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AGENDA ITEM COVER SHEET
Meeting Date: December 6, 2011
Item #
Reviewed By:
Contact Name: Wanda Horton Department Director: Wanda Horton
Contact Number: X1520 City Manager:
Subject: Capital Improvement Refunding Revenue Note, Series 2011
Background Summary:
The 1999 Capital Improvement Refunding Revenue Bonds were issued to finance the acquisition of the Beech
Center, the City Hall Complex, a Public Works Facility and fire stations. The principle amount currently
outstanding on the bonds is $8,185,000 with interest rates of 4.5% to 4.75 %. The bonds mature October 2028.
The City issued a Request for Proposal (RFP) to obtain bank qualified financing to refund the 1999 Capital
Improvement Refunding Revenue Bonds (not to exceed $8,400,000). The RFP was issued to take advantage
of lower interest rates. Responses were received on October 31 from three financial institutions- Branch
Banking and Trust Company (BB &T), JP Morgan Chase, and SunTrust Bank. Low interest rates coupled with
bank qualified financing resulted in proposed savings from $72,293 to $120,380 annually or $1,228,983 to
$2,046,466 over the remaining life of the bonds. Interest rates range from 2.23% to 3.21 %. Finance and the
City's Financial Advisor reviewed and compared the proposals to determine the best opportunity for the City.
Issue:
In addition to the proposed savings, the terms and conditions of the proposals were analyzed and compared to
select the best option for the city. SunTrust Bank offered the best interest rates and flexibility by proposing two
options of financing for the bonds. Option 1 offers a pre - payment clause without a penalty. The interest rate for
this option is 2.53 %. Option 2 offers a pre - payment clause with a "Make Whole" provision or penalty. The
interest rate for this option is 2.23 %. The interest rates are indexed and are subject to change until two days
prior to closing. Interest rates have tracked lower since October providing for an increased benefit for the City.
JP Morgan Chase and SunTrust Bank both included "Capital Adequacy" covenants or provisions in their
proposals. In addition to the traditional taxable gross up language included in most tax - exempt bank loans (a
provision that allows the bank to increase or "gross up" the interest rate if tax rates change), this covenant
permits the bank to increase the interest rate due to changes in law that negatively impact the bank's after -tax
yield. However locking in rates, at the current lower interest rates, should provide some protection if interest
rates do increase due to this provision.
Recommendations
Staff recommends the commission approve 1) The resolution authorizing the refunding of the Capital
Improvement Refunding Revenue Bonds, Series 1999 (not to exceed $8,400,000) utilizing Option 1 proposed
by SunTrust, and 2) authorize the Mayor and Staff to execute all documents necessary to complete the
transaction.
Attachments:
Resolution , Bank Commitment Letter, Proposal Analysis Sheet
Financial Impact:
Annual debt service savings from $72,293 to $120,380.
Type of Item: (please mark with an "x")
Public Hearing For Clerk's Dept Use:
Ordinance First Reading Consent Agenda
Ordinance Second Reading Public Hearing
Resolution Regular Agenda
Commission Approval
Discussion & Direction
Original Document/Contract Attached for Execution by City Clerk
Original Document/Contract Held by Department for Execution
Reviewed by City Attorney N/A
Reviewed by Finance Dept. i7 N/A
Reviewed by 0 N/A
2
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LL 13
U U 0. O m VI LL H U 1L o Q v C
RESOLUTION NO.
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
OCOEE, FLORIDA; AUTHORIZING THE ISSUANCE OF CITY
OF OCOEE, FLORIDA CAPITAL IMPROVEMENT REFUNDING
REVENUE NOTE, SERIES 2011 IN THE PRINCIPAL AMOUNT
OF NOT TO EXCEED $8,400,000 TO REFUND THE CITY'S
CAPITAL IMROVEMENT REFUNDING REVENUE BONDS,
SERIES 1999; PROVIDING THAT SUCH NOTE SHALL BE A
LIMITED OBLIGATION OF THE CITY PAYABLE FROM SALES
TAX REVENUES AS THE PLEDGED REVENUES AS PROVIDED
HEREIN; PROVIDING FOR THE RIGHTS, SECURITIES AND
REMEDIES FOR THE OWNER OF SUCH NOTE; MAKING
CERTAIN COVENANTS AND AGREEMENTS IN
CONNECTION THEREWITH; APPROVING THE FORM OF AN
ESCROW DEPOSIT AGREEMENT; DESIGNATING THE NOTE
FOR THE EXCEPTION FOR CERTAIN TAX - EXEMPT
OBLIGATIONS CONTAINED IN SECTION 265 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED; AND
PROVIDING FOR AN EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA:
Section 1. Authority for this Resolution. This Resolution is adopted pursuant to
the provisions of the Constitution of the State of Florida, Chapter 166, Part II, Florida Statutes,
the Charter of the City of Ocoee, Florida (the "Issuer "), and other applicable provisions of law.
Section 2. Definitions. The following words and phrases shall have the following
meanings when used herein including the exhibits attached hereto:
"Act" means the Constitution of the State of Florida, Chapter 166, Part II, Florida
Statutes, the Charter of the Issuer, the Issuer's home rule powers and other applicable
provisions of law.
"Additional Debt" is as defined in Section 16(b) hereof.
