1ST AMENDMENT AND SCHEDULE OF PROPERTY NO 19 & 20
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004.396609.1
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TRANSCRIPT OF PROCEEDINGS
CITY OF CLEARWATER, FLORIDA
FIRST AMENDMENT To
MASTER LEASEIPuRCHASE AGREEMENT
WITH
BANe OF AMERICA LEASING & CAPITAL LLC
Dated September 30, 2003
AND
SCHEDULE OF PROPERTY Nos. 19 AND 20
ON
September 30, 2003
Foley & Lardner
The Greenleaf Building
200 Laura Street
Jacksonville, FL 32202
Telephone: (904) 359-2000
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CITY OF CLEARWATER, FLORIDA
First Amendment to
Master Lease/Purchase Agreement
with
Banc of America Leasing & Capital LLC
and
Schedule of Property Nos. 19 and 20
INDEX OF DOCUMENTS
DESCRIPTION
Master LeaseIPurchase Agreement................................................................................
First Amendment to Master LeaseIPurchase Agreement...............................................
Schedule of Property No. 19..........................................................................................
Schedule of Property No. 20..........................................................................................
IR.S Form 8038-G ..........................................................................................................
Florida Division of Bond Finance Form BF-2003/2004................................................
Truth-in- Bonding Statement..........................................................................................
City Clerk's Certificate..................................................................................................
Essential Use of Funds Certificates .................... ........................... ....... .........................
Acceptance Certificate............ .................. ................... ........................................... .......
Resolution No. 03-12 Amending Reimbursement Resolution ......................................
Minutes of City Commission Meeting on September 7,2000.......................................
Minutes of City Commission Meeting on March 20,2003...........................................
Opinion of Counsel to City............................................................................................
Opinion of Bond Counsel .............................................................................................
1004.396609.1
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104.396609.1
Transcripts delivered to:
Banc of America Leasing & Capital, LLC (bound original)
City of Clearwater, Florida (bound original)
Bryant Miller & Olive (bound copy)
Foley & Lardner (1 bound and 1 unbound)
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104.236974.2
Master Equipment LeaselPurchase Agreement
(Florida Version)
This Master Equipment Lease/Purchase Agreement (this" Agreement") dated February
13, 2001, and entered into between Banc of America Leasing & Capital, LLC, a Delaware
limited liability company ("Lessor"), and the City of Clearwater, a municipality existing under
the laws of the State of Florida ("Lessee").
WITNESSETH:
WHEREAS. Lessee desires to lease and acquire from Lessor certain equipment described
in each Schedule (as each such term is defined herein), subject to the terms and conditions of and
for the purposes set forth in each Lease; and in the event of a conflict the terms of a Schedule
prevail; and
WHEREAS, the relationship between the parties shall be a continuing one and items of
equipment may be added to the Equipment from time to time by execution of additional Schedules
by the parties hereto and as otherwise provided herein; and
WHEREAS. Lessee is authorized under the constitution and laws of the State to enter into
this Agreement and the Schedules hereto for the purposes set forth herein;
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the premises hereinafter contained, the parties hereby
agree as follows:
ARTICLE I.
Section 1.01. Definitions. The following terms will have the meanings indicated below
unless the context clearly requires otherwise:
"Acquisition Amount" means the amount specified in each Lease and represented by the
Lessee to be sufficient to acquire the Equipment listed in such Lease, which amount shall be not
less than $100,000 per Lease for Leases where the Acquisition Amount is to be paid directly to
the Vendor.
"Acquisition Fund" means, with respect to any Lease, the fund established and held by
the Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement, if any.
"Acquisition Fund Agreement" means, with respect to any Lease, an Acquisition Fund
Agreement in form and substance acceptable to and executed by the Lessee, the Lessor and the
Acquisition Fund Custodian, pursuant to which an Acquisition Fund is established and
administered.
"Acquisition Fund Custodian" means the Acquisition Fund Custodian identified in any
Acquisition Fund Agreement, and its successors and assigns.
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104.236974.2
"Acquisition Period" means, with respect to each Lease, that period stated in such Lease,
commencing on the date of execution thereof and ending not later than three years thereafter,
during which the Lease Proceeds attributable to such Lease may be expended on Equipment
Costs.
"Act" means, collectively, Chapter 166, Florida Statutes, as amended, the Constitution of
the State, and other applicable provisions of law.
"Agreement" means this Master Equipment Lease/Purchase Agreement, including the
exhibits hereto, together with any amendments and modifications to the Agreement pursuant to
Section 13.06.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
Section of the Code herein shall be deemed to include the United States Treasury Regulations
proposed or in effect thereunder.
"Commencement Date" means, for each Lease, the date when Lessee's obligation to pay
Rental Payments commences under such Lease, which date shall be the earlier of (i) the date on
which the Equipment listed in such Lease is accepted by Lessee in the manner described in
Section 5.01, or (ii) the date on which sufficient moneys to purchase the Equipment listed in such
Lease are deposited for that purpose with an Acquisition Fund Custodian.
"Equipment" means the property listed in each of the Leases and all replacements,
repairs, restorations, modifications and improvements thereof or thereto made pursuant to Section
8.01 or Article V. Whenever reference is made in this Agreement to Equipment listed in a
Lease, such reference shall be deemed to include all such replacements, repairs, restorations,
modifications and improvements of or to such Equipment.
"Equipment Costs" means, to the extent permitted by the Act, the total cost of the
Equipment listed in each Lease, including all delivery charges, installation charges, capitalizable
consulting and training fees approved by Lessor, legal fees, financing costs, motor vehicle
registration fees, recording and filing fees, and other costs necessary to vest full, clear legal title
to the Equipment in Lessee, subject to the interest granted to and retained by Lessor as set forth
in each Lease, and otherwise incurred in connection with the financing provided by the lease-
purchase of the Equipment as provided in each Lease; provided that in no event shall approved
consulting and training fees or other non-capitalizable "soft" costs relating to the Equipment
listed in any Lease which are to be financed by the Lessor hereunder exceed 2 % of the total cost
of such Equipment as determined by the Lessor; and provided further, that in no event shall
capitalizable delivery charges, installation charges, taxes and similar capitalizable "soft costs"
relating to such Equipment exceed 20% of the total cost of such Equipment as determined by
Lessor.
"Expense Fund" means, with respect to any Lease, the fund established and held by the
Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement.
"Event of Default" means an Event of Default described in Section 12.01.
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104.236974.2
"Lease" means a Schedule and the terms of this Agreement which are incorporated by
reference into such Schedule. Each Schedule with the incorporated terms of this Agreement shall
constitute a separate and independent Lease.
"Lease Proceeds" means, with respect to each Lease, the total amount of money to be
paid by the Lessor to the Acquisition Fund Custodian for deposit and application in accordance
with such Lease and the Acquisition Fund Agreement.
"Lease Term" for each Lease means the Original Term and all Renewal Terms therein
provided and for this Agreement means the period from the date hereof until this Agreement is
terminated. The maximum Lease Term for any Lease will be either 36 months or 60 months,
depending on the Equipment financed by the Lease, as mutually agreed to by Lessor and Lessee.
.. Lessee" means the entity referred to as Lessee in the first paragraph of this Agreement.
.. Lessor" means (a) the entity referred to as Lessor in the first paragraph of this
Agreement or (b) any assignee or transferee of any right, title or interest of Lessor in and to the
Equipment under a Lease or any Lease (including Rental Payments thereunder) pursuant to
Section 11.01, but does not include any entity solely by reason of that entity retaining or
assuming any obligation of Lessor to perform under a Lease.
"Original Term" means the period from the Commencement Date for each Lease until the
endofthe fiscal year of Lessee in effect at such Commencement Date.
"Purchase Price" means, with respect to the Equipment listed on a Lease, the amount that
Lessee may pay to Lessor to purchase such Equipment as provided in such Lease.
.. Renewal Terms" means the renewal terms of each Lease, each having a duration of one
year and a term coextensive with Lessee's fiscal year, as specified in the Schedule applicable
thereto.
.. Rental Payments" means the basic rental payments payable by Lessee under each Lease
pursuant to Section 4.01, in each case consisting of a principal component and an interest
component.
"Schedule" means each separately numbered Schedule of Property substantially in the
form of Exhibit A hereto together with a R"ental Payment Schedule attached thereto substantially
in the form of Exhibit A-I hereto.
.. State" means the State of Florida.
"Utilization Period" means the date, with respect to each Lease not funded under an
Acquisition Fund Agreement, by which the Lessee must deliver an Acceptance Certificate for the
Equipment under such Lease as indicated in the Schedule associated with such Equipment.
"Vendor" means the manufacturer or supplier of the Equipment or any other person as
well as the agents or dealers of the manufacturer or supplier from whom Lessor arranged
Lessee's acquisition and financing of the Equipment pursuant to the applicable Lease.
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104.236974.2
ARTICLE II.
Section 2.01. Representations and Covenants of Lessee. This Section 2.01 sets forth facts
and estimates upon which Lessor and its counsel may rely regarding the exclusion of the interest
portion of the Rental Payments from the gross income of the Lessor, and the facts and estimates
upon which Lessee bases its reasonable expectation that the obligation to make Rental Payments
pursuant to the Leases does not create an arbitrage bond under Section 148 of the Internal
Revenue Code of 1986, as amended, and applicable Treasury Regulations.
Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof and
as of the Commencement Date of each Lease as follows:
(a) Lessee is a state or a political subdivision thereof within the meaning of
Section 103(c) of the Code, duly organized and existing under the constitution and laws of
the State, including the Act, with full power and authority to enter into this Agreement
and each Lease and the transactions contemplated hereby, and to perform all of its
obligations hereunder and under each Lease.
(b) Lessee has duly authorized the execution and delivery of this Agreement
and each Lease by proper action of its governing body at a meeting duly called, regularly
convened and attended throughout by the requisite quorum of the members thereof, or by
other appropriate official approval, and all requirements have been met and procedures
have occurred in order to ensure the validity and enforceability of this Agreement and
each Lease.
(c) No event or condition that constitutes, or with the giving of notice or the
lapse of time or both would constitute, an Event of Default exists at the date hereof.
Lessee is not in default under any indenture, mortgage, deed of trust, bank loan, credit
agreement or other instrument to which Lessee is a party.
(d) The entering into and performance of each Lease by the Lessee will not
violate any judgment, order, or regulation applicable to Lessee, and except as otherwise
expressly provided in this Agreement, result in the creation of any lien, charge, security
interest, or other encumbrance upon any assets of Lessee pursuant to any indenture,
mortgage, deed of trust, bank loans, credit agreement or other instrument to which Lessee
is a party or by which it or its assets may be bound.
(e) There are no actions, suits or proceedings pending or, to the knowledge of
Lessee, threatened against or affecting Lessee in any court or before any governmental
commission, board or authority, which, if adversely determined, will have a material
adverse effect on the ability on the Lessee to perform its obligations under this Agreement
or any Lease.
(f) The interest rate for the interest portion of the Rental Payments, on the first
date interest begins to accrue. does not exceed a rate of interest permitted by Section
215.84, Florida Statutes.
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(g) Lessee will do or cause to be done all things necessary to preserve and keep
in full force and effect its existence as a body corporate and politic.
(h) Lessee has complied and will comply with such open meeting laws and
public bidding requirements as may be applicable to this Agreement and each Lease and
the acquisition by Lessee of the Equipment as provided in each Lease or, in the case of
public bidding requirements, has otherwise complied and will comply with Section
218.385(1), Florida Statutes, in connection with each Lease.
(i) During the Lease Term, the Equipment will be used by Lessee only for the
purpose of performing essential governmental or proprietary functions of Lessee permitted
under the Act. Lessee does not intend to sell or otherwise dispose of the Equipment or
any interest therein prior to the last Rental Payment (including all Renewal Terms)
scheduled to be paid under each Lease.
U) Lessee has kept and throughout the Lease Term shall keep its books and
records in accordance with generally accepted accounting principles and practices
consistently applied and shall deliver to Lessor (i) annual audited fmancial statements
(including a balance sheet, statement of revenues, expenses and changes in fund balances
for budget and actual, statement of cash flows and notes, and schedules and attachments
to the financial statements) within 180 days of its fiscal year end, (ii) such other fmancial
statements and information as Lessor may reasonably request, and (iii) its annual budget
for the following fiscal year within 90 days of the adoption of such budget. Such
statements in clause (i) above shall be accompanied by the Lessee's Comprehensive
Annual Financial Report. Credit information relating to Lessee may be disseminated
among Lessor and any of its affiliates and any of their respective successors and assigns.
(k) The proceeds of the Lease, together with investment earnings thereon, will
be expended to acquire Equipment within 6 months from the fIrst day of the Original
Term.
(1) Lessee has an immediate need for the Equipment listed on each Schedule
and expects to make immediate use of the Equipment listed on each Schedule. Lessee's
need for the Equipment is not temporary and Lessee does not expect the need for any item
of the Equipment to diminish during the Lease Term of such item. The use of the
Equipment is essential to Lessee's proper efficient and economic operation.
(m) The original proceeds of each Lease, and the interest to be earned thereon,
do not and will not exceed the amount necessary for the purpose for which such Lease is
executed.
(n) No sinking fund is expected to be created by Lessee with respect to any
Lease or the Rental Payments.
(0) No other governmental obligations of Lessee are being issued at
substantially the same time and sold pursuant to a common plan of fmancing which will be
paid out of (or have substantially the same claim to be paid out of) substantially the same
source of funds as each Lease.
1004.236974.2
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104.236974.2
(p) No portion of the amounts received pursuant to each Lease will be used as
a substitute for other funds which were otherwise to be used as a source of financing for
any portion of the costs of Equipment and which have been and will be used to acquire,
directly or indirectly, obligations producing a yield in excess of the yield on each Lease.
(q) In connection with the execution and delivery of each Lease, no action has
or will be taken which attempts to circumvent the provisions of Section 148 of the Code
and the regulations promulgated thereunder by (i) enabling Lessee to exploit the difference
between tax-exempt and taxable interest rates to gain a material fmancial advantage and
(ii) over burdening the tax-exempt bond market.
(r) Lessee will not directly or indirectly use or permit the use of any proceeds
of a Lease, or take or omit to take any action, that would cause the Rental Payments to be
"federally guaranteed" within the meaning of Section 149(b) of the Code.
(s) Lessee will submit to the Secretary of the Treasury information reporting
statements and other information related to each Lease at the times and in the forms
required by the Code.
(t) To the best of the knowledge and belief of the Lessee, the expectations of
Lessee, as set forth in this Section 2.01, are reasonable, and there are no present facts,
estimates and circumstances which would change the expectations contained therein.
(u) There is no pending litigation, tax claim, proceeding or dispute that may
adversely affect Lessee's financial condition or impairs its ability to perform its
obligations hereunder. Lessee will. at its expense, maintain its legal existence in good
standing and do any further act and execute, acknowledge, deliver, file, register and
record any further documents Lessor may reasonably request in order to protect Lessor's
interest in the Equipment and Lessor's rights and benefits under this Lease.
(v) The payment of the Rental Payments or any portion thereof is not (under
the terms of any Lease or any underlying arrangement) directly or indirectly (1) secured
by any interest in property used or to be used in any activity carried on by any person
other than a state or local governmental unit or payments in respect of such property; or
(2) on a present value basis, derived from payments (whether or not to Lessee) in respect
of property, or borrowed money, used or to be used in any activity carried on by any
person other than a state or local governmental unit. The Equipment will not be used,
directly or indirectly. in any activity carried on by any person other than a state or local
governmental unit. No portion of the Equipment Costs for the Equipment will be used,
directly or indirectly, to make or fmance loans to any person other than Lessee. Lessee
has not entered into any management or other service contract with respect to the use and
operation of the Equipment.
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(w) Lessee has reviewed and will review Internal Revenue Service Form 8038-
G to be filed in connection with the execution and delivery of this Agreement and the
initial Schedules, and all of the information contained therein is, and will be, to the best of
Lessee's knowledge, true and correct, and Lessee will cause such Form 8038-G to be filed
not later than 30 days after the execution and delivery of this Agreement and the initial
Schedules.
(x) Lessee reasonably expects that at least 85 % of the proceeds of each Lease
will be expended for the governmental purpose of the Lease within 3 years of the initial
date of the Lease term, and less than 50 % of the proceeds of each Lease will be invested
in investment securities with a substantially guaranteed yield for 4 years or longer.
ARTICLE III.
Section 3.01. Lease of Equipment. Subject to the terms of this Master Lease, the Lessor
agrees to provide the funds specified as the "Acquisition Amount" in each Lease to acquire the
Equipment. Upon the execution of each Lease, Lessor demises, leases, transfers and lets to
Lessee, and Lessee acquires, rents and leases from Lessor, the Equipment as set forth in such
Lease and in accordance with the terms thereof. The latest date for any funding under this
Agreement is February 13, 2004. The maximum cumulative amount of any funding under this
Agreement is $15.000,000 and the maximum cumulative amount of any funding for any year
(commencing February 13 of each year ending on February 12 of the immediately following year
is $5.000,000; provided. however, that the Lessor may waive the yearly limitation in its
discretion upon request of the Lessee.
Section 3.02. Continuation of the Lease Term. The Lease Term for each Lease may be
continued, solely at the option of Lessee, at the end of the Original Term or any Renewal Term
for the next succeeding Renewal Term up to the maximum Lease Term set forth in such Lease.
At the end of the Original Term and at the end of each Renewal Term until the maximum Lease
Term has been completed, Lessee shall be deemed to have exercised its option to continue each
Lease for the next Renewal Term unless Lessee terminates such Lease pursuant to Section 3.03
or Section 10.01. The terms and conditions during any Renewal Term shall be the same as the
terms and conditions during the Original Term, except that the Rental Payments shall be as
provided in the applicable Lease.
Lessee intends, subject to Section 3.03, to continue the Lease Term of each Lease through
the Original Term and all Renewal Terms and to pay the Rental Payments thereunder. Lessee
affirms that sufficient funds are available for the current fiscal year, and Lessee reasonably
believes that an amount sufficient to make all Rental Payments during the entire Lease Term of
each Lease can be obtained from legally available funds of Lessee. Subject to Section 3.03,
Lessee further intends to do all things lawfully within its power to obtain and maintain funds
sufficient and available to discharge its obligation to make Rental Payments due hereunder,
including making provision for such payments to the extent necessary in each budget or
appropriation request submitted and adopted in accordance with applicable provisions of law, to
have such portion of the budget or appropriation request approved and to exhaust all available
reviews and appeals in the event such portion of the budget or appropriation request is not
approved; provided. however. that no such appropriation would materially adversely affect the
104.236974.2
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essential services and functions of Lessee's operations and the purposes for which the Lessee was
created.
Section 3.03. Nonappropriation. Lessee is obligated only to pay such Rental Payments
under each Lease as may lawfully be made from funds budgeted and appropriated for that
purpose during Lessee's then current fiscal year. Should Lessee fail to budget, appropriate or
otherwise make available funds to pay Rental Payments under any Lease following the then
current Original Term or Renewal Term, such Lease or Leases shall be deemed terminated at the
end of the then current Original Term or Renewal Term. Lessee agrees to deliver notice to
Lessor of such terrilination at least 90 days prior to the end of the then current Original Term or
Renewal Term, but failure to give such notice shall not extend the term beyond such Original
Term or Renewal Term. If any Lease is terminated in accordance with this Section, Lessee
agrees to peaceably deliver the Equipment to Lessor at the location(s) to be specified by Lessor.
Section 3.04. Substitution. Lessee reserves the right to substitute Equipment of the same
quantity and general type with the approximate equal value, utility and remaining useful life as
the Equipment so replaced. Such substitution is subject to Lessor's prior written consent, which
consent shall not be unreasonably withheld, and shall be reflected in an amendment to the
appropriate Schedule.
Section 3.05. Conditions to Lessor's Performance Under Any Lease.
(a) As a prerequisite to the performance by Lessor of any of its obligations
pursuant to any Lease, Lessee shall deliver to Lessor the following:
(i) A fully completed Schedule, executed by Lessee;
(ii) An Acquisition Fund Agreement, executed by Lessee and the
Acquisition Fund Custodian, unless Lessor pays 100% of the Acquisition Amount
directly to the Vendor (or to the Lessee in reimbursement for payments to the
Vendor) upon execution of the Lease;
(iii) A Certificate executed by the Clerk or Secretary or other
comparable officer of Lessee, in substantially the form attached hereto as Exhibit
.c., completed to the satisfaction of Lessor.
