Loading...
Res 47-08A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $3,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF REVENUE IMPROVEMENT BONDS, SERIES 2008 (TAXABLE), OF THE CITY OF DELRAY BEACH, FLORIDA FOR THE PURPOSE OF FINANCING A PORTION OF THE CITY'S OLD SCHOOL SQUARE PARKING GARAGE PROJECT, INCLUDING WITHOUT LIMITATION REIMBURSEMENT FOR LAND ACQUISITION AND CONSTRUCTION COSTS AND ALL INCIDENTAL AND NECESSARY COSTS RELATING THERETO; DETERMINING. THE NEED FOR A NEGOTIATED SALE OF SUCH BONDS TO TD BANK, N.A.; PROVIDING FOR THE TERMS AND PAYMENT OF SAID REVENUE IMPROVEMENT BONDS, SERIES 2008 (TAXABLE) AND THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SAID REVENUE IMPROVEMENT BONDS, SERIES 2008 (TAXABLE); APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A BOND PURCHASE AGREEMENT WITH TD BANK, N.A.; AUTHORIZING THE PROPER OFFICERS OF THE CITY TO DO ALL OTHER THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION WITH THE ISSUANCE OF SAID REVENUE IMPROVEMENT BONDS, SERIES 2008 (TAXABLE); AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Delray Beach, Florida (the "City Commission"), hereby determines that it is in the best interest of the City of Delray Beach, Florida (the "City"), to finance certain costs relating to the acquisition and construction of the City's Old School Square Parking Garage Project, as further described on Exhibit C attached hereto, together with all incidental and necessary costs relating thereto (the "2008 Project"); and WHEREAS, on December 14, 1999, the City Commission did adopt Resolution No. 76-99 (the "Bond Resolution") authorizing the issuance, from time to time, of revenue bonds (the "Bonds") to financial capital projects in the City; and WHEREAS, any capitalized term used in this Resolution and not otherwise defined, shall have the meaning ascribed to such term in the Bond Resolution; and WHEREAS, pursuant to the Bond Resolution, each series of Bonds issued thereunder shall be payable from the City's covenant contained in the Bond Resolution to budget and appropriate in each Fiscal Year, by budget amendment if necessary, Non-Ad Valorem Revenues and deposit the same in the Debt Service Fund created and established under the Bond Resolution (herein, the "City's Covenant"); and WHEREAS, pursuant to the terms and provisions of the Bond Resolution and this Resolution, the City shall issue a series of Bonds known as "City of Delray Beach, Florida Revenue Improvement Bonds, Series 2008 (Taxable)" (herein, the "2008 Bonds") to finance the costs of the 2008 Project, including the costs of issuing such 2008 Bonds; and WHEREAS, the principal amount of the 2008 Bonds authorized under this Resolution exceed $3,000,000; and WHEREAS, the 2008 Bonds shall be secured by a pledge of and lien on the Pledged Revenues; and WHEREAS, City staff has previously solicited bids from qualified lending institutions to provide a closed-end line of credit as the vehicle by which the 2008 Bonds are to be issued and the 2008 Project is to be financed; and WHEREAS, City staff has determined and the City Commission hereby concurs that TD Bank, N.A., a national banking association organized under the laws of the United States with its designated office in Fort Lauderdale, Florida (herein, the "Bank") has provided the best overall bid to the City; and WHEREAS, the City Commission hereby finds that in light of present market conditions, the aforementioned bid provided by the Bank, the necessity for the funds in calendar year 2008 and calendar year 2009 and other factors described herein, it would be in the best interest of the City to sell the 2008 Bonds to the Bank on a negotiated basis pursuant to the terms and provisions of the Bond Resolution, this Resolution and that certain Bond Purchase Agreement dated the date of delivery of the initial issuance of the 2008 Bonds (herein, the "Agreement") by and between the City and the Bank in substantially the form attached hereto as Exhibit A; and WHEREAS, it is intended that interest on the 2008 Bonds will be includable in the gross income of the Bank for federal income tax purposes. NOW, THEREFORE, be it resolved by the City Commission of the City of Delray Beach, Florida, as follows: ARTICLE I STATUTORY AUTHORITY; FINDINGS AND DEFINITIONS Section 1.1 AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of the Charter of the City of Delray Beach, Florida, as amended and supplemented, the Florida Constitution, Chapter 166, Florida Statutes, as amended and supplemented and other applicable provisions. of law (collectively, the "Act") and the authority provided for in the Bond Resolution. Section 1.2 FINDINGS. It is hereby ascertained, determined and declared: (a) That the City hereby authorizes that the 2008 Project be financed from a portion of the proceeds derived from the 2008 Bonds issued pursuant to this Resolution, together with all incidental and necessary costs and expenses associated therewith, as more fully set forth in Section 1.2(d) hereof. (b) That the City Commission has previously determined it to be necessary and in the best economic interest of the City to acquire, construct and implement the Old School Square Parking Garage Project in order to provide public parking and promote commerce in the East Atlantic Avenue corridor. 2 Resolution No. 47-08 (c) That the 2008 Project will serve a valid municipal purpose. (d) That the cost of the 2008 Project shall be deemed to include, but not be limited to, the cost of acquisition, construction, improving, renovating and equipping a portion of the Old School Square Parking Garage Project including without limitation the reimbursement of such capital expenditures previously made by the City, the cost of all real or personal property necessary therefor; administrative expenses; design, engineering and legal expenses; the fees and expenses of Bond Counsel; expenses for estimates of costs; expenses for plans, specifications, licenses and permits; and such other expenses as may be necessary or incidental to the financing of the 2008 Project and the issuance of the 2008 Bonds herein authorized. (e) That the principal of and interest on the 2008 Bonds shall be secured solely by the Pledged Revenues in the manner provided herein, provided that the Owner of the 2008 Bonds shall have no lien on any Non-Ad Valorem Revenues until deposited into the Debt Service Fund. The ad valorem taxing power of the City will never be necessary or authorized to pay the principal of and interest on the 2008 Bonds and the 2008 Bonds issued pursuant to this Resolution shall not constitute a lien upon any other property whatsoever of or in the City. (f) That the City, having previously solicited bids for the sale of the 2008 Bonds, has determined that the best qualified bid for the 2008 Bonds was delivered by the Bank. (g) That the negotiated sale of the 2008 Bonds to the Bank is in the best interest of the City by reason of the nature of and schedule for the completion of the 2008 Project, the ability to receive advances of the proceeds of the 2008 Bonds when needed for the construction of the 2008 Project and present market conditions. (h) That the Agreement, in the form attached hereto as Exhibit A, is hereby approved, with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof and the Mayor (or in his absence, the Vice Mayor) and City Clerk are hereby authorized to execute the same on behalf of the City. (i) That pursuant to the provisions of the Bond Resolution and this Resolution, the City may issue obligations in the future secured by Pledged Revenues. (j) That any capitalized term not otherwise defined herein, shall have the meaning ascribed to such term in the Bond Resolution. Section 1.3 DEFINITIONS. That, in addition to terms defined elsewhere in this Resolution, the following terms shall have the following meanings unless the context otherwise clearly requires: "Bond Counsel" shall mean Greenberg Traurig, P.A. or any other firm of nationally recognized bond counsel selected by the City and acceptable to the Bank. "Bond Resolution" shall mean Resolution No. 76-99, adopted by the City Commission on December 14, 1999. 3 Resolution No. 47-08 "Business Day" shall mean any day other than a Saturday or Sunday, or a aay on or London banks are closed. "City" shall mean the City of Delray Beach, Florida, a municipal corporation in the County of Palm Beach, State of Florida and its successors and assigns. "City Commission" shall mean the duly constituted governing body of the City. "Closing Date" shall mean the date the City issues the authorized principal amount of the 2008 Bonds. "Default Rate" shall mean three hundred basis points above the actual Interest Rate in effect immediately prior to any default by the City under this Resolution. "Interest Rate" shall mean with respect to the 2008 Bonds, unless the 2008 Bonds bear interest at the Default Rate, a variable rate of interest on the 2008 Bonds which shall be equal to 62.5 basis points above LIBOR. The Interest Rate shall be calculated on the basis of a 360 day year of twelve thirty-day months and shall be recalculated by the Bank on the first business day of each month. "LIBOR" shall mean the rate of interest (rounded upwards if necessary to the next 100`h of one percent) equal to the British Bankers Association LIBOR ("BBA LIBOR") as published by Bloomberg (or such other commercially available source providing quotations of BBA LIBOR as designated by the Bank from time to time) at approximately 11:00 A.M. (London time) 2 Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period; provided however, if more than one BBA LIBOR is specified, the applicable rate shall be the arithmetic mean of all such rates. If, for any reason, such rate is not available, the term LIBOR shall mean the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the Bank to be the average rates per annum at which deposits in dollars are offered for such LIBOR Interest Period to major banks in the London Interbank Market in London, England at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period. The effective interest rate applicable to the 2008 Bonds shall change at the end of each Interest Period. LIBOR Interest Period means initially, a period of one month; provided however, (i) if any LIBOR Interest Period would end on a day which is not a Business Day, such LIBOR Interest Period shall be extended to the next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding