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RESOLUTION NO. 99-4
A RESOLUTION OF THE CITY OF ATLANTIC BEACH,
FLORIDA SUPPLEMENTING ORDINANCE NO. 15-99-9 OF THE
CITY; PROVIDING FOR THE PREPAYMENT OF THE CITY'S
OBLIGATION UNDER ITS PROMISSORY NOTE DATED
JANUARY 4, 1989 RELATING TO THE CITY OF GULF
BREEZE,FLORIDA LOCAL GOVERNMENT LOAN PROGRAM
FLOATING RATE DEMAND REVENUE BONDS, SERIES
1985B; AUTHORIZING THE ISSUANCE OF $1,820,000
CAPITAL IMPROVEMENT REVENUE REFUNDING BONDS,
SERIES 1999 TO PROVIDE FUNDS FOR SUCH PREPAYMENT;
AWARDING THE BONDS TO SUNTRUST BANK, NORTH
FLORIDA NATIONAL ASSOCIATION PURSUANT TO
COMPETITIVE PROPOSALS; PLEDGING THE PUBLIC
SERVICE TAXES OF THE CITY TO SECURE PAYMENT OF
THE PRINCIPAL OF AND INTEREST ON THE BONDS;
PROVIDING FOR THE RIGHTS OF THE HOLDERS OF THE
BONDS; COVENANTING TO BUDGET AND APPROPRIATE
• FROM LEGALLY AVAILABLE NON-AD VALOREM
REVENUES TO MEET DEBT SERVICE; AUTHORIZING AN
ESCROW DEPOSIT AGREEMENT; AUTHORIZING A FIRST
SUPPLEMENTAL LOAN AGREEMENT RELATING TO SUCH
CITY OF GULF BREEZE LOAN PROGRAM; PROVIDING AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF ATLANTIC
BEACH,FLORIDA:
Section 1. AUTHORITY FOR THIS RESOLUTION. This resolution is adopted
pursuant to the provisions of the Act (as hereinafter defined) and Ordinance No. 15-99-9 of the
Issuer.
Section 2. DEFINITIONS. The following terms in this Resolution shall have the
following meanings unless the text otherwise expressly requires:
"Act" shall mean Chapter 166, Part II, Florida Statutes, and other applicable provisions of
law.
"Additional Parity Bonds"shall mean additional bonds issued by the Issuer in compliance with
the terms, conditions and limitations contained herein which have an equal lien on the Pledged
• Revenues with the 1999 Bonds.
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• "Authorized Investments" shall mean any of the following which at the time are legal
investments for the Issuer under applicable laws for the moneys held under this Resolution then
proposed to be invested therein: (a)Federal Securities,or obligations for which the faith and credit
of the United States are pledged for the payment of principal and interest; (b)obligations of Export
Import Bank of the United States,Federal Financing Bank,Farmer's Home Administration,Federal
Housing Administration,Maritime Administration,Public Housing Authority,Government National
Mortgage Association;(c)certificates of deposit properly secured at all times,by collateral security
described in (a) and (b) above (such agreements being only acceptable with commercial banks,
savings and loans associations,and mutual savings banks); (d)time(including savings accounts)or
demand deposits in any bank or trust company authorized to accept deposits of public funds,which
are fully insured by the FDIC; (e)repurchase agreements with a financial institution or recognized
dealer which are fully secured at all times by obligations described in(a)through(d)of this definition;
and (f) investments pursuant to Chapter 218, Part IV, Florida Statutes, the Investment of Local
Government Surplus Funds Act.
"Bank" shall mean SunTrust Bank,North Florida, National Association.
"Bonds" shall mean the 1999 Bonds and all Additional Parity Bonds hereafter issued by the
Issuer.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
• "Costs" shall mean the costs of the prepayment of the 1989 Loan.
"Designated Bonds"shall mean Bonds which have been designated at the time of issuance as
"qualified tax-exempt obligations" under Section 265(b) of the Code.
"Escrow Deposit Agreement"shall mean the escrow deposit agreement in the form attached
hereto as Annex A , with such changes as shall be approved by the officers of the Issuer executing
such, their execution thereof being conclusive proof of such approval of such changes.
"Federal Securities" shall mean direct obligations of the United States of America and
obligations the principal of and interest on which are fully guaranteed by the United States of
America, none of which permit redemption prior to maturity at the option of the obligor.
"First Supplemental Loan Agreement"means the First Supplemental Loan Agreement dated
as of March 1, 1999 which supplements the Loan Agreement.
"Fiscal Year" shall mean the period commencing on October 1 of each year and continuing
to and including the succeeding September 30.
"Issuer" shall mean the City of Atlantic Beach, Florida.
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• "Issuer's Representative"shall mean the City Manager or such other person designated by the
City Manager.
"Loan Agreement" shall mean that certain Loan Agreement dated as of January 1, 1989
between the Issuer,Sun Bank,National Association and Jackson C.Tuttle,City Manager acting on
behalf of City of Gulf Breeze,Florida as supplemented by the First Supplemental Loan Agreement,
all relating to the 1989 Loan.
"Maximum Bond Service Requirement"for all Bonds or any series of Bonds shall mean,as
of any particular date of calculation and with respect to any period, the amount of principal of and
interest on such Bonds coming due in the then current or any future period in which such sum is the
greatest.
"1989 Loan" shall mean the Issuer's obligations under the Loan Agreement including the
outstanding principal amount of the Issuer's Promissory Note dated January 4, 1989 relating to the
City of Gulf Breeze, Florida Local Government Loan Program Floating Rate Demand Revenue
Bonds, Series 1985B as further described in the Loan Agreement.
"1999 Bonds"shall mean the Capital Improvement Revenue Refunding Bonds, Series 1999
authorized and issued hereunder.
• "Non-Ad Valorem Revenues"shall mean all legally available revenues and taxes(other than
ad valorem taxes)of the Issuer derived from any source and legally available to pay principal of or
interest on the Bonds.
"Pledged Revenues"shall mean(1)the Public Service Taxes,and(2)until otherwise applied
as provided herein,the moneys held in the funds and accounts established herein and the income on
investment thereof
"Public Service Taxes" shall mean the proceeds of tax levied and collected by the Issuer
pursuant to Article II, Sections 20-16 through 20-36 of the Ordinance Code of the Issuer, as
amended,on every purchase of electricity, metered or bottled gas, natural, liquified petroleum gas
or manufactured, No. 1 kerosene,No. 2 and No. 3 fuel oils and local telephone service, within the
corporate limits of the Issuer.
"Registered Owner"or"Bondholder"or any similar term shall mean the registered owner of
a Bond as shown on the registration books of the Registrar.
"Registrar" shall mean the paying agent for the Bonds, as Bond Registrar, or such other
person, firm or corporation as may thereafter be from time to time designated by the Issuer as the
Registrar for the Bonds.
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• "Resolution"shall mean this resolution of the Issuer as hereafter amended and supplemented
from time to time in accordance with the provisions hereof.
"State" shall mean the State of Florida.
Section 3. FINDINGS. It is hereby found, determined and declared that:
(A) The Pledged Revenues are not pledged or encumbered in any manner, except
for the payment of the 1989 Loan now outstanding, all of which will be paid or defeased upon
issuance of the 1999 Bonds pursuant this Resolution;provided,however,that certain obligations will
remain outstanding relating to the 1989 Loan, secured by a lien on and pledge of the Pledged
Revenues junior and subordinate to the lien thereon in favor of the Bonds.
(B) It is necessary and desirable to prepay the 1989 Loan in order to lower debt
service. The amount of 1999 Bonds issued for such purpose will not exceed the estimated amount
needed to prepay the 1989 Loan,which amount shall be obtained from the proceeds derived from the
sale of the 1999 Bonds and,if necessary,from certain other funds available to the Issuer.An amount
sufficient to effect the prepayment of the full principal of and interest on the 1989 Loan will be
deposited in an irrevocable escrow account pursuant to the Escrow Deposit Agreement established
for the holder of the 1989 Loan, and invested in government obligations (as defined in the trust
indenture authorizing the 1989 Loan)or held uninvested.The principal amounts of such government
• obligations will be sufficient to make timely payment of all principal of, interest and prepayment
premiums of the 1989 Loan, together with all costs associated with the acquisition and subsequent
management of the government obligations.
(C) The costs of issuance shall be paid from the proceeds derived from the sale of
the 1999 Bonds.
