Tab 1F Resolution 424-2007EXHIBIT F
RESOLUTION NO. 424 -200
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
AMENDING AND SUPPLEMENTING RESOLUTION
NO. 077-2003 ADOPTED BY THE BOARD ON
FEBRUARY 19, 2003; AUTHORIZING THE
ACQUISITION, CONSTRUCTION AND EQUIPPING OF
VARIOUS CAPITAL IMPROVEMENTS WITHIN THE
COUNTY; AUTHORIZING THE ISSUANCE OF NOT TO
EXCEED $32,000,000 IN AGGREGATE PRINCIPAL
AMOUNT OF MONROE COUNTY, FLORIDA
INFRASTRUCTURE SALES SURTAX REVENUE
BONDS, SERIES 2007, IN ORDER TO FINANCE A
PORTION OF THE COSTS OF SUCH CAPITAL
IMPROVEMENTS; MAKING CERTAIN COVENANTS
AND AGREEMENTS IN CONNECTION WITH THE
ISSUANCE OF SUCH SERIES 2007 BONDS;
AUTHORIZING THE AWARDING OF SAID SERIES 2007
BONDS PURSUANT TO A PUBLIC BID; DELEGATING
CERTAIN AUTHORITY TO THE MAYOR AND THE
COUNTY ADMINISTRATOR FOR THE AWARD OF THE
SERIES 2007 BONDS AND THE APPROVAL OF THE
TERMS AND DETAIL; OF SAID SERIES 2007 BONDS;
APPOINTING THE PAYING AGENT AND REGISTRAR
FOR SAID SERIES 2007 BONDS; AUTHORIZING THE
DISTRIBUTION OF A PRELIMINARY OFFICIAL
STATEMENT AND THE EXECUTION AND DELIVERY
OF AN OFFICIAL STATEMENT WITH RESPECT
THERETO; ESTABLISHING A BOOK. -ENTRY SYSTEM
OF REGISTRATION FOR TIME SERIES 2007 BONDS;
AUTHORIZING THE EXECUTION AND DELIVE RY OF
A CONTINUING DISCLOSURE CERTIFICATE;
AUTHORIZING MUNICIPAL BOND INSURANCE FOR
THE BONDS; AUTHORIZING A RESERVE ACCOUNT
SURETY BOND WITH RESPECT TO THE BONDS;.
MAKING CERTAIN AMENDMENTS TO RESOLUTION
NO. 077-2003; AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA:
SECTION 1. FINDINGS AND AUTHORIZATIONS. It is hereby found
and determined that:
(A) On February 19, 2003, the Board of County Commissioners (the 'Board ")
of Monroe County, Florida (the "Issuer ") duly adopted Resolution No. 077 -2003 (as
supplemented, the "Resolution "), authorizing, among other things, the issuance of the
Issuer's Monroe County, Florida Infrastructure Sales Surtax Revenue Bonds, Series 2003
(the "Series 2003 Bonds "), for the principal purpose of financing the acquisition,
construction and equipping of various capital improvements.
(B) Certain additional capital improvements should be acquired, constructed
and equipped within the Issuer in order to improve the health, safety and welfare of the
Issuer's citizens. Such capital improvements are generally described in Exhibit A hereto
and are more particularly described in the records, plans and specifications on file with
the Issuer (the "Series 2007 Project "). The Series 2007 Project may be amended or
supplemented from time to time by the Board in accordance with the provisions of the
Resolution.
(C) The Resolution provides for the issuance of Additional Bonds, payable on a
parity with the Series 2003 Bonds, for the principal purpose of financing the acquisition,
construction and equipping of various capital improvements, upon meeting certain
requirements set forth in the Resolution.
(D) There is hereby authorized the financing of costs related to the acquisition,
construction and equipping of the Series 2007 Project, all in the manner provided by this
Supplemental Resolution and by the Resolution.
(E) - The Issuer deems it to be in its best interest to issue its Monroe County,
Florida Infrastructure Sales Surtax 'Revenue Bonds, Series 2007 (the "Series 2007
Bonds ") for the principal purpose of financing costs of the acquisition, construction and
equipping of the Series 2007 Project. The Series 2007 Bonds shall be issued on parity
with the Series 2003 Bonds pursuant to the terms of the Resolution.
(F) In accordance with Section 218.385, Florida Statutes, and pursuant to this
Supplemental Resolution, the Series 2007 Bonds shall be advertised for competitive bids
pursuant to the Official Notice of Sale, the form of which is attached hereto as Exhibit B
(the "Official Notice of Sale ").
(G) Pursuant to the Official Notice of Sale, competitive bids received in
accordance with the Official Notice of Sale on or prior to 10:00 a.m., Eastern Standard.
Time, on November 28, 2007 or such other date or time as is determined by the Mayor in
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accordance with the terms and provisions of the Official Notice of Sale, shall be publicly
opened and announced.
