03-02-1999 CC Meeting AgendaCity of Aventura
City Commission
Arthur L Snyder, Mayor
Harry Holzberg, Vice Mayor
Arthur Berger
Jay 1~ Beskin
Ken Cohen
Jeffrey M. Perlow
Patricia Rogers-Libert
Cit~ Manager
Eric M. Soroka
Cit~ Clerk
Teresa M. Smith, CMC
Ci~ Attorne~
Weiss Serota Helfman
Pastoriza & Guedes
AGENDA
Commission Meeting
March 2, 1999 - 6:00 P.M.
Biscayne Medical Arts Center
21110 Biscayne Boulevard Suite 101
Aventura, Florida 33180
CALL TO ORDER~ROLL CALL
2. PLEDGE OF ALLEGIANCE
3. ZONING HEARINGS - SPECIALLY SET BY COMMISSION FOR 6 P.M.
QUASI-JUDICIAL PUBLIC HEARINGS - Please be advised that the following items on the
Commission's agenda are quasi-judicial in nature. If you wish to object or comment upon these
items, please indicate the item number you would like to address when the announcement regarding
the quasi-judicial item is made. You must be sworn before addressing the comnUssion, and if you
wish to address the Commission, you maybe subject to cross-examination. If you refose to submit
to cross-examination, the ConUmssion will not consider what you have said in its final
deliberations.
DISCLOSURE OF ANY EX-PARTE COMMUNICATIONS PURSUANT TO ORDINANCE 96-09
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA GRANTING A NON-USE VARIANCE TO
PERMIT THE UNENCLOSED COURTYARD AREA AT AVENTURA
MALL, LOCATED AT 19501 BISCAYNE BOULEVARD, TO BE
CONSIDERED AS INTERIOR SPACE; PROVIDING AN EFFECTIVE
DATE.
March 2, 1999 Commission Meeting
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA GRANTING APPROVAL OF PROPERTY CURE
FOR EMINENT DOMAIN PROCEEDINGS FOR PROPERTY LOCATED
AT 20708 BISCAYNE BOULEVARD AND LEGALLY DESCRIBED IN
EXHIBIT #1; GRANTING A NON-USE VARIANCE OF SETBACK
REQUIREMENTS TO WAIVE FIVE FEET (5') OF THE REQUIRED
FIFTEEN FOOT (15') SIDE STREET SETBACK WHERE A TEN FOOT
(10') SETBACK IS PROPOSED (BISCAYNE BOULEVARD); GRANTING
A RELEASE OF PREVIOUSLY APPROVED RESOLUTION NO. 3-ZAB-
449-65; GRANTING A NON-USE VARIANCE OF DECORATIVE
MASONRY WALL REQUIREMENTS WHERE NO WALL IS
PROPOSED; GRANTING A NON-USE VARIANCE TO WAIVE THREE
FEET (3') OF THE REQU1RED TEN FOOT (10') LANDSCAPE STRIP
BETWEEN A DECORATIVE MASONRY WALL AND PROPERTY LINE
WHERE SEVEN FOOT (7') OF LANDSCAPING IS PROPOSED;
GRANTING A NON-USE VARIANCE OF SETBACK REQUIREMENTS
TO WAIVE FIVE FEET (5') OF THE REQUIRED TWENTY FOOT (20')
REAR SETBACK WHERE A FIFTEEN FOOT (15') SETBACK IS
PROPOSED (NE 28 AVENUE); GRANTING A NON-USE VARIANCE
PROHIBITING PARKING SPACES TO BACK INTO AN ADJACENT
PRIVATE OR PUBLIC STREET WHERE THE PROVISION OF TWO (2)
SUCH SPACES IS PROPOSED; PROVIDING AN EFFECTIVE DATE.
4. APPROVAL OF MINUTES:
Commission Meeting
Commission Workshop
February 2, 1999
February 16, 1999
$. AGENDA: Request for Deletions/Emergency Additions
6. SPECIAL PRESENTATIONS: .None.
7. CONSENT AGENDA:
A RESOLUTION OF THE CITY COMMSSION OF THE CITY OF
AVENTURA, FLORIDA AUTHORIZING THE CITY MANAGER TO
EXECUTE THE ATTACHED JOINT PROJECT AGREEMENT FOR
HIGlt~VAY LANDSCAPING IMPROVEMENTS ALONG BISCAYNE
BOULEVARD PHASE FOUR BY AND BETWEEN THE CITY OF
AVENTURA AND STATE OF FLORIDA DEPARTMENT OF
TRANSPORTATION; AUTHORIZING THE CITY MANAGER TO DO
ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS
RESOLUTION; AND PROVIDING AN EFFECTIVE DATE.
(Authorizes City Manager to execute Joim Project Agreement with Florida
Department of Transportation to allow installation of landscaping on Biscayne
Boulevard from Miami Garden Drive south to end of City)
March 2, 1999 Commission Meeting
Be
MOTION TO RATll~'Y THE CITY MANAGER'S RE-APPOINTMENT OF
JUDGE ALFRED ("FRED") NESBITT AND HERBERT L. KLIGER, J.D.
AND APPOINTMENT OF ROBERT A. FRIEDMAN AS SPECIAL
MASTERS
(Provides for appointment of Special Masters for Code Enforcement Heatings)
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
AMENDING CITY CODE CHAPTER 2, ADMINISTRATION, ARTICLE
VI, LOBBYING ACTIVITIES, BY AMENDING IN SECTION 2-371(2)
THE DEFINITION OF LOBBYIST; PROVIDING FOR SEVERABILITY,
INCLUSION IN THE CODE AND AN EFFECTIVE DATE
(Amends Lobbyist regulations to clarify the definition c£1obbyist)
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA CONCERNING THE CITY ELECTION OF
MARCH 2, 1999, DECLARING QUALIFYING UNOPPOSED
CANDIDATES ELECTED TO OFFICE OF COMMISSIONER FOR
SEATS 1, 3 AND 5 WITHOUT NECESSITY FOR FURTHER CONDUCT
OF ELECTION PROCESS, AS CERTIFIED BY THE CITY CLERK; AND
PROVIDING AN EFFECTIVE DATE.
(Adopts certification of election results declaring qualifying unopposed candidates
re-elected to office)
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA AWARDING AND LETTING A BID/CONTRACT
FOR BID NO. 99-2-12-2, LIBRARY AND MALL ENTRANCE SIDEWALK
AND CURB IMPROVEMENTS, TO COLONNA CONSTRUCTION
COMPANY, INC., AT THE BID PRICE OF $30,601.00 AUTHORIZING
THE CITY MANAGER TO EXECUTE ASSOCIATED CONTRACTS;
AUTHORIZING THE CITY MANAGER TO TAKE NECESSARY AND
EXPEDIENT ACTION TO CARRY OUT THE AIMS OF THIS
RESOLUTION; PROVIDING FOR THE APPROPRIATION AND
ALLOCATION OF FUNDS FOR SAID BID AWARD; AND PROVIDING
FOR AN EFFECTIVE DATE.
(Awards bid for library and mall entrance sidewalk and curb improvements to
Colonna Construction Company)
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA APPROVING THE ISLAND ESTATES PHASE I
FINAL PLAT SECTION 10 AND SECTION 11, TOWNSHIP 52 SOUTH,
RANGE 42 EAST CITY OF AVENTURA, MIAMI-DADE COUNTY,
FLORIDA; PROVIDING FOR RECORDATION; PROVIDING AN
EFFECTIVE DATE.
March 2, i999 Commission Meeting
(Approves final plat for Island Estates Phase I)
MOTION AUTHORIZING THE APPROPRIATION OF UP TO $45,000
FOR POLICE RADIOS AND DRUG AND CRIME PREVENTION
PROGRAMS FROM THE POLICE FORFEITURE FUND IN
ACCORDANCE WITH THE CITY MANAGER'S MEMORANDUM
DATED FEBRUARY 25, 1999
(Authorizes expenditure from Police Forfeiture fund for radios and drug and crime
prevention programs)
lEI,
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
ADOPTING VEHICLE HANDBILL ORDINANCE PROHIBITING THE
DEPOSIT OR PLACEMENT OF COMMERCIAL ADVERTISING
MATERIAL UPON VEHICLES PARKED ON STREETS OR PARKED
UPON CERTAIN OFF-STREET PARKING AREAS; PROVIDING FOR
PURPOSE AND LEGISLATIVE FINDINGS; PROVIDING
DEFINITIONS; PROVIDING APPLICABILITY; PROVIDING
PROHIBITION OF VEHICLE HANDBILLS; PROVIDING SIGNAGE
REQUIREMENTS; PROVIDING FOR INCLUSION IN CODE;
PROVIDING FOR SEVERAB1LITY; PROVIDING FOR PENALTY;
PROVIDING FOR EFFECTIVE DATE.
(Establishes regulations for vehicle handbills)
A RESOLUTION OF THE CITY OF AVENTURA, FLORIDA,
AUTHORIZING THE EXECUTION AND DEL1VERY OF AN
INTERLOCAL AGREEMENT WITH OTHER GOVERNMENTAL
UNITS WHICH HAVE CREATED THE FLORIDA MUNICIPAL LOAN
COUNCIL; AUTHORIZING THE NEGOTIATION OF A LOAN IN AN
AGGREGATE AMOUNT NOT TO EXCEED $21,000,000 FROM THE
FLORIDA MUNICIPAL LOAN COUNCIL; APPROVING THE
ACQUISITION, CONSTRUCTION AND ERECTION OF CERTAIN
CAPITAL PROJECTS; APPROVING THE EXECUTION AND
DELIVERY OF A LOAN AGREEMENT WITH THE FLORIDA
MUNICIPAL LOAN COUNCIL; PROVIDING CERTAIN OTHER
MATTERS IN CONNECTION WITH THE MAKING OF SUCH LOAN;
AND PROVIDING AN EFFECTIVE DATE.
(Authorizes participation in Florida Munleipal Loan Council program to obtain
$21 million in long-term financing)
8. PUBLIC HEARING: ORDINANCES - FIRST READING:
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA EXTENDING
THE DURATION OF THE EXISTING BUILDING MORATORIUM ON
ISSUANCE OF DEVELOPMENT ORDERS AND DEVELOPMENT
March 2, 1999 Commission Meeting
PERMITS WITHIN THE C1TY CONCERNING BUILDING HEIGHT
LIMITATIONS AS PREVIOUSLY IMPOSED PURSUANT TO ORDINANCE
NO. 98-20 OF THE CITY OF AVENTURA; BY AMENDING SECTION 7
"TERM" OF ORDINANCE NO. 98-20 TO PROVIDE FOR EXTENSION OF
SUCH MORATORIUM, SO AS TO ENABLE CITY'S LAND
DEVELOPMENT REGULATIONS TO BE COMPLETED AND
IMPLEMENTED; PROVIDING FOR SEVERABILITY; PROVIDING FOR
AN EFFECTIVE DATE.
9. PUBLIC HEARINGS: ORDINANCES - SECOND READING:
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
AUTHORIZING THE CITY MANAGER TO EXECUTE THE ATTACHED
CABLE FRANCHISE AGREEMENT BY AND BETWEEN THE CITY
AND TCI TKR OF SOUTH FLORIDA, INC.; AUTHORIZING THE CITY
MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE
AIMS OF THIS ORDINANCE; AND PROVIDING AN EFFECTIVE
DATE.
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA, AMENDING ORDINANCE NO. 98-22, WHICH
ORDINANCE ADOPTED A BUDGET FOR THE 1998/99 FISCAL YEAR
BY REVISING THE 1998/99 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.
l 0. RESOLUTIONS:
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA APPROVING THE CHANGE OF CONTROL OF
THE TCI TKR OF SOUTH FLORIDA, INC CABLE TELEVISION
FRANCHISE FROM TCI TO AT&T CORP.; AND PROVIDING FOR AN
EFFECTIVE DATE.
l~l. OTHER BUSINESS: None
~ 2. REPORTS
~ 3. PUBLIC COMMENTS
~4. ADJOURNMENT
March 2, 1999 Commission Meeting
SCHEDULE OF FUTURE MEETINGS/EVENTS:
COMMISSION WORKSHOP
COMMIS SION MEET1NG
MARCH 22, 1999
APRIL 6, 1999
9 A.M.*
6 P.M. **
*Government Center 2999 NE 191*t Street Suite 500
**Biscayne Medical Arts Building 21110 Biscayne Blvd. Suitc 101
This meeting is open to the public. In accordance with the Americans with Disabilities Act of 1990, all persons who are disabled and who need special
accotmnodations to participate in this meetIng because of that disability should contact the Offioe of the City Clerk. 305 -466-8901, not later than two
days pr/or to such proceedIng.
Anyone wishing to appeal any d~cision made by the Aventura City Comnfission with respect to m~y matter considered at such meeting or h~ring will
need a record of the proogedings ~md, for such purpose, may need to ensure that a verbatim record of the proceedMgs is made, which record includes
the t~stimony and evidenc~ upon which the appeal is to be based.
Agenda items may be vie~ved at the Office of the City Clerk. City of Aventura Oovemment Center, 2999 NE 191~ Street, Suite 500, Avmtura,
Florida. 33180. Anyone wishing to obtain a copy of any agaada item should contact the City Clerk at 305466-8901 ·
6
CITY OF AVENTURA
COMMUNITY DEVELOPMENT DEPARTMENT
MEMORANDUM
TO:
FROM:
BY:
DATE:
SUBJECT:
City Commission _~
Eric M. Soroka, City/~anag~r
Brenda Kelley, Cdrfim~elopment~ \ Direc~
February 26, 1999
Request of Aventura Mall Venture for a non-use variance to allow an
unenclosed courtyard area at Aventura Mall to be considered as interior
space. (02-VAR-99)
March 2, 1999 City Commission Meeting Agenda Item
RECOMMENDATION
It is recommended that the City Commission approve the request subject to the
conditions outlined herein.
THE REQUEST
The applicant, Aventura Mall Venture, is requesting a non-use variance to allow an
unenclosed courtyard area at Aventura Mall to be considered as interior space. (See
Exhibit #1 for Letter of Intent)
BACKGROUND
OWNER OF PROPERTY
ADDRESS OF PROPERTY
LEGAL DESCRIPTION
Aventura Mall Venture
19501 Biscayne Boulevard
Tract "Q", Aventura 6th Addition as recorded in
Plat Book 120, page 20 of the Public Records
of Dade County
SIZE OF PROPERTY Approximately 97.962 acres
EXISTING ZONING
BU-2, Special Business District
FUTURE LAND USE DESIGNATION Business and Office
Zoning -
Subject property:
Property to the North:
Property to the South:
Property to the East:
Property to the West:
BU-2, Special Business District
BU-2, Special Business District
BU-2, Special Business District
RU-4A, Hotel Apartment House District;
BU-2, Special Business District; and
GU, Interim District
Biscayne Boulevard and the F.E.C. Railroad
Existing Use-
Subject property:
Property to the North:
Property to the South:
Property to the East:
Property to the West:
Aventura Mall
office and retail uses
office and retail uses
Turnberry Country Club and associated uses.
Biscayne Boulevard and F.E.C. Railroad
Future Land Use-According to the City of Aventura Comprehensive Plan, the
following properties are designated as follows:
Subject property:
Property to the North:
Property to the South:
Property to the East:
Property to the West:
Business and Office
Business and Office
Business and Office
Parks and Recreation; Medium High Density
Residential
Biscayne Boulevard and the F.E.C. Railroad PJW
The Site - The subject site, the Aventura MalL, is located at the northeast corner of
Biscayne Boulevard and the William Lehman Causeway. (See Exhibit #2 for location
map).
The Project - The Aventura Mall is currently in the process of expansion. A new
wing consisting of an open courtyard area surrounded by restaurants and shops was
recently completed. Several restaurants in the new wing front the open courtyard and
provide outdoor dining.
The Aventura Mall would like to administer the courtyard area as part of the enclosed
mall. The subject site is approximately 550 feet from any right of way and is not visible
from any adjacent right of way, nor is it adjacent to any residential districts.
2
ANALYSIS
Consistency with Comprehensive Master Plan- The request is not inconsistent
with the City of Aventura Comprehensive Plan.
Citizen Comments - The Community Development Department has received no written
citizen comments.
Community Development Department Analysis- The applicant is requesting non-
use variance approval to allow for an unenclosed space within the courtyard at Aventura
Mall to be considered as part of the mall's interior for the purposes of land use and
zoning regulation.
Miami-Dade County Code, Section 33-253.6, establishes that all uses in a BU-2 district
shall be conducted within completely enclosed buildings, and all materials and products
shall be stored within the building or within an area completely enclosed with walls
which have a life expectancy of twenty (20) years or more from the date of installation of
said walls.
The applicant requests that the unenclosed courtyard area be considered as part of the
enclosed mall. If approved, criteria applicable to the enclosed mall itself would
automatically apply to the courtyard area, including the location of tables, signage and
regulation of special events.
Staff recommends approval of the requested non-use variance because the Aventura
Mall is not adjacent to any residential districts, which would not be detrimental to the
community nor incompatible with surrounding land uses. Furthermore, staff believes
that the courtyard area is an entertainment facility within the mall and that it should be
treated as such.
Criteria
The guidelines for approval of non-use variances as required by Miami-Dade County
Code Section 33-311(e)(2) requires:
1. The non-use variance maintains the basic intent and purpose of the zoning,
subdivision and other land use regulations, which is to protect the general welfare of
the public, particularly as it affects the stability and appearance of the community
and provided that the non-use variance will be otherwise compatible with the
surrounding land uses and would not be detrimental to the community.
The request maintains the basic intent and purpose of the regulations. The request is
compatible with the surrounding land uses and will not be detrimental to the community.
Furthermore, Miami-Dade County Fire Department reviewed the plans to ensure that
the means of egress are not obstructed by the proposal.
3
2. No showing of unnecessary hardship to the land is required.
RECOMMENDATION
it is recommended that the City Commission approve the request for a non-use
variance subject to the following conditions:
STANDARD CONDITIONS
1. Plans shall substantially comply with those submitted as follows:
· "Aventura Mall", Site Plan Total Mall Expansion, Drawing 1, prepared by
Edward J. DeBartolo & Associates Co., dated July 14, 1997.
PROJECT SPECIFIC CONDITIONS
1. The enclosed use for the courtyard area shall be terminated in the event that the
City Commission determines, after a public hearing, that the use has created and/or
may tend to create noise disturbances. The public hearing shall be set if the
Director of the Department finds probable cause to believe that a noise disturbance
has been created, based upon complaints received or the Director's observation.
4
February 3, 1999
VENTUKA MALL
RECEIVED
FEB [ z! !S[~
~OMMUNITY DEVELOPIVENT
Board of Commissioners
CITY OF AVENTURA
2999 N.E. 191st Street
Aventura, Florida 33180
Re: Aventura Mall
Ladies and Gentlemen:
The undersigned requests your favorable review and consideration of the following:
A non-use variance to allow for non-enclosed space within the courtyard at
Aventura Mall, as described in the attached application.
The zoning code provides that in the commercial district, all uses must be within an
enclosed building. The courtyard area of Aventura Mall is isolated to a great extent,
and access is very limited. The area is nearly completely enclosed, with the exception
of an open access way from the parking lot into the courtyard, which then leads into the
actual enclosed portion of the mall. Furthermore, the courtyard is open to the sky as it
has no roof. The area functions just as the enclosed space does with the mall, and the
tenants here are primarily restaurants or food service uses offering table service.
The plans we are filing have been reviewed by the Miami-Dade County Fire
Department. The purpose of this review was to ensure that the means of egress are
not obstructed by our proposal. In addition, we are attempting to treat this as if it were
an enclosed'area. The area is defined as following the column line around the
courtyard area. Other than from the parking lot entry side, there is no public view into
the courtyard area. Essentially, the area serves as an extension of the enclosed area
which abuts the courtyard. We believe that the integration of the interior and exterior
area should be encouraged, as it creates an ambiance that is both desirable and
possible in this tropical climate. Further, the landscape treatment also serves to
enhance the property and screen the area.
Although our request is to allow for a non-use variance for an enclosed use, it is our
intent to treat this as part of the enclosed mall. Accordingly, whatever criteria would
apply to the mall itself would automatically apply to the courtyard area. This would be
applicable to such things as location of tables, signage, and any type of special events
that may occur. Maintenance of this area would not be a problem. This area, as well
as all areas of the mall, is maintained frequently on a daily basis.
EXHIBIT #1
19501 Biscayne Boulevard · Aventura, Florida 33180 · (305) 935-1110 · Fax: (305) 935-9360
City Commission
February 3, 1999
Page Two
The location of the courtyard is isolated within the overall mall site. It is on the south
end of the property, close to the Lehman Causeway, on the lower level of the mall site.
Accordingly, the existing stores, the causeway, and the actual grade changes within the
mall site serve to isolate and screen off this area. Like the enclosed area of the mall, It
is well removed from impacting any surrounding property. As such, we believe the
activities allowed in the mall can reasonably be accommodated and allowed within the
courtyard area.
In closing, we again request your favorable review and consideration.
/d
/~¢ge J. Berlin
BI~OWARD COLr~rl'~
DADE COUI~TY
B DR.
33'
EXHIBIT #2
RESOLUTION NO.
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA GRANTING A NON-USE
VARIANCE TO PERMIT THE UNENCLOSED
COURTYARD AREA AT AVENTURA MALL, LOCATED AT
19501 BISCAYNE BOULEVARD, TO BE CONSIDERED AS
INTERIOR SPACE; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the property described herein is zoned BU-2, Special Business
District; and
WHEREAS, the Applicant, Aventura Mall Venture, through Application No. 02-
VAR-99, has requested a non-use variance to allow an unenclosed courtyard area at
Aventura Mall to be considered as interior space; and
WHEREAS, following proper notice, the City Commission has held a public
hearing as provided by law; and
WHEREAS, the City Commission finds that the Application meets the criteria of
the applicable codes and ordinances.
NOW, THEREFORE, BE IT RESOLVED BY THE CiTY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, THAT:
Resolution No.
Page 2
Section 1. Application No. 02-VAR-99 for non-use variance to allow an
unenclosed courtyard area at Aventura Mall to be considered as interior space on
property legally described as:
Tract Q, Aventura 6th Addition as recorded in Plat Book 120, Page 20 of the
Public Records of Dade County
aka
Aventura Mall
19501 Biscayne Boulevard
is hereby granted subject to the following conditions:
STANDARD CONDITIONS
1. Plans shall substantially comply with those submitted as follows:
· "Aventura Mall", Site Plan Total Mall Expansion, Drawing 1, prepared by
Edward J. DeBartolo & Associates Co., dated July 14, 1997.
PROJECT SPECIFIC CONDITIONS
1. The enclosed use for the courtyard area shall be terminated in the event that the
City Commission determines, after a public hearing, that the use has created and/or
may tend to create noise disturbances. The public hearing shall be set if the
Director of the Department finds probable cause to believe that a noise disturbance
has been created, based upon complaints received or the Director's observation.
Section 2. This Resolution shall become effective immediately upon its
adoption.
Resolution No.
Page 3
The foregoing Resolution was offered by Commissioner
moved its adoption. The motion was seconded by Commissioner
and upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia Rogers-Libert
Vice Mayor Harry Holzberg
Mayor Arthur I. Snyder
PASSED AND ADOPTED this 2na day of March, 1999.
, who
Arthur I. Snyder, Mayor
ATTEST:
Teresa M. Smith, CMC, City Clerk
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
This Resolution was filed in the Office of the City Clerk this day of
,1999.
CITY CLERK
CITY OF AVENTURA
TO:
FROM:
BY:
DATE:
SUBJECT:
COMMUNITY DEVELOPMENT DEPARTMENT
MEMORANDUM
City Commission
Eric M. Soroka, Ci~,M~g~r
Brenda Kelley, Co,mu 'ty'~velopment Direct~L/~
February 26, 1998
The applicant is requesting Site Plan approval in conjunction with a non-
use variance as prompted by the Florida Department of Transportation
(FDOT) taking of a portion of the subject property as well as other
miscellaneous requests. (03-VAR-99)
March 2, 1999 City Commission Meeting Agenda Item
RECOMMENDATION
it is recommended that the City Commission approve the requests with conditions as
outlined herein.
THE REQUEST
The applicant is requesting Site Plan approval in conjunction with the following non-use
variance as prompted by the Florida Department of Transportation (FDOT) taking of a
portion of the subject property:
1. Variance from Section 33 of the Miami-Dade County Code requiring a fifteen (15)
foot side street setback (from Biscayne Boulevard) where a ten (10) foot setback is
proposed;
The following requests are also being made:
2. Release of Resolution No, 3-ZAB-449-65 which granted Unusual Use approval to
permit a palm reading parlor; and
3. Variance from Section 33 of the Miami-Dade County Code requiring a decorative
masonry wall setback ten (10) feet from the official right-of-way line at the rear of
the lot (NE 28 Avenue), where the business lot lies across the street from RU zoned
property, where the provision of no decorative wall is proposed; and
4. Variance from Section 33 of the Miami-Dade County Code requiring a ten-foot strip
of landscaping between a decorative masonry wall and a property line, where the
business lot lies across the street from RU zoned property, where the provision of
seven-foot strip of landscaping is proposed; and
5. Variance from Section 33 of the Miami-Dade County Code requiring a twenty (20)
foot rear setback (from NE 28 Avenue) where a fifteen (15) foot setback is
proposed; and
6. Variance from Section 33-132 of the Miami-Dade County Code prohibiting parking
spaces requiring exiting cars to back out into an adjacent private or public street
where the provision of two (2) such spaces is proposed.
BACKGROUND
OWNER OF PROPERTY
APPLICANT
ADDRESS OF PROPERTY
SIZE OF PROPERTY
LEGAL DESCRIPTION
Five Y, Inc.
Marlo Kaller cio Alan Rosenthal, Esq.
20708 Biscayne Boulevard (see Exhibit #2 for
Location Map)
Approximately 0.22 acres (9,320 SF)
See Exhibit #3
Zoning -
Subject Property:
Property to the North:
Property to the South:
Property to the East:
Property to the West:
BU-1A Limited Business District
BU-1, Neighborhood Business District
BU-1A Limited Business District
BU-1A, Limited Business District
BU-1A Limited Business District and RU-5A,
Semi-Professional Office District
Existing Land Use-
Subject Property:
Property to the North:
Property to the South:
Property to the East:
Property to the West:
car wash and convenience store
retail strip center
retail
retail
office
Future Land Use-According to the City of Aventura Comprehensive Plan, the
following properties are currently designated as follows:
Subject Property:
Property to the North:
Property to the South:
Property to the East:
Property to the West:
Business and Office
Business and Office
Business and Office
Business and Office
Business and Office
The Site - The subject property, located at the southwest corner of NE 208 Street
and Biscayne Boulevard is a triangular shaped piece of land approximately 190 feet
wide by approximately 85 feet deep at the widest point. (See Exhibit #2 for Location
Map).
The Project - The applicant is proposing to renovate the existing car wash and
convenience store to house the relocated 'The Chemist', a drug store and pharmacy.
The proposed renovation will be a 1-story, 1,825 square foot facility with a
mediterranean look including new architectural details and barrel-tile roof. The
applicant will be demolishing the existing walled area at the northeast corner of the
property which presently houses the car wash equipment, and will be removing the
existing pay telephones at the south corner of the property.
ANALYSIS
Consistency with Comprehensive Master Plan - The request is not inconsistent
with the City of Aventura Comprehensive Plan.
Citizen Input- The Community Development Department has not received any
written comments regarding this application.
Review by Other Agencies:
DERM- Three (3) 10,000 gallon underground storage tanks were removed from
the site in May 1998. DERM reviewed a Tank Closure Assessment Report, Site
Assessment Report and Monitoring Plan for the subject property and has approved the
Site Assessment Report and monitoring proposals.
Review by City Departments
Landscape Architect- The City Landscape Architect has approved the proposed
Landscape Plan with minor revisions. Such final approval will be addressed at building
permit.
Community Development Department Analysis -
The Florida Department of Transportation acquired approximately 3,800 SF of the
original subject property for right-of-way purposes. The beginning of the southbound
flyover begins approximately 325 feet south of the subject property. Because of the
proposed layout of the future Biscayne Boulevard in this area, FDOT will not allow curb
cuts (ingress and egress) into the subject site from Biscayne Boulevard. The new
development proposes a site plan with access to the general public only from NE 28
Avenue. The applicant's proposal 1) relocates an existing valuable business, The
Chemist, presently located in the Promenades; 2) provides adequate parking on-site; 3)
greatly improves the existing site; and 4) further beautifies this area of Biscayne
Boulevard.
Request #1: Site Plan approval in conjunction with a non-use variance from Section
33 of the Miami-Dade County Code requirin.q a fifteen (15) foot side street setback
(from Biscayne Boulevard) where a ten (10) foot setback is proposed as prompted by
the Florida Department of Transportation (FDOT) taking of a portion of the subject
property.
The City Commission adopted Ordinance No. 97-21 providing for the policy and
procedure concerning non-conformities created by governmental acquisition of private
property. Section 6.1 of the Ordinance lists criteria by which the City Commission is to
evaluate such variances.
1. The requested variance(s) will not adversely affect visual, safety, aesthetic or
environmental characteristics of the community.
The requested setback from Biscayne Boulevard will not adversely affect
visual, safety, aesthetic or environmental characteristics of the community.
Furthermore, the applicant is removing additional structures between the
existing building and Biscayne Boulevard thereby eliminating existing visual
clutter.
2. The requested variance(s) will not adversely affect the safety of pedestrians or the
safe operation of motor vehicles.
The requested setback from Biscayne Boulevard will not adversely affect the
safety of pedestrians or the safe operation of motor vehicles.
3. The requested variance(s) will not cause motor vehicle parking shortages which
adversely impact the community.
The requested variance does not include a parking variance request. The
application meets the parking required by code.
The requested variance(s) will not encourage or promote the continuation of
existing uses of the property which have been or will be rendered unfeasible or
impractical due to the acquisition and/or construction of the roadway or other
public facility including, but not limited to, aesthetic, visual, noise, dust, vibration,
safety, land use compatibility and environmental impacts.
The requested variance will allow the continuation of an existing structure,
renovated so as to meet the needs of a new use. The improvements to the
property are significant and the proposed development will be a benefit to
the community.
Request #2: Release of Resolution No. 3-ZAB-449-65 which .qranted Unusual Use
approval to permit a palm readin.q parlor; and
In October 1965, the Metropolitan Dade County Zoning Appeals Board approved
Resolution No. 3-ZAB-449-65 which granted Unusual Use approval to permit a palm
reading parlor.
Because Resolution No. 3-ZAB-449-65 was approved through a public
hearing process, such approval must be released through public hearing.
Request #3: Variance from Section 33 of the Miami-Dade County Code requirinR a
decorative masonry wall setback ten (10) feet from the official ri.qht-of-wa¥ line at the
rear of the lot (NE 28 Avenue), where the business lot lies across the street from RU
zoned proper[y, where the provision of no decorative wall is proposed; and
Request #4: Variance from Section 33 of the Miami-Dade County Code requirin.q a ten-
foot strip of landscapin.q between a decorative masonry wall and a property line, where
the business lot lies across the street from RU zoned property, where the provision of
seven-foot strip of landscapin.q is proposed; and
The guidelines for approval of non-use variances as required by Miami-Dade County
Code Section 33-311(e)(2) require:
The non-use variance maintains the basic intent and purpose of the zoning,
subdivision and other land use regulations, which is to protect the general welfare of
the public, particularly as it affects the stability and appearance of the community
5
and provided that the non-use variance will be otherwise compatible with the
surrounding land uses and would not be detrimental to the community.
The applicant is proposing a 15' deep area of landscaping between the
existing structure and NE 28 Avenue. A decorative masonry wall is not
proposed. While the adjacent property to the west is zoned residential, it is a
semi-professional office district designation. The adjacent property is a
professional office use, not a residence. Therefore, staff believes that a
masonry wall is not necessary in this location. Furthermore, the landscaping
improvements to the site will greatly beautify the area and provide a benefit to
the community.
2. No showing of unnecessary hardship to the land is required.
Request #5: Variance from Section 33 of the Miami-Dade County Code requiring a
twenty (20) foot rear setback (from NE 28 Avenue) where a fifteen (15) foot setback is
proposed; and
The guidelines for approval of non-use variances as required by Miami-Dade County
Code Section 33-311(e)(2) require:
The non-use variance maintains the basic intent and purpose of the zoning,
subdivision and other land use regulations, which is to protect the general welfare of
the public, particularly as it affects the stability and appearance of the community
and provided that the non-use variance will be otherwise compatible with the
surrounding land uses and would not be detrimental to the community.
The existing structure is setback approximately 15' from the property line.
The requested non-use variance is compatible with the surrounding land uses
in that it is an existing condition and would not be detrimental to the
community.
2. No showing of unnecessary hardship to the land is required.
Request #6: Variance from Section 33-132 of the Miami-Dade County Code prohibitin.q
parkin.q spaces requirin.q exiting cars to back out into an adjacent private or public
street where the provision of two (2) such spaces is proposed.
The guidelines for approval of non-use variances as required by Miami-Dade County
Code Section 33-311(e)(2) require:
1. The non-use variance maintains the basic intent and purpose of the zoning,
subdivision and other land use regulations, which is to protect the general welfare of
6
the public, particularly as it affects the stability and appearance of the community
and provided that the non-use variance will be otherwise compatible with the
surrounding land uses and would not be detrimental to the community.
There are existing parking spaces which presently back out into NE 208
Street. Staff's recommendation that a condition be placed on the approval
limiting the use of the parking spaces to employees only, further protects the
welfare of the public in that customers will not be backing onto NE 208 Street,
thus reducing the amount of backing onto the public street. Staff has
reviewed the site, and determined that most traffic is going very slow or is
stopped at the traffic signal, thereby allowing back-up into an area with
stopped or very slow traffic.
2. No showing of unnecessary hardshi 3 to the land is required.
RECOMMENDATION
It is recommended that the City Commission approve the requests with conditions as
follows:
STANDARD CONDITIONS
1. Plans shall substantially comply with those submitted as follows:
· Proposed Front (South) Elevation; and
· Site Plan and Notes, sheet SP-1, prepared by Joseph B. Kaller & Associates, P.A.,
dated 1/29/99, signed and sealed dated 2/19/99; and
Landscape Plan, sheet L-l, prepared by Joseph B. Kaller & Associates, P.A., dated
1/29/99; and
· Proposed Elevations, sheet A-2, prepared by Joseph B. Kaller & Associates, P.A.,
dated 1/29/99, signed and sealed dated 2/19/99; and
· Proposed Elevations, sheet A-3, prepared by Joseph B. Kaller & Associates, P.A.,
dated 1/29/99, signed and sealed dated 2/19/99.
2. Applicant shall obtain building permits within 12 months of the date of this
Resolution or the approvals granted shall be deemed null and void unless extended
by a motion of the City Commission.
PROJECT SPECIFIC CONDITIONS
Applicant shall provide a covenant requiring that parking spaces to the north of the
building be used for employees only. Such covenant shall be recorded in the public
records, all costs to be borne by the applicant, prior to issuance of a building permit.
2. More specific information will be required at time of permitting regarding the
screening for the rooftop equipment, prior to approval of building permit.
3. All wall mounted exterior parking lights shall be properly screened and/or diffused
so as not to cause a glare on adjacent properties and/or roadways.
/staff r~ports/03-VAR-98 The Chemist
KEJTH R. GAUDIOSO
STACl H. GENET
GARY L NESbi]-r
EDUARDO I. RASCO
ALAN S. ROSENTHAL
KERRY E. ROSENTHaL
ROSENTHAL ROSENTHAL RASCO
A~ORNEYS AT LAW
TURNBERRY PLAZA, SUITE 500
2875 NORTHEAST 191 ST STREET
AVENTURA, FLORIDA 331 S0
TELEPHONE 305937~300
FACSIMILE 305937-1311
RECEIVED
OF COUNSEL
JEROME S. HOLLO
JORGE LUIS WOLF
February 1, 1999
City of Aventura
Planning and Zoning
2999 N. E. 191st Street
Suite 500
Aventura, Florida 33180
Re: Mario Kaller/The Chemist Pharmacy
Ladies and Gentlemen:
This office represents the Applicant, Mario Kaller, who currently operates a drug store and
pharmacy located at 20475 Biscayne Boulevard, Aventura, Florida. Mr. Kaller has operated The
Chemist Pharmacy for a period of ten (10) years and is well known and well respected in the
Aventura area. Mr. Kaller has entered into a Contract for the acquisition of the property at 20708
Biscayne Boulevard. This property formerly housed an Amoco Station and is currently being
utilized as a convenience market.
The subject property is irregular in shape, which in and of itself creates a hardship in developing
the same, however, in addition thereto has been severely impacted by the taking of the Biscayne
Boulevard frontage by the Department of Transportation in connection with the widening of
Biscayne Boulevard, resulting in further non-self-imposed hardships. Note: (For the edification
and information of the City, the Department of Transportation has in fact removed, in
conjunction with the taking, all gas tanks from the property and the property is currently
acceptable for development by the Department of Environmental Management Resources).
Since the taking, all ingress and egress from Biscayne Boulevard has been removed and access is
now only from N. E. 208th Street or N. E. 28th Avenue. In addition, the taking has left
remaining a piece of property that, save for its current use and current posture, is impossible to
m-utilize without securing various easements from the City of Aventura. The remaining structure
contains approximately 1,825 square feet (the minimal size that the Applicant can utilize) with
the remaining property containing approximately 9,675 square feet. Predicated upon the
EXHIBIT #1
City of Aventura 2 February 1, 1999
foregoing the building occupies less than twenty (20%) per cent of the site, with the remaining
site being utilized for parking and landscaping.
The Applicant desires to utilize the existing structure and to relocate his business from its current
place of operation to the subject property. The existing structure will be totally renovated as
evidenced by the Site Plan and Elevations submitted herewith, and the property landscaped so as
to create a totally revitalized building for what is obviously a very visible and currently unsightly
location and structure. The Elevations submitted herewith reflect that the change will be drastic
and certainly inure to the benefit of the City and the surrounding property owners.
It is clearly evident from the Site Plan and Elevations that the utilization of this property by the
Applicant would in fact be the highest and best use for this property. The variances requested are
unquestionably the direct and proximate result of the taking by the Department of Transportation
of the frontage on Biscayne Boulevard, and certainly were not self-imposed by the present owner
or the Applicant. It is further submitted that the development of this site as and for the
Applicant's pharmacy and drug store is in keeping with the surrounding areas and would be a
benefit for the residents of Aventura who utilize the medical office buildings and hospital
located in close proximity to this site.
It is therefore respectfully requested that the Planning and Zoning Department recommend to the
City Council the approval of this project and the development of this site as reflected on the
Plans submitted.
ASR:cw
BROWARD COUNTY
DADE COUNTY
Ho~pital
& Medical
Cemer
Gulfstream CLUB DR.
Park
HARBOR
Waterways
Shoppbs
207 ST.
CLUB DR.
LLI
MIAMI
GARDENS DR.
201 TER.
AVENTURA
Fire ~ ~
Rescue Aventura
Station Library
Aventura Police
Department
AventUra Mall
City of Aventura
192 ST.
Loehmann~
Fashion
Island
s~
190 ·
i88 Sr. ·
33180 ·
Williams
Little Sound
Maule
Lake
Dumfoundling ·
ha,, ·
I
Maule
Lake I --
'
192 ST.
LEGEND
Roadways
- · · - - . City Boundary
ZIP Code Boundary
........... Railroad
It
Ocean
I~GAL
Lo~ I, 2, 3, 4 and 5, in Block 6, of, "HALLANDALE PARK NO. 9", according 1o the Plat thereof, as recorded
in Plat Book 23, at Page 26, of the Public Records of Miami-Dade ( ounts.. Florida.
Tho~ portions of Lots 2 through 5 inclusive, Block 6. "HALLANDALE PARK NO. 9", according to Ihe Plat
thege~f, as recorded in Plat Book 23. at Page 26, of the Public Records of Dade County, Florida, in the Northwest
o~uarter CN.W. 1/4) of Section 34, Township 51 South, Range 42 East, and being more particularly deac~ben:i as
follows:
Commene, e at the Northwest corner of said Lol 2; thence along tbe North line of said Lot 2, North 87° 45' 57" East
a di~anee of 8.750 meters (28.71 feet) to tile POINT OF BEGINNING; thence continue along said North line,
North 87° 45' 57' East a distance of 0.734 meters (2.41 feet) to a point of curvature of a circular curve concave to
the Southwest and having a radius of 7.620 meters (25.00 feet); thence run Northeasterly, Southeasterly and
Sou~v~st~rly along the arc of said circular curve to the right through a central angle of 114° 36' 07" for a
distane~ of 15.241 meters (50.00 feet) to a point of langency; thence along tile Southeasterly line of said Lots 2
through 5, South 22° 22' (gl" West a distance of 48.738 meters (159.90 feet) to a poinl of curvature of a circular
curve concave to the Northeast and having a radius of 4.572 mete~ 05.00 feet); thence run Southwe~erly,
We~tm'ly and Northwesterly along the arc of said circular curve to the right through a c~ntral angle of 137~ 52' 0~"
for a distance of I 1.001 meters (36.09 f~et); thence North 28° 47' 42" East a dislance of 52.203 meters (171.27
feet); thence North 32° 34' 55" West a distance of I 1.410 meters (37.43 feet) to the POINT Olr BEGINNING.
~: 2070g Biscayne Boulevard, Aventura, Florida 33180
EXHIBIT #3
RESOLUTION NO.
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA GRANTING APPROVAL
OF PROPERTY CURE FOR EMINENT DOMAIN
PROCEEDINGS FOR PROPERTY LOCATED AT 20708
BISCAYNE BOULEVARD AND LEGALLY DESCRIBED IN
EXHIBIT #1; GRANTING A NON-USE VARIANCE OF
SETBACK REQUIREMENTS TO WAIVE FIVE FEET (5')
OF THE REQUIRED FIFTEEN FOOT (15') SIDE STREET
SETBACK WHERE A TEN FOOT (10') SETBACK IS
PROPOSED (BISCAYNE BOULEVARD); GRANTING A
RELEASE OF PREVIOUSLY APPROVED RESOLUTION
NO. 3-ZAB-449-65; GRANTING A NON-USE VARIANCE
OF DECORATIVE MASONRY WALL REQUIREMENTS
WHERE NO WALL IS PROPOSED; GRANTING A NON-
USE VARIANCE TO WAIVE THREE FEET (3') OF THE
REQUIRED TEN FOOT (10') LANDSCAPE STRIP
BETWEEN A DECORATIVE MASONRY WALL AND
PROPERTY LINE WHERE SEVEN FOOT (7') OF
LANDSCAPING IS PROPOSED; GRANTING A NON-USE
VARIANCE OF SETBACK REQUIREMENTS TO WAIVE
FIVE FEET (5') OF THE REQUIRED TWENTY FOOT (20')
REAR SETBACK WHERE A FIFTEEN FOOT (15')
SETBACK IS PROPOSED (NE 28 AVENUE); GRANTING A
NON-USE VARIANCE PROHIBITING PARKING SPACES
TO BACK INTO AN ADJACENT PRIVATE OR PUBLIC
STREET WHERE THE PROVISION OF TWO (2) SUCH
SPACES IS PROPOSED; PROVIDING AN EFFECTIVE
DATE.
WHEREAS, the property described herein is zoned BU-1A, Neighborhood
Business District; and
WHEREAS, the applicant Marlo Kaller, through Application No. 03-VAR-99, is
requesting Site Plan approval in conjunction with the following non-use variance as
Resolution No.
Page 2
prompted by the FDOT taking of a portion of the subject property located at 20708
Biscayne Boulevard:
1. Variance from Section 33 of the Miami-Dade County Code requiring a fifteen (15)
foot side street setback (from Biscayne Boulevard) where a ten (10) foot setback is
proposed;
The following requests are also being made:
2. Release of Resolution No. 3-ZAB-449-65 which granted Unusual Use approval to
permit a palm reading parlor; and
3. Variance from Section 33 of the Miami-Dade County Code requiring a decorative
masonry wall setback ten (10) feet from the official right-of-way line at the rear of
the lot (NE 28 Avenue), where the business lot lies across the street from RU zoned
property, where the provision of no decorative wall is proposed; and
4. Variance from Section 33 of the Miami-Dade County Code requiring a ten-foot strip
of landscaping between a decorative masonry wall and a property line, where the
business lot lies across the street from RU zoned property, where the provision of
seven-foot strip of landscaping is proposed; and
5. Variance from Section 33 of the Miami-Dade County Code requiring a twenty (20)
foot rear setback (from NE 28 Avenue) where a fifteen (15) foot setback is
proposed; and
6. Variance from Section 33-132 of the Miami-Dade County Code prohibiting parking
spaces requiring exiting cars to back out into an adjacent private or public street
where the provision of two (2) such spaces is proposed.
Resolution No.
Page 3
The site plan will supercede all previously approved site plans.
WHEREAS, request #1 is being made in order to cure Non-conformities created
by FDOT's acquisition of a portion of the subject property; and
WHEREAS, the Community Development Department recommends approval of
the requests subject to conditions; and
WHEREAS, the City Commission has held a public hearing as provided by law;
and
WHEREAS, the City Commission finds that the Application meets the criteria of
the applicable codes and ordinances, to the extent the Application is granted herein.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, THAT:
Section 1. Application No. 03-VAR-99, requesting Site Plan approval in
conjunction with the following non-use variance as prompted by the FDOT taking of a
portion of the subject property located at 20708 Biscayne Boulevard:
1. Variance from Section 33 of the Miami-Dade County Code requiring a fifteen (15)
foot side street setback (from Biscayne Boulevard) where a ten (10) foot setback is
proposed;
on property legally described as:
SEE ATTACHED EXHIBIT #1
NK/A
Resolution No.
Page 4
20708 BISCAYNE BOULEVARD
AVENTURA, FLORIDA
is hereby granted subject to conditions as outlined herein.
Section 2. Release of Resolution No. 3-ZAB-449-65 which granted Unusual
Use approval to permit a palm reading parlor is hereby granted.
Section 3. Variance from Section 33 of the Miami-Dade County Code
requiring a decorative masonry wall setback ten (10) feet from the official right-of-way
line at the rear of the lot (NE 28 Avenue), where the business lot lies across the street
from RU zoned property, where the provision of no decorative wall is proposed, is
hereby granted subject to conditions as outlined herein.
Section 4. Variance from Section 33 of the Miami-Dade County Code
requiring a ten-foot strip of landscaping between a decorative masonry wall and a
property line, where the business lot lies across the street from RU zoned property,
where the provision of seven-foot strip of landscaping is proposed is hereby granted
subject to conditions as outlined herein.
Section 5. Variance from Section 33 of the Miami-Dade County Code
requiring a twenty (20) foot rear setback (from NE 28 Avenue) where a fifteen (15) foot
setback is proposed is hereby granted subject to conditions as outlined herein.
Section 6. Variance from Section 33-132 of the Miami-Dade County Code
prohibiting parking spaces requiring exiting cars to back out into an adjacent private or
public street where the provision of two (2) such spaces is proposed is hereby granted
subject to conditions as follows:
Resolution No.
Page 5
STANDARD CONDITIONS
1. Plans shall substantially comply with those submitted as follows:
· Proposed Front (South) Elevation; and
· Site Plan and Notes, sheet SP-1, prepared by Joseph B. Kaller & Associates, P.^.,
revised dated 2/24/99, signed and sealed dated 2/25/99; and
· Landscape Plan, sheet L-l, prepared by Joseph B. Kaller & Associates, P.A.,
revised dated 2/24/99, signed and sealed dated 2/24/99; and
· Proposed Elevations, sheet A-2, prepared by Joseph B. Kaller & Associates, P.A.,
revised dated 2/24/99, signed and sealed dated 2/25/99; and
· Proposed Elevations, sheet A-3, prepared by Joseph B. Kaller & Associates, P.A.,
revised dated 2/24/99, signed and sealed dated 2/25/99.
2. Applicant shall obtain building permits within 12 months of the date of this
Resolution or the approvals granted shall be deemed null and void unless extended
by a motion of the City Commission.
PROJECT SPECIFIC CONDITIONS
1. Applicant shall provide a covenant requiring that parking spaces to the north of the
building be used for employees only. Such covenant shall be recorded in the public
records, all costs to be borne by the applicant, prior to issuance of a building permit.
2. More specific information will be required at time of permitting regarding the
screening for the rooftop equipment, prior to approval of building permit.
3. All wall mounted exterior parking lights shall be properly screened and/or diffused
so as not to cause a glare on adjacent properties and/or roadways.
Resolution No.
Page 6
Section 7. The site plan will supercede all previously approved site plans.
Section 8. The City Manager is authorized to cause the issuance of permits in
accordance with the approvals and conditions herein provided and to indicate such
approvals and conditions upon the records of the City.
Section 9. 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 Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia Rogers-Libert
Vice Mayor Harry Holzberg
Mayor Arthur I. Snyder
PASSED AND ADOPTED this 2® day of March, 1999.
ATTEST:
ARTHURI. SNYDER, MAYOR
TERESA M. SMITH, CMC
CITY CLERK
Resolution No.
Page 7
APPROVED AS TO LEGAL SUFFICIENCY:
CITY A'I-I'O RN EY
This Resolution was filed in the Office of the City Clerk this __
day of
_,1999.
CITY CLERK
LEGAL DF~SCP. lPTION;
Lois I, 2, 3, 4 and 5, in Block 6, of, "HALLANDALE PARK NO. 9", according ~o the Plat thereof, as recorded
in Pl~ Book 23, at Page 26, of the Public Records of Miami-Dade ('aunty. Florida.
Those portions of I~)ts 2 through 5 inch~sivc, Block 6, "HAI,LANI)ALE PARK NO. 9", according to the Plat
thereof, as recorded in Plat Book 23. at Page 26, of the Public Records o£ l)ade County, Florida, in the Northwest
one.~uarter (N.W. I/4) of Section 34, Township 51 South, Range 42 Easl, and being more particularly described as
fotlows:
Cmmnenee at the Northwest corner of said Lot 2; thence along the North line of said Lot 2, Norlh 87° 45' 57" East
a di~ance of 8.750 meters (2871 feet) to tile POINT OF BEGINNING; thence continue along said North line,
North 87° 45' 57" East a distance of 0734 meters (241 feet) to a point of curvature of a circular curve concave to
the Southwest and having a radius of 7.620 meters (25.00 feet); thence run Northeasterly, Soulheasterly and
Southwesterly along the arc of said circular curve to the right through a central angle of 114° 36' 07" for a
distance of t 5.241 meters (50.00 feet) to a point of tangency: theuce along tile Southeasterly line of said Lots 2
through 5, South 22° 22' 04" West a distance of 48 738 meters (159.90 feet) to a point of curvature ufa circular
curve concave to the Northeast and having a radius of 4.572 meters (15.00 feet); thence run Southwesterly,
Wea~erly and Northwesterly along the arc of said circular curve to the right throngh a central angle of 137'~ 52' 08"
for a distance of 11.001 meters (36.09 feet); thence North 28° 47' 42" East a distance of 52.203 meters (171.27
feet); thence North 32° 34' 55" West a distance of t 1410 meters (37.43 feet) to the POINT OF BEG~]qNING.
20708 Biscayne Boulevard, Aventura, Florida 33180
EXHIBIT #1
Photo # 3:
View of North Side of SRe Looking to the West
\
<~' /.':'0'
"'. '.\""
I , "
: ,'If
1
Photo #4:
View of West Side of Site Looking South
Ace Environmental Services
Phase I Environmental Site Assessment
20708 BiseaYlle Boulevard
A velltura, Florida
January 1999
Site Photographs
Photo # 1:
View of S~e Looking to the North
PhoIo#2:
VIew of East Side of Sfta LOoking South
Ace Environmental Services
Phase I Environmental Site Assessment
20708 Biscayne Boulevard
Aventura, Florida
January 1999
Site Photographs
MINUTES
CITY COMMISSION MEETING
TUESDAY, FEBRUARY 2, 1999 6:00 P.M.
Biscayne Medical Arts Center
21110 Biscayne Boulevard Suite 101
Aventura, Florida
1. CALL TO ORDER/ROLL CALL: The meeting was called to order at 6:00 p.m. by
Mayor Arthur I. Snyder. Present were Commissioners Arthur Berger, Ken Cohen,
Jeffrey M. Perlow, Patricia Rogers-Libert, Vice Mayor Harry Holzberg, Mayor
Snyder, City Manager Eric M. Soroka, City Clerk Teresa M. Smith, and City
Attorneys Richard Jay Weiss and Jeff Sheffel. Commissioner Jay R. Beskin was
absent. As a quorum was determined to be present, the meeting commenced.
2. PLEDGE OF ALLEGIANCE. Stanley Price, Esq. led the pledge of allegiance.
3. ZONING HEARINGS - SPECIALLY SET BY COMMISSION FOR 6 P.M.
Ex-parte communications by Commissioners, if any, were disclosed and filed with
the City Clerk in accordance with Ordinance 96-09. All witnesses giving testimony in
these hearings were sworn in by the City Clerk.
DJ
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA UPHOLDING AN ADMINISTRATIVE
SUBSTANTIAL COMPLIANCE DETERMINATION FOR PROPERTY
LOCATED AT 2751 NE 183 STREET; PROVIDING AN EFFECTIVE
DATE.
Laurie Thompson, Esq., 701 Brickell Avenue, on behalf of the applicant,
requested deferral of this item to the next meeting. A motion for deferral wes
offered by Commissioner Rogers-Libert, seconded by Commissioner Cohen and
unanimously passed. Commissioner Pedow requested that Commission be
provided with a copy of the DecLaration of Restrictions and legal opinion from the
City Attorney prior to the next hearing on this matter.
A. Mr. Weiss read the following resolution by title:
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA GRANTING SPECIAL EXCEPTION APPROVAL
TO SPACING AND DISTANCE REQUIREMENTS FOR THE SALE AND
SERVICE OF ALCOHOLIC BEVERAGES TO WHOLE FOODS MARKET
GROUP, INC. LOCATED AT 21105 BISCAYNE BOULEVARD;
PROVIDING AN EFFECTIVE DATE.
A motion for approval was offered by Commissioner Berger and seconded by
Commissioner Perlow. Brenda Kelley, Community Development Director,
explained the request of the applicant and entered the staff report into the record.
Mayor Snyder opened the public hearing. The following individual addressed the
Commission: Richie Gerber, VVhole Foods Market, California. There being no
further speakers, the public hearing was closed. The motion for approval of the
Resolution, with the amendment to delete alcoholic beverages and provide for
beer and wine only, passed 5-1, with Vice Mayor Holzberg voting no and
Resolution No. 99-02 was adopted.
