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R-2013-34 CITY OF CLERMONT RESOLUTION NO. 2013-34 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLERMONT, FLORIDA, AMENDING AND SUPPLEMENTING RESOLUTION NO. 1258 ADOPTED BY THE CITY COUNCIL ON JUNE 6,2002,AS AMENDED AND SUPPLEMENTED BY RESOLUTION NO. 2012-33 ADOPTED BY THE CITY COUNCIL ON OCTOBER 9, 2012, WHICH RESOLUTION AUTHORIZED THE ISSUANCE BY THE CITY OF PUBLIC IMPROVEMENT REVENUE BONDS AS PROVIDED THEREIN; FOR THE PURPOSES OF AMENDING CERTAIN PROVISIONS OF SUCH RESOLUTION TO PROVIDE THAT THE LOCAL GOVERNMENT HALF- CENT SALES TAX PLEDGED TO SECURE THE PAYMENT OF THE PUBLIC IMPROVEMENT REVENUE BONDS ISSUED PURSUANT TO SUCH RESOLUTION SHALL ONLY SECURE THE PAYMENT OF THE PUBLIC IMPROVEMENT REFUNDING REVENUE NOTE, SERIES 2012 ISSUED THEREUNDER AND SHALL NOT SECURE THE PAYMENT OF ANY OTHER ADDITIONAL BONDS HEREAFTER ISSUED THEREUNDER; AND PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Clermont, Lake County, Florida as follows: SECTION 1. DEFINITIONS All terms used in this Resolution (this "Supplemental Resolution"), which are not defined herein, shall have the meanings specified in the Resolution No. 1258 adopted by the City Council (the "City Council") of the City of Clermont, Florida (the "City"), on June 6, 2002, as amended and supplemented by Resolution No. 2012-33 adopted by the City Council on October 9, 2012 (collectively, the "Original Resolution"), which provides for the issuance by the City of public improvement revenue bonds. The Original Resolution as amended and supplemented by this Supplemental Resolution is hereinafter referred to as the"Bond Resolution." SECTION 2. AUTHORITY FOR THIS SUPPLEMENTAL RESOLUTION This Supplemental Resolution is adopted pursuant to the provisions of Chapter 166, Part II, Florida Statutes, as amended, and other applicable provisions of law. SECTION 3. FINDINGS It is hereby ascertained, determined and declared: (A) It is desirable and in the best financial interests of the City to amend certain provisions of the Original Resolution to provide that the Sales Tax pledged to secure the payment of bonds issued pursuant to the Original Resolution shall only secure the payment of the Public Improvement Revenue Refunding Note, Series 2012 issued thereunder and shall not secure the payment of any other Additional Bonds hereafter issued thereunder. 1 (B) Section 7.2 of the Original Resolution permits the Original Resolution to be amended as hereinafter provided pursuant to and in accordance with the provisions thereof upon receipt of the consent of not less than a majority in aggregate principal amount of the Bonds then outstanding. (C) SunTrust Bank, the Holder of the Public Improvement Revenue Refunding Note, Series 2012, which is the only Bond currently Outstanding under the Original Resolution, has consented to the amendments to be made pursuant to Section 4 of this Supplemental Resolution, a copy of which consent is attached hereto as Exhibit A. SECTION 4. AMENDMENTS TO ORIGINAL RESOLUTION (A) Section 1.1 of the Original Resolution is hereby amended to add a new definition in alphabetical order of"Sales Tax Fund"to read as follows: "Sales Tax Fund" shall mean the Sales Tax Fund established pursuant to Section 4.4 hereof. (B) Section 1.1 of the Original Resolution is hereby amended to add a new definition in alphabetical order of"Series 2012 Note"to read as follows: "Series 2012 Note" shall mean the City's outstanding City of Clermont, Florida Refunding Revenue Notes, Series 2012, dated October 18, 2012, issued as an Additional Bond under the Resolution on October 18, 2012. (C) Section 1.1 of the Original Resolution is hereby amended to add a new definition in alphabetical order of"Balloon Indebtedness"to read as follows: "Balloon Indebtedness" shall mean debt twenty-five percent (25%) or more of the original principal amount of which matures during any one Fiscal Year. (D) Section 1.1 of the Original Resolution is hereby amended to add a new definition in alphabetical order of"Option Bonds"to read as follows: "Option Bonds" shall mean Bonds subject to tender for payment prior to their matunty at the option of the Holder thereof. (E) The definition of "Debt Service Requirement" contained in Section 1.1 of the Original Resolution is hereby amended to add a new paragraph (4) thereto immediately following paragraph (3) thereto, to read as follows: (4) For purposes of determining the Debt Service Requirement for any Bond Year pursuant to paragraphs (1), (2), and (3) of this definition, the Debt Service Requirement on debt that constitutes Balloon Indebtedness, whether bearing interest at a fixed interest rate or, Balloon Indebtedness that constitutes Variable Rate Bonds, shall be determined assuming it is 2 amortized over 20 years on an approximately level annual debt service basis. If Bonds are Option Bonds, the date or dates of tender shall be disregarded, unless actually tendered and not remarketed, and the stated maturity dates thereof shall be used for purposes of this calculation. (F) The definition of "Pledged Funds" contained in Section 1.1 of the Original Resolution is hereby amended and restated in its entirety to read as follows: "Pledged Funds" shall mean the Pledged Revenues (provided that the Sales