(I) Due to the present volatility and uncertainty of the market for tax- exempt
obligations such as the Series 2007 Bonds, it is desirable for the Issuer to be able to
advertise and award the Series 2007 Bonds at the most advantageous time and date which
shall be determined by the Mayor; and, accordingly, the Issuer hereby determines to
delegate the advertising and awarding of the Series 2007 Bonds to the Mayor, and in his
or her absence or unavailability, to the County Administrator, within the parameters
described herein.
(I) It is necessary and appropriate that the Board determine certain parameters
for the terms and details of the Series 2007 Bonds and to delegate certain authority to the
Mayor, and in his or her absence or unavailability, to the County Administrator for the
award of the Series 2007 Bonds and the approval of the terms of the Series 2007 Bonds
in accordance with the provisions hereof, of the Resolution and of the Official Notice of
Sale.
(J) In the event Bond Counsel shall determine that the Series 2007 Bonds have
not been awarded competitively in accordance with the provisions of Section 218.385,
Florida Statutes, the Board shall adopt such resolutions and make such findings as shall
be necessary to authorize and ratify a negotiated sale of the Series 2007 Bonds in
accordance with said Section 218.385.
(K) The covenants, pledges and conditions in the Resolution shall be applicable
to the Series 2007 Bonds herein authorized and said Series 2007 Bonds shall be on a
parity with and rank equally as to the lien on and source and security for payment from
the Pledged Funds (as defined in the Resolution) and in all other respects with the Series
2003 Bonds and all Additional Bonds hereafter issued pursuant to the Resolution, and
shall constitute "Bonds" within the meaning of the Resolution.
(L) No Event of Default (as defined in the Resolution) has occurred and is
continuing under the Resolution.
(M) It is necessary and desirable to amend the Resolution in certain respects in
order to clarify certain components of the Pledged Funds.
(I) The Resolution provides that the Series 2007 Bonds shall mature on such
dates and in such amounts, shall bear such rates of interest, shall be payable in such
places and shall be subject to such redemption provisions as shall be determined by, or
provided for in, a Supplemental Resolution adopted. by the Issuer, and it is now
appropriate that the Issuer set forth the parameters and mechanism to determine such
terms and details through a competitive sale in accordance with the provisions herein and
in the hereinafter described Official Notice of Sale.
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SECTION 2. DEFINITIONS. When used in this Supplemental
Resolution, the terms defined in the Resolution shall have the meanings therein stated,
except as such definitions may be hereinafter amended and defined.
SECTION 3. AUTHORITY FOR THIS SUPPLEMENTAL
RESOLUTION. This Supplemental Resolution is enacted pursuant to the provisions of
the Resolution and the Act.
SECTION 4. AUTHORIZATION OF THE SERIES 2007 PROJECT.
The Issuer hereby authorizes the acquisition, construction and equipping of the Series
2007 Project.
SECTION 5. AUTHORIZATION AND DESCRIPTION OF THE
SERIES 2007 BONDS. The Issuer hereby authorizes the issuance of a Series of Bonds
in the aggregate principal amount of not exceeding $32,000,000 to be known as the
"Monroe County, Florida Infrastructure Sales Surtax Revenue Bonds, Series 2007," (or
such other designation as the Mayor may determine) for the principal purpose of
providing moneys to finance costs of the acquisition, construction and equipping of the
Series 2007 Project. The actual aggregate principal amount of Series 2007 Bonds to be
issued shall be determined'by the Mayor provided such initial aggregate principal amount
does not exceed $32,000,000. The Series 2007 Bonds shall be dated as of their date of
delivery (or such earlier or later date as may be determined by, the Mayor), shall be issued
in the form of fully registered Bonds in the denomination of $5,000 principal amount or.
any integral multiple thereof, shall be numbered consecutively from one upward in order
of maturity preceded by the letter "R, "- and shall bear interest from their date of delivery
(or such other earlier or later date as may be determined by the Mayor), payable semi-
annually on each April 1 and October 1 (each date an "Interest Date "), - commencing on
April 1, 2008 (or such later date as may be determined by the Mayor).
Interest on the Series 2007 Bonds shall be payable by check or draft of U.S. Bank
National Association, Fort Lauderdale, Florida, as Paying Agent, made payable and
mailed to the Holder in whose name such Bond shall be registered at the close of business
on the date which shall be the fifteenth day (whether or not a business day) of the
calendar month -next preceding the applicable Interest Date, or, at the request of such
Holder, by bank wire transfer to the account of such Holder. Principal of the Series 2007
Bonds is payable to the Holder upon presentation, when due, at the designated corporate
trust office of U.S. Bank National Association, Fort Lauderdale, Florida, as Paying
Agent. The principal of, redemption premium, if any, and interest on the Series 2007
Bonds are payable in lawful money of the United States of America.