"Business Day" means any day except any Saturday or Sunday or day on which the
Principal Office of the Original Purchaser is closed.
"City Clerk" means the City Clerk of the Issuer or any Deputy City Clerk.
"City Manager" means the duly appointed and acting City Manager of the Issuer, or any
duly authorized deputy thereof.
"Change in Law" means with respect to the Original Purchaser, so long as it is the holder
of the Note, the occurrence, after the date of this Resolution, of any of the following: (a) the
adoption or taking effect of any law, rule, regulation or treaty applicable to the Original
Purchaser, (b) any change in any law, rule, regulation or treaty or in the administration,
interpretation, implementation or application thereof by any Governmental Authority
applicable to the Original Purchaser or (c) the making or issuance of any request, rule, guideline
or directive (whether or not having the force of law) by any Governmental Authority; provided
that notwithstanding anything herein to the contrary, (x) the Dodd -Frank Wall Street Reform
and Consumer Protection Act and all requests, rules, guidelines or directive thereunder or
issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated
by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any
successor or similar authority) or, pursuant to the accord commonly referred to as "Basel III" or
the United States or foreign regulatory authorities, shall in each case be deemed to be a "Change
in Law," if subsequent to the date of the Resolution, regardless of the date enacted, adopted or
issued.
"Closing" means December 8, 2011, the date of issuance of the Note, or such other date
as determined by the Issuer and the Original Purchaser.
"Code" means the Internal Revenue Code of 1986, as amended, and any Treasury
Regulations, whether temporary, proposed or final, promulgated thereunder or applicable
thereto.
"Debt Service Requirement" for any Bond Year shall mean the sum of: (1) the amount
required to pay the interest becoming due on the Note and any Additional Debt during such
Bond Year and (2) the amount required to pay the principal of such Note and Additional Debt
maturing in such Bond Year.
"Escrow Deposit Agreement" shall mean the agreement described in Section 10 hereof
securing the Refunded Bonds.
"Escrow Holder" shall mean U.S. Bank National Association.
"Fiscal Year" means the period commencing on October 1 of each year and ending on the
succeeding September 30.
"Interest Rate" shall be as set forth in the Note.
"Issuer" means the City of Ocoee, Florida, a municipal corporation of the State of Florida.
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"Mayor" means the Mayor of the Issuer or in his or her absence or inability to act, the
Vice Mayor of the Issuer or such other person as may be duly authorized by the City
Commission to act on its behalf.
"Maximum Debt Service Requirement" means, as of a particular date of calculation, the
greatest amount of Debt Service Requirement for the then current or any future Bond Year.
"Note" or "Notes" means the Issuer's Notes of the Issuer authorized by Section 4 hereof.
"Note Year" shall mean the period beginning with October 1 and extending for a period
of twelve (12) months thereafter.
"Original Purchaser" means SunTrust Bank, a Georgia corporation.
"Owner" or "Owners" means the Person or Persons in whose name or names the Notes
shall be registered on the books of the Issuer kept for that purpose in accordance with
provisions of this Resolution, including, initially, the Original Purchaser.
"Person" means natural persons, firms, trusts, estates, associations, corporations,
partnerships and public bodies.
"Pledged Revenues" means the local government half -cent sales tax and other moneys
received by the Issuer from the local government half -cent sales tax clearing trust fund pursuant
to Chapter 218, Part VI, Florida Statutes.
"Principal Office" means, with respect to the Original Purchaser, the office located at 200
S. Orange Avenue, SOAB 6th Floor, Orlando, Florida 32801 Attention: Institutional and
Governmental Banking, or such other office as the Original Purchaser may designate to the
Issuer in writing.
"Refunded Bonds" means the Issuer's original aggregate principal amount $11,405,000
Capital Improvement Refunding Revenue Bonds, Series 1999, dated February 10, 1999.
"Resolution" means this Resolution, pursuant to which the Notes are authorized to be
issued.
"State" means the State of Florida.
Section 3. Findings.
(A) For the benefit of its inhabitants, the Issuer finds, determines and declares that it
is necessary for the continued preservation of the health, welfare, convenience and safety of the
Issuer and its inhabitants to refund the Refunded Bonds. Issuance of the Note to refund the
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Refunded Bonds, the proceeds of which originally refinanced certain indebtedness of the Issuer
and financed various capital improvements of the Issuer satisfies a paramount public purpose.
(B) Debt service on the Note will be payable from Pledged Revenues. The Pledged
Revenues will be sufficient to pay the principal and interest on the Note herein authorized, as
the same become due, and to make all deposits required by this Resolution.
(C) The Issuer has received an offer from the Original Purchaser to purchase the
Note.
(D) In consideration of the purchase and acceptance of the Note authorized to be
issued hereunder by those who shall be the Owners thereof from time to time, this Resolution
shall constitute a contract between the Issuer and the Owners.
(E) The Issuer desires to qualify the Note for the exception contained in Section
265(b)(3) of the Code to the provisions contained in Section 265(b) of the Code which deny
financial institutions any deduction for interest expense allocable to tax - exempt obligations
acquired after August 7, 1986, and to designate the Note for the purpose of qualifying for such
exception.
(F) That the Issuer adopted this Resolution after a public hearing preceded by at
least seven (7) days notice of the hearing and the proposed action by publication in a newspaper
of general circulation in the Issuer in accordance with the requirements of the Charter of the
Issuer.