calendar month, then on the next preceding Business Day), (ii) no LIBOR Interest Period shall extend beyond the Maturity Date and (iii) any LIBOR Interest Period with respect to the 2008 Bonds that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such LIBOR Interest Period) shall end on the last Business Day of the relevant calendar month at the end of such LIBOR Interest Period. "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the 2008 Bonds, June 1, 2013. "Owner," "Bondholder" or "registered holder" or any similar term shall mean the Bank or, subject to the provisions of Section 2.4 hereof, any successor registered holder of the 2008 Bonds; provided no 4 Resolution No. 47-08 Bondholder may be the registered owner of less than $1,000,000 in the aggregate principa 2008 Bonds. "Paying Agent" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Paying Agent hereunder. "Payment Date" shall mean, with respect to interest on the 2008 Bonds, each June 1 and December 1, commencing December 1, 2008 and with respect to principal on the 2008 Bonds, the Maturity Date and on any other date the principal of the 2008 Bonds is optionally prepaid in whole or in part, provided that if such date is not a Business Day, the payment shall be made on the next succeeding Business Day. "Pledged Revenues" shall mean (a) with respect to interest on the 2008 Bonds, (i) the Non-Ad Valorem Revenues deposited in the Debt Service Fund created and established under the Bond Resolution, (ii) investment income received from the investment of moneys in the Debt Service Fund and accounts established thereunder and (iii) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the payment of interest on the 2008 Bonds; (b) with respect to the payment of the principal of the 2008 Bonds on the Maturity Date, or earlier prepayment date (i) the Non-Ad Valorem Revenue deposited in the Debt Service Fund pursuant to the City's Covenant and (ii) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the repayment of the 2008 Bonds. "Registrar" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Registrar hereunder. "Resolution" shall mean this Resolution as the same may from time to time be amended and supplemented in accordance with the terms hereof. "2008 Bonds" shall mean the not to exceed $3,000,000 aggregate principal amount of Revenue Improvement Bonds, Series 2008 (Taxable), authorized by the Bond Resolution and this Resolution Words importing singular number shall include the plural number and vice versa, as the case may be and words importing persons shall include firms and corporations. Section 1.4 RESOLUTION AND BOND RESOLUTION CONSTITUTE CONTRACT. In consideration of the acceptance of the 2008 Bonds authorized to be issued hereunder by those who shall own the same from time to time, this Resolution and the Bond Resolution shall be deemed to be and shall constitute a contract between the City and the Bondholders and the covenants and agreements herein and therein set forth to be performed by said City shall be for the benefit, protection and security of the Bondholders. 5 Resolution No. 47-08 AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF 2008 BONDS Section 2.1 AUTHORIZATION OF 2008 BONDS. Subject and pursuant to the provisions of this Resolution and the Bond Resolution, obligations of the City of Delray Beach, Florida, to be known as "Revenue Improvement Bonds, Series 2008 (Taxable)" are hereby authorized to be issued in the aggregate principal amount of not exceeding Three Million Dollars ($3,000,000) for the purpose of financing the costs of the 2008 Project. Section 2.2 DESCRIPTION OF 2008 BONDS. Notwithstanding. the form of Bonds set forth in the Bond Resolution, the text of the 2008 Bonds shall be substantially in the form attached hereto as Exhibit B with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof. The 2008 Bonds (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance of such 2008 Bonds. The 2008 Bonds shall be issued in registered form. Unless the interest rate on the 2008 Bonds is adjusted in accordance with Section 3.7 hereof, the 2008 Bonds shall bear interest on the outstanding principal amount of the 2008 Bonds at the Interest Rate and shall be payable on each Payment Date, commencing December 1, 2008. Unless all or a portion of the 2008 Bonds is optionally prepaid in accordance with the terms of this Resolution, the outstanding principal of the 2008 Bonds shall be payable on the Maturity Date. The 2008 Bonds shall be issued in a not to exceed principal amount of $3,000,000, but the actual principal amount of the 2008 Bonds outstanding will be determined by the amount of proceeds advanced by the Bank to the City on the Closing Date. Principal and interest on the 2008 Bonds shall be payable at the office of the Paying Agent (the designated corporate trust office of the Paying Agent if the City's Finance Department is not the Paying Agent). The 2008 Bonds shall be numbered in such manner as may be prescribed by the Registrar. The 2008 Bonds shall be payable, with respect to interest and principal, 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 and private debts. Subject to the next succeeding paragraphs, the City may prepay the 2008 Bonds in whole or in part, at any time or from time to time, without penalty or premium, by paying to the registered holder all or part of the principal amount of the 2008 Bonds, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than two (2) Business Days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of the 2008 Bonds is to be paid, upon presentation and surrender of the 2008 Bonds to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) and (ii) in case only part of the unpaid balance of principal of the 2008 Bonds is to be paid, upon presentation of such 2008 Bonds at the office of the Paying Agent (the 6 Resolution No. 47-08 's Finance v~Na~ ~"'~~ "~ rincipal in A ent is not the Citylacement 2008 Bond in the p designated corporate trust office, if the Pa d or for issuance of a rep e amount of principal then p ii above, if all of the 2008 Bonds are thereon of th the provisions of clause (~~) a meet to the Bank of the re a meet may be effected by p Y If, on the amount not redeemed. Notwithstandin artial p P Y re is ~ Brest accrued thereon, without nt to der of the 2008 Bon s• tered in the name of the Bank, a P be prepaid, together with unpthe g ether with unpaid int rincipal amou rovided, principal, tog a meet of the p in Agent, as above P a meet meet date, funds for the p Y rovided to the Pay and to bear interest until p Y prepay interest accrued thereon, shall not have been mount of the 2008 Bonds shall continue to be outstanding principal a istered m thereof at the Interest Rate. i or ii above, if all of the 2008 Bondnc~palrand interest Notwithstanding the provisions of clause (~) ()a meet to the Bank of the p the records of the the name of the Bank, payments shall be effectea d, s p h payment to be evidence and the Owner absent then due without s and der of the 2008 Bond so p such records shall be conclusive and binding upon the City City and the Bank manifest error. tl thereafter surrender a re ay meet date, funds for the on p meet in whole, the City under a ~ do full t't If, on the (prep Y p t date on such Up P the 2008 Bonds to the City marked satisfie or re aid, together with interest rov ded,rthenrfrom and after the payment of the principal amount to be p p rovided to the Owner, as above p p such rincipal amount of the 2008 Bondsdahich are prepaid shall cease o rincipal amount, shall have been p to the principal amount of such prepayment date interest on p aid on the prepaymen licable Interest Rate. accrue. If s shall cont nuel to bead interest untippayment thereof at the app 2008 Bonds shall not postpone the due dates of, or relieve the amountsre a s a Any partial prepayment aid rincipal of the 2008 Bonds. Once the City p p .Y the Bank shall have no obligation to repurchase such amount if t e a meets of interest due hereunder on the unp P pY principal amount of the 2008 Bonds, City shall subsequently issue a like amount. THE 2008 BONDS. The 2008 Bonded tsll°ffical seual shalltbe Section 2.3 EXECUTION OF or or Vice Mayor of the City a name of the City by the signature of the May the City Clerk. The signatures of the be manual or facsimile signatures. affixed thereto or imprinted or repro C to Clerk on the 2008 Bonds may 2008 Bonds shall cease to be Mayor or Vice Mayor of the City and Y c one or more of the officers whooshall have signed or sealed t e ase any nds so signed and sealed shall have be ovided alndsmay bd In before the 2008 B such officer of the City nevertheless be sold and delivered as herein p delivered, such 2008 Bonds may or sealed such 2008 Bonds had not cen Who at he actual time of h issued as if the person who signed such perso hall hold the proper office, although at {he date the 2008 Bonds shat 2008 Bonds may be signed and sealed on behalf of the City by have been so authorized. execution of the 2008 Bonds s not have held such office or may no actually delivered such person may ear thereon a certificate of authenticatioS , in the form set forth on Exh ' Finance Department shall The 2008 Bonds shall b the Registrar (when the City attached hereto, executed manually by the City's Finance Director) e istrar, the certificate of authentication uhall be manually executed y fo p ch certificate of authentication shall be antitleu pose u Rg the 2008 Bonds as shall bear thereon s RgS0lUtion and no 2008 Bonds shall be valid or obligatory benefit under' thlS 7 certificate of authentication shall have been duly executed by the Registrar. The certificate of authentication of the Registrar upon the 2008 Bonds executed on behalf of the City shall be conclusive evidence that the 2008 Bonds so authenticated have been duly authenticated and delivered under this Resolution and that the Owner thereof is entitled to the benefits of this Resolution. Section 2.4 NEGOTIABILITY REGISTRATION AND CANCELLATION. The Registrar shall keep books for the registration of the 2008 Bonds and for the registration of transfers of the 2008 Bonds. The 2008 Bonds shall be transferable at the option of the registered Owner thereof to an institutional holder, but subject to the prior written approval of the City's Director of Finance (which shall not be unreasonably withheld if the intended transferee provides a suitability letter addressed to the City as to the sophistication of the investor) unless such institutional holder is a bank or trust company, or unless such institutional holder, which is not a bank or trust company, certifies in writing to the City prior to the transfer that it is an accredited investor within the meaning of Rule 501 of the Securities Act of 1933, as amended and supplemented, in which case such approval shall not be required and upon surrender thereof at the office of the Registrar (the designated corporate trust office of the Registrar if the City's Finance Department is not the Registrar) with a written instrument of transfer satisfactory to the Registrar duly executed by the registered Owner or his duly authorized attorney. Upon the transfer of such 2008 Bond, the City shall issue in the name of the transferee a new 2008 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the 2008 Bonds shall be registered upon the books kept by the Registrar as the absolute Owner of such 2008 Bonds, whether such 2008 Bonds shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 2008 Bonds as the same become due and for all other purposes. All such payments so made to any such Owner or upon his/her order shall be valid and effectual to satisfy and discharge the liability upon such 2008 Bonds to the extent of the sum or sums so paid and neither the City, the Paying Agent nor the Registrar shall be affected by any notice to the contrary. In all cases in which the privilege of transferring the 2008 Bonds is exercised, the City shall execute and the Registrar shall authenticate and deliver the 2008 Bonds in accordance with the provisions of this Resolution. The 2008 Bonds surrendered in any such transfers shall forthwith be delivered to the Registrar and canceled by the Registrar in the manner provided in this Section. The City or the Registrar (if not the City's Finance Department) may require the payment of a sum sufficient to pay any tax, fee or other governmental charges required to be paid with respect to such transfer. The 2008 Bonds paid or redeemed, in whole, either at or before maturity, shall be delivered to the Registrar within a reasonable period of time after the payment or redemption is made and such 2008 Bonds shall thereupon be canceled upon written acknowledgement from the Owner that the 2008 Bonds have been paid in whole. The 2008 Bonds so canceled may at any time be destroyed by the Registrar, who shall execute a certificate of destruction in duplicate by the signature of one of its authorized officers describing the 2008 Bonds and one executed certificate shall be filed with the City and the other executed certificate shall be retained by the Registrar (if not the City's Finance Department). Section 2.5 MUTILATED DESTROYED STOLEN OR LOST 2008 BONDS. In case any 2008 Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new 2008 Bond of like date, maturity and denomination as the 2008 Bond so 8 Resolution No. 47-08 mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 2008 Bond, such mutilated 2008 Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 2008 Bond, there shall first be furnished to the City and the Registrar (if not the City's Finance Department) evidence of such loss, theft, or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to them. In the event the 2008 Bonds shall be about to mature or have matured, instead of issuing a duplicate 2008 Bond, the City may pay the same without surrender thereof. The City and the Registrar (if not the City's Finance Department) may charge the Owner of such 2008 Bond their reasonable fees and expenses in connection with this transaction. Any 2008 Bonds surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate 2008 Bond issued pursuant to this Section shall constitute additional contractual obligations on the part of the City, whether or not the lost, stolen or destroyed 2008 Bond be at any time found by anyone and such duplicate 2008 Bonds shall be entitled to equal proportionate benefits and rights as to lien on the source and security for payment from Pledged Revenues with the 2008 Bond issued hereunder. Section 2.6 CONDITIONS FOR ISSUANCE OF THE 2008 BONDS. Prior to the issuance of the 2008 Bonds, the City shall comply with the following conditions: (a) On the Closing Date, deliver to the Bank an opinion of Bond Counsel, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the 2008 Bonds and the Agreement and the due adoption of this Resolution and the Bond Resolution (enforceability of such instruments may be subject to standard bankruptcy exceptions and the like); and (b) Deliver to the Bank one or more certificates of the City in form satisfactory to the Bank certifying, among other things, that the City is in compliance with the terms of the Bond Resolution. Section 2.7 INCORPORATION OF TERMS OF BOND RESOLUTION: EXCEPTION Unless otherwise provided in this Resolution, the terms and provisions of the Bond Resolution applicable to the 2008 Bonds are incorporated herein by reference and such terms shall have the same effect as if expressly stated herein. ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF Section 3.1 2008 BONDS NOT TO BE INDEBTEDNESS OF THE CITY. The 2008 Bonds shall not be or constitute an indebtedness of the City within the meaning of any constitutional, statutory or other limitation of indebtedness, but shall be secured and payable solely by the Pledged Revenues. No Bondholder shall ever have the right to compel the exercise of the ad valorem taxing power of the City, or taxation in any form of any real property therein, to pay said 2008 Bonds or the interest thereon. The pledge of the Pledged Revenues will not constitute a lien upon any property of the City including any Non- Ad Valorem Revenues which have not been deposited into the Debt Service Fund. Section 3.2 2008 BONDS. The lien of the 2008 Bonds on the Pledged Revenues constituting the Non-Ad Valorem Revenues deposited in the Debt Service Fund shall be on parity with any of the Bonds issued pursuant to the requirements of the Bond Resolution. 9 Resolution No. 47-08 Section 3.3 2008 BONDS SECURED BY PLEDGE OF PLEDGED REVENUES. From an a er the issuance of the 2008 Bonds and continuing until the payment of all 2008 Bonds as to principal and interest, the Pledged Revenues shall continue to be pledged for the prompt payment of principal of and interest on said 2008 Bonds. Section 3.4 COVENANTS OF THE CITY. As long as any of the principal of or interest on the 2008 Bonds shall be outstanding and unpaid, or until there shall have been set apart in the Debt Service Fund in accordance with Section 4.H of Article III of the Bond Resolution a sum sufficient to pay, when due, the entire principal of the 2008 Bonds remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Bondholders as follows: (a) Debt Service Fund. The Debt Service Fund created and established under the Bond Resolution shall constitute a trust fund for the benefit of the Bondholders and shall be held by the City and shall be kept separate and distinct from all other funds of the City and shall be used only for the purpose and in the manner provided in this Resolution. Notwithstanding the provisions of the next preceding sentence, the City may deposit the Pledged Revenues in a single bank account for the City, provided that adequate accounting procedures are maintained to reflect and control the restricted allocations of the funds on deposit therein for the various purposes of such funds. The designation and establishment of the Debt Service Fund in and by the Bond Resolution shall not be construed to require the establishment of any completely independent self-balancing fund, as such term is commonly defined and used in governmental accounting, but rather is intended solely to constitute an allocation of certain revenues of the City for certain purposes and to establish certain priorities for application of such revenues as provided herein. Any excess amounts remaining in the Debt Service Fund constituting Non-Ad Valorem Revenues after payment has been made on the 2008 Bonds on any Payment Date, may be withdrawn and deposited at the direction of the City to be used for any lawful municipal purpose. Moneys on deposit in the Debt Service Fund may be invested in Permitted Investments as authorized pursuant to the Bond Resolution, provided such investments mature not later than the next succeeding Payment Date. All income and earnings received from the investment and reinvestment of the moneys on deposit in the Debt Service Fund shall remain on deposit in the Debt Service Fund and be used in the same manner as other moneys on deposit therein. (b) Non-Ad Valorem Revenues. The City will not repeal, amend or modify any resolution or ordinance or take any action within its power to take relating to the imposition and collection of Non-Ad Valorem Revenues in any manner so as to impair or adversely affect in any manner the availability of such Non-Ad Valorem Revenues to pay debt service on the 2008 Bonds in the manner provided herein. (c) Budget and Other Financial Information. The City shall demonstrate in each annual budget that there are sufficient Non-Ad Valorem Revenues to pay the interest on the 2008 Bonds coming due in such Fiscal Year and sufficient Non-Ad Valorem Revenues to pay the Outstanding principal in the Fiscal Year the Maturity Date occurs and to meet the City's other obligations hereunder and under the Bond Resolution. The City shall provide the Bank with a copy of its annual budget within thirty (30) days of adoption, a copy of its Comprehensive Annual Financial Report, within two hundred and seventy 10 Resolution No. 47-08 (270) days after the end of the City's Fiscal Year and, upon the request of the BanK, such other ti information regarding the City as the Bank may reasonably request. (d) Compliance with Bond Resolution. The City shall comply with the terms of the Bond Resolution and shall not amend or supplement the Bond Resolution in any way that would have a materially adverse effect on the Bondholders. (e) No Margin Loan. No portion of any of the 2008 Bonds is to be used for (i) the purpose of purchasing or carrying any "margin security" or "margin stock" as such terms are used in Regulations U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. 