The Series 2007 Bonds shall bear interest at such rates and yields, shall mature on
April 1 of each of the years and in the principal amounts corresponding to such years as
determined by the Mayor subject to the provisions set forth in Section 6 hereof and the
provisions of the Official Notice of Sale. The final maturity of the Series 2007 Bonds
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shall not be later than April 1, 2018. All of the terms of the Series 2007 Bonds will be
included in a certificate to be executed by the Mayor following the award of the Series
2007 Bonds (the "Award Certificate ") and shall be set forth in the final Official Statement
as described herein. In the event the Mayor is unavailable to execute the Award
Certificate in a timely manner, the County Administrator is authorized to execute such
Award Certificate.
SECTION 6. AWARD OF SERIES 2007 BONDS. The Mayor, on behalf
of the Issuer and only in accordance with the terms hereof and of the Official Notice of
Sale, shall award the Series 2007 Bonds to the underwriter or underwriters that submit a
bid proposal which complies in all respects with the Resolution and the Official Notice of
Sale and offers to purchase the Series 2007 Bonds at the lowest true interest cost to the
Issuer, as calculated by the Issuer's Financial Advisor in accordance with the terms and
provisions of the Official Notice of Sale; provided, however, the Series 2007 Bonds shall
not be awarded to any bidder unless the true interest cost set forth in the winning bid (as
calculated by the Issuer's Financial Advisor) is equal to or less than 5.50 %. In
accordance with the provisions of the Official Notice of Sale, the Mayor may, in his or
her sole discretion, reject any and all bids.
SECTION 7. REDEMPTION PROVISIONS. The Series 2007 Bonds
shall not be subject to optional redemption prior to maturity. Term Bonds may be
established with such Amortization Installments in accordance with the provisions of the
Official Notice of Sale at the option of the winning bidder. The mandatory redemption
provisions for the Series 2007 Bonds; .if any, shall be set forth in the Award Certificate
and in the final Official Statement. -
SECTION 8. BOOK - ENTRY. Notwithstanding the provisions set forth in
Section 2.08 of the Resolution, the Series 2007 Bonds shall be initially issued in the form
of a separate single certificated fully registered Series 2007 Bond for each maturity.
Upon initial issuance, the ownership of the Series 2007 Bonds shall be registered in the
registration books kept by the Registrar in the name of Cede & Co., as nominee of The
Depository Trust Company ( "DTC "). As long as the Series 2007 Bonds shall be
registered in the name of Cede & Co., all payments on the Series 2007 Bonds shall be
made by the Paying Agent by check or draft or by bank wire transfer to Cede & Co., as
Holder of the Series 2007 Bonds.
With respect to Series 2007 Bonds registered in the registration books kept by the
Registrar in the name of Cede & Co., as nominee of DTC, the Issuer, the Registrar and
the Paying Agent shall have no responsibility or obligation to any direct or indirect
participant in the DTC book -entry program (a "Participant "). Without limiting the
immediately preceding sentence, the Issuer, the Registrar and the Paying Agent shall
have no responsibility or obligation with respect to (A) the accuracy of the records of
DTC, Cede & Co. or any Participant with respect to any ownership interest on the Series
2007 Bonds, (B) the delivery to any Participant or any other person other than a Series
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2007 Bondholder, as shown in the registration books kept by the Registrar, of any notice
with respect to the Series 2007 Bonds, or (C) the payment to any Participant or any other
person, other than a Series 2007 Bondholder, as shown in the registration books kept by
the Registrar, of any amount with respect to principal or interest of the Series 2007
Bonds. The Issuer, 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 Series 2007 Bond for the purpose of payment of
principal or interest with respect to such Series 2007 Bond, for the purpose of giving
notices and other matters with respect to such Series 2007 Bond, for the purpose of
registering transfers with respect to such Series 2007 Bond, and for all other purposes
whatsoever. The Paying Agent shall pay all principal or interest of the Series 2007
Bonds only to or upon the order of the respective Holders, as shown in the registration
books kept by the Registrar, or their respective attorneys duly authorized in writing, as
provided herein and in the Resolution and all such payments shall be valid and effective
to fully satisfy and discharge the Issuer's obligations with respect to payment of principal
or interest of the Series 2007 Bonds to the extent of the sum or sums so paid. No person
other than a Series 2007 Bondholder, as shown in the registration books kept by the
Registrar, shall receive a certificated Series 2007 Bond evidencing the obligation of the
Issuer to make payments of principal or interest pursuant to the provisions hereof. Upon
delivery by DTC to the Issuer of wriffen notice to the effect that DTC has determined-to
substitute a new nominee in place of Cede & Co., and subject to the provisions in Section
2.08 of the Resolution with respect to transfers during certain periods next preceding .an
interest payment date or the date a Borid has been selected for redemption, the words
"Cede & Co." in the Resolution shall refer to such new nominee of DTC; and upon
receipt of such notice, the Issuer shall promptly deliver a copy of the same to the
Registrar and the Paying Agent.
