14-21RESOLUTION NO. 14 -21
A RESOLUTION AUTHORIZING THE NEGOTIATED SALE OF NOT TO
EXCEED $5,500,000 CITY OF CLEARWATER, FLORIDA,
STORMWATER SYSTEM REVENUE REFUNDING BOND, SERIES
2014; AWARDING THE SALE THEREOF TO TD BANK, N.A.,
APPOINTING AN ESCROW AGENT; APPOINTING A PAYING AGENT
AND REGISTRAR; APPROVING THE FORM OF ESCROW DEPOSIT
AGREEMENT; PROVIDING CERTAIN OTHER MATTERS IN
CONNECTION WITH THE ISSUANCE AND DELIVERY OF SUCH
BOND; RATIFYING THE EXECUTION AND DELIVERY OF THE
INTEREST RATE LOCK AGREEMENT; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, on April 15, 1999, the City Council of the City of Clearwater, Florida
(the "City ") enacted Ordinance No. 6378 -99 (the "Original Ordinance ") to provide for the
issuance of bonds payable from Net Revenues of the Stormwater System (as defined
therein); and
WHEREAS, on July 18, 2002, the City enacted Ordinance No. 6931 -02 (the
"2002 Ordinance ") which amended the Original Ordinance, which 2002 Ordinance was
amended by Ordinance No. 8419 -13 enacted on June 6, 2013 (together with the
Original Ordinance and the 2002 Ordinance, the "Bond Ordinance ") which authorized
the issuance of the City of Clearwater, Florida, Stormwater System Revenue
[Refunding] Bonds, Series [to be determined], as Additional Parity Obligations under the
Original Ordinance; and
WHEREAS, the City by this Resolution intends to provide for the issuance of its
not to exceed $5,500,000 City of Clearwater, Florida Stormwater System Revenue
Refunding Bond, Series 2014 (the "Series 2014 Bond ") as an Additional Parity
Obligation under the Bond Ordinance to currently refund a portion of the City's
outstanding Stormwater System Revenue Refunding Bonds, Series 2005 (the
"Refunded Bonds "); and
WHEREAS, the Series 2014 Bond will be issued on a parity with the City's
unrefunded Stormwater System Revenue Refunding Bonds, Series 2005, Stormwater
System Revenue Refunding Bonds, Series 2012 and Stormwater System Revenue
Refunding Bonds, Series 2013 (collectively, the "Parity Bonds "); and
WHEREAS, it is in the best interest of the City to provide for the negotiated sale
of the not to exceed $5,500,000 Series 2014 Bond; and
WHEREAS, the City issued a request for proposals ( "RFP ") to banking and other
institutions on April 16, 2014, and received responses thereto on May 16, 2014; and
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WHEREAS, the City now desires to approve the issuance and sale of its Series
2014 Bond pursuant to the RFP to TD Bank, N.A. (the "Bank "), the respondent who
provided the most favorable response to the RFP, to ratify the execution and delivery of
an Interest Rate Lock Agreement between the Bank and the City dated May 22, 2014
(the "Interest Rate Lock Agreement ") and to take certain other actions in connection
with the issuance and sale of the Series 2014 Bond; and
WHEREAS, the City 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, 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. A series of the Stormwater System Revenue Refunding Bonds
authorized by the Bond Ordinance is hereby authorized to be issued in a principal
amount of not to exceed $5,500,000 pursuant to this Resolution, with such bond hereby
designated as Series 2014. The Series 2014 Bond authorized by this Resolution is
hereby authorized to be issued as an Additional Parity Obligation under the Bond
Ordinance. The issuance of the not to exceed $5,500,000 Series 2014 Bond by the City
is hereby approved upon the terms and conditions set forth in the Bond Ordinance and
this Resolution.
The current refunding of the Refunded Bonds with a redemption date of
November 1, 2014 is hereby authorized, to be paid in part with the proceeds of the
Series 2014 Bond herein authorized. The City Manager or in his absence an Assistant
City Manager, and Finance Director are hereby authorized and directed to provide
irrevocable directions to defease and redeem the Refunded Bonds.
The provisions of the Bond Ordinance shall be fully applicable to the Series 2014
Bond and all of the covenants contained in the Bond Ordinance shall be applicable to
the Series 2014 Bond. For purposes hereof, the City acknowledges that the provisions
of Section 21 of the Original Ordinance respecting the rights of a Bond Insurer to
exercise the rights of a bondholder apply only as to the bonds insured by such Bond
Insurer and shall not be applicable to the Series 2014 Bond as the Series 2014 Bond is
not insured by a Bond Insurer.
SECTION 2. It is in the best interest of the City and the residents and inhabitants
thereof that the Series 2014 Bond be issued as a fully certificated bond to the Bank.
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SECTION 3. Due to the critical importance of the timing of the sale of the Series
2014 Bond and due to the willingness of the Bank to purchase the Series 2014 Bond at
a rate favorable to the City, it is hereby determined that it is in the best interest of the
public and the City to sell the Series 2014 Bond at a negotiated sale. The City has
received an offer from the Bank to purchase the Series 2014 Bond, subject to the terms
and conditions set forth in the Bank's Term Sheet dated May 16, 2014 and the Interest
Rate Lock Agreement (collectively, the "Term Sheet "), attached hereto collectively as
Exhibit A, which Term Sheet is hereby accepted by the City with certain modifications
as provided herein and in the Series 2014 Bond. The execution and delivery by the City
of the Interest Rate Lock Agreement is hereby ratified.
The Series 2014 Bond is hereby sold and awarded to the Bank at the price of
par, and the Mayor, or in his absence the Vice - Mayor, and the City Manager, or in his
absence an Assistant City Manager, are hereby authorized to execute and deliver the
Series 2014 Bond substantially in the form attached hereto as Exhibit B attested by the
City Clerk and approved as to form and legal sufficiency by the City Attorney, receive
the purchase price therefor and apply the proceeds thereof to the refunding of the
Refunded Bonds as provided herein, without further authority from this body. The
Mayor, or in his absence the Vice - Mayor, and the City Manager, or in his absence an
Assistant City Manager, are authorized to make any and all changes on the form of the
Series 2014 Bond which shall be necessary to conform the same to the terms hereof.
Execution of the Series 2014 Bond by the Mayor, or in his absence the Vice - Mayor, and
the City Manager, or in his absence an Assistant City Manager, shall be conclusive
evidence of their approval of the form of the Series 2014 Bond. The Series 2014 Bond
shall be payable solely as provided herein. Prior to purchase of the Series 2014 Bond,
the Bank shall execute a Purchaser's Certificate attached hereto as Exhibit C. The
disclosure letter as required by Chapter 218, Florida Statutes is attached hereto as
Exhibit D. In connection with the transfer of the Series 2014 Bond to a subsequent
holder except for an affiliate of the Bank, such successor holder shall deliver to the City
a Purchaser's Certificate substantially in the form attached hereto as Exhibit C prior to
such Series 2014 Bond being registered in the name of such successor holder. For
purposes of this provision "affiliate" shall mean, as to any person, any other person that
directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is
under common Control with, such person. For the purposes of this definition, "Control"
shall mean the power, directly or indirectly, either to (i) vote 5% or more of the securities
having ordinary voting power for the election of directors (or persons performing similar
functions) of a person or (ii) direct or cause the direction of the management and
policies of a person, whether through the ability to exercise voting power, by control or
otherwise. The terms "Controlled by" and "under common Control with" have the
meanings correlative thereto.
SECTION 4. The Series 2014 Bond shall be issued in fully registered form; shall
be dated as of its date of initial issuance; shall be numbered; shall be in a single
denomination equal to the principal amount thereof which principal amount shall not
exceed $5,500,000 and shall be determined by the City Manager or Assistant City
Manager and the Mayor prior to the issuance thereof; shall mature on November 1,
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2029; shall bear interest at the rate of 2.72% (the "Interest Rate "), subject to the
provisions of Section 8 hereof; and such interest to be payable semi - annually on the
first (1st) day of each May and November, commencing on November 1, 2014. Interest
shall be calculated on the basis of a 360 day year consisting of twelve 30 day months.
On the date of the issuance of the Series 2014 Bond, the City shall receive the
proceeds thereof and deposit the same to pay costs of issuance of the Series 2014
Bond and to refund the Refunded Bonds in accordance with the Escrow Deposit
Agreement.
