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RESOLUTION NUMBER 97-01 CRA FOR TERMINATION OF PARKING FACILITY LEASE FOR PARK STREET GARAGE AND PROVIDING AN EFFECTVE DATE 1 I RESOLUTION NO.97-1 (CRA) A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, PROVIDING FOR THE DEFEASANCE AND/OR REDEMPTION OF THE OUTSTANDING PRINCIPAL AMOUNT OF THE COMMUNITY REDEVELOPMENT AGENCY'S TAX INCREMENT AND LEASE REVENUE BONDS, SERIES 1986; PROVIDING FOR TERMINATION OF THE PARKING FACILITY LEASE FOR THE PARK STREET GARAGE WITH THE CITY OF CLEARWATER; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, AS FOLLOWS: SECTION 1. Authoritv for this Resolution. This Resolution is adopted pursuant to the provisions of Chapter 163, Part III, Florida Statutes, and other applicable provisions of law. SECTION 2. Recitals A. The Community Redevelopment Agency of the City of Clearwater, Florida (the "Agency") has authorized the execution of and has entered into a Memorandum of Understanding with Atrium at Clearwater, Ltd., a Florida limited partnership (the "Buyer") regarding the acquisition by the Buyer of the Sun Bank/Atrium Building from the Agency. B. In conjunction with the sale, the Agency has granted the Buyer an option to acquire land together with the first two stories of a public parking facility located thereon and known as the Park Street Garage which is currently leased to the City of Clearwater, Florida (the "City"), pursuant to a Lease Agreement dated as of August 28, 1986 (the "City Lease") between the Agency and the City. C. The Buyer has exercised its option to purchase the optioned parking facility and the Agency and the Buyer have, in accordance with the Memorandum of Understanding, agreed to a purchase price for the optioned parking facility. D. In order to transfer title to the parking facility to the Buyer upon the exercise of the option, the Agency will have to provide for the redemption or defeasance of the remaining outstanding principal amount of its Tax Increment and Lease Revenue Bonds, Series 1986 (the "Bonds"), and to terminate the City Lease. /If "t.. (;,(" '- {~/ . ( ~O) ,,/ / I I SECTION 3. Redemption of Bonds. The Agency hereby determines and elects that upon the closing of the option to purchase the parking facility by the Buyer, the Agency will deposit the sale proceeds thereof, together with other funds available to the Agency, with First Union Bank of Florida (the "Paying Agent") pursuant to the terms of an escrow deposit agreement substantially in the form attached hereto as Exhibit A (the "Escrow Deposit Agreement"). Such funds shall be used to redeem the Bonds in full together with a redemption premium of 1%, on the first day for which proper notice may be given fallowing the deposit of such funds pursuant to the Escrow Deposit Agreement, all in accordance with the provisions of Resolution No. 86-1 (CRA) adopted by the Agency on February 20, 1986. The Agency hereby determines and elects to redeem all of the outstanding Bonds upon the closing of the sale of the parking facility to the Buyer, and directs its staff and the appropriate City personnel to take such action as may be necessary to effect such redemption in full of the Bonds. SECTION 4. Escrow Deposit Aqreement. The Escrow Deposit Agreement, substantially in the form attached hereto as Exhibit A, 1S hereby approved, and the Chairman or Vice Chairman and Clerk or any Assistant Clerk of the Agency are hereby authorized and directed to execute and deliver such Escrow Deposit Agreement on behalf of the Agency, with such changes in the form thereof as may be approved by the officers of the Agency executing the Escrow Deposit Agreement, such execution to be conclusive evidence of the Agency's acceptance of any such changes. First Union Bank of Florida, as the paying agent for the Bonds is hereby appointed Escrow Holder under and pursuant to the Escrow Deposit Agreement. SECTION 5. Termination of city Lease. The Agency hereby authorizes the termination of the City Lease effective as of the date on which the Buyer's purchase of the parking facility is closed and the Agency deposits with the Paying Agent pursuant to the Escrow Deposit Agreement the funds required to redeem the Bonds in accordance with the provisions of this Resolution. SECTION 6. Effective Date. This resolution shall become effective upon its adoption. 2 I I Passed and adopted by the Community Redevelopment Agency of the city of Clearwater, Florida, this ,,-rl-l day of Eobruary, 1997. m... lit, N COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA (SEAL) By: .~~ (WL~ Cie" ~ Approved as to form and correctness: 2~~ 3 I I EXHIBIT A FORM OF ESCROW DEPOSIT AGREEMENT 4 . I I ESCROW DEPOSIT AGREEMENT This ESCROW DEPOSIT AGREEMENT, dated as of March 1, 1997, by and among the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA (the "Agency") and First Union Bank of Florida, a national banking association organized under the laws of the united States of America, as Escrow Holder (the "Escrow Holder"); WIT N E SSE T H WHEREAS, the Agency has previously authorized and issued obligations of the Agency as hereinafter set forth defined as the "Defeased Bonds", the proceeds of which were used to finance certain capital improvements to the City of Clearwater's parking system within the Agency's jurisdiction; and WHEREAS, The Agency has determined that it is necessary to defease the Defeased Bonds; WHEREAS, the amount of the Aggregate Debt Service (as hereinafter defined) for such Defeased