221 and 224 or (ii) primarily personal, family or household purposes. (f) Late Charges. If any payment due the Bank is more than fifteen (15) days overdue, a late charge of five percent (5%) of the overdue payment shall be payable by the City to the Bank. Section 3.5 REMEDIES OF BONDHOLDERS. Subject to the equal rights of any registered owner of Bonds issued pursuant to the provisions of the Bond Resolution, should the City default in any obligation created by this Resolution, the Bondholders may, in addition to any remedy set forth in this Resolution, 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 and contained in this Resolution and the Bond Resolution and may enforce and compel the performance of all duties required by this Resolution and the Bond Resolution or by any applicable statutes to be performed by the City or by any officer thereof. The City hereby agrees with the Bondholders that the filing of any bankruptcy or insolvency under any federal or state law by or against the City which is not dismissed with prejudice within thirty (30) days of such filing shall give the Bondholders the right to exercise any of the remedies provided to them under this Section 3.5 and Section 4.G of Article III of the Bond Resolution. Notwithstanding anything in this Section 3.5 to the contrary the Bondholders' right to exercise any remedy permitted hereunder shall be consistent with the rights afforded all registered owners of Bonds issued pursuant to the provisions of the Bond Resolution. Section 3.6 APPLICATION OF 2008 BOND PROCEEDS. The proceeds of the 2008 Bonds received by the City from the Bank shall be used to finance the costs of the 2008 Project. Section 3.7 ADJUSTMENTS TO INTEREST RATE. Upon any default by the City under this Resolution, the interest rate on the 2008 Bonds shall be converted to the Default Rate. Notwithstanding any of the foregoing, it is the intention of the Bank (and any subsequent Owner of any of the 2008 Bonds) and the City that the interest rate on the 2008 Bonds never exceed the maximum « „ rate permitted by law (the Maximum Rate ). In the event any adjustment provided for in this Section 3.7 with respect to the 2008 Bonds would produce an interest rate on the 2008 Bonds in excess of the Maximum Rate, the Owner shall not be entitled to receive interest in excess of the Maximum Rate (herein, such amount is referred to as "Excess Interest"). At any time thereafter, if the 2008 Bonds shall bear interest at an Interest Rate, which is less than the Maximum Rate, the City shall also pay to the Owner the unpaid Excess Interest until the earlier of (i) the Maturity Date, (ii) the date all of the Excess Interest has been paid, or (iii) any date the combination of the Interest Rate on the 2008 Bonds, plus the Excess Interest, would exceed the Maximum Rate. 11 Resolution No. 47-08 ARTICLE IV MISCELLANEOUS PROVISIONS Section 4.1 MODIFICATION OR AMENDMENT. No modification or amendment of this Resolution or of any resolution amendatory thereof or supplemental thereto, may be made without the consent in writing of all of the Bondholders. Section 4.2 ADDITIONAL AUTHORIZATION. The Mayor, the Vice-Mayor, the City Manager, the Finance Director, the Treasurer and any other proper official of the City, be and each of them is hereby authorized and directed to execute and deliver any and all documents and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated by this Resolution. Section 4.3 SEVERABILITY OF INVALID PROVISIONS. If any one or more of the covenants, agreements or provisions of this Resolution should 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 shall in no way affect the validity of any of the other provisions of this Resolution or of the 2008 Bonds issued hereunder. Section 4.4 REPEALER. All resolutions and orders, or parts thereof, in conflict herewith are, to the extent of such conflict, hereby repealed and this Resolution shall take effect upon its passage in the manner provided by law. In the event of a conflict between the provisions of this Resolution and the Bond Resolution, the provisions of this Resolution shall control. Section 4.5 EFFECTIVE DATE. This Resolution shall be effective immediately upon its adoption. PASSED AND ADOPTED in regular session on this 16th day of September, THE C174( OF D ATTEST: By: By: ~~. - City Clerk The foregoing resolution is hereby approved by me as to form th' th day of September, By: City Attorney 12 Y BEAC"kd, FIL~RIDA Mayor Resolution No. 47-08 EXHIBIT A BOND PURCHASE AGREEMENT THIS BOND PURCHASE AGREEMENT (the Agreement) dated [September] _, 2008, by and between TD Bank, N.A., a national banking association organized under the laws of the United States (herein the "Bank") and the City of Delray Beach, Florida, a municipal corporation of the State of Florida (together with its successors and assigns, the "City"). WITNESSETH• WHEREAS, pursuant to the Act, as such term is defined in Resolution No. 76-99, as supplemented „ ~, by Resolution No. 47-08 (collectively, the Resolution ), adopted by the City Commission of the City on December 14, 1999 and September 16, 2008, respectively, the City authorized the issuance of $3,000,000 in aggregate principal amount of City of Delray Beach, Florida Revenue Improvement Bonds, Series 2008 (Taxable) (the "Bonds"); and WHEREAS, any capitalized term used in this Agreement and not otherwise defined shall have the meaning ascribed to such term in the Resolution; and WHEREAS, the Bank has reviewed the Resolution and hereby finds the terms acceptable; and WHEREAS, on this date, the City has, pursuant to provisions of the Act, the Resolution and this Agreement, agreed to issue and sell to the Bank and the Bank has, pursuant to the terms of this Agreement and the terms and provisions of the Resolution, agreed to purchase, all but not less than all, of the Bonds; and WHEREAS, on the date hereof, the Bank shall purchase the Bonds in the principal amount of $3,000,000; and WHEREAS, the City and the Bank have heretofore negotiated the terms of the Bonds and the Resolution and by execution of this Agreement each will have confirmed that such are acceptable. NOW THEREFORE, the City and the Bank hereby agree as follows: 1. Purchase and Sale. Upon the terms and conditions set forth herein and in the Bonds and the Resolution and upon the representations and warranties of the City set forth in the Resolution and other closing certificates, the City agrees to sell on this date the Bonds on a negotiated basis to the Bank and the Bank agrees on this date to purchase, with immediately available funds, the principal amount of the Bonds issued by the City. The purchase price for the Bonds shall be equal to the principal amount of the Bonds so issued by the City. Since the dated date of the Bonds is the date the Bonds are issued, there will be no accrued interest as part of the purchase price. 2. Private Placement Neaotiated Sale. The Bank hereby acknowledges that the purchase of the Bonds from the City was on a negotiated private placement basis and that there has been no offering document prepared by the City in connection with such sale. A-1 Resolution No. 47-08 3. Conditions for Purchase. The Bank's agreement to purchase the Bonds on this date is subject to the satisfaction of the conditions set forth in Section 2.6 of Resolution No. 47-08. The Bank's purchase of the Bonds will constitute full evidence that such conditions have been satisfied or waived. 4. Section 218.385 Florida Statutes. On or before the purchase of the Bonds, the Bank has provided the City with the disclosure and truth-in-bonding statements required by and in accordance with, Section 218.385, Florida Statutes, as amended and supplemented. The above-referenced statements are attached to this Agreement as Schedule A. 5. Expenses. As between the City and the Bank, the Bank shall not be liable for any expenses incurred by the City in connection with the issuance of the Bonds. The Bank represents to the City that it has not employed or used the services of any attorney or other professional in connection with the Bank's negotiations with the City and its purchase of the Bonds other than Bryant Miller Olive, which fee, in the amount of $2,500 shall be paid by the Bank. 6. Trial by Jury Waived. The City and the Bank, for mutual consideration, each acknowledged to be received by the other party hereto, mutually and willingly waive the right to a trial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by this Agreement or the Resolution. 7. Effectiveness. This Agreement shall become effective upon the execution by the appropriate officials of the City and the Bank. 8. Headings. The headings set forth in this Agreement are inserted for convenience only and shall not be deemed to be a part hereof. 9. Amendment. No modification, alteration or amendment to this Agreement shall be binding upon any party until such modification, alternation or amendment is reduced to writing and executed by all parties hereto. 10. Governing Law. The laws of the State of Florida shall govern this Agreement. 11. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were signatories upon the same instrument. [Signature page follows] A-2 Resolution No. 47-08 IN WITNESS WHEREOF, the City and the Bank has caused this Agreement to be executes oy its respective duly authorized officers all as of the date hereof. TD BANK, N.A. By: Title: (SEAL) Date: September _, 2008 CITY OF DELRAY BEACH, FLORIDA By: Title: Date: September _, 2008 A-3 Resolution No. 47-08 EXHIBIT B FORM OF 2008 BOND THE INTEREST ON THIS BOND IS INCLUDABLE IN GROSS INCOME FOR FEDERAL INCOME TAX PURPOSES No. R- $3,000,000 UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DELRAY BEACH, FLORIDA REVENUE IMPROVEMENT BOND, SERIES 2008 (TAXABLE) Interest Rate Maturity Date Dated Date Variable June 1, 2013 September _, 2008 REGISTERED OWNER:-----------------------------TD BANK, N.A.