Section 4. Authorization of Note. Subject and pursuant to the provisions of this
Resolution, an obligations of the Issuer to be known as City of Ocoee, Florida, Capital
Improvement Refunding Revenue Note, Series 2011 is hereby authorized to be issued under
and secured by this Resolution, in the aggregate principal amount of not to exceed $8,400,000,
for the purpose of providing funds to refund the Refunded Bonds and paying the costs of
issuing the Note. Because of the characteristics of the Note, prevailing market conditions, and
additional savings to be realized from an expeditious sale of the Note, it is in the best interest of
the Issuer to accept the offer of the Original Purchaser to purchase the Note at a private
negotiated sale. Prior to the issuance of the Note, the Issuer shall receive from the Original
Purchaser a disclosure letter containing the information required by Section 218.385, Florida
Statutes.
Section 5. Description of Note. The Note shall be issued as one fully registered
Note in the principal amount not to exceed $8,400,000, shall be dated as of the date of its
delivery to the Original Purchaser thereof and shall mature on October 1, 2028. The Note shall
be payable to the Original Purchaser, and shall bear interest equal to the Interest Rate and
calculated on the basis of a 30/360 day count basis, subject to adjustment as provided in the
form of the Note included herein. The initial Interest Rate shall be determined on or prior to the
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date of issuance of the Note and shall not exceed 4.00% per annum. The rate of interest on the
Note shall be fixed as set forth on the executed Note. Principal shall be payable annually on
October 1, commencing October 1, 2012 based upon level annual debt service payments.
Interest shall be payable semi - annually on April 1 and October 1 of each year, commencing
April 1, 2012 or such other date as agreed upon by the Issuer and the Original Purchaser prior
to the issuance of the Note. Said principal and any unpaid interest shall be payable upon
maturity or prepayment. The Note shall be payable in any coin or currency of the United States
of America which on the respective dates of payment thereof is legal tender for the payment of
public and private debts. The principal and interest on the Note, shall be payable by the
Finance Director, as the paying agent (the "Paying Agent "), to the person appearing on the
registration books of the Issuer in its capacity as registrar (the "Registrar ") hereinafter provided
for as the registered Owner thereof. The principal of the Note shall be payable only to the
registered Owner or his legal representative at the office of the Issuer who shall also keep a
registration book registering the ownership of the Note (the "Registrar ").
The Note is to be in substantially the form set forth on Exhibit A, attached hereto,
together with such changes as shall be approved by the Mayor, following review by the City
Manager, Finance Director and City Attorney, such approval to be conclusively evidenced by
the execution thereof by the Mayor. The Note shall be executed on behalf of the Issuer with the
manual signature of the Mayor and shall have impressed thereon the official seal of the Issuer,
and be attested with the manual signature of the City Clerk and approved as to form by the City
Attorney, and the Mayor, City Clerk and City Attorney are hereby authorized to execute, attest
and approve to the Note on behalf of the Issuer.
Section 6. Registration and Exchange of Note; Persons Treated as Owners. The
Note is initially registered to the Original Purchaser. So long as the Note shall remain unpaid,
the Issuer will keep books for the registration and transfer of the Note. The Note shall be
transferable only upon such registration books.
The Person in whose name the Note shall be registered shall be deemed and regarded as
the absolute owner thereof for all purposes, and payment of principal and interest on such Note
shall be made only to or upon the written order of the Owner. All such payments shall be valid
and effectual to satisfy and discharge the liability upon such Note to the extent of the sum or
sums so paid.
Section 7. Note Mutilated, Destroyed, Stolen or Lost. In case a Note shall become
mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a new Note of like
tenor as the Note so mutilated, destroyed, stolen or lost, in exchange and in substitution for
such mutilated Note, or in lieu of and in substitution for the Note destroyed, stolen or lost and
upon the Owner furnishing the Issuer proof of ownership thereof and indemnity reasonably
satisfactory to the Issuer and complying with such other reasonable regulations and conditions
as the Issuer may prescribe and paying such expenses as the Issuer may incur. The Note so
surrendered shall be canceled.
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Section 8. Payment of Principal and Interest; Limited Obligation. The Issuer
promises that it will promptly pay the principal of and interest on the Note at the place, on the
dates and in the manner provided therein according to the true intent and meaning hereof and
thereof. The Note shall not be or constitute general obligations or indebtedness of the Issuer as
"bonds" within the meaning of Article VII, Section 12 of the Constitution of Florida, but shall be
payable solely from the Pledged Revenues in accordance with the terms hereof. No holder of
any Note issued hereunder shall ever have the right to compel the exercise of any ad valorem
taxing power to pay such Note, or be entitled to payment of such Note from any funds of the
Issuer except from the Pledged Revenues as described herein.
Section 9. Prepayment. The Note shall be subject to prepayment at the option of the
Issuer in whole or in part at any time without penalty, upon two (2) Business Days' prior
written notice to the Original Purchaser. Such prepayment notice shall specify the amount of
the prepayment which is to be made.
Section 10. Disbursement of and Application of Proceeds of Note; Escrow Deposit
Agreement. At the time of delivery of the Note herein authorized, the proceeds from the sale of
the Note shall be used to deposit funds to secure the Refunded Bonds and pay costs of issuance
associated with the Note.
