09-12 - CONTINUING DISCLOSURE CERTIFICATECONTINUING DISCLOSURE CERTIFICATE
This Continuing Disclosure Certificate (the "Disclosure Certificate") is
executed and delivered by the City of Clearwater, Florida (the "Issuer") in
connection with the issuance of its $67,715,000 Water and Sewer Revenue
Bonds, Series 2009A (the "Series 2009A Bonds") and its $41,700,000 Water and
Sewer Revenue Refunding Bonds, Series 2009B (the "Series 2009B Bonds")
(collectively, the "Series 2009 Bonds"). The Series 2009 Bonds are being issued
pursuant to Ordinance No. 3674-84 enacted by the Issuer on August 2, 1984, as
amended and supplemented in Ordinance 6915-01, enacted November 15, 2001
(collectively, the "Ordinance") and as further supplemented by Resolution 09-12,
adopted by the City on April 15, 2009, as supplemented (the "Series 2009
Resolution"). The Issuer covenants and agrees as follows:
SECTION 1. PURPOSE OF DISCLOSURE CERTIFICATE. This
Disclosure Certificate is being executed and delivered by the Issuer for the
benefit of the Series 2009 Bondholders and in order to assist the original
underwriters of the Series 2009 Bonds in complying with Rule 15c2-12(b)(5)
promulgated by the Securities and Exchange Commission ("SEC") pursuant to
the Securities Exchange Act of 1934 (the "Rule").
SECTION 2. PROVISION OF ANNUAL INFORMATION. Except
as otherwise provided herein, the Issuer shall provide to all of the nationally
recognized municipal securities information repositories described in Section 4
hereof (the "National Repositories"), and to any state information depository that
is established within the State of Florida (the "SID"), on or before June 30 of
each year, commencing June 30, 2010, the information set forth below in this
Section 2. Notwithstanding the immediately preceding sentence, to the extent
any such information does not become available to the Issuer before June 30 of
any year, the Issuer shall provide such information when it becomes available,
but no later than one year following the end of the Issuer's Fiscal Year.
(A) the Issuer's Comprehensive Annual Financial Report for the
immediately preceding Fiscal Year (the "CAFR"), which shall include the audited
financial statements of the Issuer for the immediately preceding Fiscal Year
prepared in accordance with Generally Accepted Accounting Principles, as
modified by applicable State of Florida requirements and the governmental
accounting standards promulgated by the Government Accounting Standards
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Board; provided, however, if the audited financial statements of the Issuer are
not completed prior to April 30 of any year, the Issuer shall provide unaudited
financial statements on such date and shall provide the audited financial
statements as soon as practicable following their completion; and
(B) to the extent not set forth in the CAFR, additional financial
information and operating data of the type included with respect to the Issuer in
the final official statement prepared in connection with the sale and issuance of
the Series 2009 Bonds (as amended, the "Official Statement"), as set forth below:
1. Updates of the historical financial information set forth in the
Official Statement under the principal captions "THE WATER AND
SEWER SYSTEM" for the then-immediately preceding five fiscal years
and " APPENDIX G - SCHEDULE OF RATES, FEES AND CHARGES."
2. Description of any additional indebtedness payable in whole or
in part from the Net Revenues (as defined in the Ordinance).
3. Any other financial information or operating data of the type
included in the Official Statement which would be material to a holder or
prospective holders of the Series 2009 Bonds.
For purposes of this Disclosure Certificate, "Fiscal Year" means the period
commencing on October 1 and ending on September 30 of the next succeeding
year, or such other period of time provided by applicable law.
SECTION 3. REPORTING SIGNIFICANT EVENTS. The Issuer
shall provide to the National Repositories or the Municipal Securities
Rulemaking Board (the "MSRB") and to the SID, on a timely basis, notice of any
of the following events, if such event is material with respect to the Series 2009
Bonds or the Issuer's ability to satisfy its payment obligations with respect to the
Series 2009 Bonds:
(A) Principal and interest payment delinquencies;
(B) Non-payment related defaults;
(C) Unscheduled draws on the debt service reserve fund reflecting
financial difficulties;
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(D) Unscheduled draws on credit enhancement reflecting financial
difficulties:
(E) Substitution of credit or liquidity providers, or their failure to
perform;
(F) Adverse tax opinions or events affecting the tax-exempt status of
the Series 2009 Bonds;
(G) Modifications to rights of Series 2009 Bondholders;
(H) Redemptions;
(I) Defeasances;
(J) Release, substitution, or sale of property securing repayment of the
Series 2009 Bonds;
(K) Rating changes; and
(L) Notice of any failure on the part of the Issuer or any other Obligated
Person (as defined herein) to meet the requirements of Section 2 hereof.
The Issuer may from time to time, in its discretion, choose to provide
notice of the occurrence of certain other events, in addition to those listed in this
Section 3, if, in the judgment of the Issuer, such other events are material with
respect to the Series 2009 Bonds, but the Issuer does not specifically undertake
to commit to provide any such additional notice of the occurrence of any material
event except those events listed above.
Whenever the Issuer obtains knowledge of the occurrence of a significant
event described in this Section 3, the Issuer shall as soon as possible determine
if such event would be material under applicable federal securities law to holders
of Series 2009 Bonds, provided, that any event under clauses (D), (E), (F), (K) or
(L) above will always be deemed to be material.
