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Ordinance No. 15-10-12 vORDINANCE NO. 15-10-12 AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA SUPPLEMENTING ORDINANCE NO. 15-95-7 ENACTED BY THE CITY COMMISSION ON NOVEMBER 13, 1995, AS AMENDED AND SUPPLEMENTED; AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $10,100,000 UTILITIES SYSTEM REVENUE BONDS, SERIES 2010A TO FUND THE COSTS OF SEWER AND PLANT UPGRADES OF THE CITY'S UTILITY SYSTEM; APPROVING A FORM OF LOAN AGREEMENT AND AUTHORIZING EXECUTION AND DELIVERY OF THE LOAN AGREEMENT AND OTHER ACTION IN CONNECTION WITH THE DELIVERY OF SUCH BONDS; PROVIDING FOR SALE OF THE BONDS BY RESOLUTION FOLLOWING SOLICITATION OF COMPETITIVE PROPOSALS AND NEGOTIATIONS; PLEDGING THE CITY'S PLEDGED REVENUES AS DESCRIBED IN ORDINANCE NO. 15-95-7; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Atlantic Beach, Florida (the "City") has determined that it is necessary and desirable to finance the cost of the project described in the title of this Ordinance; NOW THEREFORE, BE IT ENACTED BY THE CITY COMMISSION ON BEHALF OF THE PEOPLE OF THE CITY OF ATLANTIC BEACH, FLORIDA: Section 1. AUTHORITY FOR THIS ORDINANCE. This Ordinance is enacted pursuant to the provisions of the Act, as defined in the Loan Agreement, a form of which is attached hereto as Exhibit A. Section 2. DEFINITIONS. All terms in this Ordinance shall have the meanings as defined in the Loan Agreement. Section 3. PROJECT AUTHORIZED. There is hereby authorized the project described in the title of this Ordinance. Section 4. AUTHORIZATION OF LOAN AND BONDS. Subject and pursuant to the provisions of this Ordinance, the City is authorized to incur a Loan and to issue the Bonds in evidence thereof, upon substantially the terms of the Loan Agreement attached hereto as Exhibit A, as such terms may be modified by resolution adopted at the time of sale of the Bonds. All of the terms and covenants contained in the Loan Agreement are incorporated herein by reference. The Bond Ordinance and the Loan Agreement, upon the funding of the Loan and the issuance of the Bonds, shall constitute a contract between the City and the Lender. Section 5. SALE OF BONDS. (A) Findings. 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 City because of the small size of the issue, the uncertainty of the bond market for issues of this type, and the flexibility available in structuring the Bonds and their terms. LFM-12/ 13/2010-12:10 PM -4499 -0 -Ordinance - 2010A - v2 1 (B) The City has solicited proposals for purchase of the Bonds from area commercial banks. Following evaluation of the responses received and negotiation with the offeror of the proposal most advantageous to the City, the City is authorized to sell the Bonds by resolution, specifying the marketing terms of the Bonds, including but not limited to interest rate, interest payment dates, maturity dates and amounts, and terms of prepayment, and making such modifications to the terms of the Loan Agreement as may be then approved by such resolution of the City Commission. Section 6. NECESSARY ACTION. The Mayor and the City Clerk of the City are authorized and directed to execute and deliver the Loan Agreement and the Bonds pursuant to the resolution described in Section 5 hereof upon payment of the purchase price without further authority from the City Commission. The Mayor and City Clerk and City Manager are designated as the agents of the City 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 City which are necessary or desirable in connection with the execution and delivery of the Loan Agreement and the Bonds, and which are not inconsistent with the terms and provisions of this Ordinance and the Loan Agreement. Section 7. EFFECTIVE DATE. This Ordinance shall take effect immediately upon its enactment. LFM-12/ 13/2010-12:10 PM -4499 -0 -Ordinance - 2010A - v2 2 PASSED AND ADOPTED on first reading by the City Commission of the City of Atlanti Beach, Florida at a regular meeting duly called and held this 224day of %IIOVemG'P, 2010. PASSED AND ADOPTED on second and final reading by the City Commission ml he City of Atlantic Beach, Florida at a regular meeting duly called and held this day of Qm , 2010. CITY OF ATLANTIC BEACH, FLORIDA In ft a W"a""v Approved as to form, sufficiency Mayor and correctness: ATTEST: City Clerk