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Ordinance No. 15-10-11 vORDINANCE NO. 15-10-11 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 $690,000 REVENUE REFUNDING BONDS, SERIES 2010B TO REFUND THE CITY'S OUTSTANDING UTILITIES SYSTEM REVENUE REFUNDING BONDS, SERIES 1996; 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 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 may achieve debt service savings by refunding the Refunded Bonds as herein defined; 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. REFUNDING AUTHORIZED. There is hereby authorized the refunding of the Refunded Bonds, in order to achieve debt service savings. 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. (B) The City has solicited proposals for purchase of the Bonds from area commercial banks. Following evaluation of the responses received and LFM-12/ 13/2010-12:08 PM -4500 -0 -Ordinance - 2010B - 0 1 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/ 13/2010-12:08 PM -4500 -0 -Ordinance - 2010B - 0 2 PASSED AND ADOPTED on first reading by the City Commission of the, City of Atlantic Beach, Florida at a regular meeting duly called and held this 21ra day of No virn(ger, 2010. PASSED AND ADOPTED on second and final reading by the City Commission of the City of Atlantic Beach, Florida at a regular meeting duly called and held this L day of DtccmjXe, 2010. CITY OF ATLANTIC BEACH, FLORIDA Approved as to form, sufficiency Mayor and correctness: City Clerk LFM-12/13/2010-12:08 PM -4500 -0 -Ordinance - 2010B - v4 3 EXHIBITS TO ORDINANCE Exhibit A - Loan Agreement LFM-12/ 13/2010-12:08 PM -4500 -0 -Ordinance - 2010B - v4 LOAN AGREEMENT between CITY OF ATLANTIC BEACH, FLORIDA and Dated as of , 2010 $690,000 UTILITIES SYSTEM REVENUE REFUNDING BONDS SERIES 2010B LOAN AGREEMENT THIS LOAN AGREEMENT (this "Agreement"), dated as of , 2010, by and between the CITY OF ATLANTIC BEACH, FLORIDA (the "City"), a municipal corporation under the laws of the State of Florida, and (the "Lender"), WITNESSETH: WHEREAS, the City has, by adoption of Ordinance No. (the "Ordinance") on , 2010, authorized the refunding of the Refunded Bonds 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 Refunding Bonds, Series 2010B, 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. "Parity Bonds" shall mean the City's shall mean the City's outstanding Utilities System Revenue Refunding Bonds, Series 2004, issued under the Original Ordinance. LFM-12/ 13/2010-2:35 PM -4500 -LA - 2010B v2 1 "Refunded Bonds" shall mean the City's outstanding Utility System Revenue Bonds, Series 1996. Section 2. Findings. It is hereby found, determined and declared by the City that: A. The refunding of the Refunded Bonds will further the purposes of the Act and will reduce the borrowing costs 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 refunding the Refunded Bonds. 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. Section 5. Prepayment. The Bonds shall be prepayable before maturity as provided in the Resolution. Section 6. Application of Loan Proceeds. All proceeds received from the Loan shall be either (1) deposited on the date of receipt with the Paying Agent for the Refunded Bonds, in an amount sufficient to pay the redemption price for the Refunded Bonds on the earliest practicable date of redemption, to be held uninvested by the Paying Agent until the redemption date, or (2) deposited in an irrevocable escrow account with an escrow agent, in a sufficient amount which, when invested to the redemption date for the Refunded Bonds, will be sufficient to pay the redemption price of the Refunded Bonds on the redemption date, all to be accomplished in a manner such that the lien on the Pledged Revenues securing payment of the Refunded Bonds will be defeased in accordance with the Original Ordinance. The Lender shall not have a lien on the money so deposited as provided in this Section. 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. LFM-12/13/2010-2:35 PM -4500 -LA - 2010B - v2 2 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. 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. LFM-12/ 13/2010-2:35 PM -4500 -LA - 2010B - v2 3 Section 15. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. LFM-12/13/2010-2:35 PM -4500 -LA - 2010B - v2 4 IN WITNESS WHEREOF, the City and the Lender have executed and delivered this Loan Agreement as of , 2010. CITY OF ATLANTIC BEACH, FLORIDA (SEAL) Mayor ATTEST: City Clerk [LENDER] ME LFM-12/ 13/2010-2:35 PM -4500 -LA - 2010B - v2 5 Its: