITY SERVICES
Total Community Services $2,930,314 $3,408,826 478,612 16.3%
OTHER NON-DEPARTMENTAL
Non-Departmental $720,000 $989,000 269,000 37.4%
Transfer to Funds 2,310,339 1,604,670 (805,769) (34.9%)
Capital Outlay 13.374.692 11.671.467 (1.623.2361 /12.1%1
Total other Non-Dept. $16,404,031 $14,245,027 ($2,160,004) (13.2%)
TOTAL $29,166,196 $28,630,637 ($526,559) (1.8%)
ClIp'" 0Uhy
.......
......
....'110
Comm. Development
...,.
BucIget In Brler
6
Where Your Tax Dollars Go
City of Aventura 10.1%
School Board 42.7%
So. Florida Water Man. 2.7%
Inland Navigation DI51 0.2%
Everglades Project 0.5%
Metro Dade 43.8%
Budget In BrIel
7
~
e
eel'~ 0&
fJOJ
&%~~
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
DATE: June 11, 2002
TO: City Commission
FROM: Eric M. Soroka, City
SUBJECT: 2001/02 FY Budget Amendment Ordinance - Storm water Utility Fund
1st Reading July 2,2002 City Commission Meeting Agenda Item ~ D
2nd Reading July 18,2002 City Commission Meeting Agenda Ite~
RECOMMENDATION
It is recommended that the City Commission approve the attached Ordinance
amending the Stormwater Utility Fund of the 2001/02 FY Budget. The total fund was
reduced by $1,292,326. The revisions have eliminated the need to borrow $2,100,000
to fund drainage projects.
BACKGROUND
The attached amendments include the following revisions:
Revenues
1. Recognizes $1,230,000 in state grant funds for N.E. 188th Street and N.E,
30th Avenue Drainage Improvements.
2, Eliminates the need to acquire $2,100,000 from loan proceeds to fund
projects.
3. Adjusts carryover figure by $422,326 to reflect actual revenues from prior
fiscal year.
Expenditures
1. Revised Drainage Improvement line item to $2,606,238 to reflect actual
project costs based on contract awards:
. N.E. 188th Street $1,200,000
. Biscayne Lake Gardens $401,000
Memo to City Commission
Page 2
. N.E. 30th Avenue $925,238
. Miscellaneous Drainage Improvements $80,000
2. Capital Reserve was reduced by $498,326 to $22,693.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
CC01087-02
ORDINANCE NO. 2002-_
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, AMENDING ORDINANCE
NO. 2001-13, WHICH ORDINANCE ADOPTED A BUDGET
FOR THE 2001/2002 FISCAL YEAR BY REVISING THE
2001/2002 FISCAL YEAR OPERATING AND CAPITAL
BUDGET AS OUTLINED IN EXHIBIT "A" ATTACHED
HERETO; AUTHORIZING THE CITY MANAGER TO DO
ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF
THIS ORDINANCE; PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, upon the periodic review and analysis of current budgetary
commitments and obligations, and based upon the projected needs and requirements
of the City and upon the recommendations of the City Manager (and the concurrence of
the Finance Support Services Director as to Accounting Principles). it is deemed
necessary to adjust, amend and implement the 2001/2002 Operating and Capital
Budget as set forth in Exhibit "A" attached hereto and made a part hereof.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, AS FOLLOWS:
Section 1. The recitals contained in the preamble to this Ordinance are
incorporated by reference herein.
Section 2. The City Commission hereby authorizes the amendment of
Ordinance No. 2001-13, which Ordinance adopted a budget for the 2001/2002 fiscal
year, by revising the 2001/2002 budget as set forth on the attached Exhibit "A", which
exhibit is deemed incorporated by reference as though set forth in full herein.
Ordinance No. 2002-_
Page 2
Section 3. The City Manager is hereby authorized to do all things necessary to
carry out the aims of this Ordinance.
Section 4. Effective Date. This Ordinance shall be effective immediately
upon adoption on second reading.
The foregoing Ordinance was offered by Commissioner Rogers-Libert, who
moved its adoption on first reading. This motion was seconded by Commissioner
Cohen, and upon being put to a vote, the vote was as follows:
Commissioner Jay R. Beskin yes
Commissioner Ken Cohen yes
Commissioner Manny Grossman yes
Commissioner Harry Holzberg yes
Commissioner Patricia Rogers-Libert yes
Vice Mayor Arthur Berger yes
Mayor Jeffrey M. Perlow yes
The foregoing Ordinance was offered by Commissioner
who moved its adoption on second reading. This motion was
seconded by Commissioner
and upon being put to a vote, the vote
was as follows:
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Manny Grossman
Commissioner Harry Holzberg
Commissioner Patricia Rogers-Libert
Vice Mayor Arthur Berger
Mayor Jeffrey M. Perlow
PASSED AND ADOPTED on first reading this 2nd day of July, 2002.
2
Ordinance No. 2002-_
Page 3
PASSED AND ADOPTED on second reading this 18th day of July, 2002.
JEFFREY M. PERLOW, MAYOR
ATTEST:
TERESA M. SOROKA, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
tms
3
EXHIBIT A
Revenues
Interaovernmental Revenues
State Grant
SUBTOTAL
Misc. Revenues
Loan Proceeds
SUBTOTAL
2,100,000 (2,100,000)
. $i~,100;Q\lO . $ (2,.100,0001 ."
o
Non-Revenue
Carryover
SUBTOTAL
1,120,697 (422,326) 696,371
'. $, 1,120,1197 ..... ...., :,.$ ""'. . (422,3261" . .':.... ,'lI98,~1
$ , (1 ;292~3261
Total Amendments-Revenues
Expenditures
Community Services - 572
6306 Drainage Improvements
SUBTOTAL
3,400,236 ." (794,0001 .' 2,606,236
'$,~,jlOO,238: .$.(794.0001, ..'$ ;:2,606~
Non-DeDartmental - 590
Capital Reserve
SUBTOTAL
521,019
,$.<e;21,019 , ..
.. . (498,326! 22,693
: $ :::., .{lI98,3~1 ." . .', $ .'. .:.:t2,ll93
Total Amendments-Expenditures
$(1~261
CITY OF AVENTURA
FINANCE SUPPORT SERVICES DEPARTMENT
MEMORANDUM
BY:
TO:
FROM:
DATE:
June 25, 2002
SUBJECT: Ordinance Authorizing Financing for Charter School Acquisition &
Construction & Completion of Community Center Construction
1st Reading July 2,2002 City Commission Agenda Item No. 1E..
2nd Reading July 18, 2002 City Commission Agenda Item No~
RECOMMENDATION
It is recommended that the City Commission approve the Ordinance authorizing the
borrowing of up to $13,000,000 to finance land acquisition and building construction of
the Charter School and the completion of the Community Center. Section 4.03 (6) of
the City Charter states that an ordinance is required to "authorize the borrowing of
money". This ordinance satisfies this City Charter requirement.
BACKGROUND
At the June 10, 2002 workshop meeting, the City Commission was advised that the City
would proceed with a financing program through the Florida Intergovernmental Finance
Commission. At that time, the Commission was also advised that ~pecific authorization
and approval documents would be included on future meetings of the City Commission.
This Ordinance is the first of those documents.
I am still working with the City's Bond Counsel and other parties to the borrowing on the
other documents relating to the borrowing. I am also working with our Financial Advisor
and underwriter for the Florida Intergovernmental Financing Commission on the pricing
and costs of the borrowing. I anticipate that all documents will be ready by July 10th and
have requested that the financing be included on the special meeting preceding the July
18th workshop meeting. At the special meeting the City Commission will be asked to
approve this ordinance on second reading and a resolution authorizing the execution of
the other financing documents.
Page (2)
Ordinance Authorizing Financing for Charter School
Acquisition & Construction & Completion of Community Center
The actual financing is anticipated to be less than $12.5 million. However, the
authorizing ordinance allows up to $13 million just in case there was a need to establish
a larger debt service reserve fund as part of the final pricing of the issue. I don't believe
this is likely but I wanted to give the City that option should it be favorable for us
between now and the final pricing of the borrowing.
HMKlmn
ORDINANCE NO. 2002-_
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
AUTHORIZING THE ISSUANCE OF NOT TO EXCEED
$13,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF
OBLIGATIONS OF THE CITY TO FINANCE ANDIOR
REIMBURSE COSTS RELATING TO THE SITE ACQUISITION,
CONSTRUCTION AND EQUIPPING OF A K-5 CHARTER ELEMENTARY
SCHOOL AND THE COMPLETION OF A COMMUNITY RECREATION
CENTER AND TO PAY COSTS AND EXPENSES OF ISSUING SUCH
OBLIGATIONS; PROVIDING FOR A COVENANT TO BUDGET AND
APPROPRIATE LEGALLY AVAILABLE NON-AD VALOREM FUNDS
EACH YEAR TO PAY THE PRINCIPAL OF, REDEMPTION
PREMIUM, IF ANY, AND INTEREST ON THE OBLIGATIONS;
PROVIDING FOR THE RIGHTS OF THE HOLDERS OF SUCH
OBLIGATIONS; PROVIDING SEVERABILITY AND AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF AVENTURA,
FLORIDA, AS FOLLOWS:
SECTION 1. DEFINITIONS. When used in this Ordinance, the following terms
shall have the following meanings, unless some other meaning is plainly intended:
"City" shall mean the City of Aventura, Florida, a municipal corporation established
by the State of Florida.
"Commission" shall mean the City Commission of the City of Aventura, Florida.
"Cost" or "Costs" as the same relates to the Project, shall mean (A) the cost of
physical construction, reconstruction or completion; (B) the cost of acquisition or purchase;
(C) the cost of all labor, materials, machinery and equipment; (0) the cost of land and any
interests in the land; property rights; easements and franchises of any nature; (E) the cost
of indemnity and surety bonds and premiums for insurance during construction; (F) all
interest due to be paid on the Obligations and any other obligations relating to the Project
during the periOd of construction and for such period of time subsequent to completion of
acquisition and construction as the Commission deems appropriate; (G) engineering,
financial, legal and other consultant fees and expenses; (H) the cost of plans and
specifications, construction plans, surveys and estimates of costs; (I) costs and expenses
of audits, fees and expenses of any paying agent, registrar, trustee, issuer of a credit
facility or a liquidity facility, municipal bond insurance company or depository; (J)
payments, when due (whether at the maturity of principal or the due date of interest or
upon redemption) on any interim or temporary indebtedness incurred for any portion of the
Project; (K) costs and expenses related to the issuance of the Obligations or other
indebtedness related to the Project; (L) costs related to collection of special assessments;
and (M) any other costs and expenses properly attributable to acquisition or construction of
the Project, and such other expenses as may be necessary or incidental to the issuance of
the Obligations; and shall include reimbursement to the City or any other person, firm or
corporation for any moneys advanced for any costs incurred by the City or such person,
Ordinance No. 2002-_
Page 2
firm or corporation in connection with any such items or costs. The Resolution may provide
for additional items to be designated as Costs.
"Non-Ad Valorem Funds" shall mean all revenues of the City derived from any
source other than ad valorem taxation on real or personal property, which are legally
available to make the payments required in this Ordinance but only after provision has
been made by the City for the payment of all essential or legally mandated services.
"Obligations" shall mean the bonds, notes, certificates or other evidence of
indebtedness issued by the City pursuant to this Ordinance.
"Ordinance" shall mean this Ordinance enacted by the Commission, as amended
and supplemented from time to time.
"Project" shall mean those capital improvement projects set forth in the plans and
specifications on file or to be on file with the City, as the same may be modified or
amended from time to time, which are described generally in Exhibit A to this Ordinance.
"Resolution" shall mean the resolution authorizing the issuance of all or a portion of
the Obligations and setting forth the terms and details of such Obligations as described in
Section 4. The term "Resolution" shall also incorporate the provisions of any loan
agreement or other financing agreement that is approved pursuant to the Resolution and
which is executed in connection with the Obligations.
Words importing the singular number include the plural number, and vice versa.
SECTION 2. FINDINGS. The Commission finds and determines that:
(A) The acquisition and construction of the Project is necessary in order to maintain
and protect the health, welfare and safety of the citizens of the City.
(8) The most efficient and cost-effective method of financing the acquisition and
construction of the Project is by the issuance of the Obligations secured by Non-Ad
Valorem Funds in the manner set forth in Section 5 of this Ordinance and in the
Resolution.
(C) The principal of, redemption premium, if any, and interest on the Obligations shall
be paid from Non-Ad Valorem Funds, unless otherwise paid by such entity as shall provide
credit enhancement, if any, on the Obligations and in such a case, reimbursement of the
credit enhancer shalr be from Non-Ad Valorem Funds. The City shall never use or be
required to use any ad valorem taxes for the payment of the Obligations. The Obligations
shall not constitute a general obligation of the City or a pledge of its faith and credit, nor
shall the holders of the Obligations have any lien or encumbrance on any property owned
by the City, including the Project.
SECTION 3. AUTHORIZING THE ACQUISITION AND CONSTRUCTION OF
THE PROJECT. The Commission authorizes and approves the acquisition and
Ordinance No. 2002-_
Page 3
construction of the Project.
SECTION 4. ISSUANCE OF THE OBLIGATIONS. The Obligations are authorized to
be issued at one or more times in an aggregate principal amount of not exceeding
$13,000,000. The particular designation of each Obligation shall be made in the
Resolution. The Obligations shall be issued for the principal purposes of (A) paying all or a
portion of the Cost of the Project, (B) establishing debt service reserves, if deemed
necessary by the Commission, and (C) paying costs and expenses of issuing the
Obligations. The principal of, redemption premium, if any, and interest on the Obligations
shall be payable solely from Non-Ad Valorem Funds, in the manner set forth in Section 5
of this Ordinance and in the Resolution.
The Obligations shall be dated such date or dates, shall bear interest at such rate or
rates, shall mature at such time or times and in such amount or amounts as may be
determined in the Resolution, and may be redeemable before maturity, at the option of the
City, at such price or prices and under such terms and conditions as may be fixed in the
Resolution. The Commission shall determine in the Resolution the form of the Obligations,
the manner of executing such Obligations, and such other terms and provisions of the
Obligations as it deems appropriate. The Obligations may bear interest at a fixed or
variable rate, as shall be determined in the Resolution. In case any officer whose signature
or a facsimile of whose signature shall appear on any Obligation shall cease to be such
officer before the delivery of such Obligation, such signature or such facsimile shall
nevertheless be valid and sufficient for all purposes the same as if he or she had remained
in office until such delivery. The Commission shall sell the Obligations in such manner and
for such price as it determines in the Resolution to be in the best interests of the City. The
Obligations may be further secured by any credit enhancement as determined by the
Commission in the Resolution. The Resolution may also include provisions authorizing the
use of interest rate exchange instruments in connection with the Obligations.
The Obligations may be issued without any other proceedings or the happening of
any other conditions or things other than the adoption of the Resolution.
The proceeds of the Obligations shall be disbursed in such manner and under such
restrictions, if any, as may be provided in the Resolution.
The Resolution shall include, but without limitation, provisions as to the rights and
remedies of the holders of the Obligations, the application of funds, the flow of funds and
such other matters as are customarily in such an instrument. The Resolution may provide
for the City entering into one or more loan or other financing agreements with the
purchaser of the Obligations.
SECTION 5. COVENANT TO BUDGET AND APPROPRIATE. The City may
covenant and agree pursuant to a resolution to appropriate in its annual budget, by
amendment, if necessary, from Non-Ad Valorem Funds lawfully available in each fiscal
year, amounts sufficient to pay the principal of, redemption premium, if any, and interest on
any Obligation when due each fiscal year or to reimburse any credit enhancer which may
have satisfied such payment. Such covenant and agreement on the part of the City to
Ordinance No. 2002-_
Page 4
budget and appropriate such amounts of Non-Ad Valorem Funds shall be cumulative to
the extent not paid, and shall continue until such Non-Ad Valorem Funds or other legally
available funds in amounts sufficient to make all such required payments shall have been
budgeted, appropriated and actually paid. Notwithstanding the foregoing, the City has not
covenanted to maintain any services or programs, now provided or maintained by the City,
which generate Non-Ad Valorem Funds.
Such covenant to budget and appropriate shall not create any lien upon or pledge of
such Non-Ad Valorem Funds, nor shall it preclude the City from pledging in the future its
Non-Ad Valorem Funds, nor shall it require the City to levy and collect any particular Non-
Ad Valorem Funds, nor shall it give the holders of any Obligations or any credit enhancer a
prior claim on the Non-Ad Valorem Funds as opposed to claims of general creditors of the
City. Such covenant to appropriate Non-Ad Valorem Funds shall be subject in all respects
to the payment of obligations secured by a prior or future pledge of such Non-Ad Valorem
Funds (including the payment of debt service on bonds and other debt instruments).
However, the covenant to budget and appropriate in its annual budget for the purposes
and in the manner stated in this Ordinance and in the Resolution shall have the effect of
making Non-Ad Valorem Funds available for the payment of the Obligations, and placing
on the City a positive duty to appropriate and budget, by amendment, if necessary, Non-Ad
Valorem Funds sufficient to meet its obligations under this Ordinance and the Resolution;
subject, however, in all respects to the restrictions of Section 166.241(3), Florida Statutes,
which provides, in part, that the governing body of each municipality make appropriations
for each fiscal year which, in anyone year, shall not exceed the amount to be received
from taxation or other revenue sources; and subject, further, to the payment of services
and programs which are for essential public purposes of the City or which are legally
mandated by applicable law.
SECTION 6. TAXING POWER NOT PLEDGED. The Obligations issued under the
provisions of this Ordinance and the obligation to repay any credit enhancer of such
obligations shall not be deemed to constitute a pledge of the faith and credit of the City, but
the Obligations and repayment shall be payable from the Non-Ad Valorem Funds in the
manner provided in this Ordinance and the Resolution. The issuance of the Obligations
under the provisions of this Ordinance shall not directly, indirectly or contingently obligate
the City to levy or to pledge any form of ad valorem taxation. The holder of the Obligations
shall never have the right to compel any exercise of the ad valorem taxing power on the
part of the City to pay the Obligations or the interest on the Obligations against any
property of the City, nor shall the Obligations constitute a charge, lien or encumbrance,
legal or equitable, upon any property of the City.
SECTION 7. REMEDIES OF HOLDERS OF OBLIGATIONS. The holders of the
Obligations, except to the extent the rights given to them pursuant to this Ordinance may
be restricted by the Resolution, may, whether at law or in equity, by suit, action,
mandamus or other proceeding, protect and enforce any and all rights under the laws of
the State of Florida or granted under this Ordinance or under the Resolution, and may
enforce and compel the performance of all duties required by this Ordinance or by such
Resolution, to be performed by the City.
Ordinance No. 2002-_
Page 5
SECTION 8. ALTERNATIVE METHOD. This Ordinance shall be deemed to provide
an additional and altemative method for the doing of things authorized hereby and shall be
regarded as supplemental and additional to powers conferred by other laws, and shall not
be regarded as in derogation of any powers now existing or which may hereafter come into
existence. This Ordinance, being necessary for the welfare of the inhabitants and/or
property owners of the City, shall be liberally construed to effect its purposes.
SECTION 9. GENERAL AUTHORITY. The members of the Commission of the City
and the officers, attorneys and other agents or employees of the City are authorized to do
all acts and things required of them by this Ordinance, or desirable or consistent with its
requirements for the full punctual and complete performance of all the terms, covenants
and agreements contained in this Ordinance.
SECTION 10. SEVERABILITY. If any section, paragraph, clause or provision of this
Ordinance shall be held to be invalid for any reason, such invalidity shall not effect the
validity or enforcement of any of the remaining provisions. This Ordinance shall take
precedence over any other ordinance or resolution of the City to the extent of any conflict
or inconsistency with each.
SECTION 11. EFFECTIVE DATE. This Ordinance shall take effect immediately upon
its enactment on the second reading.
The foregoing Ordinance was offered by Commissioner Rogers-Libert, who moved
its adoption on first reading. This motion was seconded by Commissioner Grossman, and
upon being put to a vote, the vote was as follows:
Commissioner Jay R. Beskin yes
Commissioner Ken Cohen yes
Commissioner Manny Grossman yes
Commissioner Harry Holzberg yes
Commissioner Patricia Rogers-Libert yes
Vice Mayor Arthur Berger yes
Mayor Jeffrey M. Perlow yes
The foregoing Ordinance was offered by Commissioner
moved its adoption on second reading. This motion was seconded
and upon being put to a vote, the vote was as follows:
,who
by Commissioner
Commissioner Jay Beskin
Commissioner Ken Cohen
Commissioner Manny Grossman
Commissioner Harry Holzberg
Commissioner Patricia Rogers-Libert
Vice Mayor Arthur Berger
Mayor Jeffrey M. Perlow
Ordinance No. 2002-_
Page 6
PASSED on first reading this 2nd day of July, 2002.
PASSED AND ADOPTED on second reading this 18th day of July, 2002.
JEFFREY M. PERLOW, MAYOR
ATTEST:
TERESA M. SOROKA, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
EXHIBIT A
DESCRIPTION OF THE PROJECT
Complete descriptions of the Project are set forth in the plans, specifications and
re.cords of the City. A general description of the Project is as follows:
A. Acquisition, construction and equipping of an approximately 44,000 square
foot K-5 charter elementary school, including acquisition of the site thereon.
B. Completion of the construction and equipping of an approximately 25,000 square
foot Community/Recreation center.
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JlJA FAC81MILE 30$-466-8919
Mr. Eric Soroka
City Manager
City of Aventura
19200 W. Country Club Drive
Aventura, JlL 33180
RE: Cable FranchiseslChan@e of Control ADDlication
Dear Mr. Soroka:
This is to provide a SUIIllll8I)' of the eUl'l'ellt status of the appliwious pending before the City
for approval of the: Change: of Conltol of the twO cable television franchises serving the City of
Aventura from AT&T Broadband to AT&T Comeast.
AT&T 8roadband submitted an FCC 394 application on March 8, 2002. PutllUllllt to federal
law. the City must take 1ICti0n to approve or deny the application within 120 days of zeceipt or the
application shall be deemed automatically approved by operation of law. The City has offered to
the applicant the opportunity to extend the 12o.day time period so as to provide time to settle any
UIIl'Csolved issues. The Company has provided the City with a lelkr dated J\I1le 27, 2002 deferring
the 120 day period until July 18,2002. Thus, the City of Avenlura Is required to lake action at the
Commission meeting scheduled for July 18, 2002.
As of this date. while we have made progress on some issues, the applicant has failed to
provide the City executed "Acceptance documents in a form Jcqllired by the City." If the City is in
I'IlCCipt of said documents prior to the Commission meeting, the Law Finn would recommend
consideration of the approval of the Change of Control.
Specific issues to beconsidered by the staff and the Commission with respect to the approval
of the Change of Control of the cable franchises include, but are not limlled to 1bose listed below;
I. Transferees assumption and auarantee of all obligations and liabilities of the two
franchises;
2, Submission by the franchisees of a plan to cure pendiDg violations includina, but not
limilCd to (a) customer service policies and proc:edures, and (b) compliance with
"most-favored nations" obliaations in the franchise originally granted to Comeast.
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Letter to Mr. Eric Soroka
July 10.2002
PaRe 2
Per our discussion, 1 will plan to attend the Commission meeting scheduled for July 18,
2002, at 9:30 p.m. at which time I will be prepared to provide a report to the Commission on the
status of the Change of Control proceedings.
Please do not hesitate to call should you have any questions or requite additional
information.
Sincerely,
Matthew L. Leibowitl
(J~QWN002,^T.T-eo.ne.u\A~~.o"lo.wplI
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RESOLUTION NO. 2002-_
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, APPROVING THE
CHANGE OF CONTROL OF THE TCI TKR OF SOUTH
FLORIDA CABLE TELEVISION FRANCHISE TO AT&T-
COMCAST; PROVIDING AN EFFECTIVE DATE.
WHEREAS, on March 8, 2002, the City of Aventura, Florida received an FCC
394 and an application for City consent by the City Commission to the proposed change
of control of the cable television franchises from AT&T Corporation and AT&T
Broadband, LLC to AT&T Comcast Corporation.