(D) The principal of and interest on the Bonds and all other payments provided
for in this Resolution shall be payable solely from the Pledged Revenues and Non-Ad Valorem
Revenues as provided herein.The Bonds shall not constitute a general obligation,or a pledge of the
faith,credit or taxing power of the Issuer, the State of Florida, or any political. subdivision thereof,
within the meaning of any constitutional or statutory provisions.Neither the State of Florida,nor any
political subdivision thereof, or the Issuer shall be obligated to pay the principal of the Bonds, the
interest thereon, nor other costs incidental thereto except from the Pledged Revenues and Non-Ad
Valorem Revenues, in the manner provided herein. The Bonds shall not constitute a lien upon any
property of the Issuer, but shall constitute a lien only on the Pledged Revenues in the manner
provided herein.
Section 4. PREPAYMENT OF 1989 LOAN AUTHORIZED. There is hereby
authorized the prepayment of the 1989 Loan.
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• Section 5. THIS INSTRUMENT TO CONSTITUTE A CONTRACT AND
SECURITY AGREEMENT. In consideration of the acceptance of the Bonds authorized to be
issued hereunder by the Bondholders from time to time, this Resolution shall be deemed to be and
shall constitute a contract between the Issuer and such Bondholders and shall constitute a security
agreement for the benefit of the Bondholders. The covenants and agreements herein set forth to be
performed by the Issuer shall be for the equal benefit, protection and security of the Registered
Owners of any and all of the Bonds, all of which shall be of equal rank and without preference,
priority or distinction of any of the Bonds over any other thereof,except as expressly provided therein
and herein.The Bondholders may rely upon the provisions of this Resolution and shall be third party
beneficiaries of this Resolution.
Section 6. AUTHORIZATION OF 1999 BONDS. Subject and pursuant to the
provisions of the this Resolution, the 1999 Bonds are authorized to be issued in one series in the
aggregate principal amount of$1,820,000.
Section 7. DESCRIPTION OF 1999 BONDS. (A)The 1999 Bonds shall be issued in
a single denomination of$1,820,000 and shall be dated their date of issuance and shall bear interest
at the rate of 4.20% per annum, subject to adjustment as follows:
(1) In the event of a change from the current thirty-five percent(35%)rate in the
maximum marginal federal income tax rate applicable to corporations (as currently provided in
• Section 11(b)(1)(D) of the Code), then the interest rate on the 1999 Bonds shall be automatically
adjusted, up or down, by a fraction equal to (1 minus A)/.65, where "A" equals the maximum
marginal corporate income tax rate then in effect.
(2) The interest rate shall be adjusted(retroactively, if necessary) to provide the
Registered Owner with the same after-tax yield on the 1999 Bonds if:
(a) any amendments to existing law,other than a change in the corporate
tax rate, are adopted which adversely affect such after-tax yield:
(b) the 1999 Bonds cease to be "Designated Bonds"; or
(c) there occurs a final determination by the Internal Revenue Service or
a court that interest on the 1999 Bonds is not excluded from gross income for federal income tax
purposes.
Interest shall be payable on June 1, 1999 and on each June 1 and December 1 thereafter.
Interest shall be computed on an actual 365/366 day basis. The principal of the 1999 Bonds shall
be payable in installments on December 1 of the years and in the amounts as follows:
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• Principal Principal
Year Amount Year Amount
1999 $115,086.79 2007 $121,315.37
2000 92,388.59 2008 127,515.22
2001 96,110.09 2009 133,406.26
2002 99,409.21 2010 138,614.32
2003 102,464.00 2011 143,271.12
2004 110,114.14 2012 152,318.07
2005 112,622.70 2013 155,660.87
2006 119,702.85
(B) The interest rate on all Bonds shall never exceed the maximum interest rate
permitted by law.
(C) The Bonds shall be issued in fully registered form. Principal of and interest
on each Bond shall be paid by check or draft mailed to the Registered Owner, at his or her address
as it appears on the Bond Register maintained by the Bond Registrar on the fifteenth (15th) day of
the calendar month prior to each interest payment date (the "Record Date"), irrespective of any
transfer of such 1999 Bond subsequent to such Record Date and prior to such interest payment date,
unless the Issuer shall be in default in payment of interest due on such interest payment date. In the
i event of any such default,such defaulted interest shall be payable to the person in whose name such
1999 Bond is registered at the close of business on a special record date for the payment of defaulted
interest as established by notice mailed by the Registrar to the Registered Owners of such 1999 Bonds
not less than fifteen days preceding such special record date. Such notice shall be mailed to the
Registered Owner in whose name each 1999 Bond is registered at the close of business on the fifth
(5th)day preceding the date of mailing.Notwithstanding the foregoing,principal and interest shall
be paid by wire transfer to the domestic account of the Registered Owner,upon written request and
furnishing of wire transfer instructions to the Issuer.All payments shall be made in accordance with
and pursuant to the terms of this Resolution.The 1999 Bonds shall be payable in any coin or currency
of the United States of America which, at the time of payment, is legal tender for the payment of
public or private debts.
(C) If the date for payment of the principal of,premium,if any,or interest on the
1999 Bonds shall be a Saturday,Sunday,legal holiday or a date on which the banking institutions in
the city where the office of the paying agent is located are authorized by law or executive order to
close, then the date for such payment shall be the next succeeding day which is not a Saturday,
Sunday or legal holiday or a day on which such banking institutions are authorized to close;provided,
that interest shall accrue to the date of payment.
Section 8. EXECUTION OF BONDS. The Bonds shall be executed in the name of the
Issuer by the Mayor and its official seal or a facsimile thereof shall be affixed thereto or reproduced
thereon and attested by the City Clerk.The Certificate of Authentication of the Bond Registrar shall
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• appear on the Bonds, and no Bond shall be valid or obligatory for any purpose or be entitled to any
security or benefit under this Resolution unless such certificate shall have been duly executed on such
Bond. In case any officer whose signature shall appear on any Bond shall cease to be such officer
before the delivery of such Bond,such signature or facsimile shall nevertheless be valid and sufficient
for all purposes the same as if he had remained in office until such delivery.Any Bond may be signed
and sealed on behalf of the Issuer by such person who at the actual time of the execution of such
Bond shall hold the proper office with the Issuer,although at the date of adoption of this Resolution
such person may not have held such office or may not have been so authorized.
Section 9. NEGOTIABILITY AND REGISTRATION. Subject to the provisions
hereof respecting registration and transfer,the Bonds issued hereunder shall be and shall have all of
the qualities and incidents of negotiable instruments under the laws of the State of Florida,and each
successive Bondholder,in accepting any of the Bonds,shall be conclusively deemed to have agreed
that such Bonds shall be and have all of the qualities and incidents of negotiable instruments under
the Uniform Commercial Code -Investment Securities of the State of Florida.
Section 10. REGISTRATION,EXCHANGE AND TRANSFER. There shall be a Bond
Registrar for the Bonds.The Bond Registrar shall be the City Clerk of the Issuer or such other person
as the Issuer may from time to time designate. The Bond Registrar shall maintain the registration
books of the Issuer and be responsible for the transfer and exchange of the Bonds. The Bond
Registrar shall maintain the books for the registration of the transfer and exchange of the Bonds in
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compliance with the Florida Registered Public Obligations Act and the system of registration as
established by the Issuer pursuant thereto. Bonds may be transferred upon the registration books,
upon delivery to the Registrar, together with written instructions as to the details of the transfer of
such Bonds,along with the social security number or federal employer identification number of such
transferee and, if such transferee is a trust, the name and social security or federal employer
identification numbers of the settlor and beneficiaries of the trust,the date of the trust and the name
of the trustee. No transfer of any Bond shall be effective until entered on the registration books
maintained by the Bond Registrar and until the transferee (which must be an "accredited investor"
within the meaning of Rule 501(a) of Regulation D promulgated under the Securities Act of 1933,
as amended)shall have delivered to the Bond Registrar an investment letter in the form and substance
of the investment letter delivered by the Bank upon the issuance of the 1999 Bonds.
