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05-28 RESOLUTION NO. 05-28 A RESOLUTION OF THE CITY OF CLEARWATER, FLORIDA, SUPPLEMENTING ORDINANCE NO. 6876-01 TO AUTHORIZE NOT TO EXCEED $15,000,000 IN PRINCIPAL AMOUNT OF IMPROVEMENT REVENUE BONDS, SERIES [TO BE DETERMINED]OF THE CITY OF CLEARWATER, FLORIDA, TO BE ISSUED AS ADDITIONAL PARITY OBLIGATIONS OF THE CITY PURSUANT TO ORDINANCE NO. 6876-01; PLEDGING THE PUBLIC SERVICE TAX REVENUES TO SECURE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON THE BONDS; PROVIDING FOR THE RIGHTS OF THE HOLDERS OF SUCH BONDS; PROVIDING FOR THE PAYMENT THEREOF; MAKING CERTAIN OTHER COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; PROVIDING CERTAIN OTHER MA TIERS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE. BE IT ADOPTED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA, as follows: SECTION 1. AUTHORITY FOR THIS RESOLUTION; RESOLUTION TO BE SUPPLEMENTAL. This Resolution is adopted pursuant to the provisions of Chapter 166, Part II, Florida Statutes, and other applicable provisions of law (the "Act") and the Original Ordinance (as hereinafter defined). This Resolution is supplemental to the Original Ordinance and all provisions of the Original Ordinance not supplemented by the provisions hereof shall (a) remain in full force and effect, (b) apply to the Bonds (as hereinafter defined) issued pursuant to the Original Ordinance and this Resolution to the same extent and in the same manner as such provisions apply to the Parity Bonds, hereinafter defined, and (c) are incorporated herein by reference as if fully set forth. SECTION 2. DEFINITIONS. Unless the context otherwise requires, the terms defined in this Resolution shall have the meanings specified in this section, and any capitalized terms not defined herein shall have the meanings specified in Section 2 of the Original Ordinance. Words importing singular number shall include the plural number in each case and vice versa, and words importing persons shall include firms and corporations. "Beach by Design Ordinance" shall mean, collectively, Ordinance No. 6689-01, as supplemented by Ordinance No. 6917-01, as further supplemented by Ordinance No. 7294-01 and as further supplemented from time to time. Resolution No, 05-28 1 "Beach by Design Plan" shall mean, collectively, the Design for Clearwater Beach and Design Guidelines, as adopted pursuant to the Beach by Design Ordinance, as amended from time to time, within the boundaries of the special area plan as designated by the Beach by Design Ordinance. "Developers" shall mean one or more non-governmental persons with whom the Issuer enters into a Development Agreement in order to implement some or all of the Beach by Design Plan. "Developer Agreement" shall mean those Developer Agreements by and between the Issuer and one or more Developers, for the purpose of implementing all or any portion of the Beach by Design Plan. "Original Ordinance" shall mean City of Clearwater Ordinance No. 6876-01 as thereafter am~nded and supplemented from time to time in accordance with the provisions thereof. "Parity Bonds" shall mean the outstanding Improvement Revenue Refunding Bonds, Series 2001, dated October IS, 2001, and any Additional Parity Obligations issued under the authority of the Original Ordinance in addition to the Series 2005 Bonds. "Resolution" shall mean this Resolution No. 05-28 of the Issuer as hereafter amended and supplemented from time to time in accordance with the provisions hereof. "Series 2005 Bonds" shall mean the not to exceed $15,000,000 in principal amount of Additional Parity Obligations authorized under the Original Ordinance ad this Resolution, and issued hereafter in accordance with the provisions of the Original Ordinance and this Resolution. "Series 2005 Projects" shall mean those public infrastructure improvements and other capital improvements that are to be completed by the Issuer, or the costs of which are to be reimbursed to a Developer pursuant to a Development Agreement for the Developer's completion thereof, consisting of, but not limited to, (i) parking garage access improvements, (ii) reconstruction, relocation or realignment of public roadways and rights of way, including the vacating of public rights of way, (iii) pedestrian walkways and related improvements to South Gulf View and Beach Walk, and (iv) other capital improvements necessary to implement the Beach by Design Plan as set forth in and approved by the Beach by Design Ordinance. SECTION 3. FINDINGS. It is hereby found, determined and declared that: (A) The Issuer has heretofore enacted the Original Ordinance authorizing the issuance of certain obligations to be secured by and payable from the Pledged Revenues, and providing for the issuance of Additional Parity Obligations, upon the conditions set forth therein, to be payable on a parity from such Pledged Revenues. Resolution No. 05-28 2 (B) It is in the best interest of the Issuer to authorize the issuance of the Series 2005 Bonds and the Series 2005 Projects to be funded with the proceeds of such Series 2005 Bonds. (C) Such Bonds shall be payable from the Pledged Revenues on a parity with the then outstanding Parity Bonds. (D) The principal of and interest and redemption premium on the Bonds and all reserve and other payments shall be payable solely from the Pledged Revenues, The Issuer shall never be required to levy ad valorem taxes on any real or personal property therein to pay the principal of and interest on the Bonds herein authorized or to make any other payments provided fro herein. The Bonds shall not constitute a lien upon any properties owned by or located within the boundaries of the Issuer or upon any property other than the Pledged Revenues. (E) The Pledged Revenues should be sufficient to pay all principal of and interest on the Bonds issued hereunder, as the same become due, and to make all required deposits and other payments required by this Resolution and the Original Ordinance. (F) The Original Ordinance, in Section 20(F) thereof, provides for the issuance of Additional Parity Obligations under the terms, limitations and conditions provided therein. (G) The Issuer has complied with the terms, conditions and restrictions contained in the Original Ordinance. The Issuer is, therefore, legally entitled to issue the Bonds as Additional Parity Obligations within the authorization contained in the Original