There is hereby authorized the execution of the Escrow Deposit Agreement in order to
refund the Refunded Bonds in the manner provided herein. Simultaneously with the delivery
of the Note to the Original Purchaser thereof, the Issuer will enter into the Escrow Deposit
Agreement in substantially the form attached hereto as Exhibit B with the Escrow Holder. At
the time the Escrow Deposit Agreement is executed, the Issuer will furnish to the Escrow
Holder appropriate documentation to demonstrate that the sum being deposited with the
Escrow Holder pursuant to this Resolution, together with other funds deposited into the escrow
account pursuant to the provisions of the Escrow Deposit Agreement, shall be equal to the
Escrow Requirement (as defined therein) and that such moneys and the investments to be made
pursuant to the Escrow Deposit Agreement will be sufficient to produce the moneys required to
make all payments described in the Escrow Deposit Agreement for the full and complete
refunding and defeasance of the Refunded Bonds.
Section 11. Tax Covenant. The Issuer covenants to the purchasers of the tax - exempt
Note provided for in this Resolution that the Issuer will not make any use of the proceeds of the
tax - exempt Note at any time during the term of the tax - exempt Note which, if such use had
been reasonably expected on the date the tax - exempt Note was issued, would have caused such
tax - exempt Note to be "arbitrage bonds" within the meaning of the Internal Revenue Code of
1986, as amended (the "Code "). The Issuer will comply with the requirements of the Code and
any valid and applicable rules and regulations promulgated thereunder necessary to ensure the
exclusion of interest on the tax - exempt Note from the gross income of the holders thereof for
purposes of federal income taxation.
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Section 12. Bank Qualified. The Issuer hereby designates the Note as "qualified tax -
exempt obligation" within the meaning of Section 265(b)(3) of the Code. The Issuer and any
subordinate entities of the Issuer and any issuer of "tax- exempt" debt that issues "on behalf of"
the Issuer do not reasonably expect during the calendar year 2011 to issue more than
$10,000,000 of "tax- exempt" obligations including the tax - exempt Note, exclusive of any private
activity bonds as defined in Section 141(a) of the Code (other than qualified 501(c)(3) bonds as
defined in Section 145 of the Code).
Section 13. Sale of Note; Authorization Regarding Debit for Interest Payments. The
Note is hereby sold and awarded to SunTrust Bank at the price of par and the Mayor and the
City Clerk are hereby authorized to execute and deliver the Note in the form set forth herein,
receive the purchase price therefor and apply the proceeds thereof as hereinafter provided,
without further authority from this body. The Mayor and the City Clerk are authorized to
make any and all changes on the form of the Note which shall be necessary to conform the same
to the commitment of SunTrust Bank. Execution of the Note by the Mayor and the City Clerk
shall be conclusive evidence of their approval of the form of the Note.
The Finance Director of the Issuer shall provide for the collection of the interest
payments on the Note through an auto debit from the Issuer's account with the Original
Purchaser.
Section 14. Impairment of Contract. The Issuer covenants with the Owner of the
Note that it will not, without the written consent of the Owner of the Note, enact any ordinance
or adopt any resolution which repeals, impairs or amends in any manner adverse to the Owner
the rights granted to the Owner of the Note hereunder.
The pledging of the Pledge Revenues in the manner provided herein shall not be subject
to repeal, modification or impairment by any subsequent ordinance, resolution or other
proceedings of the City Commission.
The Issuer covenants that it will not impair or adversely affect the power and right of the
Issuer to receive the Pledged Revenues. The Issuer will proceed diligently to perform legally
and effectively all steps required on its part in the levy and collection of the Pledged Revenues
and shall exercise all legally available remedies to enforce such collections now or hereafter
available under State law.
Section 15. Budget and Financial Information. The Issuer shall provide the Owner
of the Note with a copy of its annual budget and such other financial information regarding the
Issuer as the Owner of the Note may reasonably request. The Issuer hereby covenants that it
shall promptly give written notice to the Owner of the Note of any litigation or proceeding
which if determined adversely to the Issuer would adversely affect the security for the payment
of the Note. The Issuer shall provide the Owner of the Note with annual financial statements
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not later than two hundred forty (240) days after the close of such fiscal year and a copy of the
final budget for each fiscal year of the Issuer not later than thirty (30) days after adoption. The
financial statements shall be prepared in accordance with applicable law and generally accepted
accounting principles and audited by an independent certified public accountant. All
accounting terms not specifically defined or specified herein shall have the meanings attributed
to such terms under generally accepted accounting principles ( "GAAP ") as in effect from time to
time, consistently applied.
Section 16. Additional Debt. (a) The Issuer shall issue no bonds, notes or
obligations of any kind or nature payable from or enjoying a lien on the Pledged Revenues if
such obligations have priority over the Note with respect to payment or lien, nor shall the Issuer
create or cause or permit 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 Note upon said Pledged
Revenues. However, the Issuer may issue additional debt under the conditions and in the
manner provided below. Any obligations issued by the Issuer other than the Note and
Additional Debt (as described in subparagraph (b)), which are payable from the Pledged
Revenues shall contain an express statement that such obligations are junior and subordinate in
all respects to the Note as to lien on and source and security for payment from such Pledged
Revenues.