Upon surrender for transfer or exchange of any Bond,the Issuer shall execute and the Bond
Registrar shall authenticate and deliver in the name of the Registered Owner or the transferee or
transferees, as the case may be, a new fully registered Bond or Bonds of authorized denominations
of the same maturity and interest rate for the aggregate principal amount which the Registered Owner
is entitled to receive at the earliest practicable time in accordance with the provisions of this
Resolution. The Issuer or the Bond Registrar may charge the owner of such Bond for every such
transfer or exchange an amount sufficient to reimburse them for any tax,fee,or other governmental
charge required to be paid with respect to such transfer, and may require that such charge be paid
before any such new Bond shall be delivered.
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• All Bonds presented for transfer, exchange, redemption or payment (if so required by the
Bond Registrar), shall be accompanied by a written instrument or instruments of transfer or
authorization for exchange,in form and with guaranty of signature satisfactory to the Bond Registrar,
duly executed by the Registered Owner or by his duly authorized attorney in fact or legal
representative.
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All Bonds delivered upon transfer or exchange shall bear interest from the preceding interest
payment date so that neither gain nor loss in interest shall result from the transfer or exchange.New
Bonds delivered upon any transfer or exchange shall be valid obligations of the Issuer,evidencing the
same debt as the Bond surrendered,shall be secured by this Resolution and shall be entitled to all of
the security and the benefits hereof to the same extent as the Bonds surrendered.
The Issuer and the Bond Registrar shall treat the Registered Owner of any Bond as the
absolute owner thereof for all purposes,whether or not such Bond shall be overdue,and shall not be
bound by any notice to the contrary.
Section 11. BONDS MUTILATED,DESTROYED,STOLEN OR LOST. In case any
Bond shall become mutilated,or be destroyed,stolen or lost,the Issuer may in its discretion issue and
deliver a new Bond of like tenor as the Bond if any, so mutilated, destroyed, stolen or lost, in
exchange and substitution for such mutilated Bond upon surrender and cancellation of such mutilated
Bond or in lieu of and substitution for the Bond destroyed, stolen or lost. and upon the Registered
• Owner's furnishing the Issuer proof of his ownership thereof and satisfactory indemnity and
complying with such other reasonable regulations and conditions as the Issuer may prescribe and
paying such expenses as the Issuer may incur. All Bonds so surrendered shall be canceled by the
Registrar for the Bonds. If any of the Bonds shall have matured or be about to mature, instead of
issuing a substitute Bond,the Issuer may pay the same,upon being indemnified as aforesaid,and if
such Bonds be lost, stolen or destroyed, without surrender thereof.
Any such duplicate Bonds issued pursuant to this Section shall constitute original,additional
contractual obligations on the part of the Issuer whether or not the lost, stolen or destroyed Bonds
be at any time found by anyone,and such duplicate Bonds shall be entitled to equal and proportionate
benefits and rights as to lien on the source and security for payment from the funds, as hereinafter
pledged, to the same extent as all other Bonds issued hereunder.
Section 12. PROVISIONS FOR PREPAYMENT OF BONDS.
(A) Prepayment. The 1999 Bonds may be prepaid prior to maturity in whole or
in part on any date at a prepayment price of par plus accrued interest to the date of prepayment and
without premium or penalty.
(B) Notice of Prepayment.Notice of any prepayment,identifying the Bonds or
portions thereof called for redemption shall be mailed or otherwise delivered by the Registrar,first
• class mail,postage prepaid,to all Registered Owners of the Bonds to be prepaid at least fifteen(15)
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0 days prior to the date fixed for prepayment at their addresses as they appear on the registration books
to be maintained in accordance with the provisions hereof.
(C) Effect of Prepayment.Notice having been mailed and filed in the manner and
under the conditions herein above provided,the Bonds or portions of Bonds so called for prepayment
shall,on the date designated in such notice,become and be due and payable at the redemption price
provided for prepayment of such Bonds or portions of Bonds on such date. On the date so designated
for prepayment,notice having been mailed and moneys for payment of the prepayment price being
held in separate accounts in trust for the Registered Owners of the Bonds or portions thereof to be
prepaid, all as provided in this Resolution, interest on such Bonds or portions of Bonds shall cease
to be entitled to any lien,benefit or security under this Resolution,and the Registered Owners of such
Bonds or portions of Bonds shall have no rights in respect thereof except to receive prepayment
thereof.
Section 13. FORM OF BONDS. The text of the Bonds and the certificate of
authentication shall be in substantially the form attached hereto as Annex B with such omissions,
insertions and variations as may be necessary and desirable and authorized and permitted by this
Resolution or by any subsequent resolution or resolution adopted prior to the issuance thereof.
Section 14. APPLICATION OF 1999 BOND PROCEEDS. All moneys received from
the sale of the 1999 Bonds shall be applied by the Issuer as follows:
iA.$1,804,366.25 shall be deposited with the escrow agent under the Escrow Deposit
Agreement for the refunding of the 1989 Loan. Such funds shall be kept separate and apart from all
other funds of the Issuer and the moneys on deposit therein shall be withdrawn,used and applied by
the Escrow Agent solely for the purposes set forth in the Escrow Deposit Agreement.
The Registered Owners of the 1999 Bonds shall have no responsibility for the use of
the proceeds of the 1999 Bonds, and the use of such 1999 Bond proceeds by the Issuer shall in no
way affect the rights of such Registered Owners.
B. The balance of the monies shall be deposited with the Issuer to pay costs of
issuance of the 1999 Bonds. Any balance remaining shall be deposited in the Sinking Fund and
applied to pay interest on the 1999 Bonds. Costs of issuance shall be paid by the Issuer as set out
on Annex D hereto which payment is hereby approved.
Section 15. SPECIAL OBLIGATIONS OF ISSUER.
(A) The Bonds shall be special obligations of the Issuer, payable solely from the
Pledged Revenues and Non-Ad Valorem Revenues as herein provided.The Bonds do not constitute
a general obligation or a pledge of the faith,credit or taxing power of the Issuer,the State of Florida
or any political subdivision thereof, within the meaning of any constitutional or statutory provision
or limitation.Neither the State of Florida nor any political subdivision thereof nor the Issuer shall be
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• obligated to pay the principal of the Bonds,the interest thereon or other costs incident thereto except
from the Pledged Revenues and Non-Ad Valorem Revenues,only in the manner provided herein.The
acceptance of the Bonds by the Registered Owners from time to time thereof shall be deemed an
agreement between the Issuer and such Registered Owners that the Bonds and the indebtedness
evidenced thereby shall not constitute a lien upon any property of the Issuer,but shall constitute a lien
only on the Pledged Revenues, in the manner hereinafter provided.
(B) The payment of the principal of and the interest on the Bonds shall be secured
forthwith equally and ratably by an irrevocable lien on the Pledged Revenues,as defined herein,and
the Issuer does hereby irrevocably pledge such Pledged Revenues to the payment of the principal of
and the interest on the Bonds.
Section 16. COVENANTS OF THE ISSUER. For as long as any of the principal of and
interest on any of the Bonds shall be outstanding and unpaid,or until payment has been provided for
as herein permitted, or until there shall have been set apart in the Sinking Fund, herein established,
including all accounts therein, a sum sufficient to pay when due the entire principal of the Bonds
remaining unpaid,together with interest accrued and to accrue thereon,the Issuer covenants with the
Registered Owners of any and all Bonds as follows:
(A) FLOW OF FUNDS.Immediately upon receipt thereof,the Issuer shall deposit
all Public Service Taxes into the Public Service Taxes Revenue Fund created hereby. All money in
0 the Public Service Taxes Revenue Fund shall be transferred on a monthly basis to the Sinking Fund
in an amount sufficient to pay one-twelfth (1/12th)of the amount of principal and one-sixth (1/6th)
of the amount of interest coming due on the next ensuing Interest Payment Date, and the balance of
money in the Public Service Taxes Revenue Fund may, on a monthly basis, be transferred to such
other fund as the Issuer may designate and may be used for any lawful purpose. Whenever all
payments due in any Fiscal Year are provided for in the Sinking Fund under this Resolution, the
money remaining in the Public Service Taxes Revenue Fund may be used for the balance of such
Fiscal Year for any lawful purpose.
(B) SINKING FUND.There is hereby created and established a separate fund to
be designated "Public Services Taxes Sinking Fund" (the "Sinking Fund"). On each interest and
principal payment date following the issuance of any Bonds,the Issuer shall pay the principal of and
interest due on the Bonds on such date from the moneys in the Sinking Fund.
(C) INVESTMENTS AND ACCOUNTING.