Ordinance. (H) The Issuer has held numerous public hearings and has received and considered significant public input as part of the adoption of the Beach by Design Plan and enacting the Beach by Design Ordinance. (I) Based on the requirements of the Beach By Design Plan and the public input received as part of the creation and adoption of the Beach By Design Plan, the City Council has determined that certain infrastructure and other capital improvements should either be undertaken by the City or undertaken by a Developer pursuant to a Development Agreement subject to reimbursement by the Issuer upon completion, which infrastructure and other capital improvements are directly related to the public health and safety of the citizens, residents and visitors to the City of Clearwater or constitute an industrial development project through the promotion of the economic development of the City of Clearwater. SECTION 4. THE RESOLUTION TO CONSTITUTE CONTRACT. In consideration of the acceptance of the Bonds by the Bondholders from time to time, this Resolution and the Original Ordinance shall be deemed to be and shall constitute a contract between the Issuer and such Bondholders. The covenants and agreements herein set forth to be performed by the Issuer shall be for the equal benefit, protection and security of the legal Holders of any and all of the Bonds, all of Resolution No. 05-28 3 which shall be of equal rank and without preference, priority or distinction of any of the Bonds over any other thereof, except as expressly provided therein and herein. SECTION 5. AUTHORIZATION OF BONDS. Subject and pursuant to the provisions hereof and the Original Ordinance and as shall be described in subsequent resolutions of the Issuer to be adopted prior to the issuance of any Series 2005 Bonds, obligations of the Issuer to be known as "Improvement Revenue Bonds, Series 2005" are authorized to be issued. The aggregate amount of the Series 2005 Bonds which may be executed and delivered under the Original Ordinance and this Resolution shall not exceed $15,000,000. The Issuer may, by subsequent resolution, provide a year designation to any series of Series 2005 Bonds other than "2005" to correspond to the actual calendar year in which such Series of Series 2005 Bonds are issued. SECTION 6. FORM OF THE BONDS. The Bonds shall be substantially in the form of Bond approved by the Original Ordinance, with such omissions, insertions and variations as may be necessary and desirable and authorized and permitted by the Original Ordinance or by any supplemental resolution adopted prior to the issuance thereof. SECTION 7. APPLICATION OF PROVISIONS OF ORIGINAL ORDINANCE. The Series 2005 Bonds shall for all purposes (except as herein expressly provided) be considered to be Additional Parity Obligations issued under the authority of the Original Ordinance and in accordance with such subsequent resolution to be adopted, and shall be entitled to all the protection and security provided therein for the Parity Bonds, and shall be in all respects entitled to the same security, rights and privileges enjoyed by the Parity Bonds. The covenants and pledges contained in the Original Ordinance shall be applicable to each Series of the Series 2005 Bonds in like manner as applicable to the Parity Bonds. The principal of and interest on each Series of Series 2005 Bonds shall be payable from the Sinking Fund established in the Original Ordinance on a parity with the Parity Bonds, and payments shall be made into such Sinking Fund by the Issuer in amounts fully sufficient to pay the principal of and interest on the Parity Bonds and such Series of Series 2005 Bonds as such principal and interest become due. SECTION 8. COVENANTS OF THE ISSUER. The provisions of Section 20 of the Original Ordinance shall be deemed applicable to this Resolution and shall apply to the Series 2005 Bonds issued pursuant to the Original Ordinance and in accordance with this Resolution and any subsequent resolution, as though fully restated herein. Resolution No, 05-28 4 SECTION 9. TAX COVENANTS. (A) The Issuer covenants with the Registered Owners of the Series 2005 Bonds that it shall not use the proceeds of such Series 2005 Bonds in any manner which would cause the interest on such Series 2005 Bonds to be or become includable in the gross income of the Registered Owner thereof for federal income tax purposes. (B) The Issuer covenants with the Registered Owners of the Series 2005 Bonds that neither the Issuer nor any person under its control or direction will make any use of the proceeds of such Series 2005 Bonds (or amounts deemed to be proceeds under the Code) in any manner which would cause such Series 2005 Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code and neither the Issuer nor any other person shall do any act or fail to do any act which would cause the interest on such Series 2005 Bonds to become includable in the gross income of the Registered Owner thereof for federal income tax purposes. (C) The Issuer hereby covenants with the Registered Owners of each Series 2005 Bonds that it will comply with all provisions of the Code necessary to maintain the exclusion of interest on the Bonds from the gross income of the Registered Owner thereof for federal income tax purposes, including, in particular, the payment of any amount required to be rebated to the U.S. Treasury pursuant to the Code. SECTION 10. VALIDATION. The Issuer's Bond Counsel, with the assistance of the City Attorney, is hereby authorized and directed to obtain a judgment validating the issuance of the Series 2005 Bonds in accordance with Chapter 75, Florida Statutes. SECTION 11. SEVERABILITY. If anyone or more of the covenants, agreements, or provisions of this Resolution should 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 separate from the remaining covenants, agreements or provisions of this Ordinance or of the Bonds. SECTION 12. REPEAL OF INCONSISTENT INSTRUMENTS. All resolutions, or parts thereof, in conflict herewith are hereby repealed to the extent of such conflict. Resolution No. 05-28 5 SECTION 13. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. Passed and adopted by the City Commission of the City of Clearwater, Florida, this16th day of June, 2005. 4~i~e ~ ~k Hibbard, Mayor ...0 ......... Att:_st:" ' : ....... - ... - -.... ... ..... ... ~ Approved as'to form: tL~A- City Attorney Resolution No. 05-28 6