Upon (A) receipt by the Issuer of written notice from DTC (i) to the effect that a
continuation of the requirement that all of the outstanding Series 2007 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 such Series 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, or (B) determination by the Issuer, in its sole discretion, that such book -entry only
system should be discontinued by the Issuer, such Series 2007 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 shall be registered in whatever name or names
Holders shall designate, in accordance with the provisions of the Resolution. In such
event, the Issuer shall issue and the Registrar shall authenticate, transfer and exchange the
Series 2007 Bonds consistent with the terms of the Resolution, in denominations of
$5,000 or any integral multiple thereof to the holders thereof. The foregoing
notwithstanding, until such time as participation in the book-entry only system is
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discontinued, the provisions set forth in the existing Blanket Issuer Letter of
Representations previously executed by the Issuer and delivered to DTC shall apply to
the payment of principal and interest on the Series 2007 Bonds.
SECTION 9. FORM OF SERIES 2007 BONDS. The text of the Series
2007 Bonds, together with the Registrar's Certificate of Authentication shall be
substantially in the form of the bond set forth in Section 2.10 of the Resolution, with such
omissions, insertions and variations as may be necessary or desirable and authorized or
permitted by the Resolution or any subsequent resolution adopted prior to - the issuance
thereof, or as may be necessary to comply with applicable laws, rules and regulations of
the United States, the State of Florida and the Issuer in effect upon the issuance thereof.
SECTION 10. APPLICATION OF SERIES 2007 BOND PROCEEDS.
Subject in all respects to the award of the Series 2007 Bonds in accordance with this
Supplemental Resolution and the Official Notice of Sale, the proceeds derived from the
sale of the Series 2007 Bonds shall be applied by the Issuer simultaneously with the
delivery thereof as follows:
(A) Capitalized interest, if any, shall be deposited to the Interest Account and
shall be used only for the purpose of paying the interest which shall thereafter become
due on the Series 2007 Bonds. Any capitalized interest shall be held in trust solely for the
payment of the Series 2007 Bonds.
(B) A sufficient amount of Series 2007 Bond proceeds shall be used to pay the
premium for the hereinafter described Reserve Account Surety Bond to be issued by
MBIA Insurance Corporation, the face amount of which, together with all other amounts
on deposit in the Reserve Account, shall equal the Reserve Account Requirement for the
Bonds.
(C) A sufficient amount of the Series 2007 Bond proceeds shall be applied to
the payment of the premium of the hereinafter described Bond Insurance Policy
applicable to the Series 2007 Bonds and to the payment of costs and expenses relating to
the issuance of the Series 2007 Bonds. Such amount or any portion thereof may, at the
option of the Issuer, be deposited in and disbursed from the Construction Fund.
(D) The balance of the Series 2007 Bond proceeds shall be deposited to a
separate account (the "2007 Project Account") in the Construction Fund established with
respect to the Series 2007 Project and shall be used to pay the Costs of the Series 2007
Project.
SECTION 11. KEY LARGO WASTEWATER TREATMENT
DISTRICT OBLIGATIONS. The Issuer covenants and agrees to use a sufficient
amount of the proceeds of the Series 2007 Bonds deposited in 2007 Project Account to
satisfy its remaining reimbursement obligations under the First Amended and Restated
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Interlocal Agreement, dated July 20, 2005, between the Key Largo Wastewater
Treatment District and the Issuer (the "KLWTD Agreement ") in accordance with such
Agreement. The Issuer covenants not to amend this Supplemental Resolution or the
Resolution in any manner which would result in there being an insufficient amount of
proceeds of the Series 2007 Bonds on deposit in the 2007 Project Account to satisfy the
Issuer's remaining reimbursement obligations under the KLWTD Agreement.
SECTION 12. SECURITY FOR THE SERIES 2007 BONDS. The Series
2007 Bonds shall be secured on a parity basis with the Series 2003 Bonds and any
subsequently issued Additional Bonds pursuant to the provisions of the Resolution,
particularly Sections 4.01 and 4.02 thereof.
SECTION 13. OFFICIAL NOTICE OF SALE. The form of the Official
Notice of Sale attached hereto as Exhibit B and the terms and provisions thereof are
hereby authorized and approved. The Mayor is hereby authorized to make such changes,
insertions and modifications as he or she shall deem necessary prior to the advertisement
of such Official Notice of Sale. The Mayor is hereby authorized to advertise and publish
the Official Notice of Sale or a summary thereof at such time as he or she shall deem
necessary and appropriate, upon the advice of the Issuers Financial Advisor, to
accomplish the competitive sale of the Series 2007 Bonds:
SECTION 14. PRELIMINARY OFFICIAL STATEMENT. The Issuer
hereby authorizes the distribution and use of a Preliminary Official Statement in
substantially the form attached hereto as Exhibit C in connection with offering the Series
2007 Bonds for sale. If between the date hereof 'and the mailing of the Preliminary
Official Statement, it is necessary to make insertions, modifications or changes in the
Preliminary Official Statement, the Mayor and the County Administrator are hereby
authorized to approve such insertions, changes and modifications. The Mayor and the
County Administrator (or either's designee) are hereby authorized to deem the
Preliminary Official Statement "final" within the meaning of Rule 15c2 -12(b) under the
Securities Exchange Act of 1934 (the "Rule ") in the form as mailed. Execution of a
certificate by the Mayor or County Administrator (or either's designee) deeming the
Preliminary Official Statement "final" as described above shall be conclusive evidence of
the approval of any insertions, changes or modifications.