(1) Monies on deposit in the Sinking Fund and the Public Service Taxes
Revenue Fund shall be invested and reinvested only in Authorized Investments provided such
investments either mature or are redeemable at not less than par at the option of the Issuer not later
than the dates on which the moneys on deposit therein will be needed for the purpose of such Fund.
All income on such investments shall remain in the Sinking Fund and Public Service Taxes Revenue
• Fund, respectively.
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• (2) The cash required to be accounted for in each of the foregoing funds
and accounts established herein may be deposited in a single bank account, provided that adequate
accounting records are maintained to reflect and control the restricted allocation of the cash on
deposit therein for the various purposes of such funds as herein provided.
(3) The designation and establishment of the various funds and accounts
in and by this Resolution shall not be construed to require the establishment of any completely
independent, self-balancing funds as such term is commonly defined and used in governmental
accounting, but rather is intended solely to constitute an earmarking of certain revenues and assets
of the Issuer for certain purposes and to establish certain priorities for application of such revenues
and assets as herein provided.
(D) ACCOUNTING AND FINANCIAL RECORDS.
(1) The Issuer will provide to the Registered Owners of the Bonds (a)
annual financial statements of the Issuer prepared by an accounting firm in accordance with generally
accepted accounting principles by March 31 (or if such day is not a business day, the next business
day thereafter) following the end of each Fiscal Year and accompanied by an opinion of such
accounting firm containing only such qualifications as are acceptable to the Registered Owner of the
1999 Bonds in the exercise of its reasonable discretion,which include specifically all receipts of and
application of Pledged Revenues hereunder,and(b)a copy of the Issuer's annual budget,within thirty
0 (30)days after its adoption. The Bank has approved the language to be included in the Issuer's audit
opinion for the Fiscal Year ended September 30, 1998 regarding "Year 2000" compliance.
(2) The Issuer will maintain a system of accounting in accordance with
generally accepted accounting principles, and will obtain a certificate of the accountants preparing
such statements addressed to the Issuer's finance officer stating that either (i) during the course of
their preparation of the financial statements of the Issuer nothing came to their attention which led
them to believe that the Issuer was in default under this Resolution, or (ii) the nature and extent of
any matter which led them to believe that such default had occurred.
(3) The Issuer shall also provide to the Registered Owners of the Bonds
such other financial information as they shall reasonably request from time to time to be submitted
to the Registered Owners within a reasonable time period.
(E) NOTICE OF DEFAULT AND NOTICES UNDER AGREEMENTS. The
Issuer will immediately give the Registered Owners of the Bonds written notice of any Event of
Default or an event which with the passage of time would become an Event of Default under this
Resolution or the Bonds of which it shall have actual knowledge or written notice.
(F) EXAMINATION OF BOOKS AND RECORDS.The Registered Owners of
the Bonds and their duly authorized agents shall also be permitted,at all reasonable times,to examine
the books and records of the Issuer.
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• if: (G) EVENTS OF DEFAULT.It shall be an Event of Default under this Resolution
(1) the Issuer shall fail to pay maturing principal and interest on the Bonds
when due;
(2) the Issuer shall fail to deposit into the Public Service Taxes Revenue
Fund or Sinking Fund any amount required on the due date thereof or within two business days
thereafter;
(3) the Issuer shall fall to comply with any other covenant made in this
Resolution,which failure shall continue for more than thirty(30)days after receiving notice thereof
from any Registered Owner of the Bonds; provided that the Issuer shall be given an additional 30
days within which to comply with such covenant if it is diligently endeavoring to so comply;
(4) The maturity of any other obligations secured by a lien upon the
Pledged Revenues shall have been accelerated following an event of default related thereto; or
(5) There shall occur the filing by the Issuer of a voluntary petition in
bankruptcy, or the commission by the Issuer of any act of bankruptcy, or the adjudication of the
Issuer as a bankrupt, or the assignment by the Issuer for the benefit of its creditors, or the entry by
• the Issuer into an agreement of composition with its creditors, or the approval by a court of
competent jurisdiction of a petition applicable to the Issuer in any proceeding for its reorganization,
instituted under the provisions of the Federal Bankruptcy Code,as amended,or any similar act in any
jurisdiction which may now be in effect or hereinafter amended.
(H) REMEDIES.
(1) A Registered Owner of Bonds issued under the provision hereof or any
trustee acting for the Registered Owners of such Bonds: (a) may either at law or in equity, by suit,
action, mandamus or other proceedings in any court of competent jurisdiction, protect and enforce
any and all rights,including the right to the appointment of a receiver,existing under the laws of the
State of Florida,or granted and contained herein,(b)may enforce and compel the performance of all
duties required herein or by any applicable statutes to be performed by the Issuer or by an officer
thereof,and(c)if any Event of Default has occurred and is continuing may by notice in writing to the
Issuer, declare the principal of all Bonds then outstanding to be immediately due and payable, and
upon such declaration the principal of all Bonds,together with interest accrued thereon, to the date
of such declaration, shall become due and payable immediately at the place of payment provided
therein, anything in this Resolution or in the Bonds to the contrary notwithstanding.
(2) If after the principal of the Bonds has been so declared to be due and
payable, (i) all arrears of interest upon the Bonds (and interest on overdue installments of interest)
• and overdue installments of principal, if any, are paid by the Issuer, (ii) the Issuer also performs all
12
•
• other things in respect to which it may have been in default hereunder and(iii) the Issuer pays the
reasonable charges of the Registered Owners,including reasonable attorneys'fees,then,and in every
such case,the Registered Owners of the Bonds,by written notice to the Issuer,may,but shall not be
required to,annul such declaration and its consequences and such annulment shall be binding upon
the Registered Owners of the Bonds;but no such annulment shall extend to or affect any subsequent
default or impair any right or remedy consequent thereon.
(3) Nothing herein,however,shall be construed to grant to any Registered
Owner of the Bonds any lien on the assets of the Issuer, except the Pledged Revenues.
(1) ISSUANCE OF OTHER OBLIGATIONS. (1)Except for the 1999 Bonds,
the Issuer will not issue any other obligations payable from the Pledged Revenues nor voluntarily
create or cause to be created any debt,lien,pledge,assignment,encumbrance or other charge having
priority to or being on a parity with the lien of the 1999 Bonds and the interest thereon upon Pledged
Revenues, except under the conditions and in the manner provided in paragraph (2) below. Any
obligations issued by the Issuer other than the 1999 Bonds herein authorized and Additional Parity
Bonds provided for in paragraph(2)below,payable from Pledged Revenues,shall contain an express
statement that such obligations are junior and subordinate in all respects to the 1999 Bonds,as to lien
on and source and security for payment from Pledged Revenues.
(2) Additional Parity Bonds,payable on a parity from the Pledged Revenues with
• the 1999 Bonds, may be issued after the issuance of any 1999 Bonds, for the construction and
acquisition of any capital project or other lawful public purpose or for refunding purposes and upon
the conditions and in the manner herein provided:
(i) There shall have been obtained and filed with the Issuer a certificate
of an independent certified public accountant or firm of such accountants of suitable experience and
responsibility:(a)stating that the books and records of the Issuer relating to the collection and receipt
and application of Pledged Revenues have been audited by it for the last Fiscal Year ended
immediately preceding the date of delivery of the proposed Additional Parity Bonds,or for any twelve
(12) consecutive months period out of the twenty-four (24) consecutive months immediately
preceding the date of sale of the proposed Additional Parity Bonds, (b)setting forth the amount of
Pledged Revenues received by the Issuer for the audited period referred to in(a)above,with respect
to which such certificate is made;(c)stating that the Pledged Revenues described in(b)above,equal
at least 1.25 times the Maximum Bond Service Requirements coming due in any future Fiscal Year
on all Bonds then outstanding and on the proposed Additional Parity Bonds with respect to which
such certificate is made.
(ii) Each resolution or resolution authorizing the issuance of Additional
Parity Bonds shall recite that all of the covenants herein contained will be applicable to such
Additional Parity Bonds.
•
13
•
•
• (iii) The Issuer shall not be in default in performing any of the covenants
and obligations assumed hereunder, and all payments herein required to have been made into the
accounts and funds, as provided hereunder, shall have been made to the full extent required.
(iv) Refunding bonds for the purpose of refunding all of the then
outstanding Bonds may be issued without compliance with any of the above paragraphs(i)through
(iii) of this paragraph (2). Refunding bonds for the purpose of refunding all or part of any series of
the then outstanding Bonds, but less than all then outstanding Bonds, may be issued without
compliance with paragraphs (i) and (iii), above, provided that the annual principal and interest
payments on all Bonds outstanding after issuance of the refunding bonds,in each Fiscal Year in which
any principal of or interest on the Bonds outstanding immediately prior to issuance of the refunding
bonds is due or subject to mandatory redemption, is equal to or less than the annual principal and
interest payments in each such corresponding Fiscal Year prior to issuance of such refunding bonds.
(J) COMPLIANCE WITH CODE AND LAW. The Issuer will comply with all
applicable provisions of the Code in order to ensure that the interest on the Bonds will be excluded
from gross income from federal income tax purposes and that the Bonds will not be or become
"private activity bonds"under the Code,and that any Bonds which are Designated Bonds retain their
status as "qualified tax-exempt obligations" under Section 265 of the Code.
(K) NO IMPAIRMENT. The Issuer will take all action necessary to entitle the
• Issuer to receive the Pledged Revenues,and will not take any action which will impair or adversely
affect the Issuer's right to receive an part of the Pledged Revenues or impair or adversely affect the
pledge of the Pledged Revenues or the rights of the Registered Owners of the Bonds.The Issuer will
diligently enforce collection of its Public Service Taxes Revenues in each Fiscal Year. However,
nothing in this subsection(K)shall be construed to require the Issuer to levy ad valorem taxes in any
Fiscal Year.
(L) TAX COMPLIANCE. The Issuer will take all actions necessary (i) to •
maintain the exclusion from gross income for federal income tax purposes of interest on the 1999
Bonds and (ii) to maintain the designation of deductibility of interest expense incurred by the
Registered Owners of the 1999 Bonds to carry the 1999 Bonds as"qualified tax-exempt obligations"
pursuant to Section 265(b)(3)(B) of the Code.
(M) NON-AD VALOREM REVENUES.(1)Whenever the Pledged Revenues are
insufficient to pay all principal of and interest on the Bonds when due, the Issuer covenants and
agrees to appropriate in its annual budget,by amendment,if required,and to pay when due under this
Resolution as promptly as money becomes available directly into the Sinking Fund, amounts of
Non-Ad Valorem Revenues of the Issuer sufficient to pay the principal of and interest on the Bonds
when due. Such covenant and agreement on the part of the Issuer to budget and appropriate such
amounts of Non-Ad Valorem Revenues shall be cumulative, and shall continue until such Non-Ad
Valorem Revenues in amounts sufficient to pay the principal of and interest on the Bonds when due
shall have been budgeted, appropriated and actually paid into the Sinking Fund.The Issuer further
III
14
•
• acknowledges and agrees that the Resolution shall be deemed to be adopted for the benefit of the
Registered Owners of any of the Bonds and that the obligations of the Issuer to include the amount
of any deficiency in Pledged Revenues in each of its annual budgets and to pay such deficiencies from
Non-Ad Valorem Revenues may be enforced in a court of competent jurisdiction in accordance with
the remedies set forth herein.
(2) Such covenant to budget and appropriate does not create any lien upon
or pledge of such Non-Ad Valorem Revenues, nor does it preclude the Issuer from pledging in the
future its Non-Ad Valorem Revenues,nor does it require the Issuer to levy and collect any particular
Non-Ad Valorem Revenues, nor does it give the Registered Owners a prior claim on the Non-Ad
Valorem Revenues as opposed to claims of general creditors of the Issuer. Such covenant to budget
and appropriate Non-Ad Valorem Revenues is subject in all respects to the payment of obligations
secured by a pledge of such Non-Ad Valorem Revenues heretofore or hereafter entered into
(including the payment of debt service on bonds and other debt instruments). However,the covenant
to budget and appropriate in its general annual budget for the purposes and in the manner stated
herein shall have the effect of making available for the payment of the principal of and interest on the
1999 Bonds,in the manner described herein,sufficient amounts of Non-Ad Valorem Revenues and
placing on the Issuer a positive duty to appropriate and budget,by amendment if necessary,amounts
sufficient to meet its obligations hereunder; subject, however, in all respects to the restrictions of
Section 166.241, Florida Statutes, which requires a balanced budget and which prohibits a
municipality from expending or contracting for the expenditure in any fiscal year more than the
• amount budgeted in each fund's budget;and subject,further,to the payment of services and programs
which are for essential public purposes affecting the health,welfare and safety of the inhabitants of
the Issuer or which are legally mandated by applicable law.
(3) Notwithstanding the foregoing provisions of this Subsection(M),the
Issuer reserves the right to discontinue or reduce the level of any of its activities which generate user
services charges or regulatory fees,and the Issuer shall never be required or compelled by or for the
benefit of the Registered Owners of the Bonds to increase, or maintain at any particular level, any
user service charges or regulatory fees.
Section 17. RIGHTS OF BONDHOLDERS. The Registered Owners of the Bonds shall
have no responsibility for the application and use of the proceeds received from the sale thereof,and
the application and use of such proceeds by the Issuer shall in no way affect the rights of the
Bondholders. The Issuer shall be irrevocably obligated, upon receipt thereof, to use the Pledged
Revenues to pay the principal of and interest on the Bonds and to make all payments provided for
herein,notwithstanding any failure of the Issuer to apply any Bond proceeds in the manner provided
herein.
Section 18. DEFEASANCE. If,at any time,the Issuer shall have paid,or shall have made
provision for payment of,the principal and interest with respect to any of the Bonds,then,and in that
event,the covenants,and pledges,and lien on the Pledged Revenues in favor of the Registered Owner
or Owners thereof, as provided in this Resolution shall be no longer in effect. For purposes of the
•
15
• preceding sentence, deposit of Federal Securities in irrevocable trust with a banking institution or
trust company, for the sole benefit of the Bondholders, in respect to which such Federal Securities,
the principal and interest received will be sufficient to make timely payment of the unpaid principal
and interest on the Bonds,as shown by a written verification report by an independent certified public
accountant.
Section 19. MODIFICATION OR AMENDMENT. No modification or amendment
of this Resolution or of any resolution amendatory hereof or supplemental hereto, may be made
without the consent in writing of the Registered Owners of all the Bonds. Any modification or
amendment hereto shall not be effective until the Registered Owners of the Bonds have received an
opinion of nationally recognized bond counsel stating that the proposed amendment will not adversely
affect the exclusion from gross income of interest of the Bonds or other tax-favored status of the
Bonds.
Section 20. SEVERABILITY. If any one or more of the covenants, agreements or
provisions of this Resolution shall be held contrary to any express provision of law or contrary to the
policy of express law,though not expressly prohibited,or against public policy,or shall for any reason
whatsoever be held invalid,then such covenants,agreements or provisions shall be null and void and
shall be deemed separate from the remaining covenants, agreements or provisions, and in no way
affect the validity of all the other provisions of this Resolution or of the Bonds issued hereunder.
• Section 21. SALE OF BONDS.
(A) It is hereby found, determined and declared, that in accordance with the
provisions of Part III, Chapter 218, Florida Statutes, a negotiated sale of the Bonds is in the best
interest of the Issuer because of the flexibility available in structuring the Bonds and their terms.
(B) The Issuer has solicited proposals for purchase of the 1999 Bonds from area
commercial banks pursuant to a Request for Proposal. The proposal of SunTrust Bank, North
Florida,National Association(the"Bank")is the proposal providing the Issuer the lowest interest rate
on the 1999 Bonds. The City Manager is authorized to execute and return the commitment of the
Bank.
(C) The Bonds are awarded to the Bank at the purchase price of par and upon the
terms and conditions set forth herein.
Section 22. ESCROW DEPOSIT AGREEMENT AND FIRST SUPPLEMENTAL
LOAN AGREEMENT. The Mayor and City Clerk are hereby authorized to execute and deliver
the Escrow Deposit Agreement and the First Supplemental Loan Agreement in the form attached
hereto as Annex C, with such changes as shall be approved by the officers of the Issuer executing
such, their execution thereof being conclusive proof of such approval of such changes.