The Series 2014 Bond shall be subject to optional redemption in whole or in part
prior to its maturity date, upon two Business Days prior written notice (i) on any
Business Day (hereafter defined) prior to the fifth (5th) anniversary of the dated date of
the Series 2014 Bond at a redemption price equal to the principal amount being
redeemed together with interest accrued to the date of redemption plus the Prepayment
Fee, as defined below, and (ii) on any Business Day on or after the fifth (5th) anniversary
of the dated date of the Series 2014 Bond at a redemption price equal to the principal
amount being redeemed together with interest accrued to the date of redemption.
"Business Day" shall mean any day other than a Saturday or Sunday or any day
on which the Bank is lawfully closed.
"Prepayment Fee" shall mean, a fee equal to the greater of (i) 1.00% of the
principal balance being prepaid multiplied by the remaining term of the Series 2014
Bond, and (ii) the Yield Maintenance Fee.
The "Yield Maintenance Fee" shall be computed as follows: the current cost of
funds, specifically the bond equivalent yield for United States Treasury securities (bills
on a discounted basis shall be converted to a bond equivalent yield) with a maturity date
closest to the remaining term of the Series 2014 Bond, shall be subtracted from the
Interest Rate, or Default Rate (hereinafter defined) if applicable. If the result is zero or a
negative number, there shall be no Yield Maintenance Fee due and payable. If the
result is a positive number, then the resulting percentage shall be multiplied by the
scheduled outstanding principal balance for each remaining monthly period of the
remaining term of the Series 2014 Bond. Each resulting amount shall be divided by 360
and multiplied by the number of days in the monthly period. Said amounts shall be
reduced to present values calculated by using the above referenced current costs of
funds divided by 12. The resulting sum of present values shall be the Yield
Maintenance Fee.
The Series 2014 Bond is subject to mandatory redemption from 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 on the dates and in the
amounts as provided in the Series 2014 Bond as approved by the City Manager or
Assistant City Manager and the Mayor prior to the issuance thereof, execution of the
Series 2014 Bond to be conclusive evidence of such approval.
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Notwithstanding the foregoing, for so long as the Series 2014 Bond is owned by
the Bank, the principal of, redemption price and interest on the Series 2014 Bond shall
be payable to the Bank on the respective principal and interest payment dates through
ACH direct transfer to the Bank, and upon transfer of the Series 2014 Bond to a
subsequent holder, at such address as is provided by such subsequent holder in writing
to the City without presentation of the Series 2014 Bond.
SECTION 5. The Series 2014 Bond shall be issued under and secured by the
Bond Ordinance on a parity with the Parity Bonds and any Additional Parity Obligations
hereafter issued and shall be executed and delivered by the Mayor, or in his absence
the Vice - Mayor, the City Manager, or in his absence an Assistant 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 and Exhibit B hereto, with such
additional changes and insertions therein as conform to the provisions of this Resolution
and such execution and delivery shall be conclusive evidence of the approval thereof by
such officers.
SECTION 6. U.S. Bank National Association is hereby designated and
authorized to serve as Escrow Agent for the Refunded Bonds. The Escrow Deposit
Agreement is to be in substantially the form set forth in Exhibit E attached hereto,
together with such changes as shall be approved by the Mayor, or in his absence the
Vice - Mayor, the City Manager, or in his absence an Assistant City Manager, such
approval to be conclusively evidenced by their execution thereof. The execution of the
Escrow Deposit Agreement is hereby approved, and the execution of the Escrow
Deposit Agreement by the Mayor, or in his absence the Vice -Mayor and the City
Manager, or in his absence an Assistant City Manager, is hereby authorized, to be
attested by the City Clerk, the form of which to be approved by the City Attorney. At the
time of execution of the Escrow Deposit Agreement, the City shall furnish to the Escrow
Agent named therein appropriate documentation to demonstrate that the sums being
deposited and the investments to be made will be sufficient for such purposes.
SECTION 7. The City's Finance Director is hereby appointed to serve as the
Paying Agent and Registrar for the Series 2014 Bond.
SECTION 8. The interest rate payable on the Series 2014 Bond shall be subject
to adjustment in accordance with the following provisions:
"Default Rate" shall mean a rate per annum equal to the Prime Rate plus 4 %.
"Determination of Taxability" means a final decree or judgment of any Federal
court or a final action of the Internal Revenue Service or of the United States Treasury
Department determining that interest payable on the Series 2014 Bond is or was
includable in the gross income of the Bondholder for Federal income tax purposes. No
such decree, judgment, or action will be considered final for this purpose, however,
unless the City has been given written notice thereof and, if it is so desired by the City
and is legally permissible, the City has been afforded the opportunity to contest the
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same, at its own expense, either directly or in the name of the Bondholder, and until the
conclusion of any appellate review, if sought.
"Event of Default" shall mean (a) an Event of Default under the Bond Ordinance,
or (b) the occurrence by the City of a failure to comply with one or more covenants or
agreements set forth in the Bond Ordinance or this Resolution, which default or
non - compliance shall continue and not be cured within thirty (30) days from receipt by
the City of notice of such default or non - compliance by the Holder.
"Interest Rate" shall mean a per annum rate equal to 2.72 %, prior to a
Determination of Taxability or an Event of Default.
"Prime Rate" shall mean the per annum rate which TD Bank, N.A. announces
from time to time to be its prime rate, as in effect from time to time. The prime rate is a
reference or benchmark rate, is purely discretionary and does not necessarily represent
the lowest or best rate charged to borrowing customers. TD Bank, N.A. may make
commercial loans or other loans at rates of interest at, above or below the prime rate.
Each change in the prime rate shall be effective from and including the date such
change is announced as being effective.
"Taxable Period" shall mean the period of time commencing on the date that
interest on the Series 2014 Bond ceased to be excludable from gross income of the
Holder thereof for federal income tax purposes and ending on the earlier of the date the
Series 2014 Bond ceases to be outstanding or such adjustment is or longer applicable
to the Series 2014 Bond.
"Taxable Rate" shall mean, upon a Determination of Taxability, the interest rate
per annum that shall provide the Holder with the same after tax yield that the Holder
would have otherwise received had the Determination of Taxability not occurred, taking
into account the increased taxable income of the Holder as a result of such
Determination of Taxability. The Holder shall provide the City with a written statement
explaining the calculation of the Taxable Rate, which statement shall, in the absence of
manifest error, be conclusive and binding on the City.
The City shall pay interest upon the unpaid principal balance of the Series 2014
Bond at the Interest Rate, subject to adjustment as provided herein. Upon a
Determination of Taxability, the Interest Rate shall be the Taxable Rate, and upon and
during the continuance of an Event of Default (notwithstanding that a Determination of
Taxability has also occurred) the Interest Rate shall equal the Default Rate.
In the event of a Determination of Taxability, the interest rate payable hereunder
and under the Series 2014 Bond shall be subject to adjustment to the Taxable Rate,
effective retroactively to the date on which such Determination of Taxability was made.
In addition, upon a Determination of Taxability, the City agrees to pay to the Holder,
subject to such Determination of Taxability, the Additional Amount upon demand.
"Additional Amount" means (i) the difference between (a) interest on the Series 2014
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Bond for the Taxable Period at a rate per annum equal to the Taxable Rate, and (b) the
aggregate amount of interest paid on the Series 2014 Bond for the Taxable Period
under the provisions of the Series 2014 Bond without considering the Determination of
Taxability, plus (ii) any penalties and interest paid or payable by such Holder to the
Internal Revenue Service by reason of such Determination of Taxability.
SECTION 9. For purposes hereof, the Reserve Requirement (as defined in the
Bond Ordinance) for the Series 2014 Bond shall be $0.00, and the Series 2014 Bond
shall not be entitled to any security provided by any monies on deposit in the Reserve
Account.
SECTION 10. The City agrees with the holder of the Series 2014 Bond to not
change or amend the covenants set forth in Section 20 of the Original Ordinance in a
manner that would adversely affect the rights and interests of the holder of the Series
2014 Bond without the written consent of such holder and shall not amend, in any
respect, without the written consent of the Holder, Sections 20(D) and 20(Q) of the
Original Ordinance and the definitions of "Gross Revenues," "Net Revenues" and "Cost
of Operation and Maintenance" as defined in Section 2 of the Original Ordinance.