(iv) A certified copy of a resolution or other official action of Lessee's
governing body authorizing the execution and delivery of the Lease and
performance by Lessee of its obligations thereunder.
(v) An opinion of counsel to Lessee in substantially the form attached
hereto as Exhibit D respecting such Lease and otherwise satisfactory to Lessor.
(vi) An executed Essential Use/Source of Funds Certificate in
substantially the form attached hereto as Exhibit E.
(vii) Evidence of insurance as required by Section 7.02 hereof.
1004.236974.2
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(viii) All other closing documents reasonably required by Lessor,
including certificates, notices and similar instruments, in form satisfactory to
Lessor.
(ix) A copy of a fully completed and executed Form 8038-G.
(x) Such other items, if any, as are set forth in such Lease or are
reasonably required by Lessor.
(b) In addition, the performance by Lessor of any of its obligations pursuant to any
Lease shall be subject to (i) no material adverse change in the financial condition of
Lessee since the date of this Agreement, (ii) no Event of Default having occurred, (iii) no
event of non-appropriation shall have occurred with respect to any Lease hereunder and
(iv) if no Acquisition Fund has been established, the Equipment must be accepted by
Lessee no later than the Utilization Period.
(c) Subject to satisfaction of the foregoing, Lessor will pay the Acquisition
Amount for Equipment described in a Schedule to the Vendor (or to reimburse the Lessee
for payments to the Vendor) upon receipt of the documents described in Section 5.01; or
if an Acquisition Fund has been established pursuant to an Acquisition Fund Agreement.
Lessor will deposit the Acquisition Amount for Equipment described in the Schedule with
the Acquisition Fund Custodian.
(d) . This Agreement is not a commitment by Lessor to enter into any Lease not
currently in existence, and nothing in this Agreement shall be construed to impose any
obligation upon Lessor to enter into any proposed Lease, it being understood that whether
Lessor enters into any proposed Lease shall be a decision solely within Lessor's
discretion.
(e) Lessee will cooperate with Lessor in Lessor's review of any proposed Lease.
Without limiting the foregoing, Lessee will provide Lessor with any documentation or
information Lessor may request in connection with Lessor's review of any proposed
Lease. Such documentation may include, without limitation, documentation concerning
the Equipment and its contemplated use and location and documentation or information
concerning the financial status of Lessee and other matters related to Lessee.
'--
ARTICLE IV.
Section 4.01. Rental Payments.
(a) Subject to Section 3.03, Lessee shall promptly pay Rental Payments, in lawful
money of the United States of America, to Lessor on the dates and in such amounts as
provided in each Lease. Lessee shall pay Lessor a charge on any Rental Payment not paid
on the date such payment is due at the rate of 16% per annum or the maximum amount
permitted by law, whichever is less, from such date. Rental Payments consist of principal
and interest payments as more fully detailed on each Schedule, the interest on which
begins to accrue as of the Commencement Date for each such Schedule.
104,236974.2
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(b) Each Lease will have an interest component based on a fixed rate of interest.
The annual fixed rates of interest for Leases funded under this Agreement will be
calculated as follows: (i) in the case of Leases having a term of 36 months, multiplying
96.48 % times the annual interest rate borne by U. S. Treasury obligations having a
maturity comparable to the final Rental Payment on such 36-month Lease; and (ii) in the
case of Leases having a term of 60 months, multiplying 88.5 % times the annual interest
rate borne by U.S. Treasury obligations having a maturity comparable to the fmal Rental
Payment on such 60-month Lease.
Section 4.02. Interest and Principal Components. A portion of each Rental Payment is
paid as, and represents payment of, interest, and the Balance of each Rental Payment is paid as,
and represents payment of, principal. Each Lease shall set forth the principal and interest
components of each Rental Payment payable thereunder during the Lease Term.
Section 4.03. Rental Payments to Constitute a Current Expense of Lessee. Lessor and
Lessee understand and intend that the obligation of Lessee to pay Rental Payments under each
Lease shall constitute a current expense of Lessee payable solely from its general fund or other
funds that are legally available for that purpose and shall not in any way be construed to be a debt
of Lessee in contravention of any applicable constitutional or statutory limitation or requirement
concerning the creation of indebtedness by Lessee. THE RENTAL PAYMENTS ARE TO BE
MADE ONLY FROM THE LESSEE'S LEGALLY AVAILABLE REVENUES
APPROPRIATED ON AN ANNUAL BASIS, AND NEITHER THE LESSEE, THE STATE,
NOR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF SHALL BE OBLIGATED
TO PAY ANY SUMS DUE UNDER A LEASE FROM THE COMPELLED LEVY OF AD
V ALOREM OR OTHER TAXES EXCEPT FROM THOSE LEGALLY A V AILABLE
REVENUES APPROPRIATED BY THE LESSEE ON AN ANNUAL BASIS, AND NEITHER
THE FULL FAITH AND CREDIT NOR THE TAXING POWER OF THE LESSEE, THE
STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF ARE PLEDGED
FOR PAYMENT OF SUCH SUMS DUE UNDER A LEASE.
Section 4.04. Rental Payments to be Unconditional. Except as provided in Section 3.02
and Section 3.03, the obligations of Lessee to make Rental Payments and to perform and observe
the other covenants and agreements contained in each Lease shall be absolute and unconditional
in all events without abatement, diminution, deduction, set-off or defense, for any reason,
including without limitation any failure of the Equipment, after it has been accepted by lessee,
any defects, malfunctions, breakdowns or-infIrmities in the equipment or any accident,
condemnation or unforeseen circumstances.
Section 4.05. Tax Covenant. Lessee agrees that it will not take, or fail to take in a timely
manner, any action that would cause the interest component of Rental Payments to be or to
become ineligible for the exclusion from. gross income of the owner or owners thereof for federal
income tax purposes. including, without limitation, the calculation and payment of any rebate
required to preserve such exclusion. Subject to Lessee's right to terminate the Lease as provided
herein, the foregoing covenant shall remain in effect until the date on which all obligations of
Lessee in fulfilling the above covenant under the Code have been met.
1004.236974.2
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Section 4.06. Event of Taxability. Upon the occurrence of an Event of Taxability, the
interest component shall be at a taxable rate retroactive to the date as of which the interest
component is determined by the Internal Revenue Service to be includible in the gross income of
the owner or owners thereof for federal income tax purposes, and Lessee will pay such additional
amount as will result in the owner receiving the interest component at the taxable rate identified
in the related Lease. Lessee will also pay any penalties and interest charged to Lessor by the
Internal Revenue Service in connection with an Event of Default.
For purposes of this section, "Event of Taxability" means a determination that the interest
component is includible for federal income tax purposes in the gross income of the owner thereof
due to Lessee's action or failure to take any action.
Section 4.07. Mandatory Prepayment. If the Lease Proceeds are deposited into an
Acquisition Fund, any funds remaining in the Acquisition Fund on or after the Acquisition Period
and not applied to Equipment Costs, shall be applied by Lessor on the next Rental Payment date,
pro rata to the prepayment of the principal component of the outstanding Rental Payments due
under the applicable Schedule.
ARTICLE V.
Section 5.01. Delivery, Installation and Acceptance of Equipment.
(a) Lessee shall order the Equipment, cause the Equipment to be delivered and
installed at the location specified in the Leases, and pay any and all delivery and
installation costs and other Equipment Costs in connection therewith. When the
Equipment listed in any Lease has been delivered and installed, Lessee shall promptly
accept such Equipment and evidence said acceptance by executing and delivering to
Lessor an acceptance certificate in the form attached hereto as Exhibit B.
(b) Lessee shall deliver to Lessor original invoices and bills of sale (if title to such
Equipment has passed to Lessee) relating to each item of Equipment accepted by Lessee.
With respect to Equipment not purchased through an Acquisition Fund, Lessor shall, upon
receipt of an Acceptance Certificate from Lessee, prepare a Schedule of Property and
Rental Payment Schedule. Lessee shall execute and deliver such Schedules to Lessor
within 5 business days of receipt.
--
Section 5.02. Enjoyment of Equipment. Lessor shall provide Lessee with quiet use and
enjoyment of the Equipment during the Lease Term, and Lessee shall peaceably and quietly have,
hold and enjoy the Equipment during the Lease Term, without suit, trouble or hindrance from
Lessor, except as otherwise expressly set forth in the related Lease. Lessor shall not interfere
with such quiet use and enjoyment during the Lease Term so long as Lessee is not in default
under the related Lease.
Section 5.03. Location and Inspection of the Equipment. Once installed, Lessee will not
move any item of the Equipment from the location specified for it in the Lease on which such
item is listed without Lessor's consent; which consent shall not be unreasonably withheld. Lessor
shall have the right at all reasonable times during regular business hours to enter into and upon
the property of Lessee for the purpose of inspecting the Equipment. Lessee shall promptly
-11-
104.236974.2
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provide any information about the Equipment or a Lease that may be reasonably requested by
Lessor.
Section 5.04. Use and Maintenance of the Equipment. Lessee will not install, use,
operate, or maintain the Equipment improperly, carelessly, in violation of any applicable law or
in a manner contrary to that contemplated by the related Lease. Lessee shall provide all permits
and licenses, if any, necessary for the installation and operation of the Equipment. In addition,
Lessee agrees to comply in all respects with all applicable laws, regulations and rulings of any
legislative, executive, administrative, or judicial body; provided that Lessee may contest in good
faith the validity or application of any such law, regulation or ruling in any reasonable manner
that does not, in the opinion of Lessor, adversely affect the interest (including the reversionary
interest) of Lessor in and to the Equipment or its interest or rights under the Lease.
Lessee agrees that it will maintain, preserve, and keep the Equipment in good repair and
working order, in accordance with manufacturer's recommendations. Lessor shall have no
responsibility to maintain, repair or make improvements or additions to the Equipment. If
commercially available, Lessee will maintain in force a standard maintenance contract with the
manufacturer of the Equipment, and upon request will provide Lessor with a copy of that
contract. Upon the prior written consent of Lessor, which consent shall not be unreasonably
withheld, Lessee may use another third party maintenance provider provided the maintenance
contract between Lessee and. such third party requires the third party to maintain the Equipment
at the manufacturer's then current release, revision and engineering change levels, including
hardware, software enhancements and microcode levels. In all cases, Lessee agrees to pay any
costs necessary for the manufacturer to re-certify the Equipment as eligible for manufacturer's
maintenance upon the return of the Equipment to Lessor as provided for herein.
Lessee shall not alter any item of Equipment or install any accessory, equipment or device
on an item of Equipment if that would impair any applicable warranty. the originally intended
function or the value of that Equipment. All repairs, parts, accessories, equipment and devices
furnished, affixed to or installed on any Equipment, excluding temporary replacements, shall
thereupon become subject to the interest of Lessor.
ARTICLE VI.
Section 6.01. Title to the Equipment. During each Lease Term, and so long as the Lessee
is not in default under Article XII hereof, -all right, title and interest in and to each item of the
Equipment shall be vested in Lessee immediately upon its acceptance of each item of Equipment,
subject to the terms and conditions of the applicable Lease. Lessee shall at all times protect and
defend, at its own cost and expense, its title in and to the Equipment from and against all claims,
liens and legal processes of its creditors, and keep all Equipment free and clear of all such
claims, liens and processes. Upon the occurrence of an Event of Default or upon termination of
a Lease pursuant to Section 3.03 hereof, full and unencumbered legal title to the Equipment shall
pass to Lessor, and Lessee shall have no further interest therein except as provided in Section
12.02(c). In addition, upon the occurrence of such an Event of Default or such termination,
Lessee shall execute and deliver to Lessor such documents as Lessor may request to evidence the
passage of such legal title to Lessor and the termination of Lessee's interest therein, and upon
request by Lessor shall deliver possession of the Equipment to Lessor in accordance with Section
_11114. ?'ll'lQ74. ?
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,4.236974.2
hereby incorporated into this Schedule by reference and made a part hereof. The maximum
Lease Term, subject to annual appropriation, is _ months.
[OPTION: IF ACQUISITION FUND AGREEMENT IS USED: 6. Acqllisition Amount.
The Acquisition Amount for the Equipment described in this Schedule, to be deposited in the
Acquisition Fund designated" " for Account No. , is
$ .]
OR IF VENDOR PAID DIRECTLY, USE: 6. Acquisition Amount. The Acquisition Amount
for the Equipment described in this Schedule to be paid to the Vendor is $ .] .
[OPTION IF ACQUISITION FUND AGREEMENT IS USED: 7. Acq.uisition Period. The
Acquisition Period applicable to this Schedule shall end at the conclusion of the _ month
following the date hereof.
OR IF VENDOR PAID DIRECTLY, USE: 7. Utilization Period. The Utilization Period
applicable to this Schedule shall end at the close of business, Florida time, on .]
Dated:
,20_
Lessor:
Banc of America Leasing & Capital, LLC
555 California Street, 4th Floor
San Francisco, California 94104
Lessee:
City of Clearwater, Florida
100 South Myrtle Ave., 3d Floor
Clearwater, Florida 33756
By:
Mayor-Commissioner
By:
Interim City Manager
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Approved as to form:
By:
Assistant City Attorney
_04.236914.2
Attest:
By:
City Clerk
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Exhibit A-I
Rental Payment Schedule
Rental
Payment Date
( )
Rental Payment
Amount
Principal
Portion
Interest Portion
Purchase Price*
*The Purchase Option Commencement Date shall be [the date of funding]. The
Purchase Price payable (i) on any Rental Payment date is the amount equal to the aggregate
principal portion of the remaining Rental Payments after payment of the Rental Payment payable
on such Rental Payment Date, and (ii) on any date other than a Rental Payment date is the
amount equal to the aggregate principal portion of the remaining Rental Payments plus an amount
equal to the interest portion of such Rental Payments accrued thereon to such date.
For purposes of this Lease, "Taxable Rate," with respect to the interest component of
Rental Payments, means an annual rate of interest equal to _ %.
Lessee:
CITY OF CLEARWATER, FLORIDA
By:
Interim City Manager
Approved as to form:
Attest:
By:
City Clerk
After payment of the applicable Purchase Price, Lessee will own the related Equipment, free and
clear of any obligations under the related Lease.
_04.236974.2
A-4
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Exhibit B
Acceptance Certificate
Banc of America Leasing & Capital, LLC
555 California Street, 4th Floor
San Francisco, California 94104
Re: Schedule of Property No(s). , dated _,
to Master Equipment Lease/Purchase Agreement, dated February
13,2001, between Banc of America Leasing & Capital, LLC, as
Lessor, and City of Clearwater, Florida, as Lessee.
Ladies and Gentlemen:
In accordance with the Master Equipment Lease/Purchase Agreement (the" Agreement"),
the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows:
1. All of the Equipment (as such term is defined in the Agreement) listed in the
above-referenced Schedule(s) of Property (the "Schedule(s)") has been delivered, installed and
accepted on the date hereof.
2. Lessee has conducted such inspection and/or testing of the Equipment listed in the
Schedule(s) as it deems necessary and appropriate and hereby acknowledges that it accepts the
Equipment for all purposes.
3. Lessee is currently maintaining the insurance coverage required by Section 7.02 of
the Agreement.
4. No event or condition that constitutes, or with notice or lapse of time, or both,
would constitute, an Event of Default (as defined in the Agreement) exists at the date hereof.
Date:
Lessee:
CITY OF CLEARWATER, FLORIDA
By:
Mayor-Commissioner
By:
Interim City Manager
_04.236974.2
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Approved as to form:
By:
Assistant City Attorney
1004.236974.2
Attest:
By:
City Clerk
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1004.236974.2
Exhibit C
Clerk Certificate
The undersigned, a duly elected and acting City Clerk of the City of Clearwater,
Florida (the "Lessee") certifies as follows:
A. The following listed persons are duly elected and acting officials of the
Lessee (the "Officials") in the capacity set forth opposite their respective names below and the
facsimile signatures are true and correct as of the date hereof;
B. The Officials are duly authorized, on behalf of the Lessee, to negotiate,
execute and deliver the Master Equipment Lease/Purchase Agreement dated February 13, 2001
and the Schedule(s) thereunder and all future Schedule(s) (the" Agreements") by and between the
City of Clearwater, Florida and Banc of America Leasing & Capital, LLC and these Agreements
are binding and authorized Agreements of the Lessee, enforceable in all respects in accordance
with their terms.
Name of Official
Title
Signature
Mayor
City Manager
Dated:
By:
City Clerk
Approved as to form:
(The signer of this Certificate cannot be listed above as authorized to execute the
Agreements. )
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Exhibit D
Opinion of Counsel to Lessee
Banc of America Leasing & Capital, LLC
555 California Street, 4th Floor
San Francisco, California 94104
Re: Schedule of Property No(s). . dated . _. to
Master Equipment Lease/Purchase Agreement, dated February 13,
2001, between Banc of America Leasing & Capital, LLC, as Lessor,
and the City of Clearwater, Florida, as Lessee.
Ladies and Gentlemen:
As legal counsel to the City of Clearwater, Florida (the "Lessee"), I have
examined (a) an executed counterpart of a certain Master Equipment Lease/Purchase Agreement,
dated February 13, 2001, and Exhibits thereto by and between Banc of AmericaLeasing &
Capital, LLC (the "Lessor") and the Lessee (the" Agreement"), and an executed counterpart of
Schedule of Property No(s). , dated . by and between Lessor
and Lessee (the "Schedule(s)"), which, among other things, provides for the lease of certain
property listed in the Schedule(s) (the "Equipment"), (b) an executed counterpart of the
ordinances or resolutions of Lessee which, among other things, authorize Lessee to execute the
Agreement and the Schedule(s) and (c) such other opinions, documents and matters of law as I
have deemed necessary in connection with the following opinions. The Schedule(s) and the terms
and provisions of the Agreement incorporated therein by reference together with the Rental
Payment Schedule attached to the Schedule(s) are herein referred to collectively as the "Lease".
Based on the foregoing, I am of the following opinions:
1. Lessee is a municipality duly created and existing under the laws of the
State, and is a political subdivision of a state within the meaning of Section 103(c) of the Internal
Revenue Code of 1986, as amended (the "Code"), and the obligations of Lessee under the
Agreement will constitute an obligation of Lessee within the meaning of Section 103(a) of the
Code, notwithstanding Section 103(b) of the Code.
2. Lessee has the requisite power and authority to lease and acquire the
Equipment and to execute and deliver the Lease and to perform its obligations under the Lease;
3. The Lease has been duly authorized, approved, executed and delivered by
and on behalf of Lessee and the Lease is a valid and binding obligation of Lessee enforceable in
accordance with its terms;
4. The authorization, approval. execution and delivery of the Lease and all
other proceedings of Lessee relating to the transactions contemplated thereby have been
performed in accordance with all open meeting laws, public bidding laws and all other applicable
state or federal laws;
_04.236974.2
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1004.236974.2
5. There is no proceeding pending or threatened in any court or before any
governmental authority or arbitration board or tribunal that, if adversely determined, would
adversely affect the transactions contemplated by the Lease or the interest of Lessor or its
assigns, as the case may be, in the Equipment thereunder; and
6. The portion of rentals designated as and constituting interest paid by Lessee
and received by Lessor is excluded from Lessor's gross income for federal income tax purposes
under Section 103 of the Code; and such interest is not a specific item for purposes of the federal
individual or corporate alternative minimum taxes.
All capitalized terms herein shall have the same meanings as in the Lease unless
otherwise provided herein. Lessor and its successors and assigns, and any counsel rendering an
opinion on the tax-exempt status of the interest components of the Rental Payments, are entitled
to rely on this opinion.
Yours truly,
D-2
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Exhibit E
Essential Use/Source of Funds Certificate
Banc of America Leasing & Capital, LLC
555 California Street, 4th Floor
San Francisco, California 94104
Re: Master Equipment Lease/Purchase Agreement dated February 13, 2001,
Schedule of Property No(s). dated
This certificate confirms and affirms that the Equipment described in the Agreement
referenced above is essential to the governmental, municipal or public purposes or functions of
the Lessee or to the services Lessee provides its citizens. Further, Lessee has an immediate need
for, and expects to make immediate use of, substantially all such Equipment, which need is not
temporary or expected to diminish in the foreseeable future. Such Equipment will be used by
Lessee only for the purpose of performing one or more of Lessee's governmental or proprietary
functions permitted under the Act (as defined in the Agreement referenced above).