LFM-12/ 13/2010-12:10 PM -4499 -0 -Ordinance - 2010A - v2 3 EXHIBITS TO ORDINANCE Exhibit A - Loan Agreement LFM-12/ 13/2010-12:10 PM -4499 -0 -Ordinance - 2010A - v2 LOAN AGREEMENT between CITY OF ATLANTIC BEACH, FLORIDA and Dated as of .2010 $10,100,000 UTILITIES SYSTEM REVENUE BONDS SERIES 2010A LOAN AGREEMENT THIS LOAN AGREEMENT (this "Agreement"), dated as of — 2010, by and between the CITY OF ATLANTIC BEACH, FLORIDA municipal corporation under the laws of the State of (the "Lender"), WITNESSETH: (the "City"), a Florida, and WHEREAS, the City has, by adoption of Ordinance No. (the "Ordinance") on , 2010, authorized the financing of the cost of sewer and plant upgrades of the City's System by a loan (the "Loan") in the amount of $ from the Lender; and WHEREAS, the City has, by Resolution No. , adopted on December 2010 (the "Resolution") determined to obtain the Loan from the Lender; NOW THEREFORE, in consideration of the premises and the respective representations and covenants herein contained, the parties hereto agree as follows: Section 1. Definitions. The following terms in this Agreement shall have the following meanings, unless the text otherwise expressly requires: "Act" means Chapter 166, Florida Statutes, the Original Ordinance and other applicable provisions of law. "Bond Ordinance" shall mean the Ordinance, as supplemented by the Resolution. "Bonds" means the City's $ Utilities System Revenue Bonds, Series 2010A, issuable in the denomination of a single Bond of $ principal amount. "City" means the City of Atlantic Beach, Florida "Code" means the Internal Revenue Code of 1986, as amended. "County" means Duval County, a political subdivision of the State of Florida. "Loan" means the loan agreed to be made to the City by the Lender pursuant to Section 3 below. "Original Ordinance" shall mean Ordinance No. 15-95-7 enacted by the City Commission on November 13, 1995, as amended and supplemented. Except as otherwise provided herein, all capitalized terms used and/or defined in the Original Ordinance shall have the same meanings in this Agreement. LFM-12/ 13/2010-2:36 PM -4499 -LA - 2010A - Q - do not use 1 "Parity Bonds" shall mean the City's shall mean the City's outstanding Utilities System Revenue Refunding Bonds, Series 2004 and the City's Utilities System Revenue Bonds, Series 2010C being issued simultaneously with the Bonds. "Project" shall mean the cost of sewer and plant upgrades to the City's System, including reimbursement to the General Fund of the City for costs advanced prior to issuance of the Bonds. "Refunded Bonds" shall mean the City's outstanding Utility System Revenue Refunding Bonds, Series 1996. Section 2. Findings. It is hereby found, determined and declared by the City that: A. The Project will further the purposes of the Act and will be in the best interests of the City. B. The City now owns, operates and maintains the System and receives Pledged Revenues each year which are not presently pledged for payment of any debt, except the Parity Bonds and the Refunded Bonds, and are legally available to pay the Bonds. Such Pledged Revenues will be sufficient to pay all principal of and interest on the Bonds and the Parity Bonds when due and to make all required payments under the Original Ordinance and the Bond Ordinance. Section 3. Loan. The Lender agrees to make a Loan to the City for the purpose of financing the cost of the Project. The Loan shall be evidenced by the Bonds, containing the terms in the Bond Ordinance and this Agreement, which shall be substantially in the form provided in the Resolution. Section 4. Terms and Covenants of Prior Ordinances Apply. All of the terms and covenants of Section 6.08 and Article III and Article V, except Section 5.04 thereof relating to continuing disclosure, of Ordinance No. 15-95-7, as amended, are incorporated by reference herein and shall apply to the Loan for the benefit of the Lender as fully as if set out herein. Upon compliance with the requirements of the Original Ordinance for the issuance of Additional Parity Bonds, the Bonds shall be Additional Parity Bonds for all purposes of the Original Ordinance. However, in the event that the requirements of the Original Ordinance for the issuance of Additional Parity Bonds are not met, then the Bonds shall be junior, inferior and subordinate in