B. Mr. Weiss read the following resolution by title:
A RESOLUTION OF THE CITY COMMISSION OF THE CiTY OF
AVENTURA, FLORIDA GRANTING A SIGN VARIANCE TO PERMIT A
NAMEPLATE SIGN IN A RESIDENTIAL DISTRICT WITH LETTER SIGN
AREA LARGER THAN ALLOWED BY CODE FOR CLASSIC
RESIDENCE BY HYATT AT AVENTURA, LOCATED AT 19333 WEST
COUNTRY CLUB DRIVE; PROVIDING AN EFFECTIVE DATE.
A motion for approval was offered by Commissioner Perlow and seconded by
Commissioner Berger. Brenda Kelley, Community Development Director,
explained the request of the applicant and entered the staff report into the record.
Mayor Snyder opened the public hearing. The following individuals addressed
the Commission: Clifford Schulman, Esq., 1221 Brickell Avenue. There being no
further speakers, the public hearing was closed. An amendment was offered by
Commissioner Berger, seconded by Commissioner Perlow and unanimously
passed to prohibit the sign from being illuminated. The motion for approval of the
resolution, as amended, was unanimously passed and Resolution No. 99-03
was adopted.
C. APPLICANT: CAR WASH II, INC. (SIMONIZ CAR WASH)
At the request of staff, this item was deferred.
2
4. APPROVAL OF MINUTES: A motion to approve the minutes of the January 5,
1999 Commission Meeting and the January 19, 1999 Workshop Meeting, was
offered by Commissioner Rogers-Libert, seconded by Commissioner Berger and
unanimously passed.
5. AGENDA: REQUESTS FOR DELETIONS/EMERGENCY ADDITIONS:
6. SPECIAL PRESENTATIONS: Mayor Snyder presented a Proclamation to Police
Chief Thomas E. Ribel and the Aventura Police Department.
7. CONSENT AGENDA:
Commissioner Berger requested removal of item 7-D, Commissioner Rogers-Libert
requested removal of item 7-E and Commissioner Cohen requested removal of item 7-
A, all from the Consent Agenda.
A motion to approve the remainder of the Consent Agenda was offered by
Commissioner Rogers-Libert, seconded by Commissioner Berger and the following
action was taken:
B. Resolution 99-04 was adopted as follows:
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA, AUTHORIZING THE CITY MANAGER TO
EXECUTE THE ATTACHED WORK AUTHORIZATION NO. 15414.53
FOR PREPARATION OF ENGINEERING DESIGN SURVEY ON
COUNTRY CLUB DRIVES BY AND BETWEEN THE CITY OF
AVENTURA AND KEITH AND SCHNARS, P.A.; AUTHORIZING THE
CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT
THE AIMS OF THIS RESOLUTION; AND PROVIDING AN EFFECTIVE
DATE.
C. Resolution 99-05 was adopted as follows:
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA, AUTHORIZING THE CITY MANAGER TO
EXECUTE THE ATTACHED WORK AUTHORIZATION NO. 15414.54
FOR PREPARATION OF CONSTRUCTION DOCUMENTS FOR
PEDESTRIAN SAFETY IMPROVEMENTS ON COUNTRY CLUB DRIVE
BY AND BETWEEN THE CITY OF AVENTURA AND KEITH AND
SCHNARS, P.A.; AUTHORIZING THE CITY MANAGER TO DO ALL
THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS
RESOLUTION; AND PROVIDING AN EFFECTIVE DATE.
3
F. Resolution No. 99-06 was adopted as follows:
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA APPROVING AND AUTHORIZING THE CITY
MANAGER TO EXECUTE AND OTHERWISE ENTER INTO THE
ATTACHED CHANGE ORDER FOR BID NO. 98-4-24-2, WILLIAMS
ISLAND BOULEVARD IMPROVEMENTS, BY AND BETWEEN THE
CITY AND M. VILA & ASSOCIATES, INC.; AUTHORIZING THE CITY
MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE
AIMS OF THIS RESOLUTION; AND PROVIDING AN EFFECTIVE
DATE.
The following items were removed from the Consent Agenda and addressed separately:
A. Mr. Weiss read the following ordinance by title:
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA, AMENDING ORDINANCE NO. 98-22, WHICH
ORDINANCE ADOPTED A BUDGET FOR THE 1998/99 FISCAL YEAR
BY REVISING THE 1998/99 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.
A motion for approval was offered by Commissioner Rogers-Libert, seconded by
Vice Mayor Holzberg, and unanimously passed by roll call vote.
D. Mr. Weiss read the following motion by title:
MOTION AUTHORIZING THE APPROPRIATION OF UP TO $66,000
FOR THREE (3) PATROL VEHICLES AND ONE (1) POLICE
MOTORCYCLE FROM THE POLICE FORFEITURE FUND IN
ACCORDANCE WITH THE CITY MANAGER'S MEMORANDUM.
A motion for approval was offered by Commissioner Rogers-Libert, seconded by
Vice Mayor Holzberg, and unanimously passed.
E. Mr. Weiss read the following resolution by title:
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA URGING U.S. REPRESENTATIVE E. CLAY
SHAW TO EXPLORE THE POSSIBILITY OF ESTABLISHING A NEW
4
FULL SERVICE POST OFFICE IN THE SOUTHERN PORTION OF THE
CITY OF AVENTURA; AND PROVIDING FOR AN EFFECTIVE DATE.
A motion for approval was offered by Commissioner Rogers-Libert and seconded
by Commissioner Perlow. An amendment was offered by Commissioner Rogers-
Libert, seconded by Commissioner Perlow and unanimously passed to provide
an additional Whereas clause relative to the traffic and its effect on the health,
safety and welfare of residents travelling to the post office and to provide that the
Resolution be forwarded also to Senators Mack and Graham for their assistance.
The motion for approval of the Resolution, as amended, unanimously passed
and Resolution No 99-07 was adopted.
PUBLIC HEARING: ORDINANCES - FIRST READING: Mr. Weiss read the
following ordinance by title:
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
AUTHORIZING THE CiTY MANAGER TO EXECUTE THE ATTACHED
CABLE FRANCHISE AGREEMENT BY AND BETWEEN THE CITY AND
TCI TKR OF SOUTH FLORIDA, INC.; AUTHORIZING THE CITY
MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE
AIMS OF THIS ORDINANCE; AND PROVIDING AN EFFECTIVE DATE.
A motion for approval was offered by Commissioner Perlow and seconded by
Commissioner Rogers-Libert. Mayor Snyder opened the public hearing. Thero
being no speakers, the public headng was closed. The motion for approval passed
unanimously by roll call vote.
PUBLIC HEARINGS: ORDINANCES - SECOND READING: None
RESOLUTIONS: Mr. Weiss read the following resolution by title:
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA, APPROVING THE TRANSFER OF CONTROL
OF THE CABLE TELEVISION FRANCHISE FROM
RIFKININARRAGANSETT SOUTH FLORIDA CATV LIMITED
PARTNERSHIP ("RNSF") TO INTERLINK COMMUNICATIONS
PARTNERS, LLLP ("ICP") AND PROVIDING AN EFFECTIVE DATE.
A motion for approval was offered by Commissioner Perlow and seconded by
Commissioner Rogers-Libert. The motion for approval passed unanimously and
Resolution No. 99-08 was adopted.
11. OTHER BUSINESS: None
5
12. REPORTS: As presented. Mayor Snyder appointed Commissioners Berger and
Rogers-Libert and Vice Mayor Holzberg to a Committee to study the Y2K issue.
13. PUBLIC COMMENTS: The following individuals addressed the Commission:
Ginger Grossman, W. Country Club Drive; Harry Crook, Commodore Plaza; David
Vogel, Summit Apartments; Albert McCausin, 19151 NE 35th Court; Mary Doyle,
17980 NE 34th Court; Robert Friedman, 20780 NE 30 Place; Audra Winston, 19701
Turnberry Way; Denise Aranow, 19667 Turnberry Way; Anthony Tedesco, 19101
Mystic Point Drive; Allison Friedman, 20780 NE 30 Place; and Carleen Rosado,
Mainsail Circle, La Mirage.
14. ADJOURNMENT: There being no further business to come before the Commission
at this time, after motion made, seconded and unanimously passed, the meeting
adjourned at 8:10 p.m.
Teresa M. Smith, CMC, City Clerk
Approved by the Commission on
Anyone wishing to appeal any decision made by the City Commission with respect to any matter considered at a
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 if made, which record includes the testimony and evidence upon which the appeal is to be
based,
6
MINUTES
CITY COMMISSION WORKSHOP MEETING
TUESDAY, FEBRUARY 16, 1999 9:00 A.M.
Aventura Government Center
2999 NE 191st Street Suite 500
Aventura, Florida
The meeting was called to order at 9:00 a.m. by Mayor Arthur I. Snyder. Present ware
Commissioners Arthur Berger (left at 11:35 a.m.), Jay R. Beskin, Ken Cohen, Jeffrey M.
Perlow, Patricia Rogers-Libert, Vice Mayor Harry Holzberg, Mayor Snyder, City
Manager Eric M. Soroka, City Clerk Teresa M. Smith, and City Attorney David M.
Wolpin. As a quorum was determined to be present, the meeting commenced.
Florida Food Recovery (Commissioner Cohen): (Taken out of order) North
Miami Beach Councilman Jules Littman addressed the Commission explaining
the Florida Food Recovery Program, its recent shortfall of funds and requested
consideration of a donation by the City to this program.
Policy Re,qardin,q DoRs in Southern Portion of Park. Mr. Soroka provided
Commission with a report relative to the petition submitted by David Vogel,
results of survey of surrounding communities, the issues involved and
alternatives for consideration. Mr. Vogel spoke on behalf of the petitioners who
are requesting that the southern portion of Founders Park be designated as a
dog park and that dogs be allowed to be unleashed in this area. Commissioner
Perlow suggested that the land recently purchased by the City at the end of
Thunder Alley be used as a temporary area for dogs to run unleashed. Staff to
determine such feasibility and discuss at March Workshop Meeting.
Ak Media Billboard Policy. Mark Ullmer, Esq. representing AK Media offered a
proposal to the Commission that AK Media would be willing to remove two
billboards from US 1 (large monopole billboard east side of Biscayne Blvd. at
Miami Gardens Drive and billboard on the railroad right-of-way west of the
Aventura Mall and north of Lehman Causeway) in exchange for all necessary
approvals and waivers from the City and FDOT to elevate the two signs at
Biscayne and 203rd Street located at the southwest and northeast corners. This
matter to be discussed further at March Workshop.
Review of Lobbyist Ordinance: After discussion, it was the consensus of the
Commission to amend Section 2-371(2) of the Lobbyist Ordinance to read:
Any pPerson, or its full-time employee, officer or owner, who
appears before the City Commission, a City Board or
committee, or the City Manager or staff in an individual
capacity for the purpose of self-representation or for the
representation of others without compensation or
reimbursement to express support of or in opposition to any
ordinance, resolution,...
Point East Shoppin,q Center Entrance: Commission discussed FDOT's
response to its request to open the median in this area. After discussion of other
possible altematives, it was the consensus of the Commission to designate the
intersection as no right turn on red and transfer the pedestrian walkway to the
south side, in an effort to increase safety in this area.
Throuqh Stores - Si.qn Code: (Commissioner Pedow) Consensus of
Commission to amend the definition of "through store" by deleting the second
sentence thereof.
Alliance on AQinq (Commissioner Cohen): (This item was removed from the
agenda by Commissioner Cohen)
Other Business: Consensus of Commission that any requests for donations
received by the City should be responded to by the City Manager advising of our
current policy.
The meeting adjourned at 12 noon.
Approved by the Commission on
Teresa M. Smith, CMC, City Clerk
Anyone wishing to appeal any decision made by the City Commission with respect to any matter considered at a
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 if made, which record includes the testimony and evidence upon which the appeal is to be
based.
2
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Commission
Resolution Authorizing Execution of Joint Project Agreement for
Landscaping of Biscayne Boulevard With FDOT
March 2, 1999 City Commission Meeting Agenda Item
RECOMMENDATION
it is recommended that the City Commission authorize the execution of the attached
Joint Project Agreement (JPA) for the Landscaping of Biscayne Boulevard between the
southern boundary of the City and Miami Gardens Drive with FDOT. The Agreement
authorizes the installation of landscaping and establishes FDOT to reimburse the City in
the amount of $292,800.
BACKGROUND
The City is seeking bids for the Beautification Improvement Project consisting of
Biscayne Boulevard Phase IV and the FEC Railroad landscape buffer. FDOT has
agreed to allow the City to assume the project and reimburse the City for the amount
allocated in their budget for landscaping. The City will receive $292,800 from FDOT.
FDOT requires the City to enter into the attached JPA before work can commence or a
permit can be issued.
The major points of the Agreement are as follows:
The project plans and any deviations require FDOT's approval.
The term of the Agreement is two years.
FDOT will reimburse the City in the amount of $292,800.
Approximately $780,000 has been budgeted for the roadway landscape and
beautification improvements.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
cc0717-99
RESOLUTION NO. 99-
A RESOLUTION OF THE CITY COMMSSION OF THE
CITY OF AVENTURA, FLORIDA AUTHORIZING THE CITY
MANAGER TO EXECUTE THE ATTACHED JOINT
PROJECT AGREEMENT FOR HIGHWAY LANDSCAPING
IMPROVEMENTS ALONG BISCAYNE BOULEVARD
PHASE FOUR BY AND BETWEEN THE CITY OF
AVENTURA AND STATE OF FLORIDA DEPARTMENT OF
TRANSPORTATION; AUTHORIZING THE CITY
MANAGER TO DO ALL THINGS NECESSARY TO CARRY
OUT THE AIMS OF THIS RESOLUTION; AND PROVIDING
AN EFFECTIVE DATE.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, THAT:
Section 1. The City Manager is hereby authorized to execute the attached
Joint Project Agreement for Highway Landscaping Improvements along Biscayne
Boulevard Phase Four by and between the City of Aventura and the State of Florida
Department of Transportation.
Section 2. The City Manager is hereby authorized to do all things necessary
to carry out the aims of this Resolution.
Section 3. This Resolution shall become effective
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 Arthur Berger
Commissioner Jay R. Beskin
immediately upon its
Resolution No. 99-
Page 2
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia Rogers-Libert
Vice Mayor Harry Holzberg
Mayor Arthur I. Snyder
PASSED AND ADOPTED this 2"d day of March, 1999.
ATTEST:
ARTHURI. SNYDER, MAYOR
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
EMS/tms
JEB BUSH
GOVERNOR
Florida De£artmen--t of Transportation
THOMAS F. BARRY, JR.
SECRETARY
Environmental Management Office
Room 6101
I000 NW 111t~ Avenue
Miami, Florida 33172
February 12, 1999
Antonio F. Tomei, Capital Projects Manager
City of Aventura
2999 N.E. 191 Street Suite 500
Aventura, FL 33180
RE: Joint Project Agreement for Landscaping for Biscayne Boulevard (Biscayne IV)
Dear Mr. Tomei,
In response to your request to install the landscape within the City of Aventura's section of the Biscayne IV project, the
Department has prepared the attached DRAFT Joint Project Agreement for your review.
If you have any questions or comments please call me at (305) 470-5463.
Sincerely,
Steven Craig James, RLA
District Landscape Architect
CC:
John Matinez Jr., FDOT
George Fisher, FDOT
Daniel lglesias, FDOT
Barbara Culhane, FDOT
Project File
www.dot, state.fl, us
JPA NO.
State Project No.
WPI No.
STATE OF FLORIDA DEPARTMENT OF TRA/~SPORTATION
JOINT PROJECT AGREEMENT FOR HIGHWAY LANDSCAPING
This AGREEMENT, entered into this __ day of , 1999,
by and between the STATE OF FLORIDA, Department of Transportation,
a component agency of the State of Florida, hereinafter called the
DEPARTMENT, and The CITY OF AVENTURA, an incorporated municipality
within the County of Dade, a political subdivision of the State of
Florida, hereinafter called the CITY.
WI TNE S S E TH:
WHEREAS, as part of the continual updating of the State of
Florida Highway System, the DEPARTMENT for the purpose of safety
has created roadside areas and median strips on various roads of
the State Highway System within the corporate limits of the CITY;
and,
WHEREAS, the CITY has determined that said median strips and
roadside areas shall be attractively landscaped with various flora;
and,
DRAFT
. 'g' 14-99 JPA NO.
· -~!iiqll State Project NO.
WPI NO.
WHEREAS, the parties hereto recognize
into an Agreement designating and
responsibilities of each party; and,
the need for entering
setting forth the
WHEREAS,
incorporated
the CITY by Resolution No. , adopted on
, attached hereto as Attachment "A" and
herein by reference thereto, desires to enter into
this Agreement and authorizes its officers to do so;
NOW, THEREFORE, for and in consideration of the mutual
benefits to flow each to the other, the parties covenant and agree
as follows:
1. The CITY shall provide the DEPARTMENT with
plans for the DEPARTMENT's right-of-way within
assigned location. The plans shall be subject
approval by the DEPARTMENT. The CITY shall not
without prior written approval from the DEPARTMENT. Said plans
shall, at a minimum, comply with the current DEPARTMENT Standard
Index and provide for the maintenance of traffic during
landscaping
the limits of the
to prior written
change said plans
current procedures
construction. Any lane closures must follow
and/or restrictions.
2. The terms of this Agreement shall commence when the
DEPARTMENT issues the CITY a Notice to Proceed. The CITY shall not
commence the work described in this Agreement until it has all
necessary permits to perform the work at the location. The CITY
2
JPA NO.
State Project No
WPI No
shall not deviate from the approved plans without prior written
approval by the DEPARTMENT.
3. Prior to any landscaping being performed under this Agreement,
an independent maintenance agreement shall be executed for the
particular site between the
DEPARTMENT shall not reimburse
said landscaping.
DEPARTMENT and the CITY. The
the CITY any costs of maintaining
4. It is understood between the parties hereto that the
landscaping subject to this Agreement may be removed, relocated or
adjusted at any time the DEPARTMENT deems necessary in order that
the adjacent State road be widened,
and maintained to meet with future
DEPARTMENT.
5. This Agreement or part thereof is
under any one of the following conditions:
a. Within thirty (30) days
consent by both parties.
b. The DEPARTMENT shall
altered or otherwise changed
criteria or planning of the
subject to termination
following mutual written
reserve the right to
unilaterally cancel this Agreement if the CITY refuses
public access to any or all documents, papers, letters,
materials made or received by the CITY pertinent to this
which are
Statutes.
to allow
or other
agreement
subject to provisions of Chapter 119 of the Florida
3
DRAFT
JPA NO
State Project No.
WPI No
6. The term of this Agreement is two years from the date of
execution thereof.
7. This writing embodies the entire Agreement and
understanding between the parties hereto, and there are no other
agreements, oral or written, regarding the subject matter hereof
that are not merged herein.
8. This Agreement is not transferable and may not be
assigned, in whole or in part, without prior written consent of the
DEPARTMENT.
9. This Agreement shall be governed by and construed
according to the laws of the State of Florida.
10. Nothing in this Agreement shall be construed to violate
the provisions of Section 339.135(6) (a), Florida Statutes, as
amended, which is incorporated herein verbatim as follows:
The DEPARTMENT, during any fiscal year shall not expend money,
incur any liability, or enter into any contract which, by its
terms, involves the expenditure of money in excess of the
amounts budgeted as available for expenditure during such
fiscal year. Any contract, verbal or written, made in
violation of this subsection, is null and void and no money
may be paid on such contract. The Department shall require a
statement from the Comptroller of the Department that funds
are available prior to entering into any such contract or
other binding commitment of funds. Nothing herein contained
shall prevent the making of a contract for periods exceeding
one year, but any contract so made shall be executory only for
the value of the services to be rendered or agreed to be paid
for in succeeding fiscal years; and this paragraph shall be
incorporated verbatim in all contracts of the Department which
are of an amount in excess of $25,000 and which have a term
for a period of more than one year.
4
bRAP
JPA '
NPi .
11 The DEPARTHENT will
re~mc~,rse .._ CiTY
· =n an amount nee
~o Hundred ~net¥-two ~ousand giF~h~ Bundred^Dollar~ ~($292,800)
toe~x~=~d~ ~%wr-ee Hundred and S-rx{?--e~ ~nousana ~Ollars
for the ,CITY te prepare plans and specificahions and install
landscaping and irrigation, bring lighting from the road to the
medians (with the approval ef the DEPARTHENT) , and to perform such
in accordance with said plans and specificauions. The removal~.
exotic plants, the instal!alien of iandscap~ng mazerials and hhe
irrigation system will require a permit from the DEPARTMENT
12. The DEPARTHENT agrees te pay the CiTY for the herein
described work in the manner as detailed in this Agreement.
13. Pa~en~ shall be made eniy after receipt and appreva! of
goods and services unless advance payments are authorized by the
State Comptroller under section 215.422{14), Florida Statutes.
14. If this Contract involves units ef deliverables, then
such units must be received and accepted in writing by the
DEPARTMENT'S Contract Manager prior te payments.
15. Bills for fees or other compensation for services er
expenses shall be submitted in dehail sufficient for a proper
preaudit and postaudit thereof.
16. The CITY should be awaze ef the following time frames·
Upon receipt, the DEP~THENT has five (5) working days to inspect
and approve the goods and services, unless the Agreement specifies
otherwise· The DEPARTHENT has 20 iays zo deliver a requesn for
pa!~P, ent (voucher) to ~he D~par~m~
5
RAFT
JPA NO.
State Project No.
WPI No.
days are measured from the latter of the date the invoice is
received or the goods or services are received, inspected and
approved.
17. If a payment is not available within 40 days, a separate
interest penalty at a rate as established pursuant to Section
215.422(3) (b), Florida Statutes, will be due and payable, in
addition to the invoice amount, to the CITY. Interest penalties of
less than one (1) dollar will not be enforced unless the CITY
requests payment. Invoices which have to be returned to the CITY
because of preparation errors by the CITY will result in a delay in
the payment. The invoice payment requirements do not start until
a properly completed invoice is provided to the DEPARTMENT.
18. A Vendor Ombudsman has been established within the
Department of Banking and Finance. The duties of this individual
include acting as an advocate for contractors/vendors who may be
experiencing problems in obtaining timely payment(s) from a state
agency. The Vendor Ombudsman may be contacted at (904) 488-2924 or
by calling the State Comptroller's Hotline, 1-800-848-3792.
19. Records of costs incurred under terms of this Agreement
shall be maintained and made available upon request to the
DEPARTMENT at all times during the period of this agreement and for
three years after final payment is made. Copies of these documents
and records shall be furnished to the DEP/ZRTMENT upon request.
Records of costs incurred includes the CITY'S general accounting
JPA NO.
Stane Project No.
WPI No.
records and the project records, together with supporting documents
and records, of the CITY and all subcontractors performing work
on the project, and all other records of the CITY and
subcontractors considered necessary by the DEPARTMENT for a proper
audit of costs.
20. A person or affiliate who has been placed on the
convicted vendor list following a conviction for a public entity
crime may not submit a bid on a contract to provide any goods or
services to a public entity, may not submit a bid on a contract
with a public entity for the construction or repair of a public
building or public work, may not submit bids on leases of real
property to a public entity, may not be awarded or perform work as
a contractor, supplier, subcontractor, or consultant under a
contract with any public entity, and may not transact business with
any public entity in excess of the threshold amount provided in s.
287.017 for CATEGORY TWO for a period of 36 months from the date of
being placed on the convicted vendor list.
21. The DEPARTMENT'S obligation to pay under this section is
contingent upon an annual appropriation by the Florida Legislature.
IN WITNESS WHEREOF the parties have caused these presents to
be executed the day and year first above written.
JPA NO.
State Project No.
WPI No.
CITY OF AVENTURA
STATE OF FLORIDA
DEPARTMENT OF TPJkNSPORTATION
DATE-
DATE:
By:
City Manager
By:
District Secretary
ATTEST:
City Clerk (Seal)
ATTEST:
Executive Secretary
APPROVED AS TO LEGAL FORM:
By:
City Attorney
By:
District General Counsel
TO:
FROM:
DATE:
SUBJECT:
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
City Commission ~J~e
Eric M. Soroka, City r
February 18, 1999
Appointment of Special rs for Code
Enforcement Process
March 2, 1999 City Commission Meeting Agenda Item '~ J~
RECOMMENDATION
It is recommended that the City Commission ratify the City Manager's re-appointment of
Judge Alfred ("Fred") Nesbitt and Herbert L. Kliger, J.D. and appointment of Robert A.
Friedman as Special Masters for the City of Aventura's Code Enfomement Process.
BACKGROUND
Section 4 of Ordinance 6-14, which established the City's Code Enfomement Process,
provides for the City Manager to appoint Special Masters, subject to City Commission
ratification, for a term of one year. It further provides that they may be re-appointed by
the City Manager, also subject to ratification by the City Commission. The above-
referenced individuals are submitted to you for re-appointment and appointment of
Special Masters.
In addition, we will be advertising in our next newsletter for additional residents who
wish to become Special Masters.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
CC0718-99
ROBERT A. FRIEDMAN
20780 N.E. 30th Place
Aventura, Florida 33180
(305) 692-9207
LEGAL EXPERIENCE
MILLER, KAGAN, RODRIGUEZ & SILVER, P.A., Coral Gables, FL June 1996-Present
Attorney: Represent workers' compensation employers/insurance carriers in all aspects of litigation
from discovery through trial. Attend depositions, meditations and heatings in connection with
litigation. Speak at client seminars and teach clients on changes in workers' compensation area of
law. Represent insurance carriers in civil litigation matters from discovery through trial.
HOFFMAN, LARIN & AGNETTI, P.A., Miami, FL Attgust 1995-June 1996
Attorney_: Represent workers' compensation claimants. Interview potential clients and attend to
client needs throughout duration of case. Prepare Requests for Assistance and Petitions for Benefits.
Attend hearings and depositions, prepare demands for settlement and participate in settlement
negotiations with insurance adjusters and employers/carriers. Assist in other areas of firm's practice
including personal injury, family law, bankruptcy, real estate, probate and social security disability.
HOFFMAN, LARIN & AGNETT1, P.A., Miami, FL May 1993-May 1995
Law Cleric: Researched and prepared legal memoranda in areas of commercial law, family taw,
bankruptcy, workers' compensation, copyright infringement and personal injury. Drafted complaints,
discovery documents and memoranda to state and federal courts including motions to dismiss and
motions for summary judgment. Assisted in client relations and trial preparation.
EDUCATION
ST. THOMAS UNIVERSITY SCHOOL OF LAW
J.D. degree, May 1995.
Honors: Dean's List
Activities: Honor Council
Trial Court Team
Sports and Entertainment Law Society
American Trial Lawyers Association
Intramural Sports League
UNIVERSITY OF FLORIDA
B.A. degree, December, 1991. Major in Criminal Justice.
Aclivitie~ Pi Lambda Phi Fraternity: Executive Council
Intramural Football, Basketball, Softball Leagues
Phi Alpha Delta Member (Pre-Legal Society)
SKILLS AND INTERESTS
Licensed insurance instructor for workers' compensation
Member of Florida Bar Association
Member of Coral Gables Bar Association
LEXIS, WESTLAW, WordPerfect, Microsoft and Time Matters
Knowledge of Spanish
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Commission _~/~
Eric M. Soroka, City/lV~anag~
February 19, 1999t.., ~
Ordinance Amending Lobbying Activities Requirements Definition
1st Reading March 2, 1999 City Commission Meeting Agenda Item
2nd Reading April 6, 1999 City Commission Meeting Agenda Item __
RECOMMENDATION
It is recommended that the City Commission adopt the attached Ordinance, which
amends the lobbying activities requirements to clarify the definition of a Lobbyist.
BACKGROUND
As per the City Commission's review and direction at the February Workshop Meeting,
the subject definition has been amended as follows:
(2) Lobbyist does not mean:
b. Any @ Person or its full-time employee, officer or owner who
appears before the City Commission, a City Board or committee, or
the City Manager or staff in an individual capacity for the purpose
of self-representation or for the representation of others without
compensation or reimbursement to express support of or in
opposition to any ordinance, resolution ......
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
cc0722-99
ORDINANCE NO. 99-
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
AMENDING CITY CODE CHAPTER 2, ADMINISTRATION,
ARTICLE VI, LOBBYING ACTIVITIES, BY AMENDING IN
SECTION 2-371(2) THE DEFINITION OF LOBBYIST;
PROVIDING FOR SEVERABILITY, INCLUSION IN THE
CODE AND AN EFFECTIVE DATE
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, AS FOLLOWS:~
Section 1. Chapter 2, Administration, Article VI, Lobbying Activities, Section 2-
371, Definitions, of the City Code of the City of Aventura is hereby amended to read as
follows:
Sec. 2-371. Definitions.
Lobbyist.
(2)
Lobbyist does not mean:
b. Any pPerson, or its full-time employee, officer or owner,
who appears before the City Commission, a City Board or
committee, or the City Manager or staff in an individual capacity for
the purpose of self-representation or for the representation of
others without compensation or reimbursement to express support
of or in opposition to any ordinance, resolution,...
Section 2. Severability. The provisions of this Ordinance are declared to be
severable and if any section, sentence, clause or phrase of this Ordinance shall for any
reason be held to be invalid or unconstitutional, such decision shall not affect the
validity of the remaining sections, sentences, clauses, and phrases of this Ordinance
but they shall remain in effect, it being the legislative intent that this Ordinance shall
stand notwithstanding the invalidity of any part.
~ Underlined text has been added; struck thm'.:'?,h text has been deleted from existing language.
Ordinance No. 99-__
Page 2
Section 3. Inclusion in the Code. It is the intention of the City Council, and it is
hereby ordained that the provisions of this Ordinance shall become and made a part of the
Code of the City of Aventura; that the sections of this Ordinance may be re-numbered or re-
lettered to accomplish such intentions; and that the word "Ordinance" shall be changed to
"Section" or other appropriate word.
Section 4. Effective Date. This Ordinance shall be effective immediately
upon adoption on second reading.
The foregoing Ordinance was offered by Commissioner , who
moved its adoption on first reading. This motion was seconded by Commissioner
and upon being put to a vote, the vote was as follows:
who
Commissioner
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia-Rogers Libert
Vice Mayor Harry Holzberg
Mayor Arthur I. Snyder
The foregoing Ordinance was offered by Commissioner ,
moved its adoption on second reading. This motion was seconded by
, and upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia-Rogers Libert
Vice Mayor Harry Holzberg
2
Ordinance No. 99-._.
Page 3
Mayor Arthur I. Snyder
PASSED AND ADOPTED on first reading this 2"d day of March, 1999.
PASSED AND ADOPTED on second reading this 6th day of April, 1999.
ATTEST:
ARTHURI. SNYDER, MAYOR
TERESA M. SMITH, CMC
ClTY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
/tms
3
CITY OF AVENTURA
OFFICE OF THE CITY CLERK
MEMORANDUM
TO:
FROM:
BY:
DATE:
SUBJECT:
City Commission
Eric M. Soroka, City Manager \ L.~
Teresa M. Smith, CMC, City Clef%-/~
February 22, 1999
Resolution Concerning Election of March 2, 1999
March 2, 1999 City Commission Agenda Item
Recommendation
It is recommended that the City Commission adopt the attached resolution concerning
the municipal election of March 2, 1999.
Back,qround
Pursuant to Section 26-1 of the Aventura City Code, the City Clerk shall present a
certification of election results to the City Commission for adoption by resolution. The
attached resolution submitted for your consideration declares qualifying unopposed
candidates elected to office without necessity of further conduct of election process.
Should you have any questions, please call me.
EMS/tms
attachment
RESOLUTION NO. 99-
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA CONCERNING THE CITY
ELECTION OF MARCH 2, 1999, DECLARING
QUALIFYING UNOPPOSED CANDIDATES ELECTED TO
OFFICE OF COMMISSIONER FOR SEATS 1, 3 AND 5
WITHOUT NECESSITY FOR FURTHER CONDUCT OF
ELECTION PROCESS, AS CERTIFIED BY THE CITY
CLERK; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, since only one candidate has qualified to run for each of the offices
of Commissioner Seat 1, Commissioner Seat 3 and Commissioner Seat 5, each of said
candidates is unopposed and is deemed elected by operation of law.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA; THAT
Section 1. The above recital is hereby confirmed and incorporated herein.
Section2. The following persons, each being unopposed as the sole
qualifying candidate for the respective office indicated, are hereby declared to be
elected to such office for a four-year term of office commencing on March 17, 1999.
COMMISSION SEAT 1
Harry Holzberg
COMMISSION SEAT 3
Arthur Berger
COMMISSION SEAT 5
Patricia Rogers-Libert
Section 3. This Commission does hereby declare that Harry HoIzberg shall hold
office as Commissioner Seat 1 until the third day next following the third Tuesday in
Resolution No.
Page 2
March subsequent to the occurrence of the election to fill the next regular term of office
for Commission Seat 1.
Section 4. This Commission does hereby declare that Arthur Berger shall hold
office as Commissioner Seat 3 until the third day next following the third Tuesday in
March subsequent to the occurrence of the election to fill the next regular term of office
for Commission Seat 3.
Section $. This Commission does hereby declare that Patricia Rogers-Libert
shall hold office as Commissioner Seat 5 until the third day next following the third
Tuesday in March subsequent to the occurrence of the election to fill the next regular
term of office for Commission Seat 5.
Section 6. The results of the election process, as certified by the City Clerk,
are hereby adopted.
This Resolution shall become effective immediately upon its adoption.
The foregoing Resolution was offered by Commissioner
its adoption. The motion was seconded by Commissioner
put to a vote, the vote was as follows:
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia Rogers-Libert
Vice Mayor Harry Holzberg
Mayor Arthur I. Snyder
, who moved
, and upon being
Resolution No.
Page 3
PASSED AND ADOPTED this 2"d day of March, 1999.
ARTHURI. SNYDER, MAYOR
ATTEST:
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
tms
CITY OF AVENTURA
TO:
FROM:
BY:
DATE:
SUBJECT:
COMMUNITY SERVICES DEPARTMENT
MEMORANDUM
City Commission
~rl :o~ ;SF°. r; koan~ eCl ,~
February 24, 1999
~jects Manager
Bid No. 99-2-12-2, Library and Mall Entrance Sidewalk and Curb
Improvements
March 2, 1999 City Commission Meeting Agenda Item 7._c ~
Recommendation
It is recommended that the City Commission adopt the attached Resolution awarding
Bid No. 99-2-12-2, Library and Mall Entrance Sidewalk and Curb Improvments to the
lowest responsible and responsive bidder, Colonna Construction Company, Inc. for the
price of $30,601.00. This project is included in the Capital Improvements Program.
Background
In accordance with the City's Purchasing Ordinance, bids for this project were solicited,
advertised, and opened on February 12, 1999. The City received three (3) bids for this
project and were as follows:
Colonna Construction Company, Inc.
Pios & Sons Enterprises
Marcs Brothers
$30,601.00
$31,807.05
$45,253.35
This bid price provides for the construction of approximately 340LF of 6FT sidewalk
and 2FT curb & gutter on the west side of NE 2gth Place in a southerly direction from
Aventura Boulevard (SVV 199th Avenue). In addition, a portion of the Library driveway
City Commission
February 24, 1999
Page Two
adjacent to 29th Place will be resurfaced, new guardrail will be placed adjacent to the
canal and two (2) roadway failure/settlement areas will be repaired.
The recommended bid is within the amount included in the budget.
If you have any questions or need any additional information, please feel free to
contact me.
AFT
Attachments
RESOLUTION NO.
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA AWARDING AND LETTING A BID/CONTRACT
FOR BID NO. 99-2-12-2, LIBRARY AND MALL ENTRANCE SIDEWALK
AND CURB IMPROVEMENTS, TO COLONNA CONSTRUCTION
COMPANY, INC., AT THE BID PRICE OF $30,601.00 AUTHORIZING
THE CITY MANAGER TO EXECUTE ASSOCIATED CONTRACTS;
AUTHORIZING THE CITY MANAGER TO TAKE NECESSARY AND
EXPEDIENT ACTION TO CARRY OUT THE AIMS OF THIS
RESOLUTION; PROVIDING FOR THE APPROPRIATION AND
ALLOCATION OF FUNDS FOR SAID BID AWARD; AND PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, the City Manager of the City of Aventura, Florida, has, pursuant to
the various laws of the State of Florida and the Code of the City of Aventura, properly
solicited and accordingly accepted bids for BID NO. 99-2-12-2, Colonna Construction
Company, Inc.; and
WHEREAS, sealed bids have been submitted to and received by the City
pursuant to the City's Invitation to Bid/Notice to Bidders, specifications, proposals, and
requirements for the project/work as cited above; and
WHEREAS, staff has determined that Colonna Construction Company, Inc., has
submitted the lowest responsible and responsive bid for said project/work; and
WHEREAS, the City Commission, upon the recommendation of the City
Manager, is therefore desirous of awarding said bid/contract to said lowest responsible
and responsive bidder;
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA:
Section 1: That bid/contract for BID NO. 99-2-12-2, Library and Mall Entrance
Resolution No.
Page 2
Sidewalk and Curb Improvements, is hereby awarded to Colonna Construction
Company, Inc. in the amount of $30,601.00.
Section 2: The City Manager is hereby authorized to execute, on behalf of the
City, a contract by and between the parties embodying the terms, conditions,
specifications as set forth in the subject Invitation to Bid/Notice to Bidders, bid
specifications, bid proposal and bid requirements, or if a City prepared contract was
part of said bid proposal, said parties shall execute said prepared contract on behalf of
the City.
Section 3: That the City Manager is hereby authorized and requested to take
all necessary and expedient action to carry out the aims of this Resolution in awarding
this bid/contract.
Section 4: That the funds to be allocated and appropriated pursuant hereto
and for the purpose of carrying out the tenets of this Resolution shall be from the
Capital - Walkways/Sidewalk Line Item No. 001-8050-541-6302.
Section $: This Resolution shall be effective immediately upon its adoption.
The foregoing resolution was offered by
The motion was seconded by
vote was as follows:
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Pedow
Commissioner Patricia Rogers-Libert
Vice Mayor Harry Holzberg
Mayor Arthur I. Snyder
, who moved its adoption.
and upon being put to a vote, the
Resolution No.
Page 3
PASSED AND ADOPTED this 2nd day of March, 1999.
ATTEST:
TERESA M. SMITH
CITY CLERK
ARTHURI. SNYDER, MAYOR
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
CITY OF AVENTURA
COMMUNITY DEVELOPMENT DEPARTMENT
MEMORANDUM
TO:
FROM:
BY:
DATE:
SUBJECT:
City Commission
Eric M' S°r°ka' C~.~g~
Brenda Kelley, Co~elopment
February 26, 1999
Directt~
Petition of Gary Cohen, Trustee, for Final Plat approval of Island Estates
Phase I. (01-SUB-99)
March 2, 1999 City Commission Meeting Agenda Item
RECOMMENDATION
It is recommended that the City Commission approve the Island Estates Phase I Final
Plat.
THE REQUEST
The Applicant, Gary Cohen, is requesting Final Plat approval of the subject property
with the intent of constructing 22 single-family dwelling units. (Letter of intent is attached
as Exhibit #1)
BACKGROUND
OWNER OF PROPERTY
NAME OF APPLICANT
Gary Cohen, Trustee, Trust 75-LT-21.
Gary Cohen, President, Two
Development Corporation
Islands
LEGAL DESCRIPTION
LOCATION OF PRPERTY
SIZE OF PROPERTY
A RE-PLAT OF TRACT "A" OF "TWO
ISLANDS IN DUMFOUNDLING BAY", (P.B.
141, PG. 66) LYING IN SECTION 10 AND
SECTION 11, TOWNSHIP 52 SOUTH,
RANGE 42 EAST, MIAMI-DADE COUNTY,
FLORIDA
East of Williams Island Boulevard on the south
island (Tract A) in Dumfoundling Bay. (See
Exhibit #2 for location map and Exhibit #3 for
aerial photograph of site.)
Approximately 14.07 acres
DESCRIPTION/BACKGROUND
The applicant proposes to construct twenty-two (22) zero lot line single-family homes on
the south island. The units will front on a single street bisecting the island. A private
marina is located at the north end of the island and will be maintained as an ancillary
use to the development.
On September 1, 1998, the City Commission approved Resolution No. 98-77 granting a
non-use variance to waive the requirement for a sidewalk on both sides of the street.
On September 12, 1998, the City granted Administrative Site Plan Approval for the
south island. On June 29, 1998 the City approved the tentative plat for the site. Miami-
Dade County requested minor changes to the tentative plat. The applicant has
completed these changes and resubmitted the plat to the County for approval, which is
pending.
ANALYSIS
Site Plan - A site plan for twenty-two (22) single family homes was approved by the
City on September 12, 1998.
Zoning - RU-4, Apartment House District.
Future Land Use Designation - The adopted City of Aventura Comprehensive Plan
designates the site as Medium High Density Residential.
Access - Tract "D" of the plat maintains a bddge ingress and egress easement to the
mainland. Tract "H" of the plat maintains a private road easement bisecting the island
and proving access to all building lots. Tract "C" of the plat maintains a bridge
easement to the north island. Access to the public right-of-way of Williams Island
Boulevard is maintained by private agreement between the applicant and Williams
Island Associates.
2
Letter of Intent
Two Islands Development Corp. intends to proceed to Final Plat of it's first phase of twenty-two
(22) single family homes of the Island Estates project so that it can finish it's development work
and construct the single family homes.
75-LT-
~hen, Trustee
EXHIBIT #1
01-SUB-99
BROWARD COUNT~
DADE COUN'I~
Promenade
Park
- WATERWAYS E
YACHT CLUB DR.
WAY CIRCLE
~.~.
Shoppes 207 ST. L_~
3LUB DR.
201 TER.
Mall
192 ST.
~ of Aventura
! 88 ST.
33180
331
Dura foundling
Bay
SITE
Atlantic
Ocean
LEGEND
Roadways
City Bounda~/
ZIP Code
01-SUB-99
SITE
EXHIBIT #3
01-SUB-99
RESOLUTION NO.
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA APPROVING THE
ISLAND ESTATES PHASE I FINAL PLAT SECTION 10
AND SECTION 11, TOWNSHIP 52 SOUTH, RANGE 42
EAST CITY OF AVENTURA, MIAMI-DADE COUNTY,
FLORIDA; PROVIDING FOR RECORDATION; PROVIDING
AN EFFECTIVE DATE.
WHEREAS, Gary Cohen, Trustee, by and through Application No. 01-SUB-99,
has requested Final Plat approval for Island Estates Phase I, Section 10 and Section
11, Township 52 South, Range 42 East, City of Aventura, Miami-Dade County, Florida,
the Final Plat being incorporated herein by reference and made a part of this
Resolution as Exhibit #1; and
WHEREAS, at a duly advertised public meeting, the City Commission heard,
reviewed and duly considered the reports, findings and recommendations of the City
Administration, together with testimony at the public meeting, and upon deliberation,
finds that Final Plat approval is in the best interests of the citizens of the City of
Aventura.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, THAT:
Resolution No.
Page 2
Section I. The final plat for Island Estates Phase I, Section 10 and Section 11,
Township 52S, RANGE 42E, of the Public Records of Miami-Dade County, Florida as
more particularly described as:
A RE-PLAT OF TRACT "A" OF "TWO ISLANDS IN
DUMFOUNDLING BAY", (P.B. 141, PG. 66) LYING IN
SECTION 10 AND SECTION 11, TOWNSHIP 52 SOUTH,
RANGE 42 EAST, MIAMI-DADE COUNTY, FLORIDA
is hereby granted exclusively to the Applicant.
Section 2.
face of the Plat.
Section 3.
Dade County, Florida, with the petitioner to pay the costs thereof.
Section4. This Resolution shall become effective immediately
The City Manager and City Clerk are hereby authorized to sign the
This Resolution shall be recorded in the Public Records of Miami-
adoption.
The foregoing Resolution was offered by
its adoption. The motion was seconded by
put to a vote, the vote was as follows:
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia Rogers-Libert
Vice Mayor Harry Holzberg
Mayor Arthur I. Snyder
upon its
, who moved
., and upon being
Resolution No.
Page 3
PASSED AND ADOPTED this 2nd day of March, 1999.
ATTEST:
Arthur I. Snyder, Mayor
Teresa M. Smith, CMC, City Clerk
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
This Resolution was filed in the Office of the City Clerk this __
day of
, 1999.
CITY CLERK
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City CommissiO~o.~a~
Eric M Soroka,
February 25, 1999 ~
Disbursement of Police Forfeiture Funds
March 2, 1999 City Commission Meeting Agenda Item ~- (~
RECOMMENDATION
It is recommended that the City Commission adopt the following Motion to Expend
Funds from the Police Forfeiture Fund:
"Motion authorizing the appropriation of up to $45,000 for police radios and Drug
and Crime Prevention programs from the Police Forfeiture Fund in accordance
with the City Manager's memorandum".
BACKGROUND
As per the attached Staff Report, the Police Chief
appropriate Police Forfeiture Funds as follows:
1.
has requested approval to
Purchase radio equipment for increased personnel in the amount of
$35,ooo.
Provide funding for Drug and Crime Prevention programs in the amount of
$10,000.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
cc0724-99
02/24/99 WED I4:27 FAX 305 466 8990 AYEN'TU~RA POLICE DEPT. ~100i
TO:
FROM:
DATE:
SUBJECT:
CITY OF AVENTURA
POLICE DEPARTMENT
INTER OFFICE MEMORANDUM
Eric M. Soroka, City Manager
Thom~ef of Police
February 24, 1999
Use of Forfeiture Funds
Flodda State Statutes 932.704 & 932.7055 requires that money resulting from
forfeitures be maintained in a special law enforcement trust fund, and that the
funds be expended only upon request of the Chief of Police to the governing
body of tile municipality and approval of the governing body.
I am requesting City Commission approval for the expenditure of $45,000.00
These items were not originally included in the Capital Budget for this fiscal year.
· Police Radios $35,000.00
· Little Acorns $ 5,000.00
· Cdme Stoppers $ 5,000.00
Total Expenditure Request:
$45,000.00
I ced/fy that this requested expenditure complies with Florida State Statute
932.7055 in that:
1. Funds will be used for an appropriate law enforcement purpose.
2. Funds are not being used as a normal source of revenue for the
Police Department.
3. Funds were nor; considered in the adoption and approval of the budget
of the Police Department.
Radio Equipment
Funds will be used to pumhase police radios that were not budgeted. Due to an
increase in personnel the additional radios are necessary for operations. The
funds will be used to purchase 7 handheld radios, 8 mobile radios, 7 desk
chargers and 2 microphones.
Little Acorns & Crime Stoppers
Law Enforcement Trust Fund procedures mandate that 15% of trust fund
proceeds be spent on Cdme & Drug Prevention programs. Little Acorns Children
and Family Programs has been selected to receive a $5,000.00 donation to
assist in program funding. Crime Stoppers has also been selected to receive a
$5,000.00 donation.
2-19-~999 12~1~PH
Children & Family Pros rams, inc.--
Mr. Thomas Ribel, Clgef of Pollce
Avcmorn Polic~ ~t
296O Aventura Boulevard
Aventurn~ FL 331g0
tel~OS-466-S989;fax-$990
~ Chid Ribel,
I nm writing to thank you again for your City's generous conlldbution of last year when you
made a grant of $5,000 to Little ~m
Would you be willing to repeat that gift a~-;,-, at this time for the current yealq
Litile Acorns Children & Family Programs, Inc:, is a non-profit tax-exempt $01(cX3)
educaliorml organization. It was founded in 1978, and sincc 1954 has opcrated a juvenile drug
arid crime preventloe training plx~ram. The ll'aioieg is provids~ withotlt charge. We tm'get high-
risk children. They arc high risk for drugs and gav4g involvement, or simply for becoming
dropoms, or for premature sexual activity. Sometimes lhese children are ~ risk because they
live in bad neighbodloods, but somethncs affluent kids become ~ 6sk for a great variety of
reasons having nothing to do with family income or zip code.
In our work~ we provide a comprehensive training program to strer~gthen the family. We do
this by teaching parents better parenting skills..We also teach the kids howto tell the difference
between genuine ~endship and subtle manipulation, and how to succeed in school and at life.
This training is free, and in threa languages. It takes place in ei~mcntary schools. Since 1954, we
have graduated more than 4,000 parents and kids, with an $5% success rate.
Mentoring is an important'pan of the work. As part of mentorin~, we created "Kids 'n
Cops 'n Kites", which sets up workshops in area parks where kids and cops build and fly kites
together. II's our way of helping kids realize that puli~ oflicets are not their enemies,
Sincerely yours,
1[~'. Rick G~lin~,
B~'uti~* Co-Dir~a:or, Littl~ Acorns, I~.
qll~l w,a~/. Little/kc, ores. o rg ~ info~LittleAcom~.or~
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Commissio~~
Eric M. Soroka,
February 25, 19~
Ordinance Establishir
tg~-Mehicle
Handbill Regulations
First Reading March 2, 1999 City Commission Meeting Agenda Item ~'- fi
Second Reading April 6, 1999 City Commission Meeting Agenda Item ~
RECOMMENDATION
It is recommended that the City Commission adopt the attached ordinance that
establishes vehicle handbill regulations.
BACKGROUND
As requested by the City Commission, attached please find an ordinance which
regulates the placement of vehicle handbills as follows:
1. Prohibits the placement of handbills on any vehicle while parked upon any street
or highway.
2. Prohibits the placement of handbills on any vehicle parked in an off-street
parking area, provided that signs are posted or notice issued that such activity is
prohibited.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
cc0726-99
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA, ADOPTING VEHICLE HANDBILL ORDINANCE
PROHIBITING THE DEPOSIT OR PLACEMENT OF
COMMERCIAL ADVERTISING MATERIAL UPON
VEHICLES PARKED ON STREETS OR PARKED UPON
CERTAIN OFF-STREET PARKING AREAS; PROVIDING
FOR PURPOSE AND LEGISLATIVE FINDINGS;
PROVIDING DEFINITIONS; PROVIDING APPLICABILITY;
PROVIDING PROHIBITION OF VEHICLE HANDBILLS;
PROVIDING SlGNAGE REQUIREMENTS; PROVIDING
FOR INCLUSION IN CODE; PROVIDING FOR
SEVERABILITY; PROVIDING FOR PENALTY;
PROVIDING FOR EFFECTIVE DATE.
IT IS HEREBY ORDAINED BY THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA, AS FOLLOWS:
Section 1. Ordinance Adopted. There is hereby adopted the City of Aventura
Vehicle Handbill Ordinance, hereinafter referred to as the "Ordinance," to read as
follows:
Section 1.01. Purpose and Legislative Findings.
(a) The City Commission finds that the placement of Handbills upon
Vehicles situated upon Public Streets or Highways and upon Vehicles
situated upon Off-Street Parking Areas provided for the use of patrons,
employees or visitors of private commercial establishments, including
business or shopping centers, constitutes a nuisance and annoyance to
the owners and operators of such Vehicles, to the owners and occupants
of such private premises and to the public, for the reasons described
herein.
(b) The City Commission finds that the placement of Handbills upon
Vehicles, without the consent of the owner, lessee or operator of such
Vehicle, upon or in the vicinity of the windshield of such Vehicle, creates a
potential traffic safety hazard, for the reason that Vehicle operators may
not notice such Handbill until after entering such Vehicle and resuming
operation thereof, and that therefore, such Handbill may remain upon and
obstruct the view of Vehicle operators or may cause operators to abruptly
dangerously exit their Vehicle to remove such obstruction.
Ordinance No. 99-__
Page 2.
(c) The City Commission finds that Handbill materials placed upon or
in the vicinity of Vehicle windshields impair the functioning of windshield
wipers by the formation of residue or debris from paper or other like
material of Handbills which interferes with safe and efficient operation of
such windshield wipers.
(d) The City Commission finds that the placement of Handbills upon an
unoccupied Vehicle without the consent of the owner, lessee or operator
thereof, creates an unnecessary risk that litter will be created by the
disposal of unwanted and unrequested Handbills.
(e) The City Commission finds that: (i) this ordinance seeks to
implement a substantial governmental interest, including the City's interest
in traffic safety and aesthetics, as described above, (ii) directly advances
that substantial governmental interest of the City, and (iii) reaches no
further than necessary to accomplish the City's governmental objective as
stated herein.
Section 2.01. Definitions.
The following words, terms and phrases, when used in this section shall
have the meaning ascribed to them herein, except where the context
clearly indicates a different meaning:
(a)
The term "Street or Highway," as used herein means the entire
width between the boundary lines of every way or place of
whatever nature when any part thereof is open to the use of the
public for purposes of vehicular traffic, and also includes private
roads which are subject to a traffic control jurisdiction agreement
pursuant to Section 316.006(2)(b), Fla. Stat.
(b)
"Off-Street Parking Area" as used herein means the entire width
between the boundary lines of any privately owned way or place
used for vehicular travel by the owner and those having express or
implied permission from the owner, but not by other persons and
includes parking lots provided by commercial establishments,
institutions or governmental units for the use of employees, visitors
and/or patrons.
(c)
The term "Park or Parked," as used herein in reference to a
Vehicle, means the standing of a Vehicle, when not occupied by
any person.
Ordinance No. 99-__
Page 3
(d)
The term "Vehicle," as used herein means every device, in, upon,
or by which any person or property is or may be transported or
drawn upon a Street or Highway.
(e)
The term "Handbill," as used herein includes any leaflet, circular,
flyer, placard or other device or item containing Commercial
Advertising Material.
(f)
The term "Commercial Advertising Material," as used herein means
and includes material distributed for the purpose of advertising any
business, or any goods, or any services, or for the purpose of
attracting the attention of the public or the occupant of a Vehicle to
or advertising for, or soliciting patronage of customers to or for any
performance, show, entertainment, exhibition, sale, service, or
event, or for the purpose of demonstrating any equipment or for the
purpose of conducting a business.
(g)
The term "Non-Commercial Purpose," as used herein shall mean
the distribution of material for a purpose which is exclusively other
than for the purpose of distributing Commercial Advertising
Material. Accordingly, Non-Commercial purpose shall mean and
include a political or religious purpose.
Section 2.02. Applicability.
The prohibitions of this ordinance shall not be applicable to Handbills
distributed in accordance with law for solely a Non-Commercial Purpose.
Section 2.03. Prohibition of Vehicle Handbills.