SECTION 11. All prior resolutions of the City 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 12. The Mayor, or in his absence the Vice - Mayor, the City Manager,
or in his absence an Assistant City Manager, the Finance Director, the City Attorney and
the City Clerk or any other appropriate officers of the City are hereby authorized and
directed to execute any and all certifications or other instruments or documents required
by the Resolution, the Term Sheet, the Escrow Deposit Agreement or any other
document referred to above as a prerequisite or precondition to the issuance of the
Series 2014 Bond and any such representation made therein shall be deemed to be
made on behalf of the City. In the event both the Mayor and the Vice -Mayor are unable
to execute the documents related to the Series 2014 Bond, then any other member of
the City 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 City in furtherance of the issuance of the Series 2014 Bond is hereby
approved, confirmed and ratified.
SECTION 13. The proceeds received from the delivery of the Series 2014 Bond,
together with any other monies lawfully available therefor, shall be applied by the City
simultaneously with the delivery of the Series 2014 Bond to the Bank, as follows:
(i) to the extent not paid from legally available funds of the City, an amount
which shall pay the costs and expenses associated with the issuance of the Series 2014
Bond; and
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(ii) a sum specified in the Escrow Agreement that shall be sufficient, taking
into account other legally available moneys of the City, if any, to pay the principal of,
interest on and redemption premium, if any, on the Refunded Bonds, shall be deposited
into the escrow account created under the Escrow Agreement (the "Escrow Account ").
Simultaneously with the delivery of the Series 2014 Bond, the City is authorized
to transfer or cause to be transferred to the Escrow Account, moneys, if any,
accumulated in any sinking and /or reserve funds which were intended to be used to pay
debt service on the Refunded Bonds.
The proceeds of the Series 2014 Bond shall be and constitute trust funds for the
purposes hereinafter provided and there is hereby created a lien upon such monies,
until deposited under the Escrow Agreement, in favor of the Holders of the Series 2014
Bond.
SECTION 14. The City will submit to the Bank (i) the City's audited annual
financial statements within 210 days of the end of each fiscal year, (ii) the City's
approved budget within 60 days after the final approval thereof, (iii) a certification from
the Finance Director to the effect that, to his actual knowledge, the City is in compliance
with all covenants contained in the Bond Ordinance and this Resolution within 90 days
of the end of each fiscal year, and (iv) any other financial information the Bank may
reasonably request.
SECTION 15. To the extent permitted by law, the City knowingly, voluntarily, and
intentionally waives any right it may have to a trial by jury, with respect to any litigation
or legal proceedings based on or arising out of this Resolution or the Series 2014 Bond,
including any course of conduct, course of dealings, verbal or written statement or
actions or omissions of any party which in any way relates to the Series 2014 Bond or
this Resolution.
SECTION 16. In the event a rating with respect to debt payable from the
Pledged Revenues falls below BBB /Baa (or equivalent) or is no longer maintained by
the City, the coverage requirement contained in Section 20(D) of the Original Ordinance
(RATE COVENANT) shall be increased from 115% to 140% until such time as such
rating is at least BBB /Baa (or equivalent) or the Series 2014 Bond is no longer
outstanding.
SECTION 17. The substantive laws of the State of Florida shall govern this
Agreement. The parties hereto submit to the jurisdiction of Florida courts and agree
that venue for any suit concerning this Resolution shall be in Pinellas County, Florida.
SECTION 18. The City covenants that it will maintain its solvency through the
term of the Series 2014 Bond to avoid an act of bankruptcy or the rearrangement,
adjustment or readjustment of the obligations of the City under the provisions of any
bankruptcy or moratorium laws or similar laws relating to or affecting creditor's rights.
125341/013/00885146.DOCv6) Resolution No. 14 -21
8
SECTION 19. This
adoption.
Passed and adopted
19th day of June, 2014.
(SEAL)
ATTEST:
Resolution shall become effective immediately upon its
by the City Council of the City of Clearwater, Florida, this
By: 'eioritikvt\ -tIGos
-0 Rosemarie CaII
City Clerk
Approved as to form:
Pamela K A
City Attorney
R 25341 /013/00885146. DOC v6 }
9
George N. Cretekos
Mayor
Resolution No. 14 -21
EXHIBIT A
TERM SHEET
125341/013/00885146.DOCv6} Resolution No. 14 -21
A -1
TD BANK, N.A. ( "BANK ")
TERMS AND CONDITIONS OF CREDIT ACCOMMODATION DATED
DATE ( "LOAN ")
THIS IS A STATEMENT OF TERMS AND CONDITIONS AND NOT A COMMITMENT TO LEND. ALL
CREDIT ACCOMMODATIONS ARE SUBJECT TO FORMAL CREDIT UNDERWRITING AND
APPROVAL.
Loan.
(a) Borrower(s): City of Clearwater, Florida ( "Borrower ")
(b) Facility Amount: Up to $5,455,000 ("Stormwater System Revenue Refunding Bonds,
Series 2014 ")
(c) Facility Type: Non -Bank Qualified Tax - Exempt Bank Term Loan, Series 2014
(d) Purpose:
(e) Maturity:
(f)
Repayment Terms:
Proceeds shall be used to current refund the Borrower's callable
Stormwater System Revenue Refunding Bonds, Series 2005.
Novernber 1, 2029
Semi - annual interest payments beginning November 1, 2014 through
the proposed maturity date (using a 30/360 day count). Annual principal
payments beginning November 1, 2015 over a 15 -year amortization
period, as per the attached Exhibit A.
(g) Interest Rate: Indicative Non -Bank Qualified Tax Exempt Fixed Rate of 2.55 % as of
5/12/2014.
The actual interest rate shall be set three business days prior to Closing
based upon the following formula from below:
69% of 10-year Fed Reserve H.15 Interest Swap Rate + 67bps = 2.55%
as of 5/12/2014
The Bank will also make available the option to lock -in the above quoted
loan rate for the Borrower for a period of 40, 60, 80 or 90 days, which is
subject to the Borrower executing the Bank's Rate Lock Agreement.
A premium of 4 basis points will be added to the quoted rate in order to
hold the stated rate for 40 days.
A premium of 5 basis points will be added to the quoted rate in order to
hold the stated rate for 60 days.
A premium of 7 basis points will be added to the quoted rate in order to
hold the stated rate for 80 days.
A premium of 8 basis points will be added to the quoted rate in order to
hold the stated rate for 90 days.
(h) Prepayment Privilege: Option A: "Closed
Standard Bank Pre - Payment Language as per below:
At the time of any full or partial prepayment, a fee equal to the greater of
(i) 1:00% of the principal balance being prepaid multiplied by the
"Remaining Term," as hereinafter defined, in years or (ii) a "Yield
Maintenance Fee" in an amount computed as follows:
The current cost of funds, specifically the bond equivalent yield for
United States Treasury securities (bills on a discounted basis shall be
converted to a bond equivalent yield) with a maturity date closest to the
"Remaining Term ", shall be subtracted from the Note rate, or default rate
if applicable. If the result is zero or a negative number, there shall be no
Yield Maintenance Fee due and payable. If the result is a positive
number, then the resulting percentage shall be multiplied by the
scheduled outstanding principal balance for each remaining monthly
period of the "Remaining Term:" Each resulting amount shall be divided
by 360 and multiplied by the number of days in the monthly period. Said
amounts shall be reduced to present values calculated by using the
above reference current costs of funds divided by 12. The resulting sum
of present values shall be the yield maintenance fee due to the Bank
upon prepayment of the principal of the loan plus any accrued interest
due as of the prepayment date,
"Remaining Term" as used herein shall mean the shorter of (1) the
remaining term of this Note, or (ii) the remaining term of the then current
fixed interest rate period.
Option 8: "Open
No Prepayment Penalty during term of Loan:
The Borrower can elect to have a "no prepayment penalty" provision
associated with the Term Loan by adding a premium of 37bps to the
proposed indicative fixed rate(s).
(i) Expected Closing: On or about August 5, 2014.
(j) Default Rate of Interest: The "default rate of interest" shall be four (4) percentage points in
excess of the prime rate of interest upon the occurrence of the event of
default.
