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RESOLUTION 85-55 FOR NOTE FROM THE SALE OF TAX INCREMENT REVENUE BONDS ,~ ' ~, -, ""!! '~.. . ( RESOLUTION' . No. 85 - 55 ,"\ A IlESOLUTlON PROVIDING POR THE ISSUANCE OF A $980,000 BOND ANTICIPATION NOTE OF THE CITY OF CLEARWATER, FLORIDA, IN ANTICIPATION OF THE RECEIPT BY THE CITY OF A PORTION OF THE PROCEEDS FROM THE SALE OF TAX INCREMENT REVENUE BONDS OF THE CLEARWATER REDEVELOPMENT AGENCY, AWARDING THE NOTE TO SUN BANK/SUNCOAST, N.A. PROVIDING FOR PAYMENT OF THE NOTE FROM THE PROCEEDS OF THE ABOVE BONDS OR FROM THE CITY'S GUARANTEED ENTITLEMENT FUNDS; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF CLEARWATER, FLORIDA: Section 1. AUTHORITY FOR THIS RESOLUTION; DEP'INITlON8. (a) This resolution is adopted pursuant to Chapter 163, Part III, and Chapter 166, Part II, Florida Statutes, and other applicable provisions of law. (b) All terms shall have the following meanings herein: "Agency" means the Clearwater Redevelopment Agency. "Agency Bonds" means Tax Increment Revenue Bonds of the Agency, to be issued to finance the cost of the Project. "Agency Resolution" means a resolution of the Agency approving issuance of the Note and requesting a loan of the proceeds thereof and resolving to use its best efforts to authorize, validate and sell Agency Bonds to provide funds to retire the Note, in substantially the form attached as Exhibit " A" hereto. "Bank" means Sun Bank/Suncoast, N.A., St. Petersburg, Florida. "Capital Improvement Bonds" means the outstanding Capital Improvement Revenue Bonds, Series 1984, originally issued by the City in the amount of $640,000. "City" means the City of Clearwater, Florida. "City Lease" shall mean a lease between the Agency and the City for operation of the City Parcel and the improvements thereon by the City as a part of the City's Parking System. "City Parcel" shall mean the real property lying under Parcel B as described in the Developer Agreement. "Developer" means J. K. Financial Corporation, a Florida corporation. "Development Agreement" means the Development Agreement dated July 14, 1983 between the Agency, the City and the Developer. "Guaranteed Entitlement Funds" shall mean the guaranteed entitlement portion of the revenue sharing trust funds of the State of Florida as defined in and distributable to the City pursuant to Chapter 218, Florida Statutes. LKL-07/13/85-840A-2223 -1- ~,i / ~~ ~.' i 'F~ ',.' I L--- ;, (;1/ - ,/ . I , . "Note" means the $980,000 City of Clearwater Bond Anticipation Note authorized hereunder. "Parking System" shall mean all of the City's existing off-street and on-street parking facilities, excluding those facilities in existence on February 14, 1983 for the use of which no fee was charged as of January 1, 1983, until such time as a fee is charged for the use thereof, together with any and all improvements and additions thereto hereafter constructed or acquired. "Pledged Revenues" means the first proceeds of the Agency Bonds received by the City and the Guaranteed Entitlement Funds. "Project" shall mean the acquisition, and sale to the Developer, of Parcel A, Parcel B and Parcel C described in the Development Agreement, and the construction and leasing of additions, extensions and improvements to the Parking System on the City Parcel in accordance with the Development Agreement, which shall also constitute a Redevelopment Project. Section 2. PlNDING8. It is hereby ascertained, determined and declared that: A. The City and the Agency have entered into the Development Agreement for the purpose of, inter alia, prQviding a means of constructing and financing. certain parking facilities to be leased to the City by the Agency pursuant to the City Lease, for operation by the City as a part of its Parking System. B. The Agency has contracted with the Developer for construction of the Project, including the facilities to be leased to the City under the City Lease, and proposes to permanently finance the cost thereof by the issuance of Agency Bonds. Pending authorization, validation and sale of the Agency Bonds, the Agency has a need for funds to pay the Developer as construction of the Project progresses, and will adopt the Agency Resolution in furtherance of the purpose hereof. C. In order to continue construction of the Project and secure use of the City's portion thereof in a timely manner, it is necessary and desirable to obtain funds to loan to the Agency, by issuance of the Note. The Note and the interest due thereon will be payable solely from and secured by a lien upon and pledge of Pledged Revenues. The pledge of and lien on the Guaranteed Entitlement Funds for payment of the Note is junior and subordinate to the pledge of and lien on the Guaranteed Entitlement Funds to secure payment of the City's outstanding Capital Improvement Bonds. LKL-07/13/85-840A-2223 -2- . I I . D. The City has found that it is necessary and desirable to sell the Note at private, negotiated sale, and has received a commitment to purchase the Note from the Bank. Section 3. RESOLUTION TO CON5"l'1"l'UTK CONTRACT. In consideration of the acceptance of the Note authorized to be issued hereunder by the owners from time to time, this