(a) No person shall deposit or place or cause the deposit or placement
of any Handbill upon any unoccupied Vehicle while such Vehicle is Parked
upon any Street or Highway.
(b) No person shall deposit or place or cause the deposit or placement
of any Handbill upon any unoccupied Vehicle while such Vehicle is Parked
upon any Off-Street Parking Area, as described in Section 2.01(b) above,
provided that signs are posted in accordance with Section 2.04 below.
(c) No person shall deposit or place or cause the deposit or placement
of any Handbill upon any unoccupied Vehicle Parked upon any Off-Street
Parking Area after having received notice that such activity is prohibited
pursuant to Section 2.04(a)(2) below.
Ordinance No. 99-
Page 4
(d) This section shall not be applicable to Handbills which are
otherwise lawfully placed upon a Vehicle by the owner, lessee or operator
of such Vehicle or to official citations or notices placed pursuant to
governmental authority.
Section 2.04. Signage Requirements Applicable To Off-Street
Parking Areas.
As a condition precedent to the enforcement of the prohibition set forth in
Section 2.03(b) above, it shall be required that the owner or lessee of an
Off-Street Parking Area provide signage complying with the following
requirements:
(a)
Notice shall be posted on the property at which Vehicle Handbills
are prohibited, and shall fulfill the following requirements:
(1)
Notice, in the form of a sign structure, shall be prominently
placed at each driveway access or curb cut allowing Vehicle
access to the property, within five feet from the public right of
way line. If there are no curbs or access barriers, signs shall
be posted not less than one sign for each 25 feet of lot
frontage. One sign shall also be posted at a primary
pedestrian access point for the property, if such point is
separated from the area of the driveway or curb cut. The
sign structures shall be permanently installed with the
bottom of the sign not less than four feet above ground level
and the top of the sign not more than 10 feet above ground
level, and shall be continuously maintained on the property
for not fewer than 24 hours before the Vehicle Handbill
prohibition may be enforced. The notice shall clearly
display: not less than two inches high, light-reflective letters
on a contrasting background, that: "Placement of Handbills
upon Vehicles is Prohibited by City Ordinance".
(2)
The posting of notice requirements of this section shall not
be required where notice is personally given (verbally or in
writing) by an agent of the person in control of the premises,
in the presence of a law enforcement officer, to the person
attempting or intending to place Handbills upon Vehicles,
that the placement of Handbills upon a Vehicle is prohibited
by City Ordinance.
4
Ordinance No. 99-__
Page 5
Section 2. Penalty. Any person who violates any provisions of this Ordinance
shall, upon conviction, be punished by a fine not to exceed $500.00 or imprisonment in
the County jail not to exceed sixty (60) days or both such fine and imprisonment. Each
day that a violation continues shall be deemed a separate violation. This Ordinance
shall be subject to enforcement under the Local Government Code Enforcement Act,
Chapter 162, F.S., as amended, and City Code Section 2-331, et.seq., as amended.
Enforcement may also be by suit for declaratory, injunctive or other appropriate relief in
a court of competent jurisdiction.
Section 3. Severabilit¥. The provisions of this Ordinance are declared to be
severable and if any section, sentence, clause or phrase of this Ordinance shall for any
reason be held to be invalid or unconstitutional, such decision shall not affect the validity
of the remaining sections, sentences, clauses, and phrases of this Ordinance but they
shall remain in effect, it being the legislative intent that this Ordinance shall stand
notwithstanding the invalidity of any part.
Section 4. Inclusion in the Code. It is the intention of the City Commission, and it
is hereby ordained that the provisions of this Ordinance shall become and made a part of
the Code of the City of Aventura; that the sections of this Ordinance may be renumbered
or relettered to accomplish such intention; and that the word "Ordinance" shall be changed
to "Section" or other appropriate word.
Section 5. Effective Date. This Ordinance shall be effective immediately upon
adoption on second reading.
Ordinance No. 99-
Page 6
The foregoing Ordinance was offered by Commissioner
moved its adoption on first reading. The motion was seconded by
Commissioner
, and upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia Rogers-Libert
Vice Mayor Harry Holzberg
Mayor Arthur I. Snyder
The foregoing Ordinance was offered by Commissioner
moved its adoption on second reading. The motion was seconded by Commissioner
, and upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia Rogers-Libert
Vice Mayor Harry Holzberg
Mayor Arthur I. Snyder
PASSED AND ADOPTED on first reading this 2nd day of March, 1999.
PASSED AND ADOPTED on second reading this 6t~ day of April, 1999.
ATTEST:
ARTHURI. SNYDER, MAYOR
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
CITYATTORNEY
CITY OF AVENTURA
FINANCE SUPPORT SERVICES DEPARTMENT
MEMORANDUM
TO:
FROM:
BY:
DATE:
SUBJECT:
City Commission
~~'~'~ r
HaYry M. Kil[~ore,~pport Services Director
February 25, 1999
Resolution Authorizing Participation in Florida Municipal Loan Council
Program to Finance Government Center Complex
March 2, 1999 Commission Meeting Agenda Item
Recommendation
It is recommended that the City Commission approve the attached resolution authorizing
the City's participation to provide funds to repay the Line of Credit and to pay remaining
costs associated with the Government Center complex.
Background
As you are aware, we need to establish long term financing to repay the line of credit with
Nations Bank (formerly Barnett Bank) and provide the funds necessary to complete the
Government Center/Police Station/Commission Chambers (Government Center Complex).
After working with our financial advisor, Percy Aguilar of Rauscher Dane (formerly
Rauscher Pierce Refsnes), I believe it to be appropriate to obtain the financing through the
Florida Municipal Loan Council as discussed below.
For the past two and a half years, we have planned on issuing long term debt to fund the
cost of acquiring land for Founder's Park and the land, construction and design of the
Government Center complex. However, due to the uncertainties relating to the cost of both
the land and construction, we obtained interim financing via a line of credit in December
1996. That line of credit was for a maximum of $10 million dollars over a maximum period
of three years and carries an interest rate of 4.58%.
To date, we have drawn $6.9 million on the line of credit to purchase the land for the park
and government center complex and associated costs. Because we have substantially
completed the design of the complex and entered into a contract with James A. Cummings
for construction of the complex, we now need to look into refunding the line of credit and
obtain the balance which will be required to complete the project.
Page (2)
Resolution Authorizing Participation in
Florida Municipal Loan Council Program to
Finance Government Center Complex
Together with Mr. Aguilar, I have reviewed the alternative methods for obtaining long term
financing. Briefly stated, there were three primary methods which we could have used.
They were to finance the program on our own through either a negotiated or public sale or
to join with others in a pooled borrowing arrangement.
Based on the specifics of our borrowing, both Mr. Aguilar and I believe that the Florida
Municipal Loan Council program best meets the City's needs. The advantages of this
approach are summarized below:
1. A pooled program is designed to allow the participants to receive a lower interest rate
and cost of issuance than could be obtained by going on their own. However, some
pooled programs have limitations on size or the length of the borrowing. The Florida
Municipal Loan Council (FMLC) program allows terms of up to thirty years and will
accept Aventura for the amount needed.
2. The timing of the FMLC ties in very well with the City's schedule. We anticipate a
closing in mid April 1999.
3. The FMLC does not require that a portion of the proceeds be used to fund a debt
service reserve. This allows for the amount borrowed to be less, resulting in lower
yearly debt service requirements.
4. The program is designed to allow for the collateral to be our "covenant budget and
appropriate non-ad valorem revenues." This allows us to fully utilize all revenues rather
than requiring the pledged revenues be deposited to a debt service fund.
5. The use of this program is significantly less time consuming in that we will not be
required to issue an official statement or take other action on our own.
6. Unlike some other pooled programs, there is no cross collateralization between
borrowers and our rate will be dependent solely upon our credit worthiness.
7. Since the FMLC is administered by the Florida League of Cities, all participants have
similar interests and will result in an excellent program.
A summary of the Florida Municipal Loan program and a computation of the amount to be
borrowed is attached. The exact interest rate of the borrowing will be determined over the
next month and a half. At this point we anticipate the rate to be in the 5.25% range for the
thirty-year term of the borrowing. Therefore, the debt service amount included in the
budget and CIP is more than sufficient to cover debt service requirements.
As stated earlier, based on the foregoing, Percy ^guilar from Rauscher and I both feel that
the program is appropriate to our Financing needs. I, therefore, recommend that the City
Commission adopt the resolution allowing participation I the program.
HMK/mn
FSS250-99
Florida Municipal Loan Program
The only bond loan program in the state of Florida sponsored and administered by the Florida
League of Cities. This new program is designed to give small issuers access to the tax-exempt
capital markets at the same cost that larger issuers pay. The program is not only designed to save
you money but it is also simple to administer for your staff. Any local government authorized to
issue tax-exempt municipal bonds in Florida is eligible for this program.
Borrower:
Loan Amounts:
Issuer:
Purpose:
Interest Rate:
Term:
Line of Credit:
Collateral:
Cost of Issuance:
Debt Service Reserve:
Applicatiou:
Any local government authorized to issue tax-exempt municipal bonds in
Florida.
$I Million and larger.
Florida Municipal Loan Council (A board of trustees of the Florida
League of Cities)
To provide local governments a method in which to borrow money for
capital projects which will save money due to the economies of scale
reached by pooling their needs.
The bond issue will be a lax exempt fixed interest rote at the time the
bonds are issued. The bonds will probably be issued sometime in March
of 1999.
Terms are available up to 30 years.
A tax exempt line of credit is available through First Union National
Banks for those public entities needing to get started immediately. Once
the bonds are issued your line of credit will be paid off with the proceeds
from the bond issue.
The collateral for the loan will be your govemment's covenant to budget
& appropriate non-ad valorem revenues or a pledge of a particular
revenue source. There is no cross collateralization between borrowers.
The cost of issuance is estimated to be about 1.5% of the amount
borrowed.
No additional funds will need to be borrowed to fund a debt service
reserve.
One simple application for the line of credit and the bond program.
1999 Long Term Financing
Amount
Park Site Purchase
Government Center Site Purchase
Government Center
Contingency
Architect/Legal/Issuance costs
Proceeds Required
Bond Issue Costs &
Insurance Premiums
Debt Service Reserve
Total
3,037,100
3,400,000
13,060,000
435,000
752,900
$ 20,685,000
316,000
$ 21,000,000
Estimated Annual Debt Service Requirements
30 Year Bond Issue $1,400,000
ClP Projection $1,450,000
RESOLUTION NO.
A RESOLUTION OF THE CITY OF AVENTURA, FLORIDA,
AUTHORIZING THE EXECUTION AND DELIVERY OF AN INTERLOCAL
AGREEMENT WITH OTHER GOVERNMENTAL UNITS WHICH HAVE
CREATED THE FLORIDA MUNICIPAL LOAN COUNCIL; AUTHORIZING
THE NEGOTIATION OF A LOAN IN AN AGGREGATE AMOUNT NOT TO
EXCEED $21,000,000 FROM THE FLORIDA MUNICIPAL LOAN
COUNCIL; APPROVING THE ACQUISITION, CONSTRUCTION AND
ERECTION OF CERTAIN CAPITAL PROJECTS; APPROVING THE
EXECUTION AND DELIVERY OF A LOAN AGREEMENT WITH THE
FLORIDA MUNICIPAL LOAN COUNCIL; PROVIDING CERTAIN OTHER
MATTERS IN CONNECTION WITH THE MAKING OF SUCH LOAN; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, participating governmental units (the "Members") have created the
Florida Municipal Loan Council (the "Council") pursuant to a certain Interlocal Agreement
and pursuant to Chapter 163, Part 1, Florida Statutes, for the purpose of issuing its bonds
to make loans to participating Members for qualified projects; and
WHEREAS, the City of Aventura, Florida (the "Borrower"), a municipal corporation,
is duly created and existing pursuant to the Constitution and laws of the State of Florida
(the "State"); and
WHEREAS, the Borrower finds and declares that there is a substantial need for the
financing of qualifying projects permitted by Florida Statutes and the State Constitution;
and
WHEREAS, the Borrower possesses the ability to finance such projects on its own,
but has determined that a pooled financing program involving a limited number of local
governmental units which regularly undertake projects requiring significant debt financing
within the State of Florida with similar credit worthiness and high investment grade ratings
by nationally recognized rating agencies would provide for financing of such projects at
lower interest costs; and
WHEREAS, it is anticipated that the benefits of a pooled financing by the Borrower
with a limited number of governmental units with similar highly rated credit may be
obtained through promises to repay loans under the program and supported by a general
covenant to budget and appropriate for such purpose or by a specific pledge of taxes or
revenues; and
Resolution No. 99-__
Page 2
WHEREAS, by pooling the respective financial needs of these certain various local
governmental units, the Borrower will be able to access additional markets and expects to
receive the benefits of lower interest rates on more favorable terms associated with such
a large scale financing with such benefits being obtained for and inuring to the Borrower;
WHEREAS, the Borrower is authorized under Chapter 166, Florida Statutes, as
amended, and Part 1, Chapter 163, Florida Statutes, as amended, to enter into
interlocal agreements with other local governmental units of the State of Florida to
create a Council to issue revenue bonds and loan the proceeds for qualified projects
within the Borrower and of other such participating local governmental units; and
WHEREAS, the Borrower desires to participate in such a program with other cities
and other qualified governmental entities approving the Agreement; and
WHEREAS, the Council is in the process of issuing its Florida Municipal Loan
Council Revenue Bonds, Series 1999 (the "Bonds") and is seeking to make loans (the
"Loans") to Members, and
WHEREAS, it is hereby determined that a need exists to borrow funds to finance
the cost of the acquisition, construction and/or equipping of the qualifying projects set
forth on Exhibit B attached hereto (the "Projects"); and
WHEREAS, it is determined to be in the best interest of the Borrower to borrow
funds from the Council from the proceeds of the Bonds to finance the cost of the
Projects.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, AS FOLLOWS:
SECTION 1. AUTHORITY. This Resolution is adopted pursuant to chapter 166,
Florida Statutes, and other applicable provisions of law.
SECTION 2. AUTHORIZATION OF INTER LOCAL AREEMENT. The Interlocal
Agreement creating the Florida Municipal Loa (the "Council") attached hereto a, Exhibit
A is hereby approved and the-May collectively, of the Borrower are hereby authorized to
execute, deliver, and record on behalf of the Borrower the Interlocal Agreement in order
that the Borrower may enter into said Interlocal Agreement with other participating
governmental units in the State of Florida and participate in the pooled loan program.
SECTION 3. APPOINTMENT. The Finance Support Services Director is hereby
appointed as the Representative (as defined in the Interlocal Agreement) of the Borrower
for the Florida Municipal Loan Council.
Resolution No. 99-__
Page 3
SECTION 4.PROJECT. The acquisition, construction and erection of the Projects
are hereby approved.
SECTION 5. Due to the complicated nature of the financing and the ability of the
Council to access additional markets and for the Borrower to receive the benefits of lower
interest rates and issuance costs, it is hereby determined that it is in the best interest of
the Borrower that the Loan to the Borrower be made from the proceeds of the Bonds, as
opposed to the Borrower borrowing funds pursuant to a public sale.
SECTION 6. The City Manager or any other appropriate officers of the Borrower are
hereby authorized and directed to execute and deliver a Loan Agreement to evidence the
Loan, to be entered into by and between the Borrower and the Council in substantially the
form attached hereto as Exhibit C with such changes, insertions and omissions as may be
approved by the City Manager, the execution thereof being conclusive evidence of such
approval.
SECTION 7. The amount of the Loan of the Borrower evidenced by the Loan
Agreement shall not exceed $21,000,000. Such Loan shall be made at a discount which
shall include a pro-rata portion of costs of issuance incurred by the Council together with
a pro-rata portion of a reserve fund surety cost and shall bear interest and shall be
repayable according to the terms and conditions set forth in the Loan Agreement
authorized pursuant to Section 2 hereof with such changes, insertions and omissions as
may be approved by the City Manager. The redemption provisions, if any, relating to such
Loan shall be as provided in the Loan Agreement.
SECTION 8. The Bonds will be issued pursuant to a Trust Indenture to be executed
by the Council and a bank or trust company to be selected by the Council, as Trustee, and
such Trust Indenture, in substantially the form as attached hereto as Exhibit D is hereby
approved, with such changes, insertions and omissions as may be approved and/or
authorized by the Counicl.
SECTION 9. The City Manager or any other appropriate officers of the Borrower are
hereby authorized and directed to execute any and all certifications or other instruments
or documents required by this Resolution, the Loan Agreement or any other document
required by the Council as a prerequisite or precondition to making the Loan (including
but not limited to the execution of an agreement concerning compliance with existing or
proposed rules of the Securities and Exchange Commission concerning continuing
disclosure by the Borrower and all tax documents relating to the tax exempt status of the
Loan), and any such representations and agreements made therein shall be deemed to be
made on behalf of the Borrower. All action taken to date by the officers of the Borrower in
furtherance of the issuance of the Bonds and the making of the Loan is hereby approved,
confirmed and ratified.
SECTION 10. The Representative of the Borrower to the Council is hereby
authorized to approve the final rates of interest on the Bonds, and the redemption
provisions thereof, if any, on behalf of the Borrower.
Resolution No. 99-__
Page 4
SECTION 11. The Loan Agreement shall not be executed and delivered unless and
until the Borrower has received all information required by Section 218.385, Florida
Statutes.
SECTION 12. Pursuant to subsequent resolution, the Borrower may establish such
additional terms as it may so determine to be in the best interests of the Borrower.
SECTION 13. The City Manager or his designee are authorized to do all things
necessary to carry out the aims of this resolution.
SECTION 14. This resolution shall take effect 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 Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia Rogers-Libert
Vice Mayor Harry Holzberg
Mayor Arthur I. Snyder
PASSED AND ADOPTED this 2"~ day of March, 1999.
ATTEST:
Arthur I. Snyder, Mayor
Teresa M. Smith, CMC, City Clerk
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
EXHIBIT A
INTERLOCAL AGREEMENT
Exhibit A
INTERLOCAL AGREEMENT
THIS INTERLOCAL AGREEMENT, dated as of ., 1998 (the
"Agreement"), entered into among a limited number of governmental units, each one
located in the State of Florida, (the "Council Members"), which shall initially be the City of
Stuart, City of Deland and City of Rockledge with their participation evidenced by the
signatures of their authorized representatives;
WITNESSETH:
WHEREAS, each of the Council Members have the power to borrow funds, contract
loans and issue obligations pursuant to applicable law; and
WHEREAS, Part I of Chapter 163, Flodda Statutes, (the "lntedocal Act"), permits
the Council Members to enter into interlocal agreements with each other to jointly exemise
any power, privilege or authority which such Council Members share in common and which
each might exercise separately, permitting the Council Members to make the most efficient
use of their power by enabling them to cooperate on a basis of mutual advantage and
thereby provide services and facilities in a manner and pursuant to forms of governmental
organization that are in the best interests of such Council Members; and
WHEREAS, 163.01(7)(d), Flodda Statutes, authorizes the Council Members,
pursuant to an intedocal agreement, to create a separate legal entity to exercise the
common power of the Council Members to issue obligations for the purposes of financing
or refinancing capital projects pursuant to the Intedocal Act; and
WHEREAS, the City of Stuart, City of Deland and City of Rockledge have
determined that there is a substantial need to create such a legal entity to issue obligations
to provide funding to governmental entities located in the State of Florida, including the
Council Members, in order to finance or refinance capital projects within said govemmental
entities; :
NOW, THEREFORE, in consideration of the mutual covenants herein, it is mutually
agreed and understood among the Council Members that now or may hereafter execute
this Agreement, that the "Flodda Municipal LOan Council," a legal entity and public body
corporate and politic and a unit of local government for all of the privileges, benefits, power
and terms of the Intedocal Act (the "Council"), is hereby created and charged with the
structuring, administration and execution of the hereinafter described Program as follows:
ARTICLE I
DEFINITIONS
The following definitions shall govern the interpretation of this Agreement:
"Act" shall mean the Intedocal Act, Part II of Chapter 166, in the case of
municipalities, or Chapter 125, in the case of counties, Florida Statutes, and other
applicable provisions of law.
"Administrator" shall mean such program administrator selected by the Council to
administer the making, originating and servicing of the Loans or any portion thereof and
to act as the Council's agent as set forth in a Program Administration Agreement between
the Council and the Administrator. The initial Administrator shall be the Flodda League of
Cities, Inc., a Florida corporation.
"Agreement" shall mean this Intedocal Agreement, including any amendments or
supplements hereto, executed and delivered in accordance with the terms hereof.
"Board" or "Board of Directors" shall mean the Board of Directors of the Council,
such Board consisting of local elected municipal and/or county officials chosen in the
manner set forth in Article III hereof. Each member of the Board of Directors shall be a
"Director."
"Bonds" shall mean the bonds, notes or other obligations issued by the Council
pursuant to an Indenture or Indentures as described in Article IV of this Agreement.
"Council" shall mean the Flodda Municipal Loan Council, a legal entity created
pursuant to the provisions of this Agreement and the Act.
"Council Member" or "Council Members" shall mean the member or members of the
Council, as shall be provided in this Agreement. The Council Members shall initially be the
City of Stuart, City of Deland and City of Rockledge.
"Indenture" or "Indentures" shall mean an Indenture of Trust or Indentures of Trust
to be entered into between the Council and a qualified trustee bank or banks, including any
amendments or supplements thereto executed and delivered in accordance with the terms
thereof. The Indenture or Indentures shall be in such forms and contain such provisions,
covenants, representations and restrictions as shall hereafter be approved by the Council.
"lntedocal Act" shall mean Part I of Chapter 163, Florida Statutes.
"Loan" means an amount equal to the outstanding obligation under a particular
Loan Agreement or Participation Agreement.
"Loan Agreements" or "Participation Agreements" shall mean the agreements,
includin~ the exhibits attached thereto, which the govemmental entities shall execute prior
2
to borrowing funds through the Program, which Loan Agreements or Participation
Agreements shall be in the forms approved by the Council.
"Program" shall mean the financing program of the Council created and structured
pursuant to the terms and conditions of this Agreement and the Program Documents.
"Program Documents" shall mean, collectively, the Indenture(s), any Loan
Agreements, any Participation Agreements and such other contracts relating to credit
enhancement, agreements, opinions of counsel and certificates as the Council shall deem
appropriate.
"Project" shall mean such capital improvements or facilities and other govemmenfal
undertakings as shall be financed or refinanced through the Program.
"Representative" shall mean that individual or official serving as a Council Member.
"State" shall mean the State of Florida:
'q'rustee" shall mean such entity to be :hereafter selected by the Council to act as
Trustee for the Program in accordance with the terms hereof, the Program Documents, and
any successor or assigns.
Whenever any words are used in thislAgreement in the masculine gender, they
shall be construed as though they were also in the feminine or neuter gender in all
situations where they would so apply, and whenever any words are used in this Agreement
in the singular form, they shall be construed as though they were also used in the plural
form in all situations where they would so apPly.
ARTICLE II
THE COUNCIL
SECTION 2.01. CREATION. The Council Members hereby create the "Florida
Municipal Loan Council," a legal entity created pursuant to this Agreement and the Act, as
an unincorporated non-profit association under State law, none of the profits of which shall
inure to the benefit of any private person.
SECTION 2.02. PURPOSE. The purpose of the Council is to enable participating
governmental entities to (a) finance or refinance Projects permitted by the Act on a
cooperative and cost-effective basis, (b) benefit from the economies of scale associated
with large scale financings which may otherwise be unrealized if separate financings were
undertaken and (c) maximize the benefits dedved from the availability of moneys provided
by the State for funding Projects.
SECTION 2.03. POWERS. (a) The Council is authorized for the purpose of
carrying out the Program to exemise all of the privileges, benefits, powers and terms of the
Act in connection with the authorization, issuance and sale of the Bonds pursuant to
Article IV. Such powers include, but are not limited to, the power to make and enter into
contracts and agreements necessary or incidental to the performance of its duties and the
execution of its duties under this Agreement; to employ consultants, advisors, experts,
attorneys and such other employees and agents as may, in the judgment of the Council,
be necessary, and to fix their compensation; to sue or be sued in its own name; to receive
and accept any aid or contributions from any soume of money, property, labor or other
things of value; to adopt a seal; and to adopt a place or places of its official meetings.
(b) No enumeration of powers herein shall be deemed exclusive or restrictive,
but shall be deemed to incorporate all implied powers necessary or incident to carrying out
the purposes of the Council.
SECTION 2.04. MEMBERSHIP. The Council Members shall consist of those
govemmental entities which have been admitted pursuant to Article III hereof.
SECTION 2.05. DURATION OF COUNCIL. From and after the date of its creation,
the Council shall exist so long as any Bonds of the Council or obligations of any
participating governmental entities under the Program remain outstanding. Upon
termination, any assets of the Council shall be allocated among the govemmental entities
in accordance with the terms of each applicable Program Document.
4
ARTICLE III
MEMBERSHIP, REPRESENTATION
SECTION 3.01. MEMBERSHIP. (a) Membership in the Council shall consist of
those govemmental entities which from time to time are listed on Exhibit A hereto, having
adopted an authorizing resolution in order to join the Council as a Council Member.
(b) The initial Council Members shall consist of.' The City of Stuart, City of
Deland and City of Rockledge.
(c) The Council may admit any governmental entity to membership upon the
affirmative vote of two-thirds (2/3) of the Board of Directors at a duly called meeting of the
Council.
(d) As a precondition to membership in the Council, each Council Member shall
constitute a governmental entity in the State of Florida and shall deliver a duly authorized
and executed counterpart to this Agreement.
SECTION 3.02. REPRESENTATION AND BOARD OF DIRECTORS. (a) The
goveming body of each Council Member shall:appoint one or more Representatives to act
on its behalf to provide information and attend meetings from time to time of the Council.
(b) The governing body of each Council Member, in its sole discretion, may
remove its Representative or Representatives at any time and may appoint a new
Representative or Representatives to the Council.
(c) The affairs, actions and duties of the Council shall be undertaken by the
Board of Directors. The Board shall consist of not less than one (1) nor more than five (5)
elected public official(s), each one of which shall be appointed in the manner provided for
in subsection (d) below. ~
(d) Directors shall serve unlimited terms. The Directors shall be appointed by
the President of the Flodda League of Cities, Inc. Vacancy's shall also be filled by
appointment by the President of the Florida League of Cities, Inc.
SECTION 3.03. ACTION. (a) The affairs, actions and duties of the Council shall
be undertaken at a duly called meeting pursuant to Section 3.09 hereof.
(b) At any meeting of the Council at which any official action is to be taken, three
of the Directors shall constitute a quorum; and a majority vote of the Directors present shall
be the act of the Council except as provided in Sections 3.01(c), 3.10(b) and 5.05 hereof.
5
(c) A certificate, resolution or instrument signed by the Chairman, Vice-Chairman
or such other designated person of the Council as may be hereafter selected by the
Council shall be evidence of the action of the Council and any such certificate, resolution
or other instrument so signed shall conclusively be presumed to be authentic. Likewise,
all facts and matters stated therein shall conclusively be presumed to be true.
SECTION 3.04. ELECTION OF OFFICERS; APPOINTMENT OF
ADMINISTRATOR. (a) Once a year, and at such other time as may be necessary to fill
a vacancy, at a meeting of the Council called for the purpose thereof, the Council through
its Board of Directors shall elect a Chairman and a Vice-Chairman to conduct the meetings
of the Commission and to perform such other functions as herein provided. Said Chairman
and Vice-Chairman shall serve one (1) year terms unless they resign sooner pursuant to
Section 3.06 hereof or are otherwise removed pursuant to Section 3.10 hereof.
(b) The Council shall enter into a Program Administration Agreement with the
Administrator with respect to administering and managing the Program. The Commission
may also enter into such other agreements as may be necessary to establish and maintain
the Program, including, but not limited to, employing counsel, accountants, auditors,
financial advisors and other consultants, employing underwriters for marketing the Bonds,
and obtaining credit enhancers for the Bonds:
(c) The Board of Directors shall conduct the business of and further the
purposes of the Council including, without limitation, the development, structuring and
maintaining of the Program. In order to more effectively carry out its duties, the Board may
delegate to the Administrator certain responsibilities and duties provided that the Board
provide sufficient guidelines and criteda for the performance of such duties and
responsibilities.
SECTION 3.05. AUTHORITY OF OFFICERS. (a) The Chairman and the Vice-
Chairman shall take such action and sign ~such documents, including the Program
Documents, on behalf of the Council and in furtherance of the purposes of this Agreement
and the Program as shall be approved by resolution of the Council.
(b) The Program Administrator or his designee, shall keep minutes of all
meetings, proceedings and acts of the Council but such minutes need not be verbatim.
Copies of all the minutes of the meetings of the Council shall be sent by the Program
Administrator or its designee to ail RepreSentatives of the Council. The Program
Administrator may also attest the execution of documents.
SECTION 3.06. RESIGNATION. (a) Any Director may resign from ali duties or
responsibilities hereunder by giving at least Seven (7) days prior written notice sent by
registered mail to the Program Administrator. Such notice shall state the date said
resignation shall take effect and such resignation shall take effect on such date.
6
(b) Any Director, upon leaving office, shall forthwith tum over and deliver to the
Program Administrator any and all records, books, documents or other property in his
possession or under his control which belongs to the Council and/or relates to the
Program.
SECTION 3.07. EXPENSES. The Council may establish, from time to time,
procedures for reimbursement for reasonable expenses incurred in accordance with the
terms of this Agreement.
SECTION 3.08. LIABILITY AND INSURANCE. No member of the Board of
Directors, Representative, agent, officer, official or employee of the Council shall be liable
for any action taken pursuant to this Agreement in good faith or for any omission, except
in accordance with Section 768.28, Flodda Statutes, or for any act or omission or
commission by any other member of the Board of Directors, Representative, agent, officer,
official or employee of the Council.
The initial parties to this Agreement, and any party who may now or hereafter
become a member of the Council, agree the initial parties to this Agreement, individually
or collectively, by executing this Agreement, have not and do not assume any liabilities
adsing out of the creation or operation of the Agreement, and that the initial parties to this
Agreement, individually or collectively, shall odly be liable for the obligations of the Council
to the extent they specifically covenant to do So by separate agreement as a member of
the Council. The Council hereby agrees to save, hold harmless and indemnify the initial
parties to this Agreement, and their officers, employees, and agents, of and from any loss,
damage or expense incurred by said parties as a result of the said parties' execution of this
Agreement,
The Board of Directors is hereby authorized and empowered to obtain, at the
expense of the Council, liability insurance fu ylprotect ng the respective Directors from any
loss or expense incurred, including reasonable attorney's fees, for all acts of the Directors
except bad faith and gross negligence. The Council hereby agrees to save, hold harmless
and indemnify the Directors from any loss, damage or expense incurred by said persons
while acting in their official capacity excepting bad faith and gross negligence.
SECTION 3.09. MEETINGS. (a) The Council shall convene at a meeting called by
either a majodty of the Board of Directors or at the request of the Chairman. Meetings
shall be conducted at such locations as may be acceptable to the majority of the Board of
Directors and in accordance with the laws of the State. The Chairman shall set forth the
date, time, location and purpose of each meeting and notice thereof, unless otherwise
waived, shall be furnished to each Representative and members of the Board of Directors
by the Program Administrator, or his designee, not less than seven (7) days prior to the
date of such meeting. The Chairman may direct the Program Administrator or such other
designee as he may select to send the prerequisite notice for any meeting of the Council
otherwise called in accordance with the provisions hereof.
(b) Within a reasonable period of time after the creation of the Council, the duly
appointed Board of Directors shall hold an organizational meeting in a mutually agreeable
location in the State of Florida to elect officers and perform such other duties as shall be
provided under this Agreement.
SECTION 3.10. WITHDRAWAL AND REMOVAL OF COUNCIL MEMBERS. (a)
Any Council Member may withdraw from the Council at any time, if the following conditions
are satisfied: (i) there shall be at least three (3) Council Members remaining in the Council
subsequent to withdrawal, and (ii) a certified resolution from the Council Member's
goveming body setting forth its intent to withdraw from the Council is presented to the
Council. Upon satisfaction of the above conditions, such withdrawal shall be effective.
(b) Any member of the Board of Directors may be removed upon the affirmative
vote of at least two-thirds (2/3) of the Council Members at a duly called meeting of the
Council.
8
ARTICLE IV
THE BONDS
SECTION 4.01. BONDS. Pursuant to the provisions of the Intedocal Act, the
Council may issue, from time to time, in vadous sedes, Bonds to implement the Program
and to finance and refinance Loans in accordance with the terms of the Program. Loans
made by the Council shall be used by govemmental entities to finance and refinance the
acquisition and construction of Projects. Such Bonds shall be issued upon such terms,
containing such provisions, bearing interest at such lawful rate or rates, and supported by
such other documents as may hereafter be established by the Council. The Bonds may
be issued pursuant to an Indenture or Indentures and be secured in such manner as
determined by the Council.
SECTION 4.02. BOND PROCEEDSi The proceeds from the issuance of the
Bonds shall be deposited and used for such purposes and under such conditions as set
forth herein and in the Program Documents. ~Such proceeds may'be used to finance or
refinance Projects, establish debt service reserve accounts, capitalize interest, credit
enhancement and pay costs of issuance. Governmental entities may reimburse
themselves from proceeds of the Bonds for Project costs previously incurred by them.
SECTION 4.03. LIMITED OBLIGATIONS. Notwithstanding anything to the
contrary herein or in the Program Documents, the Bonds shall not constitute "bonds" within
the meaning of Article VII, Section 12 of the Constitution of Flodda, which must be
approved at an election of the qualified electors of the Council Members. The Bonds shall
not constitute a general obligation of any of the Council Members, the State of Florida, or
a lien upon any property owned by or situated within the territorial limits of any of the
Council Members, or the State of Flodda, except in each case to the extent otherwise
specifically provided in the Program Documents. The holders of the Bonds shall not have
the right to require or compel any exercise Of the taxing power of any of the Council
Members or the State of Flodda to pay the principal of, redemption premium, if any, and
interest on the Bonds or to make any other payments provided for under the Program
Documents, except in each case to the extent otherwise specifically provided in the
Program Documents.
SECTION 4.04. VALIDATION. Pdor to their issuance, the Bonds may be validated
in the manner provided in the intedocal Act and Chapter 75, Florida Statutes, but nothing
herein shall be construed to require such validation.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. DELEGATION OF DUTY. Nothing contained herein shall be
deemed to authorize the delegation'of the constitutional or statutory duties of the State or
the Council Members or any officers thereof.
SECTION 5.02. FILING. A copy of this Agreement shall be filed for record with the
Clerk of the Circuit Court in each County wherein a participating Council Member is
located.
SECTION 5.03. IMMUNITY. All of the privileges and immunities from liability and
exemptions from laws, ordinances and rules which apply to the activity of officials, officers,
agents or employees of the Council Members shall apply to the officials, officers, agents
or employees of the Council when performing their respective functions and duties under
the provisions of this Agreement.
SECTION 5.04. LIMITED LIABILITY. No Council Member shall in any manner be
obligated to pay any debts, obligations or liabilities adsing as a result of any actions of the
Council, the Representatives or any other agents, employees, officers or officials of the
Council, except to the extent otherwise provided in the Program Documents applicable to
such Council Member and neither the Council~ its Board of Directors, the Representatives
or any other agents, employees, officers or officials of the Council have any authority or
power to otherwise obligate the Council Member in any manner.
SECTION 5.05. AMENDMENTS. This Agreement may be amended in writing at
any time by the concurrence of a two-thirds (2/3) vote of the Board of Directors present at
a duly called meeting of the Council. However, this Agreement may not be amended so
as to (a) permit any profits of the Council to inure to the benefit of any private person orto
permit the assets of the Council to be distributed to any entity, other than the Council
Members, or (b) permit the diversion or application of any of the money or other assets of
the Council for any purposes other than those specified herein or to adversely affect the
tax-exempt status, if applicable, of the Bonds!
SECTION 5.06. CONTROLLING LAW. This Agreement shall be construed and
govemed by laws of the State.
SECTION 5.07. EFFECTIVE DATE. q'his Agreement shall be effective from the
date of execution hereof.
10
IN WITNESS WHEREOF, this Agreement has been executed by and on behalf of
the Council Members by their authorized representatives.
FLORIDA MUNICIPAL LOAN COUNCIL
(SEAL)
By:
Name:
Title:
By:
Name:
Title:
11
Bo
EXHIBIT B
PROJECTS
Land Acquisition. The purchase of real property within the City of Aventura, Florida (the
"City") to be used for municipal purposes such as (1) parks and recreation and (ii) the
location of other City facilities including, without limitation, a City admiuistrative complex
and police station.
Buildings and other improvements. The acquisition, construction, equipping and installation
of improvements on or to the real property described above including, without limitation,
municipal parks and City government and police facilities.
For the repayment of the Line of Credit pursuant to the Line of Credit (Revenue Note) dated
December 20 1996, which line of credit was used to provide temporary funding for the
projects enumerated in A and B, above.
6
EXHIBIT C
FORM OF LOAN AGREEMENT
Exhibit C
LOAN AGREEMENT
By and Between
FLORIDA MUNICIPAL LOAN COUNCIL
and
THE CITY OF
Dated as of 1, 1999
FLORIDA MUNICIPAL LOAN COUNCIL
REVENUE BONDS, SEKIES 1999
This Instrument Prepared By:
Grace E. Dunlap, Esq.
Bryant, Ivflller and Olive, P.A~
101 Eas~ Kennedy Boulevard
Tampa, Florida 33602
LOAN AGREEMENT
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
REPRESENTATIONS, WARRANTF~S AND COVENANTS
OF BORROWER AND COUNCIL
SECTION 2.01. REPRESENTATIONS, WARRANTIES AND COVENANTS ..... 10
SECTION 2.02. COVENANTS OF BORROWER ........................... 13
ARTICLE Irt
THE LOAN
SECTION 3.01. THE LOAN ........................................... 18
SECTION 3.02. EVIDENCE OF LOAN .................................. 18
ARTICLE IV
LOAN TERM AND LOAN CLOSING REQUIREMENTS
SECTION 4.01. COMMENCEMENT OF LOAN TERM ...................... 19
SECTION 4.02. TERMINATION OF LOAN TERM ......................... 19
SECTION 4.03. LOAN CLOSING SUBMISSIONS ......................... 19
ARTICLE V
LOAN REPAYMENTS
SECTION 5.01. PAYMENT OF BASIC PAYMENTS ........................ 21
SECTION 5.02. PAYMENT OF SURETY BOND COSTS ..................... 21
SECTION 5.03. PAYMENT OF ADDITIONAL PAYMENTS ................. 21
SECTION 5.04. CRFDIT FOR INTEREST EARNINGS AND EXCESS
PAYMENTS .......................................... 22
SECTION 5.05. OBLIGATIONS OF BORROWER UNCONDITIONAL ......... 22
SECTION 5.06. REFUNDING BONDS ................................... 23
SECTION 5.07. PREPAYMENT ........................................ 23
ARTICLE VI
DEFEASANCE
ARTICLE VII
ASSIGNMENT AND PAYMENT BY THIRD PARTIES
SECTION 7.01. ASSIGNMENT BY COUNCIL ............................ 25
SECTION 7.02. ASSIGNMENT BY BORROWER .......................... 25
SECTION 7.03. PAYMENTS BY THE BOND INSURER .................... 25
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. EVENTS OF DEFAULT DEFINED ........................ 26
SECTION 8.02. NOTICE OF DEFAULT .................................. 27
SECTION 8.03. REMEDIES ON DEFAULT ............................... 27
SECTION 8.04. [THIS SECTION RESERVED] ............................ 28
SECTION 8.05. NO REMEDY EXCLUSIVE; WAIVER, NOTICE ............. 28
SECTION 8.06. APPLICATION OF MONEYS ............................. 28
MISCELLANEOUS
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
.SECTION
9.01. NOTICES ............................................. 29
9.02. BINDING EFFECT ..................................... 29
9.03. SEVERABILITY ....................................... 29
9.04. AMENDMENTS, CHANGES AND MODIFICATIONS ......... 30
9.05. EXECUTION IN CO--ARTS ........................ 30
9.06. APPLICABLE LAW .................................... 30
9.07. BENEFIT OF BONDHOLDERS; COMPLIANCE WITH
INDENTURE .......................................... 30
9.08. CONSENTS AND APPROVALS ........................... 30
9.09. IMMUNITY OF OFFICERS, EMPLOYEES AND MEMBERS
OF COUNCIL AND BORROWER ......................... 30
SECTION 9.10. CAPTIONS ........................................... 30
SECTION 9.11. NO PECUNIARY LIABILITY OF COUNCIL ................. 30
SECTION 9.12. PAYMENTS DUE ON HOLIDAYS ........................ 31
SECTION 9.13. CALCULATIONS ...................................... 31
SECTION 9.14. TIME OF PAYMENT ................................... 31
EXHIBIT A - USE OF LOAN PROCEEDS
EXHIBIT B - CERTIFIED RESOLUTION OF CITY OF
FLORIDA
EXHIBIT C o OPINION OF BORROWER'S COUNSEL
EXH~IT D - PRINCIPAL REPAYMENT SCHEDULE
LOAN AGRE~.MENT
This Loan Agreement (the "Loan Agreement"or the "Agreement") dated as of ,
199_ and entered into between the FLORIDA MUNICIPAL LOAN COUNCIL (the "Council"), a
public body corporate and politic, and the CITY OF , FLORIDA ("the
Borrower"), a duly constituted municipality under the laws of the State of Florida.
WITNESSETH:
WHEREAS, pursuant to the authority of the hereinafter defined Act, the Council desires to
loan to the Borrower the amount necessary to enable the Borrower to finance the cost of the Proje~s,
as hereinafter defined, and the Borrower desires to borrow such amount from the Council subject to
the terms and conditions of and for the purposes set forth in this Agreement; and
WHEREAS, the Council is a public body corporate and politic duly created, organized and
existing under and by virtue of the Interlocal Agreement among the City of
Florida, the City of , Florida, the City of , Florida, the City of
, Florida, the City of , Florida, and the City of , Florida in
accordance with Chapter 163, Part I, Florida Statutes, as amended (the "Interlocal Act"); and
WHEREAS, the Council has determined that there is substantial need within the State for a
financing program (the "Program") which will provide funds for qualifying projects (the "Projects")
for the participating Borrowers; and
WI-IER~AS, the Council is authorized under the Inteflocal Act to issue its revenue bonds to
provide funds for such purposes; and
WHEREAS, the Council has determined that the public interest will best be served and that
the purposes of the Interlocal Act can be more advantageously obtained by the Council's issuance of
revenue bonds in order to loan funds to the Borrowers to finance Projects; and
WHEREAS, the Borrower is authorized under and pursuant to the Act, as amended, to enter
into this Loan Agreement for the purposes set forth herein; and
WHEREAS, the Council and the Borrower have determined that the lending of funds by the
Council to the Borrower pursuant to the terms of this Agreement and that certain Trust Indenture
dated as of ,199, between the Council and the Trustee (as defined herein) relating to
the Bonds (as hereinafter defined), including any amendments and supplements thereto (the
"Indenture"), will assist in the development and maintenance of the public welfare of the residents of .
the State and the areas served by the Borrower, and shall serve a public purpose by improving the
health and living conditions, and providing adequate governmental services, facilities and programs
and will promote the most efficient and economical development of such services, facilities and
programs in the State; and
WHEREAS, neither the Council, the Borrower nor the State or any political subdivision
thereof (other than the Borrowers to the extem of their obligations under their respective Loan
Agreements), shall in any way be obligated to pay the principal of, premium, if any, or interest on
those certain revenue bonds of the Council designated "Florida Municipal Loan Council Revenue
Bonds, Series 1999" (the "Bonds") as the same shall become due, and the issuance of the Bonds shall
not directly, indirectly or comingently obligate the Borrower, the State or any political subdivision
or municipal corporation thereof to levy or pledge any form of ad valorem taxation for their payment
but shall be payable solely from the funds and revenues pledged under and pursuant to this Agreement
and the Indenture.
NOW, THEREFORE, for and in consideration of the premises hereinafter contained, the
parties hereto agree as follows:
2
ARTICLE I
DEFINITIONS
Unless the context or use indicates another meaning or iment, the following words and
terms as used in this Loan Agreement shall have the following meanings, and any other
hereinafter defined, shah have the meanings as therein defined.
"Accountant" or "Accountants" means an independent certified public accoumant or
a firm of independent certified public accountants.
"Accounts" means the accounts created pursuant to Section 4.02 of the Indenture.
"Act" means, collectively, to the extent applicable to the Borrower, Chapter 163, Part
I, Florida Statutes, Chapter 125, Part I, Florida Statutes, Chapter 166, Part II, Florida Statutes,
as amended, and all other applicable pro'dsions of law.
"Additional Payments" means payments required by Section 5.03 hereof.
"Arbitrage Regulations" means the income tax regulations promulgated, proposed or
applicable pursuant to Section 148 of the Code as the same may be amended or supplemented
or proposed to be amended or supplemented from time to time.
"Authorized Representative" means, when used pertaining to the Council, the Chairman
of the Council and such other designated members, agents or representatives as may hereafter
be selected by Council resolution; and, when used with reference to a Borrower which is a
municipality, means the person performing the functions of the Mayor or Deputy, Acting or
Vice Mayor thereof or other officer authorized to exercise the powers and performs the duties
of the Mayor; and, when used with reference to a Borrower which is a County means the
person performing the function of the Chairman or Vice Chairman of the Board of County
Commissioners of such Borrower; and, when used with reference to an act or document, also
means any other person authorized by resolution to perform such act or sign such document.
"Basic Payments' means the payments denominated as such in Section 5.01 hereof.
"Board" means the governing body of the Borrower.
"Bond Counsel" means Bryant, Miller and Olive, P.A., Tampa, Florida or any other
nationally recognized bond counsel.
3
"Bondholder" or "Holder" or "holder of Bonds" or "Owner" or "owner of Bonds"
whenever used herein with respect to a Bond, means the person in whose name such Bond is
registered.
"Bond Insurance" means the insurance policy of the Bond Insurer which insures
payment of the principal of and interest on the Bonds when due.
"Bond Insurance Premium" means the premiums payable to the Bond Insurer for the
Bond Insurance.
"Bond Insurer" means
thereto.
and any successors
"Bonds" means the Florida Municipal Loan Council Revenue Bonds, Series 1999 issued
pursuant to Article II of the Indenture.
"Bond Year" means a 12-month period be~nning on
30.
1 and ending on
"Borrower" means the governmental unit Which is described in the first paragraph and
on the cover page of this Loan Agreement and which is borrowing and using the Loan proceeds
to finance, refinance end/or be reimbursed for, all or a portion of the costs of one or more
Projects.
"Borrowers" means, collectively, the Borrower executing this Loan Agreement and the
other goverranemal units which have received loans from the Council made fi'om proceeds of
the Bonds.
"Business Day" means any day of the year which is not a Saturday or Sunday or a day
on which banldng institutions located in New York City or the State are required or authorized
to remain closed or on which the New York Stock Exchange is closed.
"CertificaIe," "Statement," "Request," "Requisition" and "Order" of the Council mean,
respectively, a written certificate, statement, request, requisition or order signed in the name
of the Council by its Chairman. Executive Director or such other person as may be designated
and authorized to sign for the Council. Any such instrument and supporting opinions or
representations, if any, may, but need not, be combined in a single instrument with any other
instrument, opinion or representation, and the two or more so combined shall be read and
construed as a single instrument.
"Closing" means the closing ora Loan pursuant to the Indenture and this Agreement.
"Code" means the Internal Revenue Code of 1986, as mended, and the regulations
promulgated, proposed or applicable thereunder.
"Commencement Date" means the date when the term of this Agreement begins and the
obligation of the Borrower to make Loan Repayments accrues.
"Council" means the Florida Municipal Loan Council.
"Cost" means "Cost" as defined in the Act.
"Cost of Issuance Fund" means the fund by that name 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 Council or the
Borrowers.
"Default" means an event or condition the occurrence of which would, with the lapse
of time or the giving of notice or both, become an Event of Default.
"Event of Default" shall have the meaning ascribed to such term in Section 8.01 of this
Agreement.
"Financial Newspaper" or "Journal" means The Wall Street Journal or The Bond Buyer
or any other newspaper or journal containing financial news, printed in the English language,
customarily published on each Business Day and circulated in New York, New York, and
selected by the Trustee, whose decision shall be final and conclusive.
"Fiscal Year" means the fiscal year of the Borrower.
"Fitch" means Fitch Investors Service, L.P., a limited partnership organized and existing
under the laws of the State of Delaware, its successors and assigns.
"Funds" means the funds created pursuant to Section 4.02 of the Indenture.
"Governmental Obligations" means (i) direct and general obligations of the United
States of America, or those which are unconditionally guaranteed as to principal and interest
by the same, including interest on obligations of the Resolution Funding Corporation and (ii)
pre-refunded municipal obligations meeting the following criteria:
(a) the municipal obligations may not be callable prior to maturity or, alternatively, the
trustee has received irrevocable instructions concerning their calling and redemption;
(b) the municipal obligations are secured by cash or securities described in
subparagraph (i) above (the "Defeasance Obligations"), which cash or Defeasance Obligations
may be applied only to interest, principal, and premium payments of such municipal obligations;
(c) the principal and interest of the Defeasance Obligations (plus any cash in the fund)
are sufficient to meet the liabilities of the municipal obligations;
(d) the Defeasance Obligations serving as security for the municipal obligations must
be held by an escrow agent or a trustee; and
(e) the Defeasance Obligations are not available to satisfy any other claims, including
those against the Trustee or escrow agent.
Additionally, evidences of ownership of proportionate interests in future interest and
principal payments of Defeasance Obligations are permissible. Investments in these
proportionate interests are limited to circumstances wherein (a) a bank or trust company acts
as custodian and holds the underlying obligations; (b) the owner of the investment is the real
party in interest and has the right to proceed directly and individually against the obligor of the
underlying obli~aIions; and (c) the underlyin~ obligations are held in a special account separate
and apart from the custodian's general assets, and are not available to satisfy any claim of the
custodian, any person claiming through the custodian, or any person to whom the custodian
may be obligated.
"Indenture" means the Trust Indenture dated as of 1, 1999 between the
Council and the Trustee, including any indentures supplemental thereto, pursuant to which (i)
the Bonds are authorized to be issued and (ii) the Council's interest in the Trust Estate is
pledged as security for the payment of principal o/~ premium, if any, and interest on the Bonds.
"Interest Payment Date" means
commencing 1, 1999.
1 and 1 of each year,
"Interest Period" means the semi-annual period between Interest Payment Dates.
nInterlocal Act" means Chapter 163, Part I, Florida Statutes.
"Intertocal Agreement" means that certain Interlocal Agreement originally dated as of
· 199_ among the various Borrowers executing it from time to time, the orig/nal
parties to which are the City of , the City of and the City of
6
, as amended and supplemented together with the additional governmental entities
who become members of the Council, all as amended and supplemented fi.om time to time.
"Liquidation Proceeds" means amounts received by the Trustee or the Council in
connection with the enforcement of any of the remedies under this Loan Agreement after the
occurrence of an "Event of Default" under this Loan Agreement which has not been waived or
cured.
"Loan" means the Loan made to the Borrower fi.om Bond proceeds to finance certain
Project(s) in the amount specified in Section 3.01 herein.
"Loans" means all loans made by the Council under the Indenture to the Borrowers.
"Loan Agreement" or "Loan ^~reements" means this Loan Agreement and any
amendments and supplements hereto.
"Loan Repayment Date" means 20, 1998, and thereafter each
20 and 20, or if such day is not a Business Day, the next preceding
Business Day.
"Loan Repayments" means the payments of principal and interest and other payments
payable by the Borrower pursuant to the provisions of this Loan Agreement, including, without
limitation, Additional Payments.
"Loan Term" means the term provided for in Article IV of this Loan Agreement.
"Moody's" means Moody's Investors Service, a corporation organized and existing
under the laws of the State of Delaware, its successors and their assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, "Moody's" shall be deemed to refer to any other nationally recognized
securities rat'mg agency designated by the Council, with the approval of the Bond Insurer, by
notice to the Trustee.
"Non-Ad Valorem Revenues" means all revenues and taxes of the Borrower derived
fi.om any source whatever other than ad valorem taxation on real and personal property, which
are legally available for Loan Repayments.
"Opinion of Bond Counsel" means an opinion by Bond Counsel which is selected by
the Council and acceptable to the Trustee.
7
"Opinion of Counsel" means an opinion in writing of a legal counsel, who may, but need
not be, counsel to the Council, a Borrower or the Trustee.
"Outstanding Bonds" or "Bonds Outstanding" means all Bonds which have been
authenticated and delivered by the Trustee under the Indenture, except:
(a) Bonds canceled after purchase in the open market or because of payment at or
redemption prior to maturity;
(b) Bonds deemed paid under Article IX of the Indenture; and
(c) Bonds in lieu of which other Bonds have been authenticated under Section
2.06, 2.07 or 2.09 of the Indenture.
"Person" means an individual, a corporation, a parmership, an association, a trust or any
other entity or organization including a government or political subdivision or an agency or
instrumentality thereof.
"Principal Fund" means the fired by that name created by Section 4.02 of the Indenture.
"Principal Payment Date" means the maturity date or mandatory redemption date of any
Bond.
"Program" means the Council's program of making Loans under the Act and pursuant
to the Indenture.
"Project" or "Projects" means a governmental undertaking approved by the governing
body of a Borrower for a public purpose, including the refinancing of any indebtedness.
"Project Loan Fund" means the fund by that name established pursuant to Section 4.02
of the Indenture.
"Proportionate Share" means, with respect to any Borrower, a fraction the numerator
of which is the outstanding principal amount of the Loan of such Borrower made fi-om
proceeds of the Bonds and the denominator of which is the outstanding principal amount of ail
Loans made from proceeds of the Bonds and then outstanding.
"Purchase Price" means the purchase price of one or more items ora Project negotiated
by a Borrower with the seller of such items.
"Redemption Price" means, with respect to any Bond (or portion thereof), the principal
amount of such Bond (or portion) plus the applicable premium, if any, payable upon
redemption pursuant to the provisions of such Bond and the Indenture.
"Revenue Fund" means the fund by that name created by Section 4.02 of the Indenture.
"Revenues" means all Loan Repayments paid to the Trustee for the respective accounts
of the Borrowers for deposit in the Principal Fund and Revenue Fund to pay principal of,
premium, if any, and interest on the Bonds upon redemption, at maturity or upon acceleration
of maturity, orto pay interest on the Bonds when due, and all receipts of the Trustee credited
to the Borrower under the provisions of this Loan Agreement.