(b) No additional debt, notes, bonds, payable on a parity from the Pledged Revenues
( "Additional Debt "), shall be issued after the issuance of the Note herein authorized, except
upon the conditions and in the manner hereinafter provided:
(1) The Issuer's Finance Director shall certify at the time of the issuance of the
Additional Debt that the Issuer is not in default of any of the provisions, covenants and
agreements hereof.
(2) The Issuer's Finance Director shall also certify at the time of the issuance of the
Additional Debt that the Pledged Revenues received by the Issuer during the two most recent
Fiscal Years immediately preceding the date of issuance of such Additional Debt for which
audited statements are available shall equal at least 1.35 times the Maximum Debt Service
Requirement on the outstanding Note and the proposed Additional Debt.
Section 17. Events of Default; Remedies of Noteholder. The following shall
constitute Events of Default: (i) if the Issuer fails to pay any payment of principal of or interest
on any Note as the same becomes due and payable; (ii) if the Issuer defaults in the performance
or observance of any covenant or agreement contained in this Resolution or the Note (other
than set forth in (i) above) and fails to cure the same within thirty (30) days; or (iii) filing of a
petition by or against the Issuer relating to bankruptcy, reorganization, arrangement or
readjustment of debt of the Issuer or for any other relief relating to the Issuer under the United
States Bankruptcy Code, as amended, or any other insolvency act or law now or hereafter
8
existing, or the involuntary appointment of a receiver or trustee for the Issuer, and the
continuance of any such event for ninety (90) days undismissed or undischarged.
Upon the occurrence and during the continuation of any Event of Default, the Owner of
the Note may, in addition to any other remedies set forth in this Resolution or Note, either at
law or in equity, by suit, action, mandamus or other proceeding in any court of competent
jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or
granted or contained in this Resolution, and may enforce and compel the performance of all
duties required by this Resolution, or by any applicable statutes to be performed by the Issuer
or by any officer thereof.
Section 18. Limitation of Rights. With the exception of any rights herein expressly
conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Note
is intended or shall be construed to give to any Person other than the Issuer and the Owner any
legal or equitable right, remedy or claim under or with respect to this Resolution or any
covenants, conditions and provisions herein contained; this Resolution and all of the covenants,
conditions and provisions hereof being intended to be and being for the sole and exclusive
benefit of the Issuer and the Owner.
Section 19. Amendment. This Resolution shall not be modified or amended in any
respect subsequent to the issuance of the Note except with the written consent of the Owner of
the Note.
Section 20. City Commission Members of the Issuer Exempt from Personal
Liability. No recourse under or upon any obligation, covenant or agreement of this Resolution
or the Note or for any claim based thereon or otherwise in respect thereof, shall be had against
any City Commission members, as such, of the Issuer, past, present or future, either directly or
through the Issuer it being expressly understood (a) that no personal liability whatsoever shall
attach to, or is or shall be incurred by, the City Commission members of the Issuer, as such,
under or by reason of the obligations, covenants or agreements contained in this Resolution or
implied therefrom, and (b) that any and all such personal liability, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims against, every
such City Commission member of the Issuer, as such, are waived and released as a condition of,
and as a consideration for, the execution of this Resolution and the issuance of the Note, on the
part of the Issuer.
Section 21. Authorizations. The Mayor and any member of the City Commission,
the City Manager, the City Attorney, the City Clerk and such other officials and employees of
the Issuer as may be designated by the Issuer are each designated as agents of the Issuer in
connection with the issuance and delivery of the Note and are authorized and empowered,
collectively or individually, to take all action and steps and to execute all instruments,
documents, and contracts on behalf of the Issuer that are necessary or desirable in connection
9
with the execution and delivery of the Note, and which are specifically authorized or are not
inconsistent with the terms and provisions of this Resolution.
Section 22. Business Days. In any case where the due date of interest on or principal
of the Note is not a Business Day, then payment of such principal or interest need not be made
on such date but may be made on the next succeeding Business Day, provided that credit for
payments made shall not be given until the payment is actually received by the Owner.
Section 23. Applicable Provisions of Law. This Resolution shall be governed by and
construed in accordance with the laws of the State.
Section 24. Rules of Interpretation. Unless expressly indicated otherwise, references
to sections or articles are to be construed as references to sections or articles of this instrument
as originally executed. Use of the words "herein," "hereby," "hereunder," "hereof,"
"hereinbefore," "hereinafter" and other equivalent words refer to this Resolution and not solely
to the particular portion in which any such word is used.
Section 25. Captions. The captions and headings in this Resolution are for
convenience only and in no way define, limit or describe the scope or intent of any provisions or
sections of this Resolution.
Section 26. Severability. If any provision of this Resolution shall be held or deemed
to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not
affect any other provision herein or render any other provision (or such provision in any other
context) invalid, inoperative or unenforceable to any extent whatever.
Section 27. Repealer. All resolutions or parts thereof in conflict herewith are hereby
repealed.
Section 28. No Third Party Beneficiaries. Except such other persons as may be
expressly described in this Resolution or in the Note, nothing in this Resolution or in the Note,
expressed or implied, is intended or shall be construed to confer upon any person, other than
the Issuer and the holders, any right, remedy or claim, legal or equitable, under and by reason
of this Resolution, or any provision thereof, or of the Note, all provisions thereof being intended
to be and being for the sole and exclusive benefit of the Issuer and the persons who shall from
time to time be the holders.