2. Fees and Expenses.
No Bank Fee — Waived.
The Borrowers shall be responsible for Bank Counsel Fees for the review of the loan documentation
2
which will be prepared by Borrower's Counsel. Bank Counsel Fees shall not exceed $5,000.
3. Security.
The Facility and other parity obligations shall be payable solely from and secured by an irrevocable
first lien upon and pledge of the Net Revenues derived and collected by the City from the operation of
the Stormwater management system of the City (the "System"). Net Revenues" shall include all
income or earnings, including any income from the investment of funds, derived by the City from the
operation of the System after deduction of current expenses, either paid or accrued, for the operation,
maintenance and repair of the System, but not including reserves for renewals and replacements, for
extraordinary repairs or any allowance for depreciation.
4. Legal Opinions.
Prior to closing, there shall be delivered to the Bank an opinion of Bond Counsel acceptable to the
Bank covering matters customary for a transaction of this type and nature and which shall, without
limitation, opine that (1) the Borrower is duly formed; (2) all loan documents have been validly
authorized and executed by and on behalf of the Borrower, if any (3) the Facility is Non -Bank
Qualified and tax- exempt and (4) all loan documents are valid, binding, enforceable in accordance
with their terms and do not violate any legal requirements including without limitation, organizational
documents, laws and material agreements.
5. Financial Reporting.
The Borrower shall furnish the following financial reports:
Type of Reports
Frequency
Due Date
Financial Statements —
Audited
Annually
210 days after end of fiscal
year.
Approved Budget
Annually
60 days after completion and
approval
The Bank reserves the right to request additional financial information to supplement or verify certain
financial assumptions or verify the creditworthiness of the Borrower(s) and if applicable, any
Guarantor(s).
Financial Covenants 1 Ad Bond Test.
Rate Covenant: The City will fix, establish, revise from time to time whenever necessary, maintain
and collect always, such fees, rates, rentals and other charges for the use of the products, services
and facilities of the System which will always provide Net Revenues in each year sufficient to pay one
hundred fifteen percent (115%) of the Bond Service Requirement coming due in such year on the
Outstanding Bonds.
Ad Bond Test: The amount of the Net Revenues derived for any consecutive twelve (12) months out
of the preceding twenty -four (24) months preceding the date of issuance of the proposed additional
parity obligations shall be equal to not less than 120% of the Maximum Bond Service Requirement
becoming due in any Fiscal Year thereafter on (i) all Bonds then outstanding and (ii) on the additional
parity obligations.
The Bank reserves the right to amend, alter, or revise the above referenced covenant(s) and to add
additional covenants upon completion of its final credit underwriting and approval process.
7. Other Conditions.
a. The implementation of certain terms, conditions, covenants or other non - material changes to the
proposed Credit Accommodation required as part of the Bank's formal credit approval shall be
deemed an approval in substantially the form outlined in this proposed Credit Accommodation.
b. All legal matters and documentation to be executed in connection with the contemplated
proposed Credit Accommodation shall be satisfactory in form and substance to the Bank and
counsel to the Bank.
c. The Bank shall not be required to enter into the proposed Credit Accommodation until the
completion of all due diligence inquiries, receipt of approvals from all requisite parties and the
execution and receipt of all necessary documentation reasonably acceptable to the Bank and its
counsel. The Bank complies with the US Patriot Act of 2001 (the "Act"), including, but not limited
to, those sections relating to customer 'identification, monitoring and reporting of suspicious
activities, and the prevention of money laundering. This Act mandates that we verify certain
information about the borrower and any guarantor while processing the Credit Accommodation
request, Furthermore, certain assumptions are made for this proposal which, if altered, could
affect the overall credit approval and or the terms of the proposed Credit Accommodation.
d. No taterial adverse change in the Borrower's financial condition prior to closing.
e. The Facility shall be on parity and cross defaulted with all other existing Borrower debt that is
backed by the Pledged Revenues (as applicable).
f. Loan documents shall include standard provisions with regards to tax status and change in
corporate tax rate.
g. Borrower shall maintain a minimum Public Debt Rating of BBB / Baa or better.
THIS PROPOSAL IS NOT AND SHOULD NOT BE CONSTRUED AS A COMMITMENT BY THE BANK
OR ANY AFFILIATE TO ENTER INTO ANY CREDIT ACCOMMODATION.
EXHIBIT A
AMORTIZATION SCHEDULE
Due Date
Principal Payment
11/1/2015
$290,000
11/1/2016
$300,000
11/1/2017
$315,000
11/1/2018
$320,000
11/1/2019
$330,000
11/1/2020
$340,000
11/1/2021
$350,000
11/1/2022
$360,000
11/1/2023
$370,000
11/1/2024
$385,000
11/1/2025
$395,000
11/1/2026
$405,000
11/1/2027
$420,000
11/1/2028
$430,000
11/1/2029
$445,000
Bank
America's Most Convenient Bank`s
May 22, 2014
City of Clearwater, Florida
100 S. Myrtle Avenue
Clearwater, Florida 33758
RE: Interest Rate Lock Agreement
Ladies and Gentlemen:
In connection with a request for business purpose financing, the City of Clearwater, Florida (the "Proposed
Borrower ") has requested that TD Bank, N.A. (the "Bank ") fix an interest rate to be applicable to a proposed tax -
exempt loan for the Proposed Borrower's stormwater system (the "Proposed Loan ") in accordance with that
certain Terms and Conditions of Credit Accommodation dated May 16, 2014, as supplemented and amended by
an email from Kyle P. Keith to Matthew Sansbury dated May 20, 2014, accepted by the Proposed Borrower, a
true copy of which is attached hereto as Exhibit A (the "Term Sheet "), subject to (1) Proposed Borrower's
satisfaction of all of the conditions of the Term Sheet and (ii) actual funding of the Proposed Loan, in each case,
on or before the Interest Rate Agreement Disbursement Date, as described in the Schedule attached hereto (the
"Schedule "); provided that the Proposed Borrower shall have the right to terminate this Interest Rate Lock
Agreement prior to the Interest Rate Disbursement Date by delivering written notice of termination to the Bank (a
"Termination Notice ") together with payment in full to the Bank of any Interest Rate Differential Fee due and
payable under this Interest Rate Lock Agreement calculated as of the date of delivery of the Termination Notice.
The Bank is pleased to offer the Proposed Borrower this agreement to provide a fixed interest rate subject to the
terms and conditions set forth herein and outlined in the Schedule, the terms of which are incorporated herein
(this "Interest Rate Lock Agreement ").
This Interest Rate Lock Agreement shall become effective upon the Bank's receipt of an executed counterpart of
this Interest Rate Lock Agreement (the date upon which such condition is satisfied being the "Effective Date "),
and is subject to the further condition that there shall not occur at any time after the date hereof up through and
including the Effective Date, any increase of more than 0.05% in the yield of United States Treasury securities,
adjusted to a constant maturity equal to the Interest Rate Term as described in the Schedule ( "Ordinary Rate
Volatility "). This offer to enter into this Interest Rate Lock Agreement shall terminate in the event that the yield on
U.S. Treasury securities, as so adjusted, exceeds Ordinary Rate Volatility prior to the execution and delivery to
the Bank of a counterpart hereof. Upon and after receipt by the Bank of the executed counterpart hereof, the
Ordinary Rate Volatility condition described herein shall cease to apply.
Except as expressly provided herein, this Interest Rate Lock Agreement does not supersede, amend, or in any
way supplant the Term Sheet or any definitive loan documentation that may govern the Proposed Loan. This
Interest Rate Lock Agreement is not to be deemed, by itself as a commitment to lend, or to be an amendment of
any of the conditions or other terms of the Proposed Loan or any other proposed financing which the Bank
Interest Rate Lock Agreement
Page 2 of 4
May 22, 2014
requires the Proposed Borrower to meet in connection with the Proposed Loan or any other credit facilities. This
Interest Rate Lock Agreement is intended only to establish the Interest Rate to be charged on the Proposed Loan
in the event that (i) the Proposed Borrower satisfies all conditions set forth in Term Sheet, (ii) the Bank and the
Proposed Borrower execute definitive loan documentation satisfactory to the Bank, and (iii) the Proposed Loan is
actually funded on or before the Interest Rate Agreement Disbursement Date, all in accordance with the terms
acceptable to the Bank.
Proposed Borrower agrees to act and negotiate in good faith to consummate the closing of the Proposed Loan
prior to the expiration of the Interest Rate Agreement Disbursement Date, including, without limitation,
(a) satisfying all of the terms and conditions of the Term Sheet, (b) providing to the Bank, promptly upon request
therefor, all materials reasonably requested by Bank and (c) executing final loan documents and other
agreements satisfactory to the Bank.
If the Proposed Borrower delivers a Termination Notice to the Bank prior to the Interest Rate Agreement
Disbursement Date or the actual funding of the Proposed Loan in the principal amount of $5,455,000 at the Fixed
Interest Rate (as described in the Schedule) does not occur on or before the Interest Rate Agreement
Disbursement Date, the Proposed Borrower shall pay the Bank on demand an amount equal to the Interest Rate
Differential Fee calculated as set forth in the Schedule.
This Interest Rate Lock Agreement may be executed in two or more counterparts, each of which shall be an
original, but all of which shall constitute but one agreement. Delivery of an executed counterpart of this Interest
Rate Lock Agreement by fax or email shall be equally as effective as delivery of an original executed counterpart
of this Interest Rate Lock Agreement. This Interest Rate Lock Agreement and the Term Sheet constitute the
entire agreement and understanding between and among the parties hereto relating to the subject matter hereof,
and supersede all prior proposals, negotiations, agreements and understandings among the parties hereto with
respect to such subject matter. This Interest Rate Lock Agreement shall be binding upon and inure to the benefit
of the respective heirs, executors, administrators, legal representatives, successors and assigns of the parties
hereto, and shall remain in full force and effect (and the Bank shall be entitled to rely thereon) unless terminated
in accordance with the provisions hereof. The Bank may transfer and assign this Interest Rate Lock Agreement
and deliver it to the assignee, who shall thereupon have all of the rights of the Bank; and the Bank shall then be
relieved and discharged of any responsibility or liability with respect to this Interest Rate Lock Agreement. The
Proposed Borrower may not assign or transfer any of its rights or obligations under this Interest Rate Lock
Agreement. This Interest Rate Lock Agreement may not be amended without the express written consent of the
parties.
We ask that if you wish to accept this Interest Rate Lock Agreement, please do so by signing and returning the
attached duplicate copy of this letter, to the undersigned. This offer will expire if not accepted in writing and
received by the Bank on or before May 22, 2014.
TO: TD BANK, N.A.:
The City of Clearwater, Florida hereby accepts the terms as indicated above this 22nd day of May, 2014.
f)
J.�
Signature
Brian Jay Ravins, Finance Director
Print Signing Officer Name & Position
Signature
William B. Horne, 11 City Manager
Print Signing Officer Name & Position
2
Interest Rate Lock Agreement
Page 3 of 4
May 22, 2014
SCHEDULE TO INTEREST RATE LOCK AGREEMENT
FIXED INTEREST
RATE:
2.72%
INTEREST RATE
AGREEMENT
DISBURSEMENT
DATE:
August 5, 2014, or such later date as the Bank in its sole discretion, may designate in
writing.
FIXED RATE TERM:
A term commencing on the initial disbursement of the Proposed Loan and ending on
November 1, 2029.
INTEREST RATE
LOCK AGREEMENT
TERM:
This interest Rate Lock Agreement shall terminate on the earliest of (i) the Interest Rate
Agreement Disbursement Date, (ii) the occurrence of a Breakage Event (as defined
below), (iii) the closing and funding of the Proposed Loan (at the Fixed Interest Rate), or
(iv) the Proposed Borrower's delivery of a Termination Notice pursuant to the terms of the
Interest Rate Lock Agreement, together with any interest Rate Differential Fee (as defined
below) payable hereunder calculated as of the date of delivery of the Termination Notice to
the Bank.
BREAKAGE FEE:
In the event that a Breakage Event occurs, the Proposed Borrower shall pay to the Bank
the Interest Rate Differential Fee calculated as provided herein, which fee shall be due and
payable by the Borrower upon demand in the amount calculated herein upon receipt of the
Settlement Statement (as defined below). The Proposed Borrower acknowledges that the
Bank may incur fees and other costs in the event that the Proposed Loan does not close
and agrees that the Breakage Fee is a reasonable and appropriate method of calculating
liquidated damages associated with any Breakage Event. Proposed Borrower understands
and agrees that the Bank is under no obligation to give, and will not give, Proposed
Borrower the benefit of any decline in interest rates subsequent to the Bank's locking of the
interest rate hereunder.
BREAKAGE
EVENT:
If for any reason other than delivery of a Termination Notice the
Proposed Loan is not disbursed on or before the Interest Rate
Agreement Disbursement Date (the "Breakage Event ").
The Interest Rate Differential Fee, if payable, is computed as
follows: The current cost of funds, specifically the 10 year Interest
Rate Swap published on the Federal Reserve H15 Selected Interest
Rates effective at 4:15pm two days prior to the Breakage Date, shall
be subtracted from the 10 year Interest Rate Swap published on the
Federal Reserve H15 Selected Interest Rates effective at 4:15pm on
the day that the forward rate lock was fixed. If the result is zero or a
negative number, there shall be no Break Funding Fee due and
payable. If the result is a positive number, then the resulting
percentage shall be multiplied by the scheduled outstanding principal
balance, for each remaining quarterly period. Each resulting amount
shall be divided by 360 and multiplied by the number of days in the
monthly period. Said amounts shall be reduced to present values
calculated by using the above reference current costs of funds
divided by twelve (12). The resulting sum of present values shall be
the Break Funding Fee due to the Bank on the Breakage Date.
INTEREST RATE
DIFFERENTIAL
FEE:
INTEREST RATE
TERM:
For the purposes of the Interest Rate Differential Fee calculation, the
Interest Rate Term shall be defined as 15.3 years.
SETTLEMENT
Following the occurrence of a Breakage Event or the giving of a
Termination Notice, the Bank shall promptly issue to the Proposed
Borrower a written notice to the Proposed Borrower of the
3
Interest Rate Lock Agreement
Page 4 of 4
May 22, 2014
occurrence of such Breakage Event and setting forth the Interest
Rate Differential Fee payable by the Proposed Borrower to the Bank.
A settlement statement giving the Breakage Event and the Breakage
Fee (the "Settlement Statement ") and the Bank's calculation of the
Interest Rate Differential Fee set forth therein shall be conclusive
evidence of the amount of such fee absent manifest error.
4
EXHIBIT B
FORM OF SERIES 2014 BOND
EXCEPT AS OTHERWISE PROVIDED IN RESOLUTION NO. 14 -21 (THE
"RESOLUTION "), ANY OWNER SHALL, PRIOR TO BECOMING A HOLDER,
EXECUTE A PURCHASER'S CERTIFICATE IN THE FORM ATTACHED TO THE
RESOLUTION CERTIFYING, AMONG OTHER THINGS, THAT SUCH HOLDER IS AN
"ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN THE SECURITIES ACT
OF 1933, AS AMENDED, AND REGULATION D THEREUNDER.
No. R -1 $
UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF PINELLAS
CITY OF CLEARWATER
STORMWATER SYSTEM REVENUE REFUNDING BOND, SERIES 2014
Interest Rate
2.72%
Registered Owner:
Maturity Date
November 1, 2029
TD BANK, N.A.