WHEREAS, pursuant to Ordinance No. 97-20 as amended by no. 98-11 of the
City of Aventura and the TCI-TKR of South Florida, Inc., Franchise Agreement and
agreements related thereto, no such change of control may occur without prior
approval of the City Commission of the City of Aventura, Florida; and
WHEREAS, the City has required that the applicant fulfill its obligations pursuant
to the Cable Ordinance and Cable Television Franchise and provide information on the
proposed transaction including details on the legal, financial, technical and other
qualifications of the transferee and on the potential impact of the transfer on service;
and
WHEREAS, under FCC Rules, 47 CFR Section 76.502, the City has 120 days
plus any extensions thereto from the date of submission of a completed FCC Form 394,
together with all Exhibits, and any additional information required by the franchise
agreement or applicable state or local law, to act upon an application to sell, assign, or
otherwise transfer controlling ownership of a cable system; and
Resolution No. 2002-_
Page 2
WHEREAS, AT&T Broadband has represented to the City that it has taken all
actions and implemented all practices necessary to insure that TCI-TKR of South
Florida, Inc., the Franchisee is, unless otherwise noticed, in compliance with all
provisions of the Ordinance and Franchise Agreement; and
WHEREAS, the City has noticed Franchisee AT&T Broadband of all known
material outstanding violations and Franchisee has cured or agreed to cure in a manner
approved by the City Manager those violations and has paid or agreed to pay to the City
all underpayments and costs known to have been incurred as a result of such non-
compliance; and
WHEREAS, the City has required written acceptance from Franchisee and
acceptance by AT&T Comcast of the terms and conditions of this Resolution by affidavit
as a condition precedent to adoption of this Resolution (affidavit attached hereto as
Exhibit A); and
WHEREAS, in the event the proposed transaction between AT&T Corporation
and AT&T Broadband and Comcast Corporation is not consummated within one
hundred twenty (120) days of the date hereof or does not reach final closure for any
reason, or in the event such closure is reached on terms substantially or materially
different to the terms described in the FCC Form 394 and exhibits thereto, the approval
granted in this Resolution shall be null and void.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, THAT:
2
Resolution No. 2002-_
Page 3
Section 1. The foregoing recitals are approved and incorporated herein by
reference.
Section 2. To the extent required, the City of Aventura, Florida, hereby
consents to the change in ultimate control of the TCI-TKR of South Florida, Inc., Cable
Television Franchise from AT&T Broadband to AT&T Comcast.
Section 3. That the consent granted herein does not constitute and should not
be construed to constitute a waiver or release of any obligations of the Franchisee
under the Cable Television Ordinance and the Cable Television Franchise Agreement
and amendments and agreements related thereto.
Section 4. That the consent granted herein does not and should not be
construed to constitute a waiver of any right of the City or Franchisee under applicable
law including but not limited to the Ordinance or the Cable Television Franchise; and
further, this consent shall not prejudice the City's rights with respect to the enforcement,
renewal or transfer of the current cable television franchise and any amendments or
agreements related thereto.
Section 5. That the consent herein granted is conditioned upon (a)
Franchisee's assurances set forth in its affidavit submitted to the City on
and attached hereto as Exhibit A; (b) Franchisee assurances
as set forth in Exhibit B attached hereto; and (c) payment to the City no later than July
3, 2002, for all costs incurred by the City related to the evaluation of the transfer
application and the transfer process including, but not limited to, consulting fees and
3
Resolution No. 2002-_
Page 4
legal fees.
Section 6. That this Resolution shall have the force and effect of continuing
the Agreement between the Franchisee and the City, the Franchise Authority to the
extent consistent with Ordinance No. 97-20 as amended and the TCI-TKR of South
Florida, Inc., Franchise Agreement and all agreements related thereto including, but not
limited to Exhibit A and B attached hereto.
Section 7. That the City hereby reserves all of its rights pursuant to Federal
and local law including, but not limited to the rights in (a) the franchise renewal process
including, but not limited to, the right to consider violations of the franchise by the
current franchisee; (b) the franchise transfer process including, but not limited to, the
right to act upon any application to sell, assign or otherwise transfer any interest in the
franchisee or the cable system; and (c) the enforcement of the current Cable Television
Ordinance and amendments thereto and the current cable television Franchise and
amendments thereto, and all agreements and assurances attached hereto.
Section 8. That the consent herein granted expressly does not waive and
expressly reserves to the City of Aventura its rights to fully exercise all applicable legal
rights and authority with regard to TCI-TKR of South Florida, Inc., AT&T Broadband and
AT&T Comcast and their affiliates, parent or subsidiaries in connection with any use of
the City's rights of way not authorized by the City including, but not limited to levying
fines or instituting litigation for trespass and ejectment.
Section 9. That the consent herein granted is an express non-waiver and
4
Resolution No. 2002-_
Page 5
reservation of the City's rights and authority against TCI-TKR of South Florida, Inc.,
AT&T Broadband and AT&T Comcast for any franchise violations that may exist
including, but not limited to those in connection with any unauthorized use of AT&T
Broadband or AT&T Comcast's facilities or facilities by any entity in any way affiliated
with a company in which AT&T Broadband or AT&T Comcast's, its affiliates, parent or
subsidiary has an interest.
Section 10, That the consent granted herein is subject to the transferor's and
transferee's compliance with all other applicable legal requirements and the City does
not waive and expressly reserves the right to enforce full compliance with its ordinance
and franchise requirements, whether or not any non-compliance that may be
determined arose before or after the transfer of control from AT&T Broadband to AT&T
Comcast.
Section 11, That this Resolution shall become effective upon the date of its
adoption herein.
The foregoing Resolution was offered by Commissioner
, who moved
its adoption. The motion was seconded by Commissioner
, upon
being put to a vote, the vote was as follows:
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Manny Grossman
Commissioner Harry Holzberg
Commissioner Patricia Rogers-Libert
Vice Mayor Arthur Berger
Mayor Jeffrey M. Perlow
5
Resolution No. 2002-_
Page 6
PASSED AND ADOPTED this 18th day of July, 2002.
JEFFREY M. PERLOW, MAYOR
ATTEST:
TERESA M. SOROKA, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
6
EXHIBIT A
UNCONDITIONAL ACCEPTANCE OF TERMS OF
RESOLUTION NO. 2002-_
BEFORE ME, appeared the undersigned authority who being duly sworn upon his oath
deposes and states that:
1. The Affiants are, respectively, the Senior Vice President of AT&T Broadband,
LLC and the person authorized to execute this document on behalf of TCl TKR of South Florida,
Inc.
(the
"Franchisee")
and
the
of AT&T Comcast Corporation ("AT&T Comcast"), and the
person authorized to execute this document on behalf of AT&T Comcast, the transferee for the
Change of Control of the Franchisee, as claimed by AT&T Broadband as set forth on the FCC
Form 394 received by the City on March 8, 2002 (the "Change of Control").
2. The Affiants are submitting this affidavit as a condition precedent to the approval
of the application for Change of Control of the Franchise from AT&T Corporation and AT&T
Broadband, LLC (collectively "AT&T") to AT&T Comcast Corporation.
3. The Franchisee is submitting this Affidavit as an unconditional affirmation that
after the Closing of the Change of Control, the Franchisee will continue to be bound by and shall
assume all the lawful terms and conditions of Cable Television Ordinance No. 97-20 as amended
by No. 98-11 of the City of Aventura, Florida (the "City"), and amendments thereto (the
"Ordinance"), the current Cable Television Franchise between the Franchisee and the City
granted by Ordinance No. 99-03 and amendments and agreements related thereto (the
"Franchise"), and the Resolution of the City Commission approving the Change of Control of the
Franchisee from AT&T to AT&T Corneas!.
4, AT&T Comcast hereby attests and acknowledges that the Change of Control will
not affect, diminish, impair or supercede the binding nature of the existing valid ordinances,
resolutions and agreements applicable to operation of the cable system in the City, including but
not limited to the Ordinance, the Franchise and any guarantees existing or provided therein.
5. Affiant hereby acknowledges that the City has placed Franchisee on notice that it
is not in compliance with certain of its existing obligations under the Ordinance and Franchise
Agreement including but not limited to the items listed below. Franchisee now hereby certifies
that it is in compliance or a plan to cure any non-compliance has been submitted to and approved
by the City Manager, a copy of which is attached hereto as Exhibit B. Any failure to maintain
compliance during the term of the franchise shall result in Franchisee being subject to liquidated
damages as provided for in the Ordinance, the Franchise AgreeIl1ent and this Acceptance.
(a) On or about December 21,2001, AT&T Broadband issued to subscribers a
"Notice of Policies and Procedures" ("Notice") informing subscribers of the company's
customer service policies and dispute resolution procedures. The City of Aventura Ordinance
No. 98-11 at Section l8(k) and the Franchise Agreement requires the Franchisee to submit any
such policies and procedures to the City Manager for approval. The Franchisee failed to do so.
Moreover, the Notice includes policies and procedures in direct conflict with certain terms and
conditions of the Ordinance and Franchise Agreement. Thus, the "Notice" is void ab initio.
Accordingly, Franchisee is subject to and hereby agrees to pay to the City liquidated damages in
the amount of One Hundred Dollars ($100.00) per day per subscriber from the date of issuance
of the Notice to the date on which subscribers receive a notice of retraction of the Notice as
approved by the City Manager. Franchisee hereby agrees that said retraction, as approved by the
City, shall be issued no later than sixty (60) days after the date hereof. Franchisee further agrees
that effective with the sixty-first (61'1) day after the date hereof, Franchisee shall pay to the City
liquidated damages in the amount of Two Hundred Dollars ($200.00) per day per subscriber for
each day until said retraction is issued.
(b) It is hereby further acknowledged that the "Notice of Policies and
Procedures" may be the subject of legal action, administrative inquiry or industry negotiation by
parties other than the City, including but not limited to the Attorney General of the State of
Florida. In the event that any such action has the effect, whether through judicial decision,
administrative action, settlement, agreement or practice of providing by a cable operator under
the control of AT&T Comcast any benefits to a community or subscribers, such benefits shall
automatically and without delay be made available to the City and subscribers within the City
with notice of same provided to the City Manager.
6. Franchisee shall cooperate in any franchise compliance inquiry including, but not
limited to an audit of customer service performance and call center records and financial and
technical audits. AT&T Comcast agrees that the records of the Franchisee, which are required to
be maintained and are subject to inspection by the City pursuant to the Ordinance and Franchise,
shall be subject to inspection regardless of whether such records are maintained by Franchisee or
AT&T Comcast.
7, Franchisee agrees that the City does not waive any right to require compliance
with the Franchise by Franchisee whether or not any noncompliance is the subject of this
Acceptance or Exhibit B and Franchisee hereby assumes responsibility for any and all non-
compliance under the current Franchise and the Ordinance or amendments or agreements related
thereto even if such noncompliance is alleged to have occurred prior to the closing of the Change
of Control.
8. Franchisee shall make payments for such costs and fees of the City related to the
Change of Control as are required pursuant to the terms of the Franchise and the Ordinance and
other amendments or agreements related thereto.
9. This Exhibit A may be signed in counterparts.
FURTHER AFFIANT SA YETH NAUGHT.
TCI TKR OF SOUTH FLORIDA, INC.
By:
Name:
Title:
AT&T COMCAST CORPORATION
By:
Name:
Title:
STATE OF FLORIDA )
) ss:
COUNTY OF )
BEFORE ME, the undersigned authority, personally appeared ,
who is known to me personally (or provided proof of identification) and upon being first duly sworn
acknowledged that he/she executed the foregoing document freely and voluntarily and for the purpose
therein expressed.
WITNESS my hand and official seal in the County and State last aforesaid this _ day of
,2002.
NOTARY PUBLIC
My Commission expires:
Jul-IO-ZOOZ 10:53
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July 10,2002
JlJA FACSIM1LE 3'54"-8919
Mr. Eric Soroka
City Manager
City of Avcntura
19200 W. Country Club Drive
Aventura,l'L 33180
RE: Cable FranchiRMIChanlle of Control Aqplicalion
Dear Mr. Soroka:
This is to provide aSUIIIID8IY of tile tuneDt status of tile applicarioas P"""'ll\& before the City
for approval of the Chao&e of Conrrol of the two cable television franchises serving the City of
Avcntura from AT&T Broadband to AT&T Comcast.
AT&T Broadband submitted au FCC 394 application on March 8, 2002. Pursuant to federal
law. the City lDIISt take action to approve or deny tbe lIJIPlication wi1bin 120 days ofreceipt orllle
applicaUon shall be deemed.-aIically appnm:d by opcralion of law. The City bas offered to
the applicant die opparIU1lity to extend the l2O-day time period SO U fD provide time to settle any
uaresolved issues. The Compauy bas provided the City wid! a letter date4 JlIIIe 27, 2002 deferring
the 120 day period Illltil July 18.2002. Thus. tbe City of Aventura Is requlred fD Wee action at the
Commission meeting scheduled for July 18, 2002.
As of this date. while we have made progress OIl some isNes. the appJic:ant has failed to
provide the City excc:utl:d <<Acc.qAa4CO clocualents in a form rcquWd by tbe City." lethe City is in
receipt of said do..u~lWts prior to the CommissiOll meeting. the Law Firm would JeCOlIImelId
coosideration of tho approval oftheCbaDge of Control.
Specific issue. to beCOllSldered by the 818ft' and dIe Commission with respect to the approval
of the Cbange of CoAttoI of the cable franchises include, but arc not limited to tbose listed below:
1. Tl'81ISferees assumption and guarantee of all obligations and liabilities of the two
franchises;
2. SUbmission by the franchisees of a plan to cure pending violatioDS includina. but not
limited to (8) Cllltomer service policies and procedures, and (b) compliace with
"tnost.tlIvored nations" obliptions in the ft8IIohise originally granted fD Comoast.
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Leller to Ml'. Eric Soroka
lIIIy 10. 2002
Pale 2
Per our discu",on. I will plan to attc:nd the Commission meetIna sc:hedllIed for July 18,
2002, at 9:30 p.m. III wbicll time I will be p.e~ to provide a report to the Commission on the
stablS of the Change of Control ~it\g!t.
Please do not hesil8te to can should you have any questions or teqUite addi1lolla1
information.
Sincelllly,
-
Matthew L. Leibowil:l
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."'ITK ,....so. ON" JaOVTHCAST l'H"U' AveNUC. MIAMI, FLORIDA 3.at~I"17Ia ., 1'CLCflItfOMR laos. 8.:ao..,al.l:
RESOLUTION NO. 2002-_
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, APPROVING THE
CHANGE OF CONTROL OF THE COMCAST
CABLEVISION OF HALLANDALE, INC., CABLE
TELEVISION FRANCHISE TO AT&T COMCAST
CORPORATION; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on March 8, 2002, the City of Aventura, Florida, received an FCC
394 and an application for City consent by the City Commission to the proposed change
of control of the cable television franchises from AT&T Corporation and AT&T
Broadband, LLC to AT&T Comcast Corporation.
WHEREAS, pursuant to Ordinance No. 97-20 as amended by No. 98-11 of the
City of Aventura and the Comcast Cablevision of Hallandale, Inc., Franchise
Agreement, no such change of control may occur without prior approval of the City
Commission of the City of Aventura, Florida; and
WHEREAS, the City has required that the applicant fulfill its obligations pursuant
to the Cable Ordinance and Cable Television Franchise and provide information on the
proposed transaction including details on the legal, financial, technical and other
qualifications of the transferee and on the potential impact of the transfer on service;
and
WHEREAS, under FCC Rules, 47 CFR Section 76.502, the City has 120 days
plus any extensions thereto from the date of submission of a completed FCC Form 394,
together with all Exhibits, and any additional information required by the franchise
agreement or applicable state or local law, to act upon an application to sell, assign, or
otherwise transfer controlling ownership of a cable system; and
Resolution 2002-
Page 2
WHEREAS, AT&T Broadband has represented to the City that it has taken all
actions and implemented all practices necessary to insure that the Franchisee is, unless
othelWise noticed, in compliance with all provisions of the Ordinance and Franchise
Agreement; and
WHEREAS, the City has noticed Franchisee and AT&T Broadband of all known
material outstanding violations and Franchisee has cured or agreed to cure in a manner
approved by the City Manager those violations and has paid or agreed to pay to the City
all underpayments and costs known to have been incurred as a result of such non-
compliance; and
WHEREAS, the City has required written acceptance from Franchisee and
acceptance by A T& T Comcast of the terms and conditions of this Resolution by affidavit
as a condition precedent to adoption of this Resolution (affidavit attached hereto as
Exhibit A); and
WHEREAS, in the event the proposed transaction between AT&T Corporation
and AT&T Broadband and Comcast Corporation is not consummated within one
hundred twenty (120) days of the date hereof or does not reach final closure for any
reason, or in the event such closure is reached on terms substantially or materially
different to the terms described in the FCC Form 394 and exhibits thereto, the approval
granted in this Resolution shall be null and void.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, THAT:
2
Resolution 2002-_
Page 3
Section 1. The foregoing recitals are approved and incorporated herein by
reference.
Section 2. To the extent required, the City of Aventura, Florida, hereby
consents to the change in ultimate control of the Comcast Cablevision of Hallandale,
Inc., Cable Television Franchise from AT&T Broadband to AT&T Comcast.
Section 3. That the consent granted herein does not constitute and should not
be construed to constitute a waiver or release of any obligations of the Franchisee
under the Cable Television Ordinance and the Cable Television Franchise Agreement
and amendments and agreements related thereto.
Section 4. That the consent granted herein does not and should not be
construed to constitute a waiver of any right of the City or Franchisee under applicable
law including but not limited to the Ordinance or the Cable Television Franchise; and
further, this consent shall not prejudice the City's rights with respect to the enforcement,
renewal or transfer of the current cable television franchise and any amendments or
agreements related thereto.
Section 5. That the consent herein granted is conditioned upon (a)
Franchisee's assurances set forth in its affidavit submitted to the City on
and attached hereto as Exhibit A; (b) Franchisee assurances
as set forth in Exhibit B attached hereto; and (c) payment to the City no later than July
3, 2002, of cost recovery for all costs incurred by the City related to the evaluation of the
transfer application and the transfer process including, but not limited to, consulting fees
3
Resolution 2002-
Page 4
and legal fees.
Section 6. That this Resolution shall have the force and effect of continuing
the Agreement between the Franchisee and the City, the Franchise Authority to the
extent consistent with Ordinance No. 97-20 as amended and the Comcast Cablevision
of Hallandale, Inc., Franchise Agreement and all agreements related thereto including,
but not limited to Exhibit A and B attached hereto.
Section 7. That the City hereby reserves all of its rights pursuant to Federal
and local law including, but not limited to the rights in (a) the franchise renewal process
including, but not limited to, the right to consider violations of the franchise by the
current franchisee; (b) the franchise transfer process including, but not limited to, the
right to act upon any application to sell, assign or otherwise transfer any interest in the
franchisee or the cable system; and (c) the enforcement of the current Cable Television
Ordinance and amendments thereto and the current cable television Franchise and
amendments thereto, and all agreements and assurances attached hereto.
Section 8. That the consent herein granted expressly does not waive and
expressly reserves to the City of Aventura its rights to fully exercise all applicable legal
rights and authority with regard to Comcast Cablevision of Hallandale, Inc., AT&T
Broadband and AT&T Comcast and their affiliates, parent or subsidiaries in connection
with any use of the City's rights of way not authorized by the City including, but not
limited to levying fines or instituting litigation for trespass and ejectment.
Section 9. That the consent herein granted is an express non-waiver and
4
Resolution 2002-_
Page 5
reservation of the City's rights and authority against Comcast Cablevision of Hallandale,
Inc., AT&T Broadband and AT&T Comcast for any franchise violations that may exist
including, but not limited to those in connection with any unauthorized use of AT&T
Broadband or AT&T Comcast's facilities or facilities by any entity in any way affiliated
with a company in which AT&T Broadband or AT&T Comcast's, its affiliates, parent or
subsidiary has an interest.
Section 10. That the consent granted herein is subject to the transferor's and
transferee's compliance with all other applicable legal requirements and the City does
not waive and expressly reserves the right to enforce full compliance with its ordinance
and franchise requirements, whether or not any non-compliance that may be
determined arose before or after the transfer of control from AT&T Broadband to AT&T
Comcast.
Section 11. That this Resolution shall become effective upon the date of its
adoption herein.
The foregoing Resolution was offered by Commissioner
its adoption. The motion was seconded by Commissioner
being put to a vote, the vote was as follows:
, who moved
, upon
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Manny Grossman
Commissioner Harry Holzberg
Commissioner Patricia Rogers-Libert
Vice Mayor Arthur Berger
Mayor Jeffrey M, Perlow
5
Resolution 2002-_
Page 6
PASSED AND ADOPTED this 18th day of July, 2002.
JEFFREY M. PERLOW, MAYOR
ATTEST:
TERESA M. SOROKA, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
6
EXHIBIT A
UNCONDITIONAL ACCEPTANCE OF TERMS OF
RESOLUTION NO. 2002-
BEFORE ME, appeared the undersigned authority who being duly sworn upon his oath
deposes and states that:
1. The Affiants are, respectively, the Senior Vice President of AT&T Broadband,
LLC and the person authorized to execute this document on behalf of Comcast Cablevision of
Hallandale, Inc. (the "Franchisee") and
the
of AT&T Comcast Corporation ("AT&T Comcast"), and the
person authorized to execute this document on behalf of AT&T Comcast, the transferee for the
Change of Control of the Franchisee, as claimed by AT&T Broadband as set forth on the FCC
Form 394 received by the City on March 8, 2002 (the "Change of Control").
2. The Affiants are submitting this affidavit as a condition precedent to the approval
of the application for Change of Control of the Franchise from AT&T Corporation and AT&T
Broadband, LLC (collectively "AT&T") to AT&T Comcast Corporation.
3. The Franchisee is submitting this Affidavit as an unconditional affirmation that
after the Closing of the Change of Control, the Franchisee will continue to be bound by and shall
assume all the lawful terms and conditions of Cable Television Ordinance No. 97-20 as amended
by No. 98-11 of the City of Aventura, Florida (the "City"), and amendments thereto (the
"Ordinance"), the current Cable Television Franchise between the Franchisee and the City and
amendments and agreements related thereto (the "Franchise"), and the Resolution of the City
Commission approving the Change of Control of the Franchisee from AT&T to AT&T Comcast.
4. AT&T Comcast hereby attests and acknowledges that the Change of Control will
I
not affect, diminish, impair or supercede the binding nature of the existing valid ordinances,
resolutions and agreements applicable to operation of the cable system in the City, including but
not limited to the Ordinance, the Franchise and any guarantees existing or provided therein.
5. Affiant hereby acknowledges that the City has placed Franchisee on notice that it
is not in compliance with certain of its existing obligations under the Ordinance and Franchise
Agreement including but not limited to the items listed below. Franchisee now hereby certifies
that it is in compliance or a plan to cure any non-compliance has been submitted to and approved
by the City Manager, a copy of which is attached hereto as Exhibit B. Any failure to maintain
compliance during the term of the franchise shall result in Franchisee being subject to liquidated
damages as provided for in the Ordinance, the Franchise Agreement and this Acceptance.
(a) On or about December 21,2001, AT&T Broadband issued to subscribers a
"Notice of Policies and Procedures" ("Notice") informing subscribers of the company's
customer service policies and dispute resolution procedures, The City of Aventura Ordinance
No. 98-11 at Section 18(k) and the Franchise Agreement requires the Franchisee to submit any
such policies and procedures to the City Manager for approval. The Franchisee failed to do so.
Moreover, the Notice includes policies and procedures in direct conflict with certain terms and
conditions of the Ordinance and Franchise Agreement. Thus, the "Notice" is void ab initio.
Accordingly, Franchisee is subject to and hereby agrees to pay to the City liquidated damages in
the amount of One Hundred Dollars ($100.00) per day per subscriber from the date of issuance
of the Notice to the date on which subscribers receive a notice of retraction of the Notice as
approved by the City Manager. Franchisee hereby agrees that said retraction, as approved by the
City, shall be issued no later than sixty (60) days after the date hereof. Franchisee further agrees
2
that effective with the sixty-first (61") day after the date hereof, Franchisee shall pay to the City
liquidated damages in the amount of Two Hundred Dollars ($200.00) per day per subscriber for
each day until said retraction is issued.
(b) It is hereby further acknowledged that the "Notice of Policies and
Procedures" may be the subject of legal action, administrative inquiry or industry negotiation by
parties other than the City, including but not limited to the Attorney General of the State of
Florida. In the event that any such action has the effect, whether through judicial decision,
administrative action, settlement, agreement or practice of providing by a cable operator under
the control of AT&T Comcast any benefits to a community or subscribers, such benefits shall
automatically and without delay be made available to the City and subscribers within the City
with notice of same provided to the City Manager.
(c) Section 13(A) of the franchise states "Thus, the Franchisee hereby agrees
to provide the City and its subscribers, during the term of this agreement, with at minimum,
comparable technology, products, services and benefits which are provided by the Franchisee to
any other community served from the same headend as the city, and within six (6) months any
technology, products, services and benefits which are provided by the Franchisee to the City and
the subscribers in Fort Lauderdale." There is no limitation that such technology, products,
services and benefits be provided pursuant to a franchise agreement. Thus, Franchisee hereby
agrees to provide to the City of A ventura, pursuant to Exhibit B attached hereto and incorporated
herein, technology, products, services and benefits as are provided to the City of Fort Lauderdale
including but not limited to Biannual Technology Reviews, High Speed Access to all subscribers
no later than the earlier of December 31, 2004 or six months after such service is available in
3
Fort Lauderdale, an offer of services, facilities or financial grant equivalent to the I-Net to be
provided to Fort Lauderdale and incremental advertising support to allow the City to provide
notice to all subscribers of different government channel numbers on the AT&T controlled
systems serving the City.