Section 29. Capital Adequacy. If, after the date of issuance of the Note, the Original
Purchaser shall have reasonably determined that a Change in Law shall have occurred that has
or would have the effect of reducing the rate of return on the Original Purchaser's capital on the
Note as a consequence of its ownership of the Note or otherwise, to a level below that which the
Original Purchaser could have achieved but for such adoption, change or compliance (taking
into consideration the legal requirements with respect to capital adequacy) by an amount
10
deemed by the Original Purchaser to be material, then from time to time, promptly upon
demand by the Original Purchaser, the Issuer hereby agrees to pay the Original Purchaser such
additional amount or amounts as will compensate the Original Purchaser for such reduction;
provided however, no such demand for reimbursement shall be effective until the Original
Purchaser delivers to the Issuer a certificate (each a "Certificate "), no less than sixty (60)
calendar days preceding the effective date of such demand setting forth in reasonable detail the
basis therefor and the manner of calculation thereof which Certificate shall be conclusive
(absent manifest error) as to the amount set forth therein and such calculation shall also take
into account any changes which decrease the cost to the Original Purchaser. In determining
any such amount, the Original Purchaser may use any reasonable averaging and attribution
methods. Concurrently with the presentation of each Certificate, the Issuer shall also be
provided written certification from the Original Purchaser that all of the Original Purchaser's
outstanding loans of like type to the Note are also being required to compensate the Original
Purchaser due to the change in capital adequacy requirements. Upon receipt of the Certificate,
the Issuer may request the Original Purchaser (provided, the Original Purchaser is under no
obligation to grant such request) to delay all or a portion of the reimbursement payment
attributable the Change in Law until the first payment date occurring in the fiscal year
following the Change in Law (the "Transition Date "), then in such case, on the Transition Date
the Issuer shall pay the Original Purchaser the reimbursement amounts attributable to a Change
in Law that remain due hereunder and are unpaid. In addition, if, on or prior to sixty (60)
calendar days after receipt of the Certificate, the Issuer prepays the Note pursuant Section 9
hereof, no amounts shall be due from the Issuer to the Original Purchaser with respect to a
Change in Law. Notwithstanding the foregoing, no reimbursing amounts due and owing to the
Original Purchaser pursuant to this paragraph shall have the effect of causing the Interest Rate
on the Note to exceed the maximum amounts allowed pursuant to Section 215.84, Florida
Statues or any other applicable provision of law.
Section 30. Effective Date. This Resolution shall be in full force and take effect
immediately upon its passage and adoption.
[Remainder of page intentionally left blank]
11
PASSED AND ADOPTED by the City Commission of the City of Ocoee, Florida, on
this 6th day of December, 2011.
ATTEST: APPROVED:
CITY OF OCOEE, FLORIDA
By: By:
Name: Beth Eikenberry Name: S. Scott Vandergrift
Title: City Clerk Title: Mayor
Approved as to form and legality for the use and reliance of the City of Ocoee, Florida, only.
Name: Paul Rosenthal
Title: City Attorney
j: \ wdox \ docs \ clients \ 25136 \ 006 \ ordres \ 00594071.doc
12
EXHIBIT A
FORM OF NOTE
ANY HOLDER SHALL, PRIOR TO BECOMING A HOLDER, EXECUTE A PURCHASERS
CERTIFICATE CERTIFYING, AMONG OTHER THINGS, THAT SUCH HOLDER IS AN
"ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN THE SECURITIES ACT OF 1933,
AS AMENDED, AND REGULATION D THEREUNDER.
R -1 $
STATE OF FLORIDA
COUNTY OF ORANGE
CITY OF OCOEE, FLORIDA
CAPITAL IMPROVEMENT REFUNDING REVENUE NOTE, SERIES 2011
Dated Date Maturity Date Interest Rate
, 2011 October 1, 2028
The City of Ocoee, Florida (the "Issuer "), a municipal corporation created and existing
pursuant to the Constitution and the laws of the State of Florida, for value received, promises to
pay from the sources hereinafter provided, to the order of SunTrust Bank or registered assigns
(hereinafter, the "Owner "), the principal sum of $ together with interest on the principal
balance at the Interest Rate (as the same may be adjusted) based upon a 30/360 day count basis.
Principal payments shall begin on October 1, 2012 and the final installment of the entire unpaid
principal balance, together with all accrued and unpaid interest hereon, is due and payable on
October 1, 202, and shall be in the amounts attached hereto as Schedule A.
This Note is issued pursuant to the Constitution of the State of Florida, Chapter 166, Part
II, Florida Statutes, the Charter of the Issuer and a Resolution duly adopted by the Issuer on
December 6, 2011, as from time to time amended and supplemented (herein referred to as the
"Resolution "), and is subject to all the terms and conditions of the Resolution. All terms,
conditions and provisions of the Resolution including without limitation remedies in the Event
of Default are by this reference thereto incorporated herein as a part of this Note. Payment of
this Note is secured by the Pledged Revenues of the Issuer. Terms used herein in capitalized
form and not otherwise defined herein shall have the meanings ascribed thereto in the
Resolution.
Principal of and interest on this Note is payable in lawful money of the United States of
America at such place as the Owner may designate to the Issuer in writing. If any date for the
payment of principal and interest hereon shall fall on a day which is not a Business Day (as
A -1
defined in the Resolution the payment due on such date shall be due on the next succeeding
day which is a Business Day, but the Issuer shall not receive credit for the payment until it is
actually received by the Owner.