Dated Date
August 5, 2014
Principal Amount: and No /100 Dollars
CUSIP
N/A
KNOW ALL MEN BY THESE PRESENTS that the City of Clearwater Florida (the
"City "), for value received, promises to pay to the order of the Registered Owner
identified above or registered assigns, on the Maturity Date identified above, the
Principal Amount shown above solely from the revenues hereinafter mentioned and to
pay solely from such revenues, interest on said sum from the Dated Date of this Bond
or from the most recent interest payment date to which interest has been paid, at the
per annum Interest Rate set forth above (as adjusted from time to time as hereinafter
provided) until payment of such sum, such interest being payable on November 1, 2014
and semiannually thereafter on May 1 and November 1 of each year. The principal of
and premium, if any, on this Bond on the final amortization date or earlier date of
redemption in full are payable upon presentation and surrender hereof on the date fixed
for final maturity or earlier redemption at the principal office of the Finance Director of
the City of Clearwater, Florida (the "Paying Agent ") in Clearwater, Florida, or at the
office designated for such payment of any successor thereof. The principal of and
interest on this Bond when due and payable, shall be paid through ACH direct transfer
to the Registered Owner, and upon transfer of this Bond to a subsequent holder, by
check or draft mailed to, or through ACH direct transfer to, the person in whose name
this Bond is registered at such address as is provided by such subsequent holder in
writing to the City without presentation (except upon final maturity or earlier redemption
}25341/013/00885146.DOCv6} Resolution No. 14 -21
B -1
in full) of this Bond as reflected on the books and records of the Bond Registrar, at the
close of business on the 15th day of the month (whether or not a business day) next
preceding the interest payment date (the "Record Date "), irrespective of any transfer of
this Bond subsequent to such Record Date and prior to such interest payment 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 Bond 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
Registrar to the Registered Owner not less than fifteen (15) days preceding such
special record date. Such notice shall be mailed to the person in whose name such
Bond is registered at the close of business on the fifth (5th) day preceding the date of
mailing. 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.
The interest payable on this Bond shall be subject to adjustment in accordance
with the following provisions:
"Default Rate" shall mean a rate per annum equal to the Prime Rate plus 4 %.
"Determination of Taxability" means a final decree or judgment of any Federal
court or a final action of the Internal Revenue Service or of the United States Treasury
Department determining that interest payable on the Series 2014 Bond is includable in
the gross income of a Bondholder for Federal income tax purposes. No such decree,
judgment, or action will be considered final for this purpose, however, unless the City
has been given written notice thereof and, if it is so desired by the City and is legally
permissible, the City has been afforded the opportunity to contest the same, at its own
expense, either directly or in the name of the Bondholder, and until the conclusion of
any appellate review, if sought.
"Event of Default" shall mean shall mean (a) an Event of Default under the Bond
Ordinance, or (b) the occurrence by the City of a failure to comply with one or more
covenants or agreements set forth in the Bond Ordinance or this Resolution, which
default or non - compliance shall continue and not be cured within thirty (30) days from
receipt by the City of notice of such default or non - compliance by the Holder.
"Interest Rate" shall mean a per annum rate equal to 2.72 %, prior to a
Determination of Taxability or an Event of Default.
"Prime Rate" shall mean the per annum rate which TD Bank, N.A. announces
from time to time to be its prime rate, as in effect from time to time. The prime rate is a
reference or benchmark rate, is purely discretionary and does not necessarily represent
the lowest or best rate charged to borrowing customers. TD Bank, N.A. may make
commercial loans or other loans at rates of interest at, above or below the prime rate.
Each change in the prime rate shall be effective from and including the date such
change is announced as being effective.
{25341/013/00885146.DOCv6} Resolution No. 14 -21
B -2
"Taxable Period" shall mean the period of time commencing on the date that
interest on the Series 2014 Bond ceased to be excludable from gross income of the
Holder thereof for federal income tax purposes and ending on the earlier of the date the
Series 2014 Bond ceases to be outstanding or such adjustment is no longer applicable
to the Series 2014 Bond.
"Taxable Rate" shall mean, upon a Determination of Taxability, the interest rate
per annum that shall provide the Holder with the same after tax yield that the Holder
would have otherwise received had the Determination of Taxability not occurred, taking
into account the increased taxable income of the Holder as a result of such
Determination of Taxability. The Holder shall provide the City with a written statement
explaining the calculation of the Taxable Rate, which statement shall, in the absence of
manifest error, be conclusive and binding on the City.
The City shall pay interest upon the unpaid principal balance of this Bond at the
Interest Rate, subject to adjustment as provided herein. Upon a Determination of
Taxability, the Interest Rate shall be the Taxable Rate as hereinafter provided, and
upon and during the continuance of an Event of Default (notwithstanding that a
Determination of Taxability has also occurred) the Interest Rate shall equal the Default
Rate.
In the event of a Determination of Taxability, the interest rate payable hereunder
shall be subject to adjustment to the Taxable Rate, effective retroactively to the date on
which such Determination of Taxability was made. In addition, upon a Determination of
Taxability, the City agrees to pay to the Holder subject to such Determination of
Taxability the Additional Amount upon demand. "Additional Amount" means (i) the
difference between (a) interest on the Series 2014 Bond for the Taxable Period at a rate
per annum equal to the Taxable Rate, and (b) the aggregate amount of interest paid on
the Series 2014 Bond for the Taxable Period under the provisions of the Series 2014
Bond without considering the Determination of Taxability, plus (ii) any penalties and
interest paid or payable by such Holder to the Internal Revenue Service by reason of
such Determination of Taxability.
This Bond is issued in the principal amount of $ in a single principal
amount, to (a) currently refund a portion of the outstanding principal amount of the City's
Stormwater System Revenue Refunding Bonds, Series 2005, and (b) pay a portion of
the costs of issuing this Bond, all in full compliance with the Constitution and Statutes of
the State of Florida, including particularly Chapter 166, Part II, Florida Statutes, and
Ordinance No. 6378 -99, enacted by the City Council of the City on April 15, 1999, as
amended and supplemented by Ordinance No. 6931 -02, enacted on July 18, 2002 and
Ordinance No. 8419 -13 enacted on June 6, 2013, and as further supplemented by
Resolution No. 14 -21, adopted on June 19, 2014 (collectively, the "Ordinance "), and is
subject to all the terms and conditions of the Ordinance. All capitalized undefined terms
used herein shall have the meanings set forth in the Ordinance.
{25341/013/00885146.DOCv6} Resolution No. 14 -21
B -3
This Bond is payable solely from and secured by a pledge of the Net Revenues
of the System levied and collected by the City and the moneys in certain funds and
accounts created pursuant to the Ordinance, with the exception of the Rebate Fund
(collectively, the "Pledged Revenues "), in the manner provided in the Ordinance.
Reference is made to the Ordinance for more complete definition and description of the
System and the Pledged Revenues. The lien of this Bond on the Net Revenues is on a
parity with the holders of the unrefunded portion of the City's Stormwater System
Revenue Refunding Bonds, Series 2005, the City's outstanding Stormwater System
Revenue Refunding Bonds, Series 2012 and the City's outstanding Stormwater System
Revenue Refunding Bonds, Series 2013.
This Bond shall be subject to optional redemption in whole or in part prior to its
maturity date, upon two Business Days prior written notice (i) on any Business Day prior
to the fifth (5th) anniversary of the dated date of this Bond at a redemption price equal to
the principal amount being redeemed together with interest accrued to the date of
redemption plus the Prepayment Fee, as defined below, and (ii) on any Business Day
on or after the fifth (5th) anniversary of the dated date of this Bond at a redemption price
equal to the principal amount being redeemed together with interest accrued to the date
of redemption.
"Prepayment Fee" shall mean, a fee equal to the greater of (i) 1.00% of the
principal balance being prepaid multiplied by the remaining term of this Series 2014
Bond, and (ii) the Yield Maintenance Fee.
The "Yield Maintenance Fee" shall be computed as follows: the current cost of
funds, specifically the bond equivalent yield for United States Treasury securities (bills
on a discounted basis shall be converted to a bond equivalent yield) with a maturity date
closest to the remaining term of this Series 2014 Bond, shall be subtracted from the
Interest Rate, or Default Rate (hereinafter defined) if applicable. If the result is zero or a
negative number, there shall be no Yield Maintenance Fee due and payable. If the
result is a positive number, then the resulting percentage shall be multiplied by the
scheduled outstanding principal balance for each remaining monthly period of the
remaining term of this Series 2014 Bond. Each resulting amount shall be divided by
360 and multiplied by the number of days in the monthly period. Said amounts shall be
reduced to present values calculated by using the above referenced current costs of
funds divided by 12. The resulting sum of present values shall be the Yield
Maintenance Fee.