all respects to the Parity Bonds as to lien on and source and security for payment from the Pledged Revenues and in all other respects. Moreover, in that event, the funds and accounts described in the Original Ordinance shall be used only for the Parity Bonds, and additional accounts having similar purposes shall be established for the Bonds, and all payments and deposits shall first be made into the funds and accounts for the Parity Bonds in full before any payments and deposits are made into the additional accounts having similar purposes established for the Bonds. Section S. Prepayment. The Bonds shall be prepayable before maturity as provided in the Resolution. LFM-12 / 13 / 2010-2:36 PM -4499 -LA - 2010A - Q -do not use 2 Section 6. Application of Loan Proceeds. All proceeds received from the Loan shall be deposited in a Project Fund to be separately accounted for, and shall be applied by the City for payment of costs of the Project. Pending such expenditure, the proceeds of the Loan shall be invested in lawful investments for the City maturing at or prior to the times when such funds will be needed. The earnings thereon shall be available only for the purposes of the Loan until the Project is completed and thereafter such earnings and any unspent loan proceeds shall be applied to (1) prepayment of the Loan or (2) such other project as the City Commission shall approve with an approving opinion of bond counsel stating that such purpose constitutes a lawful use of bond proceeds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal income tax purposes. The Lender shall have a lien on the money in the Project Fund until spent as provided herein. Section 7. Waiver of Jury Trial. WITH RESPECT TO ANY SUIT OR ACTION BETWEEN THE CITY AND THE LENDER RELATING TO THE LOAN, OR THIS LOAN AGREEMENT, THE CITY AND THE LENDER EACH EXPRESSLY WAIVES ANY RIGHT TO A JURY TRIAL, AND AGREES THAT THE EXCLUSIVE VENUE FOR ANY SUCH SUIT OR ACTION SHALL BE DUVAL COUNTY, FLORIDA. Section 8. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when hand delivered or mailed by registered or certified mail, postage prepaid, to the parties at the following addresses: Notice Addresses As to the City: Nelson Van Liere City of Atlantic Beach 800 Seminole Road Atlantic Beach, Florida 32233-5445 (904) 247-5807 As to the Lender: Any of the above parties may, by notice in writing given to the others, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Communication to the Lender via telecopier shall be confirmed by delivery of a hard copy thereof to the Lender not later than two (2) Business Days after such communication by telecopier. Section 9. Qualified Tax -Exempt Obligation. The City hereby represents and finds that it reasonably anticipates not more than $30,000,000 of tax-exempt obligations (other than certain private activity bonds) will be issued by the City and its subordinate governmental entities in calendar year 2010. The City hereby directs it Mayor to recertify these representations upon issuance of the Bonds, and the Bonds are hereby designated as "qualified tax-exempt obligations" under Section 265(b)(3) of the Code. LFM-12/ 13/2010-2:36 PM -4499 -LA - 2010A - v2 - do not use 3 Section 10. No Recourse. No recourse shall be had for the payment of the principal of and interest on the Bonds or for any claim based on the Bonds or on this Agreement, against any present or former member or officer of the City Commission or any person executing the Bonds. Section 11. Amendments, Changes and Modifications. This Agreement may be amended by written agreement of the City and the Lender. Section 12. Binding Effect. To the extent provided herein, this Agreement shall be binding upon the City and the Lender and shall inure to the benefit of the City and the Lender and their respective successors and assigns. Section 13. Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 14. Execution in Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 15. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. LFM-12/ 13/2010-2:36 PM -4499 -LA - 2010A - Q - do not use .© IN WITNESS WHEREOF, the City and the Lender have executed and delivered this Loan Agreement as of , 2010. (SEAL) CITY OF ATLANTIC BEACH, FLORIDA Mayor ATTEST: City Clerk [LENDER] Its: LFM-12/ 13/2010-2:36 PM -4499 -LA - 2010A - v2 - do not use 5