6, Franchisee shall cooperate in any franchise compliance inquiry including, but not
limited to an audit of customer service performance and call center records and financial and
technical audits. AT&T Comcast agrees that the records of the Franchisee, which are required to
be maintained and are subject to inspection by the City pursuant to the Ordinance and Franchise,
shall be subject to inspection regardless of whether such records are maintained by Franchisee or
AT&T Comcast.
7. Franchisee agrees that the City does not waive any right to require compliance
with the Franchise by Franchisee whether or not any noncompliance is the subject of this
Acceptance or Exhibit B and Franchisee hereby assumes responsibility for any and all non-
compliance under the current Franchise and the Ordinance or amendments or agreements related
thereto even if such noncompliance is alleged to have occurred prior to the closing of the Change
of Control.
8. Franchisee shall make payments for such costs and fees of the City related to the
Change of Control as are required pursuant to the terms of the Franchise and the Ordinance and
other amendments or agreements related thereto.
9. This Exhibit A may be signed in counterparts.
4
FURTHER AFFIANT SA YETH NAUGHT.
COM CAST CABLEVISION OF
HALLANDALE, INC.
By:
Name:
Title:
AT&T COMCAST CORPORATION
By:
Name:
Title:
STATE OF FLORIDA )
) ss:
COUNTY OF )
BEFORE ME, the undersigned authority, personally appeared ,
who is known to me personally (or provided proof of identification) and upon being first duly sworn
acknowledged that he/she executed the foregoing document freely and voluntarily and for the purpose
therein expressed.
WITNESS my hand and official seal in the County and State last aforesaid this _ day of
,2002.
NOTARY PUBLIC
My Commission expires:
5
CITY OF AVENTURA
FINANCE SUPPORT SERVICES DEPARTMENT
MEMORANDUM
FROM:
Eric M. Soroka, City
~~lgOre, Finan
ort Services Director
TO: City Commission
BY:
DATE:
July 10, 2002
SUBJECT: Resolution Authorizing Financing for Charter School Acquisition &
Construction & Completion of Community Center Construction
July 18th, 2002 City Commission Agenda Item No. ~
RECOMMENDATION
It is recommended that the City Commission approve the Resolution authorizing the
borrowing of up to $13,000,000 to finance land acquisition and building construction of
the Charter School and the completion of the Community Center.
BACKGROUND
At the June 10, 2002 workshop meeting, the City Commission was advised that the City
would proceed with a financing program through the Florida Intergovernmental Finance
Commission. At that time, the Commission was also advised that specific authorization
and approval documents would be included on future meetings of the City Commission.
This Resolution is the second of those documents. This Resolution will be heard after
the Ordinance which was approved on first reading at the July 2hd, meeting.
This Resolution authorizes the execution of a "Loan Agreement", which will contain the
specific provisions of the financing program. The various parties to the borrowing
(Florida Intergovernmental Finance Commission, City Bond Counsel, Bond Underwriter,
etc) are still finalizing the Loan Agreement. The final document will be distributed on
Monday or Tuesday of next week.
The loan agreement will authorize the City Manager and Finance Support Services
Director to execute required documents and negotiate final rates and issuance costs for
the issue. The market has not changed significantly since the June 10lh workshop
meeting when we last discussed rates with the City Commission. The long-term fixed
rates for the 30 year portion will be in the 5.1 % average coupon rate and 5.3% including
all costs.
Page (2)
Resolution Authorizing Financing for Charter School
Acquisition & Construction & Completion of Community Center
The fifteen year component will be approximately 4.3% coupon rate and 4.7% all
inclusive. The variable rate (swap) provision which was discussed at the June 10th
meeting to help lower net cost will also be authorized in the loan agreement
As stated on June 10th, this program will allow the City to receive the benefit of short-
term variable rates while allowing us to know that the City can return to the guaranteed
long-term rates at any point in the future.
HMKlmn
RESOLUTION NO. 2002-_
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
A VENTURA, FLORIDA, AUTHORIZING THE BORROWING OF
NOT EXCEEDING $13,000,000 AGGREGATE PRINCIPAL
AMOUNT FROM THE FLORIDA INTERGOVERNMENTAL
FINANCE COMMISSION LOAN PROGRAM TO FINANCE
AND/OR REFINANCE CERTAIN CAPITAL PROJECTS OF THE
CITY; AUTHORIZING THE EXECUTION AND DELIVERY OF
ONE OR MORE LOAN AGREEMENTS IN CONNECTION
THEREWITH; AUTHORIZING THE ISSUANCE OF ONE OR
MORE NOTES NOT TO EXCEED $13,000,000 AGGREGATE
PRINCIPAL AMOUNT TO EVIDENCE THE OBLIGATION OF
THE CITY TO REPAY THE LOANS; PROVIDING FOR THE
TERM AND REPAYMENT PROVISIONS THEREOF;
AUTHORIZING CERTAIN OTHER MATTERS IN CONNECTION
THEREWITH AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Aventura, Florida (the "Borrower") is duly authorized
pursuant to the Constitution and Chapter 166, Part II, Florida Statutes, as amended, and
other applicable provisions of law (collectively, the "Act") to acquire and construct
capital projects for the benefit of the citizens and residents of the Borrower and to borrow
money to facilitate financing and/or refinancing ofthe costs of such projects; and
WHEREAS, the Florida Intergovernmental Finance Commission ("FIFC"), has
heretofore established a loan pool program (the "Program") for the purpose of financing
certain capital projects of participating local governmental entities situated in the State of
Florida through the issuance of its Florida Intergovernmental Finance Commission
Capital Revenue Bonds; and
WHEREAS, the Borrower has identified certain hereinafter defined capital
projects (such capital projects hereinafter collectively referred to as the "Projects") which
the Borrower wishes to finance and/or refinance from funds borrowed from the Program;
and
WHEREAS, the Borrower wishes to identify the specific capital improvements
constituting the Projects and provide for the terms and security for the repayment of such
funds to the Program; and
WHEREAS, to evidence its obligation to repay the loan of funds from the
Program (the "Loans"), the Borrower will execute and deliver one or more Loan
Agreements (collectively, the "Agreements") and one or more notes (collectively, the
"Participant Notes"); and
WHEREAS, to secure its obligation to repay the Participant Notes and the Loans,
the Borrower wishes to covenant to budget and appropriate as security for the Participant
Resolution No. 2002.
Page 2
Notes and the Loans, the Non-Ad Valorem Revenues, as defined in the Agreements (the
"Non-Ad Valorem Revenues"), in accordance with the provisions ofthe Agreements; and
WHEREAS, the Borrower wishes to approve the form of Agreement and
Participant Note and to authorize the officers and employees of the Borrower to take all
action necessary to obtain the proceeds of the Loans and complete the financing of the
Projects in the manner contemplated by the respective Agreement; and
WHEREAS, FIFC will issue and sell its Florida Intergovernmental Finance
Commission Capital Revenue Bonds in one or more series (the "Bonds") pursuant to a
Trust Indenture (the "Indenture") between FIFC and the trustee selected by FIFC and
named therein (the "Trustee"), a portion of the proceeds of which Bonds will finance or
refinance, as the case may be, the Projects; and
WHEREAS, in connection with the sale of the Bonds, FIFC will enter into a
Bond Purchase Agreement (the "Bond Purchase Agreement") with J.P. Morgan &
Company (the "Underwriter"), pursuant to which the terms of the Bonds will be
determined; and
WHEREAS, also in connection with the sale of the Bonds, FIFC will cause a
Preliminary Official Statement and an Official Statement to be prepared, which among
other things, will contain certain financial and other information provided by the
Borrower;
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City
of A ventura, Florida, as follows:
SECTION 1. DEFINITIONS. Terms defined in the preambles hereof shall
have the meanings set forth therein. All capitalized terms used herein which are defined
in the form of Agreement shall have the meanings assigned thereto in the form of
Agreement, unless the context hereof affirmatively requires otherwise.
SECTION 2. FINDINGS. It is hereby found, determined and declared that:
(A) The Projects identified in Exhibit A to the Agreement constitute
capital projects within the meaning of the Act, and the acquisition and construction
and/or refinancing of such Projects is necessary and desirable, is in the public interest and
will serve a proper public purpose.
(B) It is necessary and desirable and in the public interest that the
Projects be constructed or refinanced, as the case may be, at the earliest possible time;
however, the Borrower does not have the resources necessary to pay for such Projects
from currently available funds.
(C) The financing and/or refinancing of the costs of the Projects from
funds borrowed from the Program is in the best interest of the public and will enable the
Borrower to complete the Projects in a timely manner to meet the current public need or
Resolution No. 2002-_
Page 3
to refinance the Projects in order to benefit from advantageous financing terms, as the
case may be.
(D) The estimated receipts of Non-Ad Valorem Revenues are sufficient
to pay the principal and interest and all other amounts payable with respect to the Loans
and the Participant Notes.
(E) The Non-Ad Valorem Revenues are not encumbered or
hypothecated by any resolution, agreement, indenture, ordinance or other instrument to
which the Borrower is a party or by which it is bound, except as otherwise set forth in the
Agreements.
SECTION 3. PROJECT FINANCING AUTHORIZED. The cost of
financing and/or refinancing of the Projects, as described herein, in the manner provided
in the Agreements is hereby authorized and approved, in an amount not to exceed
$13,000,000 aggregate principal amount. There is also authorized and approved the
reimbursement of any costs incurred by the Borrower in connection with the Project
within 60 days preceding the adoption of Resolution No. 2002-16.
SECTION 4. AUTHORIZATION OF EXECUTION AND DELIVERY OF
LOAN AGREEMENTS. The Agreements, each in substantially the form attached
hereto as Exhibit "A", including the Participant Note attached thereto, with such changes,
alterations and corrections as may be approved by the City Manager or Finance Director
of the Borrower, such approval to be presumed by his execution thereof, is hereby
approved by the Borrower, and the Borrower hereby authorizes and directs said City
Manager or Finance Director to execute, and the City Clerk or Deputy City Clerk of the
Borrower to attest under the seal of the Borrower, the Agreements and the Participant
Notes and to deliver to the Administrator, the Agreements and the Participant Notes, all
of the provisions of which, when executed and delivered by the Borrower as authorized
herein and by the Administrator, shall be deemed to be a part of this instrument as fully
and to the same extent as if incorporated verbatim herein.
SECTION S. ISSUANCE OF PARTICIPANT NOTES; SECURITY. The
Loans shall be evidenced by one or more Participant Note, issued in an aggregate
principal amount not to exceed $13,000,000. The City Manager or Finance Director of
the Borrower and the City Clerk or Deputy City Clerk of the City are hereby authorized
to issue and deliver the Participant Notes against receipt of the proceeds of the Loans as
provided in the Agreements. Each Participant Note shall have such terms and provisions,
shall bear interest at such rates (which may be converted to a variable rate in accordance
with the Agreement), adjusted in such manner and payable at such times, and shall
mature in such amounts on such dates, all as are set forth in the related Agreement;
provided that the aggregate principal amount shall not exceed $13,000,000, the term of
each Participant Note shall be no longer than 30 years and the initial interest rate payable
by the Borrower under each Participant Note shall not exceed 6.25% per annum,
exclusive of annual administrative costs associated with the Bonds and the Loans. The
City manager shall receive a disclosure letter and truth-in-bonding statement prior to
issuance of the Participant Notes. Upon issuance, each Participant Note shall be secured
Resolution No. 2002.
Page 4
by a covenant to budget and appropriate Non-Ad Valorem Revenues, in accordance with
the provisions ofthe Agreements. The Borrower hereby agrees to budget and appropriate
Non-Ad Valorem Revenues, in an amount sufficient to repay the Participant Notes, all in
the manner set forth in the Agreements and the Participant Notes.
SECTION 6. NO PERSONAL LIABILITY. No covenant, stipulation,
obligation or agreement herein contained or contained in the Agreements shall be deemed
to be a covenant, stipulation, obligation or agreement of any member, agent or employee
of the Borrower or its governing body in his individual capacity, and neither the members
of the City Commission of the Borrower nor any official executing an Agreement or
Participant Note shall be liable personally thereon or be subject to any personal liability
or accountability by reason of the issuance thereof.
SECTION 7. PREPARATION AND APPROVAL OF PRELIMINARY
OFFICIAL STATEMENT. The officers, attorneys, engineers or other agents or
employees of the Borrower are hereby authorized and directed to provide financial and
other information about the Borrower and the Projects necessary or desirable in the
preparation of a Preliminary Official Statement to be used by the Underwriter for the
purpose of offering the Bonds for sale. The Finance Director is hereby authorized to
"deem final" the Preliminary Official Statement within the meaning of SEC Rule
l5c2-l2(b)(1) and the applicable rules developed by the Municipal Securities
Rulemaking Board.
SECTION 8. PRICING AND SALE OF THE BONDS. The Borrower hereby
authorizes the City Manager and Finance Director of the Borrower to participate in the
pricing of the Bonds on behalf of the Borrower. The Bonds will be sold to the
Underwriter (subject to such terms and conditions) in the amount, at the price and upon
the final terms set forth in the Bond Purchase Agreement as may be approved by the City
Manager or Finance Director; provided, that (a) the term of the Bonds shall be no longer
than 30 years; (b) the interest rate on the Bonds shall not exceed 6.00% per annum; and
(c) the compensation of the Underwriter shall not exceed $6.00 per Bond issued
(inclusive of reimbursement of Underwriter's expenses).
SECTION 9. NO THIRD PARTY BENEFICIARIES. Except as herein or in
the Agreements otherwise expressly provided, nothing in this instrument or in the
Agreements, expressed or implied, is intended or shall be construed to confer upon any
person, firm or corporation other than the Borrower, the Administrator, the Florida
Intergovernmental Finance Commission, and the Trustee any right, remedy or claim,
legal or equitable, under and by reason of this instrument or any provision thereof or of
the Agreements, this instrument and the Agreements intended to be and being for the sole
exclusive benefit of the Borrower, the Administrator, the Florida Intergovernmental
Finance Commission, and the Trustee.
SECTION 10. PREREQUISITES PERFORMED. All acts, conditions
and things relating to the passage of this instrument, to the execution of the Agreements
and the Participant Notes required by the Constitution or laws of the State of Florida to
happen, exist, and be performed precedent to and in the passage hereof, and precedent to
Resolution No. 2002-
Page 5
the execution and delivery of the Agreements and the Participant Notes, have happened,
exist and have been performed as so required.
SECTION 11. GENERAL AUTHORITY. The members of the City
Commission of the Borrower and the Borrower's officers, attorneys, engineers or other
agents or employees are hereby authorized to do all acts and things required of them by
this instrument, the Agreements or the Participant Notes, or desirable or consistent with
the requirements hereof or the Agreements or Participant Notes, for the full, punctual and
complete performance of all the terms, covenants and agreements contained in the
Agreements, the Participant Notes, and this instrument.
SECTION 12. THIS INSTRUMENT CONSTITUTES A CONTRACT.
The Borrower covenants and agrees that this instrument shall constitute a contract
between the Borrower and the owners from time to time of the Participant Notes and that
all covenants and agreements set forth herein and in the Agreements and the Participant
Notes to be performed by the Borrower shall be for the equal and ratable benefit and
security of all owners of the Participant Notes.
SECTION 13. SEVERABILITY OF INVALID PROVISIONS. If any
one or more of the covenants, agreements or provisions herein contained shall be held
contrary to any express provisions oflaw or contrary to the policy of express law, though
not expressly prohibited, or against public policy, or shall for any reason whatsoever be
held invalid, then such covenants, agreements or provisions shall be null and void and
shall be deemed separable from the remaining covenants, agreements or provisions and
shall in no way affect the validity of any of the other provisions hereof or of the
Agreements or Participant Note.
SECTION 14. NEGOTIATED SALE NECESSARY. It is hereby
found, ascertained, determined and declared by the Borrower that a negotiated borrowing
under the Program is in the best interest of the Borrower and is found to be necessary on
the basis of a finding that a competitive sale of the Participant Notes would in all
probability not produce better terms than a negotiated sale particularly in view of the
timing of such an offering and the instability from time to time of the municipal market.
SECTION 15. AUTHORIZATION OF ALL OTHER NECESSARY
ACTION. The Mayor, City Clerk and Deputy City Clerk of the City of the Borrower,
the City Manager, the Finance Director of the Borrower, and counsel to the Borrower are
designated agents of the Borrower in connection with the issuance and delivery of the
Agreements and the Participant Notes and are authorized and empowered, collectively or
individually, to take all action and steps to execute and deliver any and all instruments,
documents or contracts on behalf of the Borrower which are necessary or desirable in
connection with the execution and delivery of the Agreements and the Participant Notes
and which are not inconsistent with the terms and provisions of this resolution and hereby
authorize, ratify and confirm other actions relating to the Agreements and Participant
Notes heretofore taken on behalf of the Borrower.
Resolution No. 2002-
Page 6
SECTION 16. REPEALING CLAUSE. All resolutions or parts thereof
of the Borrower in conflict with the provisions herein contained are, to the extent of such
conflict, hereby superseded and repealed.
Section 17. EFFECTIVE DATE.
immediately upon its adoption.
This resolution shall take effect
The foregoing resolution was offered by Commissioner
who moved its adoption. The motion was seconded by Commissioner
and upon being put to a vote, the vote was as follows:
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Manny Grossman
Commissioner Harry Holzberg
Commissioner Patricia Rogers-Libert
Vice Mayor Arthur Berger
Mayor Jeffrey M. Perlow
PASSED AND ADOPTED this 18th day of July, 2002.
JEFFREY M. PERLOW, MAYOR
ATTEST:
TERESA M. SOROKA, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
EXHIBIT A
LOAN AGREEMENT
LOAN AGREEMENT
by and between
FLORIDA INTERGOVERNMENTAL FINANCE COMMISSION
and
THE CITY OF A VENTURA, FLORIDA
dated as of August 1, 2002
relating to
FLORIDA INTERGOVERNMENTAL FINANCE COMMISSION
CAPITAL REVENUE BONDS
2002 SERIES A
\\MlA.SRVO 1\1397307.02\7/11/02\46245.0 10300
TABLE OF CONTENTS
ARTICLE I DEFINITIONS ..................................................................................................2
Section 1.0 1 Definitions.. ............. ........ ....... ....................,..... ...... ........................................... 2
ARTICLE II
BORROWER
Section 2.01
Section 2.02
Section 2.03
Section 2.04
REPRESENTATIONS AND COVENANTS OF
.................................................................................................................8
Representations of the Participant.............. ...... .......... ..... ..................................8
Covenants of Participant .........................................................'.......................11
Tax Covenants and Representations of the Participant...................................15
Reimbursement Representations .....................................................................18
ARTICLE III THE LOAN ......................................................................................................19
Section 3.01 The Loan; Participant Notes............................................................................ 19
Section 3.02 Funding the Loan ............................................................................................19
Section 3.03 No Warranty Of Sufficiency. ..........................................................................20
Section 3.04 Closing Submissions .......................................................................................20
Section 3.05 Evidence Of Loan. ..........................................................................................20
Section 3.06 Adjustments to Initial Amount........................................................................20
ARTICLE IV LOAN TERM, LOAN CLOSING REQUIREMENTS AND
LOAN AMENDMENT REQUIREMENTS .........................................................................20
Section 4.01 Commencement of Loan Term .......................................................................21
Section 4.02 Termination of Loan Term..............................................................................21
Section 4.03 Loan Closing Documents................................................................................21
ARTICLE V LOAN REPAYMENTS ..................................................................................22
Section 5.01 Repayments. ........................................................,...........................................22
Section 5.02 Additional Payments .......................................................................................22
Section 5.03 Determination of Interest Rate; Interest Limit................................................24
Section 5.04 Obligation To Pay Repayments. .....................................................................24
Section 5.05 Application of Repayments. ............................................................................27
Section 5.06 Agreement To Survive Indenture and Bonds..................................................27
ARTICLE VI PROVISIONS RELATED TO THE INSURER ..........................................28
Section 6.01 NoticeslInformation to be Given to the Insurer. .............................................28
ARTICLE VII
WARRANTIES
Section 7.01
Section 7.02
DISCLAIMER OF WARRANTIES; VENDOR'S
...............................................................................................................28
Disclaimer of Warranties. ......,........................................................................2 8
Warranties......................................................................... ............................. .28
ARTICLE VIII OPTION TO PREPAY LOAN REPAYMENTS;
LOAN PREPAYMENT ..........................................................................................................29
Section 8.0 1 Prepayment.................. .................................................................................... 29
Section 8.02 Prepayment and Swap Agreement. .................................................................29
ARTICLE IX................................................................................................................................30
TITLE TO PROPERTY; ASSIGNMENT OF AGREEMENT AND NOTE ........................30
Section 9.01 Title To Project. ..............................................................................................30
Section 9.02 Assignment By Issuer; Administrator, ............................................................30
Section 9.03 Assignment by Participant. .............................................................................30
ARTICLE X .................................................................................................................................30
EVENTS OF DEFAULT AND REMEDIES.............................................................................30
Section 10.01 Events of Default Defined...............................................................................30
Section 10. 02 Notice of Defau1t........................... ....................... ...... ............... ....... ............... 31
Section 10,03 Remedies on Default.......................................................................................32
Section 10,04 Attorneys' Fees and Other Expenses ..................................,...........................32
Section 10.05 Application of Moneys................................... ........ ........ ......... ........................32
Section 10.06 No Remedy Exclusive; Waiver; Notice. ......................,..................................32
Section 10.07 Retention of the Issuer's Rights. ....................................................................32
ARTICLE XI EXCESS FUNDS .............................................................................................33
Section 11.0 I Excess Funds. ......................................................................,...........................33
ARTICLE XII MISCELLANEOUS............................................................................33
Section 12.0 I Notices. .... ...... '"'''' ........................... ....... ....................................... ............. ....33
Section 12.02 Binding Effect. ................................................................................................34
Section 12.03 Severability. ........... .......................... .......... .......... ........ ......... .... ....... ...............34
Section 12.04 Amendments, Changes And Modifications. ...................................................34
Section 12.05 Execution in CounteI]Jarts...............................................................................34
Section 12.06 Applicable Law ...............................................................................................34
Section 12.07 Benefit of Bondholders; Compliance With Indenture.....................................34
Section 12.08 Consents And Approvals.................................................................................35
Section 12.09 Immunity of Officers, Employees And Members of Issuer
And Participant..... ............... ......... ............... ........ .......... .............. ........... ... .......... ......... ...... .......3 5
Section 12, 10 Captions.... ........... ............... ........ ......................... ............... ...... ................ ......35
Section 12.11 Pecuniary Liability oflssuer. ..........................................................................35
Section 12.12 Payments Due on Holidays .............................................................................35
Section 12.13 Right of Others to Perform Participant's Covenants.......................................35
ARTICLE XIII
Section 13.01
Section 13.02
Section 13.03
Section 13.04
Section 13.05
Section 13.06
Section 13.07
Section 13.08
Section 13.09
Section 13.10
Section 13.11
Section 13.12
CONTINUING DISCLOSURE .........................................................36
Continuing Disclosure Requirements .... ........................... ................... ...........36
Defmitions......................................................................................................36
Annual Reports ... ........ ................ ....................................................................37
Contents of Annual Reports ............................................................................3 7
Reporting of Significant Events ......................................................................38
Termination of Reporting Obligations ............................................................39
Dissemination Agent.................,.....................................................................39
Amendments ...................................................................................................39
Additional Information..............,............ .........................................................40
Default.............................................................................................................40
Duties, Immunities and Liabilities of Dissemination Agent ..........................40
Beneficiaries.................................................................................................... 41
EXHIBIT A
EXHIBIT B
EXHIBIT C
PROJECT DESCRIPTION
FORM OF NOTE
CERTIFICATE OF PARTICIPANT IN CONNECTION WIlli LOAN
FINANCE PROJECT
REQUEST FOR ADVANCE
FORM OF PARTICIPANT'S COUNSEL OPINION
NOTICE OF F AlLURE TO FILE ANNUAL REPORT
EXHIBIT D
EXHIBIT E
EXHIBIT F
LOAN AGREEMENT
THIS LOAN AGREEMENT dated as of August 1,2002 (the "Loan Agreement"), and
entered into by and between the Florida Intergovernmental Finance Commission (the "Issuer"),
an interloca1 entity of the State of Florida created pursuant to the authority of Chapter 163,
Florida Statutes, as amended (the "Act"), and the City of Aventura, Florida (the "Participant"), a
political subdivision of the State of Florida.