Lessee expects and anticipates adequate funds to be available for all future payments or
rent due after the current budgetary period, subject to annual appropriation.
Lessee:
CITY OF CLEARWATER, FLORIDA
By:
Mayor-Commissioner
By:
Interim City Manager
Approved as to form:
Attest:
By:
Assistant City Attorney
By:
City Clerk
Please return this certificate with complete copies of your two most recent audited
financial statements so we may begin our credit review process. Thank you.
E-1
1004.236974.2
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FIRST AMENDMENT TO MASTER LEASE/PURCHASE AGREEMENT
(Florida Version)
This First Amendment to Master Lease/Purchase Agreement (the "Amendment") is dated
as of ~ ~ , 2003, by and between Bane of America Leasing of Capital, LLC, a
Delaware limited/liability company (the "Lessor") and the City of Clearwater, Florida, a
municipality existing under the laws of the State of Florida (the "Lessee").
BACKGROUND FACTS
Lessor and Lessee entered into that certain Master Equipment Lease/Purchase Agreement
(Florida Version) dated February 13,2001 (the "Master Lease"). Lessee has requested that the
maximum cumulative amount of any funding under the Master Lease be increased to
accommodate Lessee's current needs and Lessor has agreed to do so, subject to the terms of this
Amendment.
AGREEMENT
In consideration of the mutual benefits and obligations set forth herein and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lessor
and Lessee hereby agree as follows:
I. Background Facts. The Background Facts as set forth above are agreed to be true
and correct and are incorporated herein by this reference.
2. Lease of Equipment. Section 3.01 of the Master Lease is hereby amended and
restated in its entirety as follows:
Section 3.01. Lease of Equipment. Subject to the terms of
this Master Lease, the Lessor agrees to provide the funds specified
as the "Acquisition Amount" in each Lease to acquire the
Equipment. Upon the execution of each Lease, Lessor demises,
leases, transfers and lets to Lessee, and Lessee acquires, rents and
leases from Lessor, the Equipment as set forth in such Lease and in
accordance with the terms thereof. The latest date for any funding
under this Agreement is February 13,2004. The maximum
cumulative amount of any funding under this Agreement is
$16,500,000 and the maximum cumulative amount of any funding
for any year (commencing February 13 of each year ending on
February 12 of the immediately following year) is $5,000,000;
provided. however, that the Lessor may waive the yearly limitation
in its discretion upon request of the Lessee.
3. Conflict. In the event of a conflict between the Master Lease and this
Amendment, the terms of this Amendment shall control.
004.396386.1
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I 004.396386.1
4. Ratification. Lessee hereby ratifies the terms and conditions of the Master Lease
and agrees that the Master Lease is a valid, binding and enforceable agreement between the
parties and is in full force and effect, as modified hereby, and is incorporated herein by this
reference. Lessor has fully performed its obligations under the Master Lease through the date of
this Amendment and Lessee has no defenses, offsets or claims against the Lessor with respect to
the Master Lease as of the date hereof.
Lessor and Lessee have executed this Amendment as of the date first written above.
Lessor:
Banc of America Leasing & Capital, LLC
555 California Street, 4th Floor
San Francisco, California 94104
By: fik..:( J1-L~
G D. Smedal, VIce PresIdent
Lessee:
City of Clearwater, Florida
100 South Myrtle Ave., 3d Floor
Clearwater . a 3375
Approved as to form:
By:J1 t )).
Pamela K. Akin, City Attorney
2
.~-rr:
William B. Horne, II, mterim City Manager
Attest:
By: .Jjao- p...,,~
C n hia E. Goudeau, Ci.ty Clerk
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I 004.396563.1
SCHEDULE OF PROPERTY NO. 19
Re: Master Equipment Lease/Purchase Agreement dated as of
February 13,2001, between Banc of America Leasing & Capital, LLC,
as Lessor, and the City of Clearwater, Florida, as Lessee, as amended by First
Amendment to Master Lease/Purchase Agreement dated as of
September 30, 2003
1. Defined Terms. All terms used herein have the meanings ascribed to them
in the above-referenced Master Equipment Lease/Purchase Agreement (the "Master Equipment
Lease").
2. Equipment. The following items of Equipment are hereby included under
this Schedule of the Master Equipment Lease.
S~E LIST OF EQUIPMENT A TT ACHED HERETO AS EXHIBIT A-2.
3. Payment Schedule.
Rental Payments. The Rental Payments shall be in such amounts and payable on
such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit A-I.
Rental Payments shall commence on the date on which the Equipment listed in this Schedule is
accepted by Lessee, as indicated in an Acceptance Certificate substantially in the form of Exhibit
B to the Master Equipment Lease or the date on which sufficient moneys to purchase the
Equipment are deposited for that purpose with an Acquisition Fund Custodian, whichever is
earlier.
Purchase Price Schedule. The Purchase Price on each Rental Payment date for
the Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date
in the "Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The
Purchase Price is in addition to all Rental Payments then due under this Schedule (including the
Rental Payment shown on the same line in the Rental Payment Schedule).
4. Representations. Warranties and Covenants. Lessee hereby represents,
warrants and covenants as follows:
(a) That its representations, warranties and covenants set forth in the Master
Equipment Lease are true and correct as though made on the date of commencement of Rental
Payments on this Schedule. Lessee further represents and warrants that no material adverse
change in Lessee's financial condition has occurred since the date of the Master Equipment
Lease.
(b) That the undersigned Finance Director is duly authorized to execute this
Schedule and other documentation relating to this Schedule on behalf of the Lessee, by a
resolution duly adopted by the governing body of the Lessee, and that no other officer, member
or official of the Lessee is required to execute this Schedule for this Schedule to be a valid and
binding obligation of the Lessee.
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5. The Lease. The terms and provisions of the Master Equipment Lease
(other than to the extent that they relate solely to other Schedules or Equipment listed on other
Schedules) are hereby incorporated into this Schedule by reference and made a part hereof. The
maximum Lease Term, subject to annual appropriation, is 36 months.
6. Acquisition Amount. The Acquisition Amount for the Equipment described in
this Schedule to be paid to the Lessee as reimbursement for payments to the Vendors is
$112,270,00.
7. Utilization Period. The Utilization Period applicable to this Schedule shall end
at the close of business, Florida time, on Je~ / J # , 2003.
Dated:
fl~/
,2003.
]17
Lessor:
Banc of America Leasing & Capital, LLC
555 California Street, 4th Floor
San Francisco, California 94104
By: ~.J~
G D. Smedal, V Ice PreSIdent
v
Lessee:
City of Clearwater, Florida
100 South Myrtle Ave., 3d Floor
Clearwater, Florida 33756
By:J:1m~nJ:fJ ~~_
Margaret Simmons, Finance Director
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EXHIBIT A-I
RENTAL PAYMENT SCHEDULE
Rental
Payment Date
Rental Payment
Amount
Purchase Price*
Interest Portion
(2.0615%)
Principal
Portion
Sep-30-03 112,270.00
Dec-O 1-03 392.1 7 392.17 112,270.00
Mar-O 1-04 9,672.20 578.61 9,093.59 103,176.41
Jun-O 1-04 9,672.20 531.75 9,140.46 94,035.95
Sep-O 1-04 9,672.20 484.64 9,187.56 84,848.39
Dec-O 1-04 9,672.20 437.29 9,234.91 75,613.48
Mar-O 1-05 9,672.20 389.69 9,282.51 66,330.97
Jun-Ol-05 9,672.20 341.85 9,330.35 57,000.62
Sep-O 1-05 9,672.20 293.77 9,378.43 47,622.19
Dec-O 1-05 9,672.20 245.43 9,426.77 38,195.42
Mar-O 1-06 9,672.20 196.85 9,475.35 28,720.06
Jun-Ol-06 9,672.20 148.02 9,524.19 19,195.88
Sep-O 1-06 9,672.20 98.93 9,573.27 9,622.61
Dec-O 1-06 9,672.20 49.59 9,622.61 0
*The Purchase Option Commencement Date shall be ...r;" j'?d ,2003. The Purchase
Price payable (i) on any Rental Payment date is the amount equal to the aggregate principal
portion of the remaining Rental Payments after payment of the Rental Payment payable on such
Rental Payment Date, and (ii) on any date other than a Rental Payment date is the amount equal
to the aggregate principal portion of the remaining Rental Payments plus an amount equal to the
interest portion of such Rental Payments accrued thereon to such date.
3
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For purposes of this Lease, "Taxable Rate," with respect to the interest component
of Rental Payments, means an annual rate of interest equal to 3.2300%.
Lessee:
CITY OF CLEARWATER, FLORIDA
BY:~~~,/ ~ _
Margaret Simmons, Finance Director
After payment of the applicable Purchase Price, Lessee will own the related Equipment, free and
clear of any obligations under the related Lease.
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Vendor
Diversified Business
Don Reid For
Total
EXHIBIT A-2
LIST OF EQUIPMENT
Amount
$ 62,840.00
49.420.00
$112,270.00
Equipment
Digital Photo ID Card
(2) Ford Crown Victoria
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SCHEDULE OF PROPERTY NO. 20
Re: Master Equipment Lease/Purchase Agreement dated as of
February 13,2001, between Banc of America Leasing & Capital, LLC,
as Lessor, and the City of Clearwater, Florida, as Lessee, as amended by First
Amendment to Master Lease/Purchase Agreement dated as of
September 30, 2003
1. Defined Terms. All terms used herein have the meanings ascribed to them
in the above-referenced Master Equipment Lease/Purchase Agreement (the "Master Equipment
Lease").
2. Equioment. The following items of Equipment are hereby included under
this Schedule of the Master Equipment Lease.
SEE LlSTOF EQUIPMENT ATTACHED HERETO AS EXHIBIT A-2.
3. Payment Schedule.
Rental Payments. The Rental Payments shall be in such amounts and payable on
such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit A-I.
Rental Payments shall commence on the date on which the Equipment listed in this Schedule is
accepted byLessee, as indicated in an Acceptance Certificate substantially in the form of Exhibit
B to the Master Equipment Lease or the date on which sufficient moneys to purchase the
Equipment are deposited for that purpose with an Acquisition Fund Custodian, whichever is
earlier.
Purchase Price Schedule. The Purchase Price on each Rental Payment date for
the Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date
in the "Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The
Purchase Price is in addition to all Rental Payments then due under this Schedule (including the
Rental Payment shown on the same line in the Rental Payment Schedule).
4. Representations. Warranties and Covenants. Lessee hereby represents,
warrants and covenants as follows:
(a) That its representations, warranties and covenants set forth in the Master
Equipment Lease are true and correct as though made on the date of commencement of Rental
Payments on this Schedule. Lessee further represents and warrants that no material adverse
change in Lessee's financial condition has occurred since the date of the Master Equipment
Lease.
(b) That the undersigned Finance Director is duly authorized to execute this
Schedule and other documentation relating to this Schedule on behalf of the Lessee, by a
resolution duly adopted by the governing body of the Lessee, and that no other officer, member
or official of the Lessee is required to execute this Schedule for this Schedule to be a valid and
binding obligation ofthe Lessee.
I 004.396568.1
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I 004.396568.1
5. The Lease. The terms and provisions of the Master Equipment Lease
(other than to the extentthat they relate solely to other Schedules or Equipment listed on other
Schedules) are hereby incorporated into this Schedule by reference and made a part hereof The
maximum Lease Term, subject to annual appropriation, is 60 months.
6. Acquisition Amount. The Acquisition Amount for the Equipment described in
this Schedule to be paid to the Lessee as reimbursement for payments to the Vendors is
$2,039,413.55.
7. Utilization Period. The Utilization Period applicable to this Schedule shall end
at the close of business, Florida time, on f(.,,! JI, 2003.
Dated:
..)4"1
J" , 2003.
Lessor:
Banc of America Leasing & Capital, LLC
555 California Street, 4th Floor
San Francisco, California 94104
By: ~t.:(.J) ~(
G " . Smedal, V Ice PreSIdent
Lessee:
City of Clearwater, Florida
100 South Myrtle Ave., 3d Floor
Clearwater, Florida 33756
By: ~.L..t ~.At--_
Margaret SImmons, Finance Director
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I 004.396568.1
EXHIBIT A-I
RENTAL PAYMENT SCHEDULE
Rental Payment
Date
Rental Payment
Amount
Purchase Price*
Interest Portion
(2.7878%)
Principal
Portion
Sep-30-03 2,039,413.55
Dec-O 1-03 9,633.73 9,633.73 2,039,413.55
Mar-O 1-04 109,596.93 14,213.69 95,383.24 1,944,030.31
lun-Ol-04 109,596.93 13,548.92 96,048.01 1,847,982.30
Sep-O 1-04 109,596.93 12,879.51 96,717.42 1,751,264.88
Dec-O 1-04 109,596.93 12,205.44 97,391.49 1,653,873.38
Mar-O 1-05 109,596.93 11,526.67 98,070.26 1,555,803.12
lun-Ol-05 109,596.93 10,843.17 98,753.76 1,457,049.36
Sep-Ol-05 109,596.93 10,154.91 99,442.03 1,357,607.33
Dec-O 1-05 109,596.93 9,461.84 100,135.09 1,257,472.24
Mar-O 1-06 109,596.93 8,763.95 100,832.98 1,156,639.26
lun-Ol-06 109,596.93 8,061.20 101,535.74 1,055,103.52
Sep-O 1-06 109,596.93 7,353.54 102,243.39 952,860.13
Dec-O 1-06 109,596.93 6,640.96 102,955.97 849,904.16
Mar-O 1-07 109,596.93 5,923.41 103.673.53 746,230.63
lun-Ol-07 109,596.93 5,200.85 104,396.08 641,834.56
Sep-Ol-07 109,596.93 4,473.27 105,123.67 536,710.89
Dec-O 1-07 109,596.93 3,740.61 105,856.33 430,854.56
Mar-Ol-08 109,596.93 .. 3,002.84 106,594.09 324,260.47
lun-Ol-08 109,596.93 2,259.93 107,337.00 216,923.47
Sep-O 1-08 109,596.93 1,511.85 108,085.09 108,838.38
Dec-O 1-08 109,596.93 758.55 108,838.38 0
*The Purchase Option Commencement Date shall be Je/"I J~, 2003. The
Purchase Price payable (i) on any Rental Payment date is the amount equal to the aggregate
principal portion ofthe remaining Rental Payments after payment of the Rental Payment payable
on such Rental Payment Date, and (ii) on any date other than a Rental Payment date is the
amount equal to the aggregate principal portion of the remaining Rental Payments plus an
amount equal to the interest portion of such Rental Payments accrued thereon to such date.
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I 004.396568.1
For purposes of this Lease, "Taxable Rate," with respect to the interest component
of Rental Payments, means an annual rate of interest equal to 4.3679%.
Lessee:
CITY OF CLEARWATER, FLORIDA
BY:.~~
Margaret Simmons, Finance Director
After payment of the applicable Purchase Price, Lessee will own the related Equipment, free and
clear of any obligations under the related Lease.
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Vendor
Garber Auto Mall
Florida Level & Transit
Co
Grimco Inc.
Maroone Chevrolet
Alan Jay Chevrolet
Atlantic Truck Center
Briggs Equipment
Duval Ford
E & E Services
McClain Southland
Ringhaver Equipment
Wesco Turf Inc.
White River Distributors
Don Reid Ford
Complete Dewatering
Pumps
Pioneer Machinery
Bobcat Company
Southern Sewer Equipt
Container Systems
TOTAL
I 004.396568.1
EXHIBIT A-2
LIST OF EQUIPMENT
Amount
15,334.00
38,637.40
19,329.31
102,652.00
50,139.00
452,229.00
31,022.00
89,973.00
29,200.00
407,490.75
49,998.00
79,548.18
79,400.00
14,850.00
23,738.00
172,840.91
24,626.00
24,950.00
333.456.00
$2,039,413.55
Equipment
2003 Chevy S 1 0 pickup
Leica GPS SR530 System
Edge 2 Envision Imaging System
(3) Chevy Express 3500/2500
(2) Silverado 1500
(2) Chevy Silverado 2500
(I)Roll off Truck (4)L T9500
Tractor (1) M7500 Truck
Case 586G Forklift
(3) 2003 Ford F450
2003 Morbark Chipper
(3) Tymco Air Sweeper
CAT Backhoe/Loader
(2) Toro 328D Riding Mower
(2) Reelmaster
LPG Delivery Tanker
2003 Ford Taurus
6V ATP-H4-W Trash Pump
CEC Screen It Track Mobile 5 x
12T
328D Mini Excavator
2003 MV200 GTW Vac-Tron
(4) 2004 Intl Recycling Trucks
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(C.
~
. BD@Ilt
..~~er
Ohve~A. .
October 31, 2003
Via Certified Mail
. Internal Revenue Service Center
Ogden, Utah 84201
Dear Sir or Madam:
City of Oearwater, Florida
Lease/Purchase of City Vehicles and Equipment
Enclosed please find an original amended Form 8038-G relating to the issuance of the
above referenced Bonds. The Issuer was to have forwarded you an original of this form so this
may be a duplicate.
Encl
smre;e j ~~
cld C. Robinson
. Secretary to Robert C. Reid
201 South Monroe Street · Suite 500 · Tallahassee, Florida 32301 · 850-222-8611 . Fax: 850-222-8969 . www.bmolaw.com
TALLAHASSEE. TAMPA · OR L A III 0 0 · MIAMI . ATLANTA
.....--. .-.-...,.. ..--........ ..........:.............._.....N... . ....._..... .._...M............___... . . ....1... .
-.
.~
Form 8038.G
Information Return for Tax.Exempt Governmental Obligations
~ Under lmemal Revenue Code section 149(e)
~ See separate Instructions.
Caution: If the issue price is under $100,000, use Form B038-Ge.
If Amended Return, check here ~ 0
2 Issuer's employer Identification number
59; 6000288
Room/suite 4 Report number
3 01
6 Date of Issue
2/13101
OMB No. 1545-0720
1
Issuer's name
City of Clearwater, florida
Number and street (or P.O. box if mail is not delivered to street address)
100 South Myrtle Avenue, 3rd Floor
City, town, or post office, state, and ZIP code
Clearwater, FL 33756-5520
Name of issue
Lease I Purchase of City Vehicles and Equipment
Name and title of officer or legal representative whom the IRS may call for more Information
RobertC. Reid, Bond Counsel
'Ji e of Issue (check a
o Education
o Health and hospital
o Transportation . .
o Public safety. . .
o Environment Oncluding sewage bonds) .
o Housing . . . . . . . . . . .
o Utilities. . . . . . . ... . . . . . . . . .
1!21 Other. Describe ~ General Municipal Services (equipment)
If obligations are TANs or RANs, check box ~ 0 If obligations are BANs, check box ~ 0
'If obli atlons are in the form of a lease or Installment sale, check box . . . . . . ~ 0
Descri tion of Obli ations. Com lete for the entire issue for which this form is bein
16,500,000.00
3
5
7
8 CUSIP number
N1A
9
Telephone number of officer or tegat representative
( 850 )222-8611
and enter the issue rice See instructions and attach schedule
11
12
13
14
15
16
17
18
(c) Slated l'lIdemplIon
price at maturity
(d) Weighted
average maturity
(e) YIeld
$
Uses of. Proceeds of Bond Issue Includi underwriters' discount
Proceeds used for accrued Interest . . . . . . . . . . . .
Issue price of entire Issue (enter amount from line 21, column (b)). .
Proceeds used for bond Issuance costs Oncludlng underwriters' discount) 24
Proceeds used for credit enhancement. . . . . . . . . . 25
Proceeds allocated to reasonably required reserve or replacement fund 26
Proceeds used to currently refund prior issues 27
Proceeds used to advance refund prior Issues . . . . . . . 28
Total (add lines 24 through 28). . . . . . . . . . . . . " ....
Nonrefundln roceeds of the issue subtract line 29 from line 23 and enter amount here _
Descri tion of Refunded Bonds Comlete this rt on for refund in bonds.