This Bond is subject to mandatory redemption from 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 November 1, 2015
and on each November 1 thereafter in the following principal amounts in the years
specified:
{25341/013/00885146.DOCv6} Resolution No. 14 -21
B -4
Date
2015
2016
2017
2018
2019
2020
2021
2022
Principal Amount
Date
2023
2024
2025
2026
2027
2028
2029
Principal Amount
This Bond does not constitute a general indebtedness of the City within the
meaning of any constitutional, statutory or charter provision or limitation, and it is
expressly agreed by the Holder of this Bond that such Bondholder shall never have the
right to require or compel the exercise of the ad valorem taxing power of the City or
taxation of any real or personal property therein for the payment of the principal of and
interest on this Bond or the making of any debt service fund, reserve or other payments
provided for in the Ordinance.
It is further agreed between the City and the Holder of this Bond that this Bond
and the indebtedness evidenced thereby shall not constitute a lien upon the System, or
any part thereof, or on any other property of or in the City, but shall constitute a lien only
on the Pledged Revenues all in the manner provided in the Ordinance.
The City has covenanted, in the Ordinance, to fix, establish, revise from time to
time whenever necessary, maintain and collect always such fees, rentals and other
charges for the services of the System which will always provide Gross Revenues in
each Fiscal Year sufficient to pay the Cost of Operation and Maintenance of the System
in such Fiscal Year and one hundred fifteen percent (115 %) of the Bond Service
Requirement becoming due in such year on the Outstanding Bonds. Such rates, fees,
rentals or other charges shall not be reduced so as to render them insufficient to provide
Gross Revenues for the purposes provided therefore by the Ordinance. The City has
entered into certain further covenants with the Holders of Outstanding Bonds for the
terms of which reference is made to the Ordinance.
It is certified that this Bond is authorized by and is issued in conformity with the
requirements of the Constitution and Statutes of the State of Florida.
If the date for payment of the principal of, premium, if any, or interest on this
Bond shall be a Saturday, Sunday, legal holiday or a day on which banking institutions
in the city where the Paying Agent is located 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 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 nominal date of payment.
{25341/013/00885146.DOCv6} Resolution No. 14 -21
B -5
This Bond is and has all the qualities and incidents of a negotiable instrument
under the Uniform Commercial Code — Investment Securities, the State of Florida.
The transfer of this Bond is registerable by the Bondholder hereof in person or by
his attorney or legal representative at the principal corporate trust office of the Registrar
but only in the manner and subject to the conditions provided in the Ordinance and
upon surrender and cancellation of this Bond.
IN WITNESS WHEREOF, the City of Clearwater, Florida, has issued this Bond
and has caused the same to be signed by its Mayor and City Manager or an Assistant
City Manager and countersigned and attested to by its Clerk and approved as to form,
sufficiency and correctness by the City Attorney, and its seal thereof to be affixed,
impressed, imprinted, lithographed or reproduced hereon, all as of the Dated Date.
CITY OF CLEARWATER, FLORIDA
(SEAL)
ATTEST:
By:
George N. Cretekos
Mayor
By:
[Assistant] City Manager
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
By: By:
Rosemarie Call
City Clerk
Pamela K. Akin
City Attorney
{25341/013/00885146.DOCv6) Resolution No. 14 -21
B -6
ASSIGNMENT
FOR VALUE RECEIVED, 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 Bond and all rights
thereunder, and hereby irrevocably constitutes and appoints
(the "Transferee ") as attorney to register the
transfer of the within Bond on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
Signature guaranteed:
NOTICE: Signature(s) must be
guaranteed by a member of the
New York Stock Exchange or a
commercial bank or a trust
company.
{25341/013/00885146.DOCv6)
B -7
NOTICE: No transfer will be registered
and no new Bond 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
Bond 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.
Resolution No. 14 -21
EXHIBIT C
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 Stormwater System Revenue Refunding Bond,
Series 2014 (the "Bond ") to the Purchaser, in accordance with the terms of the
Purchaser's Term Sheet to the City dated May 16, 2014 and Interest Rate Lock
Agreement dated May 22, 2014, being issued pursuant to Ordinance No. 6378 -99 (the
"Original Ordinance "), and Ordinance No. 6931 -02 (the "2002 Ordinance ") and
Ordinance No. 8419 -13 (the "2013 Ordinance ", and, together with the Original
Ordinance and the 2002 Ordinance, collectively, the "Bond Ordinance ") and Resolution
No. 14 -21 (the "Resolution ") for the purpose of refunding a portion of the City's
Stormwater System Revenue Refunding Bonds, Series 2005 (the "Refunded Bonds ").
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, as amended, and Regulation D issued pursuant thereto, a
principal part of whose business consists of buying securities such as the Bond.
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 Bond, 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 Bond is not registered under the
Securities Act of 1933, as amended. The Purchaser is purchasing the Bond for its own
account for investment and not with a view to, and with no present intention of,
(25341/013/00885146.DOCv6} Resolution No. 14 -21
C -1
distributing or reselling the Bond or any portion thereof, provided that the Purchaser
reserves the right to transfer the Bond purchased or any interest therein at any time and
in our sole discretion and, in the event that we so transfer the Bond, we assume the
responsibility for complying with any applicable federal and state securities laws
provided, however, the Purchaser acknowledges that the registration of the Bond may
only be transferred in whole.
The Purchaser understands and agrees that the foregoing representations will be
relied upon by the City in the issuance of the Bond.
TD BANK, N.A.
By:
Name:
Title:
{25341/013/00885146.DOCv6} Resolution No. 14 -21
C -2
EXHIBIT D
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 TD Bank, N.A., as the original purchaser (the "Purchaser ")
in connection with the issuance of $ in principal amount of the City of
Clearwater, Florida Stormwater System Refunding Revenue Bond, Series 2014 (the
"Bond ") 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 Bond.
3. Underwriting fees in the amount of $0.00 are expected to be realized in
the sale of the Bond.
4. The Bond is 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 to any person not regularly employed or retained by them,
except for compensation of $ to Holland & Knight LLP, in its capacity as
counsel to the Purchaser, which amount is being paid by the City.
6. There were no underwriters involved in the placement of the Bond to the
Purchaser.
7. (a) The City is proposing to issue $ aggregate principal
amount of debt or obligations for the purpose of refunding a portion of the City's
Stormwater System Revenue Refunding Bonds, Series 2005. This debt or obligation is
expected to be repaid over a period of approximately 15.25 years. At a forecasted true
interest cost rate of %, total interest paid over the life of the debt or obligation will
be $
(b) The source of repayment for this issue is the Stormwater System
Revenues of the City. Authorizing this debt will result in approximately $
of such revenues of the City not being available to finance other services of the City
each year for 15.25 years.
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We understand that you do not require any further disclosure from the Purchaser,
pursuant to Section 218.385, Florida Statutes, as amended.
TD BANK, N.A.
By:
Name:
Title:
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SCHEDULE I
EXPENSES
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EXHIBIT E
FORM OF ESCROW DEPOSIT AGREEMENT
This ESCROW DEPOSIT AGREEMENT, dated as of August 5, 2014, by and
between the CITY OF CLEARWATER, FLORIDA, a municipal corporation of the State
of Florida (the "City "), and U.S. Bank National Association, a national banking
association organized under the laws of the United States of America, as Escrow Holder
(the "Escrow Holder ");
WITNESSETH:
WHEREAS, the City has previously authorized and issued obligations of the City
as hereinafter set forth defined as the "Refunded Bonds ", as to which the Annual Debt
Service (as hereinafter defined) is set forth on Schedule A; and
WHEREAS, the City has determined to provide for payment of the Annual Debt
Service of the Refunded Bonds by depositing with the Escrow Holder pursuant to the
provisions hereof, cash in an amount equal to the Annual Debt Service; and
WHEREAS, in order to obtain the funds needed for such purpose, the City has
authorized and is, concurrently with the delivery of this Agreement, issuing the Series
2014 Bond more fully described herein; and
WHEREAS, the City has determined that the amount to be on deposit from time
to time in the Escrow Account, as defined herein, will be sufficient to pay the Annual
Debt Service;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the City and the Escrow Holder agree as follows (provided however
that the Escrow Holder in agreeing to the foregoing shall not be held or deemed
responsible in any manner whatsoever for the recitals made herein or in the Ordinance,
or the adequacy or sufficiency of the Escrow Requirement):
Section 1. Definitions. As used herein, the following terms mean:
(a) "Agreement" means this Escrow Deposit Agreement.
(b) "Annual Debt Service" means, with respect to the redemption date for the
Refunded Bonds, the principal of, premium, and interest on the Refunded Bonds
coming due on the Call Date as shown on Schedule A attached hereto.