resolution shall be deemed to be and shall constitute a contract between the City and such owners. The covenants and agreements herein set forth to be performed by the City shall be for the benefit, protection and security of the legal holders of the Note. Section 4. AUTHORIZATION OP NOTE. Subject and pursuant to the provisions of this resolution and in anticipation of the sale and delivery of the Agency Bonds, the Note is hereby authorized to be issued in the principal amount Nine Hundred Eighty Thousand Dollars ($980,000). Section 5. DESCRIPTION OP NOTE. The Note shall be dated as of its date of issuance, shall mature eleven months from its date of issuance, shall be in fully registered form, and shall be issued In a single denomination of $980,000. The Note shall bear interest from its date at the rate of 696 per annum adjusted as set forth below, but in no event exceeding the lesser of the maximum interest rate allowed by law, or the maximum rate permitted under Section 215.84(3), Florida Statutes. The interest rate shall.be subject to adjustment as follows: (I) Chanlte in Maximum Marainal Federal Income Tax Rate on Corporations. In the event that the maximum federal corporate income tax rate on taxable income of corporations shall, during any period with respect to which interest shall be accruing on the Note, be other than forty-six percent (4696), the interest rate shall be the product obtained by multiplying 696 by a fraction, the numerator of which shall be one hundred (100) minus the then applicable maximum federal corporate income tax rate percentage and the denominator of which shall be fifty-four (54); such product shall be rounded to the nearest one-tenth of one percent and shall be referred to herein as the "Adjusted Interest Rate"; provided, however, that the Adjusted Interest Rate shall never be adjusted so as to produce a rate of interest on the Note which is greater than the limitations in the preceding sentence. (il) Partial Taxability. (1) If any change in law or the interpretation thereof occurs hereafter and, as a result thereof, any holder or former holder of the Note determines, in its sole discretion, that such change will result in (1) a disallowance, elimination, reduction, disqualification or loss of right to claim any deduction or credit LKL-07/13/85-840A-2223 -3- . I , . for federal, state or local tax purposes of the holder or of any affiliated group of which the holder is or was a member ("Loss"), and/or (2) the imposition of any preference, minimum or other special tax under the federal, state or local tax laws ("Tax"), and such Loss or Tax is directly or indirectly related to the holder's ownership of the Note or the receipt of income therefrom, then the City agrees to indemnify the holder for such Loss or Tax by increasing the interest payments to be made or previously made to the holder with respect to the Note by such an amount which after deduction of all taxes required to be paid as a result of such holder's receipt of such sums (including, without limitation, any tax arising from a reduction in an amount which would otherwise be allowable as a deduction) will maintain holder's after-tax economic yield and overall net after-tax cash nows resulting from the holding of the Note at the same levels which would have been realized if such change in law or interpretation thereof did not occur. (2) All calculations of the holder's after-tax economic yield and overall net after-tax cash flows shall be determined on the basis of the assumptions that (i) the holder would have realized the assumed tax benefit of the deduction or credit if such change in law or interpretation thereof did not occur and (ii) the holder has marginal federal, state and local corporate income tax rates which are the highest marginal rates imposed by the laws applicable to the holder. The Note shall be payable as to principal upon presentation and surrender at the office of the Note Registrar, and shall be payable as to interest by check or draft mailed to the holder at its address on the Note Register. Interest on the Note shall be payable quarterly at the end of the third, sixth and ninth months after date of issuance of the Note and at maturity. The Note shall be redeemable prior to its stated date of maturity, in whole but not in part, without penalty, at any time after the period ending four months after date of issuance of the Note. Section &. BXECUTION OP NOTH. The Note shall be executed in the name of the City by the Mayor-Commissioner and City Manager and attested by the City Clerk, and approved as to form, sufficiency and correctness by the City Attorney, by their manual signatures, and the official seal of the City shall be affixed thereto or reproduced thereon. The Certificate of Authentication of the Note Registrar shall appear on the Note, and no Note shall be valid or obligatory for any purpose or be entitled to any security or benefit under this Resolution unless such certificate shall have been duly executed on the Note. The authorized signature for the Note Registrar shall be manual. LKL-07/13/85-840A-2223 -4- . I , . In case any officer whose signature shall appear on the Note shall cease to