Bonds is set forth on Schedule Ai and WHEREAS, the Agency has agreed to provide for payment of the Aggregate Debt Service of the Defeased Bonds by depositing with the Escrow Holder pursuant to the provisions hereof cash provided by the Agency in an amount equal to such Aggregate Debt Service; and WHEREAS, the Agency has determined that the amount to be on deposit from time to time in the Escrow Account, as def ined herein, will be sufficient to pay the Aggregate Debt service; NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the Agency and the Escrow Holder agree as follows: Section 1. terms mean: Definitions. As used herein, the following (a) "Agency" means the Community Redevelopment Agency of the city. (b) "Aggregate Debt Service" means the sum of the principal outstanding on the Defeased Bonds, the redemption premium of 1% of the principal amount thereof and interest accrued on the Defeased Bonds since the last payment date until the date of redemption of the Defeased Bonds, all as set forth on Schedule A attached hereto and incorporated herein by reference. I I (c) "Agreement" means this Escrow Deposit Agreement. (d) "Call Date" shall mean the date on which the Defeased Bonds are to be called for redemption, which date shall be the first date for which timely notice may be given by the Paying Agent of redemption of the Defeased Bonds in full following the funding date of this Agreement. (e) "City" means the City of Clearwater, Florida. (f) "Defeased Bonds" means the presently outstanding Agency's Tax Increment and Lease Revenue Bonds, series 1986. (g) "Escrow Account" means the account established and held by the Escrow Holder pursuant to this Agreement, in which cash and investments will be held for payment of the Defeased Bonds and the Expenses. (h) "Escrow Holder" means First Union Bank of Florida. (i) "Escrow Requirement" means, as of any date of calcula- tion, the sum of an amount in cash and principal amount of Federal Securities in the Escrow Account which, together with the interest due on the Federal Securities, will be sufficient to pay, as the installments thereof become due, the Aggregate Debt Service and to pay when due all Expenses then unpaid. (j) "Expenses" means the expenses (including contractual obligations incurred with respect to the Defeased Bonds) set forth on Schedule B attached hereto and hereby made a part hereof. (k) "Federal Securities" means direct obligations of the united States of America and obligations the principal of or interest on which are fully guaranteed by the united States of America, none of which permit redemption prior to maturity at the option of the obligor. (1) "Paying Agent" shall mean with respect to the Defeased Bonds, First Union Bank of Florida, Jacksonville, Florida. (m) "Resolution" means Resolution No. 97- , duly adopted by the governing body of the Agency on February , 1997, as amended and supplemented from time to time, authorizing the defeasance of the Defeased Bonds pursuant thereto. section 2. Deposit of Funds. The Agency hereby deposits $ with the Escrow Holder in immediately available funds, to be held in irrevocable escrow by the Escrow Holder and applied solely as provided in this Agreement. The Agency represents that: (a) Such funds are all derived as follows: I I (1) $ from funds provided by the Agency, and (2) $ transferred from the funds held for the payment of the Defeased Bonds. (b) Such funds, when applied pursuant to section 3 below, will at least equal the Escrow Requirement as of the date hereof. section 3. Use and Investment of Funds. The Escrow Holder acknowledges receipt of the sum described in section 2 and agrees: (a) to hold the funds in irrevocable escrow during the term of this Agreement, (b) to deposit the sum of $ in the Escrow Account, from such sum in cash (c) to immediately invest $ of such funds by the purchase of the Federal Securities set forth on Schedule C attached hereto, (d) to deposit in the Escrow Account, as received, the receipts of maturing principal of and interest on the Federal Securities in the Escrow Account. (e) there will be no investment of funds except as set forth in this section 3 and except as set forth in section 5. section 4. Payment of Defeased Bonds and Expenses. (a) Defeased Bonds. On the redemption date for the Defeased Bonds, the Escrow Holder shall pay to the paying Agent for the Defeased Bonds, solely from the cash on hand in the Escrow Account, a sum sufficient to pay of the Aggregate Debt Service for the Defeased Bonds coming due on such date, as shown on Schedule A. (b) Expenses. On the due date shown on Schedule B, the Escrow Holder shall, solely from the cash on hand in the Escrow Account, pay the portion of the Expenses coming due on such date to the appropriate payee or payees designated on Schedule Band designated by separate certificate of the Agency. (c) Surplus. On the redemption date for the Defeased Bonds, after making the payments from the Escrow Account described in Subsections 4(a) and (b), the Escrow Holder shall pay to the Agency any remaining cash in the Escrow Account, to be used for any lawful purpose of the Agency. (d) Priority of Payments. The holders of the Defeased 3 I I Bonds shall have an express first lien on the funds and Federal Securities in the Escrow Account until such funds and Federal Securities are used and applied as provided in this Agreement. If the cash on hand in the Escrow Account is ever insufficient to make the payments required under Subsection 4 (a), all of the payments required under Subsection 4 (a) shall be made when due before any payments shall be made under Subsections 4(b) or 4(c). section 5. Reinvestment. (a) Except as provided in section 3 hereof, and in this Section, the Escrow Holder shall have no power or duty to invest any funds held under this Agreement or to sell, transfer or otherwise dispose of or make substitutions of the Federal Securities held hereunder. (b) At the written direction of the Agency and upon compliance with the conditions hereinafter stated, the Escrow Holder shall sell, transfer, otherwise dispose of or request the redemption of any of the Federal Securities acquired hereunder and shall either apply the proceeds thereof to the full discharge and satisfaction of the Defeased Bonds or substitute other Federal Securities for such Federal Securities. The City will not direct the Escrow Holder to exercise any of the powers described in the preceding sentence in any manner which would cause any Bonds to be "arbitrage bonds" within the meaning of the Internal Revenue Code of 1986, as amended, and the Regulations thereunder. The transactions may be effected only if (i) an independent certified public accountant shall certify that the cash and principal amount of Federal Securities remaining on hand after the transactions are completed, together with the interest due thereon, will be not less than the Escrow Requirement, and (ii) the Escrow Holder shall receive an unqualified opinion from a nationally recognized bond counselor tax counsel to the effect that such transactions will not cause such Bonds to be "arbitrage bonds" within the meaning of the Internal Revenue Code of 1986, as amended, and the regulations thereunder in effect on the date of the transactions and applicable to obligations issued on such date. Section 6. Responsibilities of Escrow Holder. The Escrow Holder and its respective successors, assigns, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Agreement, the establishment of the Escrow Account, the acceptance of the funds deposited therein, the purchase of the Federal Securities under the terms hereof, the retention of the Federal Securities or the proceeds thereof or any payment, transfer or other application of money or securities by the Escrow Holder in any non-negligent act, non-negligent omission or non-negligent error of the Escrow Holder made in good faith in the conduct of its duties. The Escrow Holder shall, 4 II I I however, be liable to the Agency for its negligent or willful acts, omissions or errors which violate or fail to comply with the terms of this Agreement. The duties and obligations of the Escrow Holder shall be determined by the express provisions of this Agreement. The Escrow Holder may consult with counsel, who mayor may not be counsel to the Agency, and in reliance upon the opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Holder shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the Agency. The Escrow Holder shall be under no duty to make any investigation or inquiry as to any statement contained or matters referred to in such certificate. Section 7. Resiqnation of Escrow Holder. The Escrow Holder may not resign and may not be discharged from the duties and obligations hereby created. Section 8. Removal of Escrow Holder. The Escrow Holder may also be removed at any time for any breach of trust or for acting or proceeding in violation of, or for failing to act or proceed in accordance with, any provisions of this Agreement with respect to the duties and obligations of the Escrow Holder, either by the Agency or by the holders of not less than twenty-five per centum (25%) in aggregate principal amount of the Defeased Bonds then outstanding. section 9. Successor Escrow Holder. (a) Any corporation into which the Escrow Holder, or any successor to it in the trusts created by this Agreement, may be merged or converted or with which it or any successor to it may be consolidated, or any corporation resulting from any merger, conversion, consolidation or reorganization to which the Escrow Holder or any successor to it shall be a party shall, if satis- factory to the Agency, be the successor Escrow Holder under this Agreement without the execution or filing of any paper or any other act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. (b) If at any time hereafter the Escrow Holder shall be removed, be dissolved or otherwise become incapable of acting, or shall be taken over by any governmental official, agency, department or board, the position of Escrow Holder shall thereupon become vacant. If the position of Escrow Holder shall become vacant for any of the foregoing reasons or for any other reason, the Agency shall appoint an Escrow Holder to fill such vacancy within fifteen days of the occurrence of such vacancy. 