WITNESSETH:
WHEREAS, the Issuer was duly created under and organized under Section 163.01(7) of
the Act, pursuant to an Interlocal Agreement dated as of January 23, 2002, between the City of
Coral Springs, Florida and the City of Palm Beach Gardens, Florida (the "Enabling
Agreement"); and
WHEREAS, the Issuer is authorized by the Act, among other things, to assist in
financing and refinancing the construction of public works and infrastructure and the acquisition
of necessary equipment (the "Projects") by participating governmental entities of the State of
Florida (the "State"); and
WHEREAS, pursuant to the Act, and in order to encourage financing such Projects for
the purpose of the construction, installation, rehabilitation and equipping of such facilities and
the acquisition of such necessary equipment by governmental entities ("Participants"), which the
Issuer believes to be in the public interest and for the benefit of the wealth, health and safety of
the citizens of the State, the Issuer is authorized to issue its revenue bonds and loan the proceeds
of the revenue bonds to such Participants (the "Program"); and
WHEREAS, in order to establish the Program to assist Participants in financing Projects,
the Issuer has agreed to authorize, issue, sell and deliver its Capital Revenue Bonds, 2002 Series
A (the "Bonds") pursuant to a Trust Indenture, dated as of August I, 2002 (the "Indenture"),
between the Issuer and SunTrust Bank, as Trustee (the "Trustee"); and
WHEREAS, in order to effectuate the Program, the Issuer has heretofore authorized and
approved the issuance of the Bonds; and
WHEREAS, the Participant is authorized under the Act and other applicable law to enter
into this Loan Agreement as a Participant for the purposes set forth herein; and
WHEREAS, the Issuer and the Participant have determined that the provision of funds
by the Issuer to the Participant pursuant to the terms of this Loan Agreement and the Indenture,
will assist the Participant in financing or refinancing the construction of public works and
infrastructure and/or the acquisition of necessary equipment or in reimbursement of the
Participant for funds already spent in connection therewith, which will benefit the wealth, health
and safety of the citizens of the Participant and of the State; and
WHEREAS, the Participant, as beneficiary of the financing afforded by the Program,
will also bear the costs of the Program, in proportion to the Initial Amount (as defined herein) of
its borrowing; provided, that the obligations of the Participant shall not be adversely affected by
the default of any other Participant borrowing funds under the Program;
NOW, THEREFORE, for and in consideration of the premises hereinafter contained
and as contained in the Indenture, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defmitions. Unless the context or use indicates another meaning or
intent, the following words and terms as used in this Loan Agreement shall have the following
meanings, and any other words and terms which are defined in the Indenture, as hereinafter
defined, shall have the meanings as therein defined:
"Accountant" or "Accountants" means an independent certified public accountant or a
firm of independent certified public accountants selected by the Participant and as to whom the
Trustee and the Administrator make no reasonable objection.
"Acquisition Fund" means the account by that name established pursuant to Section
4.02 of the Indenture.
"Act" means Chapter 163, Florida Statutes, as amended and other constitutional and
statutory authority supplemental thereto.
"Administrator" or "Program Administrator" means Dunlap & Associates Group,
Inc., and any successor thereto named by the Issuer as Administrator.
"Authorized Officer" means the person performing the functions of the chief executive
officer or chief financial officer of the Participant.
"Bond" or "Bonds" means anyone or more or all, as the case may be, of the Florida
Intergovernmental Finance Commission Capital Revenue Bonds, 2002 Series A.
"Bond Counsel" means Greenberg Traurig, P.A., or any law firm subsequently
designated by the Issuer having a national reputation in the field of municipal law whose
opinions are generally accepted by purchasers of municipal bonds and which is acceptable to the
Trustee.
"Bondholder" means the registered owner of any Bond.
"Bond Program" or "Program" means the bond program of the Issuer authorized by
resolution of the Issuer, as may be amended from time to time, pursuant to which costs of the
Projects of Participants will be financed, refmanced or reimbursed from the proceeds of the
Bonds.
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"Bond Purchase Agreement" means that certain agreement between the Issuer and the
Underwriter providing for the purchase by the Underwriter of the Bonds upon payment of the
purchase price and satisfaction of the conditions set forth therein for the. initial issuance thereof.
"Business Day" means any day other than (a) a Saturday or Sunday, (b) a day on which
commercial banks in New York, New York, or the city or cities in which the designated
corporate trust operations office of the Trustee are authorized by law or executive order to close
or (c) a day on which the New York Stock Exchange is closed.
"Closing Date" means the date on which the Participant executes and delivers this Loan
Agreement and proceeds of the Bonds are transferred to the Participant's Reservation Account.
"Code" means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
"Confirmation" means a confirmation under a Swap Agreement for a notional amount
equal to the aggregate principal amount of Bonds subject to such Swap Agreement.
"Cost" means the cost of the acquisition of al1 equipment, lands, structures, rights-of-
way, franchises, easements and other property rights and interests acquired by the Issuer or a
Participant for a Project; the cost of demolishing, removing or relocating any buildings or
structures on lands so acquired, including the cost of acquiring any lands to which such buildings
or structures may be moved or relocated; the cost of all labor, materials, machinery and
equipment, financing charges, interest prior to and during construction and for such a limited
period after completion of such construction as may be approved by the Administrator with a
Favorable Opinion of Bond Counsel (not to exceed one year after completion of the Project), the
cost of engineering, financial and legal services, plans, specifications, studies, surveys, estimates
of costs and revenues, other expenses necessary or incident to determining the feasibility or
practicability of constructing a Project; administrative expenses; and such other expenses as may
be necessary or incident to the construction of a Project, the financing of such construction and
the placing of such Proj ect in operation; provided. however. that such term shal1 not include such
items as fuel, supplies or other items which are customarily deemed to result in a current
operating charge.
"Costs of Issuance" means the costs of preparing, issuing, selling, delivering and closing
the Bonds, including all printing expenses in connection with the Indenture, the Loan
Agreements, the preliminary and final Official Statement, any Underwriter's fees not paid in the
form of Underwriter's discount, the fees and expenses of Bond Counsel, counsel to the Trustee,
counsel to the Underwriter, counsel to the Issuer, and other special counsel, any fees and
expenses of the financial advisor to the Issuer, any accounting expenses incurred in connection
with determining that the Bonds are not arbitrage bonds, the Trustee's initial fee for the Bonds,
the initial fee of the Issuer, if any, and the Administrator, the fee of accountants or consultants
for verification services to the Issuer, the costs of program origination and the costs of any
market demand study or survey, the fees and expenses of the Participant's counsel, fmancial
advisor and any special counsel to the Participant.
l\MlA-SRVO 1 11397307v0217/11l02146245.0 10300
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"Costs of Issuance Fund" means the Costs of Issuance Fund established pursuant to
Section 4.02 of the Indenture.
"Counsel" means an attorney duly admitted to practice law before the highest court of
any state and, without limitation, may include legal counsel for either the Issuer or the
Participant.
"Default Rate" means a rate equal to the Prime Rate plus two percent (2%), which rate
shall change as and when such Prime Rate changes; however, such rate shall not exceed the
highest rate permitted by State law, nor be less than the Participant Rate.
"Disbursement" means any disbursement of funds to the Participant by the Trustee from
the Participant's Reservation Account established under the Indenture as provided in Article III
of this Loan Agreement.
"Event of Default" shall have the meaning ascribed to such term in Section 10.01 of this
Loan Agreement.
"Extraordinary Expenses" means the fees, costs, and expenses more fully defined and
described in Section 5.02(c) of this Loan Agreement.
"Funding Amount" means the Initial Amount, less the Costs of Issuance and less the
initial deposit to the Participant's 'Reserve Account, which is the amount made available by the
Issuer to or on behalf of the Participant by deposit to the Participant's Reservation Account.
"Indenture" means the Trust Indenture dated as of August 1, 2002, by and between the
Issuer and the Trustee.
"Initial Amount" means the aggregate principal amount stated as the Initial Amount in
Section 3.01 of this Loan Agreement, which shall be equal to an authorized denomination of
Bonds, the net proceeds of which, after payment of the Costs of Issuance and less the initial
deposit to the Participant's Reserve Account are made available by the Issuer to or on behalf of a
Participant by deposit to a Reservation Account for such Participant and which is subject to
adjustment as provided in Section 3.06 of this Loan Agreement.
"Indenture" means the Trust Indenture dated as of August 1,2002, by and between the
Issuer and the Trustee.
"Insurance Policy" shall mean the financial guaranty insurance policy issued by the
Insurer insuring the payment when due of the principal of and interest on the Bonds.
"Insurer" shall mean
its successors and assigns.
, a
stock insurance company,
"Issuer" means the Florida Intergovernmental Finance Commission.
1\MIA-SRVO 111 397307v02\ 7 /11/02146245.010300
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"Loan" means the aggregate loan to the Participant by the Issuer from the Proceeds of
the Bonds in the Initial Amount, consisting of Loan A, Loan B and Loan C.
"Loan Agreement" or "Agreement" means this Loan Agreement, including the
Exhibits attached hereto and any amendments hereto.
"Loan Payment Period" shall mean (i) during any period when the Issuer is not
obligated to make variable rate payments under the Swap Agreement, the semiannual periods
ending on each Bond Payment Date and (ii) during the period when the Issuer is obligated to
make variable rate payments under a Swap Agreement, the period commencing on each Loan
Repayment Date and ending on the day immediately preceding the next Loan Repayment Date,
"Loan Repayment Date" means (a) during any period when the Issuer is not obligated
to make variable rate payments under a Swap Agreement, fifteen (15) days prior to the 1st day of
each month and (b) during any period when the Issuer is obligated to make variable rate
payments under a Swap Agreement, fifteen (IS) days (or if such date is not a Business Day, then
the next preceding Business Day) prior to each Bond Payment Date.
"Loan Term" means the term provided for in Article IV of this Loan Agreement.
"Non-Ad Valorem Revenues" shall mean all revenues of the Participant derived from
any source other than ad valorem taxation on real or personal property which are legally
available to make the payments required under this Loan Agreement.
"Participant" means the Participant under this Loan Agreement.
"Participant Notes" means the promissory notes consisting of a Participant Note for
each of Loan A, Loan B and Loan C, each in substantially the form attached to this Loan
Agreement as Exhibit B, made by the Participant and payable to the Issuer and providing for
Repayments, and any promissory note or notes issued in substitution or exchange therefor.
"Participant Notional Amount" means the portion of the notional amount set forth in
the Confirmation which is allocable to a Participant based on such Participant's Pro Rata Share.
"Participant Rate" means, at any point in time, the applicable rate or rates of interest on
the Participant's Participant Notes. The Participant Rate for each Participant Note for each Loan
Payment Period shall be (i) during any period when the Issuer is not obligated to make variable
rate payments under a Swap Agreement or a Swap Counterparty has failed to carry out its
obligations, the fixed rate per annum equal to the interest rate on the Bonds, plus not to exceed 8
basis points (0.08%) per annum, such amount to be determined by the Administrator at the time
the Issuer is not obligated to make variable rate payments under a Swap Agreement, and (ii)
during the period when the Issuer is obligated to make variable rate payments under a Swap
Agreement, a variable rate per annum determined and reset weekly equal to the Weekly Rate,
calculated as provided in Section 5.04(d) of the Indenture, plus 8 basis points (0.08%) per
annum, plus, in the event that the Issuer enters into a Swap Agreement with respect to the Bonds,
any additional amount required by the Swap Counterparty; however, upon the conditions
specified in this Loan Agreement following the occurrence of an Event of Default under this
\\MlA-SR VO I \1397307v02\ 7/11102\46245.010300
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Loan Agreement, the interest rate thereon shall be increased to a rate per annum equal to the
Default Rate. Said Default Rate shall be based upon a 365/366 day year for the actual days
elapsed and shall change when and as the Prime Rate shall change. The Participant Rate shall
never exceed the Maximum Rate.
"Person" means (a) any individual, (b) any corporation, partnership, limited liability
company, joint venture, association, joint-stock company, business trust or unincorporated
organization or grouping of any such entities, in each case formed or organized under the laws of
the United States of America, any state thereof or the District of Columbia or (c) the United
States of America or any state thereof, or any other governmental entity of the United States of
America or of any state thereof or any agency, authority or other instrumentality of any of the
foregoing.
"Prepayment" means the payment in whole or in part of the principal amount of the
Loan and one or more of the Participant Notes as provided in Section 8,01 hereof.
"Prime Rate" shall mean the consensus New York Prime Rate, which term refers to the
fluctuating rate of interest charged to the largest and most credit-worthy industrial customers on
unsecured notes of ninety (90) days maturity as set by a consensus of New York banks, as such
rate is published in The Wall Street Journal, as the same is adjusted from time to time, effective
as of the date of publication of any change therein.
"Project" means any qualified capital project or projects of the Participant, the fmancing
of which constitutes a "project", as such term is defined in Section 166.01(8), Florida Statutes, as
amended (including, without limitation, the construction of public works and infrastructure and
acquisition of necessary equipment), all or a portion of the Costs of which are fmanced or
refinanced by the Issuer pursuant to the Indenture and a Loan Agreement.
"Pro Rata Share" means a fraction the numerator of which is the Participant's Initial
Amount as of the date of calculation and the denominator of which is the sum of the Initial
Amounts as of the date of calculation of all Loans from the Program to Participants.
"Reimbursed Expenditures" means amounts, if any, used from proceeds and
investment earnings thereon to reimburse a Participant for an expenditure paid by the Participant
prior to the Closing Date.
"Reimbursement Allocation" means the act of allocating Reimbursed Expenditures as
described herein.
"Related Documents" means this Loan Agreement, the Participant Notes and the Tax
Agreement.
"Repayments" means the scheduled payments of principal and interest on the Loan and
any other amounts payable by the Participant pursuant to the provisions of this Loan Agreement
and the Participant Notes.
IIMIA-SR YO 1 \1 397307.0217/11/02146245.0 10300
6
"Request for Advance" means a written request by an Authorized Officer of the
Participant for an Advance under Section 3.02 of this Loan Agreement in the form of Exhibit D
hereto stating the amount of the Advance requested, identifying the Proj ect or otherwise
describing the intended use of the moneys to be advanced.
"Reservation Account" means an account by that name for the Participant held by the
Trustee and established pursuant to Section 4.02 of the Indenture.
"Resolution" means that certain Resolution, duly adopted by the governing body of the
Participant on July 18, 2002, authorizing this Loan Agreement and the Participant Notes.
"State" means the State of Florida.
"Swap Agreement" means an agreement acceptable to the Participant and Moody's,
between the Issuer and the Swap Counterparty, together with the Confirmation thereunder,
pursuant to which the Issuer is entitled to receive a fixed interest rate payment on a notional
amount equal to all or a portion of the principal amount of the Bonds on each Payment Date at
rates equal to the rates on such Bonds, and is obligated to pay to the Swap Counterparty the
Swap Payment.
"Swap Counterparty" means the provider of the Swap Agreement.
"Tax Agreement" means the Arbitrage Certificate of the Issuer dated as of the date of
delivery of the Bonds, and the Arbitrage Rebate Agreement by and among the Participant, the
Issuer and the Trustee, dated as of August I, 2002, as the same may be amended from time to
time in accordance with their respective terms.
"Trustee" means SunTrust Bank, a banking corporation organized under the laws of the
State of Georgia, as trustee under the Indenture, or any successor thereto under the Indenture.
"Weekly Rate" means the TBMA Index established weekly for each Weekly Rate
Period in accordance with Section 5.04(d) of the Indenture.
"Weekly Rate Period" means for any period in which the Participant Rate is the variable
rate of interest based on the Weekly Rate as described in clause (ii) of the first sentence of the
definition of "Participant Rate", the period commencing on Thursday (or if the date of
determination is not a Wednesday or such Thursday is not a Business Day, on the next following
Business Day) and ending on the next succeeding date of determination, or if earlier, on the last
day of the Weekly Rate Period.
\\MIA-SR VO 1 \1397307v02\ 7/11/02\46245.010300
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ARTICLE II
REPRESENTATIONS AND COVENANTS OF BORROWER
Section 2.01 Representations of the Participant. The Participant represents for the
benefit of the Issuer, the Trustee and the Bondholders as follows:
(a) Organization and Authority,
(1) The Participant is a municipality, duly created and validly existing in good
standing pursuant to the constitution and statutes of the State.
(2) The Participant has full legal right and authority and has taken all action
and obtained all necessary approvals required as of the date hereof to enter into this Loan
Agreement and the Related Documents, to adopt the Resolution and issue the Participant Notes,
to undertake and complete the Project, to finance the Project in the manner contemplated herein
and to carry out and consummate all transactions contemplated by this Loan Agreement.
(3) The Resolution approving the Related Documents and authorizing their
execution and delivery on behalf of the Participant, authorizing the issuance, sale and delivery of
the Participant Notes, and authorizing the Participant to undertake and complete the Project has
been duly and lawfully adopted at a meeting or meetings duly called, noticed, and held at which
quorums were present and acting throughout and such meeting or meetings were duly called
pursuant to necessary public notice and held in accordance with the sunshine law and any other
applicable laws.
(4) The Related Documents have each been duly authorized, executed and
delivered by an Authorized Officer of the Participant; and this Loan Agreement, the Resolution
and the Participant Notes constitute the legal, valid and binding obligations of the Participant
enforceable in accordance with their respective terms subject to future proceedings under
municipal bankruptcy, reorganization, debt arrangements, insolvency, moratorium, or other laws
of general application or principles of equity relating to or affecting the enforcement of creditors'
rights.
(5) The Participant is duly authorized and empowered to issue the Participant
Notes; and the Participant Notes, the payment of principal and interest thereon, and all other
amounts payable hereunder or under the Participant Notes, are valid and enforceable limited
obligations of the Participant, payable solely from the Non-Ad Valorem Revenues in the manner
hereinafter provided. .
(b) Full Disclosure. There is no fact known to the Participant that the Participant has
not specifically disclosed in writing to the Issuer or the Administrator that materially and
adversely affects or (so far as the Participant can now foresee), except for pending or proposed
legislation or regulations that are a matter of general public information affecting Persons
generally, that will materially and adversely affect the properties, activities, prospects or
condition (financial or otherwise) of the Participant or the ability of the Participant to perform its
obligations under this Loan Agreement and the Related Documents.
\\MIA-SRVO I IlJ97307v02\7/11l02\46245.0 I 0300
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The current financial statements of the Participant, including balance sheets and the other
statements referred to in Section 2.02(g) of this Loan Agreement, and any other written statement
furnished by the Participant to the Issuer (or the Administrator acting on the Issuer's behalf) do
not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements contained therein or herein not misleading, There is no fact known to the
Participant which the Participant has not disclosed to the Issuer (or the Administrator acting on
the Issuer's behalf) in writing which materially affects adversely or is likely to materially affect
adversely the financial condition of the Participant, its ability to own and operate its property in
the manner such property is currently operated or its ability to budget and appropriate for, and
make the payments on, the Participant Notes and under this Loan Agreement when and as the
same become due and payable.
(c) Pending Litigation. There is no litigation or legal or governmental action,
inquiry, investigation or proceedings pending, or to the knowledge of the Participant threatened,
against or affecting the Participant, except as specifically described in writing to the Issuer, in
any court or before any govemmental authority or arbitration board or tribunal that, if adversely
determined, would materially and adversely affect the properties, prospects or condition
(financial or otherwise) of the Participant, or the corporate existence or powers or ability of the
Participant to enter into and perform its obligations under the Related Documents.
(d) No Conflict With Laws and Agreements. The execution and delivery of the
Related Documents, the performance by the Participant of its obligations hereunder and
thereunder, the consummation of the transactions provided for in the Related Documents,
compliance by the Participant with the provisions of the Related Documents and the undertaking
and completion of the Participant's Project do not and will not conflict with or result in any
material breach of any of the terms, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon, any property or
assets of the Participant pursuant to any indenture, loan agreement or other agreement or
instrument (other than this Loan Agreement) or corporate restriction to which the Participant is a
party or by which the Participant, its properties or operations may be bound or with the giving of
notice or the passage of time or both would so constitute a breach or default or so result in the
creation or imposition of any lien, charge or encumbrance, which breach, default, lien, charge or
encumbrance could materially and adversely affect the validity or the enforceability of the
Participant Notes or this Loan Agreement or the Participant's ability to perform fully its
obligations under the Participant Notes or this Loan Agreement; nor will such action result in
any violation of the provisions of or any laws, ordinances, govemmental rules or regulations or
court or other governmental orders to which the Participant, its properties or operations are
subject.
(e) No Defaults. No event has occurred and no condition exists that constitutes an
Event of Default or which, upon the execution and delivery of this Loan Agreement and the
Participant Notes and/or the passage of time or giving of notice or both, would constitute an
Event of Default. The Participant is not in violation in any material respect, and has not received
notice of any claimed material violation (except such violations as (i) heretofore have been
specifically disclosed in writing to, and have been in writing specifically consented to by, the
Issuer or the Administrator on its behalf) and (ii) do not, and shall not, have any material adverse
\\MlA.SR YO 1 \1397307v02\ 7/11/02\46245.010300
9
effect on the transactions herein contemplated and the compliance by the Participant with the
terms hereof or the Participant Notes), of any terms of any agreement, or other instrument to
which it is a party or by which it, its properties or operations may be bound.
(f) Governmental Consent. The Participant has obtained, or will obtain prior to any
Advance relating thereto, all approvals required by any governmental body or officer for the
adoption of the Resolution, the issuance of the Participant Notes and the making and
performance by the Participant of its obligations under this Loan Agreement or for the
undertaking or completion of the Project, the financing thereof or the reimbursement of the
Participant therefor, or the use of such Project. The financing of the Project as contemplated by
this Loan Agreement and the Resolution is consistent with the terms of any such governmental
consent, order or any action applicable thereto. No consent, approval or authorization of, or
filing, registration or qualification with, any governmental authority that has not been obtained is
required on the part of the Participant as a condition to the execution and delivery of the
Participant Notes or this Loan Agreement, or the undertaking or completion of the Participant's
Project, the adoption of the Resolution or the consummation of any transaction herein
contemplated. No consent, approval or authorization of, or filing, registration or qualification
with, any governmental authority is required on the part of the Participant as a condition to the
execution and delivery of or the performance of its obligations under this Loan Agreement or to
the issuance of the Participant Note.
(g) Compliance With Law. The Participant is in compliance with all laws,
ordinances, governmental rules and regulations to which it is subject, the failure to comply with
which would materially adversely affect the ability of the Participant to conduct its activities or
the condition (financial or otherwise) of the Participant.
(h) Use of Proceeds. Except to the extent that the Participant shall deliver to the
Issuer, the Trustee and the Administrator a Favorable Opinion of Bond Counsel with respect to
the failure of the Participant to comply with any of the agreements on its part contained in the
following paragraphs, the Participant represents and agrees that it will apply the proceeds of the
Loan solely for the fmancing or refinancing, or to reimburse itself, for the Costs of the Project,
all as provided in the Resolution and the Tax Agreement. The Participant will not use any of the
proceeds of the Loan in any manner that would cause the Bonds to be "arbitrage bonds" within
the meaning of Section 148 of the Code and the regulations promulgated thereunder and will
take such actions as are necessary and within its power to assure that the interest on the Bonds
will not be subject to federal income taxation by virtue of the Bonds being arbitrage bonds. In
this regard, the Participant will follow the written directions of Bond Counsel if, in the opinion of
such Bond Counsel, such directions are needed to maintain the tax-exempt status of the Bonds.
The Participant will apply the Funding Amount solely for the financing or refinancing of
or to reimburse itself for the Cost of the Project as set forth in Exhibit A hereto. With the
consent of the Administrator, the Participant may amend Exhibit A to provide for the financing
or refinancing of different or additional Projects if the Participant, after the date hereof, deems it
not to be in the interest of the Participant to acquire, construct, improve, finance or refinance any
Project or the Cost of the Project proves to be less than the amounts listed on such Exhibit A;
provided, however, the Participant shall deliver to the Issuer, the Trustee and the Administrator a
\\MlA-SRVO 1 \1397307vQ2\ 7/11/02\46245.010300
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Favorable Opinion of Bond Counsel with respect to the financing or refinancing of different or
additional Proj ects.
(i) Proiect. The Project and the financing or refinancing thereof pursuant to the
terms hereof constitutes a "project" as such term is defined in Section 166.01(8), Florida
Statutes, as amended.
(j) Existing Debt. The Participant previously has incurred and has outstanding
certain indebtedness (the "Existing Indebtedness") pursuant to that certain Loan Agreement
dated as of November 15, 2000, between the Participant and the Bank of America, N.A. and that
certain Loan Agreement dated as of April I, 1999, between the Participant and the Florida
Municipal Loan Council (collectively, the "Existing Loan Agreements"). Pursuant to the
Existing Loan Agreements, the Participant has covenanted to budget and appropriate legally
available Non-Ad Valorem Revenues each year in amounts sufficient to pay debt service on the
Existing Indebtedness, all in accordance with the terms and provisions of the Existing Loan
Agreements.