Tax shall only secure the payment of the Series 2012 Note and shall not secure the payment of any Additional Bonds issued hereunder), and, until applied in accordance with the provisions of this Resolution, the proceeds of the Bonds and all moneys, including investments thereof, in the Restricted Revenue Account and the Debt Service Fund (provided that the Sales Tax Fund shall only secure the payment of the Series 2012 Note and shall not secure the payment of any Additional Bonds). (G) The definition of "Pledged Revenues" contained in Section 1.1 of the Original Resolution is hereby amended and restated in its entirety to read as follows: "Pledged Revenues" shall mean the Public Service Tax, the Communications Tax and the Sales Tax; provided, however, that the Sales Tax shall only secure the payment of the Series 2012 Note and shall not secure the payment of any Additional Bonds issued hereunder after December 10, 2013, all in the manner to the extent provided herein. (H) The first paragraph of Section 4.4 (entitled "Funds and Accounts") of the Original Resolution is hereby amended and restated in its entirety to read as follows: The Issuer covenants and agrees to establish with one or more Authorized Depositones separate funds to be known as the "City of Clermont Public Improvement Revenue Bonds Revenue Fund," the "City of Clermont Public Improvement Revenue Bonds Debt Service Fund," the "City of Clermont Public Improvement Revenue Bonds Rebate Fund," the "City of Clermont Public Improvement Revenue Bonds Note Payment Fund" and the "City of Clermont Sales Tax Fund." The Issuer shall maintain in the Revenue Fund two accounts: the "Restricted Revenue Account" and the "Unrestricted Revenue Account." The Issuer shall maintain in the Debt Service Fund four accounts: the "Interest Account," the "Principal Account," the "Bond Amortization Account," and the "Reserve Account." Moneys in the Restricted Revenue Account, the Debt Service Fund and the Sales Tax Fund, until applied in accordance with the provisions hereof, shall be subject to a lien and charge in favor of the Holders and for the further security of the Holders, (provided that the Sales Tax Fund shall only secure the Series 2012 Note), all in the manner and to the extent provided herein. 3 (I) The lead-in clause set forth in paragraph (A) of Section 4.5 of the Original Resolution (entitled "Flow of Funds") is hereby amended and restated in its entirety to read as follows: (A) The Issuer shall deposit the Public Service Tax and the Communications Tax into the Restricted Revenue Account, promptly upon receipt. On or before the 25th day of each month, the monies in the Restricted Revenue Account shall be deposited or credited in the following manner in the following order of priority: (J) Section 4.5 of the Original Resolution (entitled "Flow of Funds") is hereby amended to add at the end of such section a new paragraph(F)to read as follows: (F) Sales Tax Fund. The Issuer shall deposit all Sales Tax into the Sales Tax Fund promptly upon receipt thereof. After the 25th day of each month, and on or before the 28th day of each month, after the Issuer shall have applied the moneys in the Restricted Revenue Account as required in Section 4.5(A) hereof, to the extent of any deficiencies in the amounts required to be deposited into the Interest Account, the Principal Account or the Bond Amortization Account related and allocable to the payment of debt service on the Series 2012 Note, pursuant to Section 4.5(A) above, the Issuer shall deposit into or credit into the Interest Account, the Principal Account, or the Bond Amortization Account, as applicable, the amount of any such deficiencies therein so as to cure any deficiencies thereto to the extent the amounts on deposit in the Sales Tax Fund are sufficient for such purposes, but only to the extent such monies are required to pay the debt service on the Series 2012 Note. Notwithstanding any other provisions contained herein to the contrary, the Sales Tax shall only be applied to the payment of debt service on the Series 2012 Note and shall not be applied to the payment of debt service on any Additional Bonds. Not later than the last day of each month, the balance of any moneys remaining on deposit in the Sales Tax Fund after the payments described in this paragraph have been made, shall be transferred by the Issuer to any other appropriate fund or account of the Issuer and be used by the Issuer for any lawful purpose. When the Series 2012 Note shall have been paid in full or defeased in accordance with the provisions of this Resolution and is no longer Outstanding under the Resolution, then the lien on the Sales Tax shall be released automatically, without any further act, no additional Sales Tax shall be deposited into the Sales Tax Fund, and the Sales Tax Fund shall be closed. 