be such officer before the delivery of the Note, such signature shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until such delivery. The' Note may be signed and sealed on behalf of the City by such person who at the actual time of the execution of such Note shall hold the proper office with the City, although at the date of enactment of this Resolution such person may not have held such office or may not have been so authorized. Section 7. NEGOTIABILITY. Except as to registration, the Note shall have all qualities and incidents of a negotiable instrument under the Uniform Commercial Code - Investment Securities of the State of Florida. Section 8. REGJSTRATION, EXCHANGE AND TRANSPER. There shall be a Note Registrar for the Note which shall be the City's Director of Finance. The Note Registrar shall maintain the registration books of the City and be responsible for the transfer and exchange of the Note. The Note may be transferred upon the registration books, upon delivery to the Note Registrar, together with written instructions as to the details of the transfer of the Note, along with the social security number or federal employer identification [lumber of such transferee and, if such transferee is a trust, the name and social security or federal employer identification numbers of the settlor and beneficiaries of the tr\1st, the date of the trust and the name of the trustee. No transfer of the Note shall be effective until entered on the registration books maintained by the Note Registrar. Upon surrender for transfer or exchange of the Note, the City shall execute and the Note Registrar shall authenticate and deliver in the name of the registered owner or the transferee, as the case may be, a new fully registered Note at the earliest practicable time in accordance with the provisions of this Resolution. The City or the Note Registrar may charge the owner of the Note for every such transfer or exchange an amount sufficient to reimburse them for their reasonable fees and for any tax, fee, or other governmental charge required to be paid with respect to such transfer, and may require that such charge be paid before any such new Note shall be delivered. The Note, when presented for transfer, exchange, redemption or payment (if so required by the Note Registrar), shall be accompanied by a written instrument or instruments of transfer or authorization for exchange, in form and with guaranty of signature satisfactory to the Note Registrar, duly executed by the registered holder or by his duly authorized attorney in fact or legal representative. LKL-07/13/85-840A-2223 -5- . I , . The Note, when deliv-ered upon transfer or exchange shall bear interest from the preceding interest payment date so that neither gain nor loss in interest shall result from the transfer or exchange. Any new Note delivered upon any transfer or exchange shall be a valid obligation of the City, evidencing the same debt as the Note surrendered, shall be secured by this Resolution and shall be entitled to all of the security and the benefits hereof to the same extent as the Note surrendered. The City and the Note Registrar shall treat the registered owner of the Note as the absolute owner thereof for all purposes, whether or not the Note shall be overdue, and shall not be bound by any notice to the contrary. Section 9. NOTE MUTILATED, DESTROYED, STOLEN OR LOST. In case the Note shall become mutilated, or be destroyed, stolen or lost, the City may in its discretion issue and deliver a new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in exchange and substitution for such mutilated Note upon surrender and cancellation of such mutilated Note or in lieu of and substitution for the Note destroyed, stolen or lost, and upon the holder furnishing the City proof of his ownership thereof and satisfactory indemnity and complying with such other reasonable regulations and condi- tions as the CJty may prescribe and paying such expenses as the City may incur. The Note so surrendered shall be cancelled by the Note Registrar. If the Note ~hall have matured or be about to mature, instead of issuing a substitute Note, the City may pay the same, upon being indemnified as aforesaid, and if such Note be lost, stolen or destroyed, without surrender thereof. Any such duplicate Notes issued pursuant to this section shall constitute original, additional contractual obligations on the part of the City whether or not the lost, stolen or destroyed Notes be at any time found by anyone, and such duplicate Notes shall be entitled to equal and proportionate benefits and rights as to lien on the source and security for payment from the funds, as hereinafter pledged, to the same extent as the original Note issued hereunder. Section 10. FORM OF NOTE. The text of the Note and the Certificate of Authentication shall be in substantially the form with such omissions, insertions and variations as may be necessary and desirable and authorized and permitted by this Resolution or by any subsequent resolution adopted prior to the issuance thereof, as follows: LKL-07/13/85-840A-2223 -6- . I I . (Form of Note) No. R-1 UNITBD STATBS OP AMBRICA STATB OP PLORlDA CITY OP CLEARWATBR BOND