Section 2.02 Covenants of Participant
(a) Maintenance and Use of the Proiect. The Participant will maintain the Project in
good condition and make all necessary renewals, replacements, additions, betterments and
improvements thereto.
(b) Investment AIITeement. The Participant acknowledges and agrees that (i) the
Investment Agreements were entered into at the Participant's direction and for the Participant's
benefit, (ii) the Participant will pay any penalties, costs, expenses, damages, losses or other
amounts in excess of the investment amounts due to an Investment Agreement provider in
accordance with such provider's Investment Agreement and (iii) the Participant will pay and will
protect, indemnify and save the Issuer and the Trustee, each member, officer, commissioner,
employee, representative, agent and counsel of the Issuer and the Trustee, and each other person,
if any, who has the power, directly or indirectly, to direct or cause the direction of the
management and policies of the Issuer and the Trustee, harmless from and against, any and all
liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees), suits,
claims and judgments of whatsoever kind and nature (except with respect to the Trustee and its
indemnified persons, other than as a result of the Trustee's negligence or willful misconduct)
arising under or resulting from the Investment Agreements.
(c) Performance of this Loan AIITeement. The Participant agrees (i) to cooperate with
the Issuer in the performance of the respective obligations of such Participant and the Issuer
under this Loan Agreement; (ii) subject to the provisions of this Loan Agreement, to collect
currently authorized governmental charges and other revenue sufficient to enable the Participant
to pay when due the amounts payable under, and sufficient to fulfill the terms and provisions of,
this Loan Agreement; and (iii) to deliver to the Issuer and any designee any report or certificate
required to comply or to evidence compliance with requirements imposed hereby.
\\MlA-SRVO 1 \1397307v02\7 /11/02\46245.010300
II
(d) Inspections. The Participant shall permit the Issuer, the Trustee and the
Administrator and any party designated by any of such parties to examine, visit and inspect, at
any arld all reasonable times, the Project, and to inspect and make copies of any accounts, books
and records, including (without limitation) its records regarding receipts, disbursements,
contracts, investments and any other matters relating thereto (other than documents the
confidentiality of which is protected by law or professional codes of ethics) and to its financial
standing, and shall supply such reports and information as the Issuer, the Trustee or the
Administrator may reasonably require in connection therewith,
(e) Cost of Proiect. The Participant certifies that the Cost of the Project is a
reasonable and accurate estimation and upon direction of the Issuer will supply the same with a
certificate from an independent Person acceptable to the Issuer stating that such Cost of the
Project is a reasonable and accurate estimation.
(f) Proiect. Moneys which will be made available from this Loan Agreement and
other sources will be sufficient to complete and pay for the Proj ect or the refmancing thereof.
(g) Delivery of Information. The Participant will deliver to the Trustee, the
Administrator, the Insurer, the Rating Agency and the Swap Counterparty, if any, as soon as
available and in any event within 180 days after the end of the Participant's fiscal year (with
respect to the Swap Counterparty, within 180 days after the end of the Participant's fiscal year in
which the Swap Agreement is entered into), an audited statement of the consolidated financial
position of the Participant as of the end of such fiscal year and the related statements ofrevenues
and expenses, fund balances and changes in fund balances for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, all reported on by
licensed, independent certified public accountants, whose report shall state that such financial
statements present fairly the financial position as of the end of such fiscal year and the results of
operations and changes in financial position for such fiscal year.
(h) Information. The Participant shall notify the Trustee, the Administrator, the
Rating Agency and the Swap Counterparty, if any, of any materially adverse event affecting the
Participant's credit rating or its ability to repay the Loan. The Participant's Director of Finance
shall, at the reasonable request of the Administrator and the Swap Counterparty, if any, discuss
the Participant's financial matters with the Administrator and the Swap Counterparty and provide
copies of any documents furnished by the Participant to any credit rating service.
(i) Indemnitv. Without waiver of any right the Participant may have under the laws
of the State relating to sovereign immunity and without extending the Participant's liability
beyond the limits established in Section 768.28, Florida Statutes, the Participant will pay and
will protect, indemnify and save the Issuer and the Trustee, each member, officer, commissioner,
employee, representative, agent and counsel of the Issuer and the Trustee, and each other person,
if any, who has the power, directly or indirectly, to direct or cause the direction of the
management and policies of the Issuer and the Trustee, hannless from and against, any and all
liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees), suits,
claims and judgments of whatsoever kind and nature (including those in any manner directly or
indirectly arising or resulting from, out of or in connection with any injury to, or death of, any
\\MlA-SRVO 1\1397307.02\7/11102\46245.010300
12
person or any damage to property resulting from the use or operation of the Project) in any
manner directly or indirectly (in any case, whether or not by way of the Participant, its
successors and assigns, or directly or indirectly through the agents, contractors, employees,
licenses or otherwise of the Participant or its successor and assigns) arising or resulting from, out
of or in connection with the Project or the breach or violation of any agreement, covenant,
representation or warranty of the Participant set forth in this Loan Agreement or the Participant
Notes or any document delivered pursuant hereto or thereto or in connection herewith or
therewith, except, in the case of the Trustee and its related persons, any liabilities, losses,
damages, costs and expenses due to the negligence of any such person.
An indemnified person shall promptly notify the Participant in writing of any claim or
action brought against it, in respect of which indemnity may be sought against the Participant,
setting forth, to the extent reasonably practicable under the circumstances, the particulars of such
claim or action, and the Participant will promptly assume the defense thereof, including the
employment of competent counsel satisfactory to such indemnified person and the payment of all
expenses.
An indemnified person may employ separate counsel with respect to any such claim or
action and participate in the defense thereof, but, except as provided herein, the fees and
expenses of such separate counsel shall not be payable by the Participant unless such
employment has been specifically authorized by the Participant or unless such employment was
occasioned by conflicts of interest between and among indemnified persons and/or the
Participant. If the Participant shall fail to assume the defense of any action as required
hereunder, or, within a reasonable time after commencement of such action, to retain counsel
satisfactory to the indemnified person, the fees and expenses of counsel to such indemnified
person hereunder shall be paid by the Participant.
The provisions of this paragraph (i) shall survive the termination of this Loan Agreement
and the payment in full of the Participant Note.
(j) Insurance and Condemnation Proceeds. The Participant shall not make any
disposition nor direct the disposition of insurance or condemnation payments with respect to the
Project without the written consent of the Trustee.
(k) Location of Proiect. The Project will be used or based within the jurisdiction of
the Participant.
(1) Further Assurance. The Participant shall execute and deliver to the Trustee and
the Issuer all such documents and instruments and do all such other acts and things as may be
necessary or reasonably required by the Trustee or the Issuer to enable the Trustee, the Swap
Counterparty, if any, or the Issuer to exercise and: enforce its respective rights under this Loan
Agreement and to realize thereon, and record and file and rerecord and refile all such documents
and instruments, at such time or times, in such manner and at such place or places, all as may be
necessary or required by the Trustee, the Swap Counterparty, if any, or the Issuer to validate,
preserve and protect the position of the Trustee, the Swap Counterparty, if any, or the Issuer
l\MlA-SRYO 1 11397307v0217/11/02146245.0 10300
13
under this Loan Agreement; provided that nothing herein shall be deemed to authorize, grant or
create any encumbrance or lien upon any property or assets of the Participant.
(m) Keeping of Records and Books of Account. The Participant shall keep or cause to
be kept proper records and books of account, in which correct and complete entries will be made
in accordance with generally accepted accounting principles, consistently applied (except for
changes concurred in by the Participant's independent auditors) reflecting all of its financial
transactions.
(n) Compliance With Laws. Etc. The Participant shall comply with the requirements
of all applicable laws, the terms of all grants, rules, regulations and orders of any governmental
authority noncompliance with which would, singly or in the aggregate, materially and adversely
affect its business, properties, earnings, prospects or credit, or the enforceability of this Loan
Agreement or the Participant Notes unless the same shall be contested by it in good faith and by
appropriate proceedings which shall operate to stay the enforcement thereof.
(0) Tax-Exempt Status of Bonds and the Participant Notes. The Issuer and the
Participant understand that it is the intention hereof that the interest on the Bonds and the
Participant Notes be excludable from the gross income of the holders thereof for federal income
tax purposes. In furtherance thereof, the Participant agrees that it will take all action within its
control which is necessary in order for the interest on the Bonds and the Participant Notes to
remain excludable from federal income taxation and shall refrain from taking any action which
results in such interest becoming so taxable.
The Participant covenants that neither it nor any related person, as contemplated by
Section 1.148-1 (b) of the U.S. Treasury Regulations under the Code, shall, pursuant to an
arrangement, formal or informal, purchase obligations of the Issuer in an amount related to the
amount of the Loan or the Participant Notes delivered in connection with the transaction
contemplated hereby.
The Participant further covenants that it will record or file or cause to be recorded or filed
in such marmer and in such places whatever documents as may be required by law to be recorded
or filed in order to protect fully the security of the holders and owners of the Bonds and, if
applicable, the tax-exempt status of such Bonds and the Participant Note, including, but not
limited to, the filing of all reports upon written request of the Issuer as may be required from
time to time pursuant to the Code.
The Participant further covenants that it will not take any action or fail to take any action
with respect to the investment of the proceeds of any Bonds or the Participant Note, with respect
to the payments derived from the Bonds, the Participant Notes or hereunder or with respect to the
purchase of other Issuer obligations, which action or failure to act may cause the Bonds or the
Participant Notes to be "arbitrage bonds" within the meaning of such term as used in Section 148
of the Code and the regulations promulgated thereunder.
(P) Information Reports. The Participant covenants to provide the Issuer with all
material and information necessary to enable the Issuer to file all reports required under Section
\\MIA-SRVO 111397307v0217/11l02146245.0 10300
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103 of the Code (including the applicable Form 8038-G) to assure that interest paid by the Issuer
on the Bonds and by the Participant on the Participant Notes shall be excludable from all federal
income taxation. The Participant further covenants to provide the Rebate Analyst with all
material and information necessary to enable the Rebate Analyst to determine the Annual Rebate
Estimate in accordance with Section 4.07(b) of the Indenture.
(q) Tax Agreement. The Participant shall comply in all respects with the Tax
Agreement, and shall take no action except as expressly permitted herein, which would cause the
representations contained therein not to be true and correct on a continuing basis. The
Participant covenants that it shall not take any action or inaction, nor fail to take any action or
permit any action to be taken, if any such action or inaction would adversely affect the exclusion
from gross income for federal income tax purposes of the interest on the Bonds or the Participant
Notes under Section 103 of the Code.
(r) Ratings Maintenance. The Participant shall take any action reasonably required
by the Rating Agency to maintain the ratings on the Bonds.
Section 2.03 Tax Covenants and Representations of the Participant. Unless the
Participant shall furnish the Issuer and the Trustee a Favorable Opinion of Bond Counsel to the
effect that such action will not adversely effect the excludability of interest on the Bonds for
federal income tax purposes, the Participant shall not take any of the following actions:
(a) The Participant will not identify the Swap Agreement, if any, as a hedge in its
books and records (e.g., a "qualified hedge") pursuant to Treas. Reg. Section 1.148-4(h)(2)(viii).
(b) No more than five percent (5%) of the Loan proceeds, and the investment
earnings thereon, will be used, directly or indirectly, to make or finance loans to any persons
other than state or local government units. Moreover, at least ninety-five percent (95%) of the
net proceeds derived from the Participant Notes wiII be applied to the Project used for the
governmental purposes of the Participant.
(c) No users of the Project other than state or local governmental units wiII use more
than five percent (5%) of the Project in the aggregate, on any basis other than the same basis as
the general public; and no person other than a state or local governmental unit will be the user of
more than five percent (5%) of the Project, in the aggregate, as a result of (i) ownership, (ii)
actual or beneficial use pursuant to a lease or a management, service, incentive payment or
output contract, or (iii) any other similar arrangement, agreement or understanding, whether
written or oral.
(d) For purposes of the foregoing, any subsequent actions are subject to compliance
with the remedial actions rules ofTreas. Reg. Section 1.141-12.
(e) The amounts repaid to the Participant's Redemption Account or to the Principal.
Account of the Bond Fund will not be derived from proceeds of the sale of the Bonds or
borrowings made by the Participant and such amounts wiII be derived from tax collections and
\\MIA-SRVO 1 11397307v02\7/11l02\46245.0 1 0300
15
other governmental receipts, except with respect to any refunding or prepayment permitted under
the arbitrage regulations.
(f) During the term of the Participant Notes, the Project will be used by the
Participant only for the purpose of performing one or more governmental or proprietary
functions of the Participant consistent with the permissible scope of the Participants authority.
(g) The use of the Project is essential to the Participant's proper, efficient, and
economic operation.
(h) The Participant has an immediate need for, and expects to make immediate use of,
all of the Project, which need is not temporary or expected to diminish in the foreseeable future.
(i) There are no circumstances presently affecting the Participant that could
reasonably be expected to alter its foreseeable need for the Project or adversely affect its ability
or willingness to budget and appropriate funds for the payment of amounts due under the
Participant Notes.
(j) The inclusion in the Participant Notes of the Participant's right to prepay is not
indicative of any present purpose or design on the part of the Participant to prepay or redeem the
Participant Notes and acquire additional property or services performing functions similar to the
Project.
(k) The Participant will not take or omit to take any action which will adversely affect
the excludability from gross income of the interest component of the Participant Note payments
under the Code, including any action or omission which will cause the Bonds or the Participant
Notes to be an "arbitrage bond" within the meaning of Section 148 of the Code.
(I) The Participant reasonably expects that the average maturity of the Participant
Notes will not exceed one hundred and twenty percent (120%) of the average reasonably
expected economic life of the Project pursuant to the Loan Agreement based on when the Project
is in fact acquired.
(m) The Participant reasonably believes that the term of the Participant Notes is
reasonably necessary to accomplish the governmental purposes of the Participant by providing
the Participant the cost of financing or currently refinancing the Project during the term of the
Participant Notes on terms and conditions that are beneficial to the Participant, when compared
to other potential means of financing, leasing, or otherwise using the Proj ecl.
(n) The Participant intends to pay the Participant Notes pursuant to the Loan
Agreement.
(0) The estimated total costs of acquiring the Project and paying related expenses of
executing and delivering the Participant Notes will be an amount not less than the aggregate
principal component of the Participant Notes, together with earnings estimated to be received
from investment of any fund monies pursuant to the Indenture until the Proj ect is acquired.
\\MIA-SRVO 1\1397 307v02\ 7 /11/02\46245.0 I 0300
16
(P) The acquisition of the Project and the allocation of the net sale proceeds of the
Loan Agreement to expenditures will commence and will proceed with due diligence to
completion.
(q) At least eighty-five percent (85%) of the net proceeds of the Loan Agreement are
reasonably expected to be allocated to expenditures on the Project within three (3) years of the
date on which moneys are advanced to the Participant.
(r) The Participant does not reasonably expect that any of the Project will be sold,
encumbered, or otherwise disposed of, in whole or in part, except such parts or portion thereof
that may be disposed of due to normal wear, obsolescence, or depreciation, prior to the maturity
of the Participant Notes.
(s) Amounts disbursed from the Participant's Reservation Account will be expended
solely to payor reimburse the costs of the acquisition of the Project and related costs.
(t) The Participant does not expect to create or establish any sinking fund (other than
as provided in the Indenture) or similar fund with respect to the Participant Notes with respect to
which there can be any assurance that moneys will be available therein to pay the Loan in the
event that the Participant encounters financial difficulty.
(u) No amounts in the accounts or funds of the Participant are reserved or pledged for
Participant Note payments, and it is not expected that any accounts or funds will be used, nor is
there any reasonable assurance that any portion of any accounts or funds will be available for
Participant Note payments if the Participant encounters financial difficulty.
(v) No security, as defined in Sections l65(g)(2)(A) and (B) of the Code, any other
obligations (other than a tax-exempt bond), any annuity contract, or any other property that is
held principally as a passive vehicle for the production of income will be pledged as security for
the payment of the Participant Notes,
(w) None of the proceeds of the Loan Agreement is expected to be used directly or
indirectly to replace funds which were or are to be used directly or indirectly to acquire
securities, obligations (other than tax-exempt bonds), any annuity contract, or other property that
is held principally as a passive vehicle for the production of income which are expected to
produce a yield which is materially higher than the yield produced by the Loan Agreement.
(x) None of the proceeds of the Loan Agreement will be allocated to reimburse the
Participant for any expenditures (i) that were originally paid before the date of issuance of the
Bonds from another source, unless the representations set forth in Section 2.04 are true and
correct, or (ii) that were incurred before the period permitted by the arbitrage regulations.
(y) The Participant will not use the proceeds of any Loan as a tax anticipation note,
bond anticipation note or revenue anticipation note unless the Participant certifies that it has
complied with the capital deficit rules of the arbitrage regulations and has received a Favorable
Opinion of Bond Counsel.
\\MlA-SRVO 1 II 397307v0217/1ll02\46245.0 1 0300
17
Section 2.04 Reimbursement Representations. Under certain circumstances
described below, a Participant may be entitled to use proceeds of the Loan to reimburse the
Participant for an expenditure paid prior to the date of issuance of the Bonds.
If the Participant wishes to use proceeds of the Loan to obtain reimbursement for an
expenditure paid prior to the Closing Date hereof, the Participant will make a Reimbursement
Allocation to allocate a portion of the Loan proceeds and investment earnings thereon to the
Reimbursed Expenditures incurred in connection with the Project and will, after such
Reimbursement Allocation, treat such proceeds as being spent. In support of the Reimbursement
Allocation, the Participant hereby represents as follows:
(a) Certain Reimbursed Expenditures (the "Preliminary Expenditures") relate to
architectural, engineering, surveying, soil testing, and similar costs that were incurred prior to
commencement of the acquisition, construction, or rehabilitation of the Project and do not
include any costs related to land acquisition, site preparation and similar costs incident to
commencement of construction.
(b) The amount of Preliminary Expenditures does not exceed twenty percent (20%)
of the Loan proceeds being used to fmance the portion of the Project with respect to which the
Preliminary Expenditures were incurred,
(c) Except as described in (g) below, in the case of non-Preliminary Expenditures, the
Participant has adopted an official intent (within the meaning of Treasury Regulations Section
1.l50-2(e)) to reimburse such expenditures not later than sixty (60) days after the date such
expenditures were paid. At the time the official intent described above was declared, the
Participant reasonably expected to reimburse the non-Preliminary Expenditures related thereto
with the proceeds of a future borrowing.
(d) The Participant will allocate Loan proceeds in an amount to reimburse the
Reimbursed Expenditures. Except as described in (g) below, and except in the case of
Preliminary Expenditures, the Participant will be advanced the Loan proceeds from the
Reservation Account within eighteen (18) months after the later of (i) the first date on which a
Reimbursed Expenditure was paid or (ii) the first date on which the property relating to a
Reimbursed Expenditure was placed-in-service or abandoned, but in no event more than three
years after the first date on which a Reimbursed Expenditure was paid. If the Participant
qualifies for the small issuer exception to rebate, except as described in (g) below, and except in
the case of Preliminary Expenditures, the Participant will be advanced the Loan proceeds from
the Reservation Account within three years after the later of (i) the first date on which a
Reimbursed Expenditure was paid or (ii) the first date on which the property relating to a
Reimbursed Expenditure was P1aced-in-Service or abandoned.
(e)
Issuance.
All Reimbursed Expenditures will represent capital expenditures or Costs of
(f) No Reimbursement Allocation will employ any action that results in the Issuer or
any Participant issuing more bonds, issuing bonds earlier, or allowing bonds to remain
\IMIA-SR VO 1 \1397307v02\ 7 /11/02\46245.010300
18
outstanding longer than is reasonably necessary to accomplish the relevant governmental
purposes, based upon all of the facts and circumstances.
(g) The restrictions in (c) and (d) above do not apply to (i) Costs ofIssuance or (ii) an
amount not in excess of $1 00,000.
ARTICLE III
THE LOAN
Section 3.01 The Loan; Participant Notes. The Issuer hereby agrees to make a Loan
to the Participant in the Initial Amount equal to $[INITlAL AMOUNT]. A portion of the Initial
Amount will be deposited into the Participant's Reservation Account upon the issuance of the
Bonds for the purpose of making Disbursements from time to time to the Participant. The
Participant agrees to requisition for and receive Disbursements from time to time and as evidence
of such Loan the Participant shan issue and deliver the Participant Notes to the Issuer for the full
amount of the Initial Amount. The Participant further agrees to repay such Loan by making all
payments due in respect of the Participant Notes, together with all other amounts due under this
Loan Agreement and the Indenture.
The acceptance of the Participant Notes by the holder from time to time thereof shall be
deemed an agreement between the Participant and such holder that the obligation to pay such
Participant Notes and the other amounts payable in connection herewith shall not constitute a
lien upon any property or funds of the Participant, but shall be subject to payment from the Non-
Ad Valorem Revenues, in the manner herein provided.
Section 3.02 Funding the Loan. The Trustee, as the agent of the Issuer, on the Closing
Date shall transfer a portion of the Initial Amount from amounts on deposit in the Acquisition
Fund to a Reservation Account for the Participant in accordance with the Indenture. Participant
acknowledges that the amount to be deposited in the Participant's Reservation Account (net of
$[COSTS OF ISSUANCE], the Costs of Issuance, and of $[RESERVE AMOUNT], the initial
deposit to the Participant's Reserve Account) shall be $[FUNDING AMOUNT], the Funding
Amount. The Funding Amount in the Participant's Reservation Account will be made available
by the Issuer to the Participant for a period not to exceed sixty (60) months to fund
Disbursements from time to time as directed by the Participant to [mance the Cost of Projects.
Amounts on deposit in such Reservation Account shall belong to and be held for the benefit of
the Participant, be subject to a first and prior pledge securing the Participant Notes and this Loan
Agreement, and shall be disbursed in whole or in part from time to time upon receipt by the
Trustee of a Request for Advance in the form of Exhibit D hereto. Each Request for Advance
shall be for a minimum amount of $100,000. The Participant shall deliver a copy of each
Request for Advance submitted to the Trustee to the Administrator on the date the request is
submitted to the Trustee. Other than amounts in the Participant's Reservation Account or
Repayments or Prepayments of principal by the Participant on deposit in the Principal Account
of the Bond Fund or in the Participant's Redemption Fund, all as provided in the Indenture, the
Participant shall have no legal or equitable interest in the proceeds of the Bonds or in any
amounts from time to time on deposit in the funds and accounts created by the Indenture. The
IlMlA-SRVO I II 397307v021 7/11102146245.010300
19
proceeds provided to the Participant shall be used strictly in accordance with Section 2.01(h)
hereo f.
Section 3.03 No Warranty Of Sufficiency. None of the Issuer, the Trustee, or the
Administrator, in any way warrants or represents that the Initial Amount will be sufficient to
finance the entire Cost of the Proj ect. In the event the proceeds of the Loan are insufficient to
defray the entire Costs of the Project, the Participant shall nevertheless pay all such Costs, from
such sources as may be available to the Participant; and the Participant shall not be entitled to
any abatement, reduction, diminution or postponement of any amounts due hereunder or under
the Participant Notes.
Section 3.04 Closing Submissions. The obligation of the Issuer to deposit the Funding
Amount in the Participant's Reservation Account established for the Participant is expressly
subject to the receipt by the Administrator and the Trustee of the documents set forth in Section
4.03 hereof.
Section 3.05 Evidence Of Loan. The Participant's obligation to repay the Initial
Amount due under this Loan Agreement and the Indenture, together with interest thereon at the
Participant Rate shall be evidenced by the Participant Notes; and the Participant's obligation to
repay the other payments required under this Loan Agreement shall be evidenced by this Loan
Agreement.
Section 3.06 Adjustments to Initial Amount.
(a) Notwithstanding anything to the contrary in this Loan Agreement or in the
Indenture, the Participant's Initial Amount shall not be reduced or changed on account of any
Repayment, Prepayment or deemed Prepayment of any portion of the principal amount of the
Participant's Loan until such time, and only to the extent, that such Repayment has been applied
to pay, discharge and redeem or defease an equal principal amount of Bonds, and the notional
amount of the Swap Agreement, if any, then in effect has been reduced by the amount of such
payment and discharge or defeasance of Bond principal.
(b) Unless and until an adjustment to the Participant's Initial Amount has been made
in accordance with Subsection 3.06(a) above, (i) the amount of any Repayment or Prepayment
on deposit in the Participant's Redemption Account or the Principal Account of the Bond Fund
shall continue to belong to the Participant, subject to application thereof as provided in the
Indenture, and (ii) the Participant shall continue to be obligated to make Repayments and
additional payments in respect of its Initial Amount, subject to receipt of credit of investment
earnings upon such deposits, up to the Permitted Investment Rate, all as provided in the
Indenture.
