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08-17 , .~' 't RESOLUTION NO. 08-17 A RESOLUTION AUTHORIZING THE NEGOTIATED SALE OF NOT TO EXCEED $12,900,000 CITY OF CLEARWATER, FLORIDA, IMPROVEMENT REVENUE BONDS, SERIES 2008; AWARDING THE SALE THEREOF TO BRANCH BANKING AND TRUST COMPANY, SUBJECT TO THE TERMS AND CONDITIONS OF A COMMITMENT LETTER; PROVIDING FOR THE ISSUANCE OF THE SERIES 2008 BONDS IN BOOK-ENTRY-ONL Y FORM; PROVIDING FOR COMPLIANCE WITH A CONTINUING DISCLOSURE CERTIFICATE; APPOINTING A PAYING AGENT AND REGISTRAR; PROVIDING CERTAIN OTHER MATTERS IN CONNECTION WITH THE ISSUANCE AND DELIVERY OF SUCH BONDS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on October 4, 2001, the City Council of the City of Clearwater, Florida (the "City" or the "Issuer") enacted Ordinance No. 6876-01 (the "Bond Ordinance") to provide for the issuance of Improvement Revenue Bonds, Series [to be determined] (the "Series 2008 Bonds") payable from City's Public Service Tax (as defined in the Bond Ordinance); and WHEREAS, the City has presently outstanding its Improvement Revenue Refunding Bonds, Series 2001 (the "Series 2001 Bonds"), and through this Resolution intends on issuing its Series 2008 Bonds to fund certain capital costs associated with a beach walk revitalization project in the City's south beach area and for the construction of approximately 140 boat slips and 2,500 feet of side moorings in downtown Clearwater (the "Series 2008 Project"); and WHEREAS, it is in the best interest of the City to provide for the negotiated sale of $12,900,000 of Series 2008 Bonds; and WHEREAS, the Issuer issued a request for proposals ("RFP") to banking institutions on July 1, 2008, and received responses thereto on July 15, 2008; and WHEREAS, the Issuer now desires to approve the issuance of its Series 2008 Bonds, to sell its Series 2008 Bonds pursuant to the RFP to Branch Banking and Trust Company, the respondent who provided the lowest cost response to the RFP (the "Bank"), and to take certain other actions in connection with the issuance and sale of the Series 2008 Bonds; and WHEREAS, the Issuer will be provided all applicable disclosure information by the Bank as required by Section 218.385, Florida Statutes; and WHEREAS, this resolution shall constitute a supplemental resolution under the terms of the Bond Ordinance, and all capitalized undefined terms used herein shall have the meanings set forth in the Bond Ordinance; now, therefore, Resolution No. 08-17 , . BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA Section 1. This Resolution is adopted pursuant to the provisions of Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes, the Charter of the City of Clearwater, Florida, the Bond Ordinance and other applicable provisions of law. The series of the Improvement Revenue Bonds, Series [to be determined] authorized by the Bond Ordinance are hereby authorized to be issued in a principal amount of not to exceed $12,900,000 pursuant to this Resolution, with such bonds hereby designated as Series 2008 Bonds (the "Series 2008 Bonds"). The Series 2008 Bonds authorized by this Resolution are hereby authorized to be issued as Additional Parity Obligations under the Bond Ordinance. The issuance of not to exceed $12,900,000 of the Series 2008 Bonds by the City is hereby approved upon the terms and conditions set forth in the Bond Ordinance and this Resolution. The provisions of the Bond Ordinance shall be fully applicable to the Series 2008 Bonds and all of the covenants contained in the Bond Ordinance shall be applicable to the Series 2008 Bonds. Section 2. The Series 2008 Project, consisting of capital costs associated with a beach walk revitalization project in the City's south beach area and for the construction of approximately 140 boat slips and 2,500 feet of side moorings in downtown Clearwater together with related and subordinate improvements and facilities is hereby authorized to be financed with the proceeds of the Series 2008 Bonds. Section 3. It is in the best interest of the Issuer and the residents and inhabitants thereof that the Series 2008 Bonds be issued as fully certificated bonds to the Purchaser. Section 4. Due to the present instability in the market for revenue obligations, the critical importance of the timing of the sale of the Bonds and due to the willingness of the Bank to purchase the Series 2008 Bonds at rates favorable to the Issuer, it is hereby determined that it is in the best interest of the public and the Issuer to sell the Series 2008 Bonds at a negotiated sale. The Issuer has received an offer from the Bank to purchase the Series 2008 Bonds, subject to the terms and conditions set forth in the Bank's Commitment (the "Commitment") dated July 15, 2008, attached hereto as Exhibit "A" and incorporated herein by reference, which Commitment is hereby accepted by the City. The principal amount of the bonds shall not exceed (i) the costs of the Series 2008 Project, (ii) capitalized interest, and (iii) a reasonable allowance for the costs of issuing the Bonds as determined by the Finance Director in consultation with the City's financial advisor. The Series 2008 Bonds are hereby sold and awarded to the Bank in accordance with the Commitment at the price of par, and the Mayor and the City Manager are hereby authorized to execute and deliver the Series 2008 Bonds in the form set forth in the Bond Ordinance attested by the City Clerk and approved as to form and legal sufficiency by the 2 Resolution No. 08-17 , , City Attorney, receive the purchase price therefor and apply the proceeds thereof as provided herein, without