ANTICIPATION NOTE $980,000.00 Registered Holder: Sun Bank/Suncoast, N .A. P.O. Box 12019 St. Petersburg, Florida 33733-2019 Principal Amount: Nine Hundred Eighty Thousand Dollars KNOW ALL MBN BY THESB PB.BSBNTS, that the City of Clearwater, Florida, a municipal corporation of the State of Florida (hereinafter called "City"), for value received, hereby promises to pay to the Registered Holder identified above, the Principal Amount shown above, on , 1986, solely from the revenues hereinafter mentioned, and to pay solely from such revenues, interest on said sum from the date of this Bond or from the most recent interest payment date to which interest has been paid, at the rate of six per centum (6.00~) per annum, subject to adjustment as provided in the Resolution hereinafter mentioned, based on a 360 day year, until the payment of such principal sum, such interest bearing payable on , and at maturity. The principal of this Bond is payable upon presentation and surrender hereof at maturity, at the office of the Director of Finance of the City (the "Paying Agent") in City Hall, Clearwater, Florida, or at the office designated for such payment of any successor thereof. The interest on this Note, when due and payable, shall be paid by check or draft mailed to the Registered Holder, at his address as it appears on the Note Register, at the close of business on the interest payment date (the "Record Date"), irrespective of any transfer of this Note subsequent to such Record Date unless the City shall be in default in payment of interest due on such interest payment date. In the event of any such default, such defaulted interest shall be payable to the person in whose name such Note is registered at the close of business on a special record date for the payment of defaulted interest as established by notice mailed by the Note Registrar to the Registered Holder not less than fifteen days preceding such special record date. Such notice shall be mailed to the person in whose name such Note is registered at the close of business on the fifth (5th) day preceding the date of mailing. LKL-07/13/85-840A-2223 -7- . I , . All amounts due hereunder shall be payable in any coin or currency of the United States of America, which is, at the time of payment, legal tender for the payment of public or private debts. This Note has been issued to finance the cost of certain parking facilities of the City, being constructed for the Clearwater Redevelopment Agency (the "Agency"), which will lease such facilities to the City (the "Project"), pursuant to the authority of and in full compliance with the Constitution and laws of the State of Florida, including particularly Chapter 163, Part III and Chapter 166, Part ll, Florida Statutes, and other applicable provisions of law, and pursuant to a resolution, duly adopted by the City on , 1985 (hereinafter collectively called the "Resolution"), and is subject to all the terms and conditions of such Resolution. This Note is a special obligation of the City payable solely from and secured by an irrevocable lien upon and pledge of the guaranteed entitlement portion of the revenue sharing trust funds of the State of Florida as defined in and distributable to the City pursuant to Chapter 218, Florida Statutes ("Guaranteed Entitlement Funds"), and the proceeds of sale of the Bonds of the Agency, which the Agency has agreed to authorize, validate and issue (hereinafter collectively referred to as the "Pledged Revenues"), all in the manner provided in the Resolution. This Note does not constitute' general obligation, or a pledge of the faith, credit or taxing power of the City, the State of Florida or any political subdivision thereof, within the meaning of any constitutional or statutory provision or limitation. Neither the State of Florida nor any political subdivision thereof, nor the City shall be obligated (1) to exercise its ad valorem taxing power or any other taxing power in any form on any real or personal property in the City to pay the principal of the Note, the interest thereon or other costs incident thereto or (2) to pay the same from any other funds of the City, except from the Pledged Revenues, in the manner provided herein and in the Resolution. It is further agreed between the City and the Registered Holder of this Note that this Note and the indebtedness evidenced hereby shall not constitute a lien on the Project or any other property of the City, but shall constitute a lien only on the Pledged Revenues, in the manner provided in the Resolution. If the date for payment of the principal of or interest on this Note shall be a Saturday, Sunday, legal holiday or a day on which banking institutions in the City of Clearwater are authorized by law or executive order to close, then the date for such payment shall be the next succeeding day which is not a Saturday, Sunday, legal holiday or LKL-07/13/85-840A-2223 -8- . I , . a day on which such banking institutions are authorized to close, and payment on such date shall have the same force and effect as if made on the nom,inal date of payment. In and by the Resolution, the City has covenanted and agreed with the Registered Holder of the Note that it will (1) take no action which will impair or adversely affect its receipt of Guaranteed Entitlement Funds, and (2) set up and appropriate in the annual City budget for expenditure from the Pledged Revenues, while the Note is outstanding and unpaid, sufficient amounts of such Pledged Revenues to pay one hundred per centum (10096) of the principal and interest becoming due on the Note, plus one hundred per centum (10096) of all other payments required by the Resolution; that the first Pledged Revenues received by the City will be applied in amounts sufficient to meet the requirements of the Resolution while the Note is outstanding and unpaid; and that such covenant and agreement by the City to budget and appropriate sufficient amounts of such Pledged Revenues to meet the requirements of the Resolution shall be cumulative, and shall continue until such Pledged Revenues in amounts sufficient to make all required payments shall have been budgeted, appropriated and actually paid in the manner provided in the Resolution. The City has entered into certain other covenants and agreements respecting the Note, as to which reference is made to the Resolution. It is hereby certified and recited that all acts, conditions and things required to exist, to happen and to be performed precedent to and in the issuance of this Note exist, have happened and have been performed in regular and due form and time as required by the laws and Constitution of the State of Florida applicable thereto, and that the issuance of this Note does not violate any constitutional or statutory limitations or provisions. Except as to requirements for registration, this Note shall have the qualities and incidents of a negotiable instrument under the Uniform Commercial Code -Investment Securities of the State of Florida. This Note is issued in the form of a fully registered Note without coupons. This Note is transferable by the Registered Holder hereof in person or by his attorney duly authorized in writing, at the above-mentioned office of the Note Registrar but only in the manner, subject to the limitations and upon payment of the charges provided in the Resolution, and upon surrender and cancellation of this Note. Upon such transfer a new Note of the same maturity and rate of interest, for the same aggregate principal amount, will be issued to the transferee in exchange therefor at the earliest practicable time in accordance with the provisions of the Resolution. This Note may be transferred upon the LKL-07/13/85-840A-2223 -9- e I I . registration books upon delivery to the Note Registrar of the Notes, accompanied by a written instrument or instruments of transfer in form and with guaranty of signature satisfactory to the Note Registrar, duly executed by the Registered Holder of the Note or his attorney-in-fact or legal representative, containing written instructions as to the details of the transfer of such Notes, along with the social security number or federal employer identification number of such transferee and,if such transferee is a trust, the name and social security or federal employer identification numbers of the settlor and beneficiaries of the trust, the federal employer identification number and date of the trust and the name of the trustee. The City or the Note Registrar may charge the Registered Holder of such Note for every such transfer of the Note an amount sufficient to reimburse them for their reasonable fees and any tax, fee, or other governmental charge required to be paid with respect to such transfer, and may require that such charge be paid before any such new Note shall be delivered. The City shall deem and treat the Registered Holder hereof as the absolute owner hereof (whether or not this Note shall be overdue) for the purpose of receiving payment of or on account of principal hereof and interest due hereon and for all other purposes, and the City shall not be affected by any notice to the contrary. This Note shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Resolution until the certificate of authenti- cation endorsed hereon shall have been duly signed by the Note Registrar. IN WITHBS8 WHERBOP, the City of Clearwater, Florida, has issued this Bond and has caused the same to be executed by the manual signature of its Mayor- Commissioner and City Manager, and attested by the manual signature of its City Clerk, and its official seal or a facsimile thereof to be affixed, impressed, imprinted, lithographed or reproduced hereon, as of , 1985. CITY OP CLBAIlWATBR, PLOIlIDA (SEAL) By: Mayor-Com missioner ATTEST: By: City Manager By: City Clerk LKL-07/13/85-840A-2223 -10- . I I . CBRTIPICATB OF' AUTHBNTlCATIOM OF' MOTH RBGISTRAR This Note has been duly authorized by the undersigned. The interest rate, due date, registered owner and principal amount shown above are correct in all respects and have oeen recorded, along with the applicable federal taxpayer identification number and the address of the registered holder, in the Note Register maintained at the principal offices of the undersigned. Registrar Date of Registration and Authentication: By: Director of Finance City of Clearwater, Florida LKL-07/13/85-840A-2223 -11- . I I . ASSIGNMENT POll V ALUB IlBCBIVBD, the undersigned (the "Transferor"), hereby sells, assigns, and transfers unto (Please insert name and Social Security or Federal Employer Identification number of assignee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints (the "Transferee") as attorney to register the transfer of the within Note on the books kept for registration thereof, with full power of substitution in the premises. Date: Signature Guaranteed: NOTICE: Signature(s) must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or a trust company. NOTICE: No transfer will be registered and no new Note will be issued in the name of the Transferee, unless the signature(s) to this assignment corresponds with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change whatever and the Social Security or Federal Employer Identification Number of the Transferee is supplied. The following abbreviations, when used in the inscription on the face of the within Note, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIP GIF MIN ACT- (Cust.) TEN ENT - as tenants by the entireties Custodian for (Minor) JT TEN as joint tenants with right of survivor- ship and not as tenants in common under Uniform Gifts to Minors Act of (State) Additional abbreviations may also be used though not in list above. LKL-07/13/85-840A-2223 -12- . I I . Section 11. NOTE NOT DEBT OIl CITY. The Note shall not be or constitute a general indebtedness of the City or a pledge of its full faith, credit or taxing power within the meaning of any constitutional or statutory provision or limi~ation, but shall be payable solely from and secured by a lien upon and a pledge of the Pledged Revenues as herein provided. No holder of the Note issued hereunder shall ever have the right to require or compel the exercise of the ad valorem taxing power of the City (1) to pay such Note or the interest thereon or (il) to make any other payments provided herein. The Note and the indebtedness evidenced thereby shall not constitute a lien upon the Project on or any other property of or in the City, but shall constitute a lien only on the Pledged Revenues in the manner provided herein. Section 12. SBCUIlITY POll NOTE. The payment of the principal of and interest on the Note shall be secured forthwith equally and ratably by (1) an irrevocable lien on the first proceeds of the Agency Bonds received by the City superior to all other liens or encumbrances on such Pledged Revenues and (il) an irrevocable lien on the Guaranteed Entitlement Funds, junior and subordinate to the lien and pledge of the Guaranteed Entitlement Funds securing the Capital Improvement Bonds, as herein defined, and the City does heretiy irrevocably pledge such Pledged Revenues to the payment of the principal of and iriterest on the Note, for the reserves therefor and for all other required payments hereunder. Section 13. ISSUANCB OP NOTE. Upon issuance of the Note, shall receive the sum of $980,000 from the Bank, which shall be applied as hereinafter provided. Section 14:. COVENANTS OP THE CITY. For as long as any of the principal of and interest on the Note shall be outstanding and unpaid or until provision has been made for such payment under Section 15 hereof, the City covenants with the holders of the Note as follows: A. ANNUAL APPIlOPIlIATION. The City will set up and appropriate in the annual budget for expenditure in each of the Fiscal Years during which the Note is outstanding and unpaid, from the Guaranteed Entitlement Funds, sufficient amounts of such Guaranteed Entitlement Funds to pay one hundred per centum (10096) of the principal and interest becoming due in such year on the Note, plus one hundred per centum (10096) of all other payments required by this Resolution. Such covenant and agreement on the part of the City to budget and appropriate sufficient amounts of such Guaranteed Entitlement Funds to make all payments required by this Resolution shall be cumulative, LKL-07/13/85-840A-2223 -13- . I I . and shall continue until such Guaranteed Entitlement Funds in amounts sufficient to make all required payments shall have been budgeted, appropriated and actually paid in the , manner hereinafter provided. B. OPBRATING PUNDS. The entire Guaranteed Entitlement Funds in each Fiscal Year by the City shall be deposited forthwith into the General Fund of the City and used pursuant to the annual budget and appropriation ordinance or resolution only for the purposes and in the manner herein provided. C. DISPOSITION OP IlBVBNUBs. The first Guaranteed Entitlement Funds shall be disposed of on or before the fifteenth (15th) day of each month, commencing in the month immediately following the delivery of the Note only in the following manner and in the following order of priority: (1) The Guaranteed Entitlement Funds shall first be applied in the manner required by the ordinance authorizing the Capital Improvement Bonds. (2) The Guaranteed Entitlement Funds shall next be deposited into the City's "Note Sinking Fund" (hereinafter called "Sinking Fund"), in such sums as will be sufficient to pay one-third (1/3) of all interest becoming due on the Note on the next quarterly interest payment date (or one-half (1/2) of all interest