ARTICLE IV
LOAN TERM, LOAN CLOSING REQUIREMENTS
AND LOAN AMENDMENT REQUIREMENTS
\\MlA-SRVO 1\1397307>1)2\7/11/02\46245.010300
20
Section 4.01 Commencement of Loan Term. The Participant's obligations under this
Loan Agreement and the Participant Notes shall commence on the Closing Date unless otherwise
provided in this Loan Agreement.
Section 4.02 Termination of Loan Term Subject to Section 5.06 hereof, the
Participant's obligations under this Loan Agreement and the Participant Notes shall terminate
after payment in full of all amounts due under this Loan Agreement and the Participant Notes,
and all amounts not theretofore paid shall be due and payable fifteen (15) days (or if such day is
not a Business Day, then the next preceding Business Day) prior to [ ] 1, 2032; provided,
however, that the covenants and obligations expressed herein to so survive shall survive the
termination of this Loan Agreement and the payment in full of the Participant Notes. Upon
termination of the Loan Term as provided above, the Issuer and the Trustee shall deliver, or
cause to be delivered, to the Participant the canceled Participant Notes.
Section 4.03 Loan Closing Documents. Concurrently with the execution and delivery
of this Loan Agreement, the Participant is providing to or will cause to be provided to the
Trustee the following documents, each dated the date of such execution and delivery unless
otherwise provided (except that the item described in (e) below shall be delivered only to the
Trustee):
(a) Certified Resolution of the Participant;
(b) A certificate of the officials of the Participant who sign this Loan Agreement and
the Participant Notes in form and substance substantially identical to Exhibit C to this Loan
Agreement;
(c) The original executed Participant Notes to the Issuer, endorsed to the Trustee;
(d) A certificate signed by the Authorized Officer of the Participant stating (i) the
estimated.dates and amounts of projected expenditures for the Project, (ii) that it is reasonably
anticipated by the Participant that the Loan proceeds will be fully advanced therefor and
expended by the Participant (to the extent the Disbursements are not made to reimburse the
Participant for an expenditure already made) prior to a date which is no later than thirty-six (36)
months after the date of issuance of the Bonds, (iii) that the projected expenditures are based on
reasonable expectations, and (iv) that the proceeds of the Loan are to be used to finance a
Project, the financing of which constitutes an "authorized project" of the Issuer under the Act;
(e) An opinion (addressed to, and in form and substance acceptable to, the Issuer and
the Trustee) of Bond Counsel, to the effect that the Loan will not jeopardize the excludability of
the interest on the Bonds from federal income tax or adversely affect the validity of the Bonds;
(f) An opinion of the Participant's Counsel in the form of Exhibit E attached hereto
to the effect that the Loan Agreement is a valid and binding obligation of the Participant and
opining to such other matters as may be reasonably required by Bond Counsel and Underwriter's
counsel;
(g) A Form 8038-0 with respect to the Loan; and
\\MIA-SR YO 1 \1397307v02\7 /11/02\46245.010300
21
(h) Such other certificates, documents and information as the Issuer may require.
All opinions and certificates shall be dated the Closing Date.
ARTICLE V
LOAN REPAYMENTS
Section 5.01 Repayments.
(a) The principal and interest portions of Repayments are due in the form of
payments on the Participant Notes, in accordance with the terms thereof. Payment of all other
amounts due under this Loan Agreement are payable by the Participant directly, upon receipt by
the Participant of a statement thereof. The Participant shall make Repayments due under this
Loan Agreement solely from Non-Ad Valorem Revenues as provided herein in lawful money of
the United States of America to the Trustee. Payment by the Participant of principal, premium,
if any, and interest on the Participant Notes shall constitute Repayments of principal, premium
and interest hereunder.
(b) The Loan shall be repaid in installments, consisting of (i) a principal payment on
the Participant Notes, payable in such amount and on such date as set forth in the Participant
Notes, as shown in Exhibit B hereto; and (ii) interest on the Participant Notes at the Participant
Rate. Interest on any past-due Repayment shall accrue at the Default Rate. All Repayments
shall be due as set forth in a Participant Notes unless such Participant Note is prepaid in whole as
permitted herein,
(c) In addition to the foregoing, the Participant shall pay to the Trustee for the
account of the Issuer, solely from Non-Ad Valorem Revenues as provided herein, its AIlllUa1
Rebate Deficiency calculated in accordance with Section 4.07(b) of the Indenture and the fees of
the Administrator, Trustee and Rebate Analyst, as set forth in the Indenture.
(d) Payments of interest on the Participant Notes shall be deposited by the Trustee
into the Interest Account of the Bond Fund established under the Indenture. Repayments of
principal on the Participant Notes shall be deposited into the Principal Account of the Bond
Fund.
Section 5.02 Additional Payments. In addition to payments due under Section 5.01,
the Participant agrees to pay to the Trustee solely from Non-Ad Valorem Revenues as provided
herein, upon demand of the Administrator on behalf of the Issuer, or Trustee the following
additional payments:
(a) the fees and out-of-pocket expenses and disbursements of counsel utilized by the
Issuer and the Trustee in connection with this Loan Agreement, and the Related Documents, and
the enforcement thereof upon any default by the Participant;
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(b) all taxes and other governmental charges in connection with the execution and
delivery of this Loan Agreement, whether or not any amount due hereunder is then outstanding,
including all recording and filing fees and stamp taxes relating to the pledge and assignment of
the Issuer's right, title and interest in and to this Loan Agreement pursuant to the Indenture (and
with the exceptions noted therein) and all expenses, including attorneys fees, relating to any
amendments, waivers, consents or collection or enforcement proceedings pursuant to the
provisions hereof; and
(c) all Extraordinary Expenses, consisting of:
(1) fees and expenses (including attorney's fees) of the Trustee and any
paying agent, any registrar, authenticating agent or transfer agent for the Bonds not
included it its regular fees;
(2) amounts owed by the Issuer under the Indenture with respect to any
indemnification obligations to the Trustee or to any other entity under the Indenture;
(3) any Compliance Charges and all amounts owed as costs and expenses of
the Issuer or the Trustee, including fees and expenses of their attorneys and consultants,
incurred in connection with an audit of the Bonds by the Internal Revenue Service, the
Department of the Treasury, the Securities and Exchange Commission, or any successor
agency of any of the foregoing or any state agency or department;
(4) if a Swap Agreement is entered into by the Issuer with respect to the
Bonds, all reasonable fees and expenses of the Issuer or the Trustee relating to this Loan
Agreement and the Swap Agreement, including but not limited to:
(A) the fees and disbursements of counsel utilized by the Issuer and the
Trustee in connection with the Loan, the Loan Agreement and the Participant
Notes and the enforcement or administration thereof;
(B) all other out-of-pocket expenses of the Trustee and the Issuer in
connection with the Loan, the Loan Agreement, the Swap Agreement and the
Participant Notes and the enforcement thereof;
(C) all costs and expenses, fees, charges and other amounts (other than
a Termination Payment) due from the Issuer to the Swap Counterparty for such
Swap Agreement;
(D) any other reasonable fees or expenses of the Issuer or the Trustee
generally in connection with the Bonds, the Participant Notes, the Loans or the
Swap Agreement.
(5) if a Swap Agreement is entered into by the Issuer with respect to the
Bonds, the Termination Payment due upon that portion of the Swap Agreement allocable
to the Participant, upon the failure of the Participant to be in compliance with any
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provision hereof which has the effect of causing such Termination Payment to be due;
and
(6) all losses resulting from the investment of the Participant's Reservation
Account, the Participant's Reserve Account, or moneys transferred from such accounts to
the Participant's Redemption Account in the Redemption Fund, including market losses,
a failure of the Investment Agreement to provide earnings sufficient to cover the
Repayments due hereunder or payments due on a principal amount of the Bonds or any of
the additional payments due under this Section 5.02, including any costs under the Swap
Agreement, if any, losses caused by default of the Investment Agreement provider(s) or
the Swap Counterparty, losses due to failure of collateral and losses incurred on a
replacement of the Investment Agreement provider, without regard to the party initiating
the replacement, and any penalties, damages, expenses or repayment of losses due to an
Investment Agreement provider under its respective Investment Agreement
(d) If the Participant's Reserve Account is reduced or depleted, the Participant shall
pay the amount necessary to restore the balance in the Participant's Reserve Account to the
Participant's Pro Rata Share of the Reserve Fund Requirement Such payments shall be made
from Non-Ad Valorem Revenues of the Participant in twelve equal monthly installments, due on
the first Business Day of each month commencing with the month following the date of such
reduction, depletion, or draw.
The Participant agrees to pay interest at the Default Rate to the affected party on any such
additional payments enumerated above not received by the Issuer, the Swap Counterparty, the
Trustee or the Administrator, as the case may be, within ten (10) days of demand therefor.
Section 5.03 Determination of Variable Interest Rate; Interest Limit If a Swap
Agreement is entered into by the Issuer with respect to the Bonds, the determination of the
Weekly Rate from time to time by the Calculation Agent in accordance with the Indenture shall
be conclusive and binding on the Participant Failure by the Trustee to give notice required
hereunder, or any defect therein, shall not (i) affect the interest rate borne by the Bonds or the
payment obligations of the Participant hereunder, or (ii) impose any liability on the Trustee to the
Participant Interest on the Participant Notes shall not exceed the Maximum Rate.
For purposes of budgeting for the interest component of the Repayment due each year on
the Participant Notes, the Participant covenants and agrees that (A) during any period during
which the provisions of subsection (i) of the definition of Participant Rate are applicable, the
Participant shall budget such interest at an estimated interest rate of percent
L-%) and (B) during any period during which the provisions of subsection (ii) of the
definition of Participant Rate are applicable, the Participant shall budget such interest an
estimated interest rate at the greater of percent L-%) or 105% of the average
Participant Rate during the preceding 52 weeks.
Section 5.04 Obligation To Pay Repayments.
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(a) The Participant hereby acknowledges, covenants and agrees to budget and
appropriate, by amendment, if necessary, from Non-Ad Valorem Revenues lawfully available in
each Fiscal Year, and to pay when due under this Loan Agreement directly to the Trustee,
amounts sufficient to pay all Repayments, including without limitation, the amounts due under
Section 5.01 and 5.02 hereof. The Participant hereby covenants that in the event sufficient
amounts, exclusive of the amounts theretofore received from or on behalf of the Participant and
held by the Trustee to satisfy such Repayments on the Participant Loan, have not been paid to the
Trustee, it will, to the extent permitted by law and subject to this Section 5.04, in each year in
which any such deficiency in the Repayments may be due and payable in accordance with this
Loan Agreement, budget and appropriate, by amendment, if required, from legally available
Non-Ad Valorem Revenues, the sums required for payment of such amounts, and apply the same
to the payment thereof.
Such covenant and agreement on the part of the Participant to budget and appropriate
such amounts of legally available Non-Ad Valorem Revenues shall be cumulative, and shall
continue until such legally available Non-Ad Valorem Revenues in amounts sufficient to pay the
Repayments provided for herein in respect of the Initial Amount of the Participant's Loan have
been budgeted, appropriated and actually paid to the Trustee.
Notwithstanding the foregoing covenant of the Participant, the Participant does not
covenant to maintain any services or programs, now provided or maintained by the Participant,
which generate Non-Ad Valorem Revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge of such
Non-Ad Valorem Revenues, nor does it preclude the Participant from pledging-in the future its
Non-Ad Valorem Revenues, nor does it require the Participant to levy and collect any particular
Non-Ad Valorem Revenues, nor does it give the Trustee a prior claim on the Non-Ad Valorem
Revenues as opposed to claims of general creditors of the Participant. Such covenant to budget
and appropriate Non-Ad Valorem Revenues is subject in all respects to the payment of
obligations secured by a pledge of such Non-Ad Valorem Revenues heretofore or hereinafter
entered into (including the payment of debt service on bonds and other debt instruments).
However, the covenant to budget and appropriate in its general annual budget for the purposes
and in the manner stated herein shall have the effect of making available in the manner described
herein Non-Ad Valorem Revenues and placing on the Participant a positive duty to budget and
appropriate, by amendment, if necessary, amounts sufficient to meet its obligations hereunder;
subject, however, in all respects to the restrictions of Section 166.241(3), Florida Statutes, which
provides, in part, that the governing body of each municipality make appropriations for each
Fiscal Year which, in anyone year, shall not exceed the amount to be received from taxation or
other revenue sources; and subject further, to the payment of services and programs which are
for essential public purposes affecting the health, welfare and safety of the inhabitants of the
Participant or which are legally mandated by applicable law.
(b) The obligation of the Participant to make payment of Repayments of any amounts
required by this Article V and other Sections hereof from Non-Ad Valorem Revenues and to
perform and observe the other covenants and agreements contained herein, shall be absolute and
unconditional in all events except as otherwise expressly provided in this Loan Agreement,
l\MlA-SRVO 111 397307v021 7111102\46245.010300
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including this Section 5.04. Subject to the provisions of this Section 5.04, notwithstanding any
dispute between the Participant and the Issuer, the Trustee, the Administrator, the Swap
Counterparty, if any, any Bondholder or any other person, the Participant shall make all
payments of Repayments when due and shall not withhold any Repayments pending final
resolution of such dispute, nor shall the Participant assert any right of set off or counterclaim
against its obligation to make such payments required under this Loan Agreement.
(c) The Participant agrees and covenants with the Issuer that it will not hereafter issue
any obligations payable from the Non-Ad Valorem Revenues or portions thereof, unless there
shall have been filed with the Trustee a certificate of the chief financial officer of the Participant
to the effect that: (i) available Non-Ad Valorem Revenues (average of actual receipts over any
12 consecutive months out of the previous 18 months) exceed maximum annual debt service on
debt secured by and/or payable solely from such Non-Ad Valorem Revenues by at least 1.5
times; and (ii) projected maximum annual debt service requirements for all debt secured by
and/or payable solely from such Non-Ad Valorem Revenues will not exceed 20% of
Governmental Fund Revenues (defined as general fund, special fund, debt service fund and
capital projects funds), exclusive of (i) ad valorem revenues restricted to payment of debt service
on any debt and (ii) any debt proceeds. For the purposes of these covenants maximum annual
debt service means the lesser of the actual maximum annual debt service on all debt or 15% of
the original par amount of the debt, in each case, secured by Participant Non-Ad Valorem
Revenues. For purposes of this subsection (c) the rate of interest on debt service on obligations,
the interest rate on which changes at least every 9 months, shall be assumed to be a rate equal to
two-thirds of the maximum rate which such obligations may bear in accordance with the
controlling instruments for such obligations.
(d) The Participant's obligation to make payment of Repayments or any other
amounts during the Loan Term shall not be abated through accident or unforeseen circumstances.
The Issuer and the Participant agree that the Participant shall bear all risk of damage or
destruction in whole or in part to the Project or any part thereof, including without limitation any
loss, complete or partial, or interruption in the use, occupancy or operation of the Project, or any
manner or thing which for any reason interferes with, prevents or renders burdensome the use of
the Project or the compliance by the Participant with any of the terms of this Loan Agreement.
Notwithstanding the foregoing, this Section 5.04 shall not limit the rights of the Participant to
recover amounts owing to it, except as specifically set forth herein. Subject to the provisions of
this Section 5.04, the Participant does hereby obligate itself and its successors to budget annually
solely from Non-Ad Valorem Revenues a sum of money sufficient to make Repayments required
by this Loan Agreement, including any principal and/or interest on the Bonds theretofore
matured and unpaid and to collect revenues within the limits prescribed by law from time to
time, sufficient to make such Repayments.
(e) Anything in this Loan Agreement to the contrary notwithstanding, it is understood
and agreed that all obligations of the Participant hereunder shall be payable only from Non-Ad
Valorem Revenues budgeted and appropriated as provided for hereunder and nothing herein shall
be deemed to pledge ad valorem taxation revenues or to permit or constitute a mortgage or lien
upon any assets owned by the Participant and no Bondholder or any other person, including the
Issuer or the Trustee may compel the levy of ad valorem taxes on real or personal property
l\MlA-SR YO 111 397307v021 7 /11/02146245.010300
26
within the boundaries of the Participant. The obligations hereunder do not constitute an
indebtedness of the Participant within the meaning of any constitutional, statutory or charter
provision or limitation, and neither the Trustee, the Issuer, or the Bondholders or any other
person shall have the right to compel the exercise of the ad valorem taxing power of the
Participant or taxation of any real or personal property therein for the payment by the Participant
of its obligations hereunder. Except to the extent expressly set forth in this Loan Agreement, this
Loan Agreement and the obligations of the Participant hereunder shall not be construed as a
limitation on the ability of the Participant to pledge or covenant to pledge said revenues or any
revenues or taxes of the Participant for other legally permissible purposes. Notwithstanding any
provisions of this Agreement, the Indenture or the Bonds to the contrary, the Participant shall
never be obligated to maintain or continue any of the activities of the Participant which generate
user service charges, regulatory fees or any Non-Ad Valorem Revenues. Neither this Loan
Agreement nor the obligations of the Participant hereunder shall be construed as a pledge of or a
lien on all or any legally available Non-Ad Valorem Revenues of the Participant, but shall be
payable solely as provided herein and is subject in all respects to the provisions of Section
166.241, Florida Statutes, as amended, and is subject, further, to the payment of services and
programs which are for essential public purposes affecting the health, welfare and safety of the
inhabitants of the Participant, and shall be expressly limited to the Repayments of the Participant
and the Participant shall have no joint liability with any other Participant or the Issuer for any of
their respective liabilities, except to the extent expressly provided hereunder.
(f) The Issuer and the Participant understand that the amounts available to be
budgeted and appropriated to make Repayments hereunder are subject to the obligation of the
Participant to provide essential services; however, such obligation is cumulative and carries over
from fiscal year to fiscal year.
Section 5.05 Application of Repayments. Repayments of principal and interest on the
Participant Notes shall be applied as provided herein and in the Participant Notes. Any such
Repayments of the principal amount of the Participant Notes shall be held, invested, applied and
disbursed in accordance with the Indenture.
Section 5.06 Agreement To Survive Indenture and Bonds. The Participant
acknowledges that its obligations hereunder shall survive the discharge of the Indenture and
payment of the principal of and interest on the Bonds, if and to the extent that amounts are due
and owing to the Swap Counterparty, if any, and any other party entitled to receive the same
hereunder as of the date of such discharge and payment. The Participant also acknowledges that
certain obligations hereunder shall survive the Participant's Prepayment of the Participant Notes
and shall remain obligations until the Initial Amount is adjusted as provided in Section 3.06
hereof. The Participant further acknowledges that obligations hereunder arising from the Swap
Agreement shall survive the Participant's Prepayment of the Participant Notes and the
redemption of the Bonds.
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ARTICLE VI
PROVISIONS RELATED TO INSURER
Section 6.01 Notices/Information to be Given to the Insurer.
[To follow upon selection of insurer]
ARTICLE VII
DISCLAIMER OF WARRANTIES; VENDOR'S WARRANTIES
Section 7.01 Disclaimer of Warranties. NONE OF THE ISSUER, THE TRUSTEE,
OR THE ADMINISTRATOR MAKES ANY WARRANTY OR REPRESENTATION, EITHER
EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION,
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR USE
OF THE PROJECT OR ANY PORTION THEREOF OR ANY WARRANTY WITH RESPECT
THERETO. In no event shall the Issuer, the Administrator or the Trustee be liable for any
incidental, indirect, special or consequential damage in connection with or arising out of the
existence, furnishing, functioning or the Participant's use of the Project or any item or products
or services provided for in this Loan Agreement.
Section 7.02 Warranties. The Participant's sole remedy. for the breach of any
warranty, right of indemnification or representation relating to the Project or any part thereof
shall be against the vendors, manufacturers, installers or construction contractors of the Project
and not against the Issuer, the Trustee, any Administrator or any Bondholder, nor shall such
matter have any effect whatsoever on the rights and obligations of the Participant or the Issuer
with respect to this Loan Agreement. The Participant expressly acknowledges that neither \he
Issuer, the Trustee, nor any Administrator makes, or has made, any representation or warranties
whatsoever as to the existence or availability of any such warranties of such vendors,
manufacturers, installers and construction contractors.
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ARTICLE VIII
OPTION TO PREPAY LOAN REPAYMENTS;
LOAN PREPAYMENT
Section 8.01 Prepayment.
(a) The principal amount of the Loan and the Participant Notes shall be subject to
optional prepayment at the direction of the Participant prior to maturity, in whole or in part, on
any Business Day, in an amount equal to the principal amount to be prepaid, plus accrued
interest to the date of related redemption of Bonds. Forty-five (45) days prior written notice of
such Prepayment shall be provided by the Participant to the Trustee and the Administrator
clearly stating that such payment is a Prepayment. Any optional Prepayment in part shall be in
the minimum principal amount of $1 00,000.
(b) After any partial Prepayment or deemed Prepayment (other than a mandatory
sinking fund Prepayment), the Trustee shall recalculate principal installments due under the
Participant Notes, applying such Prepayment to the Schedule of Principal Installments attached
to the Participant Notes, pro rata in the case of redemptions pursuant to Section 3.01(a) and (c) of
the Indenture; provided, however, that no such revision to the schedule of remaining Repayments
shall extend the average life of the Loan in violation of the requirements of the Tax Agreement.
In the event of any optional Prepayment in part, the annual principal installments, if any, prior to
maturity, on the Participant Notes shall be reduced pro rata based upon the remaining principal
outstanding on the Participant Notes, within $5,000 denominations.
(c) Prepayments shall be deposited to the Participant's Redemption Account and shall
be used by the Trustee to redeem Bonds in accordance with Section 3.01 of the Indenture. Until
such amounts are applied to redeem and discharge Bonds in accordance with Section 3.01 of the
Indenture, the provisions of Section 3.06 hereof shall apply. Upon (i) any Prepayment in whole
of the Participant Notes, and (ii) (A) the redemption or defeasance of the Bonds in the amount of
the Prepayment, and (B) the termination of the Participant's Notional Amount of the Swap
Agreement, if any, this Loan Agreement shall terminate, except for the obligations and covenants
expressed herein to survive, as further described herein.
Section 8.02 Prepayment and Swap Agreement. Upon receipt of the forty five day
notice of a Prepayment required by Section 8.01(a), the Administrator, on behalf of the Issuer,
shall notifY the Swap Counterparty, if any.
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ARTICLE IX
TITLE TO PROPERTY; ASSIGNMENT OF AGREEMENT AND NOTE
Section 9.01 Title To Project. Title to the Project will be and remain in the
Participant. The Participant shall have the right to convey the Project to any other Persons,
subject to the limitations contained in other provisions of this Loan Agreement and the Tax
Agreement. If any such conveyance which is not permitted hereby or by the Tax Agreement is
nevertheless undertaken due to unforeseen circumstances or other actions outside the control of
the Participant, the Participant shall prepay its Participant Notes and the Trustee shall, subject to
the provisions of the Indenture, use such Prepayments to redeem Bonds prior to maturity on the
next available Redemption Date. The Participant acknowledges and recognizes that certain
obligations hereunder shall survive prepayment of its Participant Notes.
Section 9.02 Assignment By Issuer; Administrator. This Loan Agreement, the
Participant Notes, and the obligations of the Participant to make payments hereunder and
thereunder may be assigned and reassigned in whole or in part to one or more assignees or
sub assignees by the Issuer or the Trustee at any time subsequent to its execution without the
necessity of obtaining the consent of the Participant. The Participant expressly acknowledges
that this Loan Agreement, the Participant Notes, and the obligations of the Participant to make
payments hereunder and thereunder (with the exception of certain of the Issuer's rights to
indemnification, fees and expenses) have been assigned to the Trustee as security for the Bonds
under the Indenture and that the Trustee shall be entitled to act hereunder and thereunder in the
place and stead of the Issuer whether or not the Bonds are in default. In addition, the Participant
acknowledges that the Issuer will appoint an Administrator in writing which shall be entitled to
act hereunder in the place and stead of the Issuer, to the extent of such appointment.
Section 9.03 Assignment by Participant. This Loan Agreement and the Participant
Notes may not be assigned by the Participant for any reason without the express prior written
consent of the Issuer and Trustee.