"S&P" means Standard & Poor's Corporation, a corporation organized and existing
under the laws of the State of New York, its successors and their assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, "S&P' shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Council, with the approval of the Bond Insurer, by
notice to the Trustee.
"Special Record Date" mean~ the date established pursuant to Section 10.05 of the
Indenture as a record date for the payment of defaulted interest, if any, on the Bonds.
"State" means the State of Florida.
"Supplemental Indenture" means any indenture herea_qer duly authorized and entered
into between the Council and the Trustee, supplementing modifying or emending the
Indenture, but only if and to the extent that such Supplemental Indenture is specifically
authorized in the Indenture.
"Trust Estate" means the property, fights, Revenues and other assets pledged and
assigned to the Trustee pursuant to the Granting Clauses of the Indenture.
"Trustee" means
Trustee, or any successor thereto under the Indenture.
9
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF BORROWER AND COUNCIL
SECTION 2.01. REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Borrower and the Council represent, warrant and covenant on the date hereof for the benefit of the
Trustee, the Borrower, the Bond Insurer and Bondholders, as applicable, as follows:
(a) ORGANIZATION AND AUTHORITY. The Borrower:
(1) is a duly organized and validly existing municipality of the State and is a duly
organized and validly existing Borrower; and
(2) has all requisite power and authority to own and operate its properties and to
carry on its activities as now conducted and as presently proposed to be conducted.
(b) FULL DISCLOSURE. There is no fact that the Borrower knows of which has not been
specifically disclosed in writing to the Council and the Bond Insurer that materially and adversely
affects or, except for pending or proposed legislation or reg-!afions that are a matter of general public
information affecting Borrowers generally, that will materially affect adversely the properties,
activities, prospects or condition (financial or otherwise) of the Borrower or the ability of the
Borrower tO perform its Obligations under this Agreement.
The financial stateraents, including balance sheets, and any other written statement furnished
by the Borrower to the Council and the Bond Insurer 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 misL,~ll,ag. There is no fact known to the Borrower which the Borrower has not disclosed
to the Council and the Bond Insurer in writing which materially affects adversely or is likely to
materially affect adversely the financial condition of the Borrower, or its ability to make the payments
under this Agreement when and as the same become due and payable.
(c) PENDING LITIGATION. To the knowledge of the Borrower there are no proceedings
pending or to the knowledge of the Borrower threatened, against or affecting the Borrower, except
as specifically described in writing to the Council and the Bond Insurer, in any court or before any
govemmantal 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 Borrower,
or the existence or powers or ability of the Borrower to enter into and perform its obligations under
this Agreement.
10
(d) BORROWING LEGAL AND AUTHORIZED. The execution and delivery of this
Agreement and the consummation of the transactions provided for in this Agreement and compliance
by the Borrower with the provisions of this Agreement:
(1) are within the powers of the Borrower and have been duly and effectively
authorized by all necessary action on the part oftbe Borrower; and
(2) do not and will not (i) 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 oftbe Borrower pursuant to any
indenture, loan agreement or other agreement or instrument (other than this Agreement) or restriction
to which the Borrower is a party or by which the Borrower, its properties or operations are bound
as of the date of this Agreement or (ii) with the giving of notice or the passage of time or both,
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 (described in (i) or (ii)) could
materially and adversely ~ the validity or the enforceability of this Agreement or the Borrower's
ability to perform fully its obligations under this Agreement; nor does such action result in any
violation of the provisions of the Act, or any laws, ordinances, governmental roles or regulations or
court orders to which the Borrower, its properties or operations may be bound.
(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 Agreement and/or the passage
of time or giving of notice or both, would constitute an Event of Default. The Borrower is not in
violation in any material respect, and has not received notice of any claimed violation (except such
violations as (i) heretofore have been specifically disclosed in writing to, and have been in writing
specifically consented to by the Council and the Bond Insurer and (ii) do not, and shah not, have any
material adverse effect on the transactions herein contemplated and the compliance by the Borrower
with the terms hereof), 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, which may materially adversely effect the
ability of the Borrower to perform hereunder.
(f) GOVERNMENTAL CONSENT. The Borrower has obtained, or will obtain, all permits,
approvals and findings ofnon-reviewability required as of the date hereof by any governmental body
or ofl/cer for the acquisition and/or instaHatio, n of the Project, including construction and renovation
work, the ~mncing or refinancing thereof or the reimbursement of the Borrower therefor, or the use
of such Project, and, prior to the Loan, the Borrower will obtain all other such permits, approvals and
findings as may be necessary for the foregoing and for such Loan and the proper application thereof;
the Borrower has complied with or will comply with all applicable provisions of law requiting any
notification, declaration, filing or registration with any agency or other governmental body or officer
in connection with the acquisition or inst~lla*ion of the Project, including construction and renovation
work necessary for such installation, financing or refinancing thereof or reimbursement of the
Borrower therefor; and any such action, construction, installation, financing, refinancing or
reimbursement contemplated in this Loan Agreement is consistent with, and does not violate or
11
conflict with, the terms of any such agency or other governmental consent, order or other action
which is applicable thereto. No further consent, approval or authorization of, or filing, registration
or qualification with, any governmental authority is required on the part of the Borrower as a
condition to the execution and delivery of this Loan Agreement, or to amounts becoming outstanding
hereunder.
(g) COMPLIANCE WITH LAW. The Borrower is in compliance with all laws, ordinances,
governmental rules and regulations to which it is subject and which are material to its properties,
operations, finances or status as a municipal corporation or subdivision of the State.
(h) USE OF PROCEEDS.
(1) The Borrower will apply the proceeds of the Loan from the Council solely for the
financing for the cost of the Projects as set forth in Exhibit A hereto, ffany Project listed in Exhibit
A is not paid for out of the proceeds of the Loan at the Closing of the Loan, Borrower shall, as
quickly as reasonably possible, with due diligence, and in any event prior to ,200_~
use the remainder of the amounts listed in Exhibit A and any investment earnings thereon to pay the
cost of the Project, provided that, such time limit may be extended by the written consent of the
Council and the Trustee, and provided further that Borrower may amend Exhibit A without the
consent oftha Council or the Trustee to provide for the financing of a different or additional Project
if Borrower, after the date hereof, deems it to not be in the interest of Borrower to acquire or
construct any item of such Project or the cost of the Project proves to be less than the amounts listed
on Exhibit A and the inve~la~ent earnings thereon. Notwithstanding the foregoing all such proceeds
shall be expended prior to ,200.~ Borrower will provide the Trustee and the Council
with evidence of the expenditure of the remaining amounts of the Loan and the investment earnings
thereon and the respective date(s) thereof as soon as practicable following the expenditure of all such
amounts on costs of the Project.
(2) Items of cost of the Project which may be financed include all reasonable or
necessary direct or indirect costs of or incidental to the acquisition, construction or installation of the
Project, including operational expenses during this construction period which would qualify for
capitali~,afion under generally accepted accounting principles, the incidental costs of placing the same
in use and financing expenses (including the application or origination fees, if any, of the Bond Insurer
and the Council), but not operating expenses.
(3) Borrower understands that the actual Loan proceeds received by it are less than
the face amount of the Loan A~'eement in an amount equal to a discount equal to __% of the
stated principal amount of the Loan. The amount of Loan proceeds received by Borrower will thus
be smaller than the principal amount of the Loan. Borrower will accordingly be responsible for
repaying, through the Basic Payments portion of its Loan Repayments, the portion of the Bonds
issued to fund its Loan and Borrowers Proportionate Share of the Bonds issued to fund that portion
of the underwriting discount and other costs of issuing the Bonds.
12
(4) The Borrower covenants that it will make no use of the proceeds oftbe Bonds
which are in its control at any time during the term oftbe Bonds which would cause such Bonds to
be "Arbitrage Bonds~ within the meaning of Section 148 oftbe Code.
(5) The Borrower, by the Tmstee's acceptance of the Indenture, covenants that the
Borrower shall neither take any action nor fail to take any action and to the extent that it may do so,
permit any other party to take any action which, if either taken or not taken, would adversely affect
the exclusion from gross income for Federal income tax purposes of interest on the Bonds.
(i) PRO~ECT. All items constituting the Project are as such term is defined in the Act.
(j) COMPLIANCE WITH INTERLOCAL ACT AND INTERLOCAL AGREEMENT. All
agreements and transactions provided for herein or contemplated hereby are in full compliance with
the terms of the Inteflocal Agreement and the Interlocal Act.
SECTION 2.02. COVENANTS OF BORROWER. The Borrower makes the following
covenants and representations as of the date first above written and such covenants shall continue in
full force and effect during the Loan Term:
(a) SECURITY FOR LOAN REPAYMENT. Subject to the provisions of Section 2.02(1)
hereof, the Borrower covenants and agrees to appropriate in its annual budget, by amendment, if
required, and to pay when due under this Loan A~eement as promptly as money becomes available
directly into the appropriate Fund or Account crea~ed in the Indenture, amounts of Non-Ad Valorem
Revenues of the Borrower sufficient to satis~ the Loan Repayment as required under this Loan
Agreement. Such covenant 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. Such covenant and
agreement on the part of the Borrower to budget and appropriate such amounts of Non-Ad Valorem
Revenues shall be cumulative, and shall continue until such Non-Ad Valorem Revenues or other
legally available funds in amounts sufficient to make all required Loan Repayments, including
delinquent Loan Repayments, shall have been budgeted, appropriated and actually paid into the
appropriate Fund or Account. The Borrower further acknowledges and a~rees that the Indenture
shall be deemed to be entered into for the benefit oftbe Holders of any of the Bonds and that the
obli~fions of the Borrower to include the amount of any deficiency in Loan Repayments in each of
its annual budgets and to pay such deficiencies from Non-Ad Valorem Revenues may be enforced in
a court of competent jurisdiction in accordance with the remedies set forth herein and in the
Indenture. Notwithstanding the foregoing or any provision of this Loan Agreement to the contrary,
the Borrower does not covenant to maintain any services or programs now maintained by the
Governmental Unit which generate Non-Ad Valorem Revenues.
(b) DELIVERY OF INFORMATION TO THE BOND INSURER. Borrower shall deliver
to the Bond Insurer and the Council as soon as available and in any event within 180 days a~er the
end of each Fiscal Year an audited statement of its financial position as of the end of such Fiscal Year
and the related s~tements ofrevenuas and expenses, fund balances and changes in fund balances for
13
such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal
Year, all reported by an independent certified public accountant, whose report shall state that such
financial statements present fairly Borrower's financial position as of the end of such Fiscal Year and
the results of operations and changes in financial position for such Fiscal Year. Within 75 days of the
close of each fiscal quarter, Borrower shall file copies of its unaudited financial statements with the
Council or the Bond Insurer, if so requested by the Council or the Bond Insurer, respectively.
(c) INFORMATION. Borrower's chief financial officer shall, at the reasonable request of
the Bond Insurer, discuss Borrower's financial matters with the Bond Insurer or their respective
designee and provide the Bond Insurer with copies of any documents reasonably requested by the
Bond Insurer or its designee unless such documents or material are protected or privileged from
disclosure under applicable Florida law.
(d) INDEMNITY. To the extent pe~tted by law, the Borrower will pay, and will protect,
indemnify and save, the Council, each member, officer, commissioner, employee and agent of any of
the Council, harmless from and against, any and all liabilities, losses, damages, costs and expenses
(including reasonable attorneys' fees), suits, clalras 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 person or any damage to property-resulting from the use or
operation of the Project), whether arising directly or indirectly (in any case, whether or not by way
of the Borrower, its successors and assigns, agents, contractors, employees, licensees or otherwise
of the Borrower or resulting from, out of, or in connection with, the Project, this Loan Agreement
as a result of the breach or violation of any agreement, covenant, representations or warranty by the
Borrower set forth in this Loan Agreement or any document delivered in connection herewith or
therewith, but not including an action arising from the alleged invalidity of the Bonds, except to the
extent that such invalidity is caused by an act or omission of the Borrower or is caused by the
invalidity of this Loan Agreement. The Council shall also use counsel reasonably acceptable to the
Borrower in carrying out its obligations under this paragraph, except as a result of the breach or
violation of any agreement, covenant, representations or warranty by the Borrower set forth in this
Loan Agreement or any document delivered pursuant hereto or thereto. The Council shall give to
the Borrower prompt notice of any such suits or claims.
The foregoing notwithstanding, nothing herein contained shall be construed and neither the
Trustee, the Council, the Bond Insurer, the State or the Bondholders shall have the fight to compel
the exercise of the taxing power of the Borrower in any form for the payment by the Borrower of its
obligations, if any, hereunder.
The provisions of this paragraph (d) shall survive the termination of this Loan Agreement.
(e) SPECIAL COVENANTS AND FINANCIAL RATIOS. The Borrower covenants that
in each Fiscal Year of the Borrower, it will not issue non-serf-supporting revenue debt if at~er the
issuance of such debt, maximum annual debt service resulting from the total outstanding
non-self-supporting revenue debt service of the Borrower exceeds 50% of total general purpose
14
Non-Ad Valorem Revenues of the Borrower received in the immediately preceding Fiscal Year of
the Borrower. As used above, the term "non-seE-supporting revenue debt" shall not include any debt
payable fi.om revenues of a utility system. The Borrower covenants not to incur any indebtedness
payable fi.om non ad valorem revenue sources unless (a) it has received the writ'tan consent of the
Bond Insurer (which consent shah not be unreasonably withheld) or Co)(i) the gross non-ad valorem
revenues (all legally available non-ad valorem revenues of the Borrower fi.om whatever source
including investment income) of the Borrower for the preceding Fiscal Year were at least 2.00 times
average annual debt service of all indebtedness of the Borrower payable fi.om such sources, and (ii)
the net available non-ad valorem revenues of the Borrower for the preceding Fiscal Year were at least
1.10 times average annual debt service of all indebtedness payable fi.om such sources. As used above
the term "net available non-ad valorem revenues" shall mean "gross non-ad valorem revenues" as
defined above minus cost of operation and maintenance of the Borrower (minus, however, any such
costs paid fi.om ad valorem taxes plus legally available unencumbered fund balances). For the
purpose of calculating average annual debt service on any indebtedness which bears interest at a
variable rate, such indebtedness shall be deemed to bear interest at the greater of(i) 1.25 times the
most recently published Bond Buyer Revenue Bond 30 Year Index or (ii) 1.25 times actual average
interest rate during the prior Fiscal Year of such Borrower. Each Borrower shah give written notice
to the Bond Insurer upon the occurrence of any such indebtedness. Furthermore, the Borrower
covenants that on the date of execution of this Agreement, its general fund equity, based upon the
most recent audited financial statements, equals at least five percent (5%) of general fund
expenditures for the year reflected in said audited financial statements.
(0 FURTI~R ASSURANCE. The Borrower shall execute and deliver to the Trustee all
such documents and ins'ffuments and do ail such other acts and things as may be reasonably necessary
to enable the Trustee to exercise and enforce its rights under this Loan Agreement and to realize
thereon, and record and file and re-record and re-file all such documents and instruments, at such time
or times, in such manner and at such place or places, all as may be reasonably necessary or required
by the Trustee to validate, preserve and protect the position of the Trustee under this Loan
Agreement.
(g) gl=..~-PING OF RECORDS AND BOOKS OF ACCOUNT. The Borrower 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 Borrower's independent auditors) reflecting all of its financial
transactions.
(h) PAYMENT OF TAXES, ETC. The Borrower shah pay all legally contracted obligations
when due and shah pay aH taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits, or upon any properties belonging to it, prior to the date on which
penalties attach thereto, and aH lawful claims, which, if unpaid, might become a lien or charge upon
any of its properties, provided that it shall not be required to pay any such tax, assessment, charge,
levy or claim which is being contested in good faith and by appropriate proceedings which shah
operate to stay the enforcement thereof.
15
(i) COMPLIANCE WITH LAWS, ETC. Subject to an annual appropriation of legally
available funds, the Borrower shall comply with the requirements of ail applicable laws, the terms of
all grants, rules, regulations and lawful orders of any governmental authority, non-compliance with
which would, singly or in the aggregate, materially adversely affect its business, properties, earnings,
prospects or credit, uuless the same shall be contested by it in good faith and by appropriate
proceedings which shall operate to stay the enforcement thereof.
(j) TAX-EXEMPT STATUS OF BONDS. The Council and the Borrower understand that
it is the imention hereof that the interest on the Bonds not be included within the gross income of the
holders thereof for federal income tax purposes. In furtherance thereof; the Borrower and the
Council each agree that they will take all action within its control which is necessary in order for the
interest on the Bonds or this Loan to remain excluded from gross income for federai income taxation
purposes and shall refrain from taking any action which results in such interest becoming included in
gross income.
The Borrower and the Council further covenant that, to the extent they have comrol over the
proceeds of the Bonds, they will not take any action or fail to take any action with respect to the
investment of the proceeds of any Bonds, with respect to the payments derived from the Bonds or
hereunder or with respect to the purchase of other Council obligations, which action or failure to act
may c~e the Bonds to be "Arbih-age Bonds" within the meaning of such term as used in Section 148
of the Code and the regulations promulgated thereunder. In furtherance of the covenant contained
in the preceding sentence, the Borrower and the Council agree to comply with the Tax Certificate as
to Arbitrage and the provisions of Section 141 through 150 of the Internal Revenue Code of 1986,
as amended, including the letter of instruction attached thereto as Exhibit D, delivered by Bryant,
Miller and Olive, P.A. to the Borrower and the Council simultaneously with the issuance of the
Bonds, as such letter may be amended from time to time, as a source of guidelines for achieving
compliance with the Code.
(k) INFORMATION REPORTS. The Borrower covenants to provide the Council with all
materiai and information it possesses or has the ability to possess necessary to enable the Council to
file all reports required under Section 149(e) of the Code to assure that interest paid by the Council
on the Bonds shall, for purposes of the federal income tax, be excluded from gross income.
(1) LIMITED OBLIGATIONS. Anything in this Loan Agreement to the contrary
notwithstanding, it is understood and agreed that all obligations of the Borrower hereunder shall be
payable only from NomAd Vaiorem 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 lieo upon any assets owned by the Borrower and no Bondholder or any other person,
including the Council, the Trustee or the Bond Insurer, may compel the levy of ad vaiorem taxes on
real or personal property within the boundaries of the Borrower. The obligations hereunder do not
constitute an indebtedness of the Borrower within the meaning of any constitutional, statutory or
charter provision or limitation, and neither the Trustee, the Council, the Bond Insurer, or the
Bondholders or any other person shall have the right to compel the exercise of the ad vaiorem taxing
16
power of the Borrower or taxation of any real or personal property therein for the payment by the
Borrower of its obligations hereunder. Except to the extant expressly set forth in this Loan
Agreement, this Loan Agreement and the obligations of the Borrower hereunder shall not be
construed as a limitation on the ability of the Borrower to pledge or covenant to pledge said revenues
or any revenues or taxes of the Issuer for other legally permissible purposes. Notwithstanding any
provisions of this Agreement, the Indenture or the Bonds to the contrary, the Borrower shall never
be obligated to maintain or continue any of the actiw'ties of the Borrower which generate user service
charges, regulatory fees or any Non-Ad Valorem Revanues. Neither this Loan Agreement nor the
obligations of the Borrower hereunder shall be construed as a pledge of or a lien on all or any legally
available Non-Ad Valorem Revenues of the Borrower, but shall be payable solely as provided in
Section 2.02(a) hereof and is subject in ail respects to the provisions of Section 166.241, Florida
Statutes, 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 Borrower expressly
limited to the Loan Payments and the Borrower shall have no joint liability with any other Borrower
orthe Council for any of their respective liabilities, except to the extent expressly provided hereunder.
The Council and the Borrower understand that the amounts available to be budgeted and
appropriated to make Loan Payments hereunder is subject to the obligation of the Borrower to
provide essential services; however, such obligation is cumulative and would carry over from Fiscal
Year to Fiscal Year.
(m) REPORTI2qG REQUIREMENTS. (i) The Borrower will file or cause to be filed with
the Bond Insurer and with the Council any ottieial statement issued by, or on behalf of, the Borrower
in connection with the incurrance of any additional indebtedness by the Borrower. Such oi~ciai
statements shall be filed within sixty (60) days after the publication thereo£
(ii) The Borrower agrees to provide not later than December 31 of each year, a
certificate of its Chief Financial Officer stating that to the best of its knowledge to the effect
that the Borrower is in compliance with the terms and conditions of this Loan Agreemant, or,
specifying the nature of any noncompliance and the remedial action taken or proposed to be
takan to cure such noncompliance.
(iii) The Borrower will file or cause to be filed with the Council its audhed financial
statements within sixty (60) days after publication thereof.
17
ARTICLE III
THE LOAN
SECTION 3.01. THE LOAN. The Council hereby agrees to loan to the Borrower and the
Borrower hereby agrees to borrow fi.om the Council the sum of $ which amount includes
a discount equal to __% of the principal amount of such Loan to reflect the Borrower's share
of the cost of the initial issuance of the Bonds (including original issue discount, if any) subject to the
terms and conditions contained in this Loan Agreement and in the Indenture to the extent such
amount is (i) approved by the Council and (ii) approved in writing by the Bond Insurer and to the
extent such amount (but not including the discount amount) is determined by the Trustee in its sole
discretion to be available in the Project Loan Fund (established pursuant to Article IV of the
Indenture) for such purpose, such advanced amounts to be used by the Borrower for the purposes
of financing or refinancing the cost of; or receiving reimbursement for the equity in, the Projects in
accordance with the provisions of this Loan Agreement.
SECTION 3.02. EVIDENCE OF LOAN. The Borrower's obligation hereunder to repay
amounts advanced pursuant to Section 3.01, together with interest thereon, and other payments
required under this Loan Agreement, shah be evidenced by this Loan Agreement.
18
ARTICLE IV
LOAN TERM AND LOAN CLOSING REQUIREMENTS
SECTION 4.01. COMMENC~ OF LOAN TERM. The Borrow~s obligations under
this Loan Agreement shall commence on the date hereof unless otherwise provided in this Loan
Agreement.
SECTION 4.02. TERMINATION OF LOAN TERM. The Borrower's obligations under this
Loan Agreement shall terminate after payment in full of all amounts due under this Loan Agreement
and all amounts not theretofore paid shall be due and payable at the times and in the amounts set forth
in Exhibit D attached hereto; provided, however, that all covenants and all obligations provided
hereunder specified to so survive (including the obligation of the Borrower to pay its Proportionate
Share of the rebate obligations of the Council owed on the Bonds and agreed to by the Borrowers
pursuant to Section 5.03(b)(7) hereof) shall survive the termination of this Loan Agreement and the
payment in full of principal and interest hereunder. Upon termination of the Loan Term as provided
above, the Council and the Trustee shall deliver, or cause to be delivered, to the Borrower an
acknowledgment thereof.
SECTION 4.03. LOAN CLOSING SUBMISSIONS. Concurrently with the execution and
delivery of this Loan Agreement, the Borrower is providing to the Trustee the following documents
each dated the date of such execution and delivery unless otherwise provided below:
(a) Certified resolutions of the Borrower substantially in the form of Exhibit B attached
hereto;
(b) An opinion of the Borrower's Counsel in the form of Exhibit C attached hereto to the
effect that the Loan Agreement is a valid and binding obligation of the Borrower and opining to such
other matters as may be reasonably required by Bond Counsel and the Bond Insurer;
(c) A certiticate of the officials of the Borrower who sign this Loan Agreement to the effect
that the representations and warranties of the Borrower are true and correct;
(d) A certificate of covenant compliance required by Section 2.02(e) hereof.
(e) A certificate signed by the Authorized Representative of the Borrower, in form and
substance sati,ffactory to Bond Counsel, stating (i) the estimated dates and the amounts of projected
expenditures for the Project and (ii) that it is reasonably anticipated by the Borrower that the Loan
proceeds will be fully advanced therefor and expended by the Borrower prior to ,200_o
and that the projected expenditures are based on the reasonable expectations of the Borrower having
due regard for its capital needs and the revenues available for the repayment thereof.
19
(f') This executed Loan Agreement;
(g) An opinion (addressed to the Council, the Trustee, the Bond Insurer and the Borrower)
of Bond Counsel to the effect that such financing, refinancing or reimbursement with Loan proceeds
is permitted under the Act, the Indenture and the resolution authorizing this Loan Agreement and will
not cause the imerest on the Bonds to be included in gross income for purposes of federal income
taxation or adversely affect the validity, due authorization for or legality of the Bonds; and
(h) Such other certificates, documents, opinions and information as the Council, the Bond
Insurer, the Trustee or Bond Counsel may require.
All opinions and cer*,.ificates shall be dated the date of the Closing.
2O
ARTICLE V
LOAN REPAYMENTS
SECTION 5.01. PAYMENT OF BASIC PAYMENTS. Borrower shall pay to the order of
the Council all Loan Repayments in lawful money of the United States of America to the Trustee.
No such Loan Repayment shall be in an mount such that interest on the Loan is in excess of the
max/mum rate allowed by the laws of the State of Florida or of the United States of America. The
Loan shall be repaid in Basic Payments, consisting of:
(a) principal in the amounts and on the dates set forth in Exhibit D; plus
(b) interest calculated at the rates set forth in Exhibit D;
On the fifteenth (15th) day of the month immediately preceding each Interest Paymem Date,
the Trustee shall give Borrower notice in writing of the total amount of the next Basic Payment due.
The Basic Payments shall be due on each 20 and 20 or if such
day is not a Business Day, the next preceding B-6ness Day (a '~Loan Repayment Date"), commencing
20, 1998, and extending through 20, 20__, unless the due date
of the Basic Payments is accelerated pursuant to the terms of Section 8.03 hereof.
SECTION 5.02. PAYMENT OF SURETY BOND COSTS. The Borrower recognizes that
the Florida Municipal Insurance Trust has provided to the Council the Surety Bond. [address
repayment/documentation issues.]
SECTION 5.03. PAYMENT OF ADDITIONAL PAYMENTS. In addition to Basic
Payments, Borrower agrees to pay on demand of the Council orthe Trustee, the following Additional
Payments:
(a) Borrowers Proportionate Share of: the annual fees of the Trustee; fees of the Registrar
and Paying Agent; the annual fees or expenses of the Council, if any, including the fees of any
provider of arblh~ge rebate calculations together with any arbitrage rebate due; the Bond Insurance
Premium, if any, of the Bond Insurer; and the fees of the rating agencies.
(b) All reasonable fees and expenses of the Council or Trustee relating to this Loan
Agreement, including, but not limited to:
(1) the cost of reproducing this Loan Agreemem;
(2) the reasonable fees and disbursements of Counsel utilized by the Council, the
Trustee and the Bond Insm~ in connection with the Loan, this Loan Agreement and the enforcement
thereof;
21
(3) reasonable extraordinary fees of the Trustee following an Event of Default
hereunder;
(4) all other reasonable out-of-pocket expenses of the Trustee and the Council in
connection with the Loan, this Loan Agreement and the enforcement thereof~
(5) all taxes (including any recording and filing fees) in eormection with the execution
and delivery of this Loan Agreement and the pledge and assignment of the Council's fight, title and
interest in and to the Loan and the Loan Agreement, pursuant to the Indenture (and with the
exceptions noted therein), and all expenses, including reasonable attorneys' fees, relating to any
amendments, waivers, consents or collection or enforcement proceedings pursuant to the provisions
hereof}
(6) all reaSOnable fees and expenses of the Bond Insurer relating directly to the Loan;
and
(7) the Borrower's Proportionate Share of any amounts oWed to the United States of
America as rebate obligations on the Bonds, which obligation shall survive the termination of this
Loan Agreement.
SECTION 5.04. CREDIT FOR INTEREST EARNINGS AND EXCESS PAYMENTS.
(a) On each Interest Payment Date the Trustee shall credit against Borrower's obligation to
pay Loan interest and Additional Paymera& Borrower's Propo~onate Share of any interest earnings
which were received during the prior Interest Period by the Trustee on the Funds and Accounts held
under the Indenture. Notwithstanding the foregoing, amounts on deposit in each account in the Debt
Service Reserve Fund, and earnings thereon, shall be credited only to the Borrower for which such
account was established.
(b) The credits provided for in (a) shall not be given to the extent the Borrower is in
default in payment of its Loan Repayments. If past-due Loan Repayments are later collected from
such defaulting Borrower, the amount of the missed credit shall, to the extent of the amount
collected, be credited in proportion to the amount of credit missed, to the now non-defaulting
Borrower from the past-due Loan Repayments.
(c) The credits may be acommlated. Ifthe credit ailowable for an Interest Period is more
than required on the next ensuing Interest Paymem Date to satisfy the eurrem Loan interest
repayment, it may be used on the following Interest Payment Date.
SECTION 5.05. OBLIGATIONS OF BORROWER UNCONDITIONAL. Subject in all
respects to the provisions of this Loan Agreemem, including but not limited to Section 2.02(a) and
(1) hereof, the obligations of Borrower to make the Loan Payments required hereunder and to
· perform and observe the other agreements on its part contained herein, shall be absolute and
22
unconditional, and shall not be abated, rebated, set-off, reduced, abrogated, terminated, waived,
diminished, postponed or otherwise modified in any manner or to any ex'tent whatsoever, while any
Bonds remain outstanding or any Loan Repayments remain unpaid, regardless of any contingency,
act of God, event or cause whatsoever. This Loan Agreement shall be deemed and construed to be
a "net contract," and Borrower shall pay absolutely net the Loan Repayments and all other payments
required hereunder, regardless of any rights of set-off, recoupment, abatement or counterclaim that
Borrower might otherwise have against the Council, the Trustee, the Bond Insurer or any other party
or parties.
SECTION 5.06. REFIJNDING BONDS. In the event the Bonds are refunded, all references
in this Loan Agreement to Bonds shall be deemed to refer to the refunding bonds or, in the case of
a crossover refunding, to the Bonds and the refunding bonds Cuut Borrower shall never be responsible
for any debt sev/ice on or fees relating to crossover refunding bonds which are covered by earnings
on the escrow fund established from the proceeds of such bonds). The Council a~'ees not to issue
bonds or other debt obligations to refund the Bonds without the prior written consent of the
Authorized Representative of the Borrower.
SECTION 5.07. PREPAYMENT. The Loan may be prepaid in whole or in part by the
Borrower on the dates and in the amounts on which the Bonds are subject to optional redemption
pursuant to Section 3.01 of the Indenture, if any.
23
ARTICLE VI
DEFEASANCE
This Loan Agreement shall cominue to be obligatory and binding upon the Borrower in the
performance of the obligations imposed by this Loan Agreement and the repayment of ail sums due
by the Borrower under this Loan Agreement shall continue to be secured by this Loan Agreement as
provided herein until ail of the indebtedness and all of the payments required to be made by the
Borrower shall be fully paid to the Council or the Trustee. Provided, however, if, at any time, the
Borrower shall have paid, or shall have made provision for payment of, the principai amount of the
Loan, interest thereon and redemption premiums, if any, with respect to the Bonds, then, and in that
event, the pledge of and lien on the revenues pledged to the Council for the benefit of the holders of
the Bonds shall be no longer in effect and all future obligations of the Borrower under this Loan
Agreement shall cease. For purposes of the preceding sentence, deposit of sufficient cash and/or
Governmental Obligations in irrevocable trust with a banking institution or trust company, for the sole
benefit of the Council in respect to which such Governmental Obligations, the principai and interest
received will be sufficient to make timely payment of the pfindpal, interest and redemption premiums,
if any, on the Outstanding Bonds, shall be considered "provision for payment."
Nothing herein shall be deemed to require the Council to call any of the outstanding Bonds
for redemption prior to maturity pursuant to any applicable optional redemption provisions, or to
impair the discretion of the Council in determining whether to exercise any such option for early
redemption.
Ii'the Borrower shall make advance payments to the Council in an amount sufficient to retire
the Loan of the Borrower, including redemption premium and accrued interest to the next succeeding
redemption date of the Bonds, all future obligations of the Borrower under this Loan Agreement shall
cease, except as provided in Sectiun 4.02 hereof.
24
ARTICLE VII
ASSIGNMENT AND PAYMENT BY THIRD PARTIES
SECTION 7.01. ASSIGNMENT BY COUNCIL. The Borrower expressly acknowledges
that this Loan Agreement and the obligations of the Borrower to make payments hereunder (with the
exception of certain of the Council fights to indemnification, fees, notices and expenses), have been
pledged and 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 Council whether
or not the Bonds are in default.
SECTION 7.02. ASSIGNMENT BY BORROWER. This Loan Agreement may not be
assigned by the Borrower for any reason without the express prior written consent of the Council,
the Bond Insurer and the Trustee.
SECTION 7.03. PAYMENTS BY THE BOND INSURER. The Borrower acknowledges
that payment under this Loan Agreement from funds received by the Trustee or Bondholders from
the Bond Insurer do not constitute payment under this Loan Agreement for the purposes hereof or
fulfillment of its obligations hereunder.
25
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. EVENTS OF DEFAULT DEFINED. 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, any one or more of the following events:
(a) Failure by the Borrower to timely pay any Loan Repayment, when due, so long as the
Bonds are outstanding, and failure by the Borrower to timely pay any other payment required to be
paid hereunder on the date on which it is due and payable;
(b) Failure by the Borrower to observe and perform any covenant, condition or agreement
other than a failure under (a), on its part to be observed or performed under this Loan Agreement,
for a period of thirty (30) days after notice of the failure, unless the Council, the Bond Insurer and
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 fights of the Council, the Bond Insurer or the Trustee, but cannot be cured within
the applicable 30-day period, the Council, the Bond Insurer and the Trustee wilt not unreasonably
withhold their consent to an extension of such time if corrective action is instituted by the Borrower
within the applicable period and diligently pursued until the failure is corrected;
(c) Any wm'anty, representation or other statement by the Borrower or by an officer or agent
of the Borrower contained in this Loan Agreement or in any instrument furnished in compliance with
or in reference to this Loan Agreement, is false or misleading in any material respect when made;
(d) A petition is filed against the Borrower under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or herea~er in effect, and is not dismissed within 60 days of such filing;
(e) The Borrower 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 hereat~er in effect, or consents to
the filing of any petition against it under such law;
(f) The Borrower 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 Borrower 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 60 days;
26
(g) Default under any agreement to which Borrower is a party evidencing, securing or
otherwise respecting any indebtedness of the Borrower outstanding in the amount of $100,000 or
more if; as a result thereof; such indebtedness may be declared immediately due and payable or other
remedies may be exercised with respect thereto;
(h) Any material provision of this Loan Agreement shall at any time for any reason cease to
be valid and binding on Borrower, or shall be declared to be null and void, or the validity or
enforceability of this Loan Agreement shall be contested by Borrower or any governmental agency
or authority, or if Borrower shall deny any further liability or obligation under this Loan Agreement;
or
(i) Final judgment for the payment.of money in the amount of $250,000 or more is rendered
against Borrower and at. any time after 90 days bom the entry thereof, unless otherwise provided in
the fuud judgment, (i) such judgment shall not have been discharged, or (ii) Borrower shall not have
taken and be diligently prosecuting an appeal therefrom or from the order, decree or process upon
which or pursuant to which such judgment shall have been granted or entered, and have caused the
execution of or levy under such judgment, order, decree or process of the enforcement thereof to
have been stayed pending determine'on of such appeal, provided that such execution and levy would
materially adversely affect the Borrower's ability to meet its obligations hereunder; or (iii) Borrower
is not obligated with respect to such judgment pursuant to the provisions of Chapter 768, Florida
Statutes.
SECTION 8.02. NOTICE OF DEFAULT. The Borrower agrees to give the Trustee, the
Bond Insurer and the Council prompt written notice if any petition, assignment, appointment or
possession referred to in Section 8.01(d), 8.01(e) and 8.01(0 is filed by or against the Borrower or
of the occurrence of any other event or condition which constitutes a Default or an Event of Default,
or with the passage of time orthe givin$ of notice would constitute an Event of Default, immediately
upon becoming aware of the existence thereof.
SECTION 8.03. REMEDIES ON DEFAULT. Whenever any Event of Default referred to
in Section 8.01 hereof shall have happened and be continuin~ the Council or the Trustee shall, with
the written consent of the Bond Insurer or upon the direction of the Bond Insurer, 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 such remedies as provided in Section 9.02 of the
Indenture, and, without limitation, one or more of the following:
(a) Declare all Loan Payments, in an amount equal to 100% of the principal amount thereof
plus all accrued interest thereon to the date on which such Loan Repayments shall be used to redeem
Bonds pursuant to Section 3.02 of the Indenture and all other amounts due hereunder, to be
immediately due and payable, and upon notice to the Borrower the same shall become immediately
due and payable by the Borrower without further notice or demand.
27
(b) Take whatever other action at law or in equity which may appear necessary or desirable
to collect amounts then due and thereafter to become due hereunder or to enforce any other of its or
their rights hereunder.
SECTION 8.04. [TI-I~S SECTION RESERVED].
SECTION 8.05. NO REMEDY EXCLUSIVE; WAIVER, NOTICE. No remedy herein
conferred upon or reserved to the Council or the Trustee is intended to be exclusive and every such
remedy shall be cumulative and shall be in addition to eve~ other remedy given under this Loan
Agreement or now or bereatter existing at law or in equity. No delay or omission to exercise any
right, remedy or power shall be construed to be a waiver therenf; but any such right, remedy or power
may be exercised from time to time and as otten as may be deemed expedient. In order to entitle the
Council or the Trustee to exercise any remedy reserved to it in this Article vIn, it shall not be
necessary to give any notice other than such notice as may be required in this Article VIII.
SECTION 8.06. APPLICATION OF MONEYS. Any moneys collected by the Council or
the Trustee pursuant to Section 8.03 hereof shall be applied (a) first, to pay any attorney's fees or
other expenses owed by Borrower pursuant to Section 5.03(b)(3) and (4) hereof; (b) second, to pay
interest due on the Loan, (¢) third, to pay principal due on the Loan, (d)-fourth, to pay any other
amounts due hereunder, and (e) ~ to pay interest and principal on the Loan 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 8.06).
28
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices, certificates or other communication hereunder shall
be su~iciently 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:
Council:
Florida Municipal Loan Council
c/o Florida League of Cities
301 Bronough Street
Taliahassee, Florida 32301
Trustee, Paying Agent
and Registrar:
Bond Insurer:
Bo~ower:
with a copy to:
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 9.02. BINDING EFFECT. This Loan Agreement shall inure to the benefit of and
shall be binding upon the Council and the Borrower and their respective successors and assigns.
SECTION 9.03. SEVEI~ABII.rrY. In the event any provision of the 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.
29
SECTION 9.04. AMENDMENTS, CHANGES AND MODIFICATIONS. This Loan
Agreement may be amended by the Council and the Borrower as provided in the Indenture; provided,
however, that no such amendment shall be effective unless it shall have been consented to in writing
by the Bond Insurer.
SECTION 9.05. EXECUTION IN COUNTERPARTS. This Loan Agreement may be
simultaneously executed in several counterparts, each of which, when so executed and delivered, shall
be an original and all of which shall constitute but one and the same instrument.
SECTION 9.06. APPLICABLE LAW. This Loan Agreement shall be governed by and
construed in accordance with the taws of the State of Florida.
SECTION 9.07. BENEFIT OF BONDHOLDERS; COMPLIANCE WITH INDENTLrRE
This Loan Agreement is executed in part to induce the purchase by others of the Bonds.
Accordingly, all covenants, agreements and represemations on the part of the Borrower and the
Council, as set forth in this Loan Agreement, are hereby declared to be for the benefit of the holders
from time to time ofthe Bonds. The Borrower covenants and agrees to do all things within its power
in order to comply with and to enable the Council to comply with all requirements and to fulfill and
to enable the Council to fulfill all covenants of the Indenture.
SECTION 9.08. CONSENTS AND APPROVALS. Whenever the written consent or
approval of the Council shall be required under the provisions of this Loan Agreemem, such consem
or approval may be given by an Authorized Representative of the Council or such other additional
persons provided by law Or by rules, regulations or resolutions of the Council.
SECTION 9.09. IMMUNITY OF OFFICERS, EMPLOYEES AND MEMBERS OF
COUNCIL AND BORROWER. No recourse shall be had for the payment of the principal of or
premium or interest hereunder or for any claim based thereon or upon any representation, obligation,
covenant or agreemem in this Loan Agreement against any past, present or future officer, member,
counsel, employee, director or agent, as such, of the Council or the Borrower, either directly or
through the Council or the Borrower, or respectively, any successor public or private corporation
thereto under any role of law or equity, statute or constitution or by the enforcemem of any
assessment or penalty or otherwise, and all such liability of any such officers, members, counsels,
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.
SECTION 9.10. 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 of
sections of this Loan Agreement.
SECTION 9.11. NO PECUNIARY LIABILITY OF COUNCIL. No provision, covenant
or agreement contained in this Loan Agreement, or any obligation herein imposed upon the Council,
or the breach thereof, shall constitute an indebtedness or liability of the State or any political
30
subdivision or municipal corporation of the State or any public corporation or governmental agency
existing under the laws thereof other than the Council. In making the agreements, provisions and
covenants set forth in this Loan Agreement, the Council has not obligated itself except with respect
to the application of the revenues, income and all other property as derived herefi-om, as hereinabove
provided.
SECTION 9.12. PAYMENTS DUE ON HOLI~DAYS. With the exception of Basic
Payments, 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 other than on a Business Day, such
payments may be made or act performed or right exercised on the next succeeding Business Day with
the same force and effect as if done on the nominal date provided in this Loan Agreement.
SECTION 9.13. CALCULATIONS. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 9.14. TIME OF PAYMENT. Any Loan Repayment or other payment hereunder
which is received by the Trustee or Council aider 2:00 p.m. (New York time) on any day shall be
deemed received on the following Business Day.
31
IN WITNESS WHEREOF, the Florida Municipal Loan Council has caused this Loan
Agreement to be executed in its corporate name with its corporate seal hereumo affixed and attested
by its duly authorized officers and the City of , Florida, has caused this Loan
Agreement to be executed in its corporate name with its corporate seal hereunto affixed and attached
by its duly authorized officers. All oftbe above occurred as of the date first above written.
(SE/L)
FLORIDA MUNICIPAL LOAN COUNCIL
ATTEST:
By:
Name:
Title:
By:
Name:
Title:
(SEAL) CITY OF , FLORIDA
ATTESTED BY:
By:
Name:
Title:
By:
Name:
Title:
Approved as to form and legality
this day of ,1999.
By:
City Attorney
32
EXHIBIT A
CITY OF , FLORIDA
USE OF LOAN PROCEEDS
DESCRIPTION OF PROJECT TO BE ACQUIRED OR CONSTRUCTED
PROJECT
TOTAL AMOUNT
TO BE FINANCED
A-1
EXHIBIT B
[CERTIFY. r) RESOLUTIONS OF THE BORROWER]
[See Document No. ]
B-1
EXHIBIT C
OPI]qION OF BORROWER'S COUNSEL
[Letterhead of Counsel to Borrower]
[Date of the Closing]
C-1
EXH~IT D
DEBT SERVICE SCHEDULE
Date
Principal
Amounts
Interest
Rate
Interest
Total
[TO COME]
D-1
EXHIBIT D
FORM OF TRUST iNDENTURE
Exhibit D
FLORIDA MUNICIPAL LOAN COUNCIL,
Issuer
and
[Name of Trustee],
Trustee
TRUST INDENTURE
$
Florida Municipal Loan Council
Revenue Bonds, Series 199-
Dated as of
This instrument also constitutes a security agreement under the
laws of the State of Florida.
RECITALS
GRANTING CLAUSES
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND RULES OF INTERPRETATION
SECTION 1.01.
SECTION 1.02.
SECTION 2.01.
SECTION 2.02.
SECTION 2.03.
SECTION 2.04.
SECTION 2.05.
SECTION 2.06.
SECTION 2.07.
SECTION 2.08.
SECTION 2.09.
SECTION 2.10.
SECTION 2.11.
Page
1
2
SECTION 3.01.
SECTION 3.02.
SECTION 3.03.
SECTION 3.04.
SECTION 3.05.
SECTION 3.06.
SECTION 3.07.
Definitions ........ 5
Rules of Interpretation . 13
ARTICLE II
Authorization; Book-Entry System 15
Maturity and Interest Rate Provisions 17
Payment Provisions 18
Registered Bond Payment-Concerning
the Bond Insurance . 18
Payments in Advance of Scheduled
Maturity Dates by the Bond Insurer 20
Mutilated, Lost, Stolen or Destroyed
Bonds; Bonds Not Delivered for Purchase 20
Transfer and Exchange of Bonds;
Persons Treated as Owners 20
Cancellation of Bonds . 21
Temporary Bonds 21
Nonpresentment of Bonds 22
Form of Bonds 22
ARTICLE III
REDEMPTION OF BONDS
Optional Redemption of the Bonds
Mandatory Redemption of the Bonds
Notice of Redemption
Bonds Due and Payable on Redemption
Date; Interest Ceases To Accrue
Cancellation
Partial Redemption of Bonds .
Selection of Bonds To Be Redeemed
23
23
24
25
25
25
26
i
~a~e
SECTION 4 01.
SECTION 4 02.
SECTION 4 03.
SECTION 4 04.
SECTION 4 05.
SECTION 4 06.
SECTION 4 07.
SECTION 4 08.
SECTION 4.09.
SECTION 4.10.
SECTION 5.01.
SECTION 5.02.
ARTICLE IV
Source of Payment of Bonds
Creation of Funds and Accounts
Project Loan Fund
Principal Fund
Revenue Fund
Cost of Issuance Fund
Application of Bond Proceeds
Moneys To Be Held in Trust
Reports From Trustee
Certain Verifications
ARTICLE V
PROJECT LOANS
Terms and Conditions of Loans
Loan Closing Submission
ARTICLE VI
SERVICING OF LOANS
27
27
27
28
.... 28
29
29
30
30
31
32
32
ARTICLE VII
INVESTMENT OF MONEYS
ARTICLE VIII
DISCF~J~E OF INDENTURE
ARTICLE IX
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDE~
SECTION 9.01.
SECTION 9.02.
SECTION 9.03.
Defaults; Events of Default
Remedies; Rights of Bondholders
Right of Bondholders to' Direct
40
40
ii
sECTION 9.04
SECTION 9.05
SECTION 9.06
SECTION 9.07
SECTION 9.08
SECTION 9.09
SECTION 9.10
SECTION 9.11.
Proceedings
Appointment of Receivers
Application of Moneys
Remedies Vested in Trustee
Rights and Remedies of Bondholders
Termination of Proceedings
Waivers of Events of Default
Notice of Defaults Under Section
9.01(b); Opportunity of Council
To Cure Such Defaults .
Bond Insurer to be Deemed Bondowner;
Rights of Bond Insurer
42
43
43
..... 45
45
46
46
48
ARTICLE X
THE TRUSTEE
SECTION 10.01
SECTION 10.02
SECTION 10.03
SECTION 10.04
SECTION 10.05
SECTION 10.06
SECTION 10.07
SECTION 10.08
SECTION 10.09
SECTION 10.10
SECTION 10.11
SECTION 10.12
SECTION 10.13
SECTION 10.14
Acceptance of the Trusts
Fees, Charges and Expenses of Trustee
Notice to Bondholders if Default
Occurs Under Indenture .
Intervention by Trustee .
Successor Trustee .
Resignation by Trustee
Removal of Trustee
Appointment of Successor Trustee
Concerning Any Successor Trustee ....
Preservation and Inspection of Documents
[This Section Reserved] ......
Paying Agent
Registrar
Effect on Bondholders of Certain Actions
ARTICLE XI
SUPP?.~.MENTAL INDENTURES
SECTION 11.01. Supplemental Indentures Not
Requiring Consent of Bondholders
SECTION 11.02. Supplemental Indentures Requiring
Consent of Bondholders
SECTION 11.03. Notice to S&P and Fitch
ARTICLE XII
49
51
51
51
51
52
52
52
53
53
53
54
54
54
56
56
57'
iii
AMENDMENT OF LOAN AGREEMENTS
SECTION 12.01. Amendments, Etc., Not Requiring
Consent of Bondholders .
SECTION 12.02. Amendments, Etc., Requiring
Consent of Bondholders
ARTICLE XIII
GENERAL COVENANTS
SECTION 13.01.
SECTION 13.02.
SECTION 13.03.
SECTION 13.04.
SECTION 13.05.
SECTION 13.06.
SECTION 13.07.
SECTION 13.08.
Payment of Principal and Interest
Performance of Covenants; the Council
Instruments of Further Assurance
Recording and Filing
Rights Under the Loan Agreements
Possession and Inspection of Loan
Agreements .
Provision of Documents to Bondholders
Tax Covenants .
ARTICLE XIV
SECTION 14.01
SECTION 14.02
SECTION 14.03
SECTION 14.04
SECTION 14.05
SECTION 14.06
SECTION 14.07.
SECTION 14.08.
SECTION 14.09.
Consents, etc., of Bondholders
Limitation of Rights
The Bond Insurer
Severability
Notices
Payments Due on Saturdays, Sundays
and Holidays
Counterparts
Applicable Provisions of Law
Reporting Requirements
EXHIBIT A: Form of Bond
58
58
60
6O
60
61
61
61
61
62
64
64
64
65
65
66
66
66
66
iv
TRUST INDENTURE
THIS TRUST INDENTURE is made and entered into as of ,
199 , by and between FLORIDA~FJNICIPAL LOAN COUNCIL, a legal entity
and-public body corporate and politic duly created and existing
under the Constitution and laws of the State of Florida(the
"Council"), and , a banking association, duly
organized, existing and authorized to accept and execute trusts of
the character herein set out, with its principal corpora=e trust
office located in , , as Trustee (the "Trustee").
WI TNESSETH:
WHEREA.~, all capitalized undefined terms used herein shall
have the meanings set forth in Article I hereof; and
WHEREAS, the Council is duly created and existing pursuant to
the Constitution and laws of the State of Florida, including
particularly Part I of Chapter 163, .Florida Statutes, as amended
(the "Interlocal Act"), and certain resolution~ of the City of
Stuart, Florida, the City of Deland, Florida and the City of
Rockledge, Florida; and
WHERF, AS, the Council, pursuant to the authority of the
Interlocal Act. and other applicable provisions of law, is
authorized, among other things, to issue revenue bonds on behalf of
and for the benefit of the Borrowers in the State in order to
finance, refinance or reinlburse the cost of qualified Projects of
Borrowers, such bonds to be secured by instruments evidencing and
securing loans to said Borrowers and to be payable solely out of
the payments made by such Borrowers pursuant to Loan Agreements
entered into between the Borrowers and the Council or from other
moneys designated as available therefor and not otherwise pledged
or used as security, and to enter into a trust indenture providing
for the issuance of such bonds and for their payment and security;
and
WHEREAS, the Council has determined that the public interest
will be best served and that the purposes of the Interlocal Act can
be more advantageously obtained by the Council's issuance of
revenue bonds in order to provide funds to loan to the
participating Borrowers to finance, refinance or reimburse the cost
of qualifying Projects pursuant to Loan Agreements between the
respective Borrowers and the Council; and
WHEI~, the Council has previously by a resolution adopted on
(the "Resolution"), authorized the issuance of its Florida
Municipal Loan Council Revenue Bonds, in various series in the
aggregate principal amo~unt of not exceeding $500,000,000, pursuant
to certain trust indentures, to provide funds to finance, refinance
or rein%burse the cost of qualified Projects of the participating
Borrowers; and
WHERE3%S, The Council has now determined to issue its
$ Florida Municipal Loan Council Revenue Bonds at this
time pursuant to this Trust Indenture for the purposes more fully
described herein; and
WHERe, in order to secure the payment when due of the
principal of, premit~m, if any, and interest on the Bonds, the
Borrowers have covenanted in the Loan Agreements to budget and
appropriate legally available non-ad valorem funds of the Borrowers
sufficient for that purpose'and when so budgeted and appropriated
such funds of the Borrowers shall be the source of payment of
principal of, premi~u~, if any, and interest on the Bonds.
NOW, THEREFOPJ~, THIS TRUST INDENTURE
W I TNES SETH:
GRANTING CLAUSES
The Council, in consideration of the premises and the
acceptance by the Trustee of the trusts hereby created and of the
purchase and acceptance of each Series of Bonds by the owners
thereof, and for other good and valuable consideration, the receipt
of which is hereby acknowledged, in order to secure the payment of
the principal of, premium, if any, and interest on each Series of
Bonds according to their tenor and effect and to secure the
performance and observance by the Council of all the covenants
expressed or implied herein and in the Bonds, does hereby grant,
bargain, sell, convey, ~rtgage, assign, pledge and grant, without
recourse, a security interest in the Trust Estate to the Trustee,
and its successors in trust and assigns forever, for the securing
of the perfor~ance of the obligations of the Council hereinafter
set forth:
GRANTING CLAUSE FIRST
All right, title and interest of the Council under the Loan
Agreements (excluding fees and expenses payable to the Council and
rights of the Council to inde~ity and notices thereunder and
excluding any payments made by the Borrowers to comply with the
rebate provisions of Section 148(f) of the Code) if, as and when
entered into by the Borrowers and any documents securing payment
thereunder, including all extensions and renewals of any of the
.terms of the Loan Agreements and any documents securing payment
thereunder, if any, and without limiting the generality of the
foregoing, the present and continuing right to make claim for,
collect, receive and receipt for any income, issues and profits and
other sums of money payable to or receivable by the Council ~o
bring actions or proceedings under the Loan Agreements, any
documents securing payment thereunder or for the enforcement
thereof, and to do any and all things which the Council is or may
become entitled to do under or due to its ownership of the
interests hereby granted in the Loan Agreements; provided, however,
that each Series of Bonds shall be secured only by the right, title
and interest of the Council in the Loan Agreement or Agreements to
which such Series of Bonds relates; and
GRANTING CLAUSE SECOND
Ail moneys and securities from time to time held by the
Trustee under the terms of this Indenture (except for moneys and
securities held in the Rebate Fund); provided, however, that each
Series of Bonds shall be secured only by a security interest in and
claim on the moneys and securities held in the Accounts to which
such Series of Bonds relates; and
GRANTING CLAUSE THIRD
Ail Revenues, any proceeds of Bond Insurance, any and all
other property, rights and interests of every kind and nature from
time to time hereafter by delivery or by writing of any kind
granted, bargained, sold, alienated, demised, released, conveyed,
assigned, transferred, pledged, hypothecated or otherwise subjected
hereto, as and for additional security herewith, by the Council or
any other person on its behalf or with its written consent, and the
Trustee is hereby authorized to receive any and all such property
at any and all times and to hold and apply the same subject to the
terms hereof provided, however, that each Series of Bonds shall be
secured only by a security interest in and claim on the Revenues,
proceeds of Bond Insurance and other property, rights and interests
to which such Series of Bonds relates;
TO HAVE AND TO HOLD all and singular the Trust Estate, whether
now owned or hereafter acquired, to the Trustee and its respective
successors in trust and assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth for the equal and proportionate benefit, security and pro-
tection of all present and future owners of the Bonds issued under
and secured by this Indenture without privilege, priority or
distinction as to the lien or otherwise of any of the Bonds over
any of the other Bonds, except as otherwise specifically provided
herein with respect to each Series of Bonds;
3
PROVIDED, HOWEVER, that the holders of the Bonds shall be
entitled to payment only from the Loan Agreements more fully
described in Granting Clause First hereof pledged for the payment
of such Bonds, the Funds and Accounts set forth in Granting Clause
Second hereof established for such Bonds and the Revenues, proceeds
of Bond Insurance and other property, rights and interests
described in Granting Clause Third pledged for the payment of such
Bonds;
AND FURTHER PROVIDED, that if the Council, its successors or
assigns, shall well and truly pay, or cause to be paid, the
principal of, premium, if any, and interest on the Bonds due or to
become due thereon, at the times and in the manner mentioned in the
Bonds and as provided in Article II hereof according to the true
intent and meaning thereof, and shall cause the payments to be made
as required under A=ticle II hereof, or shall provide, as permitted
hereby, for the payment thereof in accordance with A~ticle VIII
hereof, and shall well and truly keep, perform and observe all the
covenants and conditions pursuant to the terms of this Indenture to
be kept, performed and observed by it, and shall pay or cause to be
paid to the Trustee and any Paying Agent all-sums of money due or
to become due in accordance with the terms and provisions hereof,
then upon such final payments or deposits as provided in Article
VIII hereof, this Indenture and the rights hereby granted shall
cease, term/nate and be void and the Trustee shall thereupon cancel
and discharge this Indenture and execute and deliver to the Council
such instruments in writing as shall be requisite to evidence the
discharge hereof.