coming due on the Note on the next interest payment date, as appropriate) and one-eleventh (1/11) of all principal on the Note. Such monthly payments shall be increased or decreased proportionately to the extent required to pay principal and interest becoming due after making allowance for the amounts of money, if any, which will be deposited in the Sinking Fund out of proceeds from the sale of the Agency Bonds, or which will be on deposit therein from investment earnings. (3) The balance of any Guaranteed Entitlement Funds remaining in the General Fund after the above required payments have been made may be used for the redemption of the Note or for any lawful purpose. (4) The City shall immediately deposit all amounts received from the Agency representing the proceeds of the Agency Bonds into the Sinking Fund until the amount therein will be sufficient, together with investment income thereon, to pay all principal of and interest on the Note. (5) The Sinking Fund shall constitute a trust fund for the purposes provided herein. All money in the Sinking Fund shall be continuously secured in the manner by which the deposit of public funds are authorized to be secured by the laws of the State of Florida. Moneys on deposit in the Sinking Fund may be invested and reinvested in LKL-07/13/85-840A-2223 -14- . I I . obligations of the United States of America or placed in time deposits in banks or trust companies represented by certificates of deposit and continuously secured as provided by the laws of the State of Florida, or invested pursuant to the laws of Florida authorizing investment of surplus funds, maturing in any event not later than the date on which the moneys therein will be needed. Any and all income received by the City from such investments shall be deposited into the Sinking Fund. (6) The cash required to be accounted for in the Sinking Fund need not be deposited in a separate bank account, and funds allocated thereto may be invested in a common investment pool, provided that adequate accounting recol'ds are maintained to reflect and control the restricted allocation of the cash on deposit therein and such investments for the purpose of such fund as herein provided. (7) The designation and establishment of the various funds in and by this Resolution shall not be construed to require the establishment of any completely independent, self-balancing funds as such term is commonly defined and used in governmental accounting, but rather is intended solely to constitute an earmarking of certain revenues f?r certain purposes and to establish certain priorities for application of such revenues as hc;!rein provided. . D. BOOKS AND IlECOIlDS. The City shall also keep books and records of the Guaranteed Entitlement Funds and the holder of the Note shall have the right at all reasonable times to inspect all records, accounts and data of the City relating thereto. E. ANNUAL AUDIT. The City shall also, at least once a year, cause the books, records and accounts relating to the total annual budget of the City including the Pledged Revenues to be properly audited by a recognized independent firm of certified public accountants, and shall make generally available the report of such audits to the holder of the Note. F. IlBMBDIBS. The holder of the Note may by suit, action, mandamus or other proceedings in any court of competent jurisdiction, protect and enforce any and all rights, including the right to the appointment of a receiver, existing under the laws of the State of Florida, or granted and contained herein, and may enforce and compel the performance of all duties herein required or by any applicable statutes to be performed by the City or by any officer thereof. Nothing herein, however, shall be construed to grant to the holder of the Note any lien on any real or personal property of the City, or any right to require or compel the levy of ad valorem taxes by the City for any purpose. LKL-07/13/85-840A-2223 -15- ~. . I I . G. OPERATING BUDGET. In accordance with law, the City shall annually, preceding each of its Fiscal Years, prepare and adopt a detailed budget of the esti~ated revenues and expenditures during such next succeeding Fiscal Year, which budget may be amended from time to time in accordance with law. The City shall mail copies of its annual budget to the holaer of the Note if requested in writing that a copy be furnished him and shall make such budget available at all reasonable times to any holder of the Note or to anyone acting for and on behalf of such holder. H. ISSUANCE OP OTHEIl OBLIGATIONS. The City will not issue any other obligations, except under the conditions and in the manner provided herein, payable from the Pledged Revenues or any portion thereof, nor voluntarily create or cause to be created any debt, lien, pledge, assignment, encumbrance or other charge having priority to or being on a parity with the lien of the Note and the interest thereon, upon the Pledged Revenues, except for obligations issued with the consent of the holder of the Note or obligations which are junior and subordinate in all respects to the Note herein authorized, as to lien on and source and security for payment from the