--------------------------------------- PRINCIPAL AMOUNT:--------------THREE MILLION DOLLARS ($3,000,000.00)--------------------- KNOW ALL MEN BY THESE PRESENTS, that the City of Delray Beach (the "City") in Palm Beach County, Florida, for value received, hereby promises to pay from the sources herein mentioned, to the Registered Owner specified above or registered assigns on the Maturity Date specified above or earlier upon optional prepayment as provided below, upon the presentation and surrender hereof at the City's Finance Department or (if so determined by the City) the designated trust office of the bank or trust company appointed by the City to act as paying agent (said City's Finance Department or such bank or trust company and any bank or trust company becoming successor paying agent being herein called the "Paying Agent"), the Principal Amount outstanding and not previously prepaid with interest thereon at the stated interest rate calculated on the basis of a 360-day year of 12 thirty-day months, on each Payment Date in the manner specified in the within described Bond Resolution to the registered owner. The interest rate on the Bond may be converted to the Default Rate or is otherwise adjusted as provided in the Resolution No. 47-08. The principal amount and accrued interest thereon is payable in any coin or currency of the United States of America, which, on the date of payment thereof, shall be legal tender for the payment of public and private debts. This Bond is authorized to be issued in a principal amount of not exceeding $3,000,000 under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 166, Florida Statutes, as amended and supplemented, the Charter of the City of Delray Beach, Florida, as amended and supplemented and other applicable provisions of law (the "Act") and Resolution No. 76-99 duly adopted on December 14, 1999 and Resolution No. 47-08 duly adopted on September 16, 2008 (collectively, the "Bond Resolution"), as such resolutions may be further amended and supplemented from time to time and is subject to all terms and conditions of said resolution. Any term B-1 Resolution No. 47-08 use in t Is Bond and not otherwise defined, shall have the meaning ascribed to such term in the Bond 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 and the Charter of the City applicable thereto and that the issuance of this Bond is in full compliance with all constitutional or statutory limitations or provisions. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Bond Resolution until the certificate of authentication hereon shall have been signed by an authorized officer of the Registrar. This Bond shall bear interest at the Interest Rate, as such rate may be adjusted in accordance with the terms of the Resolution No. 47-08. Upon the occurrence of a default by the City under Resolution No. 47-08, this Bond shall bear interest at the Default Rate. Interest shall be payable on December 1, 2008 and each June 1 and December 1 thereafter and principal on the Bonds, unless prepaid, shall be payable on the Maturity Date, provided that, in either case, if such payment date is not a Business Day, the payment shall be made on the next succeeding Business Day (each a "Payment Date"). The principal of and interest on the Bonds shall be secured and payable solely by the Pledged Revenues (as defined in the Bond Resolution), all in the manner provided in the Bond Resolution. Subject to the terms and provisions of the Section 2.2 of Resolution No. 47-08 of the City, the City may prepay this Bond in whole or in part, at any time or from time to time, without penalty or premium, by paying to the registered holder all or part of the principal amount of this Bond, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than two (2) Business Days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of this Bond is to be paid, upon presentation and surrender of such Bond to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) and (ii) in case only part of the unpaid balance of principal of this Bond is to be paid, upon presentation of such Bond at the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the Bonds are registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal, together with unpaid interest accrued thereon, without surrender of this Bond. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon, shall not have been provided to the Paying Agent, as above provided, the principal amount of this Bond shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. B-2 Resolution No. 47-08 Any partial prepayment shall not postpone the due dates of, or relieve the amounts of, a payments due hereunder. This Bond shall not be and shall not constitute an indebtedness of the City within the meaning of any constitutional, statutory, charter or other limitations of indebtedness but shall be secured and payable solely by the Pledged Revenues. No Holder of this Bond shall ever have the right to compel the exercise of ad valorem taxing power of the City, or taxation in any form of any real property therein to pay the Bond or the interest thereon. No holder shall have a lien on any Non-Ad Valorem Revenues until deposited into the Debt Service Fund created and established under the Bond Resolution. The terms and provisions of the Bond Resolution are incorporated in this Bond as though such terms and provisions have been set out in full herein. IN WITNESS WHEREOF, the City of Delray Beach, Florida, has caused this Bond to be signed by its Mayor, either manually or with his facsimile signature and the seal of the City Commission of the City of Delray Beach, Florida, to be affixed hereto or imprinted or reproduced hereon and attested by the Clerk of the City, either manually or with her facsimile signature and this Bond to be dated the Dated Date set forth above. (SEAL) ATTEST: CITY OF DELRAY BEACH, FLORIDA By: CJ . Clerk of the City of Delray Beach, Florida B-3 Resolution No. 47-08 F CERTIFICATE OF AUTHENTICATION Date of Authentication: , 2008 This Bond is the Bond delivered pursuant to the within mentioned Resolution. CITY OF DELRAY BEACH Finance Department, as Registrar By: Authorized Officer B-4 Resolution No. 47-08 MENT FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name and address of assignee) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Signature Guaranteed: In the presence of: NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Bond in every particular, without alteration or enlargement, or any change whatever. B-5 Resolution No. 47-08 Project (1) A portion of the cost of the acquisition and construction and equipping of the City's Old School Square Parking Garage Project, including all facilities relating thereto including without limitation the reimbursement to the City for expenditures previously made in that regard. (2) All related, necessary and incidental engineering, design, labor, contingency and costs of issuing the 2008 Bonds. C-1 Resolution No. 47-08 Item 1.10 CERTIFICATE AS TO PUBLIC MEETINGS We, the undersigned members of the City Commission (the "Commission") of the City of Delray Beach, Florida (the "City"), recognizing that the holders of the $3,000,000 in aggregate principal amount of City of Delray Beach, Florida, Revenue Improvement Bonds, Series 2008 (Taxable) (the "2008 Bonds"), will have purchased the 2008 Bonds in reliance on this certificate, do hereby certify, individually and collectively that we have no personal knowledge that any two or more members of the Commission, meeting together or through an agent, reached any prior conclusion as to whether the actions taken by the Commission with respect to the 2008 Bonds, the security therefor and the application of proceeds thereof, should or should not be taken by the Commission, or should or should not be recommended as an action to be taken or not to be taken by the Commission, except at public meetings of the Commission held after due notice to the public was given in the ordinary manner required by Section 286.011 of the Florida Statutes and custom of the Commission. IN WITNESS WHEREOF, we have hereunto affixed our signatures this 26th day of September, 2008. Ellis, Mayor Nelson "Woodie" M~aff~e,/Vi¢dr Mayor Eliopoulos, Deputy Vice Mayor Fred Fetzer, Commissioner .. - - - - Mackenson Bernard,~Commissioner 3818954891016787.012100 MEMORANDUM TO: Mayor and City Commissioners FROM: Rebecca S. O'Connor, Treasurer THROUGH: Joseph M. Safford, Director of Finance DATE: September 8, 2008 SUBJECT: AGENDA ITEM 9 B -REGULAR COMMISSION MEETING OF SEPTEMBER 16, 2008 RESOLUTION NO 47-08/TD BANK/OLD SCHOOL SQUARE PARKING GARAGE PROJECT ITEM BEFORE COMMISSION Approve Resolution # 47-08 authorizing TD Bank (formerly know as Commerce Bank) as the provider of a $3,000,000 Taxable Line of Credit. BACKGROUND The Finance Department has analyzed bids received relative to a $3,000,000 Variable Taxable Line of Credit agreement that shall be executed for the purpose of refunding the City for upfronting a portion of the cost of construction of the Old School Square Parking Garage Project. The City received the following bids: Financial Institution Rate Terms Current Rate Misc. Fees TD Bank 30 Day Libor* 3.435% -0- + .625%/monthly reset ank of America 30 Day Libor* + 4.060% 4,500 1.250%/dail reset SunTrust Bank 30 Day Libor* + 4.59% 3,000 1.780%/6 mos. reset CNL Bank (submitted Opt.l: 6 month .Option 1:5.59% 10,000 after deadline) Libor* + 2.5% Option 2: fixed rate Option 2: 6.59% *Libor (London Interbank Offered Rate) is a common rate index used in the field of finance. The agreement will allow for pre-payment at any time without penalty. The Line of Credit will be reimbursed with proceeds from the sale of retail portion of the parking structure. RECOMMENDATION The Finance Department recommends Resolution No. 47-08 which authorizes TD Bank, the low bidder, as the provider of a $3,000,000 Taxable Line of Credit. TD Bank bid a variable rate of the 30-day Libor plus .625% (adjusted every 30-days) for a five (5) year term. RESOLUTION NO.47-08 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $3,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF REVENUE IMPROVEMENT BONDS, SERIES 2008 (TAXABLE), OF THE CITY OF DELRAY BEACH, FLORIDA FOR THE PURPOSE OF FINANCING A PORTION OF THE CITY'S OLD SCHOOL SQUARE PARKING GARAGE PROJECT, INCLUDING WITHOUT LIMITATION REIMBURSEMENT FOR LAND ACQUISITION AND CONSTRUCTION COSTS AND ALL INCIDENTAL AND NECESSARY COSTS RELATING THERETO; DETERMINING THE NEED FOR A NEGOTIATED SALE OF SUCH BONDS TO TD BANK, N.A.; PROVIDING FOR THE TERMS AND PAYMENT OF SAID REVENUE IMPROVEMENT BONDS, SERIES 2008 (TAXABLE) AND THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SAID REVENUE IMPROVEMENT BONDS, SERIES 2008 (TAXABLE); APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF A BOND PURCHASE AGREEMENT WITH TD BANK, N.A.; AUTHORIZING THE PROPER OFFICERS OF THE CITY TO DO ALL OTHER THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION WITH THE ISSUANCE OF SAID REVENUE IMPROVEMENT BONDS, SERIES 2008 (TAXABLE); AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Delray Beach, Florida (the "City Commission"), hereby determines