further authority from this body. The Mayor and the City Manager are authorized to make any and all changes on the form of the Series 2008 Bond which shall be necessary to conform the same to the Commitment of the Bank. Execution of the Bond by the Mayor and the City Manager shall be conclusive evidence of their approval of the form of the Series 2008 Bond. The Bonds shall be payable solely as provided herein. Prior to purchase of the Series 2008 Bonds, the Bank shall execute a Purchaser's Certificate attached hereto as Exhibit B. The disclosure letter as required by Chapter 218, Florida Statutes is attached hereto as Exhibit C. Section 5. The Series 2008 Bonds shall be issued in fully registered form, in the form set forth in Section 15 of the Bond Ordinance; shall be dated as of their date of initial issuance; shall be numbered; shall be in a single denomination equal to the principal amount thereof; shall mature on August 1, 2028; shall bear interest at the rate of 4.66%, subject to the provision of Section 8 hereof; and such interest to be payable semi-annually on the first (1 st) day of each February and August, commencing on February 1,2009. On the date of the issuance of the Bonds, the Issuer shall receive the proceeds thereof and deposit same into the Construction Fund created under the Bond Ordinance. The Series 2008 Bonds shall be subject to optional redemption in whole, but not in part, on any Interest Payment Date prior to their maturity date at a redemption price equal to the principal amount being redeemed together with interest accrued to the date of redemption; provided that if such redemption occurs on or before August 1, 2018, the redemption price shall also include a prepayment premium of one percent (1.00%) of the principal amount being redeemed. The Series 2008 Bonds are subject to Amortization Installments in part prior to maturity at a redemption price equal to 100% of the principal amount thereof, plus accrued interest to the redemption date beginning on August 1, 2009 and on each August 1 thereafter in the following principal amounts in the years specified: Date Principal Amount Date Principal Amount 8/1/2009 $ 115,000 8/1/2019 $ 670,000 8/1/2010 125,000 8/1/2020 700,000 8/1/2011 465,000 8/1/2021 735,000 8/1/2012 485,000 8/1/2022 770,000 8/1/2013 505,000 8/1/2023 805,000 8/1/2014 535,000 8/1/2024 840,000 8/1/2015 555,000 8/1/2025 880,000 8/1/2016 580,000 8/1/2026 920,000 8/1/2017 610,000 8/1/2027 965,000 8/1/2018 635,000 8/1/2028 1,005,000 3 Resolution No. 08-17 Notwithstanding the foregoing, for so long as the Series 2008 Bonds are owned by the Bank, (i) the principal of, redemption price and interest on the Series 2008 Bonds shall be payable to the Bank on the respective principal and interest payment dates at such address as is provided by the Bank in writing to the Issuer without presentation of the Series 2008 Bonds, and (ii) in the event of a conflict between the terms of the Series 2008 Bonds or this Resolution and the Commitment, the terms and conditions of the Commitment shall control. Section 6. The Series 2008 Bonds shall be issued under and secured by the Bond Ordinance and shall be executed and delivered by the Mayor, the City Manager and the City Clerk upon the approval of the City Attorney as to form and legal sufficiency, in substantially the form set forth in the Bond Ordinance, with such additional changes and insertions therein as conform to the provisions of the Commitment and such execution and delivery shall be conclusive evidence of the approval thereof by such officers. Section 7. The City's Finance Department is hereby designated and authorized to serve as Paying Agent and Registrar for the Series 2008 Bonds. Section 8. The City hereby covenants and agrees that upon a Determination of Taxability, the interest rate on the Series 2008 Bonds shall be increased to the lesser of (i) the Prime Rate plus two percent (2%) per annum based upon a 360 day year based upon twelve (12) thirty (30) day months, or (ii) the maximum interest rate permitted by applicable law. A Determination of Taxability shall mean interest on the Series 2008 Bond is determined or declared, by the Internal Revenue Service or a court of competent jurisdiction, to be includable in the gross income of the holder thereof for federal income tax purposes under the Code. Prime Rate shall mean the rate published by the Bank from time to time and designated as its Prime Rate. Section 9. For purposes hereof, the Reserve Requirement (as defined in the Bond Ordinance) for the Series 2008 Bonds shall be $0.00. Section 10. All prior resolutions of the Issuer inconsistent with the provisions of this resolution are hereby modified, supplemented and amended to conform with the provisions herein contained and except as otherwise modified, supplemented and amended hereby shall remain in full force and effect. Section 11. The Mayor, or in his absence the Vice Mayor, the City Manager, the Finance Director, the City Attorney and the City Clerk or any other appropriate officers of the Issuer are hereby authorized and directed to execute any and all certifications or other instruments or documents required by the Resolution, the Commitment or any other document referred to above as a prerequisite or precondition to the issuance of the Series 2008 Bonds and any such representation made therein shall be deemed to be made on behalf of the Issuer. In the event both the Mayor and the Vice Mayor are unable to execute the documents related to the Series 2008 Bonds, then any other member of the City 4 Resolution No. 08-17 Council shall be authorized to execute