All payments by the Issuer pursuant to this Note shall apply first to accrued interest,
then to other charges due the Owner, and the balance thereof shall apply to principal.
The Issuer has designated this Note as a "qualified tax - exempt obligation" within the
meaning of Section 265(b)(3) of the Code in the Resolution.
Should subsequent but currently unforeseen actions by the Issuer cause this Note to not
be classified as a "qualified tax - exempt obligation" pursuant to Section 265(b)(3) of the Internal
Revenue Code of 1986, as amended, the interest rate on this Note shall be adjusted to that level
necessary to ensure that the anticipated after tax yield contemplated by the Owner at the time of
issuance of this Note is received. In addition, in the event that the interest on this Note is ever
determined to be taxable for purposes of state income taxation, or in the event that any or all of
the interest on this Note is deemed to be included in the gross income of the Owner for state
income taxation, or in the event the Owner is unable to deduct any other amounts as a result of
purchasing or carrying this Note, or in the event of a change in the alternative minimum tax or
in the method of calculating the alternative maximum tax to which the Owner may be subject,
or in the event of any action which would otherwise decrease the after tax yield to the Owner,
the interest on this Note shall be adjusted to that level necessary to ensure that the anticipated
after tax yield contemplated by the Owner at the time of issuance of this Note is received. In no
event, however, shall the interest rate on this Note exceed the maximum rate permitted by law.
If, after the date of issuance of this Note, the Original Purchaser shall have reasonably
determined that a Change in Law shall have occurred that has or would have the effect of
reducing the rate of return on the Original Purchaser's capital on this Note as a consequence of
its ownership of this Note or otherwise, to a level below that which the Original Purchaser
could have achieved but for such adoption, change or compliance (taking into consideration the
legal requirements with respect to capital adequacy) by an amount deemed by the Original
Purchaser to be material, then from time to time, promptly upon demand by the Original
Purchaser, the Issuer hereby agrees to pay the Original Purchaser such additional amount or
amounts as will compensate the Original Purchaser for such reduction; provided however, no
such demand for reimbursement shall be effective until the Original Purchaser delivers to the
Issuer a certificate (each a "Certificate "), no less than sixty (60) calendar days preceding the
effective date of such demand setting forth in reasonable detail the basis therefor and the
manner of calculation thereof which Certificate shall be conclusive (absent manifest error) as to
the amount set forth therein and such calculation shall also take into account any changes which
decrease the cost to the Original Purchaser. In determining any such amount, the Original
Purchaser may use any reasonable averaging and attribution methods. Concurrently with the
presentation of each Certificate, the Issuer shall also be provided written certification from the
Original Purchaser that all of the Original Purchaser's outstanding loans of like type to this
A -2
Note are also being required to compensate the Original Purchaser due to the change in capital
adequacy requirements. Upon receipt of the Certificate, the Issuer may request the Original
Purchaser (provided, the Original Purchaser is under no obligation to grant such request) to
delay all or a portion of the reimbursement payment attributable the Change in Law until the
first payment date occurring in the fiscal year following the Change in Law (the "Transition
Date "), then in such case, on the Transition Date the Issuer shall pay the Original Purchaser the
reimbursement amounts attributable to a Change in Law that remain due hereunder and are
unpaid. In addition, if, on or prior to sixty (60) calendar days after receipt of the Certificate, the
Issuer prepays this Note pursuant Section 9 of the Resolution, no amounts shall be due from the
Issuer to the Original Purchaser with respect to a Change in Law. Notwithstanding the
foregoing, no reimbursing amounts due and owing to the Original Purchaser pursuant to this
paragraph shall have the effect of causing the Interest Rate on this Note to exceed the maximum
amounts allowed pursuant to Section 215.84, Florida Statues or any other applicable provision
of law.
This Note shall be subject to prepayment at the option of the Issuer in whole or in part at
any time without penalty, upon two (2) Business Days' prior written notice to the Original
Purchaser. Such prepayment notice shall specify the amount of the prepayment which is to be
made. In the event the prepayment of this Note under Section 9 of the Resolution, the Issuer
may be required to pay the Original Purchaser an additional fee (a prepayment charge or
premium) determined in the manner provided below, to compensate the Original Purchaser for
all losses, costs and expenses incurred in connection with such prepayment.
In case of an Event of Default (as defined in the hereinafter defined Resolution), the
Owner may declare the entire debt then remaining unpaid hereunder immediately due and
payable; and in any such default and acceleration, the Issuer shall also be obligated to pay as
part of the indebtedness evidenced by this Note, all costs of collection and enforcement hereof,
including such reasonable legal fees and expenses as may be incurred, including on appeal or
incurred in any proceeding under bankruptcy laws as they now or hereafter exist. Upon the
occurrence of and during the continuation of an Event of Default, the interest rate on this Note
shall be increased to the lesser of 25% per annum or the maximum rate permitted by law.
The Issuer to the extent permitted by law hereby waives presentment, demand, protest
and notice of dishonor.