Pledged Revenues. J. COMPLETION OP PIlOJECT. The City will immediately disburse the proceeds of the Note to the Agency for the purpose of acquisition and construction of the Project in an economical and efficient manner and with all practicable dispatCh. K. ARBITRAGE. The City at all times while the Bonds and the interest thereon are outstanding will comply with the requirements of Section 103(c) of the Internal Revenue Code of 1954 and any valid and applicable rules and regulations promulgated thereunder. L. NO IMP AIIlMENT~ The pledging of the Pledged Revenues in the manner provided herein shall not be subject to repeal, modification or impairment by any subsequent ordinance, resolution or other proceedings of the governing body of the City or by any subsequent act of the Legislature of Florida enacted after date of issuance of the Note. M. ENTITLBMENT TO GUAIlANTEED ENTITLEMENT FUNDS. The City will take all lawful action necessary or required to continue to entitle the City to receive the Guaranteed Entitlement Funds in the maximum amount provided by law and will take no action which will impair or adversely affect its receipt of Guaranteed Entitlement Funds. Section 15. DEPEASANCE. If, at any time, the City shall have paid, or shall have made provision for payment of, the principal and interest with respect to the LKL-07/13/85-840A-2223 -16- . I I . Note, then, and in that event, the pledge of and lien on the Pledged Revenues in favor of the holders of the Note shall be no longer in effect. For purposes of the preceding sentence, deposit of cash or obligations of the United States of America or bank certificates of deposit fully secured as to principal and interest by obligations of the United States of America (or deposit of any other securities or investments which may be authorized by law from time to time and sufficient under such law to effect such a defeasance) in irrevocable trust with a banking institution or trust company, for the sole benefit of the Noteholder, the principal of which, together with the income thereon, and the uninvested cash, will be sufficient to make timely payment of the principal and interest on the Note, shall be considered "provision for payment." Nothing herein shall be deemed to require the City to call the Note for redemption prior to maturity pursuant to any applicable optional redemption provision, or to impair the discretion of the City in determining whether to exercise any such option for early redemption. Section 18. MODIPICATION OIl AMENDMENT. No modification or amendment of this Resolution or of any resolution amendatory hereof or supplemental , hereto, may be made without the consent in writing of the holder of the Note. Section 17. SBVBIlABILITY OP INVALID PIlOVISlONS. If anyone 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 Note issued hereunder. Section 18. AWARD OP NOTE. The City hereby finds, determines and declares that it is in its best interest to issue the Note contemplated hereby and upon the conditions set forth herein and in the commitment letter received by the City from the Bank. The negotiated sale of the principal amount of the Note stated in the title of this Resolution is hereby authorized pursuant to Section 218.385, Florida Statutes. The City acknowledges receipt of the information required by Section 218.385, Florida Statutes, in connection with negotiated sale of bonds. A copy of the Bank's letter containing the required information is attached to this Resolution as Exhibit "B". LKL-07/13/85-840A-2223 -17- ....... ~.! '. . . e I , e Section 19. SALB 0' NOTE. The Note shall be issued and sold to the Bank set forth in this Resolution, upon adoption by the Agency and delivery to the City and the Bank of the Agency Resolution in substantially the form attached as Exhibit "A". Section 20. AUTHOIlIZATlON OF ALL OTHBIl NECESSAIlY ACTION. The proper officers of the City are hereby authorized and directed to execute the Note when prepared and deliver the same to the Bank upon delivery to the City of the proceeds of the loan and pursuant to the conditions stated in this Resolution and in the Bank's commitment letter. The Mayor-Commissioner, City Clerk, City Manager, and City Attorney for the City are each designated agents of the City in connection with the issuance and delivery of the Note, and are authorized and empowered, collectively or individually, to take all action and steps to execute and delivery any and all instruments, documents or contracts on behalf of the City which are necessary or desirable in connection with the execution and delivery of the Note and which are not inconsistent with the terms and provisions of this Resolution and other actions relating to the Note heretofore taken by the City. Section 21. IlBPBALlNG CLAUSE. All resolutions or parts thereof of the City in conflict with the provisions herein contained are, to the extent of such conflict, hereby superseded and repealed. Section 22. BPl'BCTIVB DATE. This Resolution shall take effect immediately upon its passage. PASSED AND ADOPTED this 18th day of July, A.D. 1985. Is/ Kathleen F. Kelly Mayor-Commissioner Attest: /s/ Lucille Willi2Ds By: City Clerk LKL-07/13/85-840A-2223 -18-