SECTION 4. National Repositories. Prior to July 1, 2009, or such
later date as the Securities and Exchange Commission shall state as the
effective date for the amendments to the Rule pursuant to Release No. 34-59062
(Dec. 5, 2008) (the "Effective Date"), the term "National Repositories" to which
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the Issuer shall provide the information described in Sections 2 and 3 above, to
the extent required, shall, mean the following organizations, their successors
and assigns:
(A) Bloomberg Municipal Repository
100 Business Park Drive
Skillman, New Jersey 08558
Phone: 609/279-3225
Fax: 609/279-5962
E-Mail: Munis@Bloomberg.com
(B) FT Interactive Data
Attn: NRMSIR
100 William Street, 151n Floor
New York, New York 10035
Phone: 212/771-6999
Fax: 212/771-7390
E-Mail: NRMSIR@interactivedata.com
(C) Standard & Poor's Securities Evaluations, Inc.
55 Water Street, 45th Floor
New York, New York 10041
Phone: 212/438-4595
Fax: 212/438-3975
E-Mail: nrmsir_repository@sandp.com
(D) DPC Data Inc.
One Executive Drive
Fort Lee, New Jersey 07024
Phone: 201/346-0701
Fax: 201/947-0107
E-Mail: NRMSIRGdpcdata.com
(E) A list of the names and addresses of all designated National
Repositories and SIDS as of any date may currently be obtained by calling the
SEC's Fax on Demand Service at 202/942-8088 and requesting document
number 0206 or by visiting the SEC's website at
www. sec. L,ov/info/muniCiD al/nrmsir.htm.
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Subsequent to the Effective Date, the term "National Repositories" shall
mean the Municipal Securities Rulemaking Board established pursuant to
Section 1513(b)(1) of the Securities Exchange Act of 1934
SECTION 5. NO EVENT OF DEFAULT. Notwithstanding any
other provision in the Ordinance to the contrary, failure of the Issuer to comply
with the provisions of this Disclosure Certificate shall not be considered an event
of default under the Ordinance; provided, however, any Series 2009 Bondholder
may take such actions as may be necessary and appropriate, including pursuing
an action for mandamus or specific performance, as applicable, by court order, to
cause the Issuer to comply with its obligations hereunder. For purposes of this
Disclosure Certificate, "Series 2009 Bondholder" shall mean any person who (A)
has the power, directly or indirectly, to vote or consent with respect to, or to
dispose of ownership of, any Series 2009 Bonds (including persons holding Series
2009 Bonds through nominees, depositories or other intermediaries), or (B) is
treated as the owner of any Series 2009 Bond for federal income tax purposes.
SECTION 6. INCORPORATION BY REFERENCE. Any or all of
the information required herein to be disclosed may be incorporated by reference
from other documents, including official statements or debt issues of the Issuer
of related public entities, which have been submitted to each of the National
Repositories and the SID, if any, or the SEC. If the document incorporated by
reference is a final official statement, it must be available from the MSRB_ The
Issuer shall clearly identify each document incorporated by reference.
SECTION 7. DISSEMINATION AGENTS. The Issuer may, from
time to time, appoint or engage a dissemination agent to assist it in carrying out
its obligations under this Disclosure Certificate, and may discharge any such
agent, with or without appointing a successor disseminating agent.
SECTION 8. TERMINATION. The Issuer's obligations under this
Disclosure Certificate shall terminate upon (A) the legal defeasance, prior
redemption or payment in full of all of the Series 2009 Bonds, or (B) the
termination of the continuing disclosure requirements of the Rule by legislative,
judicial or administrative action.
SECTION 9. AMENDMENTS. Notwithstanding any other
provision of this Disclosure Certificate, the Issuer may amend this Disclosure
Certificate, and any provision may be waived, if such amendment or waiver is
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supported by an opinion of counsel that is nationally recognized in the area of
federal securities laws, to the effect that such amendment or waiver would not,
in and of itself, cause the undertakings herein to violate the Rule if such
amendment or waiver had been effective on the date hereof but taking into
account any subsequent change in or official interpretation of the Rule.
SECTION 10. ADDITIONAL INFORMATION. Nothing in this
Disclosure Certificate shall be deemed to prevent the Issuer from disseminating
any other information, using the means of dissemination set forth in this
Disclosure Certificate or any other means of communication, or including any
other information in its annual information described in Section 2 hereof or
notice of occurrence of a significant event described in Section 3 hereof, in
addition to that which is required by this Disclosure Certificate. If the Issuer
chooses to include any information in its annual information or notice of
occurrence of a significant event in addition to that which is specifically required
by this Disclosure Certificate, the Issuer shall have no obligation under this
Disclosure Certificate to update such information or include it in its future
annual information or notice of occurrence of a significant event.
SECTION 11. OBLIGATED PERSONS. If any person, other than
the Issuer, becomes an Obligated Person (as defined in the Rule) relating to the
Series 2009 Bonds, the Issuer shall use its best efforts to require such Obligated
Person to comply with all provisions of the Rule applicable to such Obligated
Person.
Dated as of this 27th day of May, 2009
ATTEST:
CITY OF CLEARWATER.,
FLORIDA
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By:
Mayor
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