SECTION 15. OFFICIAL STATEMENT. Subject in all respects with the
award of the Series 2007 Bonds in accordance with Section 6 hereof, the Mayor and the
County Administrator are hereby authorized and directed to execute and deliver a final
Official Statement, dated the date of the award of the Series 2007 Bonds, which shall be
in substantially the form of the Preliminary Official Statement, in the name and on behalf
of the Issuer, and thereupon to cause such Official Statement to be delivered to the
underwriter or underwriters with such changes, amendments, modifications, omissions
and additions as may be approved by the Mayor and the County Administrator. Said
Official Statement, including any such changes, amendments, modifications, omissions
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and additions as approved by the Mayor and the County Administrator, and the
information contained therein are hereby authorized to be used in connection with the
sale of the Series 2007 Bonds to the public. Execution by the Mayor and the County
Administrator of the Official Statement shall be deemed to be conclusive evidence of
approval of such changes.
SECTION 16. APPOINTMENT OF PAYING AGENT AND
REGISTRAR Subject in all respects with the award of the Series 2007 Bonds in
accordance with Section 5 hereof, U.S. Bank National Association, Miami, Florida is
hereby designated Registrar and Paying Agent for the Series 2007 Bonds. The Mayor
and the County Administrator are hereby authorized to enter into any agreement which
may be necessary to effect the transactions contemplated by this Section 16 and by the
Resolution.
SECTION 17. SECONDARY MARKET DISCLOSURE. Subject in all
respects with the award of the Series 2007 Bonds in accordance with Section 6 hereof,
the Issuer hereby covenants and agrees that, in order to provide for compliance by the
Issuer with the secondary market disclosure requirements of the Rule, it will comply with
and carry out all of the provisions of the Continuing Disclosure Certificate to be executed
by the Issuer and dated the dated date of Series 2007 Bonds, as it may be amended
from time to time in accordance with the terms thereof. The Continuing Disclosure
Certificate shall be substantially in the form of Exhibit D hereto with such changes,
amendments, modifications, omissions and additions as shall be approved by the Mayor
who is hereby authorized to execute and deliver *such Certificate. Notwithstanding any
other provision of the Resolution, failure of the Issuer to comply with such Continuing
Disclosure Certificate shall not be considered an Event of Default under the Resolution;
provided, however, to the extent permitted by law, the We and exclusive remedy of any
Series 2007 Bondholder for the enforcement of the provisions of the Continuing
Disclosure Certificate shall be an action for mandamus or specific performance, as
applicable, by court order, to cause the Issuer to comply with its obligations under this
Section 17 and the Continuing Disclosure Certificate. For purposes of this Section 17,
"Series 2007 Bondholder" shall mean any person who (A) has the power, directly or
indirectly, to vote or consent with respect to, or to dispose of ownership of, any Series
2007 Bonds (including persons holding such Bonds through nominees, depositories or
other intermediaries), or (B) is treated as the owner of any such Bond for federal income
tax purposes.
SECTION 18. AMENDMENT TO RESOLUTION. The definition of
"Infrastructure Sales Surtax Revenues" set forth in Section 1.01 of the Resolution is
hereby amended in its entirety to read as follows:
"Infrastructure Sales Surtax Revenues" shall mean all amounts
received by the Issuer from the Discretionary Sales Surtax Clearing Trust
Fund referred to in Section 212.054(4)(B), Florida Statutes, including but
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not limited to, the proceeds of the one cent local government infrastructure
sales surtax levied pursuant to Section 212.055(2), Florida Statutes, and the
proceeds of the tax levied pursuant to Section 202.19(5), Florida Statutes.
The foregoing amendment to the Resolution is being made in accordance with Section
7.01(A) of the Resolution and, accordingly, neither the consent of the Bondholders nor
the Insurers is required or being sought.
SECTION 19. MUNICIPAL BOND INSURANCE; RESERVE
ACCOUNT SURETY BOND. (A) Subject in all respects with the award of the Series
2007 Bonds in accordance with Section 6 hereof, the Issuer hereby authorizes the
payment of the principal of and interest on the Series 2007 Bonds to be insured pursuant
to a municipal bond insurance policy (the "Bond Insurance Policy ") to be issued by
MBIA Insurance Corporation ( "MBIA "). The Mayor and the County Administrator are
hereby authorized to execute such documents and instruments necessary to cause MBIA
to insure the Series 2007 Bonds.