THIS TRUST INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be
issued, authenticated and delivered and all of the Trust Estate is
to be dealt with and disposed of, under, upon and subject to the
terms, conditions, stipulations, covenants, agreements, trusts,
uses and purposes hereinafter expressed, and the Council has agreed
and covenanted, and does hereby agree and covenant, with the
Trustee and with the respective owners, from time to time, of the
Bonds, or any part thereof, as follows:
4
ARTICLE I
DEFINITIONS AND RULES OF INTERPRETATION
SECTION 1.01. Definitions.
Unless
this Section
Supplemental
the context otherwise requires, the terms defined in
shall, for all purposes of this Indenture and of any
Indenture, have the meanings herein specified.
"Accountant" or "Accountants" means an independent certified
public accountant or a firm of independent certified public
accountants.
"Accounts" means the accounts created pursuant to Section 4.02
hereof.
"Act" means collectively, Chapter 163, Part I, Florida
Statutes, Chapter 166, Part II, Florida Statutes, and Chapter 125,
Part I, as amended, and all other applicable provisions of law.
"Additional Payments" means payments required by Section 5.03
of the Loan Agreement.
"Arbitrage Regulations" means the income tax regulations
promulgated, proposed or applicable pursuant to Section 148 of the
Code, as the same may be amended or supplemented or proposed to be
amended or supplemented from time to time.
"Authorized Denominations" means $5,000 and integral multiples
thereof.
"Authorized Representative" means, when used pertaining to the
Council, the Chairman of the Council and such other designated
members, agents or representatives as may hereafter be selected by
Council resolution and, when used with reference to a Borrower
which is a municipality, means the person performing the functions
of the Mayor or Deputy or Vice Mayor thereof and, when used with
reference to a Borrower which is a County means the person
performing the functions 6f the Chairman or Vice Chairman of the
Board of County Commissioners of such Borrowers, and, when used
with reference to an act or document, also means any other person
authorized by resolution to perform such act or sign such document.
"Basic Payments" means the payments denominated as such in
Section 5.01 of the Loan Agreement.
5
"Board" means the governing body of the Borrower.
"Bond Counsel" means Bryant, Miller and Olive, P.A., Tampa,
Florida, or any other nationally recognized bond counsel which is
selected by the Council and acceptable to the Trustee.
"Bondholder" or "Holder" or "holder of Bonds" or "Owner" or
"owner of Bonds", whenever used herein with respect to a Bond,
means the person in whose name such Bond is registered.
"Bond Insurance Policy" means the municipal bond insurance
policy of the Bond Insurer which insures payment when due of the
principal of and interest on the Bonds as provided therein.
"Bond Insurance Premium" with respect to the Bonds, means the
premiums payable to the Bond Insurer for the Bond Insurance.
"Bond Insurer" means , and any successor
thereto.
"Bonds" means the Florida Municipal Loan Council Revenue
Bonds, Series 199 issued hereunder.
"Bond Year" means a 12-month period beginning on
ending on and including 31.
"Borrower" means a governmental unit which has entered into a
Loan Agreement and which is borrowing and using the Loan proceeds
to finance, refinance and/or be reimbursed for, all or a portion of
the costs of one or more Projects.
"Business Day" means a day of the year which is not a Saturday
or Sunday or a day on which banking institutions located in New
York or the State are required or authorized to r-m~in closed or on
which the New York Stock Exchange is closed.
"Certificate," "Statement," "Request," "Requisition" and
"Order" of the Council mean, respectively, a written certificate,
statement, request, requisition or order signed in the name of the
Council by its Chairman, Executive Director or such other person as
may be designated and authorized to sign for the Council. Any such
instrument and supporting opinions or representations, if any, may,
but need not, be combined in a single instrument with any other
instrument, opinion or representation, and the two or more so
combined shall be read and construed as a single instrument.
"Closing" means the closing of a Loan pursuant to this
Indenture and a Loan Agreement.
6
"Code" means the Internal Revenue Code of 1986, as amended,
and the regulations promulgated, proposed, or applicable there-
under.
"commencement Date" means the date when the term of a Loan
Agreement begins and the obligation of the Borrower thereunder to
make Loan Repayments accrues.
"Council" means the Florida Municipal Loan Council.
"Cost" means "Cost" as defined in the Act.
"Cost of Issuance Fund" means the fund by that name created by
Section 4.02 hereof.
"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 Council or the Borrower.
"Default" means an event or condition the occurrence of which
would, with the lapse of time or the giving of notice or both,
become an Event of Default.
"Depository" means the securities depository acting as
Depository under the Indenture, which may be the Council.
"Designated Member" means any designated person selected by
the Council.
"DTC" means The Depository Trust Company, New York, New York,
and its successors and assigns.
"Event of Default" means any occurrence or event specified in
Section 9.01 hereof.
"Financial Newspaper" or "Journal" means The Wall Street
Journal or The Bond Buyer or any other newspaper or journal con-
raining financial news, printed in the English language,
customarily p~blished on each business day and circulated in New
York, New York, and selected by the Trustee, whose decision shall
be final and conclusive.
"Fiscal Year" means the fiscal year of the Borrower.
"Fitch" means Fitch IBCA, Inc., organized and existing under
the laws of the State of Delaware, its successors and assigns.
"Funds" means the funds created pursuant to Section 4.02
hereof.
7
"Governmental Obligations" means (a) direct and general obli-
gations of the United States of America, or those which are uncon-
ditionally guaranteed as to principal and interest by the same, and
(b) pre-refunded municipal obligations meeting the following
criteria:
(i) the municipal obligations must be rated AAA by
Standard & Poor's and Aaa by Fitch and may not be callable
prior to maturity or, alternatively, the trustee has received
irrevocable instructions concerning their calling and
redemption;
(ii) the municipal obligations are secured by cash or
securities described in clause (a) above (the "Defeasance
Obligations"), which cash or Defeasance Obligations may be
applied only to interest, principal, and premium payments of
such municipal obligations;
(iii) the principal and interest of the Defeasance
Obligations (plus any cash in the fumd) are sufficient to meet
the liabilities of the municipal obligati-ons;
(iv) the Defeasance Obligations serving as security for
the municipal obligations must be held by an escrow agent or
a trustee; and
(v) the Defeasance Obligations are not available to
satisfy any other claim~, including those against the Trustee
or escrow agent.
Additionally, evidences of ownership of proportionate
interests in future interest and principal payments of Defeasance
Obligations are permissible. Investments in these proportionate
interests are l~mited to circumstances wherein (a) a bank or trust
company acts as custodian and holds the underlying obligations; (b)
the owner of the investment is the real party in interest and has
the right to proceed directly and individually against the obligor
of the underlying obligations; and (c) the underlying obligations
are held in a special account separate and apart from the
custodian's general assets, and are not available to satisfy any
claim of the custodian, any person claiming through the custodian,
or any person to whom the custodian may be obligated.
"Indenture" means this Trust Indenture dated as of
, between the Council and the Trustee, including any
indentures supplemental thereto, pursuant to which (i) the Bonds
are'authorized to be issued and (ii) the Council's interest in the
Trust Estate is pledged as security for the payment of principal
of, premium, if any, and interest on the Bonds.
"Interest Payment Date" means
each year.
1 and 1 of
"Interest Period" means the period commencing on an Interest
Payment Date and ending on the day preceding the next Interest
payment Date, provided that the initial Interest Period shall
commence on the date of issuance of the Bonds.
"Interlocal Act" means Chapter 163, Part I, Florida Statutes.
"Interlocal Agreement" means that certain Interlocal Agreemen~
originally dated as of , 199 , among the various
Borrowers executing it from time to time, (until the withdrawal of
such members) the original parties to which are the City of Stuart,
the City of Deland and the City of Rockledge.
"Investment Securities" means any of the following invest-
ments:
(a) direct obligations of the United States of America
(including obligations issued or held in book-entry form on the
books of the Department of the Treasury of the United States of
America) or obligations the principal of and interest on which are
fully and unconditionally guaranteed by the United States of
America, including (if such instruments become legal investments
under the laws of the State for moneys held hereunder) instruments
evidencing an ownership interest in securities described in this
clause (a); (b) evidence of ownership of proportionate interest in
Government Obligations described in clause (a) of this definition
limited to circumstances wherein (i) a bank or trust company acts
as custodian and holds the underlying obligations; (ii) the owner
of the investment is the real party in interest and has the right
to proceed directly and individually against the obligor of the
underlying obligations; and (iii) the underlying obligations are
held in a special account separate and apart from the custodian's
general assets, and are not available to satisfy any claim of the
custodian, any person claiming through the custodian, or any person
to whom the custodian may be obligated; (c) interest-bearing demand
or time deposits (including certificates of deposit) in banks
(including the Trustee) and savings and loan associations which
deposits are fully insured by the Federal Deposit Insurance
Corporation ("FDIC") or which are secured at all times by
collateral security (described in clause (a) of this definition) in
which the Trustee has a perfected first lien and which (i) is held
by the Trustee or a third-party agent, (ii) is not subject to liens
and claims of third-parties, (iii) has a market value (valued at
least every 14 days) of no less than the amount of moneys so
invested and interest accrued thereon; (d) investment agreements or
repurchase agreements (the maturity of which is less than thirty
9
(30) days) with a bank or trust company organized under the laws of
any state of the United States or with a national banking associa-
tion, insurance company or government bond dealer reporting to,
trading with and recognized as a primary dealer by the Federal
Reserve Bank of New York and which is a member of The Security
Investors Protection Corporation or with a dealer which is rated
(or the parent company of which is rated) "A" or above by S&P and
Fitch if such investments are fully secured by FDIC or collateral
security described in (a) of this definition, in which the Trustee
has a perfected first lien and which (i) is held by the Trustee or
a third-party agent during the term of such repurchase agreement,
(ii) is not subject to liens or claims of third parties, and
(iii) has a market value (determined at least once every 7 days) at
least ec~al to 103% of the 'amount so invested and interest accrued
thereon; and (e) any other investment in which proceeds of the
Bonds may be invested under Florida law, provided that such
investments are approved in writing by the Bond Insurer.
"Liquidation Proceeds" means amounts received by the Trustee
or the Council in connection with the enforcement of any of the
remedies under a Loan Agreement after the occurrence of an "event
of default" under a Loan Agreement which has not been waived or
cured.
"Loan" means a loan to a Borrower from proceeds of a Series of
Bonds to finance a Project or Projects pursuant to a Loan Agreement
in the amount specified in Section 3.01 of the Loan Agreement.
"Loans" means all loans made by the Council under this
Indenture to Borrowers.
"Loan Agreement" or "Loan Agreements" means the Loan Agreement
or Loan Agreements between the Council and the Borrower(s)
participating in the Program with respect to the Bonds, and any
amendments and supplements thereto which are executed for the
purpose of securing repayment of the Loan made by the Council to
such participating Borrower(s) from proceeds of a Series of Bonds
and establishing the terms and conditions upon which such Loans are
to be made.
Day,
"Loan Repayment Date" means and thereafter each
and or if such day is not a Business
the next preceding Business Day.
"Loan Repayments" means the payments of principal and interest
and other payments payable by the Borrower pursuant to the
provisions of the Loan Agreement.
10
"Loan Term" means the term provided for in Article IV of the
Loan Agreement.
"Non-Ad Valorem Revenues" means, with respect to a Borrower,
all revenues and taxes of such Borrower derived from any source
whatsoever other than ad valorem taxation on real and personal
property, which is legally available for Loan Repayments.
"Opinion of Bond Counsel" means an opinion by a nationally
recognized bond counsel firm experienced in matters relating to the
exclusion from gross income of interest payable on obligations of
states and their instrLunentalities and political subdivisions, and
which is selected by the Council and acceptable to the Trustee.
"Opinion of Counsel" means an opinion in writing of a legal
counsel, who may, but need not be, counsel to the Council, a
Borrower or the Trustee.
"Outstanding" or "Bonds Outstanding" means all Bonds which
have been authenticated and delivered by the Trustee under this
Indenture, except:
(a) Bonds canceled after purchase in the open market or
because of payment at or redemption prior to maturity;
(b) .Bonds deemed paid under Article VIII hereof; and
(c) Bonds in lieu of which other Bonds have been authen-
ticated under Section 2.06, 2.07 or 2.09 hereof.
"Person" means any individual, corporation, partnership,
association, trust or any other entity or organization including a
government or political subdivision or an agency or instrumentality
thereof.
"Principal Fund" means the fund by that name created by Sec-
tion 4.02 hereof.
"Principal Payment Date" means the maturity date or mandatory
redemption date of any Bond.
"Program" means the Council's program of making Loans under
the Act and pursuant to this Indenture.
"Project" or "Projects" means a governmental undertaking
approved by the governing body of a Borrower for a public purpose,
including the refinancing of any bonded indebtedness.
11
"Project Loan Fund" means the fund by that name created by
Section 4.02 hereof.
"Proportionate Share" means, at the time such calculation is
made, with respect to any Borrower, a fraction the numerator of
which is the outstanding principal amount of the Loan of such
Borrower made from proceeds of the Bonds and the denominator of
which is the outstanding principal amount of all Loans made from
proceeds of the Bonds.
"Purchase Price" means the purchase price of one or more items
of a Project negotiated by a Borrower with the seller of such
items.
"Rating Category" means one of the generic rating categories
of either Fitch or S&P, without regard of any refinement or
graduation of such rating category by a numerical modifier or
otherwise.
"Rebate Fund" means the fund by that name created by Section
4.02 hereof.
"Record Date" means, with respect to any Interest Payment
Date, the fifteenth day of the calendar month preceding such
Interest Payment Date.
"Redemption Price" means, with respect to any Bond (or portion
thereof), the principal amount of such Bond (or portion) plus the
applicable premium, if any, payable upon redemption pursuant to the
provisions of such Bond and this Indenture.
"Representation Letter" shall mean the Representation Letter
from the Council to the Depository.
"Revenue Fund" means the fund by that name created by Section
4.02 hereof and all accounts therein.
"Revenues" means all Loan Repayments paid to the Trustee for
the respective Accounts of the Borrowers for deposit in the Revenue
Fund and the Principal Fund to pay principal of, premium, if any,
and interest on the Bonds upon redemption, at maturity or upon
acceleration of maturity, or to pay interest on the Bonds when due,
and all receipts of the Trustee credited to the Borrower under the
provisions of the related Loan Agreement.
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., a corporation organized and
.existing under the laws of the State of New York, its successors
and their assigns, and, if such corporation shall be dissolved or
12
liquidated or shall no longer perform the functions of a securities
rating agency, "S&P" shall be deemed to refer to any other
nationally recognized securities rating agency designated by the
council, with the approval of the Bond Insurer, by notice to the
Trustee.
"Series" means each series of obligations authenticated and
delivered on original issuance and identified pursuant to this
Indenture in addition to the Series Bonds, if any, and any
obligations thereafter authenticated and delivered in lieu of or in
substitution therefor.
"Special Record Date" means the date established pursuant to
Section 9.05 as a record date for the payment of defaulted interest
on the Bonds.
"State" means the State of Florida.
"Supplemental Indenture" means any indenture hereafter duly
authorized and entered into between the Council and the Trustee,
supplementing, modifying or amending this Indenture, but only if
and to the extent that such Supplemental Indenture is.specifically
authorized hereunder.
"Trustee" means
successor thereto under this Indenture.
, as Trustee, or any
"Trust Estate" means the property, rights, Revenues and other
assets pledged and assigned to the Trustee pursuant to the Granting
Clauses hereof.
SECTION 1.02. Rules of Interpretation. For all purposes of
this Indenture, except as otherwise expressly provided or unless
the context otherwise requires:
(a) "This Indenture" means this instrument as originally
executed and as it may from time to time be supplemented,
modified or amended by any Supplemental Indenture.
(b) All reference in this instrument to designated
"Articles", "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this
instrument as originally executed. The words "herein",
"hereof", "hereunder" and "herewith", and other words of
similar import, refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
13
(c) The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular.
(d) Ail accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles.
(e) The terms defined elsewhere in this Indenture shall
have the meanings therein prescribed for them.
(f) Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and
neuter genders.
(g) The headings or captions used in this Indenture are
for convenience of reference only and shall not define or
limit or describe any of the provisions hereof or the scope or
intent hereof.
14
ARTICLE II
THE BONDS
SECTION 2.01. Authorization; Book-Entry System.
(a) Authorization, Issuance and Execution of Bonds. Bonds
may be issued hereunder from time to time in order to obtain moneys
to carry out the purposes of the Program for the benefit of the
Council and the Borrowers. The Bonds shall be designated as
"Florida Municipal Loan Council Revenue Bonds, Series " At
any time after the execution of this Indenture, the Council may
execute and the Trustee shall authenticate and, upon request of the
Council, deliver Series Bonds in the aggregate principal
amount of Dollars ($ ). This Indenture
constitutes a continuing agreement with the Owners from time to
time of the Bonds appertaining thereto to secure the full payment
of the principal of, premium, if any, and interest on all such
Bonds subject to the covenants, provisions and conditions herein
contained.
The Bonds shall be issuable as fully registered bonds without
coupons and shall be executed in the name and on behalf of the
Council with the manual or facsimile signature of its Chairman,
under its seal attested by the manual or facsimile signature of its
Vice-Chairman or Designated Member. Such seal may be in the form
of a facsimile of the Council's seal and may be reproduced,
imprinted or impressed on the Bonds. The Bonds shall then be
delivered to the Registrar, as hereinafter defined, for
authentication by it. In case any of the officers who shall have
signed or attested any of the Bonds shall cease to be such officer
or officers of the Council before the Bonds so signed and attested
shall have been authenticated or delivered by the Registrar or
issued by the Council, such Bonds may nevertheless be
authenticated, delivered and issued and, upon such authentication,
delivery and issue, shall be as binding upon the Council as though
those who signed and attested the same had continued to be such
officers of the Council, and also any Bond may be signed and
attested on behalf of the Council by such persons 'as at the actual
date of execution of such Bond shall be the proper officers of the
Council although at the nominal date of such Bond any such person
shall not have been such officer of the Council.
Only such of the Bonds as shall bear thereon a certificate of
authentication substantially in the form hereinafter recited,
manually executed by the Registrar as hereinafter defined, shall be
valid or obligatory for any purpose or entitled to the benefits of
15
this Indenture, and such certificate of the Registrar shall be
conclusive evidence that the Bonds so authenticated have been duly
executed, authenticated and delivered hereunder and are entitled to
the benefits of this Indenture.
(b) Each Series of Bonds shall be initially issued in the
form of a separate single certificated fully registered Bond for
each of the maturities of the Series. Upon initial issuance, the
ownership of each such Bond shall be registered in the reglstration
books kept by the Registrar in the na/ne of Cede & Co., as nominee
of DTC. Except as provided in this Section, all of the outstanding
Bonds of a Series shall be registered in the registration books
kept by the Registrar in the name of Cede & Co., as nominee of DTC.
With respect to Bonds registered in the registration books
kept by the Registrar in the name of Cede & Co., as nominee of DTC,
the Council, the Registrar and the Paying Agent shall have no
responsibility or obligation to any such Participant or to any
indirect participant. Without limiting the im/nediately preceding
sentence, the Council, the Registrar and the Paying Agent shall
have no responsibility or obligation with respect to (i) the
accuracy of the records of DTC, Cede & Co. or any Participant with
respect to any ownership interest in the Bonds, (ii) the delivery
to any Participant or any other person other than a Bondholder, as
shown in the registration books kept by the Registrar, of any
notice with respect to the Bonds, including any notice of redemp-
tion, or (iii) the pay~uent to any Participant or any other person,
other than a Bondholder, as shown in the registration books kept by
the Registrar, of any amount with respect to principal of, premium,
if any, or interest on the Bonds. The Council, the Registrar and
the Paying Agent may treat and consider the person in whose name
each Bond is registered in the registration books kept by the
Registrar as the holder and absolute owner of such Bond for the
purpose of payment of principal, premium and interest with respect
to such Bond, for the purpose of giving notices of redemption and
other matters with respect to such Bond, for the purpose of
registering transfers with respect to such Bond, and for all other
purposes whatsoever. The Paying Agent shall pay all principal of,
premium, if any, and interest on the Bonds only to or upon the
order of the respective Holders, as sho~a% in the registration books
kept by the Registrar, or their respective attorneys duly
authorized in writing, as provided herein and all such payments
shall be valid and effective to fully satisfy and discharge the
Council's obligations with respect to payment of principal of,
premium, if any, and interest on the Bonds to the extent of the sum'
or sums so paid. No person other than a Holder, as shown in the
registration books kept by the Registrar, shall receive a
certificated Bond evidencing the obligation of the Council to make
payments of principal, premium, if any, and interest pursuant to
the provisions hereof. Upon delivery by DTC to the Council of
written notice to the effect that DTC has determined to substitute
a new nominee in place of Cede & Co., and subject to the provisions
herein with respect to Record Dates, the words "Cede & Co." in this
Indenture shall refer to such new nominee of DTC; and upon receipt
of such a notice the Council shall promptly deliver a copy of the
same to the Registrar and the Paying Agent.
Upon receipt by the Council of written notice from DTC (i) to
the effect that DTC has received written notice from the Council to
the effect that a continuation of the recp/irement that all of the
outstanding Bonds be registered in the registration books kept by
the Registrar in the name of Cede & Co., as nominee of DTC, is not
in the best interest of the beneficial owners of the Bonds or (ii)
to the effect that DTC is unable or unwilling to discharge its
responsibilities and no substitute depository willing to undertake
the functions of DTC hereunder can be found which is willing and
able to undertake such functions upon reasonable and customary
terms, the Bonds shall no longer be restricted to being registered
in the registration books kept by the Registrar in the name of Cede
& Co., as nominee of DTC, but may be registered in whatever name or
names Holders transferring or exchanging Bonds shall designate, in
accordance with the provision hereof.
SECTION 2.02. Maturit~ and Interest Rate Provisions. The
Series Bonds shall be dated as of 1, and shall bear
interest payable on 1 and 1 and on each Interest
Payment Date thereafter. They shall be in the denomination of
$5,000 each, or integral multiples thereof, and shall be numbered
consecutively from R-1 upward. The Series __ Bonds shall bear
interest and shall mature at the rates, in the amounts and on the
dates set forth below:
SECTION 2.03. Payment Provisions. The principal of, premium,
if any, and interest on the Bonds shall be payable in any coin or
currency of the United States of America which on the respective
dates of payment thereof is legal tender for the payment of public
and private debts. Principal of and premium, if any, on the Bonds
shall be payable at the principal corporate trust office of the
Trustee, or any successor paying agent and registrar appointed
pursuant to the provisions of Sections 10.12 and 10.13 hereof (the
"Paying Agent" or "Registrar"), and payment of the interest on each
Bond shall be made by the Paying Agent on each Interest Payment
Date to the person appearing as the registered owner thereof on the
bond registration books maintained by the Registrar as of the close
.of business on the Record Date preceding the Interest Payment Date
(or, if interest on the Bonds is in default and the Bond Insurer is
17
in default under the Bond Insurance, a Special Record Date
established pursuant to Section 9.05), by check mailed to such
registered owner at his address as it appears on such registration
books or at the prior written request and expense of an owner of
$1,000,000 in aggregate principal amount of Series Bonds, by
bank wire transfer to a domestic bank account, notwithstanding the
cancellation of any such Bonds upon any exchange or transfer
thereof subsequent to the Record Date or Special Record Date and
prior to such Interest Payment Date. Payment of the principal (or
redemption price) of all Bonds shall be made upon the presentation
and surrender of such Bonds as the same shall become due and pay-
able.
SECTION 2.04. Registered Bond Payment-Concerning the Bond
Insurance. So long as the Bond Insurance shall be in full force
and effect, the Council and the Trustee hereby agree to comply with
the following provisions:
[insert insurance provisions]
SECTION 2.05. Payments inA d vance of Scheduled Maturit-yDates
by the Bond Insurer. In the event that the Bond Insurer shall make
any payments of principal of, and/or interest on any of the Bonds
pursuant to the terms of the Bond Insurance and the Bonds are
accelerated or are redeemed pursuant to Section 3.02 hereof, the
Bond Insurer may at any time and at its sole option pay all or a
portion of amounts due under the Bonds to the Bondowners prior to
the stated maturity dates thereof.
SECTION 2.06. M~tilated, Lost, Stolen or Destroyed Bonds;
Bonds Not Delivered for Purchase. If any Bond is mutilated, lost,
stolen or destroyed, the Council shall execute and the Registrar
shall authenticate a new Bond of the same date, maturity and
denomination as that mutilated, lost, stolen or destroyed; provided
that in the case of any mutilated Bond, such mutilated Bond shall
first be surrendered to the Registrar, and in the case of any lost,
stolen or destroyed Bond, there shall be first furnished to the
Council and the Registrar evidence of such loss, theft or
destruction satisfactory to the Council and the Registrar, together
with an indemnity satisfactory to them. In the event any such Bond
shall have matured or been called for redemption, instead of
issuing a duplicate Bond, the Paying Agent may pay the same. The
Council and the Registrar may charge the Owner of such Bond with
their reasonable fees and expenses in connection with replacing any
Bohd mutilated, lost, stolen or destroyed.
18
SECTION 2.07. Transfer and Exchange of Bonds; Persons Treated
as Owners. The Council shall cause books for the registration and
transfer of the Bonds, as provided in this Indenture, to be kept by
the Registrar. Upon surrender for transfer of any Bond at the
principal corporate trust office of the Registrar, accompanied by
an assignment duly executed by the registered Owner or his attorney
duly authorized in writing, the Council shall execute and the
Registrar shall authenticate and deliver in the name of the
transferee or transferees a new Bond or Bonds for a like aggregate
principal amount.
Bonds may be exchanged at the principal corporate trust office
of the Registrar for a like aggregate principal amount of Bonds of
other Authorized Denominations. The Council shall execute and the
Registrar shall authenticate and deliver Bonds which the Bondholder
making the exchange is entitled to receive, bearing numbers not
contemporaneously outstanding.
The Registrar shall not be required to (i) transfer or
exchange any Bonds during the ten (10) days next preceding any day
upon which notice of redemption of Bonds is-to be mailed or
(ii) transfer or exchange any Bonds selected, called or being
called for redemption in whole or in part.
The person in whose name any Bond shall be registered shall be
deemed and regarded by the Trustee, the Registrar and the Council
as the absolute Owner thereof for all purposes, and payment of or
on account of the principal of, pr-mium, if any, or interest on any
Bond shall be made only to or upon the written order of the
registered Owner thereof or his legal representative, subject to
Section 2.03 hereof, and neither the Council nor the Trustee nor
the Registrar shall be affected by any notice to the contrary, but
such registration may be changed as hereinabove provided. /%11 such
payments shall be valid and effectual to satisfy and discharge the
liability upon such Bond to the extent of the sum or sums paid.
A reasonable transfer charge may be made for any exchange or
transfer of any Bond and the Registrar shall require the payment by
any Bondholder requesting exchange or transfer of a sum sufficient
to cover any tax or other governmental charge required to be paid
with respect to such exchange or transfer and a sum sufficient to
pay the cost of preparing each new Bond issued upon such exchange
or transfer.
SECTION 2.08. Cancella~on of Bonds. Whenever any Out-'
standing Bond shall be delivered to the Registrar for cancellation
pursuant to this Indenture, upon payment of the principal amount
thereof or for replacement pursuant to Section 2.06 hereof or for
19
transfer or exchange pursuant to Sections 2.07 or 2.09 hereof, such
Bond shall be Canceled by the Registrar, and evidence of such
cancellation shall be furnished by the Registrar to the Council.
SECTION 2.09. Temporary Bonds. Pending the preparation of
definitive Bonds, the Council may execute and the Registrar shall
authenticate and deliver temporary Bonds. Temporary Bonds shall be
issuable as fully registered Bonds, of any Authorized Denomination,
and substantially in the form of the definitive Bonds but with such
omissions, insertions and variations as may be appropriate for
temporary Bonds, all as may be determined by the Council.
Temporary Bonds may be issued without specific terms and may con-
tain such reference to any provisions of this Indenture as may be
appropriate. Every temporary Bond shall be executed by the Council
and authenticated by the Registrar upon the same conditions and in
substantially the same manner, and with like effect, as the
definitive Bonds. As promptly as practicable, the Council shall
execute and shall furnish definitive Bonds and thereupon temporary
Bonds may be surrendered in exchange therefor without charge at the
principal corporate trust office of the Registrar, and the
Registrar shall authenticate and deliver iN exchange for such
temporary Bonds a like aggregate principal amount of definitive
Bonds. Until so exchanged, the-temporary Bonds shall be entitled
to the same benefits under this Indenture as definitive Bonds.
SECTION 2.10. Nonpresen~nent of B Opals. In the event any Bond
shall not be presented for payment when the principal thereof
becomes due, either at maturity, or at the date fixed for redemp-
tion thereof, or otherwise, or if any interest check shall not be
cashed, if funds sufficient to pay such Bond or interest shall have
been made available by the Council to the Trustee for the benefit
of the Owner thereof, all liability of the Council to the Owner
thereof for the payment of such Bond or interest, as the case may
be, shall forthwith cease, terminate and be completely discharged,
and thereupon it shall be the duty of the Paying Agent to hold such
funds, uninvested and without liability for interest thereon, for
the benefit of the Owner of such Bond or interest, as the case may
be, who shall thereafter be restricted exclusively to such funds
for any claim of whatever nature on his part under this Indenture
or on, or with respect to, said Bond or interest, as the case may
be, provided that any money deposited with the PayingAgent for the
payment of the principal of (and premium, if any) or interest on
any Bond and remaining unclaimed for six years after such principal
(and premium, if any) or interest has become due and payable shall
be paid to the Council, and the Owner of such Bond or interest, as
the case may be, shall thereafter, as an unsecured general
creditor, look only to the Council for payment thereof, and all
liability of the Trustee with respect to such trust money shall
2O
thereupon cease; provided, however, that the Trustee, before being
required to make any such payment to the Council, may, at the
expense of the Council, cause to be published once, in a Financial
Newspaper or Journal, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of
such money then remaining will be paid to the Council.
SECTION 2.11. Form of Bonds. The Bonds to be issued here-
under, and the certificate of authentication by the Registrar to be
endorsed on all such Bonds, shall be substantially in the form set
forth as Exhibit A hereto, with such variations, omissions and
insertions as are permitted by this Indenture or are required to
conform the form of Bond to the other provisions of this Indenture
(any portion of such form of Bond may be printed on the back of the
Bonds).
21
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. O~tional Redemption of ~he Bonds.
The Bonds maturing on or before are not subject to
optional redemption by the Council. The Bonds maturing after
are subject to redemption at the option of the
Council on or after , as a whole at any time, or in
part on any Interest Payment Date, in any manner determined by the
Trustee in its discretion, taking into consideration the maturity
of the Loan being prepaid by a particular Borrower or Borrowers
during the following periods and at the following redemption
prices, expressed as a percentage of the principal amount of the
Bonds to be redeemed, plus accrued interest to the redemption date:
Redemption Period
(Both Dates Inclusive)
Redemption Price
SECTION 3.02. Mandato~ Redemp~on of ~he Bonds.
(a) The Bonds maturing on are subject to
mandatory redemption, in part, by lot, at redemption prices equal
to 100% of the principal amount thereof, plus interest accrued to
the redemption date, beginning on and on each 1
thereafter, in the following principal amounts in the following
years:
Principal
Year Amount
(b) The Series Bonds are also subject to mandatory
redemption at any time, in whole or in part, at a redemption price
of the principal amount thereof plus accrued interest to the
red-mption date, without premium, but only with the approval of the
Bond Insurer, from all amounts received by the Trustee as a result
of an acceleration of any Loan or Loans made from the proceeds of
such Series of Bonds ("Liqt~idation Proceeds"). If Bonds are to be
redeemed in part by mandatory redemption, the Bonds to be redeemed
will be selected on a proportionate basis from among all of the
· maturities of such Bonds and within each maturity by lot. Bonds to
22
be redeemed in each year on a proportionate basis shall be selected
with such proportionate basis to be determined by the Trustee by
multiplying the total amount of Liquidation Proceeds from such Loan
or Loans by the ratio which the principal portion of scheduled Loan
Repayments of such Loan or Loans in each Bond Year bears to the
total principal amount of such Loan or Loans. The Series of Bonds
which is subject to mandatory redemption will be dependent on the
Loan or Loans which are accelerated.
SECTION 3.03. Notice of Redemption. In the case of every
redemption, the Registrar, at the direction of the Trustee, shall
cause notice of such redemption to be given to the registered Owner
of any Bonds designated for redemption in whole or in part, at his
address as the same shall last appear upon the Bond registration
books by mailing a copy of the redemption notice by first-class
mail at least thirty (30) days prior to the redemption date. The
failure of the Registrar to give notice to a Bondholder or any
defect in such notice shall not affect the validity of the redemp-
tion of any other Bonds. A copy of any such notice shall also be
sent by the Registrar to the Bond Insurer and any person necessary
to ensure compliance by the Council with applicable rules and
regulations regarding such notices.
Each notice of redemption shall specify the date fixed for
redemption, the redemption price to be paid, the place or places of
payment, that payment will be made upon presentation and surrender
of the Bonds to be redeemed, that interest, if any, accrued to the
date fixed for redemption will be paid as specified in said notice,
and that on and after said date interest thereon will cease to
accrue. If less than all the Outstanding Bonds are to be redeemed,
the notice of red-mption shall specify the numbers of the Bonds or
portions thereof, including CUSIP identification mlmbers ($5,000 or
any integral multiple thereof) to be redeemed.
The Registrar also shall mail a copy of such notice by regis-
tered or certified mail or overnight delivery service (or by tele-
copy where permitted) for receipt not less than thirty (30) days
before such redemption date to the following: The Depository
Trust Company, 711 Stewart Avenue, Garden City, New York 11530;
Midwest Securities Trust Company, Capital Structures - Call
Notification, 440 South LaSalle Street, Chicago, Illinois 60605;
Philadelphia Depository Trust Company, Reorganization Division,
1900 Market Street, Philadelphia, Pennsylvania 19103; Attention:
Bond Department; provided, however, that such mailing shall not be
a condition precedent to such redemption and failure so to mail any
such notice shall not affect the validity of any proceedings for
the redemption of Bonds.
23
sECTION 3.04. Bonds Due and Payable on Redemption Date;
Interest Ceases To Accrue. On the redemption date, the principal
amount of each Bond to be redeemed, together with the accrued
interest thereon to such date, shall become due and payable; and
from and after such date, notice (if required) having been given
and moneys available solely for such redemption being on deposit
with the Trustee in accordance with the provisions of this Article
III, then, notwithstanding that any Bonds called for redemption
shall not have been surrendered, no further interest shall accrue
on any of such Bonds or portions thereof to be redeemed. From and
after such date of redemption (such notice having been given and
moneys available solely for such redemption being on deposit with
the Trustee), the Bonds or portions thereof to be redeemed shall
not be deemed to be Outstanding hereunder, and the Council shall be
under no further liability in respect thereof.
SECTION 3.05. Cancellation. Ail Bonds which have been
redeemed shall be canceled by the Registrar as provided in SECTION
2.08 hereof.
SECTION 3.06. Partial Redemption of Bonds. Upon surrender
of any Bond in a denomination greater than $5,000 called for
redemption in part only, the Council shall execute and the
Registrar shall authenticate and deliver to the registered Owner
thereof a new Bond or Bonds of authorized denominations in an
aggregate principal amount equal to the unredeemed portion of the
Bond surrendered.
SECTION 3.07. Selec~L~.on of Bonds To Be Redeemed. The Bonds
shall be redeemed pursuant to Sections 3.01 and 3.02 only in the
principal amount of an Authorized Denomination. The Bonds or
portions of the Bonds to be redeemed shall, except as otherwise
provided in Section 3.02 hereof, be selected by the Registrar by
lot or in such other manner as the Council in its discretion may
deem appropriate.
ARTICLE IV
REVENUES AND FUNDS
SECTION 4.01. Source of Payment of Bonds. The Bonds and all
payments by the Council hereunder are limited and special
obligations of the Council and are payable solely out of Revenues
and certain proceeds of the Bonds as authorized by the Constitution
and laws of the State, including particularly the Act, as and to
the extent provided herein. The Bonds and the Council's other
obligations hereunder are solely and exclusively obligations of the
Council to the extent set. forth herein and do not constitute or
create an obligation, general or special, or debt, liability or
moral obligation of the State or any political subdivision or any
municipal corporation of the State. The Bonds shall not be or
constitute a general obligation of the Council, the State of
Florida or any political subdivision or any municipal corporation
thereof or a lien upon.any property owned or situated within the
territorial limits of the Council, the State of Florida or any
political subdivision or any municipal corporation thereof except
the Trust Estate, in the manner provided herein and in the Loan
Agreements. The Loan Agreements do not represent joint liabilities
of the Borrowers executing Loan Agreements with the Council, and
shall be payable solely as provided in such Loan Agreements.
SECTION 4.02. Creation of Funds and Acoounts. There are
hereby established by the Council the following Funds and Accounts
to be held by the Trustee: (1) the Project Loan Fund, with a
Series Account therein, (2) the Principal ~und with a Series
Account therein, (3) the Revenue Fund, with a Series
Account therein, (4) the Cost of Issuance Fund, with a Series
Account therein, and (5) the Rebate Fund, with a Series
Account therein, to be held by the Trustee or the Council and
applied as provided in Section 13'.08 hereof.
SECTION 4.03. Project Loan Fund. Moneys in the Project Loan
Fund shall be disbursed at Closing to make Loans to Borrowers upon
the submission of the documents by Borrowers as required by, and
upon the terms and conditions specified in, A~ticle V hereof.
Thereafter, such Project Loan ~und monies are held by the
Borrowers. Upon the occurrence of an event of default under a Loan
Agreement and the exercise by the Trustee of the remedy specified
in Section 8.03(a) of such Loan Agreement, any moneys in the
Project Loan Fund not yet disbursed to the defaulting Borrower, if
any, shall be transferred by the Trustee to the Principal Fund and
applied in accordance with the second paragraph of Section 4.04
hereof.
25
SECTION 4.04. Principal Fund. Upon the receipt of Loan
Repayments or Liquidation Proceeds, the Trustee shall deposit in
the appropriate Account of the Principal Fund all payments or
recoveries of principal of Loans or payments to be applied to the
payment of any premium due upon optional redemption of the appro-
priate Series of Bonds.
Amounts in the appropriate Account of the Principal Fund shall
be used as follows: (1) to pay scheduled principal payments of the
appropriate Series of Bonds and (2) to pay the principal of and
premium, if any, on the appropriate Series of Bonds redeemed
pursuant to Section 3.01 or Section 3.02 when required by such
Sections.
Upon acceleration of maturity of a Series Bonds pursuant to
Section 9.02, all amounts in the respective Account of the
Principal Fund shall be used to pay maturing principal of and
interest on the appropriate Series of Bonds.
SECTION 4.05. Revenue Fun~. Upon the receipt of Loan Repay-
ments or Liquidation Proceeds or proceeds earmarked for capitalized
interest, the Trustee shall deposit in the appropriate Account of
the Revenue Fund all moneys remaining after the deposits required
by Section 4.04 hereof. Ail investment earnings on amounts in the
Funds and Accounts (except the Rebate Fund) shall be deposited in
the corresponding Account of the Revenue Fund as received. Any
amounts received by the Trustee hereunder which are not required to
be deposited elsewhere shall also be deposited in the appropriate
Account of the Revenue Fund.
Amounts in the appropriate Account of the Revenue Fund shall
be used to make the following payments or transfers in the
following order of priority:
(1) On each Interest Payment Date, to pay interest due
on the appropriate Series of Bonds;
(2) At
interest due on the
to Sections 3.01 or
such times as are necessary, to pay accrued
appropriate Series of Bonds redeemed pursuant
3.02 hereof;
(3) At such times as are necessary, to pay the fees and
expenses of the Trustee, DTC, the Registrar and the Paying Agent
(including the cost of printing additional Bonds) and the fees and
expenses of the Council (including costs of issuing the Bonds if
insufficient amounts are on hand in the Cost of Issuance D/nd), any
counsel consulted by the Council with respect to any Loan, or of
independent Accountants employed pursuant to Section 4.10 hereof;
26
provided, further, that the Bond Insurer may authorize the payment
of any such fees or expenses prior to the payment of interest on
the appropriate Series of Bonds, subject to Section 4.11 hereof;
(4) On each Interest Payment Date of each year, all
amounts remaining in an Account within Revenue Fund, other than
fees being collected in installments pursuant to the relevant Loan
Agreement and amounts which will be credited against the relevant
Borrower's next Loan Repayments, shall be deposited in the appro-
priate Account of the Principal Fund, as provided in Section 5.04
of the Loan Agreements.
SECTION 4.06. Cost of Issuance Fund. Moneys in the appro-
priate Account of the Cost'of Issuance Fund shall be used to pay
costs of issuing the appropriate Series of Bonds to the extent not
paid from other sources, which costs may include, all printing
expenses in connection with this Indenture, the Loan Agreements,
the preliminary and final Official Statements for the Bonds and the
Bonds; the underwriters' discount for the initial purchase of the
Bonds; the initial Bond Insurance Premium; administrative expenses
of the Council; and legal fees and expenses of counsel to the
Council, bond counsel and counsel to the Bond Insurer and fees of
the financial advisor to the Council; any accounting, expenses
incurred in connection with determining that the Bonds are not
arbitrage bonds, the Trustee's and the Paying Agent and Registrar's
initial fees and expenses (including attorney's fees), upon the
submission of requisitions by the Council signed by an officer of
the Council stating the amount to be paid, to whom it is to be paid
and the reason for such payment, and that the amount of such
requisition is justly due and owing and has not been the subject of
another requisition which was paid and is a proper expense of
issuing such Bonds. Any monies remaining in the Cost of Issuance
Fund on shall be transferred to the appropriate
Account of the Revenue Fund and be credited on a pro rata basis
toward each Borrower's obligation to pay Loan interest, taking into
consideration the discount at which such Loans were made as
specified in Section 3.01 of each Loan Agreement.
SECTION 4.07. Application of Bond Procc:ds. The proceeds of
the Series Bonds shall be deposited with .the Trustee as
follows:
(i) In the Series Account of the Revenue Fund,
the sum of $ which represents accrued interest;
(ii) In the Series __
ance Fund, the sum of $
Account of the Cost of Issu-
;
27
In the Series Account of the Project Loan Fund, the
su~ of $ which represents the balance of the pro-
ceeds received from the sale of the Series Bonds.
SECTION 4.08. Moneys To Be Held in Trust. With the exception
of moneys deposited in the Rebate Fund, all moneys required to be
deposited with or paid to the Trustee for the account of any Fund
or Account established under any provision of this Indenture shall
be held by the Trustee, in trust, and except for moneys deposited
with or paid to the Trustee for the redemption of Bonds, notice of
the redemption of which has been duly given, and except as
otherwise provided in Section 2.10 hereof, shall, while held by the
Trustee, constitute part of the Trust Estate and be subject to the
security interest created hereby.
SECTION 4.09. ~eX~orts From Trustee. Unless otherwise advised
in writing, the Trustee shall furnish monthly to the Council, the
Bond Insurer and to any Borrower, upon request, on the twentieth
(20th) day of the month following the month in which the Bonds are
delivered, and on the twentieth (20th) day of each month
thereafter, a report on the status of each of the Funds and
Accounts established under this Jtrticle IV which are. held by the
Trustee, showing at least the balance in each such Fund or Account
as of the first day of the preceding month, the total of deposits
to and the total of disbursements from each such Fund or Account,
the dates of such deposits and disbursements, and the balance in
each such Fund or Account on the last day of the preceding month.
SECTION 4.19. Certain Verifications. The Council, the
Trustee and/or the Bond Insurer from time to time may cause a firm
of independent Accountants to supply the Council, the Trustee and
the Bond Insurer with such information as the Council, the Trustee
or the Bond Insurer may request in order to determine in a manner
reasonably satisfactory to the Council, the Trustee and the Bond
Insurer all matters relating to (a) the sufficiency of projected
cash flow receipts and disbursements on the Loans and Funds
described herein to pay the principal of and interest on the Bonds
and (b) the actuarial yields on the Loans and on the Bonds as the
same may relate to any data or conclusions necessary to verify that
the Bonds are not arbitrage bonds within the meaning of Section 148
of the Code. Payment for costs and expenses incurred in connection
with supplying the foregoing information shall be paid from moneys
in the Revenue Fund pursuant to Section 4.05(2) hereof.
28
ARTICLE V
PROJECT LOANS
SECTION 5.01. Terms and Contritions of Loans. The Council
will make Loans to Borrowers in order to (i) finance the acquisi-
tion, installation and construction of Projects by Borrowers and
(ii) refund or refinance debt incurred by Borrowers to acquire,
install and construct Projects, all in accordance with provisions
more fully set forth in the Loan Agreements.
SECTION 5.02. Loan Closing SutmPieeion. No Loan shall be made
by the Council unless and until the Bond Insurer has consented in
writing and unless and until the documents required by Section 4.03
of The Loan Agreements are submitted to the Council.
29
ARTICLE VI
SERVICING OF LOANS
The Trustee shall be responsible for calculating payments due
in respect of the Loans, holding collateral pledged in respect of
the Loans, if any, and enforcing the Loans; provided, however, that
the Trustee shall have no duty to take notice of any default in
respect of any Loan (other than a payment default) unless the
Trustee shall be notified of such default in a written instrument.
3O
ARTICLE VII
INVESTMENT OF MONEYS
All moneys in any of the Funds and Accounts shall be invested
by the Trustee in Investment Securities with due regard for the
fiduciary responsibility of the Trustee to maximize investment
income. All Investment Securities shall be acquired subject to the
limitations set forth in Section 13.08 hereof, at the direction of
the Council, which may be telephonically made and promptly
confirmed in writing, except that Investment Securities with
respect to each Borrower's account in the Debt Service Reserve Fund
shall be acquired, subject to the limitations set forth in Section
13.08 hereof, at the direction of the Borrower for which such
account in the Debt Service Reserve Fund was established, which may
be telephonically made and promptly confirmed in writing.
Moneys in the Funds and Accounts shall be invested in Invest-
ment Securities with respect to which payments of principal thereof
and interest thereon are scheduled or otherwise-payable not later
than the dates on which it is estimated that such moneys will be
required by the Trustee for the purposes specified in this
Indenture. Investment Securities acquired pursuant to this Section
under a repurchase agreement with the seller thereof may be deemed
to mature on the dates on and in the amounts (i.e., for the
repurchase price) which the Trustee may deliver such Investment
Securities to such seller for repurchase under such agreement.
Investment Securities acquired as an investment of moneys in
any Fund or Account shall be credited to such Fund or Account. For
the purpose of determining the amount in any Fund or Account, all
Investment Securities credited to any such Fund or Account shall be
valued at market value on the date of determination; provided,
however, that repurchase agreements shall be valued at the aggre-
gate repurchase price of the securities remaining to be repurchased
pursuant to such agreements and investment agreements shall be
valued at the aggregate amount remaining invested therein (in each
case exclusive of accrued interest after the first payment of
interest following purchase).
Ail interest, profits and other income earned from investment
(other than in Loans) of all moneys in any Fund or Account (except
the Rebate Fund) shall be deposited when received in the appro-
priate Account of the Revenue Fund, except that an amount of
interest received with respect to any Investment Security equal to
the amount of accrued interest, if any, paid as part of the
31
purchase price of such Investment Security shall be credited to the
Fund or Account from which such accrued interest was paid.
Subject to Section 13.08 hereof and except as provided herein,
investments in any and all Funds and Acco~//ts may be commingled for
purposes of making, holding and disposing of investments,
notwithstanding provisions herein for transfer to or holding in
particular Funds and Accounts of amounts received or held by the
Trustee hereunder, provided that, notwithstanding any such
commingling, the Trustee shall at all times account for such
investments strictly in accordance with the Funds and Accounts to
which they are credited and otherwise as provided in this Inden-
ture. The Trustee may act as principal or agent in the acquisition
or disposition of Investment Securities. The Trustee may sell, or
present for redemption, any Investment Securities so purchased
whenever it shall be necessary in order to provide moneys to meet
any required payment, transfer, withdrawal or disbursement from the
Fund or Account to which such Investment Security is credited, and
the Trustee shall not be liable or responsible for any loss
resulting from any investment made pursuant to this Article VII.
In computing the amount in any Fund or Account, Investment
Securities shall be valued at the market value of such obligations,
exclusive of accrued interest. With respect to all Funds and
Accounts, valuation shall occur a~nually and immediately upon a
withdrawal from the Debt Service Reserve Fund. If amounts on
deposit in the Debt Service Reserve F~nd shall, at any time, be
less than the applicable Debt Service Reserve Fund Requirement,
such deficiency shall be made up as required by the Loan Agree-
ments.
~_ll amounts representing accrued and capitalized interest, if
any, shall be held by the Trustee, pledged solely to the payment of
interest and invested only in Government Obligations maturing at
such times, and in such amounts as are necessary to match the
interest payments on the appropriate Series of Bonds.
32
ARTICLE VIII
DISCHARGE OF INDENTURE
If the Council shall pay or cause to be paid (other than by
the Bond Insurer) to the Owner of any Bond secured hereby the
principal of and interest due and payable, and thereafter to become
due and payable, upon such Bond, or any portion of such Bond in the
principal amount of $5,000 or any integral multiple thereof, such
Bond or portion thereof shall cease to be entitled to any lien,
benefit or security under this Indenture. If the Council shall pay
or cause to be paid (other than by the Bond Insurer) to the Owners
of all the Bonds of a Series secured hereby the principal of and
interest due and payable, and thereafter to become due and payable
thereon, and shall pay or cause to be paid (other than by the Bond
Insurer) all other sums payable hereunder by the Council and
related to such Series, then, and in that case, the right, title
and interest of the Trustee in the related Trust Estate shall
thereupon cease, terminate and become void. In such event, the
Trustee shall assign, transfer and turn over to the Council the
related Trust Estate and, at the direction of the Council, cancel
any outstanding Loans related to such Series of Bonds; provided
that if such Series of Bonds are paid from the proceeds of
refunding bonds, the Loans shall at the direction of the Council
not be canceled but shall be transferred and pledged as security
and a source of payment for the refunding bonds.
Notwithstanding the release and discharge of the lien of this
Indenture as provided above, those provisions of this Indenture
relating to the maturity of the Bonds, interest payments and dates
thereof, exchange and transfer of Bonds, replacement of mutilated,
destroyed, lost or stolen Bonds, the safekeeping and cancellation
of Bonds, nonpresentment of Bonds, the holding of moneys in trust,
and the duties of the Trustee in connection with all of the fore-
going, remain in effect and shall be binding upon the Trustee and
the Bondholder.
Any Bond shall be deemed to be paid within the meaning of this
Article and for all purposes of this Indenture when (a) payment of
the principal of and premium, if any, on such Bond, plus interest
thereon to the due date thereof (whether such due date is by reason
of maturity or upon redemption as provided herein), either
(i) shall have been made or caused to be made (other than by the
Bond Insurer) in accordance with the terms thereof, or (ii) shall
have been provided for (other than by the Bond Insurer) by
irrevocably depositing with the Trustee in trust and irrevocably
..setting aside exclusively for such payment (1) moneys sufficient to
33
make such payment and/or (2) Governmental Obligations maturing as
to principal and interest in such amounts and at such time as will
insure the availability of sufficient moneys to make such payment,
and (b) all necessary and proper fees, compensation and expenses of
the Trustee and the Council pertaining to such Series of Bonds with
respect to which such deposit is made shall have been paid or the
payment thereof provided for to the satisfaction of the Trustee.
At such times as a Bond shall be deemed to be paid hereunder, as
aforesaid, such Bond shall no longer be secured by or entitled ~o
the benefits of this Indenture, except for the purposes of any such
payment from such moneys or Governmental Obligations.