that it is in the best interest of the City of Delray Beach, Florida (the "City"), to finance certain costs relating to the acquisition and construction of the City's Old School Square Parking Garage Project, as further described on Exhibit C attached hereto, together with all incidental and necessary costs relating thereto (the "2008 Project"); and WHEREAS, on December 14, 1999, the City Commission did adopt Resolution No. 76-99 (the "Bond Resolution") authorizing the issuance, from time to time, of revenue bonds (the "Bonds") to financial capital projects in the City; and WHEREAS, any capitalized term used in this Resolution and not otherwise defined, shall have the meaning ascribed to such term in the Bond Resolution; and WHEREAS, pursuant to the Bond Resolution, each series of Bonds issued thereunder shall be payable from the City's covenant contained in the Bond Resolution to budget and appropriate in each Fiscal Year, by budget amendment if necessary, Non-Ad Valorem Revenues and deposit the same in the Debt Service Fund created and established under the Bond Resolution (herein, the "City's Covenant"); and WHEREAS, pursuant to the terms and provisions of the Bond Resolution and this Resolution, the City shall issue a series of Bonds known as "City of Delray Beach, Florida Revenue Improvement Bonds, Series 2008 (Taxable)" (herein, the "2008 Bonds") to finance the costs of the 2008 Project, including the costs of issuing such 2008 Bonds; and WHEREAS, the principal amount of the 2008 Bonds authorized under this Resolution shall not exceed $3,000,000; and solution No. 47-08381,891,667v6/WPB/016787.012100 WHEREAS, the 2008 Bonds shall be secured by a pledge of and lien on the Pledged Revenues; and WHEREAS, City staff has previously solicited bids from qualified lending institutions to provide aclosed-end line of credit as the vehicle by which the 2008 Bonds are to be issued and the 2008 Project is to be financed; and WHEREAS, City staff has determined and the City Commission hereby concurs that TD Bank, N.A., a national banking association organized under the laws of the United States with its designated office in Fort Lauderdale, Florida (herein, the "Bank") has provided the best overall bid to the City; and WHEREAS, the City Commission hereby finds that in light of present market conditions, the aforementioned bid provided by the Bank, the necessity for the funds in calendar year 2008 and calendar year 2009 and other factors described herein, it would be in the best interest of the City to sell the 2008 Bonds to the Bank on a negotiated basis pursuant to the terms and provisions of the Bond Resolution, this Resolution and that certain Bond Purchase Agreement dated the date of delivery of the initial issuance of the 2008 Bonds (herein, the "Agreement") by and between the City and the Bank in substantially the form attached hereto as Exhibit A; and WHEREAS, it is intended that interest on the 2008 Bonds will be includable in the gross income of the Bank for federal income tax purposes. NOW, THEREFORE, be it resolved by the City Commission of the City of Delray Beach, Florida, as follows: ARTICLE I STATUTORY AUTHORITY; FINDINGS AND DEFINITIONS Section 1.1 AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of the Charter of the City of Delray Beach, Florida, as amended and supplemented, the Florida Constitution, Chapter 166, Florida Statutes, as amended and supplemented and other applicable provisions of law (collectively, the "Act") and the authority provided for in the Bond Resolution. Section 1.2 FINDINGS. It is hereby ascertained, determined and declared: (a) That the City hereby authorizes that the 2008 Project be financed from a portion of the proceeds derived from the 2008 Bonds issued pursuant to this Resolution, together with all incidental and necessary costs and expenses associated therewith, as more fully set forth in Section 1.2(d) hereof. (b) That the City Commission has previously determined it to be necessary and in the best economic interest of the City to acquire, construct and implement the Old School Square Parking Garage Project in order to provide public parking and promote commerce in the East Atlantic Avenue corridor. (c) That the 2008 Project will serve a valid municipal purpose. (d) That the cost of the 2008 Project shall be deemed to include, but not be limited to, the cost of acquisition, construction, improving, renovating and equipping a portion of m 2 Resolution No. 47-08 381, 891, 667v6/lNPB/016787.012100 (e) That the principal of and interest on the 2008 Bonds shall be secured solely by the Pledged Revenues in the manner provided herein, provided that the Owner of the 2008 Bonds shall have no lien on any Non-Ad Valorem Revenues until deposited into the Debt Service Fund. The ad valorem taxing power of the City will never be necessary or authorized to pay the principal of and interest on the 2008 Bonds and the 2008 Bonds issued pursuant to this Resolution shall not constitute a lien upon any other property whatsoever of or in the City. (f) That the City, having previously solicited bids for the sale of the 2008 Bonds, has determined that the best qualified bid for the 2008 Bonds was delivered by the Bank. (g) That the negotiated sale of the 2008 Bonds to the Bank is in the best interest of the City by reason of the nature of and schedule for the completion of the 2008 Project, the ability to receive advances of the proceeds of the 2008 Bonds when needed for the construction of the 2008 Project and present market conditions. (h) That the Agreement, in the form attached hereto as Exhibit A, is hereby approved, with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof and the Mayor (or in his absence, the Vice Mayor) and City Clerk are hereby authorized to execute the same on behalf of the City. (i) That pursuant to the provisions of the Bond Resolution and this Resolution, the City may issue obligations in the future secured by Pledged Revenues. Q) That any capitalized term not otherwise defined herein, shall have the meaning ascribed to such term in the Bond Resolution. Section 1.3 DEFINITIONS. That, in addition to terms defined elsewhere in this Resolution, the following terms shall have the following meanings unless the context otherwise clearly requires: "Bond Counsel" shall mean Greenberg Traurig, P.A. or any other firm of nationally recognized bond counsel selected by the City and acceptable to the Bank. "Bond Resolution" shall mean Resolution No. 76-99, adopted by the City Commission on December 14, 1999. "Business Day" shall mean any day other than a Saturday or Sunday, or a day on which the Bank or London banks are closed. "City" shall mean the City of Delray Beach, Florida, a municipal corporation in the County of Palm Beach, State of Florida and its successors and assigns. 3 Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 "City Commission" shall mean the duly constituted governing body of the City. "Closing Date" shall mean the date the City issues the authorized principal amount of the 2008 Bonds. "Default Rate" shall mean three hundred basis points above the actual Interest Rate in effect immediately prior to any default by the City under this Resolution. "Interest Rate" shall mean with respect to the 2008 Bonds, unless the 2008 Bonds bear interest at the Default Rate, a variable rate of interest on the 2008 Bonds which shall be equal to 62.5 basis points above LIBOR. The Interest Rate shall be calculated on the basis of a 360 day year of twelve thirty-day months and shall be recalculated by the Bank on the first business day of each month. "LIBOR" shall mean the rate of interest (rounded upwards if necessary to the next 100tH of one percent) equal to the British Bankers Association LIBOR ("BBA LIBOR") as published by Bloomberg (or such other commercially available source providing quotations of BBA LIBOR as designated by the Bank from time to time) at approximately 11:00 A.M. (London time) 2 Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period; provided however, if more than one BBA LIBOR is specified, the applicable rate shall be the arithmetic mean of all such rates. If, for any reason, such rate is not available, the term LIBOR shall mean the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the Bank to be the average rates per annum at which deposits in dollars are offered for such LIBOR Interest Period to major banks in the London Interbank Market in London, England at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period. The effective interest rate applicable to the 2008 Bonds shall change at the end of each Interest Period. LIBOR Interest Period means initially, a period of one month; provided however, (i) if any LIBOR Interest Period would end on a day which is not a Business Day, such LIBOR Interest Period shall be extended to the next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding calendar month, then on the next preceding Business Day), (ii) no LIBOR Interest Period shall extend beyond the Maturity Date and (iii) any LIBOR Interest Period with respect to the 2008 Bonds that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such LIBOR Interest Period) shall end on the last Business Day of the relevant calendar month at the end of such LIBOR Interest Period. "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the 2008 Bonds, June 1, 2013. "Owner," "Bondholder" or "registered holder" or any similar term shall mean the Bank or, subject to the provisions of Section 2.4 hereof, any successor registered holder of the 2008 Bonds; provided no Bondholder may be the registered owner of less than $1,000,000 in the aggregate principal amount of the 2008 Bonds. "Paying Agent" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Paying Agent hereunder. 