(B) Subject in all respects with the award of the Series 2007 Bonds in
accordance with Section 6 hereof, the Issuer shall deposit to the Reserve Account- a
reserve account surety bond purchased from MBIA (the 'Reserve Account Surety. Bond
") the face amount of which, together with any other cash amounts and the face amounts
of any other reserve policies or surety bonds on deposit in the Reserve Account, is equal
to the Reserve Account Requirement for the Bonds. The Reserve Account Surety Bond
constitutes'a "Reserve Account Insurance Policy" for purposes of the Resolution. The
Mayor is hereby authorized to enter into a financial guaranty agreement substantially in
the form attached hereto as Exhibit E (the "Financial Guaranty Agreement ") in order to
cause M 31A to issue such Reserve Account Surety Bond. The provisions of such
Financial Guaranty Agreement, when executed and delivered, shall be incorporated
herein by reference and to the extent there are any conflicts between the Financial
Guaranty Agreement and the Resolution, the provisions of the Financial Guaranty
Agreement shall control.
SECTION 20. PROVISIONS RELATING TO BOND INSURANCE
POLICY AND RESERVE ACCOUNT SURETY BOND. (A) The commitments from
MBIA to issue its Bond Insurance Policy and Reserve Account Surety Bond for the
Series 2007 Bonds are hereby approved and authorized and payment for the premiums
for such insurance is hereby authorized from proceeds of the Series 2007 Bonds. A
statement of insurance is hereby authorized to be printed on or attached to the Series
2007 Bonds for the benefit and information of the Holders of the Series 2007 Bonds.
(B) Subject in all respects with the award of the Series 2007 Bonds in
accordance with Section 6 hereof, so long as the Bond Insurance Policy issued by MBIA
is in full force and effect and M131A has not defaulted in its payment obligations under
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the Bond Insurance Policy or the Reserve Account Surety Bond, the Issuer agrees to
comply with the following provisions:
(i) In the event that, on the second business day, and again on the
business day, prior to a Interest Date on the Series 2007 Bonds, the Paying Agent
has not received sufficient moneys to pay all principal of and interest on the Series
2007 Bonds due on the second following or following, as the case may be,
business day, the Paying Agent shall immediately notify MBIA or its designee on
the same business day by telephone or telegraph, confirmed in writing by
registered or certified mail, of the amount of the deficiency.
(ii) If the deficiency is made up in whole or in part prior to or on the
Interest Date, the Paying Agent shall so notify MBIA or its designee.
(iii) In addition, if the Paying Agent has notice that any Series 2007
Bondholder has been required to disgorge payments of principal or interest on a
Series 2007 Bond to a trustee in bankruptcy or creditors or others pursuant to a
final judgment by a court of competent jurisdiction that such payment constitutes a
voidable preference to such Series 2007 Bondholder within the meaning of any.
applicable bankruptcy laws, then the Paying, Agent shall notify MBIA or its
designee of such fact by telephone or, telegraphic notice, confirmed in writing by
registered or certified mail.
(iv) The Paying Agent is hereby irrevocably designated, appointed,
directed and authorized to act ag attorney -in -fact for Series 2007 Bondholders as
follows:
(a) If and to the extent there is a deficiency in amounts required
to pay interest on the Series 2007 Bonds, the Paying Agent shall (I) execute
and deliver to U.S. Bank Trust National Association, or its successors under
the Bond Insurance Policy (the "Insurance Paying Agent"), in form
satisfactory to the Insurance Paying Agent, an instrument appointing MBIA
as agent for such Series 2007 Bondholders in any legal proceeding related
to the payment of such interest and an assignment to MBIA of the claims
for interest to which such deficiency relates and which are paid by MBIA,
(II) receive as designee of the respective Series 2007 Bondholders (and not
as Paying Agent) in accordance with the tenor of the Bond Insurance Policy
payment from the Insurance Paying Agent with respect to the claims for
interest so assigned, and (III) disburse the same to such respective Series
2007 Bondholders; and
(b) If and to the extent of a deficiency in amounts required to pay
principal of the Series 2007 Bonds, the Paying Agent shall (I) execute and
deliver to the Insurance Paying Agent in form satisfactory to the Insurance
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Paying Agent an instrument appointing MBIA as agent for such Series
2007 Bondholder in any legal proceeding relating to the payment of such
principal and an assignment to MBIA of any of the Series 2007 Bonds
surrendered to the Insurance Paying Agent of so much of the principal
amount thereof as has not previously been paid or for which moneys are not
held by the Paying Agent and available for such payment (but such
assignment shall be delivered only if payment from the Insurance Paying
Agent is received), (II) receive as designee of the respective Series 2007
Bondholders (and not as Paying Agent) in accordance with the tenor of the
Bond Insurance Policy payment therefor from the Insurance Paying Agent,
and (III) disburse the same to such Series 2007 Bondholders.