•
16
• Section 23. NECESSARY ACTION. The proper officers of the Issuer are authorized
and directed to execute and deliver the Bonds to the Bank upon payment of the purchase price
without further authority from the City Commission.The Mayor and City Clerk are designated as the
agents of the Issuer in connection with the issuance and delivery of the Bonds and are authorized and
empowered to take all actions and steps to execute and deliver any and all instruments,documents
or contracts on behalf of the Issuer which are necessary or desirable in connection with the execution
and delivery of the Bonds,including,but not limited to,the Escrow Deposit Agreement,and which
are not inconsistent with the terms and provisions of this Resolution.
Section 24. QUALIFIED TAX-EXEMPT OBLIGATIONS. The Issuer hereby
represents and finds that it reasonably anticipates not more than $10,000,000 of tax-exempt
obligations(other than certain private activity bonds)will be issued by the Issuer and its subordinate
governmental entities in calendar year 1999. The Issuer hereby directs its Mayor to recertify these
representations upon issuance of the 1999 Bonds, and the 1999 Bonds are hereby designated as a
"qualified tax-exempt obligation" under Section 265(b)(3) of the Code, and shall be "Designated
Bonds" under this Resolution.
Section 25. WAIVER OF JURY TRIAL. With respect to any suit or action between the
Issuer and the Registered Owner relating to the 1999 Bonds,or this Resolution,or any other aspect
of the transaction between the Issuer and the initial Registered Owner,the Issuer and the Registered
Owner each expressly waives any right to a jury trial,and agrees that the exclusive venue for any such
0 suit or action shall be Duval County,Florida.
•
17
• Section 26. EFFECTIVE DATE. This Resolution shall become effective immediately
upon its enactment.
Adopted by the City Commission this 8th day of March, 1999.
/ e.
-"Il.4 --:Aa_._' `.....,6a..��.I.ti ' 4
Suzanne Shaughnessy, /
Mayor/Presiding Offi -
Approved as to form and correctness:
/ /"."
Ala9%C.C. Jens• ,, Esquire
Ci0 Attorn-y
ATTEST:
410
/ D�
Ma een King, CM
2f
City Clerk
•
18
• ANNEX A
Form of Escrow Deposit Agreement
•
•
A4
Draft of March 2 , 1999
4110
ESCROW DEPOSIT AGREEMENT
This ESCROW DEPOSIT AGREEMENT, dated as of March 1, 1999 by
and between the City of Atlantic Beach, Florida, a municipal
corporation of the State of Florida (the " Issuer" ) and SunTrust
Bank, Central Florida, National Association, a national banking
association, as Escrow Agent (the "Escrow Agent" ) ;
WITNESSET H:
WHEREAS, the Issuer has previously authorized and issued
obligations of the Issuer as hereinafter set forth and defined
herein as the "Refunded Bonds" ;
WHEREAS, the Issuer has determined to provide for prepayment
of the Refunded Bonds on June 1, 1999 by depositing with the Escrow
Agent pursuant to the provisions hereof, cash and Escrow
Securities, the principal of and interest on which will be at least
equal to the Aggregate Debt Service; and
WHEREAS, in order to obtain the funds needed for such purpose,
the Issuer has authorized and is, concurrently with the delivery of
• this Agreement, issuing certain revenue bonds more fully described
herein; and
WHEREAS, the Issuer has determined that the amount to be on
deposit from time to time in the Escrow Account, as defined herein,
will be sufficient to pay the Aggregate Debt Service; and
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the Issuer and the Escrow Agent agree
as follows :
Section 1 . Definitions . As used herein, the following terms
mean:
(a) "Aggregate Debt Service" means the prepayment
price of the Refunded Bonds assuming the prepayment date is June 1,
1999 .
(b) "Agreement" means this Escrow Deposit Agreement .
(c) "Escrow Account" means the account established and
held by the Escrow Agent pursuant to this Agreement, in which cash
and investments will be held for payment of the Refunded Bonds .
(d) "Escrow Agent" means SunTrust Bank, Central Florida,
National Association.
• (e) "Escrow Requirement" means $1, 804, 366 . 25 which will
be sufficient to pay the Aggregate Debt Service.
•
(f) "Escrow Securities" means direct non-callable
410
obligations of, or non-callable obligations the timely payment of
the principal and interest on which are unconditionally guaranteed
by, the United States of America or any open-end or closed-end
management-type investment company or investment trust registered
under the Investment Company Act of 1940 the portfolio of which is
limited to the foregoing investments .
(g) "First Supplemental Loan Agreement" means that
certain First Supplemental Loan Agreement dated as of March 1, 1999
between SunTrust Bank, Central Florida, National Association, as
trustee, Lane Gilchrist, Mayor, as administrator acting on behalf
of the City of Gulf Breeze, Florida and the Issuer.
(h) "Issuer" means the City of Atlantic Beach, Florida,
a municipal corporation of the State of Florida .
(i) "Loan Agreement" means that certain Loan Agreement
dated as of January 1, 1989 between Sun Bank, National Association,
as trustee, Jackson C. Tuttle, City Manager acting as administrator
and the Issuer as amended by the First Supplemental Loan Agreement,
relating to the City of Gulf Breeze, Florida Local Government Loan
Program $2 , 160, 000 Water and Sewer System Improvement Project and
Streets and Drainage Improvement Project .
(j ) "1999 Bonds" means the Issuer ' s $1, 820, 000 Capital
S
Improvement Revenue Refunding Bonds, Series 1999, authorized by the
Resolution, as herein defined.
(k) "Non-Asset Bond Amount" has the meaning ascribed to
that term in the First Supplemental Loan Agreement .
(1) "Refunded Bonds" means the Issuer ' s Promissory Note
dated January 4, 1989 in the original principal sum of $2 , 160, 000
issued pursuant to the Loan Agreement .
(m) "Resolution" means the resolution, duly adopted by
the Issuer on March 8, 1999 , as amended and supplemented from time
to time, authorizing the 1999 Bonds and this Agreement .
(n) "Trustee" shall mean SunTrust Bank, Central Florida,
National Association, the Trustee relating to the Refunded Bonds .
Section 2 . Deposit of Funds . The Issuer hereby deposits
the amount of the Escrow Requirement with the Escrow Agent in
immediately available funds, to be held in irrevocable escrow by
the Escrow Agent and applied solely as provided in this Agreement .
The Issuer represents that such funds are all derived from the net
proceeds of the 1999 Bonds . The Escrow Agent acknowledges that it
is receiving and holding all funds under this Agreement pursuant to
the indenture under which the bonds to which the Loan Agreement
4111 relates were issued.
2
4110Section 3 . Use and Investment of Funds . The Escrow
Agent acknowledges receipt of the sum described in Section 2 and
agrees :
(a) to hold the funds in irrevocable escrow during the
term of this Agreement,
(b) to immediately invest $1, 804, 366 . 25 of such funds by
the purchase of the Escrow Securities set forth on Schedule A
attached hereto,
(c) to deposit in the Escrow Account, as received, the
receipts of maturing principal of and interest on the Escrow
Securities in the Escrow Account .
Section 4 . Payment of Refunded Bonds and Expenses .
(a) Refunded Bonds . The Issuer has previously exercised
its option to prepay the Refunded Bonds prior to the maturity
thereon on June 1, 1999 . On June 1, 1999 , the date on which
principal and interest is due to be paid on the Refunded Bonds, the
Escrow Agent shall pay to the Trustee solely from the cash on hand
in the Escrow Account, a sum sufficient to pay that portion of the
debt service for the Refunded Bonds coming due on such date.
(b) Surplus . On June 1, 1999 , after making the payments
• from the Escrow Account described in Subsection 4 (a) , and after
paying the Non-Asset Bond Amount, if any, the Escrow Agent shall
pay to the Issuer any remaining cash in the Escrow Account, to be
used for deposit into the Sinking Fund established by Resolution
No. 99-4 of the Issuer for the payment of interest on the 1999
Bonds .
(c) Priority of Payments . The holder of the Refunded
Bonds shall have an express first lien on the funds and Escrow
Securities in the Escrow Account until such funds and Escrow
Securities are used and applied as provided in this Agreement . If
the cash on hand in the Escrow Account is ever insufficient to make
the payments required under Section 4 , all of the payments required
under Subsection 4 (a) shall be made when due before any payments
shall be made under Subsection 4 (b) .
(d) Non-Asset Bond Amount . To the extent there is a Non-
Asset Bond Amount due in excess of surplus funds described in
subsection 4 (b) , the Issuer hereby agrees to pay such Non-Asset
Bond Amount to the Trustee.