Enter the remaining weighted average maturity of the bonds to be currently refunded . ~
Enter the remaining. weighted average maturity of the bonds to be advance refunded . ~
Enter the last date on which the refunded bonds will be called. . . . . . .. . ~
Enter the date(s) the refunded bonds were issued ~
Miscellaneous
35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5)
3&8 Enter the amount of !105S proceeds Invested or to be invested in a guaranteed investment contract (see instructions)
b Enter the final maturity date of the guaranteed Investment contract ~
37 Pooled fl/1sncmgs: a Proceeds of this Issue that are to be used to make loans to other governmental units. 378 0
b If this Issue Is a loan made from the proceeds of another tax-exempt issue, check box ~ 0 and enter the name at the
Issuer ~ and the date of the Issue ~
38 It the Issuer has designated the issue under section 265(b)(3)(B)(I)OIl) (small Issuer exCeption), check box ~ 0
39 If the Issuer has elected to pay a penalty in . lieu of arbitrage rebate, check box . . . . . . . . . ~ 0
40 Iftheissuerhasidentifledahed ,checkbox ...... _...... _...... ~D
Under penalties of peIjwy, I decIanllhat I have examined this return and accompanying schedules and statements. and to the best or my knowledge
and beDer. they are true. conect. and complete.
%
22
23
24
25
26
27
28
29
30
N/A
N1A
N1A
N/A
31
32
33
34
N/A
N/A
. N1A
N1A
years
years
o
o
Sign
Here
~ Lm ~ ll.-7?1 ~~4 J J 1/10 J
, Slgnalllre of Issuer's authorized representative Dare
For Paperwork Reduction Act Notice, see page 2 ot the Instructions.
(i)
~ M.L. Simmons, Rnance Director
, Type or print name and Ulle
Cal No. 637735 Form 8038.G (Rev. 11-2(00)
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...,Se!'lk:Cl,]~Pf'-.. . '. . .
-:- 'ed-Mail . 0 ExPiess Mail
CJ Registered. Cf(Retum Receipt fOr Men:handlse
CJ Insured Mall CJ C.O.D.
.. RestrIcted Datively? (&tnr Fee) CJ Yes
ArtIcJ N. -"'-,-" .... . . . . .
2 e .u........' , ,::, '.'f\:. '.
. (Ttanstei.froini~/~ i; I ':.
PS Fonn 3811, August 2001
i n~?iiiJ Iii :. .1 Iv
. . ....~. .v:~.. V'o ~
DomestIc Return Receipt
-I
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l02s95-02-M-l~"
: 0:0
~;r
:f'-
, rn
U.S" Postal Service ECEIPT
CERTIFIED MAll R Coverage ProvIded)
M I Only' No InSL/rdJ1Ce
(Domestic al .
'~.
'a-
'f'-
.; a-
"0-
'0
O.
o
. C8rttlIed Fee
Return Rec8Jpl Fee
. (Endo.-nent Requlred)
ResIrtcled DelI~~
(EndO"!'l"8'l Req .-,
:'
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...
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11/19/03 WED 09:09 FAX 904 413 1315
DIV. OF BOND FINANCE
STATE OF FLORIDA
DIVISION OF BOND FINANCE
LOCAL BOND MONITORING SECTION
~002
this form represents an update and complletlon of the BF2003, BF2004-A and BF2004-B forms.
. Bond InformaUon:fonns (BF20Q3) are required 10 becompJetad by local governments pursulIlIt to Chapter 19A-1.()03, Florida Admlnistrallve Code (F AC.).
. Bond OIsclosurefOnns 8F2OO4-A (Competitive Sale) or BF2004-B (NegolIated Sale) are required lobe filed with 1he Division withIn 120 days oftbe delivery
ofthll issue p,ursuantto Sections 218.38(1)(b)1 and 218.38(1)(c)1, Florida Statutes (F.S.), reSpectively.
. Final OffIcial Statements, if prepared. are required to ba submitted pursuant to Section 218.38(1), F.S..
. Please complete: allltams appUceble to the lsauer sa provided by the Florida Statutas.
. PURSUANT TO SECTION 218.369. F.S.. ISSUERS OF BOND ANTICIPATION NOTES ARE EXEMPT FROM THESE AUNG REQUIRE~S.
BF2003 ~ ~
BOND INFORNI.ATION FORM C) :z:
AMENDED FORM ~ 0
"'T'1
(i'ltellll reflect change II of 09130103) :::;
0:> 0
;:z:
'" l:J
Z -r\
x_
~ .;..~
~ :z
U1 ;.,.;
PART I. ISS~ER INFORMATION
1. NAME OF GOVERNMENTAL UNIT: City of Clearwater, Florida
2. MAILING ADDRESS OF GOVERNMENTAL UNIT OR ITS MANAGER:
112 South Osceola Avenue, Clearwater, Florida 33756
3. COUNlY(IES) IN WHICH GOVERNMENTAL UNIT HAS JURISDICTION:
Pinellas
4. TYPE OFJSSUER: _ .COUNTY
DEPENDENT SPECIAL DISTRICT
- .
CITY _ AUTHORITY _ INDEPENDENT SPECIAL DISTRICT
SPECIFY OTHER
PART/I. BOND ISSUE INFORMATION
1. NAME OF BOND ISSUE: LeaselPurchase of City Vehicles and Equipment
51 Ci,500.000:",
2. . AMOUNT ISSUED: $ lS,OOO,PQO.
$16.500.000.
3. AMOUNT AUTHORIZED: $ 15,000,000
4. DATED DATE: 02113/01
Amendment Date OJ/30103.
6. DELIVERY DATE: 02113/01
5. SALE DATE: 02113/01
FLORIDA STATUTES
7. LEGAL A~THORITY FOR ISSUANCE: FLORIDA STATUTES Chapters 166
SPECIAL ACTS
OTHER
8. TYPE OF ISSUE: _ GENERAL OBLIGATION _ SPECIAL ASSESSMENT
_ ~EVENUE _ COP (CERTIACATE OF PARTICIPATION) .~ LEASE-PURCHASE
_ SPECIAL OBLIGATION
_ BANK LOANJUNE OF CREDIT
9. A. ISTHISAPRIVATEACTIVIiYBOND(PAB)? _ YES
B. 1. IFiYES, DID THIS ISSUE RECEIVE A PAB ALLOCATION? _ YES
2. IF;YES, AMOUNT OF ALLOCATION: $
~NO
NO
10. . SPECIFI~ REVENUE(S) PLEDGED:
. (1) PRI~Y Am1ua1 appropriation clause
(2) SECONDARY
(3) OTHER(S)
1
11/19/03 WED 09:10 FAX 904 413 1315
IgJ 003
DIV. OF BOND FINANCE
11 A. PURPOSE(S) OF THE ISSUE:
(1) PRIMARY (See Schedule A attaGhed)
(2) SECONDARY
(3) OTHER(S)
B. IF PURPOSE IS REFUNDING, COMPLETE THE FOLLOWING:
(1) FOR EACH ISSUE REFUNDED LIST: NAME OF ISSUE, DATED DATE, ORIGINAL PAR VALUE (PRINCIPAL
AMOUNT) OF ISSUE, AND AMOUNT OF PAR VALUE (PRINCIPAL AMOUNT) REFUNDED.
(2) REFUNDED DEBT HAS BEEN: _ RETIRED OR DEFEASED
(3).A. DID THE REFUNDING ISSUE CONTAIN NEW MONEY? _ YES
B. IF YES, APPROXIMATELY WHAT PERCENTAGE OF PROCEEDS IS NEW MONEY?
NO
%
12. TYPE OF SALE: _ COMPETITIVE BID tI NEGOTIATED _ NEGOTIATED PRIVATE PLACEMENT
13. BASIS OF INTEREST RATE CALCULATION. I.E..INTEREST RATE USED TO STRUCTURE THE BOND ISSUE:
NET INTEREST COST.RATE (NIC) % TRUE INTEREST COST RATE (TIC) %
CANADIAN INTEREST COST RATE (CIC) % ARBITRAGE YIELD (ARB I) %
SPECIFY OTHER: 96.48% of 3-year Treasury: 88.5% of 5-year Treasury rate
14. INSURANCE/ENHANCEMENTS; _ AGIC _AMBAC _ CGIC _ CLlC _ FGIC FSA
_ HUD _ MBIA _ NGM _ LOC(LETTER OF CREDIT) _ OTHER (SPECIFY)
tI NOT INSURED
15. RATlNG(S): _ MOODY'S _ S & P _ FITCH _ DUFF&PHELPS _ OTHER (SPECIFY)
..!t- NOT RATED
16. DEBT SERVICE SCHEDULE:
ATTACH COMPLETE COpy OF SCHEDULE PROVIDING THE FOLLOWING
INFORMATION:
MATURITY DATES (MOIDAYIYR)
COUPONllNTEREST RATES
ANNUAL INTEREST PAYMENTS
.PRINCIPAL (pAR VALUE) PAYMENTS
MANDATORY TERM AMORTIZATION
2
11/19/03 WED 09:10 FAX 904 413 1315
DIV. OF BOND FINANCE
,;,-'
17. LIST OR ATTACH OPTIONAL REDEMPTION PROVISIONS:
IgJ 004
1 a. PROVIDE THE NAME AND ADDRESS OF THE SENIOR MANAGING UNDERWRITER OR SOLE PURCHASER.
Bane of America Leallng & Capital LLC (Purchaser/lesSor)
555 California Street, 4th Floor
San Francisco, CA 94104
19. PROVIDE THE NAME(S)ANDADORESS(ES) OF NN ATTORNEY OR FINANCIAL CONSUL TANT WHO ADVISED
THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE.
tI' NO BOND COUNSEL tI NO FINANCIAL ADVISOR _ NO OTHER PROFESSIONALS
BOND COUNSEL(S):
Bryant, MllIer and ODve, PA
201 S. Monroe St., SuIte 600
Tallahassee, Florida 32301
FINANCIAL AOVISOR(S)/CONSUL TANT(S):
OTHER PROFESSIONALS:
OffIce ofthe CIty Attomey, 100 SOuth Myrtle Avenue, Clearwater, Florida 33756
20.
PAYING AGENT
21.
REGISTRAR
22. COMMENTS:
tI' NO PAYING AGENT
tI' NO REGISTRAR
PART III. RESPONfJENT INFORMATION
FOR ADDITIONAL INFORMATION, THE DIVISION SHOULD CONTACT:
Name and TiDe Robert c.Reld, Esq. (Bond Coun..I)
Company Bryant, MDler and Olive, P.A.
INFORMATION RELATING TO PARlY COMPLETING THIS FORM (If different from above):
Name and TiUe Phone
Company
Date Report Submitted February 13,2001
3
Phone 850.222-8611
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11/19/03 WED 09:11 FAX 904 413 1315
Ig] 005
DIV. OF BOND FINANCE
BF2004-A and BF2004-B
NOTE: The following Items are required to be completed In full for all bon? issues except those sold pursuant to Section 154
Part III, Sections 159 Parts II, III or V; or Section 243 Part II, Flonda Statutes. .
23.
ANY FEE, BONUS, OR GRATUITY PAID BY ANY UNDERWRITER OR FINANCIAL CONSULTANT, IN
CONNECTION WITH THE BOND ISSUE, TO ANY PERSON NOT REGULARLY EMPLOYED OR ENGAGED BY
SUCH UNDERWRITER OR CONSULTANT:
..Jt..-NO FEE, BONUS OR GRATUITY PAID BY UNDERWRITER OR FINANCIAL CONSULTANT
(1) COMPANY NAME
FEE PAID: $
SERVICE PROVIDED or FUNCTION SERVED:
(2) COMPANY NAME
FEE PAID: $
SERVICE PROVIDED or FUNCTION SERVED:
(3) COMPANY NAME
FEE PAID: $
(4) COMPANY NAME
FEE PAID: $
SERVICE PROVlDED or FUNCTION SERVED:
SERVICE PROVIDED or FUNCTION SERVED:
24. ANY OTHER FEES PAID BY THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE,
INCLUDING ANY FEE PAID TO ATTORNEYS OR FINANCIAL CONSULTANTS:
~ NO FEES PAID BY ISSUER
. (1) COMPANY NAME
FEE PAID: $ SI;RVICE PROVIDED or FUNCTION SERVED:
(2) COMPANY NAME
FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED:
(3) COMPANY NAME
FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED:
(UNLESS YOU ARE EXEMPT FROM FllJ4G ABF2004). PLEASE PROVIDE THE SIGNATURE OF EITHER THE CHIEF
EXECUTIVE OFFICER OF THE GOVERNING BODY OF THE UNIT OF LOCAL GOVERNMENT ORTHE GOVERNMENTAL
OFFICER PRIMARILY RESPONSIBLE FOR COORDINATING THE ISSUANCE OF THE BONDS:
NAME (TypediPlInbodt. ...... J......... ~
TITLE: lIIayOr.commISSlon.r~ J
. , t:7
SIGNATURE:
DATEfebRlary 13, 2001
September 30, 2003-
4
11/19/03 WED 09:11 FAX 904 413 1315
DIV. OF BOND FINANCE
raJ 006
BF2004-B
ITEMS 25 AND 26 MUST BE COMPLETED FOR ALL BONDS SOLD BY NEGOTIATED SALE
25. MANAGEMENT FEE CHARGED BY UNDERWRITER: $ PER THOUSAND PAR VALUE.
OR
PRIVATE PLACEMENT FEE: $
L NO MANAGEMENT FEE OR PRIVATE PLACEMENT FEE
26. UNDERWRITER'S EXPECTED GROSS SPREAD:
.!t.- NO GROSS SPREAD
$
PER THOUSAND PAR VALUE.
PART Iv.. CONTINUING DISCLOSURE fNFORMA TlON
.'n order to better serve local governments, the Division of Bond finance will remind issuers as their deadlines
approach for flUng continuing disclosure Information required by SEC Rule 15c2-12, based on the following information:
27. Is the issuer required to provide continuing disclosure Infonnation'ln accordance with sec Rule 15c2.12?
_Yes
..!L No
28. If yes, on what date Is the continuing disclosure informaUon required to be filed?
29. Provide the following Information regarding the person(s) responsible for filing continuing disclosure Information required
by see Rule 15c2-12 and the continuing disclosure agreement (Including ether obligated parties, If approprfate).
Name:
TlUe:
Mailing Address:
Telephone Number::
FAX Number:
E.mail address (If e-mail natiflcation Is requested):
PART V. RETURN THIS FORM AND THE RNAL OFFICIAL STATEMENT, IF ONE WAS PREPARED,
TO:
Courier Dellverl..:
Division of Bond FInance
State Board of Administration
1801 Hennltage Blvd., SUIte 200
TaDaha88e8, FL 32308
MaIling Address:
Division of Bond FInance
State Board of Administration
P. O. Drawer 13300
Tallahassee, FL 32317003300
Phone: 8501413-1304 or 413-1305
F~ ~413-1315
REVISED Dee. 9. 2002/ bfcombo
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CERTIFICATE REQUIRED BY
SECTIONS 218.385(2) AND (3), FLORIDA STATUTES
September 30, 2003
The Mayor and Members of
the City Council of the City
of Clearwater, Florida
Clearwater, Florida
Re: $2.151.683.55 City of Clearwater LeaseIPurchase ofEQuioment
Ladies and Gentlemen:
In connection with the proposed Schedule of Property Nos. 19 and 20 (the
"Schedules") pursuant to the Master Equipment LeaseIPurchase Agreement dated February 13,
2001, between the City of Clearwater (the "City") and us, as amended by First Amendment to
Mater LeaseIPurchase Agreement dated as of September 30, 2003 (the "Master Equipment
Lease"), we have agreed to finance the leases of equipment described in the Schedules upon the
terms and conditions set forth therein and in the Master Equipment Lease.
The purpose of this letter is to furnish the City with information in connection
with the obligations described in the Schedules, as required by the provisions of Section
218.385(2) and 218.385(3), Florida Statutes, as amended.
1. The City is proposing to enter into the obligations represented by the Master
Equipment Lease and the Schedules for the purpose of financing or refinancing the cost of
various items of city equipment. The obligations are expected to be repaid over a period of five
(5) years. At the interest rates specified in the Schedules, total interest paid over the life of the
obligations is expected to be approximately $166,347.43.
2. The source of repayment or security for the obligations is funds budgeted and
appropriated to satisfy such obligations on an annual basis, subject to the City's right to
nonappropriate in any given year and te1lI1inate the obligations. Authorizing the obligations and
budgeting and appropriating sufficient funds to pay such obligations each year will result in an
average of approximately $119,269.13 of such revenues not being available to finance other
services each year for approximately five (5) years.
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We understand that the statements set forth in paragraphs numbered 1 and 2 are
for informational purposes only and shall not affect or control the actual terms and conditions of
the obligations.
BANC OF AMERICA LEASING & CAPITAL,
LLC
By: ~J.. ~~(
G' . Smedal, Vice President
1004.388011.1
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I 004.396572.1
CLERK'S CERTIFICATE
The undersigned, a duly elected and acting City Clerk of the City of Clearwater,
Florida (the "Lessee"), certifies as follows:
A. The following listed person is the duly appointed Finance Director of the
Lessee (the "Official") in the capacity set forth opposite her name below and that the
signature below is true and correct as of the date hereof;
B. The Official is duly authorized, on behalf of the Lessee, by a duly adopted
resolution of the governing body of the Lessee, to negotiate, execute and deliver
Schedule of Property Nos. 19 and 20, related documentation and all future Schedules of
Property and related documentation under the Master Equipment Lease/Purchase
Agreement dated February 13, 2001, as amended by First Amendment to Master
Lease/Purchase Agreement dated as of September 30, 2003 (collectively, the
"Documents") and these Documents are binding and authorized agreements and
certificates of the Lessee, enforceable in all respects in accordance with their terms, and
no other officer, member or official of the Lessee is required to execute the Documents
for such Documents to be valid, binding and enforceable against the Lessee.
Name of Official
Title
Signature
Margaret Simmons
Gvvuu~k_~
Finance Director
Dated: ~.3.Q)
BY:) - 2 &..oD _
Cynt . a E. Guudeau, City Clerk
,2003
(The signer of this Certificate cannot be listed above as authorized to execute the Documents.)
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I 004.396573.1
ESSENTIAL USE/SOURCE OF FUNDS CERTIFICATE
Banc of America Leasing & Capital, LLC
555 California Street, 4th Floor
San Francisco, California 94104
Re: Master Equipment LeaseIPurchase Agreement dated February 13,2001, as
amended by First Amendment to Master LeaseIPurchase Agreement dated as of
September 30,2003 (the "Agreement"); Schedule of Property Nos. 19 and 20
dated September 2003 (the "Schedules")
This certificate confirms and affirms that the Equipment described in the Agreement and
Schedules referenced above is essential to the governmental, municipal or public purposes or
functions of the Lessee or to the services Lessee provides its citizens. Further, Lessee has an
immediate need for, and expects to make immediate use of, substantially all such Equipment,
which need is not temporary or expected to diminish in the foreseeable future. Such Equipment
will be used by Lessee only for the purpose of performing one or more of Lessee's governmental
or proprietary functions permitted under the Act (as defined in the Agreement referenced above).
Lessee expects and anticipates adequate funds to be available for all future payments or
rent due after the current budgetary period, subject to annual appropriation.
Date: September, 2003
Lessee:
CITY OF CLEARWATER, FLORIDA
L-t)J v ~
By: ~ AA11..4A
Margaret Simmons, Finan'c-e Director
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004.396575.1
ACCEPTANCE CERTIFICATE
Banc of America Leasing & Capital, LLC
555 California Street, 4th Floor
San Francisco, California 94104
Re: Schedule of Property Nos. 19 and 20, dated September 30, 2003,
2003, to Master Equipment Lease/Purchase Agreement, dated
February 13,2001, between Banc of America Leasing & Capital,
LLC, as Lessor, and the City of Clearwater, Florida, as Lessee, as
amended by First Amendment to Master Lease/Purchase Agreement
dated as of September 30, 2003 (the "Agreement")
Ladies and Gentlemen:
In accordance with the the Agreement, the undersigned Lessee hereby certifies
and represents to, and agrees with Lessor as follows:
1. All of the Equipment (as such term is defined in the Agreement) listed in
the above-referenced Schedules of Property (the "Schedules") has been delivered, installed and
accepted on the date hereof.
2. Lessee has conducted such inspection and/or testing of the Equipment
listed in the Schedules as it deems necessary and appropriate and hereby acknowledges that it
accepts the Equipment for all purposes.
3. Lessee is currently maintaining the Insurance coverage required by
Section 7.02 of the Agreement.
4. No event or condition that constitutes, or with notice or lapse of time, or
both, would constitute, an Event of Default (as defined in the Agreement) exists at the date
hereof.
Date: ft.,., I. ] # , 2003
Lessee:
City of Clearwater, Florida
100 South Myrtle Ave., 3d Floor
Clearwater, Florida 33756
By: Lma.-l~ d~
Margaret lmmons, Finance Director
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RESOLUTION NO. 03-12
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA, AMENDING RESOLUTION NO. 00-32; WHICH
ESTABLISHED THE CITY'S INTENT TO REIMBURSE
CERTAIN PROJECT COSTS INCURRED WITH
PROCEEDS OF FUTURE TAX-EXEMPT FINANCING;
TO INCREASE THE AMOUNT OF DEBT TO BE
INCURRED BY $4,500,000. FOR A TOTAL OF
$19,500,000; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Commission of the city of Clearwater, Florida (the
"Issuer") passed Resolution No. 00-32 allowing debt of $15,000,000 to be
incurred in order to acquire certain items of equipment during the 2000-2001,
2001-2002 and 2002-2003 fiscal years; and
WHEREAS; it has been determined that an additional $4,500,000 is
required for these purchases;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION
OF THE CITY OF CLEARWATER, FLORIDA THAT:
SECTION 1. Section 2 of Resolution No. 00-32 is amended to
increase the amount of debt to be incurred by $4,500,000 for a total of
$19,500,000.
SECTION 2. EFFECTIVE DATE. This resolution shall take effect
immediately upon its adoption this 20th day of March , 2003.
Approved as to form:
paYa ~ Akin
City Attorney
Attest:
Resolution No. 03-12
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CITY COMMISSION MEETING
CITY OF CLEARWATER
September 7, 2000
Present: Brian J. Aungst
J. B.Johnson
Ed Hooper
Robert Clark
Ed Hart
Mayor/Commissioner
Vice-Mayor/Commissioner
Commissioner
Commissioner
Commissioner
Also present: William B. Horne II
Garry Brumback
Pamela K. Akin
Sue Diana
Patricia O. Sullivan
Interim City Manager
Assistant City Manager
City Attorney
Assistant City Clerk
Board Reporter
The Mayor called the meeting to order at 6:00 p.m. at City Hall. The invocation was
offered by Deacon Albert Tibbetts of St. Cecelia's Catholic Church. The Mayor led the Pledge
of Allegiance.
To provide continuity for research, items are in agenda order although not
necessarily discussed in that order.
ITEM #3 - Service Awards - None.
ITEM #4 - Introductions and Awards
Proclamation: Assisted Living Week - September 18 - 24, 2000
ITEM #5 - Presentations
a) Representative Crow presented a $150,000 ceremonial check for the East/West Trail-
Phase 2.
b) Chuck Warrington was recognized for receiving the Distinguished Service Award from
American Public Gas Association.
ITEM #6 - Approval of Minutes
Commissioner Johnson moved to approve the minutes of the regular meeting of August
17,2000, as recorded and submitted in written summation by the City Clerk to each
Commissioner. The motion was duly seconded and carried unanimously.
ITEM #7 - Citizens to be heard re items not on the Aaenda
Loren Westerburaercomplimented Scientology volunteer efforts to plant trees for Planet
2000.
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"Ayes": Johnson, Clark, Hooper and Aungst.
"Nays": Hart.
Motion carried.
Public Hearing - Second Reading Ordinances
ITEM #9 - Ord. #6521-00 - Vacating 3 unnamed rights-of-way directly adjacent to N, S, & E of
city owned park, 2015 Broadway, as shown in Plat of La Jolla Sub., less westerly 60' of
northerly r-o-w, subject to retaining rights-of-way full width as sidewalk, drainage & utility
easements (City, VOO-02)
The City Attorney presented Ordinance #6521-00 for second reading and read it by title
only. Commissioner Johnson moved to pass and adopt Ordinance #6521-00 on second and
final reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Johnson, Clark, Hooper, Hart and Aungst.
"Nays": None.
ITEM #10 - Ord. #6553-00 - Vacating triangle shaped portion of r-o-w lying west of Lot 8,
Brown's Court, subject to retaining portion of r-o-w as drainage & utility easement (City, 00-08)
The City Attorney presented Ordinance #6553-00 for second reading and read it by title
only. Commissioner Hooper moved to pass and adopt Ordinance #6553-00 on second and
final reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Johnson. Clark, Hooper, Hart and Aungst.
"Nays": None.
ITEM #11 - Ord. #6564-00 - Annexation, 1765 Saint Croix Dr., Virginia Grove Terrace, Fifth
Add., Blk B, Lot 18 (Jeanette Harvey-Evans, AOO-12)
The City Attorney presented Ordinance #6564-00 for second reading and read it by title
only. Commissioner Johnson moved to pass and adopt Ordinance #6564-00 on second and
final reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Johnson, Clark, Hooper, Hart and Aungst.
"Nays": None.
-
ITEM #12 - Ord. #6565-00 - Land Use Plan Amendment to Residential Urban. 1765 Saint Croix
Dr., Virginia Grove Terrace, Fifth Add., BlkB, Lot 18 (Jeanette Harvey-Evans, AOO-12)
The City Attorney presented Ordinance #6565-00 for second reading and read it by title
only. Commissioner Clark moved to pass and adopt Ordinance #6565-00 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Johnson, Clark, Hooper, Hart and Aungst.
"Nays": None.
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amended, on second and final reading. The motion was duly seconded and upon roll call, the
vote was:
"Ayes": Johnson, Clark, Hooper, Hart and Aungst.
"Nays": None.
ITEM #20 - Ord. #6596-00 - Relating to Schedule of Fees, Rates and Charges, amending
Appendix A, Art. XI, Parks. Beaches, Recreation, to increase certain fees for use of facilities by
nonresidents
In response to a concern, the City Attorney said this ordinance only relates to Parks &
Recreation fees.
The City Attorney presented Ordinance #6596-00 for second reading and read it by title
only. Commissioner Clark moved to pass and adopt Ordinance #6596-00 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Johnson, Clark, Hooper, Hart and Aungst.
"Nays": None.
ITEM #21 - Ord. #6605-00 - Relating to salary increases for Mayor and Commissioners;
amending Sec. 2.263(1) to provide for annual cost of living adjustment
The City Attorney presented Ordinance #6605-00 for second reading and read it by title
only. Commissioner Clark moved to pass and adopt Ordinance #6605-00 on second and final
reading. The motion was duly seconded and upon roll call. the vote was:
"Ayes": Johnson, Clark and Aungst.
"Nays": Hooper and Hart.
Motion carried.
CITY MANAGER REPORTS
CONSENT AGENDA (Items #22-35) - Approved as submitted less Items #24 & #34
ITEM #22 - Approval of Purchases per Purchasina Memorandum:
1) Book Wholesalers Inc., books & library materials, 10/1/00-9/30/01, estimated $81,000
(LIB)
2) Ebsco Subscription Services, subscription services, 10/1/00-9/30/01, estimated $93,000
(LIB)
3) Ingram Library Services, books & library materials, 10/1/00-9/30/01, estimated $260,000
(LIB)
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4) The Booksource, books & library materials, 10/1/00-9/30/01, estimated $39,000 (LIB)
5) Distribution Video and Audio, video tapes, 10/1/00-9/30/01, estimated $35.000 (LIB)
6) The Gale Group, books & library materials, 10/1/00-9/30/01, estimated $29,000 (LIB)
7) Gaylord Bros, hardware maintenance & software license for computer equipment used at
all library branches, 10/1/00-9/30/01, estimated $45,000 (LIB)
8) Thompson, Goodis, Thompson, Croseclose & Richardson, P.A.. legal services, estimated
$40,000 (CA)
9) Perkin-Elmer LLC, one OPTIMA 2000 IPC instrument, $75,493 (PW)
10) Altec Industries Inc., one 2001 Ford F-450 with Altec AT35G aerial lift, replacement,
$65,250; financing to be provided under City's Master Lease-Purchase Agreement (GS)
11) Altec Industries Inc., two 2001 Ford E.350 with Altec AT200V aerial lift, replacement,
$107,498; financing to be provided under City's Master Lease-Purchase Agreement (GS)
12) World Industrial Equipment Inc., one Ford F-450 cab & chassis with utility body and
Sighalier SL T28 aerial platform, replacement, $65,293; financing to be provided under City's
Master Lease-Purchase Agreement (GS)
ITEM #23 - Approve City of Clearwater Brownfields Area Environmental Justice Action
Agenda (ED)
ITEM #24 - See paae 9.
ITEM #25 - Contract to Mastec North America. Inc., for installation of gas mains, service
lines, & exterior underground house piping, for $955,185 (SBS)
ITEM #26 - Approve acceptance of 2nd year arant fundina from State of Florida, Office of
Attorney General, 2000-2001 Victims of Crime Act (VQCA) Grant Program, $34,910 (PO)
ITEM #27 - Florida Recreation Development Assistance Proaram (FRDAP) project grant
agreement with FDEP for East West Recreational Trail, $150,000 (PR)
....
ITEM #28 - Contract to Kloote Contractina. Inc., for Chinaberry Drive I Grovewood Avenue
Drainage Improvements, for $25,052.94 (PW)
ITEM #29 - Clearwater Housina Authoritv - Confirming Mayor's reappointment of Mary Myhill
(ClK)
ITEM #30 - Pinellas Suncoast Transit Authoritv - reappoint Commissioner Clark (ClK)
ITEM #31 - Lona Center Board of Directors. reappoint Commissioner Hooper (ClK)
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ITEM #32 - Lona Center Foundation Board of Trustees - reappoint Commissioner Johnson
(ClK)
ITEM #33 - General Warranty Deed - conveying E18' of Bluff View Court, Lots 1, 7, 9, 11, 13,
15,17,19, & 20, for additional right-of-way for Reynolds Avenue to widen roadway (Morton
Plant Hospital Association, Inc.)(CA)
ITEM #34 - See Daae 11.
ITEM #35 - Disband Fiscal Review Committee
Commissioner Clark moved to approve the Consent Agenda as submitted less Items
#24 and #34 and that the appropriate officials be authorized to execute same. The motion was
duly seconded and carried unanimously.
The City Commission recessed from 8:22 to 8:41 p.m.
ITEM #24 - Approve purchase of property, casualty, liability, workers' compensation,
emergency medical services (EMS), fuel tank, & flood insurance coverage for Fiscal Year
2000-2001, amount not to exceed $860,000 (FN)
Risk Management purchases insurance coverage for the City related to property,
casualty, liability, workers' compensation, EMS (Emergency Medical Services), fuel tanks, and
flood. Total premiums are estimated to cost $836,533.
Excess Property, Agent -Insurance & Risk Management Services, Inc., Naples,
Florida - $1 OO-million coverage includes Sand Key Bridge, total premiums $408,723: 1)
Lexington Insurance Co. - $190,823; 2) Royal Surplus Lines Insurance Co. - $88,000; 3)
Westchester Insurance Co. - $80,000; and 4) Royal Surplus Lines Insurance Co. - $50,000.
Miscellaneous Coverage, Agent - AJ Gallagher & Co., Tampa Bay, Florida - total
premiums $46.880: 1) Boiler & Machinery - Hartford Steam Boiler - $6,248; 2) Marina
Operators Legal Liability -ITT/Hartford Insurance Co. - $17,500; 3) Underground Fuel Tank
Liability - Commerce & Industry - $7,757; and 4) Flood Insurance for specific properties
(premiums estimated for all properties) - Bankers Insurance Group - $15.375.
Miscellaneous Coverage, Agent - Acordia Southeast, Clearwater, Florida - total
premiums $380,830: 1) Crime & Dishonesty - Travelers Casualty - $5,162 premium; 2) Excess
Liability ($5-million) North River Insurance Co. - $238,000; 3) Excess Liability - ($5-million) New
Coverage - Market America Insurance Co. - $20,000; 4) EMS Liability (reimbursable) Florida,
Professional, & EMS - Underwriters at L1oyds/GL - $56,000; 5) Business Auto - National
indemnity Co. - $31,668; and 6) Excess GUProfessional/Auto/EMS Liability - $30,000.
<;> The City's contract with Pinellas County requires the City to purchase EMS liability
coverage. The County reimburses this expense.
Staff recommends purchasing the proposed insurance. Premiums and coverage are
similar to last year, except the property insurance premium has increased substantially, even
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with a higher self-insured retention and without the City having any claim losses exceeding its
current self-insured retention.
All property risks are covered at levels and rates which, when taken together as a whole,
represent a reasonable and conservative insurance program. Recommended purchases are
for one year beginning October 1, 2000. Flood insurance and underground storage tank
policies have different effective dates. Staff recommends increasing the self-insured retention
for property insurance to $500,000 so that the self-insured retention for property insurance. civil
liability insurance, and workers' compensation insurance is the same.
Staff recommends purchasing another layer of $5-million excess liability insurance, and
requests authorization to spend $20,000 for its purchase. The difference between the
$860,000 request for insurance premiums and the anticipated $836.533 expenditure will allow
changes during the year, mostly related to City property acquisition, construction, or leasing
new facilities.
The FY 2000/01 budget includes $520,000 for insurance premiums. EMS Liability of
$117,668 is reimbursable. The difference, of up to $199,000, will be provided at first Quarter
from unappropriated retained eamings of the Central Insurance Fund.
In response to a question, Risk Manager Leo Schrader said staff recommends an
additional $5-million in excess liability insurance as the City's only backup for civil liability. The
City has been fortunate during the past several years. As an example, he said Gas System
activities could result in substantial losses if a gas explosion caused significant damages. In
response to a question, Financial Services Administrator Margie Simmons said the central
insurance fund has $4.4-million in reserves available for use. She would not recommend using
the entire reserve.
Commissioner Clark moved to approve the purchase of property, casualty, liability,
workers' compensation, EMS (Emergency Medical Services), fuel tank, and flood insurance
coverage for Fiscal Year 2000/01 as presented, in an amount not to exceed $860,000, and that
the appropriate officials be authorized to execute same. The motion was duly seconded and
carried unanimously.
ITEM #34 - Authorize Aooeal of Hearinc Officer Order in American Infoace. LLC v. City (CA)
In her September 5, 2000 memorandum, the City Attomey reported the City had
received the Final Order regarding American Infoage, LLC vs. the City - DOAH Case #00-0999.
The order reverses the Community Development Board's decision to deny approval for a
telecommunications tower at 505 Virginia Lane. The decision states that the application is
approved and does not impose any conditions recommended by staff nor adopted by the board.
Judicial review of this decision would be through filing a Petition for Certiorari in Circuit
Court within 30 days. The Circuit Court would conduct a review of the record.
The City Attomey recommended the City Commission meet in an Attomey/Client
session to discuss options, and review costs and settlement potential.
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Darrel Richards, American Infoage representative, stated the City would expose itself to
financial risk if it appeals this decision.
Commissioner Clark moved to continue Item #34 to September 21.2000. The motion
was duly seconded and carried unanimously.
OTHER ITEMS ON CITY MANAGER REPORT
ITEM #36 - Approve Term Sheet with Philadelphia Phillies (GS)
Benefits of a new community sports complex include: 1) keeping the Phillies in
Clearwater, a family oriented and wholesome activity; 2) a state of the art facility; 3) a better
location for access and visibility; 4) national exposure of Clearwater will increase; 5) increase in
tourism and economic impact; 6) a facility that can be used for other events; 7) provide a
redevelopment opportunity for the North Greenwood community; 8) valuable advertising dollars
committed by the Phillies to the northeast U.S. market; and 9) the ability to form a partnership
with the State, County, and City/Phillies.
The Clearwater Stadium Project Term Sheet is subject to the City's and the Phillies',
"Team," ability to agree upon definitive terms and conditions and to enter into definitive forms of
legally binding agreements necessary to implement the Clearwater stadium project, "Project." in
accordance with all requirements of applicable law. Any and all
references to the Team shall, at its option, refer instead to an entity wholly owned by the Phillies
created for purposes of the project, and any and all references to City shall, at its option, refer
instead to an authority or other public or quasi-public entity designated by the City for purposes
of the project, provided that the Team and City each shall stand fully behind its affiliate or
designee.
This Term Sheet accurately reflects the basic terms of the business deal between the
City and the Phillies, pertaining to the development, financing, planning, construction, and
operation of a new stadium and adjacent facilities, all as to be more specifically set forth in
definitive stadium development and use agreements to be prepared and entered into by the
City and Team as soon as is reasonably possible.
SITE
The Term Sheet is based on the'lmderstanding that the project site will be the 33.1
acres occupied by SPJC athletic fields north of Drew Street, south of Sharkey Street, and west
of Old Coachman Road. The City has selected the site and will hold the Phillies harmless
against any claims by adjacent or nearby property owners alleging any adverse effect on their
properties by development or operation of the project. If the parties jointly determine that this
location is not acceptable, they will use best efforts to locate an acceptable alternate site and to
agree on any necessary changes to terms herein set forth.
PROJECT
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The project shall include: 1) open air, natural grass ballpark meeting first class Major
League Baseball spring training standards, with approximately 7,000 fixed seats, to include
premium seating and group areas, an outfield berm seating area to accommodate
approximately 1,000 fans, all clubhouse facilities. batting tunnels, Team office space. and other
elements of such a stadium; 2) one full-size, lighted practice field; 3) one practice infield; and 4)
on-site parking for approximately 1,000 vehicles plus player/staff NIP parking for approximately
175 automobiles. The project may include such facilities as a restauranUsports bar, a
souvenir/sporting items store, a health/fitness facility, etc.
FUNDING
Funding for all hard and soft project costs shall come from net proceeds from the City's
bonding of $500,000 per year for 30 years from the State and net proceeds from City bonding
of an amount from the County having a net present value of $7 -million. In addition to its other
obligations in the Term Sheet, the City will make a $5-million capital contribution to the project.
The Team shall contribute the balance necessary to complete the project and the Team shall
bear the risk of cost overruns; provided, however, that the Team shall contribute at least $3-
million. All public source funds shall be available for the project no later than July 1, 2001,
provided that the City will make its best efforts to complete the bonding of State and County
contributions by October 1,2001. Team shall add funds necessary to complete the project as
and when needed.
PROJECT DESIGN & DEFINITION
The Team will observe the Consultants Competitive Negotiation Act selection
requirements and then will engage the architectural and engineering service providers
necessary to design the project and define its elements in detail sufficient to bid the
construction and support the construction documents. The Team will pay all Architect fees and
expenses as part of its contribution.
SITE PREPARATION
By July 1, 2001, the City will be responsible for dealing appropriately with any
environmental, geotechnical, or other site conditions that would adversely impact the cost or
speed with which the project can be completed, including without limitation effecting any
remediation to the extent required by law. The Team shall pay the first $250,000 cost of such
site work and the City shall pay any additional cost of such site work, up to a maximum of an
additional $250,000. If the parties reasonably estimate costs of such site work and impacts
exceed $500,000, either party may terminate the project. The Team shall pay $15,000 for
geotechnical studies of the site. The City shall pay the balance of the cost of such studies. The
City shall hold the Team harmless from any liabilities arising under environmental laws from the
Team's use of the project, except to the extent caused by the wrongful or negligent acts of the
Team.
CONSTRUCTION OF IMPROVEMENTS
Improvements included in the project will be built in accordance with the construction
documents by a construction company chosen through a competitive selection process by the
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Team. As the Team is bearing the risk of overruns, it shall have the right to make additive or
subtractive change orders, as necessary to deal with unforeseen conditions. so long as the
project stays within the project definition.
OWNERSHIP
The City will own the site and facilities comprising the project.
USE AGREEMENT
The Team will enter into a use agreement with the City giving the Team the exclusive
use of the project during the term, subject to Partnership Events and certain civic uses to be
agreed upon. such as Youth Baseball games, that do not interfere with the Team's use of the
project. For such use, the Team will pay the City an adjustable rent in the annual amount of
$70,000, which shall be adjusted annually according to the local Consumer Price Index. The
Team shall receive a credit against such adjustable rent for all project operating and
maintenance labor costs paid by the Team and for all field maintenance supplies and other
expenses incurred in the discharge of Team Maintenance Obligations and the share of utilities
paid by the Team.
TERM
The term of the agreement will extend from the date of the Team's occupancy following
substantial completion of the Project, no later than January 1, 2003, for a term of 20 years,
through December 31,2022. The Team shall have one 5-year extension right and the City and
Team may agree mutually on 3 additional5-year extensions. The Team shall commit to keep
its Florida State League team at the project for at least 3 years following completion of the
project and has no present intention to relocate thereafter.
TEAM COMMITTMENT
The Team shall make the ballpark its spring training home field for the entire term.
OPERATING RESPONSIBILITY
The Team shall operate and manage the project and shall employ the staff necessary to
do so. The Team shall pay 25% of the costs of utilities serving the project and the City shall
pay the remaining 75%. -
MAINTENANCE
The Team shall provide labor to: 1) perform interior cleaning and light housekeeping,
e.g. changing bulbs, towels, etc. and 2) maintain the 3 playing fields, the luxury suites, and the
restaurant as listed in Team Maintenance Obligations. The City shall acquire and make
available to the Team, at the Team's expense, all field care supplies including clay, sod, sand,
fertilizer, chemicals, etc., and other supplies necessary for the Team to discharge its
maintenance obligations related to the 3 playing fields. Other than for the Team Maintenance
Obligations, the City shall be obligated to provide all other ordinary and necessary maintenance
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of and repairs to the project including without limitation the City's luxury suite, parking lots,
landscaped areas, and all other areas except for the playing fields.
CAPITAL
The City shall have all capital repair, refurbishment, restoration, and replacement
obligations, as necessary, to keep the project at all times in first-class condition and up to first-
class Mayor League Baseball spring training stadium standards at the time of reference. The
Team and City shall agree annually on the nature and extent of any capital repairs or
improvements and whether any capital reserve fund is necessary and in what amount,
considering what is customary for a facility of the size, nature, and scope of the project.
Following project completion, the parties shall designate and equally pay a mutually acceptable
consulting engineer to determine annually what capital repairs, refurbishment, restorations, and
obligations are to be done currently, and schedule those to be done in the future.
TAXES. USE CHARGES, & SURCHARGES
It is the intent of the parties that the project, land and improvements, shall be exempt
from real estate taxes or payments in lieu of real estate taxes throughout the term. Throughout
the term, the City shall hold the Team harmless from all other local taxes except for income,
sales, and like taxes of general application, including without limitation, amusement/ticket taxes.
any increase in the sales tax rate applicable to tickets, use and occupancy taxes and
surcharges on project-derived revenues. Should the project become subject to ad valorem
property taxes, the parties shall each pay an equal one-half of the net ad valorem taxes due
and payable after deducting any City ad valorem taxes, which shall be paid by the City. The
parties will ask Pinellas County to return its share of such taxes and the parties agree to
cooperate on legislation to exempt the project from such taxes.
REVENUES
During each 12-month period after occupancy. the City shall be responsible, at its
expense, for the booking and conduct of concerts. plays, or other significant revenue producing
events, each a "Partnership Event," of a nature that will not damage the playing fields nor cause
unreasonable wear and tear to the structures and are not inconsistent with the image of Major
League Baseball and the Team, in the Team's reasonable judgment. Net proceeds from such
events from all sources, including parking and concessions, will be split evenly between the City
and Team. The City shall book and conduct at least 6, but not more than 12, Partnership
Events.
The City shall receive one-third of any net revenue derived from the sale of the right to
name the stadium and shall have the right to approve any such sale, and shall not withhold
such approval unreasonably.
Otherwise, the Team will retain all net revenues generated on and from the project
during the Term from all sources, including without limitation, all revenues from: 1) two-thirds of
any net revenue derived from sale of the right to name the stadium; 2) tickets, premium seating,
concessions, signage, merchandise, broadcasting, sponsorships, and parking; 3)
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restaurant/sports bar, souvenir/sporting goods and other synergistic uses; 4) fantasy camps;
and 5) any other events held at the project which are not Partnership Events. As between the
parties and subject to the Partnership Events terms, the Team shall be entitled to any net
revenues generated by events at the project from parking at the project, Carpenter Field. SPJC,
and the Florida Power Corporation right-of-way. The Team will pay $1,250, adjusted for
changes in the local CPI, per spring training game to civic organizations to staff parking at all of
these locations.
CITY SERVICES
The City will provide all appropriate City services, including without limitation, interior
and exterior security, and anti-scalping and traffic control at appropriate levels of coverage for
all events. Except for civic events only, and subject to Partnership Events terms. the Team will
pay for such on-site police and paramedical coverage as the Team deems necessary.
PERMITS & APPROVALS
Provided that the Team pays all applicable fees therefor and subject to "Conditions to
City's Obligation," the City will: 1) provide or secure all zoning, subdivision, land use, curb cut,
construction. and all other similar and dissimilar governmental or quasi-governmental
approvals, licenses and permits necessary to construct and operate the project, including
creating access from Drew Street and 2) perform and pay for necessary public infrastructure
costs and do so in a fashion that shall not delay, except as due to appeals taken against timely
City approvals, the commencement of construction on October 1, 2001, or its timely prosecution
thereafter.
MARKETING/PROMOTION
The Use Agreement between the City and Team will include a provision that would trade
out value in marketing programs from the Team to match the financial contributions made by
Pinellas County to the project. Those marketing programs could include destination
advertising, tourism public relations campaigns, tourism direct sales activities. and any other
mutually agreed upon marketing program. Each year, the Team would meet with
representatives of the Pinellas County Convention & Visitors Bureau and agree to a specific
program of destination marketing and/or ticket opportunities equivalent to the dollar value of the
County contribution.
The Team shall provide the City with 12 tickets per spring training exhibition game and
one luxury suite for use by the City for each such game for economic development and other
public purposes.
DISASTER STAGING AREA
The City may, in each instance of actual or imminently threatened natural disaster, use
the project as a staging area for disaster preparations, response, or other related uses,
provided such use of the project will not damage the project so that it is unfit to be used for its
customary purpose and that no cost to the Team will result and that the City will immediately
restore any damage to the playing field or any other element of the project. The City shall not
be responsible to the Team for any loss of revenue or consequential damages resulting from
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such use of the project, except any attributable to its failure to duly effect any such restoration
and restore full use of the project to the Team immediately following the end of the disaster.
CONDITIONS TO TEAM'S OBLIGATION
A construction contract with an acceptable contractor for a price and on terms that are
reasonably satisfactory to the Team has been entered into by January 31,2001 for pre-
construction and construction services leading to an acceptably priced contract by September
1,2001, provided that the Team may reasonably reject a contract if hard and soft costs are
greater than $24-million.
A definitive use agreement, on terms that are reasonably acceptable to the Team and
City and are consistent with this Term Sheet, has been entered into by the deadline imposed by
OTTED. City site work will be completed by June 1, 2001 and soil studies disclose no
geotechnical reason that would impede construction.
City funds are available by July 1,2001.
If, despite the City's best efforts, the full State and County contributions are not available
to the Team for use in the project by October 1,2001, the Team may, in its discretion,
terminate the project and all of its agreements relating thereto, in which event the City shall
promptly reimburse the Team for all expenditures made and obligations incurred in respect of
the Architects' fees and expenses.
CONDITIONS TO CITY'S OBLIGATION
If the cost to the City of effecting all public infrastructure costs necessary for the project
as required hereby shall be reasonably estimated to exceed $300,000, the City may, on or
before January 1, 2001, in its discretion, terminate the project and all of its agreements relating
thereto, in which event the City shall promptly reimburse the Team for all expenditures incurred
in respect of the Architects' fees and expenses.
JACK RUSSELL STADIUM LEASE
The Jack Russell Stadium lease shall terminate on the first day of the term of the use
agreement relating to the project, with no further obligations by either party.
CARPENTER COMPLEX LEASE
The Carpenter Complex lease will be amended to: 1) extend for a term coextensive with
the term of the use agreement relating to the project; 2) conform the use, parking, and revenue
allocation provisions of that lease to the comparable provisions of that use agreement; and 3)
call for fixed rent at the annual rate of $204,000 for 20 years.
General Services Administrator Keith Ashby presented the Term Sheet signed by the
Phillies. Attorney David Cardwell assisted the City with negotiations. Mr. Ashby reviewed the
agreement and plans.
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The Interim City Manager said staff has scheduled a meeting for September 14, 2000
with the College Park neighborhood, which abuts the SPJC fields, to discuss insurance-related
issues regarding sinkholes. The City plans to have qualified people address the sinkhole issue.
Staff is researching area flooding and drainage issues and will schedule a neighborhood
meeting to discuss the findings. Neighborhood residents also have expressed concern
regarding the SPJC site proposed for the stadium. Staff will meet with residents to address
issues that affect them.
Ten people spoke in opposition to the Term Sheet and proposed site. One person
questioned whether an escalation clause to the Term Sheet had been considered. Twelve
people spoke in support of the Term Sheet and plan.
Mr. Ashby said the Phillies felt parking available at Carpenter Field, the Florida Power
right-of-way, and SPJC would be adequate. It was stated the project will not benefit Time-
Warner, a nearby business. despite claims to the contrary. The City Attorney said none of the
Mayor's business ties creates a conflict of interest. In response to a question, Mr. Ashby said
Parks & Recreation Department costs to maintain Jack Russell stadium have not been
calculated. Currently, stadium capital costs average $50.000 annually. The Term Sheet
includes the rental of Carpenter Field to provide a revenue stream needed for the issuance of
tax-exempt bonds. It was recommended the City restrict traffic to the College Park
neighborhood on game days. Staff will report.
It was stated that no other spring training site municipality has negotiated a more
favorablecontract. It was said other major league teams have criticized the Phillies for the size
of the Team's contribution to the project. It was stated neighborhood issues must be
addressed. It was felt the project deserves City support and cooperation. The importance of
retaining Phillies spring training in Clearwater was stated.
It was requested staff identify alternate sites under consideration if the SPJC is not
suitable. In response to a question, the City Attorney said the hold harmless clauses address
environmental issues and impacts of the facility. The City can be insured against these issues.
A discussion will be required related to ultimate liability.
In response to a question, a Phillies representative said during spring training, the Team
plays 15 day games and one night game. The average attendance for the minor league team
is 500-600 and 4,000 for special events. Mr. Ashby said no more than one Partnership Event
will occur monthly. The Jack Russell Stadium's parking lot clears out 1,000 vehicles in less
than 15 minutes onto 2-lane neighborhood streets. It was stated the new site offers access to
Drew Street, a major road. The Interim City Manager said the project will include traffic studies.
It was noted property values near other new stadiums have increased. Residents were
thanked for their comments.
Commissioner Clark moved to approve the Clearwater Stadium Project Term Sheet with
the Philadelphia Phillies. The motion was duly seconded.
Discussion ensued regarding capital costs at Jack Russell Stadium.
Upon the vote being taken, the motion carried unanimously.
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ITEM #37 - Finalize Mission Statement for Clearwater Beach Entryway Advisory Committee;
appoint 2 alternates (PW)
The proposed Mission Statement is, "The Clearwater Beach Entryway Advisory
Committee will advise the City Commission on recommended solutions to make the Clearwater
Beach Entryway (roundabout) safe, efficient, and friendly for all stakeholders and users."
It is proposed the Clearwater Beach Entryway Advisory Committee meet twice monthly
for several months, and then monthly thereafter, or at a frequency to permit timely review of
staff and consultant plans and designs.
Regarding the committee's purpose, it is proposed the Clearwater Beach Entryway
Advisory Committee will: a) interpret and serve as a liaison between citizens who have
developed the vision at the July 27 and 31 charettes and staff to carry out these changes; b)
review and provide added details to the engineering analysis & proposed immediate & short
term geometric, operations. & maintenance solutions to the entryway; c) retain, as much as
practicable, the community vision as expressed in documents and reports of the charettes; d)
work toward solving immediate and short-term issues; e) identify needed educational,
informational, and enforcement measures; f) determine what measurements are needed to
assure that the entryway meets its objective to become safer, more efficient, and friendly for all
users; g) review these measures & report on the progress & effects of these changes; and h)
review, monitor, & oversee development of long-range topics that the City needs to consider.
These measures will be addressed if immediate and short-term measures fail to fully meet their
intended objectives.
Commissioner Hart reported the Committee had met. Members indicated they wish to
evaluate both short- and long-term issues and are willing to meet weekly. The Committee also
said they wish to combine their review of the Entryway with the new beach plan and long term
beach issues. The Interim City Manager said the committee is willing to participate in the
process to improve the roundabout. He recommended the group be made part of the process.
It was stated the Committee does not want to slow down the process but wishes to review the
Crown report. In response to a question, Commissioner Hart said after short-term issues are
reviewed, the Committee plans to meet monthly and will disband when their work is completed.
They do not want their efforts ignored. It was felt adding the beach plan to this committee's
review should be discussed later.
The Committee had accepted the Mission Statement but want to review short-term fixes
proposed in the Crown report. A second-meeting on Monday, September 11th is planned. The
issue of Committee member absences will be discussed.
Consensus was for Bob Bickerstaffe and Bill Jonson to serve as Clearwater Beach
Entryway Advisory Committee alternates.
Commissioner Johnson moved to approve the Mission Statement for the Clearwater
Beach Entryway Advisory Committee.
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Discussion ensued regarding increased traffic in the roundabout and the decreased
accident rate. Public Works Administrator Mahshid Arasteh said striping the roundabout's east
side has removed a traffic conflict and improved safety.
The motion was duly seconded and carried unanimously.
ITEM #38 - Res. #00-32 - establishing intent to reimburse certain project costs incurred with
proceeds of future tax exempt financing; contract to Bank of America Leasing and Capital,
10/1/00-9/30101, to provide a $15,000.000 line of credit for Fiscal 2001, 2002 & 2003;
authorize all uncompleted equipment acquisitions previously approved for financing under
current contract with GE Capital Public Financing, Inc. to be financed under new contract with
Bank of America Leasing and Capital (FN)
The City solicited proposals for lease purchase (installment sale) financing for the next
three fiscal years. Responders bid a percentage of the weekly average index of the 3- and 5-
year CMT (Constant Maturing Treasury Note) as published by the Federal Reserve Board.
Proposals summary: 1) GE Capital - a) 3 years fixed - 95.15% of CMT; b) 5 years fixed -
96.88% of CMT; c) 3 years variable - none; and d) 5 years variable - none; 2) Bank of
America - a) 3 years fixed - 90% of CMT; b) 5 years fixed - 88% of CMT; c) 3 years variable -
BMA (Bond Market Association Index) + 144bp (Basis Points); and d) 5 years variable - BMA +
144bp; 3) First Union - a) 3 years fixed - none; b) 5 years fixed - none; c) 3 years variable-
73% 3m UBOR (London Inter Bank Offering Rate); and d) 5 years variable - 73% 3m UBOR;
4) MSG, Inc. - a) 3 years fixed - 6.31%; b) 5 years fixed - 6.07%; c) 3 years variable - none;
and d) 5 years variable - none; and 5) LaSalle Bank. - a) 3 years fixed - MMD (Municipal
Market Data Scale Curve) + 100bp; b) 5 years fixed - MMD + 92bp; c) 3 years variable - none;
and d) 5 years variable - none.
Except for items with 3-year useful lives, such as computers and police cars, lease
purchases will be for 5 years. BOA (Bank of America) Leasing and Capital bid 88% of the
weekly average 5-year Treasury Note. The recent 5-year Treasury Note average weekly rate
was 6.16%, which would result in a borrowing rate of 5.42%. The current contract with GE
Capital Public Finance, Inc. was bid in 1995. The current rate, 87.5% of the 5-year Treasury
Note, is 0.5% below BOA's proposed 5-year rate. Approval does not represent a commitment
to borrow. The City Commission must approve purchases. The resolution allows the City to
pay vendors and be reimbursed from BOA.
Commissioner Hooper moved to express the City's intention to be reimbursed from the
proceeds of tax-exempt financing and award the contract to Bank of America Leasing and
Capital for a period of three years, October 1, 2000 to September 30, 2003, provide a $15-
million line of credit for FY 2001, 2002, and 2003, and authorize all uncompleted equipment
acquisitions previously approved for financing under the current contract with GE Capital Public
Financing, Inc. to be financed under the new contract with Bank of America Leasing and
Capital. The motion was duly seconded and carried unanimously.
The City Attorney presented Resolution #00-32 and read it by title only. Commissioner
Clark moved to pass and adopt Resolution #00-32 and authorize the appropriate officials to
execute same. The motion was duly seconded and upon roll call, the vote was:
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"Ayes": Johnson, Clark, Hooper, Hart and Aungst.
"Nays": None.
ITEM #39 - Res. #00-36 - approving Interlocal Agreement which authorizes dissolution of
Municipal Gas Authority of Florida (MGAF); Res. #00-35 - approving City's membership with
Florida Gas Utility (FGU) & necessary documents to accomplish same; authorize City Manager
to reassign Florida Gas Transmission (FGT) Transportation Supply contracts from MGAF to
City and then to FGU; authorize City Manager to make future FGU Director & Alternate Director
appointments (SBS)
This item proposes to transfer CGS's (Clearwater Gas System) natural gas supply
management contract from MGAF (Municipal Gas Authority of Florida) to FGU (Florida Gas
Utility). MGAF, an Interlocal organization, has been purchasing natural gas for 9 municipally-
owned LDCs (Local Distribution Companies) and Gas Districts served by FGT (Florida Gas
Transmission). The MGAF Board of Directors agreed it could not longer compete with FGU's
buying power. The MGAF Board of Directors has dissolved the organization, effective
September 30, 2000. FGU is the only other Municipal Joint Action Agency in Florida, which
purchases natural gas.
FGU membership requires City Commission approval of a Resolution, Assumption
Agreement, Certificate, and Gas Service Agreement. FGU will provide the same gas supply
and management service as MGAF. It is anticipated rates will decrease. Currently, 16
municipally owned utilities are PGU members. CGS membership would become effective
October 1,2000.
Current City FGT contracts are under MGAF and need to be transferred back to the
City. After City Commission approval of FGU membership, these contracts must be assigned
to and aggregated into FGU's existing transportation contracts. Staff recommends the
Commission authorize the Interim City Manager to transfer FGT transportation contracts from
MGAF, to the City, and to FGU.
The FGU Resolution appoints City representatives to the FGU Board of Directors, which
meet quarterly and decides how gas supplies are purchased and managed. Staff recommends
appointing CGS Gas Supply & Technology Engineer Brian Langille as the City's designated
FGU Director and appointing CGS Managing Director Chuck Warrington as the City's FGU
Alternate Director. Staff recommends the City Commission authorize the City Manager to
appoint future FGU directors and alternate directors.
Commissioner Johnson moved to dissolve MGAF (Municipal Gas Authority of Florida)
and approve the City's membership with FGU (Florida Gas Utility) and necessary documents to
accomplish same; and authorize the City Manager to reassign FGT (Florida Gas Transmission)
Transportation Supply contracts from MGAF to FGU and to make future FGU Director and
Alternate Director appointments. The motion was duly seconded and carried unanimously.
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The City Attorney presented Resolution #00-36 and read it by title only. Commissioner
Hooper moved to pass and adopt Resolution #00-36 and authorize the appropriate officials to
execute same. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Johnson, Clark, Hooper, Hart and Aungst.
"Nays": None.
The City Attorney presented Resolution #00-35 and read it by title only. Commissioner
Clark moved to pass and adopt Resolution #00-35 and authorize the appropriate officials to
execute same. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Johnson, Clark, Hooper, Hart and Aungst.
"Nays": None.