(v) Payments with respect to claims for interest on and principal of
Series 2007 Bonds disbursed by the Paying Agent from proceeds of the Bond
Insurance Policy shall not be considered to discharge the obligation of the Issuer
with respect to such Series 2007 Bonds, and MBIA shall become the owner of
such unpaid Series 2007 Bond and claims for the interest in accordance with the
tenor of the assignment made to it under the provisions of this subsection or
otherwise.
(vi) Irrespective of whether any such assignment is executed and
delivered, the Issuer and the Paying Agent agree for the benefit of MBIA that:
(a) They recognize that to the extent MBIA makes payments,
directly. or indirectly (as by paying through the Paying Agent), on account
of principal of or interest on the Series 2007 Bonds, MBIA will be
subrogated to the rights of such Series 2007 Bondholders to receive the
amount of such principal and interest from the Issuer, with interest thereon
as provided and solely from the sources stated in the Resolution and the
Series 2007 Bonds; and
(B) They will accordingly pay to MBIA the amount of such
principal and interest (including principal and interest recovered under
subparagraph (ii) of the first paragraph of the Bond Insurance Policy, which
principal and interest shall be deemed past due and not to have been paid),
with interest thereon as provided in the Resolution and the Series. 2007
Bonds, but only from the sources and in the manner provided in the
Resolution for the payment of principal of and interest on the Series 2007
Bonds to Series 2007 Bondholders, and will otherwise treat MBIA as the
owner of such rights to the amount of such principal and interest.
(vii) In connection with the issuance of additional parity obligations, the
Issuer shall deliver to MBIA a copy of the disclosure document, if any, circulated
with respect to such additional parity obligations.
12
(viii) Copies of any amendments made to the documents executed in
connection with the issuance of the Series 2007 Bonds which are required to be
consented to by MBIA shall be sent to S &P. Copies of any other amendments not
requiring MBIA's consent shall be delivered to MBIA.
(ix) The Issuer shall provide MBIA with notice of the resignation or
removal of the Paying Agent and the appointment of a successor thereto.
(x) The Issuer shall provide MBIA with copies of all notices required to
be delivered to Series 2007 Bondholders under the Resolution and, on an annual
basis, copies of the Issuer's audited financial statements and annual budget.
(xi) Any notice required to be given to or by any party, including, but not
limited to, a Series 2007 Bondholder or the Paying Agent, pursuant to the
Resolution shall also be provided to MBIA. All notices required to be given to
MBIA shall be in writing and shall be sent by registered or certified mail
addressed to MBIA Insurance Corporation, 113 King Street, Armonk, New York
10504, Attention: Insured Portfolio Management.
(xii) The Issuer agrees to reimburse MBIA immediately and
unconditionally upon demand to the extent permitted by law, for all reasonable
expenses, including attorneys' fees and expenses, incurred by MBIA in connection
with (a) enforcement by MBIA of the Issuer's obligations, or the preservation or
defense of any rights of MBIA, under the Resolution and any other document
_....executed in connection with the issuance of the Series 2007 Bonds, and (b) any
consent, amendment, waiver or other action with respect to the Resolution or any
related document, whether or not granted or approved, together with interest on all
such expenses from and including the date incurred to the date of payment of
Citibank's prime rate plus 3% or the maximum interest rate permitted by law,
whichever is less. In addition, MBIA reserves the right to charge a fee in
connection with its review of any such consent, amendment or waiver, whether or
not granted or approved.
(xiii) Except as otherwise provided in this Section 20(B)(xiii), the Issuer
agrees not to use MBIA's name in any public document including, without
limitation, a press release or presentation, announcement or forum without MBIA's
prior consent Notwithstanding the immediately preceding sentence, the Issuer
may use, refer to and disclose MBIA's name in its ordinary course of business and
government activity. Such use, reference or disclosure includes, but is not limited
to, publishing MBIA's name in the Issuer's Comprehensive Annual Financial
Report, any Preliminary or final Official Statement, any continuing disclosure
document, or any other document or instrument that is prepared by the Issuer in
the ordinary course of its business and government activity_ In addition, the Issuer
may disclose MBIA's name in accordance with any applicable public records or
13
other laws. In the event that the Issuer is proposing to disclose MBIA's name in
any press release, public announcement or other public document outside of its
ordinary course of business and governmental activity, the Issuer shall provide
MBIA with at least three (3) business days' prior written notice of its intent to use
MBIA's name together with a copy of the proposed use of MBIA's name and of
any description of a transaction with MBIA and shall obtain MBIA's prior consent
as to the form and substance of the proposed use of MBIA's name and any such
description.
()civ) The Issuer shall not enter into any agreement nor shall it consent to
or participate in any arrangement pursuant to which Series 2007 Bonds are
tendered or purchased for any purpose other than the redemption and cancellation
or legal• defeasance of such Series 2007 Bonds without the prior written consent of
MBIA.