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.01 Events of Default Defmed. The following shall be "Events of Default"
under this Loan Agreement and the terms "Event of Default" and "Default" shall mean (except
where the context clearly indicates otherwise), whenever they are used in this Loan Agreement,
anyone or more of the following events:
(a) Failure by the Participant to timely pay any Repayment on the date on which it is
due and payable or upon ten (10) Business Days written notice of any other payment required to
be paid hereunder;
(b) Failure by the Participant to observe and perform any covenant, condition or
agreement on its part to be observed or performed under this Loan Agreement, other than a
I\MIA-SRVO 1 11397307v02\7 /11/02\46245.010300
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covenant referred to in Section 10.01(a) or 10.01(c) through (h), for a period of thirty (30) days
after written notice specifYing such failure and requesting that it be remedied is given to the
Participant by the Trustee, unless the Trustee shall agree in writing to an extension of such time
prior to its expiration; provided, however, if the failure stated in the notice can be wholly cured
within a period of time not materially detrimental to the rights of the Issuer or the Trustee, but
cannot be cured within the applicable thirty (30) day period, the Trustee will not unreasonably
withhold its consent to an extension of such time if corrective action is instituted by the
Participant within the applicable period and diligently pursued until the failure is corrected;
(c) Any warranty, representation or other statement by the Participant or by an officer
or agent of the Participant contained in this Loan Agreement, the Participant Notes, or in any
instrument furnished in compliance with or in reference to this Loan Agreement or the
Participant Notes, affecting the excludability of interest on the Bonds for federal income tax
purposes or the credit worthiness of the Participant is false or misleading in any material respect;
(d) A petition is filed against the Participant under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect, and is not dismissed within sixty (60) days of such filing;
(e) The Participant files a petition in voluntary bankruptcy or seeking relief under any
provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents
to the filing of any petition against it under any such law;
(f) The Participant admits insolvency or bankruptcy or its inability to pay its debts as
they become due or is generally not paying its debts as such debts become due, or becomes
insolvent or bankrupt or makes an assignment for the benefit of creditors, or a custodian
(including without limitation a receiver, liquidator or trustee) of the Participant or any of its
property is appointed by court order or takes possession thereof and such order remains in effect
or such possession continues for more than sixty (60) days; or
(g) Any material provision of this Loan Agreement or the Participant Notes shall at
any time for any reason cease to be valid and binding on the Participant, or shall be declared to
be null and void, or the validity or enforceability of any such provision shall be contested in any
administrative or judicial proceeding by the Participant or any governmental agency or authority
(other than the Issuer), or if the Participant shall deny the validity or enforceability of any such
provision or any further liability or obligation under this Loan Agreement or the Participant
Notes.
Section 10.02 Notice of Default. The Participant agrees to give the Trustee, the Issuer,
the Insurer, the Swap Counterparty and the Administrator prompt written notice if any petition,
assignment, appointment or possession referred to in subsections 10.01(d), (e), or (f) is filed by
or against the Participant or of the OCCurrence of any other event or condition which constitutes a
Default or an Event of Default, or with the passage of time or the giving of notice or both would
constitute an Event of Default, immediately upon becoming aware of the existence thereof.
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Section 10.03 Remedies on Default. Whenever any Event of Default referred to in
Section 10.01 hereof shall have happened and be continuing, the Issuer or the Trustee shall, in
addition to any other remedies herein or by law provided, have the right, at its or their option
without any further demand or notice to take such steps and exercise one or more of the
following:
(a) Take any action permitted or required pursuant to the Indenture; and
(c) Take whatever other action at law or in equity may appear necessary or desirable
to collect the amounts then due and thereafter to become due hereunder or to enforce any other
of its or their rights hereunder.
Section 10.04 Attorneys' Fees and Other Expenses. The Participant shall on demand
pay to the Issuer, the Trustee, the Swap Counterparty, if any, or the Administrator the reasonable
and documented fees and expenses of attorneys and other reasonable and documented expenses
incurred by any of them in the collection of Repayments or any other sums due or the
enforcement of performance of any other obligations of the Participant upon an Event of Default.
The provisions of this Section 10.04 shall survive the termination of this Loan Agreement and
the payment in full of the Participant Notes.
Section 10.05 Application of Moneys. Any moneys collected by the Issuer, the Trustee
or the Administrator pursuant to Section 10.03 hereof shall be applied (a) first, to any reasonable
attorneys' fees or other expenses owed by the Participant to the Issuer, the Trustee, the Swap
Counterparty or the Administrator pursuant to Section 10.04 hereof, pro rata based on the
amount of such expenses owed, (b) second, to pay any interest due on the Participant Notes, (c)
third, to pay principal due on the Participant Notes, (d) fourth, to pay any other amounts due
hereunder, including without limitation, if a Swap Agreement is in effect, any Termination
Payment relating to such default, and (e) fifth, to pay interest and principal on the Participant
Notes and other amounts payable hereunder but which are not due, as they become due (in the
same order, as to amounts which come due simultaneously, as in (a) through (d) in this Section
10.05).
Section 10.06 No Remedy Exclusive; Waiver; Notice. No remedy herein conferred
upon or reserved to the Issuer, the Trustee or the Administrator is intended to be exclusive and
every such remedy shall be cumulative and shall be in addition to every other remedy given
under this Loan Agreement or now or hereafter existing at law or in equity. No delay or
omission to exercise any right, remedy or power accruing upon any Default shall impair any such
right, remedy or power or shall be construed to be a waiver thereof, but any such right, remedy
or power may be exercised from time to time and as often as may be deemed expedient. In order
to entitle the Issuer or the Trustee, the Swap Counterparty, if any, or the Administrator to
exercise any remedy reserved to it in this Article X, it shall not be necessary to give any notice
other than such notice as may be required in this Article X.
Section 10.07 Retention of the Issuer's Rights. Notwithstanding any assignment or
transfer of this Loan Agreement pursuant to the provisions hereof or of the Indenture, or
anything else to the contrary contained herein, the Issuer shall have the right upon the occurrence
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of an Event of Default to take any action, including, without limitation, bringing an action
against the Participant at law or in equity, as the Issuer may, in its discretion, deem necessary to
enforce the obligations of the Participant to the Issuer pursuant to Section 10.04 hereof.
ARTICLE XI
EXCESS FUNDS
Section 11.01 Excess Funds. Any amounts remaining in the Trust Estate (as defined in
the Indenture) after (a) full payment of the Bonds or provision for payment thereof so that no
Bonds are deemed outstanding under the Indenture; (b) if a Swap Agreement is in effect, all
payments due or to become due under the Swap Agreement have been paid and (c) all fees,
charges and expenses listed in Section 4.07 and 4.10 of the Indenture have been paid, shall, after
being held for 124 days during which time no Bankruptcy Filing (as defined in the Indenture) has
occurred, after such full payment or provision shall have been made and no claim shall have
been made thereon, shall be rebated by the Trustee to the Participant.
ARTICLE XII
MISCELLANEOUS
Section 12.01 Notices. All notices, certificates or other communications hereunder shall
be sufficiently given and shall be deemed given when hand delivered or mailed by registered or
certified mail, postage prepaid, to the parties at the following addresses:
The Issuer: Florida Intergovernmental Finance Commission
c/o Dunlap & Associates Group, Inc.
1211 E. Semoran Boulevard, Suite 115
Casselberry, Florida 32801
The Participant: City of Aventura, Florida
Government Center
19200 W. Country Club Drive, 5th Floor
A ventura, Florida 33180
Attention: Director of Finance
The Administrator: Dunlap & Associates Group, Inc.
1211 E. Semoran Boulevard, Suite 115
Casselberry, Florida 32801
The Trustee: SunTrust Bank
225 East Robinson Street, Suite 250
Orlando, Florida 32801
Attention: Lisa Derryberry
Moody's: Moody's Investors Service, Inc.
99 Church Street
I\MIA-SR VO 1 11397307v0217 /11/02\46245.010300
33
New York, New York 10007
Attention:
Underwriter:
J.P. Morgan Securities, Inc.
390 North Orange Avenue, Suite 1850
Orlando, Florida 32801
Insurer:
Any of the above parties may, by notice in writing given to the others, designate any further or
different addresses to which subsequent notices, certificates or other communications shall be
sent.
Section 12.02 Binding Effect. This Loan Agreement shall inure to the benefit of and
shall be binding upon the Issuer and the Participant and their respective successors and assigns.
Section 12.03 Severability. In the event any provision of this Loan Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
Section 12.04 Amendments, Changes And Modifications. This Loan Agreement and
the Participant Notes may be amended by the Issuer and the Participant as provided in Article
XII of the Indenture; provided that no amendment adverse to the Insurer may be effected without
the prior written consent of the Insurer.
Section 12.05 Execution in Counterparts. This Loan Agreement may be
simultaneously executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
Section 12.06 Applicable Law. This Loan Agreement shall be governed by and
construed in accordance with the law of the State of Florida.
Section 12.07 Benefit of Bondholders; . Compliance With Indenture. This Loan
Agreement is executed in part to induce the purchase by others of the Bonds. All covenants,
agreements and representations on the part of the Participant and the Issuer, as set forth in this
Loan Agreement, are hereby declared to be for the benefit of the holders from time to time of the
Bonds, and for the benefit of the Insurer, the Swap Counterparty, if any, each as a third party
beneficiary hereunder with full right, power and authority to enforce such covenants, agreements
and representations directly, except as otherwise provided in the Indenture with respect to the
rights of Bondholders. The Participant covenants and agrees to do all things within its power in
order to comply with and to enable the Issuer to comply with all requirements and to fulfill and
to enable the Issuer to fulfill all covenants of the Indenture and the Swap Agreement, if any.
l\MlA.SRVO 1 11J97307v0217 /11/02\46245.010300
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Section 12.08 Consents And Approvals. Whenever the written consent or approval of
the Issuer shall be required under the provisions of this Loan Agreement, such consent or
approval may be given by the Chairman or Vice Chairman of the Issuer or such other additional
person provided by law or by rules or regulations of the Issuer.
Section 12.09 Immunity of Officers, Employees And Members of Issuer And
Participant. No recourse shall be had for the payment of the principal of or premium or interest
on the Participant Notes or for any claim based thereon or upon any representation, obligation,
covenant or agreement in this Loan Agreement against any past, present or future officer,
member, employee, director or agent of the Issuer or the Participant, respectively, of any
successor public or private corporation thereto, as such, either directly or through the Issuer or
the Participant, respectively, any successor public or private corporation thereto under any rule
of law or equity, statute or constitution or by the enforcement of any assessment or penalty or
otherwise, and all such liability of any such officers, members, employees, directors or agents as
such is hereby expressly waived and released as a condition of and consideration for the
execution of this Loan Agreement and the issuance of the Participant Notes.
Section 12.10 Captions. The captions or headings in this Loan Agreement are for
convenience only and in no way define, limit or describe the scope or intent of any provisions or
sections of this Loan Agreement.
Section 12.11 Pecuniary Liability of Issuer. No provlSlon, covenant or agreement
contained in this Loan Agreement on behalf of the Issuer, or any obligation herein imposed upon
the Issuer, or the breach thereof, shall constitute an indebtedness or liability of the State or any
governmental entities of the State or any public corporation or governmental agency existing
under the laws thereof other than the Issuer. In making the agreements, provisions and covenants
set forth in this Loan Agreement, the Issuer has not obligated itself except with respect to the
application of the revenues, income and all other property as derived herefrom, as hereinabove
provided.
Section 12.12 Payments Due on Holidays. If the date for making any payment or the
last date for performance of any act or the exercise of any right, as provided in this Loan
Agreement, shall be a day other than a Business Day, such payments may be made or act
performed or right exercised on the next Business Day with the same force and effect as if done
on the nominal date provided in this Loan Agreement.
Section 12.13 Right of Others to Perform Participant's Covenants. In the event the
Participant shall fail to make any payment or perform any act required to be performed
hereunder, then and in each such case the Issuer, the Swap Counterparty, if any, or the Trustee
may (but shall not be obligated to) remedy such default for the account of the Participant and
make advances for that purpose. No such performance or advance shall operate to release the
Participant from any such default and any sums so advanced by the Issuer, the Swap
Counterparty, if any, or the Trustee shall bear interest from the date of the advance until repaid
as provided herein. The Administrator, the Swap Counterparty, if any, or the Trustee shall have
the right to enter the Participant's premises in order to effectuate the purposes of this Section.
l\MlA.SRVOl 11397307v02\7/11/02146245.0 10300
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ARTICLE XIII
CONTINUING DISCLOSURE
Section 13.01 Continuing Disclosure Requirements. The Participant shall provide
such continuing disclosure information as may be necessary to enable the Issuer to comply with
the provisions of Rule 15(c)2-12 (the "Rule") of the United States Securities and Exchange
Commission, in the form and at the times required by the Rule in accordance with this Article
XIII.
Section 13.02 Defmitions. For purposes of this Article XlII, the following terms shall
have the definitions provided in this Section 13.02.
"Annual Determination Date" shall mean the last day of each Fiscal Year.
"Annual Report" shall mean any Annual Report provided by the Participant pursuant to,
and as described in, Sections 13.03 and 13.04 hereof or provided by the Participant as an
Obligated Person with respect to the Bonds.
"Beneficial Owner" shall mean any person which (a) has the power, directly or indirectly,
to vote or consent with respect to, or to dispose of ownership of, any Bonds (including persons
holding Bonds through nominees, depositories or other intermediaries), or (b) is treated as the
owner of any Bonds for federal income tax purposes.
"Dissemination Agent" shall mean initially, the Trustee, and thereafter the Participant or
any successor Dissemination Agent designated in writing by the Issuer and which has filed with
the Issuer a written acceptance of such designation.
"Fiscal Year" shall mean the period commencing on October 1 of each year and
continuing through the next succeeding September 30, or such other period as may be prescribed
bylaw.
"Listed Events" shall mean any ofthe events listed in Section 13.05 hereof.
"National Repository" shall mean any Nationally Recognized Municipal Securities
Information Repository for purposes of the Rule. The National Repositories currently approved
by the Securities and Exchange Commission may be obtained at any time at the SEC's Web site
at http://www.sec.gov/consumer/nrmsir.htm.
"Obligated Person" shall mean .the Participant.
"Repository" shall mean each National Repository and each State Repository.
\\MlA-SRVO 1 \1J97307v02\ 7 /11/02\46245.010300
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"Rule" shall mean Rule 15c2-12(b)(5) adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as the same may be amended from time
to time.
"State Repository" shall mean any public or private repository or entity designated by the
State as a state repository for the purpose of the Rule and recognized as such by the Securities
and Exchange Commission. As of the date of this Article XlII, there is no State Repository.
Section 13.03 Annual Reports.
(a) The Participant shall, or shall cause the Dissemination Agent to, not later than the
date which shall be 90 days after the end of the Participant's Fiscal Year (presently September
30), provide to each Repository and the Insurer an Annual Report which is consistent with the
requirements of Section 13.04 hereof. The Annual Report may be submitted as a single
document or as separate documents comprising a package, and may cross-reference other
information as provided in Section 13.04(b) hereof; provided that the audited financial
statements of the Participant may be submitted separately from the balance of the Annual Report
and later than the date required above for the filing of the Annual Report if they are not available
by that date. Not later than fifteen (15) business days prior to said date, the Participant shall
provide the Annual Report to the Dissemination Agent (if other than the Participant). If the
Participant's audited financial statements are not available by the time the Annual Report is
required to be filed pursuant to this Section 13.03(a), the Annual Report shall contain unaudited
financial statements in a format similar to the Participant's audited financial statements, and the
audited financial statements shall be filed in the same manner as the Annual Report when they
become available. If the Participant's Fiscal Year changes, it shall give notice of such change in
the next Annual Report filed by the Participant, and the Participant shall send a notice to (i) each
National Repository or the Municipal Securities Rule Making Board, (ii) the State Repository
and (iii) the Insurer.
(b) The Dissemination Agent shall:
i. determine each year prior to the date for providing the Annual Report the
name and address of each National Repository and the State Repository, if any; and
ii. if the Dissemination Agent is other than the Participant, file a report with
the Participant certifYing that the Annual Report has been provided pursuant to this
Article XIII, stating the date it was provided and listing all the Repositories to which it
was provided.
Section 13.04 Contents of Annual Reports. The Participant's Annual Report shall
contain or include by reference the following:
(a) The audited financial statements of the Participant for the prior Fiscal Year,
prepared in accordance with generally accepted accounting principles as promulgated to apply to
governmental entities from time to time by the Governmental Accounting Standards Board.
l\MlA-SRVO 1 11397307v02\7 /11/02\46245.010300
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(b) An update of the fmancial information and operating data of the type found in the
Official Statement dated August [ ], 2002, for the Bonds.
(c) If the Participant's obligations under this Article XIII shall have terminated,
notice of such termination.
An update of the financial information and operating data may be included by specific
reference to other documents which have been submitted to each of the Repositories or the
Securities and Exchange Commission. If the document included by reference is a final official
statement, remarketing circular or remarketing supplement, it must be available from the
Municipal Securities Rulemaking Board. The Participant shall clearly identifY each such other
document so included by reference. An update of the financial information and operating data
may be satisfied by providing a copy of the Participant's comprehensive annual financial report
to the extent the information presented therein complies with the requirements of this Section
13.04.
Section 13.05 Reporting of Significant Events
(a) Pursuant to the provisions of this Section 13.05, the Participant shall give, or
cause to be given, notice of the occurrence of any of the following events with respect to the
Bonds, if material:
1.
principal and interest payment delinquencies;
2.
nonpayment related defaults;
3.
modifications to rights of Bondholders;
4.
optional, contingent or unscheduled bond calls;
5.
defeasances;
6.
rating changes;
7.
Bonds;
adverse tax opinions or events affecting the tax-exempt status of the
8. unscheduled draws on debt servIce reserves reflecting financial
difficulties;
9. unscheduled draws on credit' enhancements reflecting financial
difficulties;
10. substitution of credit or liquidity providers, or their failure to perform;
11. release, substitution or sale of property securing repayment of the Bonds.
\\MlA-SRVO 1 \1397307v02\ 7/11/02\46245.010300
38
(b) Whenever the Participant obtains knowledge of the occurrence of a Listed Event,
because of a notice from the Trustee or otherwise, the Participant shall as soon as possible
determine if such event would be material under applicable federal securities laws.
(c) If the Participant has determined that knowledge of the occurrence of a Listed
Event would be material under applicable federal securities laws, the Participant shall promptly
prepare the notice of the OCCUrrence of a Listed Event in the form to be filed with the
Repositories, notifY the Dissemination Agent in writing and deliver to the Dissemination Agent
such form of notice to be filed with the Repositories. Such notice shall instruct the
Dissemination Agent to report the occurrence pursuant to Section 13.05(e) below.
(d) If pursuant to Section 13.05(b}, the Participant determines that the Listed Event
would not be material under applicable federal securities laws, the Participant shall so notifY the
Dissemination Agent in writing and instruct the Dissemination Agent not to report the
OCCUrrence pursuant to Section 13.05(e).
(e) If the Dissemination Agent has been instructed by the Participant to report the
occurrence of a Listed Event, the Trustee shall notifY the Dissemination Agent, and the
Dissemination Agent shall file a notice of such OCCUrrence with Repositories and the Insurer with
a copy to the Participant. Notwithstanding the foregoing, notice of Listed Events described in
Section 13.05(a)(4) and (5) need not be given under this subsection any earlier than the notice (if
any) of the underlying event is given to the Holders of affected Bonds pursuant to the Indenture.
Section 13.06 Termination of Reporting Obligations. The Participant's reporting
obligations under this Article XIII shall terminate upon (a) the legal defeasance, prior
prepayment or payment in full of all Outstanding Bonds, (b) the termination of the continuing
disclosure requirements of the Rule by legislative, judicial or administrative action, (c) in the
case of the Dissemination Agent, upon receipt of notice of discharge, or (d) when the Participant
is no longer an Obligated Person. If termination occurs pursuant to clauses (a), (b) or (d) prior to
the final maturity of the Bonds, the Dissemination Agent shall give notice of such termination in
the same manner as required by Section 13.05.
Section 13.07 Dissemination Agent. The Dissemination Agent shall not be responsible
in any manner for the content of any notice or report prepared by the Participant pursuant to this
Article XIII.
Section 13.08 Amendments. Notwithstanding any other provision of this Article XIII,
the Participant may amend this Article XIII, and any provision of this Article XIII may be
waived, provided that the following conditions are satisfied:
(a) If the amendment or waiver relates to the provisions of Sections 13.03, 13.04 or
13.05, it may only be made in connection with a change in circumstances that arises from a
change in legal requirements, change in law, or change in the identity, nature or status of the
Participant, or the type of business conducted;
\\MlA-SRVO 1 11397307v0217 /11/02\46245.010300
39
(b) The undertaking, as amended or taking into account such waiver, would, in the
opinion of nationally recognized Bond Counsel, have complied with the requirements of the Rule
as of August 1, 2002, after taking into account any amendments or interpretations of the Rule, as
well as any change in circumstances; and
(c) The amendment or waiver either (i) is approved by the Holders of the Bonds in
the same manner as provided in the Indenture for amendments to the Indenture with the consent
of Holders, or (ii) does not, in the opinion of nationally recognized bond counsel, materially
impair the interests of the Holders or Beneficial Owners of the Bonds.
(d) In the event of any amendment or waiver of a provision of this Article XIII, the
Participant shall describe such amendment in the next Annual Report, and shall include, as
applicable, a narrative explanation of the reason for the amendment or waiver and its impact on
the type (or in the case of a change of accounting principles, on the presentation) of financial
information or operating data being presented by the Participant. In addition, if the amendment
relates to the accounting principles to be followed in preparing financial statements, (i) notice of
such change shall be given in the Annual Report for the year in which the change is made and
such Annual Report should present a comparison (in narrative form and also, if feasible, in
quantitative form) between the financial statements as prepared on the basis of the new
accounting principles and those prepared on the basis of the former accounting principles.
Section 13.09 Additional Information. Nothing in this Article XIII shall be deemed to
prevent the Participant from disseminating any other information, using the means of
dissemination set forth in this Article XIII or any other means of communication, or including
any other information in any Annual Report, in addition to that which is required by this Article
XlII. If the Participant chooses to include any information in any Annual Report in addition to
that which is specifically required by this Article XIII, the Participant shall have no obligation
under this Article XIII to update such information or include it in any future Annual Report
Section 13.10 Default. In the event of a failure of the Participant to comply with any
provision of this Article XIII the Trustee may (and at the request of the Issuer or the Holders of
at least 25% aggregate principal amount of Outstanding Bonds, shall), or the Issuer or any
Holder or Beneficial Owner of the Bonds may, take such actions as may be necessary and
appropriate, including seeking mandamus or specific performance by court order, to cause the
Participant to comply with its obligations under this Article XIII; provided, however, the sole
remedy under this Article XIII in the event of any failure of the Participant to comply with this
Article XIII shall be an action to compel performance. A default under this Article XIII shall not
be deemed an Event of Default under the Indenture or the Participant Loan Agreement.
Section 13.11 Duties, Immunities and Liabilities of Dissemination Agent. The
Dissemination Agent shall have only such duties as are specifically set forth in this Article XIII,
and the Participant agrees to indemnifY and save the Dissemination Agent, its officers, directors,
employees and agents, harmless against any loss, expense and liabilities which it may incur
arising out of or in the exercise or performance of its powers and duties hereunder, including the
costs and expenses (including attomeys' fees) of defending against any claim of liability, but
excluding liabilities due to the Dissemination Agent's negligence or willful misconduct. The
\\MlA-SRVO 111397307v02\7/l1/02\46245.0 10300
40
obligations of the Participant under this Section 13.11 shall survive resignation or removal of the
Dissemination Agent and the termination of the obligations of the Participant under this Article
XIII.
Section 13.12 Beneficiaries.. This Article XIII shall inure solely to the benefit of the
Issuer, the Participant, the Dissemination Agent and Holders and Beneficial Owners from time to
time of the Bonds, and shall create no rights in any other person or entity.
[SIGNATURE PAGES FOLLOW THIS PAGE]
\\MIA-SRVO] 11397307v0217 /11/02146245.010300
41
IN WITNESS WHEREOF, the Florida Intergovernmental Finance Commission has
caused this Loan Agreement to be executed in its name with its seal hereunto affixed and attested
by its duly authorized officers, and the City of A ventura, Florida, has caused this Loan
Agreement to be executed in its name with its seal hereunto affixed and attested by its duly
authorized officers. All of the above occurred as of the date first above written.
FLORIDA INTERGOVERNMENTAL
FINANCE COMMISSION,
As Issuer
By:
Alan J. Polin, Chairman
Attest:
DUNLAP & ASSOCIATES GROUP, INC.
As Program Administrator
By:
Craig Dunlap, President
CITY OF A VENTURA, FLORIDA
(Seal)
ATTEST
By:
Eric M. Soroka, City Manager
Teresa M. Soroka,
City Clerk
Approved as to form
and sufficiency.
Weiss, Serota & Helfman, P.A.
City Attorney
l\MlA-SRVO 1 11397307v02\7 /11102146245.010300
42
EXHIBIT A
PROJECT DESCRIPTION
DESCRIPTION OF PROJECT
Loan A
Acquisition of site for K-5 charter elementary school
Loan B
Acquisition, construction and equipping of an approximately 44,000
square foot K-5 charter elementary school
Loan C
Completion of the construction and equipping of an approximately
25,000 square foot community/recreation center
\\MlA.SR VO 1 \l397307v02\7 /11/02\46245.010300
A-1
COST
$4,600,000
$6,481,000
$ 900,000
l\MlA-SR VO I 11397307v0217 /11/02\46245.010300
SCHEDULE
A-2
EXHIBIT B
FORM OF NOTE
LOAN [A][B][C]
$ [PRINCIP AL AMOUNT]
August _' 2002
FOR VALUE RECEIVED, the undersigned, the City of Aventura, Florida (the
"Participant") promises to pay to the order of the Florida Intergovernmental Finance
Commission (the "Issuer"), or its successors and assigns, solely from the sources hereinafter
described a principal sum equal to the Initial Amount set forth above, with interest on the
principal sum solely from such sources at the Participant Rate defined in the Loan Agreement
and determined pursuant to Section 5.04(d) of the Indenture on the unpaid balance until paid, all
in accordance with, and subject to, the provisions of Article V of the Loan Agreement dated as of
August 1, 2002 (the "Loan Agreement"), by and between the Issuer and the Participant. All loan
payments shall be payable in immediately available funds at the designated corporate trust office
of SunTrust Bank (the "Trustee"). Principal installments and interest payments shall be paid (a)
during any period when the Issuer is not obligated to make variable rate payments under a Swap
Agreement, fifteen (15) days prior to each Interest Payment Date and (b) during the period when
the Issuer is obligated to make variable rate payments under a Swap Agreement, fifteen (15) days
prior to the first day of each month (each a "Loan Repayment Date"). All capitalized terms used
herein but not otherwise defined herein shall have the definition given them in the Loan
Agreement.
The principal of this Note shall be payable in the amounts and on the dates as set forth on
Schedule II (the "Schedule of Principal Installments") attached hereto. The Trustee shall notifY
the Participant on or before the second Business Day preceding each Loan Repayment Date of
the amount of interest owed hereunder to but excluding such Loan Repayment Date. During the
period when the Issuer is obligated to make variable rate payments under a Swap Agreement,
such amount shall be calculated by the Trustee as set forth in Section 5.04(d) of the Indenture.
As provided in Section 5.01(d) of the Loan Agreement, all payments of interest shall be
deposited by the Trustee into the Interest Account of the Bond Fund established under the
Indenture and all payments of principal shall be deposited by the Trustee in the funds and
accounts as provided in the Indenture, to be used by the Participant or otherwise applied, all in
accordance with the Indenture. Repayments or Prepayments of the principal amount of this Note
shall be held and applied, and shall be given the effect, only as provided in the Indenture and the
Loan Agreement. Participant hereby acknowledges that the Initial Amount has been funded on
behalf of the Participant by the issuance of the Florida Intergovernmental Finance Commission
Revenue Bonds, 2002 Series A (the "Bonds"), and further acknowledges that until certain
conditions are satisfied as provided in the Indenture with respect to the Bonds, principal
Repayments and any Prepayments of principal shall not relieve the Participant of responsibility
for all obligations relating to the Initial Amount of this Note unless the same shall have been
used to redeem the Bonds, as provided in the Indenture.
1\MlA-SRVO 1 11397307v0217 /11/02\46245.010300
B-3
An amount equal to the entire Initial Amount, to the extent Repayments of principal have
not already been made by the Participant, shall be fully due and payable fifteen (15) days (or if
such day is not a Business Day on the next preceding Business Day) prior to [ 1 1,
2032. Unpaid interest which shall have accrued through the last day of a Loan Payment Period
(as defined in the Loan Agreement) preceding the Loan Repayment Date shall be calculated at
the Participant Rate defined in the Loan Agreement, unless otherwise provided in the next
succeeding sentence. Notwithstanding the foregoing sentence, if (i) any payment of principal
and interest (a "Principal and Interest Payments") due hereunder shall not be paid within ten (10)
calendar days of the Loan Repayment Date, accrued but unpaid interest on the principal portion
of said Principal and Interest Payments shall be calculated at the Default Rate (as defined in the
Loan Agreement) or (ii) if all Principal and Interest Payments are declared to be immediately due
and payable, accrued but unpaid interest on the outstanding principal amount of this Note shall
be calculated at the Default Rate.
The Participant shall have the right to prepay the principal amount hereof, in accordance
with the terms and conditions set forth in Section 8.01 of the Loan Agreement and upon payment
of interest due on the amount prepaid. No prepayment hereunder shall operate to discharge the
Participant from its liability for the principal amount hereof until such time as the conditions set
forth in Section 3.06(a) of the Loan Agreement have been satisfied.
All payments hereon shall be applied first to accrued interest then payable and then to the
installments of principal due hereunder in inverse order of maturity, as provided in the Loan
Agreement.
This Note is a limited obligation of the Participant issued pursuant to, payable solely
from the Non-Ad Valorem Revenues as provided in, and subject to the limitations of, the Loan
Agreement, the terms and provisions of which, including those in connection with default by the
Participant, are incorporated herein by reference. The obligations of the Participant hereunder
are set forth in the Loan Agreement. Pursuant to the Loan Agreement, the Participant has
covenanted to budget and appropriate funds from certain N on-Ad Valorem Revenues sufficient
to pay such amounts due hereon, all in the manner, and subject to the limitations, provided in the
Loan Agreement. The acceptance of this Note by the holder from time to time hereof shall be
deemed an agreement between the Participant and such holder that the obligation to pay the
amounts due hereunder, including without limitation all additional amounts due under the Loan
Agreement, shall not constitute a lien upon any property, funds or revenues of the Participant or
a pledge of the faith, credit or taxing power of the Participant, but shall instead be a limited and
special obligation of the Participant payable only from the sources, and in the manner, provided
in the Loan Agreement.
The Participant hereby waive~ presentment for payment, demand, protest and notice of
dishonor.
\\MlA-SRVO 1\1397307v02\7/11/02\46245.0 10300
B-4
This Note and all instruments securing the same are to be construed according to the law
of the State of Florida.
Signed and sealed this _ day of August, 2002, effective as of August _, 2002.
CITY OF A VENTURA, FLORIDA
(Seal)
By:
Eric M. Soroka, City Manager
ATTEST
Teresa M. Soroka,
City Clerk
Approved as to form
and sufficiency.
Weiss, Serota & Helfman, P.A.
City Attorney
[Signature page to Note of Aventura, Florida for
Florida Intergovernmental Finance Commission]
\\MlA-SRVO 1 11397307v02\7 /11/02\46245.010300
B-5
ENDORSEMENT
FOR VALUE RECEIVED, the Florida Intergovernmental Finance Commission (the
"Issuer") hereby sells, assigns and transfers this Note unto SunTrust Bank (the "Trustee"), as
trustee under that certain Trust Indenture, dated as of August 1, 2002, and by and between the
Issuer and the Trustee, this Note to be held by the Trustee under the terms and conditions set
forth in the Indenture and constitute a part of the Series A Trust Estate, as defined therein.
FLORIDA INTERGOVERNMENTAL
FINANCE COMMISSION,
As Issuer
By:
Alan J. Polin, Chairman
\\MlA-SRVO 1\1397307v02\7 /11/02\46245.010300
B-6
SCHEDULE I
SCHEDULE OF DISBURSEMENTS
\\MlA-SRVO 1 11397307v02\7 /11102\46245.010300
B-7
SCHEDULE II
SCHEDULE OF PRINCIPAL INSTALLMENTS
\\MlA-SRVOl \1397307v02\7 /11102\46245.010300
B-8
EXHIBIT C
CERTIFICATE OF PARTICIPANT
IN CONNECTION WITH LOAN TO FINANCE PROJECT
I, the undersigned Eric M. Soroka, City Manager of the City of Aventura, Florida (the
"Participant") and the undersigned Teresa M. Soroka, City Clerk of the Participant, do hereby
certifY and covenant as follows:
1. The undersigned, Eric M. Soroka, is the duly appointed, qualified and acting City
Manager of the Participant and the undersigned, Teresa M. Soroka, is the duly appointed,
qualified and acting City Clerk of the Participant and such officials are familiar with and have
access to the books and corporate records of the Participant.
2. The persons named below are the duly appointed or elected and qualified Mayor
and Members of the City Commission of the Participant and are presently serving the terms
which commenced and which will expire as indicated to the right of their respective names:
Name
Date of Commencement
of Terffi
Date of Expiration
of Term
Jeffrey M. Perlow, Mayor
Arthur Berger
Jay R. Beskin
Ken Cohen
Harry Holzberg
Manny Grossman
Patricia Rogers-Libert
March 21, 2001
March 17, 1999
March 21, 2001
March 21,2001
March 17,1999
March 21, 2001
March 17, 1999
March 16,2005
March 20, 2003
March 16,2005
March 16, 2005
March 20, 2003
March 16, 2005
March 20, 2003
3. The persons set forth in Exhibit A attached hereto are the duly elected or
appointed and qualified officers of the Participant holding the office stated opposite their
respective names and the signatures appearing on said Exhibit A are genuine signatures of said
officers.
4. The City Manager and City Clerk of the Participant by their manual signatures
duly executed and attested the execution of the Loan Agreement (the "Loan Agreement") dated
as of August 1, 2002, by and between Participant and the Florida Intergovernmental Finance
Commission (the "Issuer").
5. The information in the Preliminary Official Statement and the Official Statement
relative to the Participant does not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading;
6. The first Tuesday of every month is the regular meeting date of the Participant,
said meetings to commence at 6:00 p.m. All meetings of the City Commission of the Participant,
including meetings at which action was taken with respect to the Loan Agreement, have been
open to the public in accordance with the provisions of Section 286.011, Florida Statutes.
7. All approvals required to be obtained by the Participant in connection with the
execution of the Loan Agreement have been obtained and are in full force and effect as of the
date hereof.
8. Any certificate signed by any officer of the Participant delivered to the Issuer
shall be deemed a representation of the Participant to the Issuer as to the statements made
therein.
9. The seal affixed to this certificate and the Loan Agreement is the official seal of
the Participant.
IN WITNESS WHEREOF, the undersigned have hereunto set the official seal of the
Participant and their signatures as of_day of August, 2002.
CITY OF A VENTURA, FLORIDA
By:
Eric M. Soroka
City Manager
(SEAL)
By:
Teresa M. Soroka,
City Clerk
Approved as to form
and sufficiency.
Weiss, Serota & Helfman, P.A.,
City Attorney
EXHIBIT A TO THE CERTIFICATE OF PARTICIPANT
OFFICERS OF
CITY OF A VENTURA, FLORIDA
NAME
OFFICE
Jeffrey M. Perlow
Eric M. Soroka
Harry Kilgore
Teresa M. Soroka
Mayor
City Manager
Director of Finance
City Clerk
SIGNATURE
EXHffiIT D
REQUEST FOR ADVANCE
The undersigned, the duly authorized of City of A ventura,
Florida (the "Participant"), submits this Request for Advance on behalf of the Participant for
$ pursuant to Section 3.02 of that certain Loan Agreement by and between the Florida
Intergovernmental Finance Commission (the "Issuer") and the Participant dated as of August 1,
2002 (the "Loan Agreement"), and relating to the Issuer's Municipal Loan Program (the
"Program"). The Trustee shall disburse the amount requested herein to
[list parties, including Participant and provide mailing address (or wire instructions)] for the
following purpose[s]:
"Equipment").
(the
Attached hereto as composite Exhibit A are certain documents which, among other things,
verifies that the amount requested herein does not exceed the Cost (as defined in the Loan
Agreement) paid or incurred by the Participant for such Equipment prior to the disbursement of
the funds requested herein and, when disbursed, the total amount disbursed to such Participant
pursuant to Section 3.02 of the Loan Agreement does not exceed the Participant's Loan amount
set forth in Section 3.01 of the Loan Agreement unless a writing has been attached hereto signed
by the Administrator stating that the Participant is eligible for such amount.
The undersigned, on behalf of the Participant, hereby certifY that:
1. The Project (as described herein and in Exhibit A) has been purchased,
constructed or installed by the Participant and payment therefore is due and owing or has been
previously paid by Participant.
2. To the extent amounts, if any, requested herein are being used to reimburse the
Participant for Equipment previously purchased, such Equipment was purchased by the
Participant no earlier than sixty (60) days prior to the adoption of Resolution No. 2002-16 on
March 5, 2002, and evidence of the purchase thereof is contained in Exhibit A attached hereto.
3. The Participant is a governmental entity validly existing and in good standing
under the laws of the State of Florida, with full power and authority to own its properties and
conduct its business as presently owned and conducted and, to the best of our knowledge, after
due inquiry, is not in violation of any laws material to the transactions contemplated by the Loan
Agreement, this Request for Advance, or any provisions of law material to the transactions
\\MlA-SRVO 1 11397307v02\7 /11/02\46245.010300
D-1
contemplated by the Loan Agreement and this Request for Advance, and has all requisite power
and authority to execute and deliver this Request for Advance.
4. The Participant has obtained all necessary permits, licenses and certifications to
continue the conduct of its operations and to undertake the actions which will be financed from
the funds to be disbursed hereunder.
5. The Loan Agreement and the Participant Notes (as defined in the Loan
Agreement) are in full force and effect and continue to be valid, enforceable and legally binding
obligations of the Participant, enforceable in accordance with their respective terms, except to
the extent that the enforceability thereof may be limited by laws relating to bankruptcy,
insolvency or other similar laws affecting creditors' rights generally and the Participant has
received all consents, approvals and authorizations of governmental authorities or agencies
required for incurring the debt represented by such documents, including amounts which will
become outstanding pursuant to this Request for Advance, and/or the continued performance of
such documents.
6. There is no litigation or legal or governmental action, proceeding, inquiry or
investigation pending or, to the best knowledge of the undersigned after due inquiry, threatened
by governmental authorities to which the Participant is a party or of which any property of the
Participant is subject which, if determined adversely to the Participant, individually or in
aggregate (i) affect the validity or enforceability of the Loan Agreement or the Participant Notes
(as defined in the Loan Agreement) or (ii) otherwise materially and adversely affect the ability of
the Participant to comply with its obligations under the Loan Agreement or the Participant Notes
(as defined in the Loan Agreement).
7. The representations and warranties of the Participant set forth in the Loan
Agreement are true and COrrect on the date hereof; and the Participant is in compliance with all
terms, covenants and conditions of the Loan Agreement on the date hereof.
8. The Participant does not plan to use, or permit the use of, the Project except as
permitted by the Loan Agreement.
\\MlA-SRVO 1 \1397l07v02\ 7 /11/02\46245.010300
D-2
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and affixed
the seal of the Participant, duly attested this day of , 2002 and effective as of
,2002.
CITY OF A VENTURA,
FLORIDA
[SEAL]
By:
Eric M. Soroka, City Manager
Attest:
By:
Teresa M. Soroka,
City Clerk
cc: Administrator
\\MlA-SRVO 1\1397307v02\ 7 /11/02\46245.010300
D-3
EXHIBIT E
OPINION OF PARTICIPANT'S COUNSEL
[Letterhead of Counsel to Participant]
August_, 2002
Florida Intergovernmental Finance
Commission
Orlando, Florida
SunTrust Bank
Orlando, Florida
Mayor and City Commission of
the City of A ventura, Florida
Ladies and Gentlemen:
We are counsel to the City of Aventura, Florida (the "Participant"), and have been
requested by the Participant to give this opinion in connection with the loan by the Florida
Intergovernmental Finance Commission (the "Issuer") to the Participant of funds to finance or
refinance or reimburse the Participant for all or a portion of the cost of a certain Project (the
"Project") as defined in, and as described in Exhibit A of, the Loan Agreement, dated as of
August 1, 2002 ,(the "Loan Agreement"), between the Issuer and the Participant.
In this connection, we have reviewed such records, certificates and other documents as
we have considered necessary or appropriate for the purposes of this opinion, including
applicable laws, local applicable Charters and ordinances enacted by the City Commission of the
Participant, the Loan Agreement, a Trust Indenture dated as of August 1, 2002 (the "Indenture")
between the Issuer and SunTrust Bank, as trustee (the "Trustee") and Resolution No.
adopted by the Participant on July 18,2002 (the "Resolution"). Based on such review, and such
other considerations oflaw and fact as we believe to be relevant, we are of the opinion that:
(a) The Participant is a municipality duly organized and validly existing under the
Constitution and laws of the State of Florida and under the provisions of the Constitution and
laws of the State of Florida. The Participant has the legal right and all requisite power and
authority to enter into the Loan Agreement, to adopt the Resolution and to consummate the
transactions contemplated thereby and otherwise to carry on its activities and own its property.
(b) The Participant has duly adopted the Resolution and duly authorized, executed
and delivered the Loan Agreement and each is a legal and binding obligation of the Participant
enforceable against the Participant in accordance with its terms, except to the extent that the
\\MlA-SRVO 1\1397307v02\7 /11/02\46245.010300
D-4
enforceability hereof may be subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights heretofore or hereafter enacted and that their
enforcement may be subject to the exercise of judicial discretion in accordance with general
principles of equity, and to the sovereign police powers of the State of Florida and the
constitutional powers of the United States of America.
(c) The Participant has duly covenanted in the Loan Agreement to make the Loan
Repayments from its Non-Ad Valorem Revenues in accordance with the provisions of the Loan
Agreement and such covenant is legally valid and binding.
(d) The execution and delivery of the Resolution, the Loan Agreement and the Note,
the consummation of the transactions contemplated thereby, the purchase or construction of the
Project or the reimbursement for costs of the acquisition or construction thereof or the
refinancing of the indebtedness to be refinanced with the proceeds of the loan and the fulfillment
of or compliance with the terms and conditions of the Loan Agreement does not and will not
conflict with or result in a material breach of or default under any of the terms, conditions or
provisions of any agreement, contract or other instrument, or law, ordinance, regulation, or
judicial or other governmental order, to which the Participant is now a party or it or its properties
is otherwise subject or bound, and the Participant is not otherwise in violation of any of the
foregoing in a manner material to the transactions contemplated by the Loan Agreement.
(e) There is no litigation or legal or governmental action, proceeding, inquiry or
investigation pending or, to the best of our knowledge, threatened by govemmental authorities or
to which the Participant is a party or of which any property of the Participant is subject, which
has not been disclosed in writing to the Issuer and which, if determined adversely to the
Participant, would individually or in the aggregate materially and adversely affect the validity or
the enforceability of the Loan Agreement or the Note.
We are attorneys admitted to practice law only in the State of Florida and express no
opinion as to the laws of any other state and further express no opinion as to the status of interest
on the Bonds under either Federal laws or the laws of the State of Florida.
Very truly yours,
\\MlA-SRVO 1 \1397307v02\7 /11/02\46245.010300
E-5
EXHIBIT F
NOTICE OF FAILURE TO FILE ANNUAL REPORT
Name of Participant:
City of A ventura, Florida
Name of Bond Issue:
Florida Intergovernmental Finance Commission, Capital Revenue
Bonds, 2002 Series A, dated as of August 1,2002
Date ofIssuance:
August _, 2002
NOTICE IS HEREBY GIVEN that the Participant has not provided an annual report with
respect to the above-referenced Bonds as required by Sections 13.03 and 13.04 of the Loan
Agreement dated as of August 1, 2002, between the Florida Intergovernmental Finance
Commission and the Participant executed and delivered by the Participant in connection with the
loan of a portion of the proceeds of the Bonds to the Participant. The Participant anticipates that
the annual report will be filed by
Dated:
By:
Its:
\\MlA-SRVO 1 \1397307v02\7 /11/02\46245.010300
F-1
MIAMI DAILY BUSINESS REVIEW
Published Daily except Saturday, Sunday and
Legal Holidays
Miami, Miami-Dade County, Rorida
STATE OF FLORIDA
COUNTY OF MIAMI-DADE:
Before the undersigned authority personally appeared
av. FERBEYP.E, who en oath says that he or she is the
SUPERVISOR, Legal Notices of the Miami Daily Business
Review flk/a ~iami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspaper, published at Miami in Miami-Dade
C~unty, Florida; that the attached copy of advertisement,
being a Legal Advertisement 01 Notice in the matter of
CITY OF AVENTURA
NOTICE OF PROPOSED ORDINANCE
in the XXXX Court
was published in said newspaper in the issues of
07/05/2002
Affiant further says that the said Miami Daily Business
Review is a newspaper published at Miami in said Miami-Dade
County, Florida and that the said newspaper has
her~tofore been continuously published in said Miami.Dade County,
Flonda, each day (except Saturday, Sunday and Legal Holidays)
and has been entered as second class mail matter at the post
office in Miami in said Miami-Dade County, Florida, for a
period of one year next preceding the first publication of the
attached copy of advertisement; and affiant further says that he or
she h~s neither paid nor promised any person, firm or corporation
any dIscount, rebate, commission or refund for the purpose
of securing this a ertise r publication in the said
newspaper.
(SEAL)
OV. FERBEYRE perso
-
"-:tii'ii::::' MARIA I. MESA
Jjp~.' "'w. tbl'lrl<PMMiSS!ON I.CG 88564.J
t!" : i EXPIRES: March 4. 2004
~-:.r.~'"" .~~ BondedThruNoIafypub\icUnderwriler5
;.m"..
CITY OF AVENTURA ,
PUIILIC NOTICE OF PROPOSED ORDINANCE :
NOTICE IS HEREBY GIVEN thai on Thursday, the 18th day 01 July,
2002, at a meeting of the CitY Commission of the City of Aventura, to be ,
held at 9:30 8.m. in the Executive Conference Room at Aventura Govern-
ment center, 19200 West Counlry Club Drive, Avenlura, Florida, tho City i
com~ will consider the adoption of the lo/Iowing Ordinances on 1
crAN\fVt RUlirfil1Q Afl1itI8d:....._ _~~___ _ _ ____~ j
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
AUTHOAtZJNG THE ISSUANCE OF NOT TO EXCEED
$13,000,000 IN AGGReGATE PRINCIPAL AMOUNT OF OBLI-
GATIONS OF THE CITY TO FINANCE AND/OR REIMBURSE
COSTS RELATING to THE SITE ACQUISITION, CON-
STRUCTION AND eOUIPPlNG OF A K-5 CHARTER ELEMEN-
TARY SCHOOL AND TilE CoMPLETION OF A COMMUNITY
RECREATION CENTER AND TO PAY COSTS AND EXPENS-
ES OF ISSUING SUCH OBLIGATIONS: PROVIDING FOR A
COVENANT TO BuDGET AND APPROPRIATE LEGALLY
AVAILABLE NON-AD VAlOREM FUIlDf.. EACH YEAR TO
PAY THE PRINCIPAL OF, REDellPTlO.l! 'REut\JM,IF ANY,
AND INTEREST ON THe OBL~TlONS; PROVIDING FOR
THE RIGHTS OF THE HDliDERS OF SUCH OBLIGATIONS;
PROVIDING SEVERAMAND AN EFFl!CTIVE DATE:
AN ORDINANCE OF THEii COMIIJSSION OF THE CITY
OF AVENTURA, FLOlIID . AMENilING ORDINANCE NO.
2001-13, WHK:H ORDINA ce ADOPTED A BUDGET. FOR
THE 200112002 FISCAL Y R BY REVISING THE 200112002
FISCAL YEAR OPERATING AND CAPITAL I5UIIGI!T AS
OUTLIIII!D IN EllHHlI1! .A~ AtTACHED HERETO; AUTHoR-
IZING THE CITY M~$ TO DO AU. THlNGSNBCES-
SARY TO CARRY OUT TlIE AIMS OF THIS OlID1NANCE:
PROVIDING FOR AN EFFECTive DATE ,
The proposed Ordinances mat be ilspected by the public al the Office ..
of tha City Clerk, 19200 WOl'I Cwntiy Club Drive, Aventura, Aorida. In. .
lerestedparties may appeal lIltlle Public Hearing and be heard will1 re-:
spact 10 the proposed OrdinanCe, Any person wishing 10 address the City
,Commission on any item at flj$ Ftublic Hearing may do so after the Mayor
opens the public hearing. I
In accordance with the Americjlns with Disabilities N;I. of 1990, sll par-
sons who are disabled and wHo lleed specIsJ accommodations to partlcl-
pateln this proceedinll becaIJ... ,I Ihat disability should contact Ihe Office
01 lhe City Clerk. 305-466-8llO1, rot later than two business days prior 10
suen proceedings. I
i
II a person decides to appeal
sion with respect to any maltftr
person wMI need. rec;ord <*1118
need to ensure that a vertJatifJll r
record includeSlhe testl"""'Y'
be baseet I
Y decision made by tha City Commis-
nslderecl at a meeting or h~aring, that
.ngs and. for such purpose, may
of the proceedings Is made, which
evidence upon which the appesl Is 10
7/5
. TeresaM. Soroka, CMC Clly Clerk
02-4-56/279016M