ITEM #40 - First Readina Ord. #6587-00 - providing for metering of reclaimed water service to
multi-family dwelling units, changing commercial rate structure, and adding reclaimed water
restrictions (PW)
This ordinance proposes: 1) to meter reclaimed water to multi-family dwelling units at a
rate of $9/monthly plus $0.30 per 1,000 gallons. The current rate ranges from $20/monthly to
$70/monthly, depending on the number of units. All multi-family structures now will be charged
the same availability fee plus a usage rate based on consumption. The estimated 34 Island
Estates accounts will be converted as quickly as possible. Staff already has notified customers
regarding the change; 2) to change the commercial/industrial rate for reclaimed water from
$1.50/CCF (hundred cubic feet) to $0.30/1.000 gallons. As service is requested on north
Clearwater beach, staff will establish new commercial and multi-family accounts. Installation of
meters for current multi-family and commerciallindustrial customers will cost approximately
$5,000. Sufficient funds are available; and 3) to restrict reclaimed water use and prohibit its
daily use between 10:00 a.m. and 4:00 p.m.
One person spoke in support of the ordinance.
Commissioner Johnson moved to provide for metering of reclaimed water service to
multi-family dwelling units, changing the commercial rate structure, and adding reclaimed water
restrictions. The motion was duly seconded and carried unanimously.
The City Attorney presented Ordinance #6587-00 for first reading and read it by title
only. Commissioner Clark moved to pass Ordinance #6587-00 on first reading. The motion
was duly seconded and upon roll call, the vote was:
"Ayes": Johnson, Clark, Hooper, Hart and Aungst.
"Nays": None.
The City Attorney said a new requirement in Florida Statutes requires the City to notice
the change in utility mailers. Second reading is scheduled for October 19,2000.
ITEM #41 - First Readina Ord. #6598-00 - converting basis for measuring water & sewer
consumption for billing from per 100 cubic feet (ccf) to per 1,000 gallons (PW)
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In response to a question, Ms. Arasteh said during Phase 2, the system on SR 60 will
be extended to the Causeway.
The City Attorney presented Resolution #00-16 and. read it by title only. Commissioner
Hooper moved to pass and adopt Resolution #00-16 and authorize the appropriate officials to
execute same. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Johnson, Clark, Hooper, Hart and Aungst.
"Nays": None.
ITEM #43 - Marine Advisorv Board - 1 appointment (elK)
Commissioner Clark moved to appoint Denis Sparks. The motion was duly seconded
and carried unanimously.
ITEM #44 - Beach Master Plan Presentation
The Interim City Manager said these design guidelines for Clearwater beach are being
presented for public consideration. After staff assesses the plan, a workshop with the City
Commission will be scheduled. After City Commission input, the plan will be presented for
discussion at public meetings to be held throughout the City.
Charlie Siemon, of Siemon & Larsen, presented a preliminary design for Clearwater
beach and design guidelines, "Beach by Design." He suggested in the future the City consider
limiting vehicle, not people, access to the beach or else erode the beach's character by
constructing additional roads and garages. The beach's capacity is limited. He said this
decision is key to determining the future character of the beach.
Mr. Siemon said more than 200 citizens provided input to the plan. Current problems
relate to heavy traffic, pedestrian mobility, a lack of parking, and the City's identity and image.
He recommended the City initiate strategies and work with property owners. developers, and
citizens to realize the plan's objectives. He recommended striking a balance for all users
without penalizing one group.
Mr. Siemon said the beach has various land use districts. North of Rockaway beach,
the area's old Florida character is unique and should be retained. He recommended marina
residential properties be constructed east of Poinsettia with modes intensity and mid-rise
construction on the waterfront. Pier 60 will remain a public attraction and provide visitors a
point of arrival and departure. He recommended a grand promenade, or "Beachwalk," extend
from Pier 60 to the Adams Mark Hotel and replace current parking. Small motels can fill in the
back side. He said the Clearwater Pass area features a mixed-use of tourism and hotel uses.
Mr. Siemon reviewed strategies to address mobility issues: 1) improve the roads: 2)
improve pedestrian and bicycle ways; 3) provide an intra-beach transit system; 4) provide
transportation to and from downtown during peak periods; and 5) ration access during peak
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ITEM #48 - Other Commission Action
Commissioner Hooper invited residents to attend the Town Hall meeting at Oak Grove
Middle School on September 13, 2000 at 7:00 p.m.
Commissioner Hooper complimented Interim City Manager regarding Mr. Caffentzis'
recommendation to the Commission.
Commissioner Clark thanked the Greater Clearwater Chamber of Commerce for
supporting the teacher appreciation breakfast.
Mayor Aungst invited residents to participate in the bicycle jamboree at the Countryside
Recreation Center on September 9,2000.
Mayor Aungst reported an open house is scheduled at the Francis Wilson Playhouse on
September 16, 2000.
Mayor Aungst reported a Sister City meeting on September 19, 2000 regarding
students' recent trip to Nagano.
Mayor Aungst announced the Taste of Clearwater at the Harborview Center is
scheduled for September 20, 2000.
ITEM #49 - Adiournment
The meeting adjourned at 11 :24 p.m.
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CITY COMMISSION MEETING
CITY OF CLEARWATER
March 20, 2003
Present: Brian J. Aungst
Whitney Gray
Hoyt P. Hamilton
William C. Jonson
Frank Hibbard
Mayor/Commissioner
Vice-Mayor/Commissioner
Commissioner
Commissioner
Commissioner
Also present: William B. Horne II
Garry Brumback
Ralph Stone
Pamela K. Akin
Cynthia E. Goudeau
Patricia O. Sullivan
City Manager
Assistant City Manager
Assistant City Manager
City Attorney
City Clerk
Board Reporter
The Mayor called the meeting to order at 6:00 p.m. at City Hall. Commissioner Jonson
offered the invocation. The Mayor led the Pledge of Allegiance.
To provide continuity for research, items are in agenda order although not
necessarily discussed in that order.
ITEM #3 -Introductions. Awards and Presentations
b) Proclamation:
Celebrate Clearwater Neighborhoods Week - March 24-29, 2003
Clearwater Community Volunteers Day - March 20, 2003
TBRPC Mcintosh Award - Best overall project in the Region -
Transformation of the North Greenwood Neighborhood
Dean Young's Art Work presented by library Foundation
a) Proclamation:
c) Presentation:
d) Presentation:
Presentation
Vice-Mayor Gray presented to the Mayor, the award from Ye Mystic Krewe of Gasparilla,
in recognition of Clearwater winning the city division for its float in the Gasparilla Parade.
ITEM #4 - Aooroval of Minutes
Commissioner Jonson moved to approve the minutes of the regular meeting of March 6,
2002, as recorded and revised by the City Clerk and submitted to each Commissioner. The
motion was duly seconded and carried unanimously.
ITEM #5 - Citizens to be heard re items not on the Aaenda:
Socrates Charos invited residents to attend the Royalty Theater, welcomed the Gibbs
High School Fine Arts students now perfonning, and requested help finding a drop off/pickup
spot for seniors while Cleveland Street parking is removed.
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Joanie Sieael reviewed upcoming events: 1) April 5 - 6, 2003 - 3rd annual Clearwater
Community Volunteers' rummage sale; 2) April 19, 2003 - Mainstreet Promotions Downtown Art
Stroll; and 3) April 20, 2003 - Clearwater Community Volunteers' Easter Egg Hunt.
Ellen Schultz opposed locating soccer fields at Glen Oaks Golf Course next to a
residential area.
Julie Thompson requested the City continue to dialog with residents living near the Glen
Oaks Golf Course as residents want a voice in how the neighborhood will be transformed.
John Doran said he had found another roundabout in Clearwater, and it too works. He
thanked the City for the advisory board appreciation dinner, particularly the special honor
presented Bob Bickerstaffe.
PUBLIC HEARINGS
ITEM #6 - Public Hearina & First. Readina - Ord 7096-03 - Approve the Zonina Atlas
Amendment from the O. Office District. to the I. Institutional District for 300 Pinellas Street (Lots
16 and 18, less the West 85 feet thereof, C. Perry Snell's Bluff View Court. in Sec. 21-29-15)
REZ2002-12004
The 0.09-acre site at 300 Pinellas Street is approximately 150 feet north of Pinellas
Street. 650 feet west of South Fort Harrison Avenue, and currently is occupied by a parking
structure used to support the Morton Plant Hospital Emergency Room. The applicant requests
amending the zoning map from 0, Office District, to I, Institutional District to render the site
consistent with the underlying Institutional (INS) Future Land Use Plan category. Also. the
proposed rezoning would consolidate the entire Morton Plant Hospital Campus under the I.
Institutional zoning category.
Staff determined the proposed rezoning is consistent with standards specified in the
Community Development Code: 1) proposed rezoning application is consistent with the
Comprehensive Plan; 2) proposed rezoning provides consistency between the City's zoning
map and Future Land Use Map; 3) there will be no adverse impacts on public facilities and their
level of service; 4 ) district boundaries are appropriately drawn with regard to locations and
classifications of streets, ownership lines, existing improvements, and the natural environment;
and 5) the potential range of uses and the specific proposed use are compatible with the
surrounding area. On February 18, 2003, the CDB (Community Development Board) reviewed
this proposed rezoning and unanimously recommended approval.
Commissioner Hamilton moved to approve the Zoning Atlas Amendment from the O.
Office District to the I, Institutional District for 300 Pinellas Street (Lots 16 and 18, less the West
85 feet thereof, C. PERRY SNELL'S BLUFF VIEW COURT, in Section 21, Township 29 South
and Range 15 East. The motion was duly seconded and carried unanimously.
The City Attorney presented Ordinance #7096-03 for first reading and read it by title
only. Commissioner Jonson moved to pass Ordinance #7096-03 on first reading. The motion
was duly seconded and upon roll call, the vote was:
"Ayes": Gray, Hamilton, Jonson, Hibbard, and Aungst.
"Nays": None.
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ITEM #7 - Public Hearina & First Readina - Ord 7092-03 - ADDrove the aDDlicant's reauest to
vacate Dart of the drainaae and utility easement located on Lot 51. Countryside Tract 94.
(AK.A 2662 Beaumont Court) more particularly described in Exhibit "A" attached (V2003-02
Catalanotto). PW
The applicant seeks approval of the vacation request to build an additional single-family
home on the subject property. The Planning Department has no objections provided that the
applicant obtains an administrative lot line adjustment consistent with the LMDR zoning district
prior to issuance of a building permit to construct a new single-family home.
Progress Energy, Time Wamer Cable, Verizon and Verizon Media Ventures have no
objections to the vacation request. No City of Clearwater utilities are present in the subject
easement portion and no future need for the easement portion is anticipated. The property
owner will be responsible to pay costs associated with construction of the sewer main extension
needed to serve the proposed new home. Public Works Administration has no objections to the
vacation request.
Commissioner Gray moved to approve the applicant's request to vacate part of the
drainage and utility easement located on Lot 51, Countryside Tract 94, (AK.A 2662 Beaumont
Court). The motion was duly seconded and carried unanimously.
The City Attomey presented Ordinance #7092-03 for first reading and read it by title
only. Commissioner Hibbard moved to pass Ordinance #7092-03 on first reading. The motion
was duly seconded and upon roll call, the vote was:
"Ayes": Gray, Hamilton, Jonson, Hibbard, and Aungst.
"Nays": None.
ITEM #8 - Public Hearina. & First Readina - Ord 7099-03 - Amend Section 3-1508 of the
Community DeveloDment Code. reaardina noise.
Section 3-1508 A has been amended to clarify that an officer must hear the noise at a
distance of at least 100 feet from the source of the noise. The 100-foot limitation is consistent
with that contained in Section 316.3045 Florida Statutes, which makes it unlawful to operate a
motor vehicle radio so that the sound is plainly audible at a distance of 100 feet or more from
the motor vehicle.
Section 3-1508 C has been renumbered to Section 3-1508 B and has been amended to
clarify that only "Loud and Raucous" noise is prohibited and to eliminate the wind requirement.
When the noise ordinance was recodified, it was amended to impose a requirement that before
the City could issue a citation to a person for operating an excessively loud radio, amplifier,
phonograph, or sound truck, the wind conditions had to be less than 15 miles per hour. The
wind requirement has proven to be unworkable, especially on Clearwater beach. Police officers
have difficulty enforcing the noise ordinance because they do not carry wind-measuring devices
and because wind gusts on Clearwater beach are frequent.
Section 3-1508 D has been renumbered to Section 3-1508 C and has been amended to
clarify the circumstances when a person becomes liable for ensuring that noise sources do not
violate the Noise Ordinance.
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Section 3-1508 E has been renumbered to Section 3-1508 D and has been amended to
limit the exception for religious worship activities to those activities occurring on or in religious
facilities.
Commissioner Hamilton moved to amend Section 3-1508 of the Community
Development Code regarding noise. The motion was duly seconded and carried unanimously.
The City Attorney presented Ordinance #7099-03 for first reading and read it by title
only. Commissioner Jonson moved to pass Ordinance #7099-03 on first reading. The motion
was duly seconded and upon roll call, the vote was:
"Ayes": Gray, Hamilton, Jonson, Hibbard, and Aungst.
"Nays": None.
ITEM #9 - Public Hearina & First Readina - Ord 7063-03 - Amend the Community Development
Code allowina for sidewalk cafes to be located on private property and on public riahts-of-wav in
the Downtown and Tourist districts. ED
As the City of Clearwater experiences renewed interest from restaurant owners to locate
eating establishments on Clearwater beach and Downtown due to significant public capital
improvements, the City recognized the need to address, in a comprehensive way, outdoor
seating on private property and in the public right-of-way, Le. sidewalk cafes.
Sidewalk cafes provide a unique environment for food consumption that enhances the
pedestrian, urban and beach character of the City and provides an additional amenity for the
public to enjoy. Furthermore, sidewalk cafes provide an opportunity to promote economic
development and further the City's redevelopment goals. A sidewalk cafe can be established as
an accessory use to an adjacent business and located outside the boundaries of the building;
food and beverage service or other activities related to the principal use may be allowed as part
of the sidewalk cafe. Sidewalk cafes on private property are permitted in the Commercial,
Downtown, and Tourist zoning districts of the City. Sidewalk cafes on the public right-of-way will
be allowed only in the Downtown and Tourist districts on Clearwater beach due to the high
intensity of development and lack of vacant land. In addition. sidewalk cafes on the public right-
of-way will require a permit to operate. The permit will be associated with a $120 fee and
renewed annually.
The ordinance provides standards and criteria for developing sidewalk cafes on private
property and in the public right-of-way. The ordinance strives to improve community aesthetics
through the regulation of sidewalk cafes-through a pre-application meeting and design review.
In addition, maintenance, safety, and liability standards are stipulated to maintain high
standards for development, which are essential in a community undergoing redevelopment.
The ordinance also details application requirements and the review process.
For existing restaurants desiring to establish a sidewalk cafe in the right-of-way, the
completed application will be reviewed as an accessory use/Minimum Standard Development
within 3 working days. If all conditions are met, a permit will be granted.
Key components of the ordinance: 1) Safety - Sidewalk cafes should promote efficient
and direct pedestrian pathways. Sight visibility triangles must be maintained at all times. In
addition, no food preparation is allowed on the sidewalk; 2) Design - To enhance the visual
quality of the urban environment, the cafe will comply with district Design Guidelines.
Specifically, furniture and fixtures shall be of good design and made of quality materials and
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workmanship. The edge of the sidewalk cafe area in the right-of-way shall be delineated using
non-permanent fixtures such as railings, potted plants, decorative chains, or other approved
fixtures; 3) Maintenance - The sidewalk cafe area, the area from the sidewalk cafe to the curb,
and five feet beyond either end will be maintained in a neat and orderly appearance at all times
and shall be cleared of all debris on a daily basis. Tables, chairs, umbrellas, etc. shall be
maintained in a clean and attractive manner and in good repair at all times; 4) Alcohol Allowed -
With a valid alcohol license from the State of Florida, alcoholic beverages are allowed for
consumption in connection with a restaurant use. However, alcoholic beverages must remain in
the designated sidewalk cafe area. An amendment to the code allowing open containers in the
sidewalk cafe area will be presented as a separate ordinance; 5) Music - No amplified music is
allowed on sidewalk cafes in the public right-of-way. Amplified music on private property shall
be reviewed for impact to surrounding properties.
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Additional requirements for sidewalk cafes on public rights-of-way: 1) Safety - The City
may require the temporary removal of sidewalk cafes when street. sidewalk, or utility repairs
necessitate such action, during any emergency situation. or in the interest of public safety. A
minimum of 4 feet will be maintained at all times to allow unobstructed pedestrian pathways
along the sidewalk. In congested pedestrian areas, this minimum width may be increased; 2)
Liability - A written agreement with the City is required where the permit holder agrees to
indemnify, defend, save and hold harmless the City from all claims, liability, lawsuits, damages
and causes of action which may arise out of the use of the public sidewalk; and 3) Insurance -
Comprehensive General Liability insurance on an "occurrence" basis in the amount of $500,000
is required. The City is to be included speCifically as an additional insured on the policy.
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Two additional ordinances will be needed in conjunction with the adoption of the
sidewalk cafe ordinance to allow alcohol on the public right of way in the sidewalk cafe area and
repeal old provisions related to sidewalk cafes in the Code. The Community Development
Board reviewed this item on March 18, 2003, and recommended approval.
In response to a question, the City Attorney said Risk Management had indicated the
recommended amount of insurance is sufficient.
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One person recommended sidewalk cafes also be permitted along the Pinellas Trail.
Commissioner Hamilton moved to amend the Community Development Code allowing
for sidewalk cafes to be located on private property and on public rights of way in the Downtown
and Tourist districts. The motion was duly seconded and carried unanimously.
The City Attorney presented Ordinance #7063-03 for first reading and read it by title
only. Commissioner Gray moved to pass Ordinance #7063-03 on first reading. The motion was
duly seconded and upon roll call, the vote was:
"Ayes": Gray, Hamilton, Jonson, Hibbard, and Aungst.
"Nays": None.
ITEM #10 - Not a Public Hearina - Pass. on First Readina - Ord 7073-03 - amendina Code of
Ordinances Section 28.04 to allow approved sidewalk cafes to sell food on public property.
This is a companion item to Ordinance No. 7063-03, the Sidewalk Cafe ordinance.
Adoption of this ordinance is necessary because currently Section 28.04 prohibits sales of
goods, wares, or merchandise on streets, right-of-way, and publiC property. The exception will
apply only to approved sidewalk cafes.
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"Ayes": Gray, Hamilton, Hibbard, Jonson, and Aungst.
"Nays": None.
ITEM #14 - Second Readino Ord 7103-03 - amending Ord 7054-03 to correct scrivener's errors.
The Mayor presented Ordinance #7103-03 for second reading and read it by title only.
Commissioner Jonson moved to pass and adopt Ordinance #7103-03 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Gray, Hamilton, Hibbard, Jonson, and Aungst.
"Nays": None.
ITEM #15 - Second Readino Ord 7104-03 - amending Ord 7055-03 to correct scrivener's errors.
The Mayor presented Ordinance #7104-03 for second reading and read it by title only.
Commissioner Gray moved to pass and adopt Ordinance #7104-03 on second and final
reading. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Gray, Hamilton, Hibbard, Jonson, and Aungst.
"Nays": None.
CITY MANAGER REPORTS
CONSENT AGENDA (Items #16-20) - Approved as submitted.
Consent Agenda items require no formal public hearing and are subject to approval by a
single motion. However, any City Commissioner or the City Manager may remove an item from
the Consent Agenda for discussion and individual vote.
ITEM #16 - Approval of Purchases (& Declaration of Surplus) per Purchasino Memorandum:
1) Purchase Contract for Gas Material - Steel pipe and fittings during the contract period: April
1, 2003 through March 31, 2004 for $68,000 from M.T. Deason Company, Birmingham,
Alabama. (GAS)
2) Purchase of GC / MS Spectrometer for $87,453 from Varian Analytical Instruments, Walnut
Creek, California. (PUlLab)
3) Purchase of labor and material for installation of fuel system for $167,216 from Convault
Florida, Inc., Wildwood, Florida. (MR)
ITEM #17 - Approve the Modification of Mortoaoe Note with Greenwood Apartments, LLC to
increase the City's loan by $300,000, to total loan amount of $1,000,000. ED
ITEM #18 - Approve co-sponsorship and waiver of requested City fees and services charoes for
FY 2003-2004 special events including six annual City events; and fifteen City co-sponsored
events; at an estimated gross cost of $452,894 ($134,500 representing cash contributions and
$313,394 representing in-kind contributions) for the purposes of departmental budget
submittals. PR
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ITEM #19 - Approve an Underaround Pipeline R/W Utilization Aareement with Florida Power
Corporation, a Florida Corporation, 3300 Exchange Place, Lake Mary, Florida, 32746, for the
Drew and Union Streets Reclaimed Water Main project (01-0039-UT). PW
ITEM #20 - Appoint Commissioner Grav to serve on the Pension Advisory Committee for the
term 4/5/03-4/4/05. ORLS
Commissioner Hamilton moved to approve the Consent Agenda as submitted, and that
the appropriate officials be authorized to execute same. The motion was duly seconded and
carried unanimously.