(xv) The Resolution may not be terminated until all amounts owed to
MBIA under the terms of the Financial Guaranty Agreement have been satisfied.
(xvi) There may be no optional redemption of the Series 2007 Bonds or
distribution of funds to the Issuer unless all amounts owed to MBIA under the
terms of the Financial Guaranty Agreement have been paid in full.
(xvii) MBIA, acting alone, shall have the right to direct all remedies with
respect to the Series 2007 Bonds in the event of a default under the Resolution.
MBIA shall . be recognized as the registered owner of each Series 2007 Bond
which it insures for the purposes of exercising all rights and privileges available to
Series 2007 Bondholders. For Series 2007 Bonds which it insures, MBIA shall
have the right to institute any suit, action, or proceeding at law or in equity under
the same terms as a Series 2007 Bondholder in accordance with applicable
provisions of the Resolution. Other than the standard redemption provisions set
forth in the Resolution, any acceleration of principal payments on the Series 2007
Bonds shall be subject to MBIXs prior written consent.
(xviii) Notwithstanding any other provision of the Resolution to the
contrary, upon the defeasance of any Series 2007 Bonds pursuant to Section 8.01
of the Resolution, the Issuer shall provide MBIA with an opinion of counsel
acceptable to MBIA that the Series 2007 Bonds have been legally defeased and
that the escrow agreement establishing such defeasance operates to legally defease
the Series 2007 Bonds within the meaning of the Resolution. In addition, the
Issuer shall provide M131A with (a) 15 business days notice of any advance
refunding of the Series 2007 Bonds and (b) an accountant's report with respect to
the sufficiency of the amounts deposited in escrow to defease the Series 2007
Bonds.
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SECTION 21. GENERAL AUTHORITY. The Mayor, the County
Administrator, the Clerk, the County Attorney, and the other officers, attorneys and other
agents or employees of the Issuer are hereby authorized to do all acts and things required
of them by this Supplemental Resolution, the Resolution, the Official Statement, the
Continuing Disclosure Certificate, the Financial Guaranty Agreement or the Official
Notice of Sale or desirable or consistent with the requirements hereof or of the
Resolution, the Official Statement, the Continuing Disclosure Certificate, the Financial
Guaranty Agreement or the Official Notice of Sale for the full punctual and complete
performance of all the terms, covenants and agreements contained herein or in the Series
2007 Bonds, the Resolution, the Official Statement, the Continuing Disclosure
Certificate, the Financial Guaranty Agreement and the Official Notice of Sale and each
member, employee, attorney and officer of the Issuer is hereby authorized and directed to
execute and deliver any and all papers and instruments and to be and cause to be done
any and all acts and things necessary or proper for carrying out the transactions
contemplated hereunder. If the Mayor is unavailable or unable at any time to perform
any duties or functions hereunder, the Mayor Pro Tem and the County Administrator are
each hereby authorized to act on his behalf.
SECTION 22. SEVERABILITY AND INVALID PROVISIONS. If any
one or more of the covenants, agreements or provisions herein contained shall be held
contrary to any express provision of law or contrary to the policy of express law, though
not expressly prohibited or against public policy, or shall for any reason whatsoever be
held invalid, then such covenants, agreements or provisions shall be null and void and
shall be deemed separable from the remaining covenants, agreements or provisions -and
shall in no way affect the validity of any of the other provisions hereof or of:the Series
2007 Bonds.
SECTION 23. CONFLICTS; RESOLUTION TO CONTINUE IN
FORCE. Except as herein expressly provided, the Resolution and all the terms and
provisions thereof are and shall remain in full force and effect; provided, however, that in
the event of a conflict between the terms of this Supplemental Resolution and the
Resolution, the terms of this Supplemental Resolution shall govern.
SECTION 24. EFFECTIVE DATE. This Supplemental Resolution shall
become effective immediately upon its adoption.
15
PASSED AND ADOPTED by the Board of County Commissioners of Monroe
County, Florida, at a regular meeting of said Board held on the 14 day of November,
2007.
W Di Gennaro
°p
Mayor McCoy
Yes
com. Murphy
Yea
c om, Neugent
Yes
Comm. Spehar
Yes
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
Deputy
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EXHIBIT A
SERIES 2007 PROJECT
• The Series 2007 Project generally includes the following:
• acquisition, construction and equipping of a new fire station/EMS facility on Stock
Island
• acquisition, construction and equipping of anew fire station on Big Pine Key
• acquisition, construction and equipping of a new fire station on Conch Key
acquisition, construction and equipping of a public works compound at Rockland
• capital improvements at Big Pine Park
• pursuant to the terms of the Resolution, the County will deposit a sufficient
amount of the proceeds of the Series 2007 Bonds to the 2007 Project Account in
order to satisfy all of its remaining reimbursement obligations under the KLWTD
Agreement