4 Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 "Payment Date" shall mean, with respect to interest on the 2008 Bonds, each June 1 and December 1, commencing December 1, 2008 and with respect to principal on the 2008 Bonds, the Maturity Date and on any other date the principal of the 2008 Bonds is optionally prepaid in whole or in part, provided that if such date is not a Business Day, the payment shall be made on the next succeeding Business Day. "Pledged Revenues" shall mean (a) with respect to interest on the 2008 Bonds, (i) the Non-Ad Valorem Revenues deposited in the Debt Service Fund created and established under the Bond Resolution, (ii) investment income received from the investment of moneys in the Debt Service Fund and accounts established thereunder and (iii) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the payment of interest on the 2008 Bonds; (b) with respect to the payment of the principal of the 2008 Bonds on the Maturity Date, or earlier prepayment date (i) the Non-Ad Valorem Revenue deposited in the Debt Service Fund pursuant to the City's Covenant and (ii) any other moneys deposited in the Debt Service Fund or received by the Paying Agent in connection with the repayment of the 2008 Bonds. "Registrar" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Registrar hereunder. "Resolution" shall mean this Resolution as the same may from time to time be amended and supplemented in accordance with the terms hereof. "2008 Bonds" shall mean the not to exceed $3,000,000 aggregate principal amount of Revenue Improvement Bonds, Series 2008 (Taxable), authorized by the Bond Resolution and this Resolution Words importing singular number shall include the plural number and vice versa, as the case may be and words importing persons shall include firms and corporations. Section 1.4 RESOLUTION AND BOND RESOLUTION CONSTITUTE CONTRACT. In consideration of the acceptance of the 2008 Bonds authorized to be issued hereunder by those who shall own the same from time to time, this Resolution and the Bond Resolution shall be deemed to be and shall constitute a contract between the City and the Bondholders and the covenants and agreements herein and therein set forth to be performed by said City shall be for the benefit, protection and security of the Bondholders. ARTICLE II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF 2008 BONDS Section 2.1 AUTHORIZATION OF 2008 BONDS. Subject and pursuant to the provisions of this Resolution and the Bond Resolution, obligations of the City of Delray Beach, Florida, to be known as "Revenue Improvement Bonds, Series 2008 (Taxable)" are hereby authorized to be issued in the aggregate principal amount of not exceeding Three Million Dollars ($3,000,000) for the purpose of financing the costs of the 2008 Project. Section 2.2 DESCRIPTION OF 2008 BONDS. Notwithstanding the form of Bonds set forth in the Bond Resolution, the text of the 2008 Bonds shall be substantially in the form attached hereto as Exhibit B with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof. Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 The 2008 Bonds (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance of such 2008 Bonds. The 2008 Bonds shall be issued in registered form. Unless the interest rate on the 2008 Bonds is adjusted in accordance with Section 3.7 hereof, the 2008 Bonds shall bear interest on the outstanding principal amount of the 2008 Bonds at the Interest Rate and shall be payable on each Payment Date, commencing December 1, 2008. Unless all or a portion of the 2008 Bonds is optionally prepaid in accordance with the terms of this Resolution, the outstanding principal of the 2008 Bonds shall be payable on the Maturity Date. The 2008 Bonds shall be issued in a not to exceed principal amount of $3,000,000, but the actual principal amount of the 2008 Bonds outstanding will be determined by the amount of proceeds advanced by the Bank to the City on the Closing Date. Principal and interest on the 2008 Bonds shall be payable at the office of the Paying Agent (the designated corporate trust office of the Paying Agent if the City's Finance Department is not the Paying Agent). The 2008 Bonds shall be numbered in such manner as may be prescribed by the Registrar. The 2008 Bonds shall be payable, with respect to interest and principal, 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 and private debts. Subject to the next succeeding paragraphs, the City may prepay the 2008 Bonds in whole or in part, at any time or from time to time, without penalty or premium, by paying to the registered holder all or part of the principal amount of the 2008 Bonds, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than two (2) Business Days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of the 2008 Bonds is to be paid, upon presentation and surrender of the 2008 Bonds to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) and (ii) in case only part of the unpaid balance of principal of the 2008 Bonds is to be paid, upon presentation of such 2008 Bonds at the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement 2008 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the 2008 Bonds are registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal, together with unpaid interest accrued thereon, without surrender of the 2008 Bonds. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon, shall not have been provided to the Paying Agent, as above provided, the principal amount of the 2008 Bonds shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. Notwithstanding the provisions of clause (i) or (ii) above, if all of the 2008 Bonds are registered in the name of the Bank, payments shall be effected by payment to the Bank of the principal and interest then due without surrender of the 2008 Bond so paid; such payment to be evidenced by the records of the City and .the Bank and such records shall be conclusive and binding upon the City and the Owner absent manifest error. 6 Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 Upon a prepayment in whole, the City understands that the Bank will promptly thereafter surrender the 2008 Bonds to the City marked "satisfied" or "paid in full." If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with interest to the prepayment date on such principal amount, shall have been provided to the Owner, as above provided, then from and after the prepayment date interest on such principal amount of the 2008 Bonds which are prepaid shall cease to accrue. If said funds shall not have been so paid on the prepayment date, the principal amount of such 2008 Bonds shall continue to bear interest until payment thereof at the applicable Interest Rate. Any partial prepayment shall not postpone the due dates of, or relieve the amounts of, any payments of interest due hereunder on the unpaid principal of the 2008 Bonds. Once the City prepays a principal amount of the 2008 Bonds, the Bank shall have no obligation to repurchase such amount if the City shall subsequently issue a like amount. Section 2.3 EXECUTION OF THE 2008 BONDS. The 2008 Bonds shall be executed in the name of the City by the signature of the Mayor or Vice Mayor of the City and its official seal shall be affixed thereto or imprinted or reproduced thereon and attested by the City Clerk. The signatures of the Mayor or Vice Mayor of the City and City Clerk on the 2008 Bonds may be manual or facsimile signatures. In case any one or more of the officers who shall have signed or sealed the 2008 Bonds shall cease to be such officer of the City before the 2008 Bonds so signed and sealed shall have been actually sold and delivered, such 2008 Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such 2008 Bonds had not ceased to hold such office. The 2008 Bonds may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the 2008 Bonds shall hold the proper office, although at the date the 2008 Bonds shall be actually delivered such person may not have held such office or may not have been so authorized. The 2008 Bonds shall bear thereon a certificate of authentication, in the form set forth on Exhibit 6 attached hereto, executed manually by the Registrar (when the City's Finance Department shall act as Registrar, the certificate of authentication shall be manually executed by the City's Finance Director). Only the 2008 Bonds as shall bear thereon such certificate of authentication shall be entitled to any right or benefit under this Resolution and no 2008 Bonds shall be valid or obligatory for any purpose until such certificate of authentication shall have been duly executed by the Registrar. The certificate of authentication of the Registrar upon the 2008 Bonds executed on behalf of the City shall be conclusive evidence that the 2008 Bonds so authenticated have been duly authenticated and delivered under this Resolution and that the Owner thereof is entitled to the benefits of this Resolution. Section 2.4 NEGOTIABILITY. REGISTRATION AND CANCELLATION. The Registrar shall keep books for the registration of the 2008 Bonds and for the registration of transfers of the 2008 Bonds. The 2008 Bonds shall be transferable at the option of the registered Owner thereof to an institutional holder, but subject to the prior written approval of the City's Director of Finance (which shall not be unreasonably withheld if the intended transferee provides a suitability letter addressed to the City as to the sophistication of the investor) unless such institutional holder is a bank or trust company, or unless such institutional holder, which is not a bank or trust company, certifies in writing to the City prior to the transfer that it is an accredited investor within the meaning of Rule 501 of the Securities Act of 1933, as amended and supplemented, in which case such approval shall not be required and upon surrender thereof at the office of the Registrar (the designated corporate trust office of the Registrar if the City's Finance Department is not the Registrar) with a written instrument of transfer satisfactory Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 to the Registrar duly executed by the registered Owner or his duly authorized attorney. Upon the transfer of such 2008 Bond, the City shall issue in the name of the transferee a new 2008 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the 2008 Bonds shall be registered upon the books kept by the Registrar as the absolute Owner of such 2008 Bonds, whether such 2008 Bonds shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 2008 Bonds as the same become due and for all other purposes. All such payments so made to any such Owner or upon his/her order shall be valid and effectual to satisfy and discharge the liability upon such 2008 Bonds to the extent of the sum or sums so paid and neither the City, the Paying Agent nor the Registrar shall be affected by any notice to the contrary. In all cases in which the privilege of transferring the 2008 Bonds is exercised, the City shall execute and the Registrar shall authenticate and deliver the 2008 Bonds in accordance with the provisions of this Resolution. The 2008 