5 I I SECTION 10. Payment to Escrow Holder. In consideration of the services rendered by the Escrow Holder under this Agreement, the Agency agrees to and shall pay to the Escrow Holder the fees as shown on the attached Schedule D and all expenses, charges, attorney fees and other disbursements incurred by it or its attorneys, agents, and employees in and about the performance of its powers and duties as Escrow Holder. The Escrow Holder shall have no lien whatsoever upon any of the Federal Securities or the cash in said Escrow Fund for the payment of such proper fees and expenses. The Agency further agrees, to the extent permitted by law, to indemnify and save the Escrow Holder, its agents and employees harmless, to the extent allowed by law, against any liabilities, obligations, losses, damages, penalties, claims, actions, sui ts, costs, expenses and disbursements of whatever kind or nature, including, without limitation, reasonable fees and costs, which it may incur in the exercise and performance of its powers and duties hereunder, and which are not due to its negligence or willful misconduct. Indemnification provided under this section shall survive the termination of this Agreement. The Escrow Holder shall not be liable for any loss resulting from any investment made pursuant to the terms and provisions of this Agreement. The Escrow Holder shall not be liable for the accuracy of the calculations as to the sufficiency of moneys and of the principal amount of the Federal Securities and the earnings thereon to pay the Defeased Bonds. So long as the Escrow Holder applies any moneys, the Federal Securities and securities purchased hereunder and the interest earnings therefrom to pay the Defeased Bonds as provided herein, and complies fully with the terms of this Agreement, the Escrow Holder shall not be liable for any deficiencies in the amounts necessary to pay the Defeased Bonds caused by such calculations. Section 11. Term. This Agreement shall commence upon its execution and delivery and shall terminate when the Defeased Bonds have been paid and discharged in accordance with the proceedings authorizing the Defeased Bonds, and all amounts held by the Escrow Holder hereunder have been applied in accordance herewith. section 12. Severability. If anyone or more of the cove- nants or agreements provided in this Agreement on the part of the Agency or the Escrow Holder to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreements herein contained shall be null and void and shall be severed from the remaining covenants and agreements and shall in no way affect the validity of the remaining provisions of this Agreement. SECTION 13. Amendments to this Aqreement. This Agreement is made for the benefit of the Agency and the holders from time 6 I I to time of the Defeased Bonds and it shall not be repealed, revoked, al tered or amended in whole or in part without the written consent of all affected holders, the Escrow Holder and the Agency; provided, however, that the Agency and the Escrow Holder may, without the consent of, or notice to, such holders, enter into such agreements supplemental to this Agreement as shall not adversely affect the rights of such holders and as shall not be inconsistent with the terms and provisions of this Agreement, for anyone or more of the following purposes: (a) to cure any ambiguity or formal defect or omission in this Agreement; (b) to grant to, or confer upon, the Escrow Holder, for the benefit of the holders of the Bonds and the Defeased Bonds any additional rights, remedies, powers or authority that may lawfully be granted to, or conferred upon, such holders or the Escrow Holder; and (c) to subject to this Agreement additional funds, securities or properties. The Escrow Holder shall, at its option, be entitled to rely exclusively upon an opinion of nationally recognized attorneys on the subject of municipal bonds acceptable to the Agency with respect to compliance with this section, including the extent, if any, to which any change, modification, addition or elimination affects the rights of the holders of the Defeased Bonds or that any instrument executed hereunder complies with the conditions and provisions of this section. SECTION 15. Notices. Any notice, authorization, request or demand required or permitted to be given in accordance with the terms of this Agreement shall be in writing and sent by registered or certified mail addressed to: First Union Bank of Florida 225 Waters Street 3rd Floor Jacksonville, Florida 32202 Attention: corporate Trust Department Community Redevelopment Agency of the city of Clearwater, Florida 112 South Osceola Avenue Clearwater, Florida 34616 Attention: Chairman section 15. Counterparts. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as duplicate originals and shall constitute and be but one and the same instrument. 7 I I section 16. Governinq Law. This Agreement shall be construed under the laws of the State of Florida. section 17. Security for Accounts and Funds. All accounts and funds maintained or held pursuant to this Agreement shall be continuously secured in the same manner as other deposits of municipal funds are required to be secured by the laws of Florida. Section 18. Notice of Redemption. The Escrow Holder agrees to mail a copy of the notice of redemption in substantially the form attached hereto as Exhibit A, to each registered holder of the Defeased Bonds within one business day of the effective date of this Agreement and the deposit by the Agency of the funds with the Escrow Holder. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers and their official seals to be hereunto affixed and attested as of the date first above written. COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA ( SEAL) By: . Chairmah - ' ATTEST: Clalr.k Approved as to form and correctness: city Attorney FIRST UNION BANK OF FLORIDA, as Escrow Holder By: Title: 8 I SCHEDULE A TOTAL DEBT SERVICE [Schedules Attached] I I I SCHEDULE B EXPENSES NONE I I SCHEDULE C FEDERAL SECURITIES FOR INVESTMENT (Schedules Attached) I SCHEDULE D FEES OF ESCROW HOLDER I I I EXHIBIT A FORM OF REDEMPTION NOTICE [to be provided by the paying Agent]