Section 5 . Redemption of Refunded Bonds . The Issuer
has provided a copy of the prepayment notice and the Resolution to
410 the Trustee.
3
Section 6 . Reinvestment . The Escrow Agent shall invest
IIIIany funds held under this Agreement in direct obligations of the
United States Treasury.
Section 7 . Indemnity. To the extent permitted by law,
the Issuer hereby assumes liability for, and hereby agrees (whether
or not any of the transactions contemplated hereby are consummated)
to indemnify, protect, save and keep harmless the Escrow Agent and
its respective successors, assigns, agents and servants, from and
against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs, expenses and dis-
bursements (including legal fees and disbursements) of whatsoever
kind and nature which may be imposed on, incurred by, or asserted
against the Escrow Agent, at any time, (whether or not also
indemnified against the same by the Issuer or any other person
under any other agreement or instrument) and in any way relating to
or arising out of the execution and delivery of this Agreement, the
establishment of the Escrow Account, established hereunder, the
acceptance of the funds and securities deposited therein, the
purchase of the Escrow Securities, the retention of the Escrow
Securities or the proceeds thereof and any payment, transfer or
other application of funds or securities by the Escrow Agent in
accordance with the provisions of this Agreement; provided,
however, that the Issuer shall not be required to indemnify the
Escrow Agent against its own negligence or willful misconduct . In
no event shall the Issuer or Escrow Agent be liable to any person
III by reason of the transactions contemplated hereby other than to
each other as set forth in this Section. The indemnities contained
in this Section shall survive the termination of this Agreement .
Section 8 . Responsibilities of Escrow Agent . The Escrow
Agent and its respective successors, assigns, agents and servants
shall not be held to any personal liability whatsoever, in tort,
contract, or otherwise, in connection with the execution and
delivery of this Agreement, the establishment of the Escrow
Account, the acceptance of the funds deposited therein, the
purchase of the Escrow Securities, the retention of the Escrow
Securities or the proceeds thereof or any payment, transfer or
other application of money or securities by the Escrow Agent in any
non-negligent act, non-negligent omission or non-negligent error of
the Escrow Agent made in good faith in the conduct of its duties .
The Escrow Agent shall, however, be liable to the Issuer for its
negligent or willful acts, omissions or errors which violate or
fail to comply with the terms of this Agreement . The duties and
obligations of the Escrow Agent shall be determined by the express
provisions of this Agreement . The Escrow Agent may consult with
counsel, who may or may not be counsel to the Issuer, and in
reliance upon the opinion of such counsel shall have full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it in good faith in accordance there-
with. Whenever the Escrow Agent shall deem it necessary or
desirable that a matter be proved or established prior to taking,
41/0
suffering or omitting any action under this Agreement, such matter
4
may be deemed to be conclusively established by a certificate
4110
signed by an authorized officer of the Issuer.
Section 9 . Resignation of Escrow Agent . The Escrow
Agent may resign and thereby become discharged from the duties and
obligations hereby created, by notice in writing given to the
Issuer, not less than sixty (60) days before such resignation shall
take effect . Such resignation shall take effect immediately upon
the appointment of a new Escrow Agent hereunder, if such new Escrow
Agent shall be appointed before the time limited by such notice and
shall then accept the duties and obligations thereof .
Section 10 . Removal of Escrow Agent . The Escrow Agent
may be removed at any time for any breach of trust or for acting or
proceeding in violation of, or for failing to act or proceed in
accordance with, any provisions of this Agreement with respect to
the duties and obligations of the Escrow Agent, by the Issuer.
Section 11 . Successor Escrow Agent .
(a) If at any time hereafter the Escrow Agent shall
resign, be removed, be dissolved or otherwise become incapable of
acting, or shall be taken over by any governmental official,
agency, department or board, the position of Escrow Agent shall
thereupon become vacant . If the position of Escrow Agent shall
become vacant for any of the foregoing reasons or for any other
41/0 reason, the Issuer shall appoint an Escrow Agent to fill such
vacancy.
(b) If no appointment of a successor Escrow Agent shall
be made pursuant to the foregoing provisions of this Section, the
holder of any Refunded Bonds then outstanding, or any retiring
Escrow Agent may apply to any court of competent jurisdiction to
appoint a successor Escrow Agent . Such court may thereupon, after
such notice, if any, as such court may deem proper and prescribe,
appoint a successor Escrow Agent .
(c) A company into which the Escrow Agent may be merged
or converted or with which it may be consolidated, or any company
resulting from any merger, conversion or consolidation to which it
shall be a party or any company to which the Escrow Agent may sell
or transfer all or substantially all of the bond administration
portion of its corporate trust business, provided such company
shall be a bank or trust company organized under the laws of any
state of the United States or a national banking association and
shall be authorized by law to perform all the duties imposed upon
it by this Agreement, shall be the successor to the Escrow Agent
without the execution or filing of any paper or the performance of
any further act .
Section 12 . Term. This Agreement shall commence upon
its execution and delivery and shall terminate when the Refunded
1111 Bonds have been paid and discharged in accordance with the
proceedings authorizing the Refunded Bonds, and all amounts held by
5
the Escrow Agent hereunder have been applied in accordance
1110 herewith, provided, however, the indemnities contained in Section
8 shall survive the termination of this Agreement .
Section 13 . Severability. If any one or more of the
covenants or agreements provided in this Agreement on the part of
the Issuer, the Issuer or the Escrow Agent to be performed should
be determined by a court of competent jurisdiction to be contrary
to law, such covenant or agreements herein contained shall be null
and void and shall be severed from the remaining covenants and
agreements and shall in no way affect the validity of the remaining
provisions of this Agreement .
Section 14 . Counterparts . This Agreement may be
executed in several counterparts, all or any of which shall be
regarded for all purposes as duplicate originals and shall
constitute and be but one and the same instrument .
Section 15 . Governing Law. This Agreement shall be
construed under the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers and
their official seals to be hereunto affixed and attested as of the
date first above written.
4110
CITY OF ATLANTIC BEACH, FLORIDA
(SEAL)
By:
Mayor
ATTEST:
City Clerk
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, as Escrow
Agent
By:
Title:
4110 _
6
SCHEDULE A
•
Escrow Securities to be Purchased
•
•
H:\USER\DEP\IMW\ATLANTIC.SUN\EDA.005
• ANNEX B
No. R-_ $1,820,000
UNITED STATES OF AMERICA
STATE OF FLORIDA
$1,820,000
CITY OF ATLANTIC BEACH, FLORIDA
CAPITAL IMPROVEMENT REVENUE REFUNDING BOND, SERIES 1999
Registered Owner: SunTrust Bank, North Florida, National Association
Principal Amount: One Million Eight Hundred Twenty Thousand Dollars
KNOW ALL MEN BY TIME PRESENTS, that the City of Atlantic Beach, Florida, a
municipal corporation of the State of Florida(hereinafter called "City"), for value received, hereby
promises to pay to the Registered Owner identified above, or registered assigns, on the Maturity
Dates described herein, the aggregate Principal Amount shown above, solely from the revenues
hereinafter mentioned, and to pay solely from such revenues, interest on said sum from the date of
this Bond or from the most recent interest payment date to which interest has been paid, at the Rate
of Interest of Four and Twenty Hundredths Percent(4.20%)per annum on the unpaid balance of such
• Principal Amount until the payment of such Principal Amount.Interest on this Bond shall be paid on
June 1, 1999 and on each June 1 and December 1 thereafter until final payment of the Principal
Amount. Interest shall be computed on an actual 365/366 day basis.
The Rate of Interest shall be adjusted as follows:
(1) In the event of a change from the current thirty-five percent (35%) rate in the
maximum marginal federal income tax rate applicable to corporations, (as currently provided in
Section 11(b)(1)(D)of the Internal Revenue Code of 1986,as amended),then the interest rate on this
Bond shall be automatically adjusted,up or down,by a fraction equal to(1 minus A)/.65,where "A"
equals the maximum marginal corporate income tax rate then in effect.
(2) The interest rate shall be adjusted(retroactively, if necessary)to provide the
Registered Owner with the same after-tax yield on this Bond if.
(a) any amendments to existing law,other than a change in the corporate
tax rate, are adopted which adversely affect such after-tax yield:
(b) this Bond ceases to be a "Designated Bond"; or
(c) there occurs a final determination by the Internal Revenue Service or a
court that interest on this Bond is not excluded from gross income for federal income tax purposes.