4 (K) The first two paragraphs of Section 4.7 of the Onginal Resolution (entitled "Investments") are hereby amended and restated in their entirety to read as follows: The Construction Fund, the Restricted Revenue Account, the Debt Service Fund, the Sales Tax Fund and the Note Payment Fund shall be continuously secured in the manner by which the deposit of public funds are authorized to be secured by the laws of the State. Moneys on deposit in the Construction Fund, the Restricted Revenue Account, the Debt Service Fund, the Sales Tax Fund and the Note Payment Fund, other than the Reserve Account, may be invested and reinvested in Authorized Investments maturing not later than the date on which the moneys therein will be needed. Moneys on deposit in the Reserve Account may be invested or reinvested in securities provided in clauses (1) through (9) of the definition of Authorized Investments which shall mature no later than five(5) years from the date of acquisition thereof. Any and all income received by the Issuer from the investment of moneys in the Construction Fund, the Rebate Fund, the Note Payment Fund, the Sales Tax Fund and in the Restricted Revenue Account in the Revenue Fund and in the Interest Account, the Pnncipal Account, the Bond Amortization Account and the Reserve Account (to the extent the amount therein is less than the Reserve Account Requirement) in the Debt Service Fund shall be retained in such respective fund or account unless otherwise required by applicable law. To the extent that the amount in the Reserve Account is greater than the Reserve Account Requirement, any and all income received by the Issuer from the investment of moneys in the Reserve Account shall be deposited in the Interest Account. (L) Paragraph (B) of Section 5.2 of the Original Resolution (entitled "Issuance of Additional Bonds") is hereby amended and restated in its entirety to read as follows: (B) There shall have been obtained and filed with the Issuer a certificate of an independent certified public accountant: (1) stating that such accountant has examined the books and records of the Issuer relating to collection and receipt of the Public Service Tax and Communication Tax; (2) setting forth the amount of Public Service Tax and Communication Tax for the immediately preceding Fiscal Year for which audited financial statements are available or any twelve (12) consecutive months selected by the Issuer from the twenty four (24) months immediately preceding the issuance of such Additional Bonds; (3) stating that such Public Service Tax and Communication Tax equal at least (a) the Required Coverage Ratio times the Maximum Debt Service Requirement of all Outstanding Bonds and such Additional Bonds then proposed to be issued and (b) 1.00 times the maximum annual debt service for all Subordinated Indebtedness then outstanding; and (4) stating that no Event of Default was disclosed in 5 the report of the most recent Annual Audit, or if such Event of Default was so disclosed, that it shall have been cured. (M) Section 5.1.1 of the Original Resolution (entitled "Coverage Requirement") is hereby amended and restated in its entirety to read as follows: The Issuer covenants and agrees that, with the prior written consent of each Insurer, the Issuer shall amend the definition of Pledged Revenues to include additional legally available non-ad valorem revenues to the extent necessary to provide Pledged Revenues (exclusive of the Sales Tax) in each Fiscal Year adequate at all times to pay in each Fiscal Year at least the Required Coverage Ratio times the current annual Debt Service Requirement becoming due in such Fiscal Year on each Series of Outstanding Bonds and at least one hundred percent (100%) of any amounts required by the terms hereof to be deposited in the Reserve Account or with any issuer of a Reserve Account Letter of Credit or Reserve Account Insurance Policy in such Fiscal Year. SECTION 5. ORIGINAL RESOLUTION TO REMAIN IN FULL FORCE AND EFFECT The Original Resolution, as amended and supplemented by this Supplemental Resolution, shall remain in full force and effect. SECTION 6. EFFECTIVE DATE This Supplemental Resolution shall take effect immediately upon its adoption. 6 DONE AND RESOLVED by the City Council of the City of Clermont, Lake County, Florida this 10th day of December, 2013. `\��o�e� anpri;• CITY OF CLERMONT ,' e `4 L,1.:'''. .., ' '(OFF DIAL SEAL) " ;�,-- ,ATTEST: ` ' ;� – r �• r• : a, .. , , r., mayor —� �/ Tracy Ackro, 4, City Clerk V Approve s -. : , and legality: gabilliP � ; !r/r�� _ � - �- zaris, City Attorne 1 7 4826-0395-5222 3 EXHIBIT "A" CONSENT OF SUNTRUST BANK (as Holder of the outstanding Public Improvement Refunding Revenue Note, Series 2012) The undersigned authorized representative of SunTrust Bank (the "Bank"), as Holder of the outstanding City of Clermont, Florida, Public Improvement Revenue Refunding Note, Series 2012, dated October 18,2012, and related Loan Agreement, dated October 18,2012,between the City of Clermont,Florida(the"City")and the Bank, issued under and pursuant to Resolution No. 1258 adopted by the City Council of the City on June 6, 2002, as amended and supplemented by Resolution No. 2012-33 adopted by the City Council of the City on October 9, 2012 (the "Bond Resolution"), hereby consents pursuant to and in accordance with Section 7.2 and other applicable provisions of the Bond Resolution to the amendments to the Bond Resolution contained in Section 4 of the Supplemental Resolution to be adopted by the City Council of the City on December 10,2013, a copy of which is attached hereto. Dated: December 10,2013 SUNTRUST BANK By: Name: tAft �( � vVt C. av tel Title: r (V S Vice r VeS i s v\, 7 4826-0395-5222 4