Notwithstanding the foregoing paragraph, no deposit under
clause (a) (ii) of the immediately preceding paragraph shall be
deemed a payment of such Series of Bonds as aforesaid (1) until the
Council shall have given the Trustee, in form satisfactory to the
Trustee, irrevocable instructions:
(i) stating the date when the principal of each such
Bond is to be paid, whether at maturity or on a redemption date
(which shall be any redemption date permitted by this Indenture);
(ii) to call for redemption pursuant to this Indenture
any Bonds to be redeemed prior to maturity pursuant to (i) hereof;
and
(iii) if all the Bonds of such Series are not to be
redeemed within 30 days, to mail, as soon as practicable, in the
manner prescribed by Article III hereof, a notice to the Owners of
such Series of Bonds that the deposit rec~/ired by (a)(ii) above has
been made with the Trustee and that said Bonds are deemed to have
been paid in accordance with this Article and stating the maturity
or redemption date upon which moneys are to be available for the
payment of the principal or redemption price, if applicable, of
said Series of Bonds as specified in (i) hereof; and
(2) if any Bonds of such Series are to be redeemed within the
next 30 days, u~til proper notice of redemption of those Bonds has
been given.
Any moneys so deposited with the Trustee as provided in the
two foregoing paragraphs may at the direction of the Council also
be invested and reinvested in Governmental Obligations described in
clause (i) of the definition thereof, maturing in the amounts and
at the times as hereinbefore set forth, and all income from all
such Governmental Obligations in the hands of the Trustee pursuant
to this Article which is not required for the payment of the Bonds
and interest thereon with respect to which such moneys shall have
been so deposited, shall be paid to the' Council as and when
34
realized if not needed to pay any fees or expenses provided for
hereunder.
No deposit under this Article shall be made or accepted here-
under and no use made of any such deposit unless the Trustee shall
have received an Opinion of Bond Counsel to the effect that such
deposit and use would not cause the Bonds to be treated as arbi-
trage bonds within the meaning of Section 148 of the Code.
Notwithstanding any provision of any other Article of this
Indenture which may be contrary to the provisions of this Article,
all moneys or GoverIunental Obligations set aside and held in trust
pursuant to the provisions of this Article for the payment of Bonds
of a Series (including interest thereon) shall be applied to and
used solely for the payment of the particular Bonds (including
interest thereon) with respect to which such moneys or obligations
have been so set aside in trust.
Anything in Article XI hereof to the contrary notwithstanding,
if moneys or obligations have been deposited or set aside with the
Trustee pursuant to this Article for the payment of Bonds of a
Series and interest thereon when due and such Bonds and interest
shall not have in fact been actually paid in full when due, no
amendment to the provisions of this Article shall be made without
the consent of the Owner of each Bond affected thereby.
Anything to the contrary provided elsewhere in this Indenture
notwithstanding, this Indenture shall not be discharged as long as
any amounts are owing to the Bond Insurer and no Bond shall be
deemed paid under this Indenture if the Bond Insurer shall have
made any payment under the Bond Insurance in respect of the
principal of or interest on such Bond until the amount of such
principal or interest, together with interest thereon provided for
herein and in the Bonds on past-due principal and interest, shall
have been paid to the Bond Insurer. Furthermore, if the discharge
of the Indenture is based upon, or utilizes a forward supply
contract, the Insurer's prior written consent must be received
before the Indenture shall be discharged by the Trustee.
Prior to any defeasance becoming effective under this
Indenture, (i) the Bond Insurer shall have received an opinion of
counsel, satisfactory to the Bond Insurer, to the effect that the
proceeds of any deposit to effectuate such defeasance shall not
constitute a voidable preference in a case commenced under the
Federal Bankruptcy Code by or against the Council or any applicable
Borrower, (ii) the amounts req~/ired to be deposited in an escrow
fu~d pursuant to this Indenture and the escrow deposit agreement
entered into in order to effectuate such defeasance shall be
invested only in Government Obligations and (iii) the Bond Insurer
35
shall have received (a) the final official statement delivered in
connection with the refunding bonds, (b) a copy of the accountant's
verification report, (c) a copy of the escrow deposit agreement in
form and substance acceptable to the Bond Insurer, (d) a copy of an
opinion of Bond Cotlnsel, dated the date of closing addressed to the
Bond Insurer, to the effect that the refunded bonds have been paid
within the meaning and with the effect expressed in the Indenture,
and the covenants, agreements and other obligations of the Council
to the holders of the refunded bonds have been discharged and
satisfied. (The opinion required by (i) above may be waived in the
discretion of the Bond Insurer at the time of such defeasance.)
ARTICLE IX
DEFAULT PROVISIONS AND REMEDIES OF
TRUSTEE AND BONDHOLDERS
SECTION 9.01. Defaults; Events of Default. If any of the
following events occurs with respect to a Series of Bonds, it is
hereby defined as and declared to be and to constitute an "Event of
Default" with respect to such Series of Bonds:
(a) Default in the payment of the principal of or interest
on any Bond of that Series after the.principal or interest has
become due, whether at maturity or upon call for redemption.
(b) Default in the performance or observance of any covenant,
agreement or condition on the part of the Council contained in this
Indenture or in the Bonds of that Series (other than defaults
mentioned in Section 9.01(a) and (c)) and failure to remedy the
same after notice of the default pursuant to Section 9.10 hereof.
(c) If the Council shall file a petition seeking a
composition of indebtedness under the federal bankruptcy laws, or
under any other applicable law or statute of the United States of
America or of the State, or the Council by the Council of any act
of bankruptcy, or adjudication of the Council as a bankrupt, or
assignment by the Council for the benefit of its creditors or the
approval by a court of competent jurisdiction of a petition
applicable to the Council in any proceeding for its reorganization
instituted under federal bankruptcy laws, or under any other
applicable law or statute of the United States of America or of the
State.
SECTION 9.02. Remedies; Rights of Bondholders. Upon the
occurrence of an Event of Default with respect to a Series of
Bonds, the Trustee shall have the following rights and remedies:
(a) The Trustee may, and in the case of Event of Default
under Section 9.01(c) above shall, pursue any available remedy at
law or in equity or by statute, including the federal bankruptcy
laws or other applicable law or statute of the United States of
America or of the State, to enforce the payment of principal of and
interest on the Bonds of such Series then Outstanding, including
enforcement of any rights of the Council or the Trustee under the
related Loan Agreements.
(b) The Trustee may by action or suit in equity require the
'Council to account as if it were the trustee of an express trust
37
for the Owners of the Bonds of such Series and may then take such
action with respect to the related Loan Agreements as the Trustee
shall deem necessary or appropriate and in the best interest of the
Bondholders, subject to the terms of the related Loan Agreements,
including the sale of part or all of the related Loan Agreements.
(c) Upon the filing of a suit or other commencement of
judicial proceedings to enforce any rights of the Trustee and of
the Bondholders under this Indenture, the Trustee shall be
entitled, as a matter of right, to the appointment of a receiver or
receivers of the related Trust Estate and of the Revenues, issues,
earnings, income, products and profits thereof, pending such pro-
ceedings, with such powers as the court making such appointment
shall confer.
(d) The Trustee shall give written notice of any Event of
Default to the Council and the Bond Insurer as promptly as practi-
cable after the occurrence of an Event of Default becomes known to
the Trustee. If an Event of Default has occurred and is continu-
ing, the Bond Insurer shall, subject to the provisions in the
following sentence, have the right to direct the Trustee to declare
immediately due and payable the principal amount of the Outstanding
Bonds of such Series, provided' that as a condition to such
direction of acceleration the Bond Insurer shall have deposited
with the Trustee a sum for payment with respect to principal of and
interest accrued and to accrue (to a date not less than 30 days
following the Bond Insurer's notice of direction to the Trustee of
acceleration) on the Series of Bonds Outstanding. NOTWITHSTANDING
THE FOREGOING OR ANY PROVISION HEREIN TO THE (XH~%%RY, IN THE EVENT
AN EVENT OF DEFAULT HA~ OCCURRED BECAUSE OF A DEFAULT UNDER LESS
THAN A?.?. OF THE RELATED LOAN AGREEMENTS, THE BOND INSURER SHALL
ONLY HAVE THE RIGHT TO DIRECT THE TPJJSTEE TO DECLARE II~DIATELY
DUE AND PAXA~LE A PRINCIPAL AI~ OF THE O~ITSTARDING BONDS OF SUCH
SERIES IN AN AIdOUNT EQUAL TO THE PRINCIPAL AIdOUNT OF THE RELATED
LOAN OR LOANS THEN IN DEFAb~LT. In such event the Bond Insurer
shall direct the Trustee as to which of the Outstanding Bonds of
such Series shall be declared immediately due and payable. In
making such declaration, the Bond Insurer may only declare Bonds of
such Series immediately due and payable as are reasonably related
to the related Loan Repayments. When the Trustee fs directed that
payment with respect to such Series of Bonds is to be accelerated
pursuant to this Section, or when the Bond Insurer, in connection
with acceleration of such Bonds by the Trustee, shall have elected
in its discretion to deposit funds in an ~mount sufficient to pay
all amounts of principal and interest due on such Bonds including
by reason of acceleration and has so notified the Trustee, the
Trustee shall mail notice to the registered Owners of such Bonds
not less than fifteen days prior to the date (the "Insurance
38
payment Date") to which interest accrued and to accrue on such
Bonds has been provided by the Bond Insurer, which notice shall
state the manner in which such Bonds may be assigned to the Bond
Insurer or to an agent or designee thereof in exchange for payment
thereon and shall state that from and after the Insurance Payment
Date, interest shall cease to accrue on such Bonds for the benefit
of such registered Owners (provided that an amount equal to such
interest shall continue to accrue on such Bonds assigned to the
Bond Insurer as aforesaid).
If an Event of Default shall have occurred, and if requested
so to do by the Bond Insurer or by the owners of 25% or more in
aggregate principal amount of Outstanding Bonds of a Series
affected thereby and indemnified as provided in Section 10.01(k)
hereof, the Trustee shall be obligated to exercise such one or more
of the rights and powers conferred by this Section as the Trustee,
being advised by counsel, shall deem most expedient in the
interests of the Bondholders.
No right or remedy by the terms of this Indenture conferred
upon or reserved to the Trustee (or to the Bondholders or the Bond
Insurer) is intended to be exclusive of any other right or remedy,
but each and every such right or remedy shall be cumulative and
. shall be in addition to any other right or remedy given to the
Trustee or to the Bondholders hereunder or now or hereafter
existing at law. or in equity or by statute. The assertion or
employment of any right or remedy shall not prevent the concurrent
or subsequent assertion or ~mployment of any other right or remedy.
No delay or omission in exercising any right or remedy
accruing upon any default or Event of Default shall impair any such
right or remedy or shall be construed to be a waiver of any such
default or Event of Default or acquiescence therein; and every such
right or remedy may be exercised from time to time and as often as
may be deemed expedient.
No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the Bondholders, shall extend to or
shall affect any subsequent default or Event of Default or shall
impair any rights or remedies consequent thereon.
No waiver of any default or Event of Default hereunder by the
Trustee shall be effective without the approval of the Bond
Insurer.
SECTION 9.03. Right of Bondholders to Direct Proceedings.
Anything in this Indenture to the contrary notwithstanding, the
Bond Insurer or, with consent of the Bond Insurer (provided such
consent shall not be rpquired if the Bond Insurer is in default
39
under the Bond Insurance), the Owners of a majority in aggregate
principal amount of the Outstanding Bonds of all Series affected
thereby shall have the right, at any time during the continuance of
an Event of Default, by an instrument or instruments in writing
executed and delivered to the Trustee, to direct the time, method
and place of conducting all proceedings to be taken in connection
with the enforcement of the terms and conditions of this Indenture,
or for the appointment of a receiver or any other proceedings
hereunder; provided that such direction shall not be otherwise than
in accordance with the provisions of law and of this Indenture.
SECTION 9.04. Appointment of Receivers. Upon the occurrence
of an Event of Default, and upon the filing of a suit or other
commencement of judicial proceedings to enforce any rights of the
Trustee and of the Bondholders under this Indenture, the Trustee
shall be entitled, as a matter of right, to the appointment of a
receiver or receivers of the Trust Estate and of the revenues,
issues, earnings, income, products and profits thereof, pending
such proceedings, with such powers as the court making such
appointment shall confer.
SECTION 9.05. Applicat-%on of Moneys. Ail moneys received by
the Trustee pursuant to any righ~ given or action taken under the
provisions of this Article, including by virtue of action taken
under provisions of any Loan Agreement, shall, after payment of the
costs and expenses of the proceedings resulting in the collection
of such moneys and of the fees (including reasonable Trustee's
fees), expenses, liabilities and advances payable to, incurred or
made by the Trustee (including reasonable fees and disbursements of
its counsel), be applied, along with any other moneys available for
such purposes, as follows:
(a) Unless the principal of all the Bonds of a Series shall
have become due and payable, all such moneys shall be applied:
FIRST -- To the payment to the persons entitled thereto
of all amounts payable pursuant to Section 4.05(1) or Section
4.05(2) and, as to installments of interest, in the order of
the maturity of the installments of such interest and, if the
amount available shall not be sufficient t~ pay in full any
particular installment of interest, then to the payment
ratably, according to the amounts due on such installment, to
the persons entitled thereto, without any discrimination or
privilege;
SECOND -- To the payment to the persons entitled thereto
of the unpaid principal of any of the Bonds of such Series
which shall have become due at stated maturity or pursuant to
4O
a call for redemption (other than such Bonds called for
redemption for the payment of which moneys are held pursuant
to the other provisions of this Indenture), in the order of
their due dates and, if the amount available shall not be
sufficient to pay in full Bonds of such Series due on any
particular date, then to the payment ratably, according to the
amount of principal due on such date, to the persons entitled
thereto without any discrimination or privilege;
THIRD -- To payment to the persons entitled thereto of
all amounts payable pursuant to Sections 4.05(3); and
FOURTH -- To be held as provided in Article IV hereof for
the payment to the persons entitled thereto as the same shall
become due of the amounts payable pursuant to this Indenture
(including principal of such Bonds due upon call for redemp-
tion) and, if the amount available shall not be sufficient to
pay in full amounts due on any particular date, payment shall
be made ratably according to the priorities set forth in
subparagraphs FIRST, SECOND and THIRD above.
(b) If the principal of all the Bonds of a Series shall have
become due, all such moneys shall be applied to the payment of the
principal of and interest then due and unpaid upon the Bonds and
amounts payable pursuant to Section 4.05(3), with Bond principal
and interest to be paid first, without preference or priority of
principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or
of any Bond over any other Bond, ratably, according to the amounts
due respectively for principal and interest, and with the items
enumerated in Section 4.05(3) to be paid second to the Persons
entitled thereto without any discrimination or privilege.
Whenever moneys are to be applied pursuant to the provisions
of this Section, such moneys shall be applied at such times, and
from time to time, as the Trustee shall determine, having due
regard to the amount of such moneys available for application and
the likelihood of additional moneys becoming available for such
application in the future. Whenever the Trustee shall apply such
funds, it shall fix the date (which shall be an Interest Payment
Date unless the Trustee shall deem another date more suitable) upon
which such application is to be made and upon such date interest on
the amounts of principal and past-due interest to be paid on such
date shall cease to accrue. Defaulted interest on a Bond shall be
payable to the person in whose name such Bond is registered at the
close of business on a Special Record Date for the payment of
defaulted interest established by notice mailed by the Trustee to
the registered Owners of Bonds not more than fifteen (15) days
preceding such Special Record Date. Such not~ce shall be mailed to
41
the person in whose name the Bonds are registered at the close of
business on the fifth (Sth) day preceding the date of mailing. The
Trustee shall not be required to make payraent of principal of any
Bond to the Owner of such Bond until such Bond shall be presented
to the Trustee for appropriate endorsement or for cancellation if
fully paid.
Whenever all principal of and interest on all Bonds of such
Series have been paid under the provisions of this Section and all
expenses and charges of the Trustee and the Bond Insurer have been
paid, any balance remaining in the Fxlnds and Accounts shall be
transferred to the Council as provided in ;%rticle viii hereof.
SECTION 9.06. Remedies Vested in Trustee. Ail rights of
action (including the right to file proof of claims) under this
Indenture or under any of the Bonds may be enforced by the Trustee
without the possession of any of the Bonds or the production
thereof in any trial or other proceeding related thereto and any
trial or other proceeding related thereto and any such suit or
proceeding instituted by the Trustee shall be brought in its name
as Trustee without the necessity of joining as plaintiffs or
defendants any Owners of the Bonds, and any recovery of judgment
shall be for the equal and ratable benefit of the Owners of all the
Outstanding Bonds of all Series affected thereby.
SECTION 9.07. Rights and Remedies of Bondholders. No Owner
of any Bond or the Bond Insurer shall have any right to institute
any suit, action or proceeding at law or in equity for the enforce-
ment of this Indenture or for the execution of any trust hereof or
for the appointment of a receiver or any other remedy hereunder,
unless (a) a default has occurred, (b) such default shall have
become an Event of Default and the Owners of not less than 25% in
aggregate principal amount of Outstanding Bonds of all Series
affected thereby, with the consent of the Bond Insurer or the Bond
Insurer shall have made written request to the Trustee and shall
have offered it reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute such
action, suit or proceeding in its own name, (c) such Owners of
Bonds or the Bond Insurer shall have offered to the Trustee
indemnity as provided in Section 10.01(1) hereof, and (d) the
Trustee shall for 60 days after receipt of such request and
indemnification fail or refuse to exercise the rights and remedies
hereinbefore granted, or to institute such action, suit or
proceeding in its own name; and such request and offer of indem-nit~.
are hereby declared in every case at the option of the Trustee to
be conditions precedent to the execution of the powers and trusts
of ~his Indenture, and to any action or cause of action for the
enforcement of this Indenture, or for the appointment of a receiver
42
or for any other remedy hereunder; it being understood and intended
that no one or more Owners of the Bonds or the Bond Insurer shall
have any right in any manner whatsoever to affect, disturb or
prejudice the lien of this Indenture by its, his or their action or
to enforce any right hereunder except in the manner herein
provided, and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein provided and
for the equal and ratable benefit of the Owners of all Outstanding
Bonds of all Series affected thereby. However, nothing contained
in this Indenture shall affect or impair the right of any Bond-
holder to enforce the payment of the principal of and interest on
any Bond at and after the maturity or redemption date of such
principal or interest, or the obligation of the Council to pay the
principal of and interest o~ each of the Bonds issued hereunder to
the respective'registered Owners thereof at the time, place, from
the source and in the manner in this Indenture and in the Bonds
expressed.
SECTION 9.08. Terminat_%on of Proceedings. In case the
Trustee or any Owner of any Bonds or the Bond Insurer shall have
proceeded to enforce any right under this Indenture by the appoint-
ment of a receiver or otherwise, and such proceedings.shall have
been discontinued or abandoned for any reason, or shall have been
determined adversely, then and in every such case the Council, the
Trustee, the Bond Insurer and the Bondholders shall be restored to
their former positions and rights hereunder, respectively, and with
regard to the property herein subject to this Indenture, and all
rights, remedies and powers of the Trustee and Owners of Bonds
shall continue as if no such proceedings had been taken.
SECTION 9.09. Waivers of Events of Default. The Trustee may,
with the consent of the Bond Insurer, at its discretion waive any
Event of Default hereunder (other than an Event of Default
specified in 9.01(c) above) and its consequences and may rescind
any declaration of maturity of all the Bonds of all Series affected
thereby (except an acceleration of maturity of all or a portion of
such Bonds directed by the Bond Insurer) and shall do so upon the
written request of the Bond Insurer or the Owners of (a) more than
two-thirds in aggregate principal amount of all Outstanding Bonds
of all Series affected thereby (with the consent of the Bond
Insurer, unless the Bond Insurer is in default under the Bond
Insurance) in the case of default in the payment of principal or
interest, or (b) more than one-half in aggregate principal amount
of all Outstanding Bonds of all Series affected thereby (with the
consent of the Bond Insurer, unless the Bond Insurer is in default
under the Bond Insurance) in the case of any other default;
provided, however, that there shall not be waived (i) any default
· . in the payment of the principal of any such Outstanding Bond at the
date of maturity specified therein or (ii) any default in the
payment when due of the interest on any such Outstanding Bond,
unless prior to such waiver all arrears of interest or all arrears
of payments of principal when due, as the case may be, with
interest on overdue principal and interest as provided in Section
2.04(f) hereof, and all expenses of the Trustee in connection with
such default shall have been paid or provided for, and in case of
any such waiver or rescission, or in case any proceeding taken by
the Trustee on account of any such default shall have been discon-
tinued or abandoned or determined adversely, then, and in every
such case, the Council, the Trustee, the Bond Insurer and the
Bondholders shall be restored to their former positions and rights
hereunder, respectively, but no such waiver or rescission shall
extend to any subsequent or other default, or impair any right
consequent thereon. No such waiver shall affect the rights of
third parties to payment of amounts provided for hereunder.
SECTION 9.10. Notice of Defaults Under Section 9.01(b);
Opportunity of Council To Cure Such Defaults. ~-nything herein to
the contrary notwithstanding, no default under Section 9.01(b)
hereof shall constitute an Event of Default until actual notice of
such default by registered or certified mail shall be given to the
Council by the Trustee or by the Bond Insurer or the Owners of not
· less than 25% in aggregate principal amount of all Outstanding
Bonds of all Series affected thereby and the Council shall have had
30 days after receipt of such notice to correct the default or
cause the default to be corrected, and shall not have corrected the
default or caused the default to be corrected within the applicable
period; provided, however, if the default be such that it cannot be
corrected within the applicable period, it shall not constitute an
Event of Default if corrective action is instituted by the Council
within the applicable period and diligently pursued until the
default is corrected.
With regard to any alleged default concerning which notice is
given to the Council under the provisions of this Section, the
Council hereby grants the Trustee full authority for the account of
the Council to perform any covenant or obligation alleged in said
notice to constitute a default, in the name and stead of the
Council with full power to do any and all things and acts to the
same extent that the Council could do and perform any such things
and acts and with power of substitution.
The Council and the Trustee shall notify the Bond Insurer
within five {5) days after each has received notice or has know-
ledge of (i) an Event of Default specified in Section 9.01 hereof;
(ii)- the withdrawal of amounts on deposit in the Debt Service
Reserve Fund; or (iii) the failure to make any required deposit to
44
the Principal Fund or the Revenue Fund to pay principal or interest
when due.
Any notice that is required to be given to the Bondholders or
the Trustee pursuant to this Indenture or any Supplemental Inden-
ture shall also be provided to the Bond Insurer. All notices
required to be given to the Bond Insurer under this Indenture shall
be in writing and shall be sent by registered or certified mail
addressed to Municipal Bond Investors Assurance Corporation.
SECTION 9.11. Bond Insurer to be Deemed Bondowner; Rights of
Bond Insurer. (a) Notwithstanding any provisions of this Inden-
ture to the contrary, unless the Bond Insurer is in default under
the Bond Insurance, the Bond Insurer shall at all times be deemed
the exclusive Owner of all Bonds for all purposes except for the
purpose of payment of the principal of and premium, if any, and
interest on the Bonds prior to the payment by the Bond Insurer of
the principal of and interest on the Bonds. The Bond Insurer shall
have the exclusive right to direct any action or remedy to be
undertaken by the Trustee, by the Owners or by any other party
pursuant to the Indenture and the Loan Agreements, and no acceler-
ation shall be permitted, and no event of default shall be waived,
without the Bond Insurer's consent~ Ail rights to collect, receive
and dispose of such collateral shall be independent of any rights
to effect acceleration of the Bonds.
(b) The Bond Insurer shall be subrogated to any and all of
the rights of the Owners of any and all of the Bonds insured by the
Bond Insurer (unless the Bond Insurer is in default under the Bond
Insurance) at all times for the purpose of the execution and
delivery of a Supplemental Indenture or of any amendment, change or
modification of the Loan Agreements or the initiation by Bond-
holders of any action to be undertaken by the Trustee at the Bond-
holder's request. In addition, the Bond Insurer's consent to any
Supplemental Indenture and any amendment, change or modification of
any Loan Agreement shall be required.
(c) Anything in this Indenture to the contrary
notwithstanding, upon the occurrence and continuance of an event of
default as defined herein, the Bond Insurer shall, be entitled to
control and direct the enforcement of all rights and remedies
granted to the Bondholders for the benefit of the Bondholders under
this Resolution.
45
ARTICLE X
THE TRUSTEE
SECTION 10.01. Acceptance of the Trusts. The Trustee hereby
accepts the trusts i~osed upon it by this Indenture, and agrees to
perform said trusts, but only upon and subject to the following
express terms and conditions:
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default which may
have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived),
the Trustee shall exercise such of the rights and powers vested in
it by this Indenture.
(b) The Trustee may execute any of the trusts or powers
hereof and perform any of its duties by or through attorneys,
agents, receivers or employees but shall be answerable for the
conduct of the same in accordance with the standard specified
above, and shall be entitled to advice of counsel concerning all
matters of trusts hereof and the duties hereunder, and may in all
cases pay such reasonable compensation to all such attorneys,
agents, receivers and employees as may reasonably be employed in
connection with the trusts hereof. The Trustee may act upon the
opinion or advice of any attorneys (who may but need not be the
attorney or attorneys for the Council, the Bond Insurer or a
Borrower) approved by the Trustee in the exercise of reasonable
care. The Trustee shall not be responsible for any loss or damage
resulting from any action or non-action in good faith in reliance
upon such opinion or advice.
(c) The Trustee shall not be responsible for any recital
herein, or in the Bonds, or for the validity of the execution by
the Council of this Indenture or of any supplements hereto or
instruments of further assurance, or for the sufficiency of the
security for the Bonds issued hereunder or intended to be secured
hereby.
(d) The Trustee shall not be accountable for the use of any
Bonds authenticated or delivered hereunder. The Trustee may become
the Owner of Bonds secured hereby with the same rights which it
would have if not the Trustee.
(e) Unless an officer of the corporate trust department of
· the Trustee shall have actual knowledge thereof, the Trustee shall
46
not be required to take notice or be deemed to have notice of any
default hereunder except defaults under Section 9.01(a) hereof
unless the Trustee shall be specifically notified in writing of
such default by the Council or the Bond Insurer or a court of law
or by any Owner of Bonds. All notices or other instruments
required by this Indenture to be delivered to the Trustee must, in
order to be effective, be delivered at the principal corporate
trust office of the Trustee and, in the absence of such notice so
delivered, the Trustee may conclusively assume there is no default
except as aforesaid. The Trustee shall provide copies of any such
notices as soon as practicable to the Council, Bond Insurer and the
Borrowers.
(f) The Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter, telegram
or other paper or document believed to be genuine and correct and
to have been signed or sent by the proper person or persons. The
Trustee shall not withhold unreasonably its consent, approval or
action to any reasonable request of the Council. Any action taken
by the Trustee pursuant to this Indenture upon the request or
authority or consent of any person who at the time of making such
request or giving such authority or consent is the registered Owner
of any Bond, shall be conclusive and binding upon all future Owners
of the same Bond and upon Bonds issued in exchange therefor or in
place thereof.
(g) As to the existence or nonexistence of any fact or as to
the sufficiency or validity of any instrument, paper or proceeding,
the Trustee shall be entitled in good faith to rely upon a certifi-
cate signed by an authorized officer of the Council as sufficient
evidence of the facts therein contained and prior to the occurrence
of a default of which the Trustee has knowledge, or is deemed to
have notice pursuant to Section 10.01(e), shall also be at liberty
to accept a similar certificate to the effect that any particular
dealing, transaction or action is necessary or expedient, but may
at its discretion secure such further evidence deemed necessary or
advisable, but shall in no case be bound to secure the same. The
Trustee may accept a certificate of the Executive Director or
Secretary of the Council under its seal to the effect that a
resolution in the form therein set forth has been.adopted by the
Council as conclusive evidence that such resolution has been duly
adopted, and is in full force and effect.
(h) All moneys received by the Trustee hereunder, until used
or applied as herein provided, shall be held in trust for the
purposes for which they were received.
(i) At any and all reasonable times, the Trustee and its duly
authorized agents, attprneys, experts, engineers, accountants and
47
representatives and the Bond Insurer, shall have the right ~o
inspect any and all of the books, papers and records of the Council
pertaining to the Revenues and receipts under the Loan Agreements
and the Bonds, and to take such memoranda from and in regard
thereto as may be desired.
(j) The Trustee shall not be required to give any bond or
surety in respect of the execution of the said trusts and powers or
otherwise in respect of the premises.
(k) Before taking the action referred to in Section 9.02 or
9.07 hereof, the Trustee may require that a satisfactory indemnity
bond be furnished for the reimbursement of all expenses to which it
may be put and to protect it against all liability, except
liability which is adjudicated to have resulted from its negligence
or willful default by reason of any action so taken.
SECTION 10.02. Fees, Charges and Expenses of Trustee. The
Trustee shall be entitled to payment and reimbursement for reason-
able fees for its services rendered hereunder and all advances,
counsel fees and other expenses reasonably and necessarily made or
incurred by the Trustee but solely from moneys available therefor
pursuant to Section 4.05 hereof or Section 9.05 hereof and pursuant
to the Loan Agreements.
SECTION 10.03. Notice to Bonchholdere if Default Occurs Under
Indenture. If the Trustee becomes aware of an Event of Default,
then the Trustee shall promptly give written notice thereof by
registered or certified mail to the Bond Insurer and by first-class
mail to the Owners of all Outstanding Bonds of all Series affected
thereby, as shown by the bond registration books.
SECTION 10.04. Interven~on by Trustee. In any judicial
proceeding to which the Council is a party and which in the opinion
of the Trustee and its counsel has a substantial bearing on the
interests of Owners of the Bonds, the Trustee may intervene on
behalf of the Bondholders, and shall do so if requested in writing
by (i) the Bond Insurer, or (ii) the Owners of at least 25% of the
aggregate principal amount of Bonds then Outstanding, with the
consent of the Bond Insurer.
SECTION 10.05. Successor Trustee. Any corporation or
association into which the Trustee may be converted or merged, or
with which it may be consolidated, or to which it may sell or
transfer its trust business and assets as a whole or substantially'
as a whole, or any corporation or association resulting from any
such conversion, sale, merger, consolidation or transfer to which
it is a party, ipso facto shall be and become, to the extent
48
permitted by law, successor Trustee hereunder and vested with all
of the title to the Trust Estate and all the trusts, powers,
discretions, immunities, privileges and all other matters as was
its predecessor, without the execution or filing of any instrument
or any further act, deed or conveyance on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Any successor Trustee appointed pursuant to this Section or
through consolidation, sale, or merger shall be a trust company or
bank in good standing located in or incorporated under the laws of
the State, duly authorized to exercise trust powers and subject to
examination by federal or state authority, having a reported
capital and surplus of not less than $75,000,000 and acceptable to
the Bond Insurer.
SECTION 10.06. Resignation by Trustee. The Trustee and any
successor Trustee may at any time resign from the trusts hereby
created by giving sixty (60) days' written notice by registered or
certified mail to the Council and the Bond Insurer and by first-
class mail to the registered Owner of each Bond, and such resigna-
tion shall take effect upon the appointment of a-successor Trustee
as hereinafter provided and the acceptance of such appointment by
such successor. No such acceptance shall be effective unless the
· Bond Insurer has consented in writing to such appointment.
SECTION 10.07. Removal of Trustee. The Trustee may be removed
at any time, by an instrument or concurrent instruments in writing
delivered to the Trustee and to the Council and signed by the Bond
Insurer or the Owners of a majority in aggregate principal amount
of all Bonds then Outstanding, or by the Bond Insurer for any
breach of trust set forth herein.
SECTION 10.08. Appointment of Successor Trustee. In case the
Trustee hereunder shall resign or be removed, or be dissolved, or
shall be in course of dissolution or liquidation, or otherwise
become incapable of acting hereunder, or in case it shall be taken
under the control of any public officer or officers, or of a
receiver appointed by a court, a successor may be appointed by a
resolution of the Council, with the consent of the Bond Insurer, or
if the Council shall not have appointed a successor Trustee, by
filing with the Council an instrument or concurrent instruments in
writing signed by Owners of not less than a majority in principal
amount of Bonds outstanding, or by their attorneys in fact, duly
authorized. Nevertheless, in case of such vacancy, the Bond
Insurer may appoint a temporary Trustee to fill such vacancy until·
a successor to the Trustee shall be appointed in the manner above
prescribed; and any such temporary Trustee so appointed by the Bond
Insurer shall immediately and without further act be superseded by
49
any Trustee so appointed. Notice of the appointment of a sUccessor
Trustee shall be given in the same manner as provided by Section
10.06 hereof with respect to the resignation of a Trustee. Every
such Trustee appointed pursuant to the provisions of this Section
shall be a trust company or bank in good standing having a
corporate trust office in the State, having a reported capital and
surplus of not less than $50,000,000 and subject to examination by
federal or State authority, if there be such an institution
willing, qualified and able to accept the trust upon reasonable or
customary terms. The Bond Insurer shall be notified immediately
upon the resignation or termination of the Trustee and the
appointment of a successor Trustee.
SECTION 10.09. Concerning Any Successor Trustee. Every
successor Trustee appointed hereunder shall execute, acknowledge
and deliver to its or his predecessor and also to the Council and
the Bond Insurer an instrument in writing accepting such
appointment hereunder, and thereupon such successor, without any
further act, deed or conveyance, shall become fully vested with all
the estates, properties, rights, powers, trusts, duties and
obligations of its predecessors; but such predecessor shall,
nevertheless, on the written request of the Council, .or of the
successor Trustee, execute and deliver an instrument transferring
to such successor Trustee all the estates, properties, rights,
powers and trusts of such predecessor hereunder; and every
predecessor Trustee shall deliver all securities, moneys, documents
and other property held by it as the Trustee hereunder to its or
his successor hereunder. Should any instrument in writing from the
Council be required by any successor Trustee for more fully and
certainly vesting in such successor the estate, rights, powers and
duties hereby vested or intended to be vested in the predecessor,
any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Council. The
resignation of any Trustee and the instrument or instruments
removing any Trustee and appointing a successor hereunder, together
with all other instruments provided for in this Article, shall be
filed or recorded by the successor Trustee in each recording office
where this Indenture shall have been filed or recorded. Such
successor Trustee shall give notice of such successors to Fitch and
S&P.
SECTION 10.10. Preservation and Inspection of Documents. Ail
documents received by the Trustee under the provisions of the
Indenture shall be retained in its possession and shall be subject
at all reasonable times to the inspection of the Council and the
Bond Insurer, at reasonable hours and under reasonable conditions.
SECTION 10.11. [This Sect.%on Reserved]
5O
SECTION 10.12. Paying A~ent. The Council hereby appoints the
Trustee as Paying Agent. The council may, with the approval of the
Trustee and the Bond Insurer appoint additional Paying Agents for
the Bonds. Each Paying Agent shall designate to the Council and
the Trustee its principal office and signify its acceptance of the
duties and obligations imposed upon it hereunder by a written
instrument of acceptance delivered to the Council under which such
Paying Agent will agree, particularly:
(a) to hold all sums received by it for the payment of the
principal of or interest on Bonds in trust for the benefit of the
Owners of the Bonds until such sums shall be paid to such Owners of
the Bonds or otherwise disposed of as herein provided;
(b) to keep such books and records as shall be consistent
with prudent industry practice, to make such books and records
available for inspection by the Council and the Trustee at all
reasonable times; and
(c) upon the reqUest of the Trustee, to forthwith deliver to
~he Trustee all sums so held in trust by the Paying Agent.
SECTION 10.13. Registrar. The Council hereby appoints the
Trustee as Registrar for the Bonds. The Registrar shall designate
to the Trustee its principal office and signify its acceptance of
the duties imposed upon it hereunder by a written instrument of
acceptance delivered to the Council and the Trustee under which
such Registrar will agree, particularly, to keep such books and
records as shall be consistent with prudent industry practice and
to make such books and records available for inspection by the
Council and the Trustee at all reasonable times.
The Council shall cooperate with the Trustee to cause the
necessary arrangements to be made and to be thereafter continued
whereby Bonds, executed by the Council and authenticated by the
Registrar or any authenticating agent, shall be made available for
exchange, registration and registration of transfer at the prin-
cipal office of the Registrar. The Council shall cooperate with the
Trustee to cause the necessary agreements to be made and thereafter
continued whereby the Registrar shall be furnished ~uch records and
other information at such times as shall be reqUired to enable the
Registrar to perform the duties and obligations imposed upon it
hereunder.
SECTION 10.14. Effect on Bondholders of Certain A~tions.
Notwithstanding any other provision of this Indenture, in
determining whether the rights of the Bondholders will be adversely
affected by any action taken pursuant to the terms and provisions
51
of this
effect
Policy.
Indenture, the Trustee or Paying Agent
on the Bondholders as if there were
shall consider the
no Bond Insurance
ARTICLE XI
SUPPLEMENTAL INDENTURES
sECTION 11.01. Supplemental Indentures Not Requiring Consent
of Bondholders. The Council and the Trustee may, without the
consent of or notice to any of the Bondholders but only with the
consent of the Bond Insurer, enter into any indenture or indentures
supplemental to this Indenture for any one or more of the following
purposes:
(a) To cure or correct any ambiguity or omission or formal
defect in this Indenture;
(b) To grant to or confer upon the Trustee for the benefit
of the Bondholders any additional benefits, rights, remedies,
powers or authorities that may lawfully be granted to or conferred
upon the Bondholders or the Trustee, or to make any change which,
in the judgment of the Trustee, is not to the material prejudice of
the Bondholders;
(C) To subject to this Indenture additional revenues,
properties or collateral; or
(d) To modify, amend or supplement this Indenture or any
indenture supplemental hereto in such manner as to permit the
qualification hereof and thereof under the Trust Indenture Act of
1939 or any similar federal statute hereafter in effect or to
permit the qualification of the Bonds for sale under the securities
laws of the United States of America or of any of the states of the
United States of America, and, if they so determine, to add to this
Indenture or any indenture supplemental hereto such other terms,
conditions and provisions as may be permitted by said Trust
Indenture Act of 1939 or similar federal statute.
SECTION 11.02. Supplemental Indentures Requiring Consent of
Bondholders. Exclusive of supplemental indentures covered by
Section 11.01 hereof and subject to the terms and provisions
contained in this Section, and not otherwise, the Owners of not
less than two-thirds in aggregate principal amount of the Out-
standing Bonds affected thereby shall have the right, from time to
time, to consent to and approve the execution by the Council and
the Trustee of such other indenture or indentures supplemental.
hereto as shall be deemed necessary and desirable by the Trustee
for the purpose of modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions
contained in this Indenture or in any supplemental indenture;
53
provided, however, that nothing in this Section contained shall
permit, or be construed as permitting (1) without the consent of
the Owners of all then Outstanding Bonds affected thereby, of
(a) an extension of the maturity date of the principal of or the
interest on any Bond, or (b) a reduction in the principal amount of
any Bond or the rate of interest thereon, or (c) a privilege or
priority of any Bond or Bonds over any other Bond or Bonds, or
(d) a reduction in the aggregate principal amount of the Bonds
required for consent to such supplemental indenture, or (e) the
creation of any lien hereunder other than a lien ratably securing
all of the Bonds at any time Outstanding hereunder, or (2) any
modification of the trusts, powers, rights, obligations, duties,
remedies, immunities and privileges of the Trustee without the
written consent of the Trustee.
If at any time the Council shall request the Trustee to enter
into any such supplemental indenture for any of the purposes of
this Section, the Trustee shall, upon being satisfactorily
indemnified with respect to expenses, cause notice of the proposed
execution of such supplemental indenture to be mailed by registered
or certified mail to each Owner of a Bond affected thereby at the
address shown on the registration books. Such notice shall briefly
set forth the nature of the proposed supplemental indenture and
shall state that copies thereof are on file at the principal
corporate trust office of the Trustee for inspection by all Bond-
holders. If, within sixty (60) days, or such longer period as
shall be prescribed by the Council, following the mailing of such
notice, the Owners of not less than two-thirds in aggregate prin-
cipal amount of the Outstanding Bonds affected thereby at the time
of the execution of any such supplemental indenture shall have
consented to and approved the execution thereof as herein provided,
no Owner of any Bond shall have any right to object to any of the
terms and provisions contained therein, or the operation thereof,
or in any manner to question the propriety of the execution there-
of, or to enjoin or restrain the Trustee or the Council from
executing the same or from taking any action pursuant to the
provisions thereof. Upon the execution of any such supplemental
indenture as in this Section permitted and provided, this Indenture
shall be and be deemed to be modified and amended in accordance
therewith.
Notwithstanding the foregoing or any other provisions to the
contrary, for as long as the Bond Insurance remains in full force
and effect, consent and approval by the Bond Insurer shall consti-
tute the required consent and approval of the Owners of the Bonds.'
SECTION 11.03. Notice to S&P and Fitch.
give notice to S&P and Fitch of any supplemental
amendments to any Loan Agreement.
The Trustee shall
indentures or any
54
ARTICLE XII
AMENDMENT OF LOAN AGREEMENTS
SECTION 12.01. Amendments, Etc., Not Requiring Consent of
Bondholders. The Council and the Trustee may, without the consent
of or notice to the Bondholders, but only with the consent of the
Bond Insurer, consent to any amendment, change or modification of
any Loan Agreement that may be required (a) by the provisions of
such Loan Agreement or to conform to the provisions of this
Indenture, (b) for the purpose of curing any ambiguity or inconsis-
tency or formal defect or omission, (c) so as to add additional
rights acquired in accordance with the provis.ions of such Loan
Agreement or (d) in connection with any other change therein which,
in the judgment of the Trustee, is not to the material prejudice of
the Trustee or the Owners of the Bonds of the related Series.
SECTION 12.02. Amendments, Etc., Re~luiring Consent of
Bondholders. Except for amendments, changes or modifications
provided for in Section 12.01 hereof, neither t~e Council nor the
Trustee shall consent to any amendment, change or modification of
any Loan Agreement without the mailing of notice and the written
approval or consent of the Owners of not less than two-thirds in
aggregate principal amount of the Bonds of the related Series at
the time Outstanding given and procured as in this Section
provided. If at any time the Council and a Borrower shall request
the consent of the Trustee to any such proposed amendment, change
or modification of a Loan Agreement, the Trustee shall, upon being
satisfactorily indemnified with respect to expenses, cause notice
of such proposed amendment, change or modification to be mailed in
the same manner as provided by Section 11.02 hereof with respect to
supplemental indentures. Such notice shall briefly set forth the
nature of such proposed amendment, change or modification and shall
state that copies of the instrument embodying the same are on file
with the Trustee for inspection by all Bondholders. Nothing
contained in this Section shall permit, or be construed as
permitting, a reduction of the aggregate principal amount of Bonds
the Owners of which are required to consent to any amendment,
change or modification of a Loan Agreement, a reduction in, or a
postponement of, the payments under any Loan Agreement or any
changes that affect the exclusion of interest on the Bonds from the
gross income of the Holders thereof for purposes of Federal income
taxation, without the consent of the Owners of all of the Bonds of
the related Series then Outstanding.
Notwithstanding the foregoing or any other provisions to the
'contrary, for as long as the Bond Insurance remains in full force
55
and effect, consent and approval by the Bond Insurer shall consti-
tute the required consent and approval of the Owners of the Bonds.
Nothing contained in this Section shall be construed to
prevent the Trustee, with the consent of the Council and the Bond
Insurer, from settling a default under any Loan Agreement on such
terms as the Trustee may determine to be in the best interests of
the Owners of the Bonds.
56
ARTICLE XIII
GENERAL COVENANTS
SECTION 13.01. Payment of Principal and Interest. The Council
covenants that it will promptly pay the principal of and interest
on every Bond issued under this Indenture at the place, on the
dates and in the manner provided herein and in said Bonds according
to the true intent and meaning thereof, provided that the principal
and interest are payable by the Council solely from the Trust
Estate as provided in this Indenture, and nothing in the Bonds or
this Indenture shall be considered as assigning or pledging any
other funds or assets of the Council other than such Trust Estate.
SECTION 13.02. Performance of Covenants; the Council. The
Council covenants that it will faithfully perform at all times any
and all covenants, undertakings, stipulations and provisions
contained in this Indenture, in any and every Bond executed,
authenticated and delivered hereunder and in all of its proceedings
pertaining hereto. The Council covenants that it is duly
authorized under the Constitution and laws of the State, including
particularly the Act, to issue the Bonds authorized hereby and to
execute this Indenture, to execute and deliver Loan Agreements, to
assign the Loan Agreements and collateral documents and amounts
payable thereunder, and to pledge the Revenues and any other pro-
perty hereby pledged in the manner and to the extent herein set
forth; that all action on its part for the issuance of the Bonds
and the execution and delivery of this Indenture has been duly and
effectively taken, and that the Bonds in the hands of the Owners
thereof are and will be valid and enforceable obligations of the
Council according to the terms thereof and hereof.
SECTION 13.03. Instruments of Further Assurance. The Council
agrees that the Trustee may defend its rights to the payments of
the Revenues for the benefit of the Owners of the Bonds, against
the claims and demands of all persons whomsoever. The Council
covenants that it will do, execute, acknowledge and deliver, or
cause to be done, executed, acknowledged and delivered, such
indentures supplemental hereto and such further acts, instruments
and transfers as the Trustee may reasonably require for the better
assuring, transferring, pledging, assigning and confirming unto the
Trustee all and singular the rights assigned hereby and the amounts
and other property pledged hereby to the payment of the principak
of and interest on the Bonds. The Council covenants and agrees
that, except as provided herein or in the Loan Agreements, it will
not sell, convey, assign, pledge, encumber or otherwise dispose of
57
any part of the Revenues or the proceeds of the Bonds or its rights
under the Loan Agreements.
SECTION 13.04. Recording and Filing. The Trustee shall keep
and file or cause to be kept and filed all financing statements
related to this Indenture and all supplements hereto, the Loan
Agreements and all supplements thereto and such other documents as
may be necessary to be kept and filed in such manner and in such
places as may be required by law in order to preserve and protect
fully the security of the Owners of the Bonds and the rights of the
Trustee hereunder. In carrying out its duties under this Section
13.04, the Trustee shall be entitled to rely on an opinion of its
counsel specifying what actions are required to comply with this
Section 13.04.
SECTION 13.05. Rights Under the Loan Agreements. The Loan
Agreements, the form of which has been filed with the Trustee and
duly executed counterparts of each of which will be retained by the
Trustee, as required .by Section 13.06 hereof, set forth the
covenants and obligations of the Council and the Borrowers,
including provisions that the Loan Agreements may not be
effectively amended without the concurring written consent of the
Trustee, as provided in Article XII'hereof, and reference is hereby
made to the Loan Agreements for a detailed statement of said cove-
nants and obligations of the Borrowers under the Loan Agreements,
and the Council. agrees that the Trustee in its name or to the
extent permitted by law, in the name of the Council, may enforce
all rights of the Council and all obligations of the Borrowers
under the Loan Agreements (and waive the same except for rights
expressly granted to the Council) on behalf of the Bondholders
whether or not the Council is in default hereunder.
SECTION 13.06. Possesaion and Inspection of Loan Agreements.
The Trustee shall retain possession of an executed copy of each
Loan Agreement to which it is a party or in which it has an
interest and release them only in accordance with the provisions of
this Indenture. The Council and the Trustee covenant and agree
that all books and documents in their possession relating to the
Loan Agreements and to the distribution of proceeds thereof shall
at all times be open to inspection by such accountants or other
agencies or persons as the other party or the Bond Insurer may from
time to time designate.
SECTION 13.07. Provision of Docun~n~s to Bo~iholders. If any
Bondholder shall request of the Council or Trustee a copy of the
Indenture, the Bond Insurance or any Loan Agreement, the Trustee
shall, at the expense of the Bondholder, provide such Bondholder
with a photocopy or other copy of any such document requested.
58
SECTION 13.08. Tax Covenants.
(a) The Council shall not use or permit the use of any
proceeds of the Bonds or any other funds of the Council, and the
Trustee shall not use or permit the use of any proceeds of the
Bonds or any other funds of the Council held by the Trustee,
directly or indirectly, to acquire any securities or obligations,
and shall not use or permit the use of any amounts received by the
Council or Trustee with respect to the Loan Agreements in any
manner, and shall not take or permit to be taken any other action
or actions, which would cause any Bond to be an "arbitrage bond"
within the meaning of Section 148, or "federally guaranteed" within
the meaning of the Code. If at any time the Council is of the
opinion that for purposes of this subsection (a) it is necessary to
restrict or limit the yield on or change in any way the investment
of any moneys held by the Trustee under this Indenture, the Council
shall so instruct the Trustee in writing, and the Trustee shall
take such action as may be necessary in accordance with such
instructions.
(b) The Council shall not use or permit the use of any
proceeds of Bonds or any other funds of the Council, and the
Trustee shall not use or permit the use of any proceeds of the
Bonds or any other funds of the Council held by the Trustee,
directly or indirectly, in any manner, and shall not take or permit
to be taken any other action or actions, which would result in any
of the Bonds being treated as a "private activity bond," as defined
in Section 141 of the Code.
(c) The Council and the Trustee shall at all times do and
perform all acts and things permitted by law and this Indenture
which are necessary or desirable in order to assure that interest
paid on the Bonds will be excluded from gross income for purposes
of Federal income taxation and shall take no action that would
result in such interest not being excluded from Federal gross
income.
(d) The Council covenants that it will maintain adequate
accounting records, and rebate investment income from the invest-
ment of proceeds of the Bonds to the United States Treasury within
the time allowed and in the manner specified by the Code and regu-
lations and will otherwise comply with such laws and regulations.
In order to insure compliance with the rebate provisions of
Section 148(f) of the Code, the Council shall create the Rebate'
Fund with a Series Account therein. Such Fund may be held by
the Council or, at the option of the Council, by the Trustee. The
Rebate Fund or any Account therein need not be maintained if the
Council shall have received an Opinion of Bond Counsel acceptable
59
to the Council to the effect that failure to maintain the Rebate
Fund or such Account therein shall not adversely affect the
exclusion of interest on the Bonds from gross income for purposes
of Federal income taxation. Moneys in the Rebate Fund shall not be
considered moneys held under the Indenture and shall not constitute
a part of the Trust Estate held for the benefit of the Bondholders
or the Council. Moneys in the Rebate Fund (including earnings and
deposits therein) shall be held for future payment to the United
States Government as required by the regulations and as set forth
in instructions delivered to the Council upon issuance of the
Bonds.
6O
ARTICLE XIV
MISCE~OUS
sECTION 14.01. Consents, etc., of Bondholders. Any consent,
request, direction, approval, objection or other instrument
required by this Indenture to be signed and executed by the Bond-
holders may be in any number of concurrent writings of similar
tenor and may be signed or executed by such Bondholders in person
or by agent appointed in writing. Proof of the execution of any
such consent, request, direction, approval, objection or other
instrument or of the writing appointing any such agent and of the
ownership of Bonds, if made in the following manner, shall be
sufficient for any of the purposes of this Indenture, and shall be
conclusive in favor of the Council, the Trustee and any subsequent
Owners of the Bonds with regard to any action taken by it under
such request or other instrument, namely:
(a) The fact and date of the execution by any person of any
such writing may be proved by the certificate of any officer in any
jurisdiction who by law has power to take acknowledgments within
such jurisdiction that the person signing such writing acknowledged
before him the execution thereof, or by an affidavit of any witness
to such execution.
(b) The fact of ownership of Bonds and the amount or amounts,
numbers and other identification of Bonds, and the date of owning
the same shall be proved by the registration books of the Council
maintained by the Registrar pursuant to Section 2.07 hereof.
SECTION 14.02. Limitation of ]t%ghts. With the exception of
rights herein expressly conferred or as otherwise provided herein,
nothing expressed or mentioned in or to be implied from this
Indenture or the Bonds is intended or shall be construed to give to
any person or company other than the parties hereto and the owners
of the Bonds, any legal or equitable right, remedy or claim under
or in respect to this Indenture or any covenants, conditions and
provisions herein contained; this Indenture and all of the cove-
nants, conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and
the Owners of the Bonds as herein provided. The Bond Insurer is
recognized as a third-party beneficiary hereunder and may enforce
any such right, remedy or claim conferred, given or granted
hereunder.
SECTION 14.03. The Bond Insurer. Ail provisions in Article
III, IV, IX, X, XI, XII or XIII regarding consents, approvals,
· directions, appointments or requests by the Bond Insurer shall be
61
deemed to not require or permit such consents, directions,
appointments or requests by the Bond Insurer and shall be read as
if the Bond Insurer were not mentioned therein during any time in
which (a) the Bond Insurer is in default in its obligation to make
payments under the Bond Insurance, (b) the Bond Insurance shall at
any time for any reason cease to be valid and binding on the Bond
Insurer, or shall be declared to be null and void by final and
conclusive judicial determination, or the validity or enforce-
ability of any provision thereof is being contested by the Bond
Insurer or any governmental agency or authority, or if the Bond
Insurer is denying further liability or obligation under the Bond
Insurance, or (c) a final determination against the Bond Insurer,
under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of the State
of New York, whether now or hereafter in effect.
SECTION 14.04. Severability. If any provision of this
Indenture shall be held or deemed to be or shall, in fact, be
illegal, inoperative or unenforceable, the same shall not affect
any other provision or provisions herein contained or render the
same invalid, inoperative or unenforceable to any extent whatever.
SECTION 14.05. Notices. Any notice, request, complaint,
demand, communication or other paper shall be sufficiently given
and shall be deemed given when delivered or mailed by registered or
certified mail, postage prepaid, or sent by telegram or telex,
addressed to the parties as follows:
Council:
Florida Municipal Loan Council
c/o Florida League of Cities
301 North Bronough Street
Tallahassee, Florida 32301
Trustee, Paying
Agent and
Registrar:
Bond Insurer:
The above parties may, by notice given hereunder, designate any
further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
SECTION 14.06. Payments Due on Saturdays, Sundays and
Holidays. In any case where the date of payment of principal of or
62
interest on the Bonds or the date fixed for redemption of any Bonds
shall be a Saturday or Sunday or a legal holiday in the city of
payment or a day or on which banking institutions are authorized by
law to close in the city of payment, then payment of interest or
principal shall be made on the succeeding Business Day with the
same force and effect as if made on the interest payment date or
the date of maturity or the date fixed for redemption.
SECTION 14.07. Counterparts. This Indenture may be
simultaneously executed in several counterparts, each of which,
when so executed and delivered, shall be an original and all of
which shall constitute but one and the same instrument.
SECTION 14.08. Applic~able Provisions of Law. This Indenture
shall be governed by and construed in accordance with the laws of
the State.
SECTION 14.09. P~ort.%ng Reguiremmnts. The Council will file
or cause to be filed with the Bond Insurer any official statement
issued by, or on behalf of, the Council in connection with the
incurrence of any additional indebtedness by such Council.
[Balance of Page Intentionally Left Blank.]