(c) "Bond" or "Series 2014 Bond" means the Stormwater System Revenue
Refunding Bond, Series 2014 of the City, authorized by the Ordinance, as herein
defined.
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(d) "Call Date" shall have the meaning set forth in the City's Irrevocable
Instruction and Authorization to Redeem Bonds.
(e) "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 Refunded Bonds.
(f) "Escrow Holder" means U.S. Bank National Association, a national
banking association organized under the laws of the United States of America.
(g) "Escrow Requirement" means, as of any date of calculation, the sum of an
amount in cash in the Escrow Account which will be sufficient to pay, as the installments
thereof become due, the Annual Debt Service.
(h) "Irrevocable Instruction and Authorization to Redeem Bonds" means a
certificate executed by the City which provides for redemption of certain of the
Refunded Bonds on the Call Date, irrevocably instructs the Escrow Holder to give notice
of such redemption and directs the Paying Agent for the Refunded Bonds to pay the
Refunded Bonds and the interest thereon upon surrender thereof at maturity or on their
Call Date.
(i) "City" means the City of Clearwater, Florida.
(j) "Ordinance" means Ordinance No. 6378 -99 enacted by the City on April
15, 1999, as amended and supplemented by Ordinance 6931 -02, enacted on July 18,
2002, as amended and supplemented by Ordinance No. 8419 -13, enacted on June 6,
2013.
(k) "Paying Agent" shall mean the Wells Fargo Bank, N.A., Paying Agent for
the Refunded Bonds.
(I) "Refunded Bonds" shall mean the City's Stormwater System Revenue
Refunding Bonds, Series 2005, maturing on or after November 1, 2015.
Section 2. Deposit of Funds. The City 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 City
represents that:
(a) Such funds are all derived as follows:
(1) $ from the net proceeds of the Bond; and
(2) $ transferred from other legally available funds
of the City.
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(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 $ and agrees:
(a) to hold the funds in irrevocable escrow during the term of this Agreement,
(b) to deposit the sum of $ of funds from the Debt Service
Fund and $ from the proceeds of the Bond, in cash from the amount
received by the City in the Escrow Account, and, hold such funds in cash until the Call
Date.
Section 4. Payment of Refunded Bonds.
(a) Refunded Bonds. On the Call Date, the Escrow Holder shall pay to the
Paying Agent for the Refunded Bonds, from the cash on hand in the Escrow Account, a
sum sufficient to pay the Annual Debt Service coming due on such date, as shown on
Schedule A and as demonstrated on Schedule B hereto.
(b) Surplus. On the Call Date, after making the payments from the Escrow
Account described in Subsection 4(a), the Escrow Holder shall pay to the City any
remaining cash in the Escrow Account in excess of the Escrow Requirement, to be used
for any lawful purpose of the City.
(c) Priority of Payments. The holders of the Refunded Bonds shall have an
express first lien on the funds in the Escrow Account until such funds 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).
(d) Fees and Expenses of Escrow Holder. On the date hereof, the Escrow
Holder acknowledges receipt of its fees to serve as Escrow Holder in the amount of
$ and agrees to invoice the City for reimbursement of any out of pocket
expenses incurred by the Escrow Holder in performing its services hereunder, and
further acknowledges that the Escrow Holder does not have a lien on or claim against
any funds held hereunder for reimbursement of such expenses.
Section 5. Reinvestment. The Escrow Holder shall have no power or duty to
invest any funds held under this Agreement.
Section 6. No Redemption or Acceleration of Maturity. Except as provided in the
Irrevocable Instruction and Authorization to Redeem Bonds, the City will not accelerate
the maturity or due date of the Refunded Bonds.
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Section 7. 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, transfer or other application of money 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,
however, be liable to the City 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 may or may not be counsel to the
City, 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 City.
The Escrow Holder has no duty to determine or inquire into the happening or
occurrence of any event or contingency where the performance or the failure of
performance of the City with respect to arrangements or contracts with others, the
Escrow Holder's sole duty and responsibility hereunder being to safeguard the Escrow
Account and dispose of and deliver the same strictly in accordance with this Agreement.
Section 8. Resignation of Escrow Holder. The Escrow Holder may resign and
thereby become discharged from the duties and obligations hereby created, by notice in
writing given to the City and published once in a newspaper of general circulation
published in the territorial limits of the City, and in a daily newspaper of general
circulation or a financial journal published or circulated in the Borough of Manhattan,
City and State of New York, not less than sixty (60) days before such resignation shall
take effect. Such resignation shall take effect immediately upon the appointment of a
successor Escrow Holder hereunder and payments of all amounts due the resigning
Escrow Holder.
Section 9. Removal of Escrow Holder.
(a) The Escrow Holder may be removed at any time by an instrument or
concurrent instruments in writing, executed by the holders of not less than fifty -one per
centum (51%) in aggregate principal amount of each series of Refunded Bonds then
outstanding, such instruments to be filed with the City, and notice in writing given by
such holders to all of the registered holders of each series of the Refunded Bonds and
published once in a newspaper of general circulation published in the territorial limits of
the City, and in a daily newspaper of general circulation or a financial journal published
or circulated in the Borough of Manhattan, City and State of New York, not less than
sixty (60) days before such removal is to take effect as stated in such instrument or
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instruments. A photographic copy of any instrument filed with the City under the
provisions of this paragraph shall be delivered by the City to the Escrow Holder.
(b) 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, by the City or by the holders of not less than twenty-
Jive per centum (25 %) in aggregate principal amount of each series of the Refunded
Bonds then outstanding.
(c) No such removal shall take effect until a successor Escrow Holder shall be
appointed hereunder.
Section 10. Successor Escrow Holder.
(a) If at any time hereafter the Escrow Holder shall resign, 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 City shall appoint a successor
Escrow Holder to fulfill the duties of Escrow Holder hereunder. The City shall publish
notice of any such appointment once in each week for four (4) successive weeks in a
newspaper of general circulation published in the territorial limits of the City and in a
daily newspaper of general circulation or a financial journal published or circulated in the
Borough of Manhattan, City and State of New York, and, before the second publication
of such notice shall mail a copy thereof to the original purchaser or purchasers of the
Refunded Bonds.
(b) At any time within one year after such vacancy shall have occurred, the
holders of a majority in principal amount of each series of Refunded Bonds then
outstanding, by an instrument or concurrent instruments in writing, executed by all such
bondholders and filed with the governing body of the City, may appoint a successor
Escrow Holder, which shall supersede any Escrow Holder theretofore appointed by the
City. Photographic copies of each such instrument shall be delivered promptly by the
City, to the predecessor Escrow Holder and to the Escrow Holder so appointed by the
bondholders.
(c) If no appointment of a successor Escrow Holder shall be made pursuant
to the foregoing provisions of this section, the holder of any Refunded Bonds then
outstanding, or any retiring Escrow Holder may apply to any court of competent
jurisdiction to appoint a successor Escrow Holder. Such court may thereupon, after
such notice, if any, as such court may deem proper and prescribe, appoint a successor
Escrow Holder.
Section 11. Term. This Agreement shall commence upon its execution and
delivery and shall terminate when the Refunded Bonds have been paid and discharged
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in accordance herewith, and all amounts held by the Escrow Holder hereunder have
been applied in accordance herewith.
Section 12. Severability. If any one or more of the covenants or agreements
provided in this Agreement on the part of the City 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. 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.
Section 14. Governing Law. This Agreement shall be construed under the laws
of the State of Florida.
Section 15. 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.
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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
as of the date first above written.
(SEAL)
ATTEST:
Rosemarie Call
City Clerk
Approved as to Form,
Sufficiency and Correctness:
Pamela K. Akin
City Attorney
CITY OF CLEARWATER, FLORIDA
George N. Cretekos
Mayor
[Assistant] City Manager
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U.S. BANK, NATIONAL ASSOCIATION,
as Escrow Holder
By:
Name:
Title:
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Schedule A
(Annual Debt Service; Description of Refunded Bonds)
Series 2005 Bonds
Payment Date Principal Premium Interest Total Debt
Service
November 1,
2014
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Date
Schedule B
Escrow Cash Flow
Cash
Principal Interest Disbursements Balance
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