THIS NOTE DOES NOT CONSTITUTE A GENERAL INDEBTEDNESS OF THE ISSUER
WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY OR CHARTER
PROVISION OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE HOLDER OF THIS
NOTE THAT SUCH NOTEHOLDER SHALL NEVER HAVE THE RIGHT TO REQUIRE OR
COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER OF THE ISSUER OR
TAXATION OF ANY REAL OR PERSONAL PROPERTY THEREIN FOR THE PAYMENT OF
THE PRINCIPAL OF AND INTEREST ON THIS NOTE OR THE MAKING OF ANY OTHER
PAYMENTS PROVIDED FOR IN THE RESOLUTION, OR BE ENTITLED TO PAYMENT OF
A -3
SUCH NOTE FROM ANY FUNDS OF THE ISSUER EXCEPT FROM THE PLEDGED
REVENUES.
This Note may be exchanged or transferred by the Owner hereof but only upon the
registration books maintained by the Issuer and in the manner provided in the Resolution.
It is hereby certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution, delivery and the
issuance of this Note do exist, have happened and have been performed in due time, form and
manner as required by law, and that the issuance of this Note is in full compliance with and
does not exceed or violate any constitutional or statutory limitation.
THE ISSUER, AND THE OWNER, BY ACCEPTANCE OF THIS NOTE, AGREE TO
WAIVE TRAIL BY JURY IN ANY CONTROVERSY OR CLAIM BETWEEN THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS.
A -4
IN WITNESS WHEREOF, the City of Ocoee, Florida has caused this Note to be executed
in its name by the manual signature of its Mayor and attested by the manual signature of its
City Clerk, and its seal to be impressed hereon, all this day of , 2011.
CITY OF OCOEE, FLORIDA
[SEAL]
By:
Mayor
Attest:
City Clerk
APPROVED AS TO FORM:
City Attorney
A -5
CERTIFICATE OF AUTHENTICATION
This Note is one of this Notes issued under the provisions of the within mentioned
Resolution.
SUNTRUST BANK,
Registrar, as Authenticating Agent
Date of Authentication:
By
Authorized Officer
ASSIGNMENT AND TRANSFER
For value received the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of transferee) the attached Note of the
City of Ocoee, Florida, and does hereby constitute and appoint
, attorney, to transfer the said Note on the books
kept for registration thereof, with full power of substitution in the premises.
Date:
By: (manual signature) NOTICE: No transfer will be registered and no
Title: new Note will be issued in the name of the
Transferee, unless the signature to this assignment
corresponds with the name as it appears upon the
face of the within Note every particular, without
alteration or enlargement or any change whatever
and the Social Security or Federal Employer
Identification Number of the Transferee is
supplied.
Signature Guaranteed by
[member firm of the New York
Stock Exchange or a commercial
bank or a trust company.]
A -6
SCHEDULE A
Principal and Interest Repayment Schedule
A -7
EXHIBIT B
FORM OF ESCROW DEPOSIT AGREEMENT
A -1
of Advertisement (that ran in the print rn
Date Published end Medici Name
oc\gin =; ne_t KakieMber acA
Advertisement or Article
NOTICE OF PUBLIC BEARING
CITY OF OCOEE
Notice is hereby given pursuant to the
Charter of the City of Ocoee Florida
(the "City ") that the Board of City
Commissioners at a session to be held
on December 6, 2011 at 7:15 p.m. or as
soon thereafter as practical, will hold
a Public Hearing at Ocoee City Hall,
150 N. Lakeshore Drive, Ocoee, Flori-
da in order to consider the issuance of
not to exceed 98,400,000 Capital Im-
provement Refunding Revenue Note,
Series 2011 for the purpose of refunding
the remaining portion of the City's out-
standing Capital Improvement Reve-
• nue Bonds, Series 1999 (the "1999
i
Bonds "). The 1999 Bonds were ssued
to: (1) finance certain capital Im-
provements within the City, including
but not limited to, the construction of
an Olympic -sized swimming pool and
o bath house, the acquisition of adjoin-
ing land and the construction of a ve-
hicle fueling facility, a vehicle mainte-
nance facility and an administration
facility, the acquisition and construc-
tion of the Police Department includ-
ing land acquisition and building de-
sign costs and the acquisition of park
land, (ii) advance refund the City's
outstanding Capitol Improvement Rev-
, enue Bonds, Series 1991 (the "1991
Bonds ") and (111) currently refund the
City's outstanding Capital improve-
ment Revenue Promissory Note, Se-
ries 1996 (the "1996 Nate "). Both the
1991 Bonds and the 1996 Note were is-
sued to finance the cost of certain cap-
itol improvements within the City. In-
terested parties may appear at the
meeting and be heard with respect to
the proposed action. A copy of the pro-
posed action may be examine at
Ocoee City Hall, 150 N. Lakeshore
Drive, Ocoee, Florida between the
hours of 8:00 a.m. and 5:00 P.m., Mon-
day through Friday. You are advised
that if a person decides to appeal any
decision made with respect to any
matter considered at such hearing, he
or she will need a record of proceed-
ings and for such purpose may need to
insure that a verbatim record of the
proceeding is made, which record in-
cludes the testimony and evidence up-
on which the appeal is based. Persons
with disabilities needing assistance to
participate in any of these proceedings
should contact the City Clerk's office
48 hours in advance of the meeting at
(407) 656.2322.
Beth-Eiyrnberry, CMC, City Clerk
COij1)4833 11/23/2011
•