63
IN WITNESS WHEREOF, the Council has caused this Indenture to
be executed on its behalf by its Chairman and the seal of the
Council to be hereunto affixed and duly attested by its Vice-
Chairman or Designated Member; and the Trustee, to evidence its
acceptance of the trusts created hereunder, has caused this
Indenture to be executed in its name by its duly authorized
officers and its corDorate seal to be hereunto affixed and duly
attested, all as of the day and year first above written.
FLORIDA MUNICIPAL LOAN COUNCIL
[SEAL]
Attest: B~
Chairman
By
[Vice-Chairman] [Designated Member]
[SEAL]
[Name of Trustee]
as Trustee
ATTEST:
By
Title:
By
Title:
64
EXH'J'B~T A
No. R- $.
Maturity Date:
FLORIDA MUNICIPAL LOAN COUNCIL
REVENUE BOND
SERIES
Interest Rate= Dated Date:
CUSIP=
Registered Owner:
Principal Amount:
DOLLARS
FLORIDA MUNICIPALLOANCOUNCIL, a legal entity and public body
corporate and politic duly created and existing under the
Constitution and laws of the State of Florida (the "CoUncil,,), for
value received, hereby promises to pay (but only out of the
Revenues and other assets pledged therefor as hereinafter
mentioned) to the Registered Owner identified above, or registered
assigns, on the Maturity Date identified above (subject to any
right of prior redemption hereinafter mentioned), the Principal
Amount identified above, in lawful money of the United States of
America; and to pay interest thereon in like lawful money from
,__, until payment of said Principal Amount has
been made or duly provided for, at the Interest Rate set forth
above on 1, , and on each 1 and 1
thereafter (an "Interest Payment Date"), un e-~interest on this
Bond is in default, in which event it shall bear interest from the
last date to which interest has been paid until payment of such
Principal Amount shall be discharged as provided in the Indenture
hereinafter mentioned. The principal (or redemption price) hereof
is payable upon presentation hereof at the principal office of
, as Paying Agent and Registrar (together with
any successor thereto, the "Paying Agent" and the "Registrar").
Interest hereon is payable by check mailed, excep~ as provided in
the Indenture, to the person whose name appears on the bond regis-
tration books maintained by the Registrar as the Registered Owner
hereof as of the close of business on the 15th day of the calendar
month preceding each Interest Payment Date, at such person's .
address as it appears on such registration books.
This Bond is one of a duly authorized issue of bonds of the
· Council designated as "Florida Municipal Loan Council Revenue
Bonds, Series " (the "Bonds"), issued in the aggregate
Aol
principal amount of
Dollars ($ ), pursuant to the
provisions of Chapter 163, Part I, Florida Statutes, Chapter 159,
Part I, Florida Statutes, Chapter 166, Part II, Florida Statutes,
Chapter 125, Part I, Florida Statutes, and other applicable pro-
visions of law (collectively, the "Act"), and pursuant to a Trust
Indenture, dated as of , between the Council and
, (the "Trustee") (together with any
supplements or amendments thereto, the "Indenture,). The Bonds are
issued for the purpose of providing f~nds to make loans
to (the "Borrowers")
to finance, refinance or reimburse the costs of various capital
projects and to refund certain outstanding bonds of the Council,
pursuant to loan agreements between the Council and such Borrowers
(together with any supplements or amendments thereto, the "Loan
Agreements").
Capitalized terms used but not defined herein shall have the
meaning set forth in the Indenture.
Reference is hereby made to the Indenture (a copy of which is
on file at the principal corporate trust office of the Trustee) and
to the Act for a description of the rights and remedies thereunder
(and limitations thereon) of the registered owners of the Bonds, of
the nature and extent of the security, of the rights, duties and
ir~uunities of the Trustee and of the rights and obligations of the
Council thereunder, to all the provisions of which Indenture the
Registered Owner of this Bond, by acceptance hereof, assents and
agrees.
The Bonds and the interest thereon are payable from Revenues
(as. defined in ~he Indenture) and are secured by a pledge and
assignment of sa=d Revenues and of a~unts held in certain funds
and accounts established pursuant to the Indenture (including
proceeds of the sale of the Bonds until applied as set forth
therein), subject to the provisions of the Indenture permitting the
application thereof for the purposes and on the terms and condi-
tions se= forth in =he Indenture. The Bonds are further secured by
an assignment of =he right, title and interest of the Council in
the Loan Agreements to the Trustee, to the extent and as more
particularly described in the Indenture.
The Bonds maturing on and before 1,. are
subject, to optional redemption prior to the=r respective
maturities. The Bonds maturing on and after 1, are
subject to redemption at the option of the Council on or after
1, , as a whole at any time, or in part on any
Interest Payment Date, in any manner determined by the Trustee in
its discretion, during the following periods and at the following
redemption prices, expressed as a percentage of the principal
.amount of the Bonds to be redeemed, plus accrued in=crest to the
redemption date:
A-2
Redemption Period
(Both Dates Inclusive~ ' '
The Series Bonds that mature on 1, are
subject to mandatory redemption, in part, by lot, at redemption
prices equal to 100% of the principal amount thereof, plus interest
accrued to the redemption date, beginning on 1, , and
on each i thereafter in the following principal amounts in
the following years:
In addition, the Bonds are subject to mandatory redemption at
any time, in whole or in part, at a redemption price of the princi-
pal amount thereof plus accrued interest to the redemption date,
without premium, but only with the approval of the Bond Insurer,
from all amounts received by the Trustee as a result of an accel-
eration of any Loan or Loans made from the proceeds of the Bonds
(the "Liquidation Proceeds"). If Bonds are to be redeemed in part
by mandatory redemption, t. he Bonds to be redeemed will be selected
on a proportionate basis from among all of the maturities of such
Bonds and within each ma. turity by. lot. Bonds to be redeemed in
each year on a proportzonate baszs shall be selected wzth such
proportionate basis to be determined by the Trustee by multiplying
the total amount of Liquidation Proceeds from such Loan by the
ratio which the principal portion of scheduled Loan Repayments of
such Loan in each Bond Year bears to the total principal amount of
such Loan.
In the case of every redemption, the Registrar, at the direc-
tion of the Trustee, shall cause notice of such redemption to be
given to the Registered Owner .of any Bonds designated for redemp-
tion in whole or in part as provided in the Indenture. The failure
of the Registrar to give notice to a Bondholder or any defect in
such notice shall not affect the validity of the redemption of any
other Bonds. On the redemption date, the principal amo.u..nt and
premium, if any, of each Bond to be redeemed, together wzth the
accrued interest thereon to such date, shall become due and payr
able; from and after such date of redemption (such notice having
been given and moneys available solely for such redemption being on
deposit with the Trustee), the Bonds or portions thereof to be
redeemed shall not be deemed to be outstanding under the Indenture,
A-3
and the Council shall be under no further liability in respect
thereof.
In the event that the Bond Insurer shall make any payments of
principal of and/or interest on any of the Bonds pursuant to the
terms of the municipal bond insurance policy, and the Bonds are
accelerated or redeemed pursuant to the terms of the Indenture or
Loan, the Bond Insurer may pay all or a portion of amounts due
under the Bonds to the Owners thereof prior to the stated maturity
dates thereof.
If an Event of Default (as defined in the Indenture) shall
occur, the principal of all Bonds may be declared due and payable
upon the conditions, in the manner and with the effect provided in
the Indenture. The Indenture provides that in certain events such
declaration and its consequences may be rescinded.
The Indenture and the rights and obligations of the Council
and of the Bqndholders and of the Trustee .may be modified or
amended from t~me to time and at any time, without consent of the
Bondholders in the manner, to the extant and upon the terms pro-
vided in the Indenture.
The Bonds are limited obligations of the Council and are not
a lien or charge upon the funds or property of the Council, except
to. the extent of the ~erein mentioned .pledge and assignment.
Nezther the State of Florzds nor the CouncLl shall be oblzgated to
pay the principal of the Bonds, or the interest thereon, except
from Revenues received by the Council, and neither the faith and
credit nor the taxing power of the State of Florida or of any poli-
tical subdivision or any municipal corporation thereof is pledged
to the payment of the principal of, or interest on, the Bonds. The
Bonds are not a debt of the State of Florida and said State is not
liable for the payment thereof.
It is hereby certified and recited that any and all condi-
tions, things and acts required to exist, to have happened and to
have been performed precedent to and in the issuance of this Bond
do exist, have happened and have been performed in due time, form
and manner as required by the Act, as hereinafter defined, and by
the Constitution and laws of the State of Florida, and that the
amount of this Bond, together with all other indebtedness of the
Council, does not exceed any limit prescribed by the'Act, or by the
Constitutio~ and laws of the State of Florida, and is not in excess
of the amount of Bonds permitted to be issued under the Indenture.
This Bond shall not be entitled to any benefit under the
Indenture, or become valid or obligatory for any purpose, until the
certificate of authentication and registration hereon endorsed
shall have been signed by the Registrar.
A-4
IN wITNESS WHEREOF, FLORIDA MUNICIPAL LOAN COUNCIL has caused
this Bond to be executed in its name and on its behalf by the
facsimile signature of its Chairman and its seal to be reproduced
hereon by facsimile and attested by the facsimile signature of its
vice-Chairman, all as of the date of the Bonds.
(SEAL)
FLORIDA MUNICIPAL LOAN COUNCIL
By
Chairman
Attest:
Vice-Chairman
A-5
VALIDATION CERTIFICATE
This Bond is one of a series of Bonds which were validated and
confirmed by judgment of the Circuit Court for County,
Florida, rendered on ,
Chairman
CERTIFICATE OF AUTHENTICATION AND REGISTRATION
This is One of the Bonds described in the within-mentioned
Indenture.
Date of Authentication:
[Trustee]
as Registrar
By.
Authorized Signer
For value received the undersigned do(es) hereby sell, assign
and transfer unto
the within-mentioned registered Bond and
hereby irrevocably constitute(s) and appoint(s)
attorney, to transfer the same on
the books of the Registrar with full power of substitution in the
premises.
Dated:
Signature gnaranteed~
A-6
STATEMENT OF INSURANCE
Ao7
CITY OF AVENTURA
OFFICE OFTHEClTYMANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Commission ~
February 19, 1999' ~ ~
Ordinance £xtending Building Height Moratorium
Ist Reading March 2, 1999 City Commission Meeting Agenda Item
2"d Reading April 6, 1999 City Commission Meeting Agenda Item __
RECOMMENDATION
It is recommended that the City Commission adopt the attached Ordinance extending
the Building Height Moratorium to September 1, 1999 or to the adoption of the City's
Land Development Regulations (LDR).
BACKGROUND
The City Commission adopted a Building Height Moratorium on September 1, 1998.
The moratorium was set to expire on Mamh 1, 1999. Staff is continuing to work on the
Land Development Regulations. It is anticipated that the LDR will be distributed to the
City Commission in Mamh to begin the review process. Therefore, the current
moratorium needs to be extended during this period.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
CC0723-99
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA
EXTENDING THE DURATION OF THE EXISTING BUILDING
MORATORIUM ON ISSUANCE OF DEVELOPMENT
ORDERS AND DEVELOPMENT PERMITS WITHIN THE
CITY CONCERNING BUILDING HEIGHT LIMITATIONS AS
PREVIOUSLY IMPOSED PURSUANT TO ORDINANCE NO.
98-20 OF THE CITY OF AVENTURA; BY AMENDING
SECTION 7 "TERM" OF ORDINANCE NO. 98-20 TO
PROVIDE FOR EXTENSION OF SUCH MORATORIUM, SO
AS TO ENABLE CITY'S LAND DEVELOPMENT
REGULATIONS TO BE COMPLETED AND IMPLEMENTED;
PROVIDING FOR SEVERABIMTY; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, pursuant to Ordinance No. 98-20 of the City of Aventura, as adopted on
September 1, 1998, the City Commission provided for a moratorium upon the issuance of
development orders and development permits concerning buildings of a certain height so
as to enable the formulation and implementation of the City of Aventura Land Development
Regulations (the "Regulations"); and
WHEREAS, Ordinance No. 98-20, provided for such moratorium to be effective for
an initial period of 180 days from adoption thereof, and authorized such moratorium to be
reasonably extended; and
WHEREAS, the City Commission finds that work is being expeditiously pursued on
the City Regulations, but that it is necessary to reasonably extend the moratorium for an
additional period as provided herein, so that the City Regulations are able to be completed
and implemented.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, AS FOLLOWS:
Section 1. That Section 7 'q'erm," of Ordinance No. 98-20, is hereby amended to
Ordinance No. 99-__
Page 2
read as follows:1
Section 7. Term.
The moratorium imposed by this Ordinance is temporary
and shall be effective ~..r = ..~..;...~ of ,~n ,~ .... ~.,..~
a~a~her~---until September 1, 1999, unless
dissolved earlier by the City Commission. Further, the
moratorium shall automatically dissolve upon the
adoption of the City Regulations, the formulation and
adoption of which shall be expeditiously pursued. The
moratorium may be reasonably extended, if necessary.
Section 2. Severability. The provisions of this Ordinance are declared to be
severable and if any section, sentence, clause or phrase of this Ordinance shall for any
reason be held to be invalid or unconstitutional, such decision shall not affect the validity of
the remaining sections, sentences, clauses, and phrases of this Ordinance but they shall
remain in effect, it being the legislative intent that this Ordinance shall stand
notwithstanding the invalidity of any part.
Section 3. Effective Date.
adoption on second reading.
This Ordinance shall be effective immediately upon
, who moved its adoption on first reading.
seconded by Commissioner
was as follows:
The foregoing Ordinance was offered by Commissioner
The motion was
, and upon being put to a vote, the vote
Underline indicates addition to existing text; st6keom indicates deletions.
2
Ordinance No. 99-~
Page 3
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Patricia Rogers-Libert
Commissioner Jeffrey M. Perlow
Vice-Mayor Harry Holzberg
Mayor Arthur I. Snyder
The foregoing Ordinance was offered by Commissioner
, who moved its
adoption on second reading. The motion was seconded by Commissioner
and
upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Patricia Rogers-Libert
Commissioner Jeffrey M. Perlow
Vice-Mayor Harry Holzberg
Mayor Arthur I. Snyder
PASSED AND ADOPTED on first reading this 2"d day of March, 1999.
PASSED AND ADOPTED on second reading this __ day of April, 1999.
Al-rEST:
ARTHURI. SNYDER, MAYOR
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO FORM AND
LEGALSUFFICIENCY:
CITY A'I-DORNEY
3
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Commission/_z~,
Eric M. Soroka, City~ar~!
k
January 29, 1999 ~ ~ ~
TCl TKR of South Florida, Inc. Cable Television Franchise Agreement
Ist Reading February 2, 1999 City Commission Meeting Agenda Item
2nd Reading March 2, 1999 City Commission Meeting Agenda Item ~
RECOMMENDATION
It is recommended that the City Commission authorize the execution of the attached
Cable Television Franchise Agreement with TCI TKR of South Florida, Inc. The
Agreement is similar to the one entered into with the two other cable companies serving
the City.
BACKGROUND
As you are aware, the City and TCI have been negotiating the terms of the subject
agreement for some time. In short, we were very dedicated to obtaining the best
possible Agreement on behalf of the residents of the City that guarantees service and
performance standards and conforms to Agreements previously entered into with other
companies. Our Telecommunications Legal Advisors, Leibowitz and Associates, P.A.
and myself negotiated the Franchise Agreement.
The following represents the major points of the Franchise Agreement:
Term - Ten years. It may be extended up to fifteen years provided
Franchisee meets required technological improvements to the system and
upgrades or rebuilds the system to maintain state-of-the-art capabilities.
Insurance - Establishes requirements in accordance with the City's Cable
Ordinance.
Construction Bond - Establishes a $50,000 bond to insure that any
damage to public property is repaired.
Uses of City Streets - Establishes requirements and standards.
Minimum System Facilities and Technical Standards - The minimum
system facilities, services and technical standards are established and
outlined in the Agreement.
Government Cable Services - In lieu of live or taped cablecasting of
Commission Meetings, the City will receive a financial grant in the amount
equivalent to the cost incurred by TCI calculated on a prorata per
subscriber basis.
School Commitments - Public and private schools serving grades
kindergarten through 12 in the City will be provided free cable service,
internet access and educational program listings. Training programs will
also be held free of charge to educate teachers about online and cable
services.
Access Channels - Up to two access channels will be provided to the
City installed and linked to the new Government Center for the following
purposes:
Cablecasting Commission Meetings.
Educational Purposes.
Government purposes (i.e., special events, City information, and
programming).
Access Facilities~ Equipment and Support - Franchisee will provide the
following:
Funds to pumhase equipment to permit both live and delayed
cablecast of all City Commission Meetings (estimated at $40,000).
State-of-the-art character generator to permit transmission of public
service messages from the Government Center to all subscribers.
Training for City personnel to operate the equipment.
Franchisee will cablecast live 12 municipal or civic events per year
that are no longer than four hours in duration.
Provide the City with a videocassette of every event and
Commission Meetings.
Provide advertising time for City sponsored events on cable
channels with a value of no less than $10,000 per year.
Provide studio facilities, if available, for use by the City and schools
for government and access channel programming.
2
10.
Franchise Fee - Franchisee shall pay to the City a franchise fee of 5% of
~ross revenues. In the event federal law changes to an amount greater
than 5%, the City may request Franchisee to pay the higher amount. The
franchise fees may be audited by the City.
11.
Financial Records and Facilities - Establishes the right of the City to
inspect Franchisee's financial records and facilities to determine
compliance with the Agreement.
12.
Customer Service Requirements - Requires Franchisee to comply with
each of the Customer Service Requirements set forth in the City's Cable
Television Ordinance.
13.
Transfer and Removal of Franchise - Provides for the procedures to
transfer or renew the Franchise Agreement.
14.
Rates - Franchisee must provide at least 30 days prior notice to
subscribers and the City to increase rates for basic cable services.
Franchisee shall at all times charge nondiscriminatory rates throughout
the City and will not engage in predatory pricing or any anti-competitive
business practices.
15.
Security Fund - Franchisee shall provide a letter of credit, bond or a
security fund to cure defaults and pay any liquidated damages.
16.
Enforcement Remedies - Provides specific requirements in terms of
liquidated damages for failure to comply with the terms of the Franchise
Agreement.
17.
Area Wide - Interconnection -- The City maintains the right to request
Franchisee to interconnect with any or all other cable systems in the City
to permit interactive transmission and reception of program material.
I would like to take this opportunity to thank Ila L. Feld, of Liebowitz and Associates,
P.A., for her and the firm's guidance and assistance in this process. In addition, the
representatives from TCI should be recognized for their cooperation in the finalization of
this Agreement.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
CC0709-99
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF AVENTURA,
FLORIDA, AUTHORIZING THE CITY MANAGER TO
EXECUTE THE ATTACHED CABLE FRANCHISE
AGREEMENT BY AND BETWEEN THE CITY AND TCI
TKR OF SOUTH FLORIDA. INC.; AUTHORIZING THE
CITY MANAGER TO DO ALL THINGS NECESSARY TO
CARRY OUT THE AIMS OF THIS ORDINANCE; AND
PROVIDING AN EFFECTIVE DATE.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, AS FOLLOWS:
Section 1. The City Manager is hereby authorized to execute the attached
Cable Franchise Agreement (the "Agreement) by and between the City and TCI TKR of
Inc. and to do all things necessary to carry out the aims of this
South Florida,
Ordinance.
Section 2.
Section 3.
This Agreement is hereby granted and approved.
Effective Date. This Ordinance shall take effect and be in force
immediately upon its passage and adoption on second reading.
The foregoing Ordinance wes offered by Commissioner Perlow, who moved its
adoption on first reading. This motion was seconded by Commissioner Rogers-Libert,
and upon being put to a vote, the vote wes as follows:
Commissioner Arthur Berger yes
Commissioner Jay R. Beskin absent
Commissioner Ken Cohen yes
Commissioner Jeffrey M. Perlow yes
Commissioner Patricia Rogers-Libert yes
Vice Mayor Harry Holzberg yes
Mayor Arthur I. Snyder yes
Ordinance No. 98-
Page 2
The foregoing Ordinance was offered by
who moved its adoption on second reading. This motion was seconded by
, and upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia Rogers-Libert
Vice Mayor Harrry Holzberg
M/ayor Arthur I. Snyder
PASSED AND ADOPTED on first reading this 2ndday of February, 1999.
PASSED AND ADOPTED on second reading this 2nd day of March, 1999.
ATTEST:
ARTHUR I. SNYDER, MAYOR
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
CABLE TELEVISION FRANCItlSE AGREEMENT BETWEEN
THE CITY OF AVENTURA, FLORIDA AND TCI TKR OF
SOUTH FLORIDA, INC. (TCI-SF)
A FRANCHISE AGREEMENT ENTERED iNTO BETWEEN THE
CITY OF AVENTURA, FLORiDA, AND TCI TKR OF SOUTH
FLOR[DA, INC. (TCI-SF), PURSUANT TO THE CITY OF
AVENTURA, FLORIDA CABLE TELEVISION ORDINANCE NO.
97-20 AS AMENDED BY ORDINANCE NO. 98-11 AND
GRANTING A FRANCHISE TO OWN, OPERATE AND
MAINTAIN A CABLE TELEVISION SYSTEM 1N THE CITY OF
AVENTURA, FLORIDA, AND SETTING FORTH CONDITIONS
ACCOMPANYING THE GRANT OF SUCH FRANCHISE AND
PROVIDING FOR REGULATION AND USE OF SUCH SYSTEM.
THIS AGREEMENT, effective this day of February, 1999, is by and between the
CiTY OF AVENTURA ("the City") and TCI TKR of South Florida, Inc., a Delaware Corporation
("TCI-SF").
WHEREAS, pursuant to the Communications Act of 1934, as amended, 47 U.S.C. §§521
et seq., the City may grant or renew a franchise to construct, operate and maintain a cable television
system; and
WHEREAS, on September 2, 1997, the City Council of Aventura, Florida ("Council"),
adopted Ordinance No. 97-20 as amended by Ordinance No. 98-11, providing for the issuance and
regulation of cable television franchises for, and the installation, construction and operation of, cable
television systems within the City; and
WHEREAS, TCI-SF desires to obtain a franchise to construct, install, maintain, and operate
a cable system in the City, and has applied to the City for the grant of such franchise; and
WHEREAS, the construction, installation, maintenance, and operation of such a system
involves the use and occupation of the Streets of the City, over which the City exercises
governmental control; and
WHEILEAS, the.Council _has evaluated TCI-SF's application in light of the requirements of
Federal and Stat~ law and the Ordinance, and has conducted public hearings concerning TCI-SF's
request and application; and
WHEREAS, the Council has relied on TCI-SF's representations both oral and written and has
considered all information presented to it by TC1-SF, the City Manager, the City's consultants, and
the public; and
WHEREAS, based on said representations and information, the Council has determined that
a grant of a nonexclusive franchise to TCI-SF to construct, install, maintain and operate a cable
television system in the City, subject to the terms and conditions set forth herein and in the
Ordlnance, is consistent with the public interest; and
WHEREAS, the Council determined to grant TCI-SF a non-exclusive franchise to own,
construct and operate a cable television system within the City, subject to the terms and conditions
of the Ordinance and subject also to the City and TCI-SF entering into a franchise agreement; and
WHEREAS, the City and TCI-SF have reached agreement on the terms and conditions of
such a franchise agreement.
NOW, THEREFORE, in consideration of the City's grant of TCI-SF's franchise to own,
construct, install, maintain and operate a cable system within the City, and to use and occupy the
Streets of the City for that purpose, and in consideration of TCI-SF's promise to provide cable
service to residents of the City pursuant to the Ordinance and under the terms and conditions set
forth herein, and in consideration of the promises and undertakings herein, and other good and
valuable consideration, the receipt and the adequacy of which is hereby acknowledged, the franchise
C:~225~1999%Aven~ura\Agreements\TC~ Franchise0128~ 2
is hereby granted and
THE SIGNATORIES DO HEREBY AGREE AS FOLLOWS:
Section 1. Definitions.
Except as otherwise provided herein, the definitions in Section 3 of Ordinance No.
97-20 as amended by Ordinance No. 98-11 of the City of Aventura, Florida, shall govern this
Franchise Agreement. In addition, the following definitions shall apply:
A. Ordinance shall mean Ordinance No. 97-20 as amended by Ordinance No. 98-11 of
the City of Aventura, Florida and as said Ordinance may hereinafter be amended.
B. Franchisee or TCI-SF shall mean TCI TKR of South Florida, Inc., a Delaware
corporation, and its lawful and permitted successors, assigns and transferees pursuant to Sections
29 and 30 of this Agreement and Ordinance No. 97-20 as amended by Ordinance No. 98-11 of the
City of Aventura, Florida.
C. Franchise Area shall mean the entire area within the legal boundaries of the City, and
such other areas as may hereinafter be am~exed or incorporated by the City during the term of the
franchise.
D. Notice to the cable operator shall be deemed effective upon receipt. Notice to the
City shall be effective upon receipt by the City Manager.
E. Gross Revenues on which franchise fee payments to the City are calculated shall be
defined as provided for in Section 3(T) of Ordinance No. 97-20 as amended by Ordinance No. 98-11.
Section 2. Grant of Franchise.
A. Subject to the terms of this Franchise Agreement and Ordinance No. 97-20 as
amended by Ordinance No. 98-11, the City hereby grants Franchisee a franchise for the right and
privilege to own, construct, install, maintain and operate a cable television system within the
Franchise Area.
B. The cable system herein f?anchised shall be used and operated only for the purposes
of providing cable television services unless and until franchisee obtains written authorization from
the City Manager to provide other services, including but not limited to, telephony and non-cable
video services, unless the City is otherwise prohibited by applicable law from the exercise of such
authority.
C. Franchisee agrees that in no event shall it incorporate the length of time for which a
franchise is granted by the City as a term or condition within any contract or other agreement to
provide cable service to a subscriber(s) other than the City. Failure to comply with this Subsection
shall be considered a material breach of this agreement.
Section 3. Term of Franchise.
This franchise shall be for a period of ten (10) years unless otherwise sooner terminated or
otherwise extended in accordance with the terms of this Franchise Agreement. The franchise shall
commence upon the date that Franchisee provides the City with the written acceptance required by
Section,36 hereof, ~vhich must occur within thirty (30) calendar days from the date of the Council
resolution approving the grant of the franchise. This Franchise Agreement is subject to all other
requirements and conditions set forth in this Franchise Agreement and in Ordinance No. 97-20 as
amended by Ordinance No. 98-11 of the City for a grant of a franchise to become effective, except
to the extent such requirements are modified or waived as expressly set forth herein.
Section 4. Non-Exclusive Franchise.
The Franchisee's right to use and occupy the Streets shall be non-exclusive, and the City
rcscrves the right to grant a similar or other use of said Streets, or any portions thereof, to any person,
including the City, at any time during the term of this Franchise Agreement.
Section 5. Franchise Subiect to Communications Act~ State Law and Ordinance.
A. This Franchise Agreement is subject to and shall be governed by all terms, conditions
and provisions of the Communications Act, any amendments thereto, and any other applicable
provision of Federal, State or local law, existing or hereafter adopted.
B. This Franchise Agreement is subject to and shall be governed by all terms, conditions
and provisions of Ordinance No. 97-20 as amended by Ordinance No. 98-I 1 of the City in effect as
of the date of the resolution granting this franchise, in addition to the terms, conditions and
provisions set forth in this Franchise Agreement.
Section 6. Franchisee Subiect To Other Laws~ Police Power.
A. The Franchisee is subject to and agrees to comply with ali applicable local, city, State
and Federal laws, ordinances, rules, regulations and orders.
B. The Franchisee shall at all times be subject to all lawful exemise of the police power
of the City, and this Agreement is not intended to limit the City's exercise of such power in any way.
Section 7. Reservation of Rights.
A. It is explicitly understood that this Franchise Agreement shall be construed in
accordance with the laws of the State of Florida and Federal law, including, but not limited to, the
rules and regulations promulgated by the Federal Communications Conunission.
B. The City reserves the right to acquire, purchase, own and/or operate a cable system
to the extent permitted by local, state and federal law.
Section 8. Insurance.
A. Franchisee shall obtai.ri and maihtain insurance of the types and minimum amounts
required in Section l I of Ordinance No. 97-20 as amended by Ordinance No. 98-11 in such a manner
as to comply with each and every requirement of that Section.
B. The Franchisee shall provide proof to the City Manager of compliance with this
Section no later than sixty (60) days from the date of the Council resolution approving the grant of
the franchise. Failure to provide the City Manager with proof of insurance within the prescribed time
period will render this Franchise Agreement and the grant of the franchise null and void without
further action by the City.
Section 9. Indemnification of the City.
Pursuant to Section 11 of Ordinance No. 97-20 as amended by Ordinance No. 98-11,
Franchisee shall, at its sole cost and expense, indemnify, hold harmless, and defend the City, its
officials, boards, commissions, commissioners, agents, and employees, against any and ali claims,
suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and
expenses arising out of the constn~ction, maintenance or operation of its cable system, the conduct
of Franchisee's business in the City, or in any way arising out of the Franchisee's enjoyment or
exercise of a franchise granted hereunder, regardless of whether the act or omission complained of
is authorized, allowed or prohibited by this Ordinance or a franchise agreement, provided, however,
that Franchisee's obligation hereunder shall not extend to any claims caused by the misconduct or
sole gross negligence of the City, its officials, boards, commissioners, agents or employees. This
provision includes, but is not limited to, the City's reasonable attorneys' fees incurred in defending
against any such claim, suit or proceedings; and claims arising out of copyright infringements or a
C:k225\1999/Aventura\Agreements~TCI Franchise.0128.Qpd 6
failure by the Franchisee [o secure consents from the owners, authorized distributors, or providers
of programs to be delivere_d by the cable System, claims arising out of Section 638 of the
Communications Act, 47 U.S.C. 558, and claims against the Franchisee for invasion of the right of
privacy, defamation of any person, firm or corporation, or the violation or infringement of any
copyright, trade mark, trade name, service mark or patent, or of any other right of any person, firm
or corporation. In addition, this provision is applicable to any and ail claims filed by third parties
in any manner related to or arising under Section 11 of Ordinance No. 97-20 as amended by
Ordinance No. 98-11 of the City. Notwithstanding the foregoing, Franchisee may select counsel to
represent the City. City agrees to notify Franchisee, in writing, within ten (10) days of City receiving
notice, of any issue it determines may require indemnification. Nothing in this section shall prohibit
the City from participating in the defense of any litigation by its own counsel and at its own cost if
in the City's reasonable belief there exists or may exist a conflict, potential conflict or appearance
of a conflict.
Nothing in the provision shall be construed to affect in any way the City's rights, privileges,
and immunities as set forth in Section 768.28, Florida Statutes.
Section 10. Construction Bond.
Pursuant to Section 13 of Ordinance No. 97-20 as amended by Ordinance No. 98-11, at the
City Manager's request, prior to any cable system construction, upgrade, rebuild or other significant
work in the streets, Franchisee shall furnish a construction bond in favor of the City in the amount
of Fifty Thousand Dollars ($50,000.00). If such construction bond is not furnished to the City ten
(10) days prior to the start of any such construction, construction shall be delayed until such time as
the construction bond is provided in a form acceptable to the City Manager. The construction bond
must be approved by the City Manager or his/her designee, which approval shall not be unreasonably
withheld. The construction bond shall be maintained until said construction work hereof is
completed and for a period not to exceed six (6) months thereafter. Franchisee shall notify the City
Manager in writing when it believes the construction has been completed.
Section 11. Use of Streets.
A. Franchisee agrees at all times to comply with and abide by all applicable provisions
of the City Code.
B. All of Franchisee's cable system distribution facilities shall be installed and
maintained underground to the extent required by Section 21 (I) of Ordinance No. 97-20 as amended
by Ordinance No. 98-I 1.
C. Franchisee shall utilize, with the owner's permission, existing conduits, poles, or other
facilities whenever feasible. The Franchisee has the duty and the responsibility to obtain or establish
the existence of an easement or dedication tbr its use. Copies of agreements for use of conduits or
other facilities shall be filed with the City, pursuant to Section 21 (E) of Ordinance No. 97-20 as
amended by Ordinance No. 98-11.
D. All of Franchisee's transmission lines, equipment, structures and other facilities shall
be installed, located and maintained so as to cause minimum interference with the rights and
convenience of property owners. The City may issue such rules and regulations concerning the
installation and maintenance of a cable system installed in, on, or over public Streets, as may be
consistent with the Ordinance.
E. All safety practices required by applicable federal, state or local law or accepted
industry practices and standards shall be used during construction, maintenance and repair of the
cable system.
F. As required by the City, and upon receipt of written notice from the City, Franchisee
shall remove, relocate, replace or modify at its oxvn expense (except as otherwise required by law)
its facilities within any public Street for the reasons set forth in Section 21 (B) of Ordinance No. 97-
20 as amended by Ordinance No. 98-11.
G. Franchisee shall obtain any required permits and pay any required fees before
commencing any construction on or otherwise disturbing any private property or public Streets as
a result of its construction or operations. Franchisee shall, at its own expense, restore such property
pursuant to the requirement of Ordinance No. 97-20 as amended by Ordinance No. 98-1 h If such
restoration is not performed in a reasonable and satisfactory mmmer within thirty (30) calendar days,
the City may, after prior written notice to Franchisee, cause the repairs to be made at Franchisee's
expense pursuant to Section 21 (A) of Ordinance No. 97-20 as amended by Ordinance No. 98-1 I.
H. If the City is required to perform emergency Street work requiring relocation of
Franchisee's facilities in the Streets, then Franchisee shall reimburse the City for its reasonable costs
associated with such relocation.
I. Franchisee shall not place facilities, equipment or fixtures where they will
unreasonably interfere with any other companies lawfully using the public rights-of-way serving the
residents of the City. All such facilities, equipment or fixtures placed in any public Street or public
right-of-way shall, to the best of the Franchisee's ability, be placed close to the line of the lot abutting
on the public Street, in a manner so as not to interfere with use of the public Street.
Section 12. Minimum System Facilities and Services.
A. Pursuant to Section 14 of Ordinance No. 97-20 as amended by Ordinance No. 98-11,
Franchisee's cable system shall, at a minimum, (1) be able to pass fi?quencies of at least 750 MHZ;
(2) have a minimum channel capacity of at least seventy-eight (78) video Channels; (3) have at least
two (2) activated downstream video channels; (4) have two-way interactive capability; and (5)
upstream video channel capacity to the headend from the locations specified herein, and in the
amount necessary to satisfy, the access channel requirements set forth in Section 16 hereof.
B. Franchisee further agrees to provide cable service, without charge, to the City
buildings as set forth in Exhibit A to this Franchise Agreement, and to ail buildings of the City that
may be constructed or opened within the City or annexed areas during the term of this Franchise
Agreement within sixty (60) days of receipt of a request from the City Manager or his designee.
Where Franchisee's plant is the closest franchised cable operator to a specified facility, such service
shall include the basic cable service tier and all programming offered on the cable programming
service tier including any additional programming added to those two levels of service, to the extent
a separate charge is not associated with such additional programming.
C. School Commitments.
At such time as any public or private school serving any grades K-12 (as required in
Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 421 et seq., as amended)
is to be constructed within the territorial boundary of the City, Franchisee hereby agrees to provide,
at minimum, the products and services described in Section 12(C)(1-7) herein. Where Franchisee
receives prior notice of the construction, Franchisee shall cooperate with the builder to install all
cable related facilities during construction so as to allow for activation of cable services
simultaneous with occupancy of the building. Notwithstanding anything to the contrary, where
Franchisee's plant is the closest plant to the school site, Franchisee shall comply with the
C:%225\1999t~Aventura\Agreements~TCI Franchise0125.wpd ~ 0
requirements of Section 12(C)(1-7) herein within sixty (60~ days of receiving a request from the City
Manager or his designee -
1. Franchisee shall, at a minimum, provide a service connection at one outlet in
all public and private schools grades K-12 (as defined in Title I of the Elementary and Secondary
Education Act of 1965, 20 U.S.C. § 421a et seq., as amended), where Franchisee's plant is the
closest franchised cable operator to a specified school. Such connections xvill be made free of charge
and as promptly as possible to all unserved schools requesting such a connection. Upon request,
Franchisee will provide, at Cost, such a service connection to any other unserved K-12 public and
private (as defined in Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. §
421a et seq., as amended) school located within the City. If any internal wiring installation is
requested to serve additional outlets in any school, it will be provided at Cost; provided, however,
that such internal wiring will be provided without charge if Franchisee is able to coordinate with
other comparable electrical wiring installation in cases of new construction or substantial
rehabilitation of existing schools in the City.
2. Any public or private school connected pursuant to subparagraphs 1 or 2 may
elect to install its own internal wiring (provided such wiring meets required technical specifications)
and to bear the cost thereof. Free BST and free CPST service will be provided to each outlet in all
cormected public and private schools.
3. Franchisee will provide free educational program listings equal to the number
of outlets to each connected school. Additional copies of such program listings will be provided,
if requested by a school. Such educational program listing will identify and describe programming
on Franchisee's system that is appropriate for use in the classroom and will provide suggested
C:\225\1999\Aventura\Agreemen5s\TCI Franchise0128.wpd ~ ~
curriculum support ideas.
4. Franchisee will provide to each connected school materials for teachers that
explain the educational applications of Franchisee's broadband cable systems and services. The
materials will be provided to all connected schools. Additional copies of such materials will be
provided, upon request.
5. Within twelve months after Franchisee or any parent, affiliate or subsidiary
makes an on-line service providing Internet access for personal computers commercially available
on the system serving the City or the system serving the City ofF~. L,,,dciga~, Franchisee will, upon
request by the City Manager, provide schools within the City with at minimum one free connection
to such on-line service. At a minimum, such on-line service will provide access to the Intemet.
Upon request, each connected public or private (K-12) school will receive at minimum one free cable
modem per outlet and have free unlimited access to cable modem service, including but not limited
to internet access, during the school year. Additional cable modems and operational support and
services (for example, assisting connected schools in setting up and maintaining reliable Intemet
connections), will be provided to connected schools, at cost upon request. In addition, no less than
once per year Franchisee will conduct or sponsor a training program in the Dade and Broward
County area to educate teachers about its on-line service and to provide connected schools with an
opportunity for hands-on training.
6. Upon request, one municipal building will receive at minimum one free
connection to on-line service when it becomes commercially available. At a minimum, such on-line
service will provide access to the Internet. Upon request, the designated municipal building will
receive one free cable modem per outlet, unlimited access to cable modem service and free unlimited
access to the lnternet. Additional cable modems and operational support and services will be
provided to municipal buildings at a reasonable price. -
7. Franchisee agrees not to seek to recover the cost for these connections as
extemal or other costs.
8. Nothing herein shall preclude Franchisee from providing benefits to schools
which exceed those provided herein.
D. All video signals received for transmission that contain closed circuit captioning
infbrmation fbr the hearing impaired shall in turn contain such information in the form received
when transmitted by the cable operator to the subscribers of the system.
E. Franchisee's system shall be capable of transmitting, and shall transmit, to subscribers
any stereo signals and any other form of advanced television signals received and carried by the
system in the form received.
F. Franchisee shall take affirmative, economically feasible steps to ensure maximum
availability of the services and facilities of the system, including without limitation all access
channel services and facilities, to handicapped persons, including hearing impaired persons.
Franchisee shall comply fully with all applicable laws concerning handicapped or disabled persons,
and shall indemnify and hold the City harmless from any suit, claim, or demand against it for
violation of such laws that arises from Franchisee's provision, or failure to provide, services in
conformity with such laws.
G. In lieu of being responsible for wiring each and every floor and installing all facilities
necessary for live cablecasting from the new City complex, Franchisee agrees to provide the City
with a finaa~cial grant equivalent to the cost incurred by the franchisee responsible for the aforestated
wiring and installation, calculated on a pro-rata subscriber basis.
- H: Upon the request of the City Manager, if technologically and economically feasible,
the Franchisee shall lease, on the same terms and conditions as provided to any other franchising
authority in Dade or Broward Counties, but in no event in an amount greater than the actual cost
basis to the Franchisee, such up and downstream capacity on the cable system as may be required
to allow the City to collect data from subscribers for purposes not competitive with services offered
by Franchisee, including, but not limited to, reading water meters, to the extent such capability is
available. The Franchisee shall allow the City to co-locate necessary equipment with the cable
system and to interconnect such equipment into the cable system, at the City's cost, provided said
equipment does not interfere with the cable system's technical integrity.
Section 13. Technological Improvements to System.
A. The Franchisee and the City recognize that the technology of cable systems and the
services available are advancing at a rapid rate. Thus, 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 in
Dade or Broward Counties, no later than six (6) months after such product or service is offered to
subscribers in another community in Dade or Broward Counties.
B. Upon request of the City, after the fifth anniversary but, prior to the seventh annual
anniversary of the franchise herein granted, the Franchisee shall, report in writing to the City
Manager, in a form satisfactory to the City Manager, on technological advances and the availability
of new and enhanced services for cable systems. The report shall state what plans, if any, the
franchisee has for the upgrade or rebuilding of its cable system to the State-of-the-Art. The report
shall also contain an analysis of the impact of updating the cable system to include new advances
upon the franchisee's teclmical plant, customer service, subscriber rates, and the Franchisee's
financial capabilities. To the extent known by Franchisee, the franchisee shall also provide the City
Manager with a comparison of the services, facilities and technologies utilized by Franchisee or any
parent, affiliate or subsidiary of Franchisee and upon request, a list of City selected jurisdictions up
to a maximum of ten (10), with an explanation of the services, facilities and technologies utilized
in those jurisdictions and an assessment of the costs associated with implementing the new
technologies in the City.
C. In the event that Franchisee, pursuant to section B above, provides to the City and the
City accepts a plan to activate an upgrade or rebuild of the system to State-of-the-Art no later than
the ninth anniversary of the date hereof, Franchisee and the City hereby agree to extend the term of
this franchise from ten (10) years to fifteen (15) years from the effective date hereof.
Section 14. Technical Standards.
Franchisee shall maintain and operate its cable system, at a minimum, in full compliance with
FCC regulations and Ordinance No. 97-20 as amended by Ordinance No. 98-11. Franchisee shall
further comply with each of the following requirements:
A. All antennas, supporting structures, and outside plant used in operating and
maintaining Franchisee's cable system within the City shall comply with all generally accepted
industry standards and all applicable federal, state, county, City and/or utility laws, ordinances, rules,
regulations and applicable lease agreements relating to tower structures and outside plant.
B. All construction, installation and maintenance of Franchisee's cable system shall
comply with the National Electrical Safety Code, the National Electrical Code, all applicable state
and local laws and regulations, and accepted industry practices.
C. Franchisee's cable system shall, at a minimum, meet or exceed all tectmical and signal. . -
quality standards of the FCC and the National Cable Television Association, including such
standards as hereinafter may be adopted or promulgated.
Section 15. Proof of Performance Tests.
Franchisee shall perform, at its expense, the proof of performance tests as required by Section
15 of Ordinance No. 97-20 as amended by Ordinance No. 98-11 to demonstrate compliance with the
requirements of that Section, this Franchise Agreement, FCC standards, and the standards of Good
Engineering Practices for Measurements on Cable Systems, published by the National Cable
Television Association. Upon xvritten request, Franckisee will provide proof of performance test
results within thirty (30) days to the City Manager.
Section 16. Access Channels and Facilities.
A. Access Channel Capacity. No later than twelve (12) months from the effective date
hereof, Franchisee shall provide to the City, at least one (1) and a maximum of two (2) activated
downstream access channels and at least one (1) and a maximum of two (2) activated upstream
channels on the system which the City may elect to use, in whole or in part, for video and audio
services solely for educational and/or governmental access use at the City's discretion on the
following terms and conditions:
1. Upon ~witten request of the City Manager, Franchisee agrees that it will
cablecast all taped City Council meetings, or, subject to Section 12 (G) hereof, at the City
Manager's discretion, cablecast live on the cable system all City Council meetings and provide tapes
of such meetings to the City Manager, other cable operators or residential developments as requested
by the City at cost.
2. No later than twelve (12) months from the effective date hereof, Franchis¢~
shall provide one dedicated access channel. The channel shall be activated from a location
designated by the City. If at any time the initial Channel is programmed during at least six (6) hours
per day with locally produced programming, Monday through Friday for four (4) consecutive weeks,
Franchisee shall, without charge, at the request of the City, provide the City with a second Access
Channel. Both parties agree the computer generated messaging shall not count toward the six (6)
hours per day programming test. In the event the prograrmming on the first access channel falls
below the specified level for a period of eight consecutive weeks, then City agrees that Franchisee
shall have the right to deactivate the second access channel.
3. Franchisee's system shall be configured so that any programming delivered
to the system on any upstream channel required hereunder may be delivered downstream on the
system on any of the activated downstream access channels required or from such other access
facilities in North Dade or Southern Broward County as may be provided by Franchisee that are
technically and financially feasible.
4. The access channels to be provided to the City as set forth above may be
allocated by the City to any or all categories of access use (educational or governmental) at the sole
discretion of the City.
5. Franchisee shall make available all necessary headend and system electronic
and distribution equipment so that any programming transmitted upstream on any upstream channel
from any origination location designated by the City Manager pursuant to Section 16 hereof may be
transmitted downstream to all subscribers on any of the downstream access channels provided
pursuant to Section 16 hereof. The City Government Center xvill be linked to the headend by the
most technically feasible and cost effective means. Franchisee xvill make available the necessary
system electronic and distribution equipment to Franchisee's headend and distribution system to
make possible the live cablecasting of the programming from the City Government Center.
6. Franchisee agrees that all access channels will be provided to subscribers on
the system as a part of the lowest tier of basic service and that, if such information is supplied to
Franchisee or known by Franchisee pursuant to its responsibilities under Section 16 hereof,
Franchisee will publicize programming on the access channels as a part of any ordinary printed
program listings it provides which include program listings for the basic tier of service or will
include access channel programming listings in any monthly program guide sent to subscribers
which include program listings for the basic tier of service, provided that information concerning
access channel programming is provided to or becomes kno~vn to Franchisee within the time and in
a manner that other programmers are required to provide such information for inclusion in such
program listings or program guide.
B. Access Facilities, Equipment and Support.
1. Franchisee, at Franchisee's sole expense, shall use its best efforts to obtain
agreements from other cable Franchisees and shall provide all facilities, equipment, cabling and
trained personnel necessary to interconnect Franchisee's system with all other Franchise's systems
in the City so as to permit both live and delayed cablecast of all City Council meetings and other City
or public meetings, events and programs held at a location to be designated by the City, to all
subscribers in the City. The system electronic and distribution facilities and equipment and cabling
provided by Franchisee shall be State-of-the-Art and of sufficient quality and performance
specifications to enable all material cablecast on the access channels provided pursuant to this
Agreement to meet all video and audio signal quality standards adopted by the FCC when
transmitted downstream to subscribers, including any such standards as may be adopted or amended
during the term of this Franchise Agreement and to provide comparable video and audio signal
quality to the programming provided generally by the Franchisee on the system when transmitted
down-stream to subscribers. It is understood that Franchisee shall be responsible for maintaining
all such equipment in good repair and operational condition, at Franchisee's expense.
Further, to the extent required to maintain State-of-the-Art production quality, the
City reserves the right to require Franchisee to replace all such facilities, equipment and cabling.
2. Franchisee shall provide, at its sole expense, training of authorized
representatives of the City to operate the production and transmission equipment in such a manner
so as to ensure that the quality of the cablecast would be the same as if an employee of the
Franchisee was fulfilling the duties.
3. In addition to the City council meetings, the City Manager may designate up
to a maximum of twelve municipal or civic events ("Designated Municipal Event") per year that are
no longer than three hours each that Franchisee shall cablecast live from Franchisee's studio subject
to reasonable availability on the first access channel. When City Hall is built and has been wired and
equipped for cablecasting, the City Manager may designate up to a maximum of four (4) Designated
Municipal Events per year, no more than four hours each, that Franchisee shall cablecast live and
up to a maximum of eight Designated Municipal Events that Franchl. see shall video tape and
provide the City Manager with a copy of such video tape so that the City may play such tape on a
designated access channel. The City Manager shall notify Franchisee in writing of each such
Designated Municipal Event, and its place and time, no less than two (2) weeks before each such
event is held. Franchisee sha~t also provide the City w!th a videocassette copy of every Designated
Municipal Event m~d Council Meeting other than those events taped by the City at Government
Center. In addition, Franchisee agrees to provide the City with time to advertise municipally
sponsored events during reasonable viewing periods with a value of not less than Ten Thousand
Dollars ($I0,000) per year during each year of the term of this Agreement. The value of said time
shall be calculated based on the lowest rates franchisee charges to any advertiser.
4. The City may cablecast character generated information on a designated
Access Channel from the location designated at any time of its choosing.
5. Subject to availability, franchisee shall make its studio facilities available for
use by the City and area educational institutions for government and educational access
programming one time per month. However, notwithstanding anything to the contrary, the City may
request additional use of the studio facility and Franchisee agrees to negotiate in good faith to
provide such additional time.
6. Franchisee hereby agrees to provide to the City a grant in the amount of Forty
Thousand Dollars ($40,000.00) dollars to be paid to the City no later than within 45 days of a council
approval of this franchise plus an additional payment of $4.15 per subscriber for each additional
subscriber over 2,712 subscribers added to the system, calculated as of December 31 of each year.
Such additional payment shall be remitted to the City annually and accompanied by a certified
statement of the number of subscribers in the City served by the Franchisee. Franchisee's
incremental obligation for additional subscribers pursuant to this subsection 6 shall not exceed
$25,000
7. Franchisee h~eby agrees that the facilities, equipment, services, and all other
support to be provide¢ by Franchisee p~4rsuant to this Section 16 constitute capital costs which are
required by the franchise to be incurred by Franchisee for public, educational, or governmental
access facilities within the meaning of Section 622(g)(2)(C) of the Communications Act, 47 U.S.C.
§ 542(g) (2) (C); that such grant does not constitute a franchise fee within the meaning of
Communications Act, State law, Ordinance No. 97-20 as amended by Ordinance No. 98-1 I, or this
Franchise Agreement; and that Franchisee hereby waives, and will not assert in any proceeding, any
claim to the contrary. The City and Franchisee further agree that the pass through to subscribers of
any such costs shall be amortized evenly over the term of this agreement.
Section 17. Commercial Leased Access.
Franchisee shall provide commercial leased access channels as required by Federal law.
Section 18. Emergency Use of Facilities.
A. Franchisee shall comply with all FCC rules on emergency use of facilities.
B. Franchisee shall provide standby power generating capacity at the cable system
headend and be capable of providing at least two (2) hours of emergency power supply. Standby
batteries, capable of providing at least two (2) hours of emergency power, shall be installed in the
cable distribution plant.
Section 19. Lock-out Devices.
Franchisee shall make available at reasonable charge to any residential subscriber, upon the
request of such subscriber, a "parental guidance" or "lock-out" device which shall permit the
subscriber, at his or her option, to eliminate the audio and visual transmissions from any channel
reception to the extent technically feasible.
C:\225\1999\kventura\Agreements\TCI Franchise.0128.Wpd 2 1
Section 20. Closed-circuit Captioning for the Hearing Impaired.
Franchisee shall make available at a reasonable charge to any hearing-impaired residential
subscriber, upon the request of such subscriber, any equipment beyond the subscriber's equipment
capable of decoding closed-circuit captioning information for the hearing impaired.
Section 21. Line Extension Policy.
A. Upon request and payment of all applicable charges, and provided that the requesting
person gives Franchisee access to his or her premises in order to furnish, maintain and continue to
offer service to that person, Franchisee shall, throughout the term of this Agreement, promptly
furnish, maintain, and continue to provide all services distributed over the system to any person at
his or her place of residence or commercial location where Franchisee's plant is the closest activated
plant to the location.
Section 22. Cable Home Wiring Commitments.
A. At minimum, Franchisee shall comply with all FCC rules regarding cable home
wiring, as amended from time to time.
1. Upon commencement of service, and annually thereafter, Franchisee will
notify customers of their rights and options relating to cable home wiring, pursuant to applicable law.
Section 23. Franchise Fee.
A. In consideration of the privilege granted herein to use and occupy the Streets to own,
construct, install, maintain and operate its cable system, Franchisee shall pay to the City a franchise
fee equal to either (1) five percent (5%) of its gross revenues as defined in Section 03 of Ordinance
No. 97-20 as amended by Ordinance No. 98-11; or (2) ifa change in law increases the maximum
allowable percentage to an amount greater than that specified in (1) above, that higher amount
provided however, that such increase is affirmatively imposed by the City after a public hearing at
which both the public and Franchisee are allowed to comment on the impact of the higher fee.
Franchisee will pay to the City such higher mnount effective with the next available billing cycle in
which the higher charge may be placed on subscribers bills. Franchisee may calculate gross revenues
for purposes of determining the franchise fee owed in accordance with generally accepted accountin~
principles (GAAP). Franchisee may subtract its actual bad debt expense determined in accordance
with Generally Accepted Accounting Principles for the relevant period from gross revenues,
provided, however, that any bad debt subsequently collected shall be included in gross revenues in
the period in which the bad debt is collected.
B. Franchisee shall pay the franchise fee to the City in full compliance with the
requirements set forth in Section 17 of Ordinance No. 97-20 as amended by Ordinance No. 98-11.
C. The quarterly statements required to be filed by the Franchisee with the City pursuant
to Section 17 (D) of Ordinance No. 97-20 as amended by Ordinance No. 98-11 shall be audited and
reported on by certified public accountant or certified as true and correct by a duly authorized
financial officer of Franchisee. Franchisee shall bear the cost of the preparation of such statements.
D. The acceptance by the City of any payment from Franchisee of the franchise fee shall
not constitute a release or an accord and satisfaction of any claim the City may have against
Franchisee for performance of any of its obligations under Ordinance No. 97-20 as amended by
Ordinance No. 98-11, this Franchise Agreement, or local, State or Federal law, including, without
limitation, Franchisee's obligation to pay the proper franchise tee amount owed, subject, however,
to applicable statute of limitations, if any.
E. Following the expiration or the termination for any reason of its franchise, Franchisee
shall pay the franchise fee owed as of the date that its operations ceased within ninety (90) calendar
days of ceasing such opprations: Such payment shall be a~companied by a gross revenues audit
report prepared by a certified public accountant showing the revenues received by Franchisee since
the end of the previous fiscal year.