•
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•
0The principal of this Bond shall be payable in installments on December 1 of the years and in
the amounts as follows:
Principal Principal
Year Amount Year Amount
1999 $115,086.79 2007 $121,315.37
2000 92,388.59 2008 127,515.22
2001 96,110.09 2009 133,406.26
2002 99,409.21 2010 138,614.32
2003 102,464.00 2011 143,271.12
2004 110,114.14 2012 152,318.07
2005 112,622.70 2013 155,660.87
2006 119,702.85
All payments shall be applied first to interest and then to principal on this Bond.The principal
of and interest on this Bond, when due and payable, shall be paid by check or draft mailed to the
Registered Owner, at its address as it appears on the Bond Register by the City Clerk as Bond
Registrar, or such other Bond Registrar as the City may hereafter appoint, at the close of business
on the Record Date or,in the case of payment after default, a special record date, as provided in the
Resolution hereinafter mentioned.Notwithstanding the foregoing,principal and interest shall be paid
• by wire transfer to the domestic account of the Registered Owner, upon written request and
furnishing of wire transfer instructions to the Issuer. All amounts due hereunder shall be payable in
any coin or currency of the United States of America which is at the time of payment legal tender for
the payment of public or private debts.
This Bond is issued to finance the cost of prepaying of the 1989 Loan, as defined in the
below-mentioned Resolution,pursuant to the authority of and in full compliance with the Constitution
and laws of the State of Florida, including particularly Chapters 166, Part II, Florida Statutes, as
amended and other applicable provisions of law(the "Act"), Ordinance No. 15-99-9 enacted by the
City on March 8, 1999 and Resolution No. 99-4 adopted by the City on March 8, 1999 (the
"Resolution").
This Bond is one of an authorized issue of $1,820,000 which may be issued under the
Resolution, all of the terms of which are incorporated herein by reference. The Bond is a special
obligations of the City payable from and secured by an irrevocable lien upon and pledge of(1) the
City's receipts derived from the tax levied and collected by the City pursuant to Article II, Sections
20-16 through 20-26 of the Ordinance Code of the City,as amended,on every purchase of electricity,
metered or bottled gas,natural,liquified petroleum gas or manufactured,No. 1 kerosene,No.2 and
No.3 fuel oils and local telephone service,within the corporate limits of the City(the"Public Service
Taxes Revenues"),and(2)until otherwise applied as provided in the Resolution,the moneys held in
the funds and accounts under the Resolution and the income on investment thereof(all,collectively,
•
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•
• the "Pledged Revenues") and is additionally payable from Non-Ad Valorem Revenues as provided
in the Resolution.
This Bond does not constitute a general obligation, or a pledge of the faith, credit or taxing
power of the City,the State of Florida or any political subdivision thereof,within the meaning of any
constitutional or statutory provision or limitation. Neither the State of Florida nor any political
subdivision thereof, nor the City, shall be obligated to pay the principal of this Bond, the interest
thereon or other costs incident thereto, except from the Pledged Revenues and Non-Ad Valorem
Revenues, in the manner provided in the Resolution. It is further agreed between the City and the
Registered Owner of this Bond that this Bond and the indebtedness evidenced hereby shall not
constitute a lien on any property of the City,but shall constitute a lien only on the Pledged Revenues,
in the manner provided in the Resolution.
The Bonds may,at the option of the City, be prepaid prior to maturity in whole or in part on
any date at a prepayment price (plus accrued interest to the date fixed for redemption) equal to the
principal amount thereof and without premium or penalty.
Notice of prepayment identifying the portion of this Bond to be prepaid will be given by the
Registrar as provided in the Resolution.All prepayments will cease to bear interest after the specified
prepayment date provided funds for prepayment are on deposit at the place of payment at that time.
• Additional Parity Bonds may be issued payable from and secured by a lien on the same
sources as the Bonds, upon the terms and conditions set forth in the Resolution.
It is hereby certified and recited that all acts,conditions and things required to exist,to happen
and to be performed precedent to and in the issuance of this Bond exist,have happened and have been
performed in regular and due form and time as required by the laws and Constitution of the State of
Florida applicable thereto, and that the issuance of this Bond does not violate any constitutional or
statutory limitations or provisions.
Subject to the provisions of the Resolution respecting registration,this Bond is and has all the
qualities and incidents of a negotiable instrument under the Uniform Commercial Code-Investment
Securities of the State of Florida.
Subject to the limitations and upon payment of the charges provided in the Resolution, this
Bond is transferable by the Registered Owner in person or by his attorney duly authorized in writing
at the above-mentioned office of the Registrar. No transfer may be made of this Bond except to an
accredited investor within the meaning of Rule 501(a) of Regulation D promulgated under the
Securities Act of 1933,as amended,and such transferee must deliver to the City an investment letter
in the form and substance of the investment letter delivered by the initial Registered Owner of this
Bond.
III
B-3
• The City shall deem and treat the Registered Owner hereof as the absolute owner hereof
(whether or not this Bond shall be overdue) for the purpose of receiving payment of or on account
of principal hereof and interest due hereon and for all other purposes, and the City shall not be
affected by any notice to the contrary.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Resolution until the certificate of authentication endorsed hereon shall
have been duly signed by the Registrar.
IN WITNESS WHEREOF,the City of Atlantic Beach,Florida,has issued this Bond and has
caused the same to be executed by the manual or facsimile signature of its Mayor and attested by the
manual or facsimile signature of its City Clerk,and its official seal or a facsimile thereof to be affixed,
impressed, imprinted, lithographed or reproduced hereon, as of March 8, 1999.
CITY OF ATLANTIC BEACH, FLORIDA
By:
Suzanne Shaughnessy
Mayor/Presiding Officer
• (SEAL)
Approved as to form and correctness:
Alan C. Jensen, Esquire
City Attorney
ATTEST:
Maureen King, CMC
City Clerk
Ill
B-4
•
• CERTIFICATE OF AUTHENTICATION OF BOND REGISTRAR
The Registered Owner and Principal Amount shown above are correct in all respects and have
been recorded, along with the applicable federal taxpayer identification number and the address of
the Registered Owner, in the Bond Register maintained at the principal office of the undersigned.
CITY OF ATLANTIC BEACH,FLORIDA
By:
Maureen King, CMC
City Clerk, as Bond Registrar
Date of Registration and
Authentication:
•
•
B-5
• ASSIGNMENT
ASSIGNMENT FOR VALUE RECEIVED, the undersigned
(the "Transferor"),hereby sells, assigns, and transfers unto (Please insert
name and Social Security or Federal Employer Identification number of assignee)the within Bond
and all rights thereunder, and hereby irrevocably constitutes and appoints
(the "Transferee") as attorney to register the transfer of the within Bond on the books kept for
registration thereof, with full power of substitution in the premises.
Date:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed
by an institution which is a participant in the
• Securities Transfer Agent Medallion Program
(STAMP) or similar program.
NOTICE: No transfer will be registered and
no new Bond will be issued in the name of the
Transferee, unless the signature(s) to this
assignment corresponds with the name as it
appears upon the face of the within Bond in
every particular, without alteration or
enlargement or any change whatever and the
Social Security or Federal Employer
identification Number of the Transferee is
supplied.
•
B-6
• The following abbreviations,when used in the inscription on the face of the within Bond,shall
be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in UNIF TRANS MIN ACT -
common
(Cust.)
TEN ENT - as tenants by the Custodian for-
entireties
(Minor)
JT TEN - as joint tenants under Uniform Transfers to
with right of Minors Act of-
survivorship and
not as tenants in (State)
common
Additional abbreviations may also be used though not in list above.
•
B-7
• ANNEX C
First Supplemental Loan Agreement
•
•
CA
al" ANNEX D
Cost of Issuance
Bond counsel fees to Rogers, Towers, Bailey
Jones & Gay, P.A. $3,000
Counsel fees to Squire Sanders &Dempsey, LLP 3,500
Counsel fees to Miller Canfield Paddock, Stone &
Lott, P.L.C., Counsel to City of Gulf Breeze 3,500
Fees to Dunlap & Associates, Financial Advisor 5,000
Fees to SunTrust Bank, Central Florida, National 500
Association, as escrow agent
• H:\USER\DEP\IMW\ATLANTIC.SUN\RES-4
•
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