such documents with the full force and effect as if the Mayor or the Vice Mayor had executed same. All action taken to date by the officers of the Issuer in furtherance of the issuance of the Series 2008 Bonds is hereby approved, confirmed and ratified. Section 12. This resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 7;th day of August ,2008. ,1~Y~ ---. f Frank V. Hibbard Mayor Approved as to form: ~Akin City Attorney Attest: hia E. Goudeau Clerk 5 Resolution No. 08-17 EXHIBIT A COMMITMENT Resolution No. 08-17 EXHIBIT B FORM OF PURCHASER CERTIFICATE Mayor and City Council City of Clearwater Clearwater, Florida Ladies and Gentlemen: This Certificate is being executed and delivered by the undersigned as purchaser (the "Purchaser") to the City of Clearwater, Florida (the "City"), in connection with the - issuance, sale and delivery of the City's Improvement Revenue Bonds, Series 2008 (the "Bonds") to the Purchaser, in accordance with the terms of the Purchaser's Commitment to the City dated July 15, 2008, being issued pursuant to Ordinance No. 6876-01 (the "Bond Ordinance") and Resolution No. 08-17 (the "Resolution") to fund certain capital costs associated with a beach walk revitalization project in the City's south beach area and for the construction of approximately 140 boat slips and 2,500 feet of side moorings in downtown Clearwater. Terms defined in the Resolution are used in this letter with the meanings assigned to them in the Bond Ordinance and the Resolution. The undersigned hereby represents, warrants and agrees to and with the City that: 1. The Purchaser is an accredited investor as such term is defined in the Securities Act of 1933 and Regulation 0 issued pursuant thereto, a principal part of whose business consists of buying securities such as the Bonds and which is a bank, savings institution, trust company, insurance company, investment company as defined in the Investment Company Act of 1940, pension or profit-sharing trust or other financial institution or institutional buyer or a broker dealer. 2. The Purchaser has received copies of the Bond Ordinance and the Resolution and certain of the other documents or instruments being delivered in connection with the issuance of the Bonds, and said documents are in form and substance satisfactory to the Purchaser and its counsel. 3. The Purchaser has conducted its own investigations, to the extent it deems satisfactory or sufficient into matters relating to the business, properties, management, and financial position and results of operations of the City. 4. The Purchaser understands that the Bonds are not registered under the Securities Act of 1933, as amended. The Purchaser is purchasing the Bonds for its own account for investment and not with a view to, and with no present intention of, distributing or reselling the Bonds or any portion thereof, providing that the Purchaser reserves the right to transfer any or all of the Bonds purchased or any interest therein at any time and in our sole discretion and, in the event that we so transfer Bonds, we assume the Resolution No. 08-17 .' , responsibility for complying with any applicable federal and state securities laws and the terms of the Indenture. The Purchaser understands and agrees that the foregoing representations will be relied upon by the City in the issuance of the Bonds. Very truly yours, BRANCH BANKING AND TRUST COMPANY, as Purchaser By: Name: Title: Resolution No. 08-17 , ..' I , EXHIBIT C FORM OF DISCLOSURE LETTER Mayor and City Council City of Clearwater Clearwater, Florida Ladies and Gentlemen: 1. An itemized list setting forth the nature and estimated amounts of expenses to be incurred by Branch Banking and Trust Company, as the original purchaser (the "Purchaser") in connection with the issuance of $12,900,000 in aggregate principal amount of the City of Clearwater, Florida Improvement Revenue Bonds, Series 2008 (the "Bonds") is attached as Schedule I hereto. 2. No compensation was paid to any finders, as defined in Section 218.386, Florida Statutes, as amended, in connection with the issuance of the Bonds. 3. Underwriting fees in the amount of $14,000 are expected to be realized in the sale of the Bonds. 4. The Bonds are being placed with the Purchaser, as the original purchaser thereof, and no management fee is being charged. 5. No other fee, bonus or other compensation is to be paid by the Purchaser in connection with the Bond issue to any person not regularly employed or retained by them, except for compensation of $5,000 to Greenberg Traurig, P.A., in their capacity as counsel to the Purchaser, which amount is being paid by the Purchaser. 6. There were no underwriters involved in the placement of the Bonds to the Purchaser. 7. (a) The City is proposing to issue $12,900,000 aggregate principal amount of debt or obligations for the purpose of financing the acquisition and construction of certain capital improvements. This debt or obligation is expected to be repaid over a period of 20 years. At a forecasted true interest cost rate of 4.66%, total interest paid over the life of the debt or obligation will be $7,501,706.84. (b) The source of repayment for this issue is the Public Service Tax Revenues of the City. Authorizing this debt will result in approximately $1,020,085 of such revenues of the City not being available to finance other services of the City each year for 20 years. Resolution No. 08-17 .. I , I We understand that you do not require any further disclosure from the Purchaser, pursuant to Section 218.385, Florida Statutes, as amended. BRANCH BANKING AND TRUST COMPANY By: Its: Resolution No. 08-17