OTHER ITEMS ON CITY MANAGER REPORT
ITEM #21 - First Quarter Budaet Amendments
The First Quarter Budget Review is in accordance with the City Code of Ordinances. The
report is based on three months of activity from October 2002 through December 2002 during the
current fiscal year. The report comments on major variances, as well as documents all proposed
amendments.
Significant Fund amendments are 1) General Fund - expenditure amendments reflect a
net increase of $1,692,860 at first quarter. The majority of this increase is due to one-time
allocations of retained earnings in the amount of $1,132,000 to provide advance funding for the
Clearwater Library Foundation funds for construction, and $450,000 allocated to the Harborview
Fund, which was approved by the City Commission in February 2003. Other smaller increases
include funding the neighborhood grants and service coordinator position totaling $67,900 in
Development Services and an increase of $20,870 in the final tax increment payment to the
CRA (Community Redevelopment Agency) based upon final taxable values. These increases
are offset easily by funds returned to the General Fund from closed capital projects. An
additional increase of $22,000 in Economic Development for temporary services is offset by a
like increase in Community Development Block Grant revenue reimbursing the General Fund for
this cost and 2) General Fund Reserves - To ensure adequate reserves, the City Commission's
policy reflects that General Fund unappropriated retained earnings of 8.5% of the City's budgeted
General Fund expenditures must be maintained as a reserve to guard against future
emergencies. With the closing of the year-end 2002 books, and the allocation of reserves noted
above, estimated General Fund reserves at first quarter are approximately $10.6 million, or 11.5%
of the current year's General Fund budget, exceeding the City's reserve policy by just over $2.7
million.
The only significant amendments-to other City Operating Funds are: 1) Gas Fund - First
quarter amendments to the Gas Fund recognize an increase of $192,110 in budgeted
expenditures, basically due to the increased cost of fuel and contractor costs. This amendment
is offset easily by increases in anticipated revenues from sales and interest earnings of more
than $314,000; 2) Harborview Fund - First Quarter revenue amendments reflect the receipt of
$450,000 of retained earnings from the General Fund to correct the deficit in the current asset
balance approved by the City Commission on February 5, 2003; 3) Central Insurance Fund -
The only significant amendment to the Central Insurance Fund at first quarter recognizes the
allocation of $500,000 of retained earnings from the Central Insurance Fund for property,
'" casualty and liability insurance premiums. The Commission approved this amendment in
September 2002 with the Commission's approval for the purchase of property, casualty and
liability insurance contract for FY 2002/03; 4) Capital Improvement Fund - Amendments to the
Capital Improvement Fund total a net increase of $1,462,907. The most significant increases
includes the transfer of $1,132,000 of General Fund retained earnings to the Main Library
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construction project to support the final construction contract phase and an increase of $605,000
to the Community Sports Complex project based upon final budget figures presented to the
Commission in January. The budget amendments include more than $276,000 that is being
returned to the General Fund with the completion or closing of projects, including $141,100 of
funds appropriated for demolition of the Cabana Club last year, which no longer is necessary.
The City Commission previously has approved almost all capital improvement project budget
increases; and 5) Special Program Fund - Amendments to the Special Program Fund total a
net increase of $886,867. Of this amount, almost $393,000 is directly related to revenues
received from Special Events during the first part of the year and more than $300,000
represents revenues for Public Safety projects including almost $110,000 in court proceeds
from contraband forfeitures and more than $140,000 in grants for DUI enforcement, Operation
Apoyo Hispanic, and other public safety programs.
Commissioner Hibbard moved to approve FY 2002/03 First Quarter Budget
Amendments. The motion was duly seconded and carried unanimously.
a) Pass on first reading Ord 7097-03 - Amending FY 2002/03 operating budget
The City Attorney presented Ordinance #7097-03 for first reading and read it by title
only. Commissioner Hibbard moved to pass Ordinance #7097-03 on first reading. The motion
was duly seconded and upon roll call, the vote was:
"Ayes": Gray, Hamilton, Jonson, Hibbard, and Aungst.
"Nays": None.
b) Pass on first reading Ord 7098-03 - Amending the FY 2002/03 capital improvement budget
The City Attorney presented Ordinance #7098-03 for first reading and read it by title
only. Commissioner Jonson moved to pass Ordinance #7098-03 on first reading. The motion
was duly seconded and upon roll call, the vote was:
"Ayes": Gray, Hamilton, Jonson, Hibbard, and Aungst.
"Nays": None.
ITEM #22 - Adoot Resolution 03-12 - which will amend Resolution 00-32 by increasing the
amount of lease purchase debt to be incurred by $4,500,000 to a total of $19,500,000. FN
The City utilizes lease purchasing to finance capital equipment such as vehicles, thereby
spreading out the payments over a three- to five-year tenn. Resolution #00-32 anticipated $5-
million per year in lease purchases for the three-year tenn of FY 2001-03. This estimate was
based on historical lease purchase activity.
Lease purchase activity across City departments has increased significantly, partially
due to low interest rates. The requested increase will provide sufficient lease purchase
financing for all budgeted FY 2003 lease purchases. The current interest rate the City pays for
items that are lease purchased is very reasonable. Current interest rates approximate 2.42%
for three-year and 2.79% for five-year debt. Lease purchase also is attractive to departments
because if allows them to spread the costs of acquiring an asset over the useful life of the asset
rather than having to fund the full cost up front.
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Commissioner Gray moved to amend Resolution #00-32 by increasing the amount of
lease purchase debt to be incurred by $4.5-million, to a total of $19.5-million and that the
appropriate officials be authorized to execute same. The motion was duly seconded and
carried unanimously.
The City Attorney presented Resolution #03-12 and read it by title only. Commissioner
Hibbard moved to pass and adopt Resolution #03-12 and authorize the appropriate officials to
execute same. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Gray, Hamilton, Jonson, Hibbard, and Aungst.
"Nays": None.
ITEM #23 -Adopt Resolution 03-13 - authorizinc acceptance of Airport Expenditure Plan
Chance #1 requested by the Florida Department of Transportation. MR
On January 23, 2003, the City Commission approved Supplemental Agreement Number
4, Resolution #03-04. FDOT (Florida Department of Transportation) agreed to increase
reimbursable funding to include additional security fencing in the existing JPA (Joint
Participation Agreement) for the design and construction of two 10-plane t-hangars, one
corporate hangar, completion of the stormwater management plan, and the emergency soil
mitigation and fuel tank replacement at Clearwater Airpark. FDOT may participate in the
security fence construction at 100% up to a maximum of $20,000. The total funding provided by
FDOT for this JPA remains the same at $1,118.800. What FDOT is doing is making this
$20,000 available at 100% instead of the 80:20 split. The $4,000 (20% of $20,000) will remain
in the project for future improvements.
This increase represented 100% participation on FDOT's part, and nothing additional on
the part of the City. FDOT now is asking the City to officially accept the change to the Airport
Expenditure Plan.
Commissioner Jonson moved to authorize acceptance of Airport Expenditure Plan
Change #1 requested by the Florida Department of Transportation and that the appropriate
officials be authorized to execute same. The motion was duly seconded and carried
unanimously.
The City Attorney presented Resolution #03-13 and read it by title only. Commissioner
Gray moved to pass and adopt Resolution #03-13 and authorize the appropriate officials to
execute same. The motion was duly seconded and upon roll call, the vote was:
"Ayes": Gray, Hamilton, Jonson, Hibbard, and Aungst.
"Nays": None.
ITEM #24 -Other Pendinc Matters:
a) Letters for the Mayor's signature re the National Energy Policy
Gas System Managing Director Chuck Warrington recommended a major bill before
Congress requires parallel treatment of gas and electricity. Support for the letter's concept was
stated, with more concise wording and less aggressive language.
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Commissioner Jonson moved that the modified letter regarding the National Energy
Policy be forwarded to Congress. The motion was duly seconded and carried unanimously.
CITY ATTORNEY REPORTS
ITEM #25 - Other City Attornev Items - None.
ITEM #26 - City Manaaer Verbal Reoorts
Countywide Traffic Management System
The City Manager reported staff had a successful meeting with the County regarding the
Countywide Traffic Management System and now is in position to move forward to approve
agreements. Traffic Operations Manager Paul Bertels said the proposed agreement with the
County is consistent with Commission guidance to implement County control of the City's traffic
signal system in phases. Staff will have input regarding timing issues. The City may have an
opportunity to maintain hardware. In response to a question, Mr. Bertels felt City maintenance
of hardware would be most cost effective. Staff was congratulated for working out details of this
agreement.
WPXZ AM
Assistant City Manager Garry Brumback reported Clearwater' s traffic information station
WPXZ AM is now on the air. Related informational signs will be erected by Saturday.
ITEM #27 - Commission Discussion Items - None.
ITEM #28 - Other Commission Action
Commissioner Hamilton thanked members of the Mystic Krewe of Margarita for
participating with the City's Gasparilla float.
Commissioner Hibbard and Mayor Aunast thanked participants in this weekend's Paint
Your Heart Out Clearwater.
Commissioner Hibbard requested residents drive safely.
Commissioner Gray reminded residents that Spring Break for Pinellas County students
starts this weekend.
Commissioner Jonson referenced a Legislative Bulletin regarding wireless industry
attempts to override local authority regarding installation of towers and antennas. Staff already
has taken steps to oppose related legislation and will prepare a letter for the Mayor's signature.
Commissioner Jonson agreed it was appropriate for the City to recognize at the Advisory
Board Dinner Bob Bickerstaffe's many contributions to the City.
Commissioner Jonson said he had represented the City at yesterday's Pinellas County
Animal Services dedication of its new mobile unit.
Mayor Aunast said on March 14,2003, the Commission had enjoyed seeing progress at
the Hard Hat tour and light lunch at the new main library.
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Mayor Aunast said on March 15, 2003, he and Commissioner Hamilton welcomed the
Countryside Little League at the Countryside Recreation Center and wished them a great
season.
Mayor Aunast said on March 15, 2003, he had welcomed the Queen's Band, the
Grenadier Guard at Ruth Eckerd Hall, noting many allies, including band members, were
participating in the war against Iraq.
Mayor Aunast said on March 17,2003, the Commission had enjoyed the Phillies' dinner
at the Belleview Biltmore.
Mayor Aunast said on March 18, 2003, the Commission had hosted the annual Advisory
Board Dinner at the Harborview Center to show how much the City appreciates volunteer
efforts.
Mayor Aunast invited residents to attend the annual Greek Independence Day
Celebration in front of City Hall at 1 :00 p.m. on March 22, 2003.
Mayor Aunast reported on March 24, 2003 at 6:30 p.m. at the Municipal Services
Building, a Public Hearing is scheduled re naming the "Town Pond."
Mayor Aunast said on March 26, 2003, the City will host an official welcome back to the
Phillies at the Harborview Center.
Mayor Aunast said on March 27, 2003 at 7:00 p.m., he will speak at the Skycrest
Neighbors Association at St. Paul's Lutheran Church.
Mayor Aunast said on March 29, 2003, is the annual Clearwater Celebrates
Neighborhood Day, when Commission members will visit neighborhood block parties.
Mayor Aunast said the next Work Session is on March 31, 2003 at 9:00 a.m.
Mayor Aunast said he has been invited to participate in an April 5, 2003 event planned
for Coachman Park and questioned if it was an approved event.
ITEM #29 - Adjournment
The meeting adjourned at 7:08 p.m.
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03/20/03
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CITY OF CLEARWATER
POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748
Cny HALL, 112 SOUTH OSCEOlA AVENUE, CLEARWATER, FLORIDA 33756
TELEPHONE (727) 562-4010 FAX (727) 562-4021
CiIT ATroRNEY'S OFFICE
September 30,2003
Banc of America Leasing & Capital, LLC
555 California Street, 4th Floor
San Francisco, California 94104
Re: Schedule of Property No(s), 19 and 20, dated September 30,2003, to First Amendment
to Master Equipment Lease/Purchase Agreement, dated as of September 30,2003, between
Banc of America Leasing & Capital, LLC, as Lessor, and the City of Clearwater, Florida, as
Lessee.
Ladies and Gentlemen:
As legal counsel to the City of Clearwater, Florida (the "Lessee"), I have examined (a) an
executed counterpart of a certain First Amendment to Master Equipment Lease/Purchase Agreement,
dated as of September 30, 2003, and Exhibits thereto by and between Banc of America Leasing &
Capital, LLC (the "Lessor") and the Lessee (the "Agreement'), and an executed counterpart of
Schedule of Property No(s). 19 and 20, dated September 30, 2003, by and between Lessor and
Lessee (the "Schedule(s)"), which, among other things, provides for the lease of certain property
listed in the Schedule(s) (the "Equipment"), (b) an executed counterpart of the ordinances or
resolutions of lessee which, among other things, authorize Lessee to execute the Agreement and the
Schedule(s) and (c) such other opinions, documents and matters of law as I have deemed necessary
in connection with the following opinions in particular, that certain letter opinion letter addressed to
Lessee from Bryant, Miller & Olive, P.A. dated September 30, 2003. The Schedule(s) and the terms
and provisions of the Agreement incorporated therein by reference together with the Rental Payment
Schedule attached to the Schedule(s) are h.erein referred to collectively as the "Lease".
Based on the foregoing, I am of the following opinions:
1. Lessee is a municipal corporation, duly organized and existing under
and pursuant to the Constitution and laws of the State of Florida;
2. Lessee has the requisite power and authority to lease and acquire the Equipment and to
execute and deliver the Lease and to perform its obligations under the Lease;
BRIAN). AUNGST, MAYOR-COMMISSIONER
HoYf HAMILTON, VICE MAYOR-COMMISSIONER WHITNEY GRAY, COMMISSIONER
FRANK HIBBARD, COMMISSIONER <it) BIIL]ONSOI". COMMlSSIOI"ER
"EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION EMPLO'l;R"
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3. The Lease has been duly authorized, approved, executed and delivered by and
on behalf of Lessee and the Lease is a valid and binding obligation of Lessee enforceable
in accordance with its terms;
4. The authorization, approval, execution and delivery of the Lease and all other
proceedings of Lessee relating to the transactions contemplated thereby have been
performed in accordance with all open meeting laws, public bidding laws and all other
applicable state or federal laws;
5. To the best of my knowledge, there is no proceeding pending or threatened in any
court or before any governmental authority or arbitration board or tribunal that, if adversely
determined, would adversely affect the transactions contemplated by the Lease or the
interest of Lessor or its assigns, as the case may be, in the Equipment thereunder.
All capitalized terms herein shall have the same meanings as in the Lease unless
otherwise provided herein. Lessor and its successors and assigns, and any counsel
rendering an opinion on the tax-exempt status of the interest components of the Rental
Payments, are entitled to rely on this opinion.
Sincerely,
Ii If/.
Pamela K. Akin
City Attorney
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B~t
MIller
-&-
Olive PA,
September 30, 2003
City of Clearwater
Clearwater, Florida
Banc of America Leasing & Capital, LLC
San Francisco, California
Re: Schedule of Property Nos. 19 and 20, dated September 30, 2003, to Master
Equipment LeaselPurchase Agreement, dated February 13, 2001, between Banc of
America Leasing & Capital, LLC, as Lessor, and the City of Clearwater, as Lessee, as
amended by the First Amendmentto Master Lease/Purchase Agreement dated as of
September 30, 2003
Ladies and Gentlemen:
As bond counsel to the City of Clearwater, Florida (the "Lessee"), I have examined (a) an
executed counterpart of a certain Master Equipment LeaselPurchase Agreement, dated February 13,
2001, and Exhibits thereto, by and between Banc of America Leasing & Capital, LLC (the "Lessor")
and the Lessee, providing for not to exceed $15,000,000 line of credit as amended by that certain
First Amendment to Master Lease/Purchase Agreement dated as of September 30,2003 (collectively,
the "Agreement"), and an executed counterpart of Schedule of Property Nos. 19 and 20, dated
September 30, 2003, by and between Lessor and Lessee (collectively, the "Schedule"), which, among
other things, provides for the lease of certain property listed in the Schedule (the "Equipment"), (b) a
certified copy of the minutes of the Lessee of their meetings on September 7, 2000 and March 20,
2003, which, among other things, award the bid to the Lessor for the Agreement, and (c) such other
opinions, documents and matters of law as we have deemed necessary in connection with this
opinion, including the opinion of the City Attorney to the Lessee. The Schedules and the terms and
provisions of the Agreement incorporated therein by reference together with the Rental Payment
Schedules attached to such Schedules on the date hereof and thereafter from time to time are herein
referred to collectively as the "Lease."
201 South Monroe Street · Suite 500 · Tallahassee, Florida 32301 . 850-222-8611 . Fax: 850-222-8969 . www.bmolaw.com
TAL L A HAS SEE · TAM P A · 0 R LAN DO. M I A MI. A T LAN TA
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City of Clearwater
Banc of America Leasing
& Capital, LLC
Page 2
September 30,2003
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As to questions of fact material to our opinion, we have relied upon representations of the
Issuer contained in the Resolution and in the certified proceedings and other certifications of public
officials furnished to us, without undertaking to verify the same by independent investigation. We
have not undertaken an independent audit, examination, investigation or inspection of such matters
and have relied solely on the facts, estimates and circumstances described in such proceedings and
certifications. We have assumed the genuineness of signatures on all documents and instruments,
the authenticity of documents submitted as originals and the conformity to originals of documents
submitted as copies.
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Based on the foregoing, we offer the following opinions:
1. The Lease has been duly authorized, approved, executed and delivered by and on behalf
of Lessee and the Lease is a valid and binding obligation of Lessee enforceable in accordance with
its terms;
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2. The Internal Revenue Code of 1986, as amended (the "Code"), establishes certain
requirements which must be met subsequent to the issuance and delivery of the Lease in order that
the portion of rentals designated as and constituting interest paid by the Lessee be and remain
excluded from gross income for purposes of federal income taxation. Non-compliance may cause
such interest to be included in federal gross income retroactive to the date of Lease, regardless of the
date on which such non-compliance occurs or is ascertained. The Lessee has covenanted in the
Lease to comply with such requirements in order to maintain the exclusion from federal gross
income of such interest.
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Subject to compliance by the Lessee with the aforementioned covenants and provided an
event of non-appropriation has not occurred under the Lease, (a) interest on the portion of rentals
designated as such is excluded from gross income for purposes of federal income taxation, and
(b) such interest is not an item of tax preference for purposes of the federal alternative minimum tax
imposed on individuals and corporations; however, with respect to corporations (as defined for
federal income tax purposes), such interest is taken into account in determining adjusted current
earnings for the purpose of computing the alternative minimum tax imposed on such corporations.
We express no opinion regarding other federal tax consequences arising with respect to the Lease.
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J:\BONDSI2001\3420120030PINION.DOC
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City of Clearwater
Banc of America Leasing
& Capital, LLC
Page,3
September 30, 2003
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All capitalized terms herein shall have the same meanings as in the Lease unless otherwise
provided herein. It is to be understood that the rights of the Lessor and the enforceability thereof
may be subject to the exercise of judicial discretion in accordance with general principles of equity,
to the valid exercise of the sovereign police powers of the State of Florida and of the constitutional
powers of the United States of America and to bankruptcy, insolvency, reorganization, moratorium
and other similar laws affecting creditors' rights heretofore or hereafter enacted.
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Our opinions expressed herein are predicated upon present law, facts and circumstances,
and we assume no affirmative obligation to update the opinions expressed herein if such laws, facts
or circumstances change after the date hereof.
Very truly yours,
BRYANT MILLER & OLIVE P.A.
ci!{j~#~~&~PA .
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