F. Franchisee expressly agrees that: (i) the franchise fee payments to be made pursuant
to this Section shall not be deemed to be in the nature ora tax; (ii) such franchise fee payments shall
be in addition to any and all taxes of a general applicability and not applicable solely to cable
television operations within the City or other fees or charges which Franchisee shall be required to
pay to the City or to any state or federal agency or authority, as required herein or by law, ali of
which shall be separate and distinct obligations of Franchisee; (iii) Franchisee shall not have or make
any claim for any deduction or other credit of all or any part of the amount of said franchise fee
payments from or against any of said City taxes or other fees or charges of general applicability
which Franchisee is required to pay to the City, except as agreed herein or required by law; (iv)
Franchisee shall not apply nor seek to apply all or any part of the amount of said franchise fee
payments as a deduction or other credit from or against any of said City taxes or other fees or charges
of general applicability, each of which shall be deemed to be separate and distinct obligations of
Franchisee; (v) Franchisee shall not apply or seek to apply all or any part of the amount of any of said
taxes or other fees or charges of general applicability as a deduction or other credit from or against
any of its franchise fee obligations, each of which shall be deemed to be separate and distinct
obligations of Franchisee; and (vi) the franchise fee specified herein is the minimum fair market
value for the grant hereunder of a franchise for use of the Streets, including all public easements,
public rights-of-way and other entitlement to use, occupy or traverse public property, for the purpose
of operating a cable television system.
Section 24. Reports aad Records
Upon request of the City Manager or his designee, Franchisee shall furnish the City
Manager with all of the information as required under Sections ! 7 and 18 of Ordinance No. 97~20
as amended by Ordinance No. 98-I 1.
Section 25. Right to Inspect Financial Records and Facilities.
A. Franchisee shall maintain a complete set of books and records, including plans,
contracts, engineering, accounting, financial, statistical, customer and service records as required
under Sections 17 and 18 of Ordinance No. 97-20 as amended by Ordinance No. 98-1 I.
B. Pursuant to Ordinance No. 97-20 as amended by Ordinance No. 98-11, the City shall
have the right to inspect, at Franchisee's local office, the books and records specified in subsection
25(A) hereof and such other records as may be required by the City to perform its regulatory
responsibilities under Ordinance No. 97-20 as amended by Ordinance No. 98-I 1 or applicable
Federal law. The City agrees to carry out any such inspection during Franchisee's normal business
hours and upon reasonable notice. Access by the City to perform its regulatory responsibilities to
Franchisee's books and records shall not be denied on grounds that such books and records contain
proprietary or confidential information.
C. The City shall accord all books and records that it inspects under this Section the
degree of confidentiality such books and records are entitled to under Federal and State law.
Franchisee's books and records shall not constitute public records, except to the extent required by
Federal and State law. To the extent Franchisee considers any books or records that it is required
to produce to be confidential or otherwise protected from public disclosure, Franchisee shall
C:~225~1999\Aventura\Agreements~TCI Franchise012g.wpd 2 5
designate which documents it views as protected and provide a written explanation to the City of the
legal basis for Franchisee's claim of protection.
D. Pursuant to Ordinance No. 97-20 as amended by Ordinance No. 98-11, the City shall
have the right to inspect Franchisee's facilities and property during Franchisee's normal business
hours and upon reasonable notice.
Section 26. Customer Service Requirements.
A. Franchisee agrees to comply with each of the customer service requirements set forth
in Section 18 of Ordinance No. 97-20 as amended by Ordinance No. 98-11.
B. Pursuant to Section l 8(E) of Ordinance No. 97-20 as amended by Ordinance No. 98-
11, Franchisee agrees to operate its local office, as defined in Section 18(B) of Ordinance No.97-20,
so as to be opened for access by customers during Monday through Friday 8:30 a.m. - 5:00 p.m. and
Saturday 9:00 a.m. - 12:00 noon, at minimum. It is hereby recognized that all of Franchisees
subscribers within the City are currently served through bulk contracts. If, at any time during the
term of this agreement, Franchisee serves five hundred (500) or more subscribers within the City on
an individual basis, upon written request of the City Manager, Franchisee shall extend the aforestated
office hours to include one evening per week until 9:00 p.m.
Section 27. City Purchase of Cable System.
The City may, upon the recommendation of the City Manager and the approval of the
Council, acquire ownership of and operate Franchisee's cable system in accordance with Section 3 !
of Ordinance No. 97-20 as amended by Ordinance No. 98-11.
Section 28. Modification of Franchise.
Franchisee shall file an application with the City Manager for any modification of its
franchise pursuant to Section 9 of Ordinance No. 97-20 as amended by Ordinance No. 98-11. The
application shall fully conform with each of the requirements set forth in that Section that apply to
applications for modification.
Section 29. Transfer of Franchise.
A. Franchisee shall not directly or indirectly assign, sell or transfer its franchise, or any
right, title, or interest in same, this Franchise Agreement, or its cable system, nor shall any ownership
interest or any other form of control of Franchisee or any lawful successor be transferred, assigned,
directly or indirectly, without prior written notice to and approval of the City. In determining
whether to approve a transfer, the City will consider the factors set forth in Section 23 of Ordinance
No. 97-20 as amended by Ordinance No. 98-I h However, in the event that an entity having a
controlling interest of the Franchisee desires to transfer the franchise to another affiliated entity
whose ownership is controlled by the same entity, the City hereby agrees to designate such
transaction a pro forma transfer pursuant to Section 23(C) of Ordinance 97-20 as amended by
Ordinance No. 98-1 h
B. Franchisee shall file an application to transfer its franchise or to transfer control of
Franchisee in full compliance with Sections 9 and 23 of Ordinance No. 97-20 as amended by
Ordinance No. 98-1 h
Section 30. Procedures for Requesting Approval of Transfer.
In addition to the requirements set forth in Sections 9 and 23 of Ordinance No. 97-20 as
amended by Ordinance No. 98-11, the following procedures shall be followed by Franchisee in
requesting the City's consent to transfer its franchise or to transfer control of Franchisee.
A. At least one hundred twenty (120) calendar days prior to the contemplated effective
date of a transfer, Franchisee shall submit to the C~ity Manager an application lbr approval of the
transfer. Such application, shall inclu~l¢ the following:.
1. A state~r~ent of the reason for the contemplated transfer.
2. The name, address and telephone number of the proposed transferee.
3. A detailed statement of the corporate or other business entity organization of
the proposed transferee, including but not limited to the following:
(a) The names, business addresses, state of residence and country of
citizenship of ali general partners and/or corporate officers and directors of the proposed transferee.
(b) The names, business addresses, state of residence and country of
citizenship of all persons and entities having, controlling, or being entitled to have or control ten
percent (10%) or more of the ownership of the proposed transferee and the respective ownership
share of each such person or entity.
(c) The names and addresses of any subsidiary of the proposed transferee and
of any other business entity owning or controlling in whole or in part or owned or controlled in
whole or in part by the proposed transferee.
(d) A detailed and complete financial statement of the proposed transferee,
prepared by a certified public accountant if audited statements were made, and if not, by a duly
authorized financial officer of the proposed transferee, for the three (3) fiscal years immediately
preceding the date of the request for transfer approval, and a letter or other acceptable evidence in
writing from a duly authorized officer of the proposed transferee setting forth a clear and accurate
description of the amount and sources of fimding for the proposal transaction and its sufficiency to
provide whatever capital shall be required by the proposed transferee to construct, install, rebuild,
C:\225\1999\Aventura~Agreements~TCI Franchise.0128.wpd 2 ~
maintain and operate the proposed system in the City. If th? corporate or business entity
organization of the proposed transferee has not been in existence for a full three (3) years, the
proposed transferee shall submit a certified financial statement for the period of its existence.
(e) A description of ail previous experience of the proposed transferee in
operating cable television systems and providing cable television services or related or similar
services, including a statement identifying, by place and date, any other cable television franchise(s)
awarded to the proposed transferee, its parent, subsidiaries, or affiliates; the status of said
franchise(s) with respect to completion thereof; the total estimated cost of completion of such
system(s); and a summary of the mount of the proposed transferee's and its parent's or subsidiary's
resources committed to the completion thereof.
(f) Upon request from the City Manager, a detailed pro forma financial plan
describing for each remaining year of the franchise, the projected number of subscribers, rates, all
revenues, operating expenses, capital expenditures, depreciation schedules, income statements, and
statement of sources and uses of funds. Where the transfer is part of a larger transaction and such
information is not prepared for the single system in the City, the proposed transferee may provide
such information on a consolidated basis including the system in the City, but shall provide
information on the size of the City system, in terms of number of subscribers, relative to the
transaction, so that pro rata estimates may be made.
(g) A detailed description of the proposed plan of operation of the proposed
transferee, which shall include, but not be limited to the following:
(i) A detailed map indicating all new areas proposed to be served, a
proposed time schedule for the installation of all equipment necessary to become operational
throughout the nexv areas to be served, and the projected total cost for new construction of the
system.
(ii) A statement or schedule setting forth ail proposed products and
services to be made available and classifications of rates and charges to be made against subscribers
and all rates and charges and to each of any said classifications, including installation charges,
service charges, equipment charges, special, extraordinary, or other charges.
4. Upon request, the proposed purchase price of the cable system, and the terms
and conditions of the proposed transfer.
Section 31. Renewal of Franchise.
The provisions of Ordinance No. 97-20 as amended by Ordinance No. 98-I 1 shall govern
any and ail proceedings to renew this franchise. If Franchisee decides to initiate a formal renewal
process in accordance with Section 626(a)-(g) of the Communications Act, 47 U.S.C. § 546(a)-(g),
it and the City must comply with each of the requirements in the Communications Act as well as the
additional requirements set forth in Section 9 and 22 of Ordinance No. 97-20 as amended by
Ordinance No. 98-11 to the extent such requirements are not prohibited by applicable law.
Section 32. Rates.
A. Nothing in Ordinance No. 97-20 as amended by Ordinance No. 98-11 or this
Franchise Agreement shall prohibit the City from regulating rates for cable service, installation,
disconnection, and equipment rental to the full extent permitted by and consistent with State and
Federal law.
B. Franchisee further agrees that it shall not increase rates or charges for basic cable
service, installation, disconnection, or equipment rental without at least thirty (30) days prior notice
C:k225~1999%Avenrura\Agreemengs\TCI Franchise.0128.wpd 3 0
to subscribers and the City.
C. Pursuant to Section 20 of Ordinance No. 97-20 as amended by Ordinance No. 98-11,
Franchisee shall at all times charge nondiscriminatory rates throughout the City.
D. Franchisee shall not engage in predatory pricing or any other anti-competitive
business practice as defined by applicable law.
Section 33. Security Fund.
A. Pursuant to Section 12 of the Ordinance, Franchisee shall provide the City a security
fund or in the alternative a corporate guarantee or letter of credit in the amount of $25,000 as security
for the faithful performance of all provisions of the Franchise Agreement, Ordinance No. 97-20 as
amended by Ordinance No. 98-11 of the City, and all applicable State and Federal law. if such
security fund or letter of credit is not furnished to the City within sixty (60) days of the date of
Council resolution approving the grant of the Franchise, then Franchisee shall pay to the City
Manager a fine in the amount of Five Hundred Dollars ($500) per day, begirming on the 6Ist day,
until the date on which the security fund or letter of credit is received by the City. In the event said
guarantee or letter of credit is not received within sixty (60) days of the date after the Commission
resolution approving the grant of the Franchise, this Franchise Agreement and the grant of the
Franchise may be revoked pursuant to the procedures set forth in Ordinance 97-20 as amended by
Ordinance No. 98-11.
B. If thirty (30) calendar days after written notice Franchisee fails to pay to the City any
fees or taxes due and unpaid, or any liquidated damages, damages, costs or expenses that the City
has incurred by reason of any act, omission or default of Franchisee in connection with this Franchise
Agreement or Ordinance No. 97-20 as amended by Ordinance No. 98-11, the City' may immediately
withdraw that amount, with interest and any costs, ~rom the security fund or make such equivalent
claim against the guarantee. Upon such withdrawal or claim, the City shall notify Franchisee in
writing of the amount and date of the withdrawal.
C. Within thirty (30) calendar days after notice to Franchisee that an amount has been
withdrawn by the City from the security fund, Franchisee shall restore the security fund to its original
amount. If Franchisee fails to restore the security fund to the original amount within that thirty (30)
calendar day period, such failure shall be considered a material breach of this Franchise Agreement
and a violation of Ordinance No. 97-20 as amended by Ordinance No. 98-11, and shall constitute
grounds for revocation of the franchise or other enforcement action by the City.
D. Where a corporate guarantee or letter of credit is provided in lieu of a security fund,
Franchisee shall pay the City the amounts of all claims against said guarantee within thirty (30)
calendar days after notice of such claim, maintaining the guarantee at its original amount. If
Franchisee fails to pay the City the amount of any claim within thirty (30) days after notice to the
Franchisee of the claim paid or fails to restore the guarantee to its original amount, such failure may
be considered a material breach of this Franchise Agreement and a violation of Ordinance No.97-20
as amended by Ordinance No. 98-11, and shall constitute grounds for revocation of the franchise or
other enforcement action by the City.
E. Franchisee is entitled to return of the balance of the security fund that remains
following any other form of expiration of the franchise, including denial of renewal, provided that
there is no outstanding default and less any unpaid amounts owed to the City by Franchisee and any
amount that is the subject of a pending dispute between the City and Franchisee.
F. If the Franchise terminates for reasons other than revocation, any security fund or
C:~225~1999\Aventura~Agreements\TCI Franchise0128.wpd 3 2
corporate guarantee will be maintained by the Franchisee for one (1) year from the date of
termination and the remaining fund will be returned to Franchisee one (.1) year from tl~e. termination
date of the Franchise, provided there is no outstanding default or unpaid amounts owed to the City
by Franchisee.
G. The rights reserved to the City under this Section are in addition to all other rights of
the City, whether reserved in this Franchise Agreement or in Ordinance No. 97-20 as amended by
Ordinance No. 98-11, or authorized by other law, and no action, proceeding or exercise ora right
with respect to the security fund will affect any other right the City may have.
Section 34. Enforcement Remedies.
A. Liquidated Damages. Because the City may suffer damages from any violation by
Franchisee of this Agreement or of Ordinance No. 97-20 as amended by Ordinance No. 98-11, which
damages may be difficult to quantify, the City and Franchisee agree to the following schedule of
liquidated damages:
1. For failure to install, operate and maintain the cable system as required by
Sections 12(A) and 13(A) hereof, unless the City specifically approves a delay caused by the
occurrence of conditions beyond Franchisee's control. Franchisee shall pay to the City One
Thousand Dollars ($1,000) per day for each day or part thereof, the deficiency continues.
2. For material failure to provide data, documents, reports or information in a
timely manner as required by this Franchise Agreement or by Ordinance No. 97-20 as amended by
Ordinance No. 98-11 or as requested by the City consistent with FCC rules and regulations and all
other applicable law, Franchisee shall pay Two Hundred Fifty Dollars ($250.00) per day, or part
thereof, that each violation occurs or continues. For non-proprietary information, a violation would
C:~225~lg99~Aventura%Agreemen~s%TCi Franchise.0128Qpd 3 3
be deemed to have occurred when Franchisee fails to provide information by the date requested by
the City. If the information requested is considered proprietary by a court of competent jurisdiction,
no fine shall be imposed. For proprietary information, a violation would be deemed to have occurred
if the City disagrees with the Franchisee's explanation as to why the material is proprietary and a
final decision of a court of competent jurisdiction upholds the City' s determination.
3. For failure to comply with any other provision of Ordinance No. 97-20 as
amended by Ordinance No. 98-1 i, or failure to comply with any other material provision of this
Franchise Agreement other than those specifically referenced above, or failure to comply with any
lawfill order of the City within thirty (30) days of receipt of notice of such non-compliance from the
City, Franchisee shall pay Two Hundred Fifty Dollars ($250) per day for each day, or part thereof,
that such non-compliance continues.
B. Before assessing liquidated damages against Franchisee, the City shall give
Franchisee written notice of the alleged violation and its intention to assess such damages, which
notice shall contain a description of the alleged violation. Following receipt of such notice,
Franchisee shall cure or commence to cure and the Franchisee and the City shall have a thirty (30)
day period during which time Franchisee and the City shall make good faith reasonable efforts to
resolve the dispute in question. If the dispute is not resolved in that thirty (30) day period, the City
may after a public hearing collect liquidated damages owed, either through draw-down of the
security fund as provided in Section 33 of this Agreement, or through any other means allowed by
law provided however that no fines or liquidated damages shall be assessed while litigation is
pending in a court of competent jurisdiction.
C. Revocation or Termination of Franchise. Franchisee's franchise is subject to
revocation pursuant to Section 24 of Ordinance No. 97-20 as amended by Ordinance No. 98-11 for
, any (If the reasons set forth therein. In the event the City exercises its right to revoke the franchise,
the procedures set forth in Section 24 of Ordinance No. 97-20 as amended by Ordinance No. 98-11
shall apply.
Section 35. Area wide-Interconnection.
A. The City may request Franchisee to interconnect with any or all other cable systems
located within the City or serving subscribers within the City. Interconnection of systems shall
permit interactive transmission and reception of government and education access program material,
and may be done by direct cable connection, microwave link, satellite, or other appropriate method.
B. Upon receiving the request of the City to interconnect with cable systems, Franchisee
shall, where it does not own the affected system or systems, immediately initiate good faith
negotiations with the operators of the other affected system or systems in order that costs for
construction and operation of the interconnection link may be shared equitably among the systems.
Franchisee shall report to the City the results of such negotiation no later than thirty (30) days
after the City's request. Where Franchisee owns the affected system, Franchisee shall report to the
City on the timing, method and cost ofinterconnection within thirty (30) days of the City's request.
C. The Franchisee may be granted reasonable extensions of time to interconnect. The
City shall rescind its request to interconnect upon petition by the Franchisee to the City, if the City
finds that (1) the Franchisee has negotiated in good faith and has failed to obtain an approval from
the system or systems of the proposed interconnection; or (2) the cost of the interconnection would
be unreasonably high.
D. Franchisee shall make all reasonable efforts to cooperate with any designated access
organization, interconnection corporation, regional intercormection authority or City, county,
state or federal regulatory agency which may be hereafter established for the purpose of regulating,.
financing, or otherwise providing for the interconnection of cable systems beyond the
boundaries of the franchise area.
Section 36. Written Notice of Acceptance.
Prior to the Council resolution approving the grant of this franchise, Franchisee shall provide
the City Manager with written acceptance of all the terms and conditions of this Franchise
Agreement. Franchisee's failure to comply in full with this Section shall render this Franchise
Agreement and the franchise null and void with no further action by the City, unless the City
Manager agrees in writing to extend such period.
Section 37. Execution in Counterpart.
This Franchise Agreement may be executed in counterpart.
IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day
and 3'ear first xvritten above.
WITNESSES:
CITY OF AVENTURA, FLORIDA, a
municipal corporation of the State
of Florida
AS TO "CITY"
BY:
ERiC M. SOROKA
CITY MANAGER
AS TO "CITY"
ATTEST:
ENDORSED AS TO FORM AND LEGALITY
FOR THE USE AND RELIANCE OF THE
CiTY OF AVENTURA, FLORIDA ONLY
TERESA M. SMITH
CITY CLERK
CITY ATTOP, NEY
WITNESSES:
AS TO "FRANCHISEE"
AGREED TO AND ACCEPTED BY
FRANCHISEE:
BY:
DATE:
CITY OF AVENTURA
OFFICE OFTHECITY MANAGER
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
City Commission
Eric M. Soroka,
January 20, 1999
1998199 Budget Amendment Ordinance
Ist Reading February 2, 1999 City Commission Meeting Agenda Item
2"d Reading March 2, 1999 City Commission Meeting Agenda Item 9-/3
RECOMMENDATION
It is recommended that the City Commission adopt the attached budget amendment
Ordinance recognizing three (3) additional police officer positions funded by a Federal
Grant and one (1) Public Service Aide position in the Police Department.
BACKGROUND
The attached budget amendment addresses the following items:
Recognizes $75,000 from the Federal Grant Program - COPS Universal
Hiring Program to add three (3) police officer positions. Provides the
remaining funding until September 30, 1999, for the positions from the
General Fund in the amount of $24,000.
Adds two (2) Public Service Aide positions and one (1) Police Officer
assigned to the motorcycle squad to assist in responding to traffic related
problems as discussed at the January Workshop Meeting. Funding is
provided for the remainder o~ the year in the amount of $75,000. The
impact to the annual budget in tne future will be approximately $100,000,
not including normal increases.
Reclassify one position to Lieutenant to provide proper span of control
and supervision in the Patrol function. With the approval of this budget
amendment, the Police Department has grown 20% in the last eight
months. Funding is provided for the remainder of the year in the amount
of $6,000.
The number of sworn police officers will be 61 after the budget amendment is adopted.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
cc0701-99
ORDINANCE NO. 99-__
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, AMENDING ORDINANCE
NO. 98-22, WHICH ORDINANCE ADOPTED A BUDGET
FOR THE 1998/99 FISCAL YEAR BY REVISING THE
1998/99 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 1998/99 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.
Section2. The City Commission hereby authorizes the amendment of
Ordinance No. 98-22, which Ordinance adopted a budget for the 1998199 fiscal year,
by revising the 1998/99 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. 99-__
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
Holzberg, and upon being put to a vote, the vote was as follows:
Commissioner Arthur Berger yes
Commissioner Jay R. Beskin absent
Commissioner Ken Cohen yes
Commissioner Jeffrey M. Perlow yes
Commissioner Patricia Rogers-Libert yes
Vice Mayor Harry Holzberg yes
Mayor Arthur I. Snyder yes
The foregoing Ordinance was offered by Commissioner
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 Arthur Berger
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia Rogers-Libert
Vice Mayor Harry Holzberg
Mayor Arthur I. Snyder
PASSED AND ADOPTED on first reading this 2"~day of February, 1999.
2
Ordinance No. 99-
Page 3
PASSED AND ADOPTED on second reading this 2"d day of March, 1999.
ARTHURI. SNYDER, MAYOR
ATTEST:
TERESA M. SMITH, CMC
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
tms
3
EXHIBIT A
Budget Amendment
REVENUES
General Fand - 001
331220
InterQovernmental Revenues
COPS Federal Grant
SUBTOTAL
75,000 75,000
Total Amendments-Revenues
EXPENDITURES
PUBLIC SAFETY
1998~99
BUDGETARY ACCOUNT SUMMARY
001-200t-521
EXPENDITURES
1201
PERSONAL SERVICES
Employee Salaries
2,791,581 180,000 2,971,581
Position - Revisions
Number Description Action
2037-2040 Police Officers add
2806-2807 Police Service Aide add
2040 Police Officer delete
2203 Lieutenant add
CAPITAL BUDGET
O0t-80XX
6999
Non-Departmental -90- 590
Capital Reserve
SUBTOTAL
2,678,292 (105,000) 2,573,292
Total Amendments-Expenditures
TO:
FROM:
DATE:
SUBJECT:
CITY OF AVENTURA
OFFICE OF THE CITY MANAGER
MEMORANDUM
City Commission .~
Resolution Approving The Change of Control
Television Franchise From TCl to AT&T
Transfer of Cable
March 2, 1999 City Commission Meeting Agenda Item /~ -/~
RECOMMENDATION
It is recommended that the City Commission adopt the attached Resolution approving
the Change of Control of the Cable Television Franchise from TCI to AT&T.
BACKGROUND
The City's Cable Franchise Ordinance requires City Commission approval of the
proposed change of control of TCI to AT&T. The Ordinance and Cable Television
Franchise also provides that certain specific information on the proposed transaction,
including details on legal, financial, technical and other qualifications, be submitted and
reviewed by the City. In addition, the applicant was required to provide written
acceptance of the terms and conditions of the Franchise Agreement as evidenced by
Exhibit "A" attached hereto.
Based on a careful review of the information provided to the City, the City's cable
television legal firm, Leibowitz & Associates, P.A., and I recommend approval of the
transfer.
If you have any questions, please feel free to contact me.
EMS/aca
Attachment
CC0719-99
· n ' o2,o 99 i :4. P nnz,nio
I-EIBOWITZ & ~L$$OCIATE$, P,.~,
February 2, 1999
Via Facsimile ~ (305) 466-8919
Eric M. Soroka
City Manager
City of Aventura
2999 NE 19P* Street, Suite 500
Aventura, FL 33180
ac:
City of Aventura, Florida
TCI Cable Television Franchise
Change of Control to AT&T
Dear Eric:
The City of Aventura is now in receipt of an executed Cable Television Franchise Agreement
from TCI. It is the intent of the City to grant the Franchise pUrSuant to an Ordimance, the ftrst
reading of which is scheduled for tonight, February 2, 1999 and the second reading for Fe~,
1999. St~,~.~-. ~.
On February 1, 1999, TCI and AT&T submitted to the Ci~ F request for change ofconlrol
of TCI to AT&T. Assuming that the City grant$ the Franchise on tt~31~, 1999, at this time the
Law Firm would recotnmend that the City schedule consideration of thc change of control for the
same meeting. Accordingly, attached hereto please find a recommended resolution and an affidavit
executed by David Krone, Executive Vice Presidem, Government Relations for TCL Prior Io the
February 16, 1999 meeting, Mr. Krone will obtain the reqtfisite AI&I signature.
Furthemaore, please be advised that TCI and MediaOne have entered into an agreement
whereby TCI South Florida cable systems will be transferred to MediaOne. U'pon receipt of an
application to the City xvith respect to such transtar, we will advise you of all relevant issues and
prepare the necessary documents.
Please do not hesitate to Contact me should you have any questions with respect to this
matter.
cc: David Wolpin, Esq.
Siucerely,
hi.. Feld, Esq.
~305 530 9aia' L~IBi~I~Z AS~OCIAT~o Oa~Ol/9~ [O:S'S t'.O0~ UO~
Sherman & Howard
January29,1999
lia Feld, Esq.
Leibowltz & Associates, P.A.
Su/te 1450
Suntrust international Center
One Southeast Third Avenue
Miami, Florida 33131-1715
VIA FEDERAL EXPRESS
Re: AT&T/TCI Merger - Application for Consent
Dear Ms. Feld:
On behalfofTCI TKR of South Florid~, Inc. ("Franchisee"), we hereby apply [hr
consent of Oae City of Aventura, Florida to the chmtge of control of Franclfisee fi:om Tele-
Communications, Inc. to AT&T Corp. pursuant to the cable television franchise between the City
and Franchisee. Enclosed for your review is certain inlbrmation concerning the change of control
and AT&T. This application is made pursuant to the franchise and is not made pursuant to FCC
Form 394.
If you have any questions concerning the foregoing, plemse feel free to give me a call.
S,
Leslie A_ Nichols
LAN/cml
Enclosure
cc: Mr. Mike Woods
RESOLUTION NO. 99-._
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF AVENTURA, FLORIDA APPROVING THE CHANGE OF
CONTROL OF THE TCI TKR OF SOUTH FLORIDA, INC
CABLE TELEVISION FRANCHISE FROM TCI TO AT&T
CORP.; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on February 1, 1999, the City of Aventura, Florida received
notification of the proposed change of control of the TCl TKR of South Florida, Inc.
("TCI-SF") cable television franchise from TCI to AT&T Corp.; and
WHEREAS, pursuant to Ordinance No. 97-20, as amended by Ordinance No. 98-
11, of the City of Aventura (the "Ordinance"), and the TCI-SF Franchise Agreement
granted pursuant to Ordinance No..__ (the "Franchise"), no such change of control
may occur without prior approval of the City Commission; and
WHEREAS, pursuant to Section 6(D), Section 9 and Section 23 of the Cable
Television Ordinance and Section 29 of the TCI-SF Cable Television Franchise, any
change of control of the Franchisee or transfer of the franchise is prohibited without
prior authorization of the City; and
WHEREAS, the City shall act upon TCI's application on the condition that the City
Commission has passed and adopted the Ordinance granting to TCI a Franchise and
pursuant to TCI's express consent that the City waives no rights under federal, state
and local law and the Ordinance and the Franchise by scheduling consideration of the
change of control; and
WHEREAS, the City has required written acceptance from TCI-SF and AT&T
Corp. of the terms and conditions of this Resolution by affidavit as a condition precedent
to the adoption of this Resolution (affidavit attached hereto as Exhibit A);
Resolution No. 99-__
Page 2
WHEREAS, in the event the proposed transaction between TCl and AT&T Corp.
is not consummated 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 application and exhibits thereto, submitted to the City on February 1, 1999, this
Resolution, together with the affidavits of acceptance submitted by the proposed
transferor and transferee, shall be null and void.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF AVENTURA, THAT:
1. To the extent required, the City of Aventura hereby consents to the change of
control of the TCI-SF Cable Television Franchise from TCI to AT&T Corp.
2. That the consent granted herein does not constitute and should not be
construed to constitute a waiver or release of any obligations of TCI under cable
Ordinance No. 97-20 as amended by Ordinance No. 98-11 and the cable television
franchise.
3. That the consent granted herein does not and should not be construed to
constitute a waiver of any right of the City under applicable law including, but not limited
to Cable Television Ordinance No. 97-20, as amended by Ordinance No. 98-11 and 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 thereto.
4. That the consent herein granted is conditioned upon (a) TCI-SF's assurances set
forth in its affidavit submitted to the City on January 28, 1999 and attached hereto as
Exhibit A; (b) TCI-SF's submission to the City of cost recovery all costs incurred by the
Resolution No. 99-
Page 3
City related to this transfer proceeding pursuant to Sections 9(I) and 10(F) of Cable
Television Ordinance 97-20 and all payments due under Section 16B of the Franchise.
5. That the consent herein granted is limited to the right to provide cable
services, and to the extent not otherwise prohibited by applicable law, TCI-SF shall be
required to obtain any lawful permission from the City, prior to its providing any other
services within the City.
6. That this Resolution shall have the force and effect of continuing the
agreement between TCI-SF and the City of Aventura, Florida, the Franchise Authority.
7. That the City hereby reserves all of its rights pursuant to federal, state 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 TCI-SF;
(b) the franchise transfer process including, but not limited to, the right to act upon any
application to sell, assign or otherwise transfer controlling ownership of the cable
system; and (c) the enforcement of the current Cable Television Ordinance No. 97-20
as amended by Ordinance No. 98-11 and the current Cable Television Franchise as
amended.
8. That the consent herein granted is an express non-waiver and express
reservation of the City's rights and authority with respect to enforcement of TCI-SF's
compliance with applicable law including, but not limited to Cable Television Ordinance
No. 97-20 and 98-11 as amended and the current cable television franchise as
amended. TCI-SF, and to the extent required by the franchise or allowed pursuant to
applicable law its parent, affiliates and subsidiaries, shall be liable for any and all
violations of said law and agreement notwithstanding whether any such violation arose
Resolution No. 99-__
Page 4
prior to the effective date hereof. The City's approval of the transaction shall in no way
be deemed a representation by the City that TCI-SF is in compliance with its obligation
under Cable Television Ordinance 97-20 as amended by Ordinance No. 98-11 or the
Franchise Agreement.
9. That the consent granted herein is subject to TCI-SF's compliance with all
other applicable legal requirements and the City does not waive and expressly reserves
the right to enforce full compliance with applicable Ordinance and Franchise
requirements, whether or not any noncompliance that may be determined arose before
or after the change of control of the TCI-SF franchise from TCI to AT&T Corp.
10. That this Resolution shall become effective upon the date of its adoption
herein.
The foregoing Resolution was offered by , who moved its
adoption. The motion was seconded by , and upon being put to a
vote, the vote was as follows:
Commissioner Arthur Berger
Commissioner Jay R Beskin
Commissioner Ken Cohen
Commissioner Jeffrey M. Perlow
Commissioner Patricia Rogers-Libert
Vice Mayor Harry Holzberg
Mayor Arthur I. Snyder
PASSED AND ADOPTED this 2nd day of March, 1999.
ATTEST:
TERESA M. SMITH, CMC, CITY CLERK
ARTHURI. SNYDER, MAYOR
APPROVED AS TO LEGAL SUFFICIENCY:
CITY ATTORNEY
15:10 ~.002/005
EXI~IIBIT A
UNCONDITIONAL ACCEPTANCE
OF TERMS OF RESOLUTION NO. 99-
BEFORE ME, appeared thc undersigned anthodty who having been duly sworn upon his oath
deposes and states that:
1. Thc affiant i~ the Executive Vice President, Government Relations of TCI
Communications, Inc., and is the person anthodzed to execute this document on behalf o£ the
TCITKR of South Florida, [nc.
2. The affuant is submitting this affidavit as a condition precedent to the change of
contxol of the TC[TKR of South Florida, Inc. ("TCI~SF") cable television f~uchlse from TCI to
AT&T.
3. Affiant attests that TCI-SF is a CLU'Xent [i'anchisee in the City of Aventu~, Florida and
that the Franchisee shall comply with the teuna of this accepta~2ce.
4. Franchisee and/or its successors in interest shall rchnburs¢ thc City for all costs
incurred by the Cily related to the trane[er process pursuant to Sections 9(r) and I0 (F) of Cable
Telev~ion Oral,Once 97-20 as amended by Ordinance No. 98-I i. Keceipt o£paymcat by the City
of tlds obligation shall bc acknowledged upon reecipt o£payments in the amount of Forty Thousm]d
Dollars ($40,000.00) pursuant to Section 1603) of the Franch{s¢.
5. At thc request o f the Cits,, Fraacl2ise.~ shall demonstrate camplianec with the technical
obligations set forth in the Ordinance and F~:anchisc or in the alt~aative, shail provide thc City with
an acceptable Plan of Compliance.
any possible franchise Fe~ arrearages that may have arisen_or, that may arise through the exclusion
of certain revenue streams.
7. In the event Franchisee offers cable Interact services over its cable system in the City
of Aventura, it shall, taking into aeeoant teehnleal feasibility, provide access to its cable modem
platform to providers of Intemet access and online services on ~mparable terms and conditions to
those terms and conditions on which access is provided by Fnmehisee in any other community.
Franchisee shall comply with all lawful requirements with respect Io access to Franchis~;s cable
modem platform for providers oflnternet azcnss and online services.
8_ Frimchisee shall ~omply with all other applicable legal requirements, haeludiag
carriage ofbroaflcag digital and high definition television sig,~al~, and intereonneetioa of the cable
system with potential competitors for purposes, among other thln~, of sharing cable PEG channel~
as required by the Franchise Agreement or applicable law.
9. To the extent not p~ohibited by applicable law, the Franchisee agrees that cable
lmemet, services, including, but not limited to, (~ Home, Roadrmner mxd Media Express or similar
services, provided by the Franchisee, ils parent, affiliates or subsidiaries, over the cable system shall
be deemed "cable services" as provided under Title VI of the Commtmicahons Act of 1934, as
amended. Revenues received by Fmuehisee, and to fl~e ex, eat consistent with the Franchise
Agreement and not specifically prohibited by applicable law, its parent, affiliates, or subsidiaries,
from such services provided over the Franchi.w~'s cable system, includiag, but not limi.ted to. cable
modem equipment, advertising and sales revenues, shall be included within the definition oflyoss
Franchisee shall cooperate m any franchise fee comp/iance inquitT'in comaectib~ with'
revenues for the purpose of the franchise fee calculation to the maxiroum extert.t requi~_ed_by:~e.
FtunchLse Agreement and consistent with applicable law. It is the intent of the parties that this
paragraph applies no roore broadly than the existing cable television franchise with respect to other
cable services.
10. Franchisee acknowledges that the Legislative History of the 1992 Cable Act
COntemplates that the City may address any deficiencies in service, including non-complLanee, at the
time of any troffer or change of control of the franchise_ The Franchisee agrees to ensure that it
assumes responsibility for any and al] non-eorop[iance uuder the current fiaxaehise that roay now ex/st
or may later be discovered to have existed during the temt of the fi'anehise e~en if prior to the closing
of the transfer of conn-ol.
t 1. Franchisee unconditionally accepts all terms and conditions of Resolufion No. 99-
12. This Exhibit A may be signed in counterparts.
FURTHER AFFIANT SAYETH NAUGHT.
AT&T-CORP. hereby ac~pts the terms and
conditions of this affidavi~ and Resolution No.
and agrees to do ~verything necessary to
ensure compliance therewith
www~herald.com
www.elherald.com
PUBLISHED DALLY
MIAMI-DADE-FLORIDA
STATE OF FLORIDA
COUNTY OF DADE
Before the undersigned authority personally
appeared:
JANEY ANDERSON
who o~i oath says that he/she is
CUSTODIAN OF RECORDS
of The Miami Herald, a daily newspaper published at
Miami in Dade County, Florida; that the attached
copy of advertisement was published in said
newspaper in the issues of:
FEBRUARY 19, 1999
Affiant further says that the said The Miami Herald
is a newspaper published at Miami, in the said Dade
County, Florida and that the said newspaper has
heretofore been continuously published in said Dade
County, Florida each day and has been entered as
second class mail matter at the post office in Miami,'
in said Dade County, Florida, for a period of one
year next preceding the £n-st publication of the
attached copy of advertisement; and affiant further
says that he has neither paid nor promised any
person, fn-m or corporation any discount, rebate,
commission or refund for the purpose of securing
this advertisement for publication in the said
newspapers(s).
Swoni to and subscribed before me this
22 BAY OF FEBRUARY , 1999
My Commission
Expires: Octobei~p2001 .
// Virginia J. ~ailollt%fl' .~
NOTICE OF EXTENSION OF DURATIO
BUILDING MORATORIUM CONCERNING-
BUILDING HEIGHT LIMITATIONS :}i
The City of Aventura proposes to adopt the follo~w~m~
Ordinance: :z
AN ORDINANCE OF THE CITY OF
FLORIDA EXTENDING THE DURATION OF
EXISTING BUILDING MORATORIUM ON
ISSUANCE OF DEVELOPMENT ORDERS
DEVELOPMENT PERMITS WITHIN THE C~I~,
CONCERNING BUILDING HEIGHT MMITATION~i;:
AS PREVIOUSLY IMPOSED PURSUANT
ORDINANCE NO. 98-20 OF THE ~ OF-~
AVENTURA; BY AMENDING SECTION 7 TERM~
OF ORDINANCE L NO. 98-20 TO PROVIDE FOR';:
EXTENSION OF SUCH MORATORIUM, SO AS TO
ENABLE CITY'S LAND DEVELOPMENT:"
REGULATIONS TO BE COMPLETED ANO~''I
IMPLEMENTED; PROVIDING FOR SEVERABILI'F~,j?~
PROVIDING FOR AN EFFECTIVE DATE.
A Public Hearing for first reading of the Ordinance will~'6
held on Tuesday, March 2, 1999, at 6 p.m. at the Bisca..~.tl;
Medical 'Arts Building, lOCated at 21110 Bisc~§~
Boulevard, Suite 101, Aventura, Florida. The propo;s~d
Ordinance may be inspected by the public at the OffiCe
the City Clerk, 2999 N.E. 191st Street, Suite
Aventura, Florida. Interested parties may appear
Public Hearing and be heard with respect tO the p
Ordinance Any person wishing to address
Commission on any item at this Public Hearing is
r. egister with the City Clerk prior to, that item being
In accordance with the Americans with Disabilities Ac[';~f'
1990, al per,sons who are disabled and
aecommodahons to participate in th s
of that disability should contact y CleJ'~
305-466-8901, not later than two business days prio[~:
such proceedings. ,. ....
If a person decides to appeal any decision made by;
City Commission with respect to any. matter consid
a meeting or hearing, that person w~ll need a record of,t.l~:;.
proceedings and, for such purpose, may need to ensure
that a verbatim record of. the _proceedings,. is made, ,-~i°~':
record includes the teshmony and ewaence upon
the appeal is to be based
Dated this 19th day of February, 1999. Teresa M. Smith. CMP~,
CITY OF AVENTURA
Ordinance 96-09
Disclosure of Verbal Contact
Agenda Item: Item No. :. ]"~ of
199 c/ agenda of the Aventura City Commission.
Date of Verbal Communication:
Identity of Person or Entity Making Communication:
Subject and Substance of Communication:
Filed this
Respectfully,
Commission or Board Member
Receiving Communicatio. n/.~
N a'-me ./
day of ? ~ ~, 199~.
Clerk / Socreta~
MIAMI DAILY BUSINESS REVIEW
Published Daily except Saturday, Sunday and
Legal Holidays
Miami, Dade County, Florida.
STATE OF FLORIDA
COUNTY OF DADE:
Before the undersigned authority personally appeared
Octelma V. Ferbeyr., who on oath says that she Is the
Supervisor, Legal Notices of the Miami Dally Business
Review f/kla Miami Review, a dally (except saturday, SUnday
and Legal Holidays) newspaper, published at Miami In Dade
County, Florida; that the attached copy of advertisement,
betng a Legal Advertisement of Nottce In the matter of
CITY OF AVENTURA
NOTICE OF PUBLIC HEARING
APPI.ICANT NAME: THE CHEMIST
APPLICATION NO. 03-VAR-99
XXXXX
In the ................................................................................ Court,
""'11"/'I1'1J"fJ1~ salf' I)~per In Ihe lsaue. 01
Affiant further says thai the said Miami Dally Business
Review Is a newspaper published at Miami In said Dade
County, Florida, and that the said newspaper has heretofore
been continuously published In said Dade County, Florida,
each day (except saturday, Sunday and Legal HolidayS) and
has been entered as second class mall matter at the post
office In Miami In said Dade County, Florida, tor a period of
one year next preceding the first publication of the attached
copy of .advertisement; and affiant furt that she has
neither paid promised any , or orporaUon
any disc rebate, comml re nd tor purpose
of secu 9 t advertl llcat! In the said
n per
I
DATE AND TIlliE OF
PUBLIC HEARING:
APPLteANT NAME:
Tuesdey, March 2. 1999
8:00 p.m.
The Chemlsl
APPLICANT REQUEST: The applicant i. requesting 8fte' PI.n
approval in conjundion with the following non-use variance as
prompted by the FlOrida lJe!lar1ment of Tl8JlSIlOrlation (FOOT) Isking
of a portion of the subject property:
1. Variance from Section 33 of the Miami-Dade County Code
requiring a fifteen (15) fool _ streel setback (from Biscayne
Boulevard) where a ten (10) fooIsalbeck i. proposed;
The following requests are alSO: being made:
2. Reie... of ReeoIUlion No. 3-ZA&449-85 which granted UnusUal
Use approval to parmil a pelm reading perior; and
3. Variance .from Section 33 of the MIaml-Oade County Code
requiring a decorative maaonry wallsalback len (10) feet from the
official right-of-way line et the rear of Ihe lot (NE 28 Avenue),
where the businase lot lie. aerosa the streal from RU zoned
property, where lhe pmvIaion 01 no _atlve wall i. proposed:
and
4. Variance trom Section 33 of the Miami-Dade County Code
requiring a ten-toot strip of landscaping between a decorative
masanrywall and a property line,. where the business lot lies
across the street from AU zoned property, where the provision of
saven-foot strip of landscaping Is proposed; and
5. Variance. from Section 33 of the Miami-Oade County Code
requiring a twenty (20) fool resr setback (from NE 28 Avenue)
where a fifteen (15) foot setback Is proposed; and
6. Variance from Section 33 of the Miami-Dade County Code
prohibiting parking spaces requiring exiting cars to back out into
an adjaCent private or public street where..the provision of two (2)
such spaces is proposed.
APPLICATION NUMBERS: 03-VAR-99
LOCATION OF
SUBJECT PROPERTY:
LEGAL DESCRIPTION:
20705 Biacayne Boulevard
l.llIs 1 through 5. Block 6, HAUANOALE
PARK 19, Plst Boo~ 23. Pego 26, Miami-
Oada County. Florida.
Plans are on file and may be exammed -during regular business
hours in the City. of Aventura Community DeWlopment DepIIrt-
menl. 2999 Nf..Ul StrM~ Sulle 500. A_ro, Florida, 33180.
Plans may be mOdified at or before the Public Hearing. The application
may change during tt:'e _hea.!'"g process.
The Public HearIng wiI1 be held al Biaceyne _Ical Arlo Building,
21110 Blscay",,~....s. Bulle 101. A_ra, FIorlcle 33180.
Your oommentslllMcbe made In _ at the hearing QI'.Jile9 In
writing" prior to. ~ date. . Reier . to appItcant/pIopIIfty- on
Corres~ and maIl'lama 10 CIty III Aventura, Community
llaveIopmenl llapar1n*>l, 2999 NE 1.1 s-. Bulle 500,
A_IUra, Florlcle, 33180. For further Infonnafion. pia... can (306)
468-ll94O. .
In 8CCOrdence lIlriIh the AmerIcana lIlriIh Oiaabilitlea Ad of 1990. ell
persona Who era dIaebIed and Who need special _Ilona to
perticipate In \hla pnlC8edIng _ oflhet dlsab!AIy _ contact
the 0lfictI 01 the City Clerk. (306) 466-8101.. not later \herI -
business c1aya prior to such procaedlngs.
If a person _ to appeeI any cIacIaIoil made by the City
Commlasion lIlriIh reepacllO any matter consIdared 01 a "-Ing or
heering. thai person will need a r1lCXlrd of the proc:aedInga and. for
such purpoea, may need to -.re. thai a _ record 01 the
procll8CIInge Ie made. which record Includaa the _many. and
evIdanca upon which the apP8alla to be basad.
Tarasa M. Smith. CMC. City Clerk
99~I924M
~9
MIAMI DALLY BUSINESS REVIEW
Published Daily except Saturday, Sunday and
Legal Holidays
Miami, Dade County, Florida.
STATE OF FLORIDA
COUNTY OF DADE:
Before the undersigned authority personally appeared
Octstma V. Ferbeyre, who on oath says that she is the
Supervisor, Legal Notices of the Miami Daily Business
Review f/k/a Miami Review, a daily (except Saturday, Sunday
and Legal Holidays) newspaper, published at Miami in Dede
County, Florida; that the attached copy of advertisement,
being a Legal Adveffisement of Notice in the matter of
CiTY OF AVENTURA
NOTi[C[', OF' P[JBL/C HEA~INC
APPI, iCANT NAMiE: AVENT[JRA
MAil,I, VEN'I'[JR P~
APPLICATION NO. 02-VAR~99
xxxxx
in the ................................................................................ Court,
wa~ j~lqlie~le~ in sst~l~per in the issues of
Affiant further says that the said Miami Daily Business
Review is a newspaper published at Miami in sstd Dada
County, Florida, and that the said newspaper has heretofore
been continuously published in said Dada County, Florida,
each day (except Saturday, Sunday and Legal Holidays) and
has been entered as second class mall matter at the post
office in Miami In said Dade County, Florida, for a period of
one year next preceding the first publication of the attached
copy of advertieement; and affiant f rther says that she has
neither p d nor promised firm or corporation
any di onnt rebare, c nd for the purpose
not u this edv licatlon in the said
J ~OFi'~O' JUNEE 23,2000 ,
DATE AND TIME OF
PUBLIC HEARING:
APPLICANT NAME:
APPLICANT REQUEST:
CITY OF AVENTURA
NOTICE OF PUBLIC HEARING
Tuesday, March 2, 1999
6:00 p,m.
Aventura Mall Venture
The applicant is requesting a non-usa
verianca to allow an unefldesed cou~ard
ara~ at Aventura Mall to be considered as
interior space.
APPLICATION NUMBER: 02.VAR-99
LOCATION OF
SUBJECT PROPERTY:
LEGAL DESCRIPTION:
SIZE OF
SUBJECT PROPERTY:
19501 Biscayne Boulevard
Tract "Q', Aventura 6th Addition as
recorded in Plat Book 120, page 20 of the
Pu~ic Records of Dada County
Approximately 97.962 acres
Plans are on file and may be examined during regular business
hours in the City of Aventura, Community Development Depart-
ment, 2999 NE 191 Street, Suite 500, Aventura, Florida, 33180.
Plans may be modilied at or before the Public Hearing, The apl~lication
may change during the headng process.
The Public Hearing will be held at Blecayne Medical Arte Building,
21110 Biscayne Boulevard, Suite 101, Ave~tore, Florida 33180.
Your comments may be made in person at the hearing or filed in
writing prior to the hearing date. Refer to applicant/property on
correspondence and mail same to City of Aventura, Community
Development Department, 2999 NE 191 Street, Suite 500,
Aventura, Florida, 33180. For further information+ please call (305)
466-8940.
In accordance with the Americans with Disabilities Act of 1990, all
persons who are disabled and who need special accommodations to
participate in this proceeding because of that diesbility should contact
the Office of the City Clerk, (305) 466-8901, not tater than two
business days prior to such procaed~ngs.
If a person decides to appeal any decision made by the City
Commission with respect to any matter considered at a meeting or
hearing, that person will need a record o! 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 ~ppeal is to be based.
Teresa M. Smith, CMC, City Clerk
2/19 gg-3-021925M
.'~
,;,>,"iF ,:'\6
.._-;"J~~
1'::::"''''1'::: \
~~:i'
~<>~ q,
<>~ OfExce~
CITY OF AVENTURA
Ordinance 96-09
Disclosure of Verbal Contact
Agenda Item: J {: A Item No, of q - ;L -
199 L agenda of the Aventura City Commission.
Date of Verbal Communication:
1',}~'/i
Identity of Per~<;>n or Entity Maklng Communication:
S c- "/I ",-0,7 1-':' ,..1
Subject and Substance of Communication:
-7//:' (;//c" c'/';> , f Il,c ~.
- /
,.k< /ck'; ;/'
//
Respectfully,
Filed this ~ day of
Commission or Board Member
Receiving communica, tion: /
/~ A' Jo! Y /0 ~/ fl c- /! /..-
Name~-, ,//:
s;J~S~>)~/ ~(~'~J
~~ ,19 7!9.
Clerk I Secretary
A~, FlORIDA 33131
PARCEl 104
.RV!Y RUVlN. CLERK OF THE
lCUfT COUftT. M1~
UNTV
-'MI.DADE COUNTY COURTHOUSE
WEST FLAGLEA ST.
-.MI, FL 33130
PARCEL 104
IONY WAYNE RIVERA, AS THe
SURVIVING DIRECTOR OF
DRIVE LIMOUSINE. A
ILVED FLORIDA CORPORATION
l: ANTHONY WAYNE RIVERA.
IUSTEE OF DECO DRIVE
JSINE. INC.. A DISSOLVED
DA CORPORATION
rw 1ST AVENUE '2308
t. FLORIDA 33138
PARCEL 104
ie. MV"" or c18lm1ng to have My
Id in theM procHdWlg. who .r.
IOIIH. gr.nt.... creditor.. l!enol',
. heir.. or devileq of any SUCh
ther p.rtle, cfalmlng by, through,
Id " d.ad. their unknown '1MKl".
ther Pllrtle, clelmlnll by. through
, hllvlng or claiming to heve My
!bed In the Pet/tlon, to.wit:
~MENT: 249937 1)
AIlE COUNTY
liGHT OF WAY
SECTION 87000-2595
'DDlTION. .ccordlng .to the PI.t
, of the Pullllc Record. of Dade
South. Rllnge 41 E.at.
FLORIDA CORPORA nON.
,R. Book 15991.t P.ge 3419 in
l ENTERPRISES OF AMERICA,
'ATION.
R. Book 1828981 Pege 0009 '"
l ENTERPRISES OF AMERICA,
IAnON.
DUTY FREE AIR AND SHIP
RIDA CORPORATION, "neney
~THONY WAYNe RIVERA.'"
DIRECTOR OF..PKO __
~D FLORIDA C~An~~;..
ed 10 aCquire Ch. .Ioled..cribtd
-- -,_.. -._._...~-~ - ---
-. - .-.--.... ..
CITY OF AVENTURA
PUBLIC NOTICE
OF PROPOSI!D ORDINANCES
NOTICE IS HEREBY GIVEN that on Tuesday, the 2nd day of
MIlCh, 1998, at a maeting of Ihe City Commission of the City of
Avenlura, 10 be held al 8:00 p.m. In the Commission Meeting Room at
the Biscayne Medical Aria Building, 21110 Biocayne Boulevard,Suite
101, Avenlura, Florida, the City Commission will oonslder the adoption
of the following Ordinances on eeoond reading, entitled:
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA,
AUTHORIZING THE CITY MANAGER TO EXECUTE THE
ATTACHED CABLE FRANCHISE AGREEMENT BY AND
BETWEEN THE CITY AND TCI TKR OF SOUTH FLORIDA.
INC.; AUTHORIZING THE CITY MANAGER TO DO ALL
THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS
ORDINANCE; AND PROVIDING AN EFFECTIVE DATE.
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY OF AVENTURA, FlORIDA, AMENDING ORDINANCE
NO. 98-22, WHICH ORDINANCE ADOPTED A BUDGET
FOR THE 1998199 FISCAL YEAR BY REVJSING THE
1998199 FISCAl YEAR OPERATING AND CAPITAL
BUDGET AS OUTLINED IN EXHIBIT W ATTACHED
HERETO: AUTHORIZING THE CITY MANAGER TO DO ALL
THINGS "IECESSARY TO CARRY OUT THE AIMS OF THIS
ORDINANCE; PROVIDING FOR AN EFFECTIVE DATE.
The propoeed Ordinances may be lnIpeoted by the public at lha
OffIce of the City Clerk, 2998 N.E. 191at Slreet.Sulte 500, Avenlu,a,
Florida. In_ed palli.. may appear et the Public Hearing and be
haard with _ to the Proposed Ordinances. Any person wishing to
address the City ~Commission on any item at IhisPublic Hearing is
asked to ragiater with the City Clerk prior 10 lhatltem being haard.
In llCOOrdenoe with the Americana with Diaabilltiee Act of 1990, all
persons who Bra disabled and who Mod special acoommodations 10
psrticipate in Ihis prooeeding beesu.. of lhat disability should conlacl
the Office of the City Clerk, 305-466-8901, not later Ihan two businase
days prio, to ouch fJl'OCOOdIngs.
" a person decides 10 appeal lInY decision made by the City
CommiKion with respect 10 any matter considered at a meeting or
hearing. that person will- need a record of the proceedings and, for
such purpose, may need to ensure that 8 verbatim record of the
proceedings is made, which raoord Includes the lestimony and
evidence upon which the appeal ia to be baeed.
Dated February 9, 1998.
Te_ M. Smith, CMC, City Clerk
'lJ9 99-4-()2091OM
NOTICE OF SETTLEMENT
Stac.y IIcN.n
Vs.
Stat. '"'.. Florida and ....De...rtm.nt
of Transportation . .
t::t~e ~r:.~ :.~:"~~'(~9~a~j
against the ineullld, for the total amounl 01 $27,500.00 10 be paid by
State of Aorida to-the claimant. _
Roger Smilh
Riak Management Program Specialist.
'lJ9
99-4-020967M