Bonds surrendered in any such transfers shall forthwith be delivered to the Registrar and canceled by the Registrar in the manner provided in this Section. The City or the Registrar (if not the City's Finance Department) may require the payment of a sum sufficient to pay any tax, fee or other governmental charges required to be paid with respect to such transfer. The 2008 Bonds paid or redeemed, in whole, either at or before maturity, shall be delivered to the Registrar within a reasonable period of time after the payment or redemption is made and such 2008 Bonds shall thereupon be canceled upon written acknowledgement from the Owner that the 2008 Bonds have been paid in whole. The 2008 Bonds so canceled may at any time be destroyed by the Registrar, who shall execute a certificate of destruction in duplicate by the signature of one of its authorized officers describing the 2008 Bonds and one executed certificate shall be filed with the City and the other executed certificate shall be retained by the Registrar (if not the City's Finance Department). Section 2.5 MUTILATED, DESTROYED, STOLEN OR LOST 2008 BONDS. In case any 2008 Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new 2008 Bond of like date, maturity and denomination as the 2008 Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 2008 Bond, such mutilated 2008 Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 2008 Bond, there shall first be furnished to the City and the Registrar (if not the City's Finance Department) evidence of such loss, theft, or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to them. In the event the 2008 Bonds shall be about to mature or have matured, instead of issuing a duplicate 2008 Bond, the City may pay the same without surrender thereof. The City and the Registrar (if not the City's Finance Department) may charge the Owner of such 2008 Bond their reasonable fees and expenses in connection with this transaction. Any 2008 Bonds surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate 2008 Bond issued pursuant to this Section shall constitute additional contractual obligations on the part of the City, whether or not the lost, stolen or destroyed 2008 Bond be at any time found by anyone and such duplicate 2008 Bonds shall be entitled to equal proportionate benefits and rights as to lien on the source and security for payment from Pledged Revenues with the 2008 Bond issued hereunder. 8 Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 Section 2.6 CONDITIONS FOR ISSUANCE OF THE 2008 BONDS. Prior to the issuance of the 2008 Bonds, the City shall comply with the following conditions: (a) On the Closing Date, deliver to the Bank an opinion of Bond Counsel, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the 2008 Bonds and the Agreement and the due adoption of this Resolution and the Bond Resolution (enforceability of such instruments may be subject to standard bankruptcy exceptions and the like); and (b) Deliver to the Bank one or more certificates of the City in form satisfactory to the Bank certifying, among other things, that the City is in compliance with the terms of the Bond Resolution. Section 2.7 INCORPORATION OF TERMS OF BOND RESOLUTION; EXCEPTION Unless otherwise provided in this Resolution, the terms and provisions of the Bond Resolution applicable to the 2008 Bonds are incorporated herein by reference and such terms shall have the same effect as if expressly stated herein. ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF Section 3.1 2008 BONDS NOT TO BE INDEBTEDNESS OF THE CITY. The 2008 Bonds shall not be or constitute an indebtedness of the City within the meaning of any constitutional, statutory or other limitation of indebtedness, but shall be secured and payable solely by the Pledged Revenues. No Bondholder shall ever have the right to compel the exercise of the ad valorem taxing power of the City, or taxation in any form of any real property therein, to pay said 2008 Bonds or the interest thereon. The pledge of the Pledged Revenues will not constitute a lien upon any property of the City including any Non-Ad Valorem Revenues which have not been deposited into the Debt Service Fund. Section 3.2 2008 BONDS. The lien of the 2008 Bonds on the Pledged Revenues constituting the Non-Ad Valorem Revenues deposited in the Debt Service Fund shall be on parity with any of the Bonds issued pursuant to the requirements of the Bond Resolution. Section 3.3 2008 BONDS SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of the 2008 Bonds and continuing until the payment of all 2008 Bonds as to principal and interest, the Pledged Revenues shall continue to be pledged for the prompt payment of principal of and interest on said 2008 Bonds. Section 3.4 COVENANTS OF THE CITY. As long as any of the principal of or interest on the 2008 Bonds shall be outstanding and unpaid, or until there shall have been set apart in the Debt Service Fund in accordance with Section 4.H of Article III of the Bond Resolution a sum sufficient to pay, when due, the entire principal of the 2008 Bonds remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Bondholders as follows: (a) Debt Service Fund. The Debt Service Fund created and established under the Bond Resolution shall constitute a trust fund for the benefit of the Bondholders and shall be held by the City and shall be kept separate and distinct from all other funds of the City and shall be used only for the purpose and in the manner provided in this Resolution. Notwithstanding the provisions of the next preceding sentence, the City may deposit the Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 Any excess amounts remaining in the Debt Service Fund constituting Non-Ad Valorem Revenues after payment has been made on the 2008 Bonds on any Payment Date, may be withdrawn and deposited at the direction of the City to be used for any lawful municipal purpose. Moneys on deposit in the Debt Service Fund may be invested in Permitted Investments as authorized pursuant to the Bond Resolution, provided such investments mature not later than the next succeeding Payment Date. All income and earnings received from the investment and reinvestment of the moneys on deposit in the Debt Service Fund shall remain on deposit in the Debt Service Fund and be used in the same manner as other moneys on deposit therein. (b) Non-Ad Valorem Revenues. The City will not repeal, amend or modify any resolution or ordinance or take any action within its power to take relating to the imposition and collection of Non-Ad Valorem Revenues in any manner so as to impair or adversely affect in any manner the availability of such Non-Ad Valorem Revenues to pay debt service on the 2008 Bonds in the manner provided herein. (c) Budget and Other Financial Information. The City shall demonstrate in each annual budget that there are sufficient Non-Ad Valorem Revenues to pay the interest on the 2008 Bonds coming due in such Fiscal Year and sufficient Non-Ad Valorem Revenues to pay the Outstanding principal in the Fiscal Year the Maturity Date occurs and to meet the City's other obligations hereunder and under the Bond Resolution. The City shall provide the Bank with a copy of its annual budget.within thirty (30) days of adoption, a copy of its Comprehensive Annual Financial Report, within two hundred and seventy (270) days after the end of the City's Fiscal Year and, upon the request of the Bank; such other financial information regarding the City as the Bank may reasonably request. (d) Compliance with Bond Resolution. The City shall comply with the terms of the Bond Resolution and shall not amend or supplement the Bond Resolution in any way that would have a materially adverse effect on the Bondholders. (e) No Margin Loan. No portion of any of the 2008 Bonds is to be used for (i) the purpose of purchasing or carrying any "margin security" or "margin stock" as such terms are used in Regulations U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. 221 and 224 or (ii) primarily personal, family or household purposes. (f) Late Charges. If any payment due the Bank is more than fifteen (15) days overdue, a late charge of five percent (5%) of the overdue payment shall be payable by the City to the Bank. Section 3.5 REMEDIES OF BONDHOLDERS. Subject to the equal rights of any registered owner of Bonds issued pursuant to the provisions of the Bond Resolution, should the City default in any obligation created by this Resolution, the Bondholders may, in addition to any 10 Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 remedy set forth in this Resolution, 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 and contained in this Resolution and the Bond Resolution and may enforce and compel the performance of all duties required by this Resolution and the Bond Resolution or by any applicable statutes to be performed by the City or by any officer thereof. The City hereby agrees with the Bondholders that the filing of any bankruptcy or insolvency under any federal or state law by or against the City which is not dismissed with prejudice within thirty (30) days of such filing shall give the Bondholders the right to exercise any of the remedies provided to them under this Section 3.5 and Section 4.G of Article III of the Bond Resolution. Notwithstanding anything in this Section 3.5 to the contrary the Bondholders' right to exercise any remedy permitted hereunder shall be consistent with the rights afforded all registered owners of Bonds issued pursuant to the provisions of the Bond Resolution. Section 3.6 APPLICATION OF 2008 BOND PROCEEDS. The proceeds of the 2008 Bonds received by the City from the Bank shall be used to finance the costs of the 2008 Project. Section 3.7 ADJUSTMENTS TO INTEREST RATE. Upon any default by the City under this .Resolution, the interest rate on the 2008 Bonds shall be converted to the Default Rate. Notwithstanding any of the foregoing, it is the intention of the Bank (and any subsequent Owner of any of the 2008 Bonds) and the City that the interest rate on the 2008 Bonds never exceed the maximum rate permitted by law (the "Maximum Rate"). In the event any adjustment provided for in this Section 3.7 with respect to the 2008 Bonds would produce an interest rate on the 2008 Bonds in excess of the Maximum Rate, the Owner shall not be entitled to receive interest in excess of the Maximum Rate (herein, such amount is referred to as "Excess Interest"). At any time thereafter, if the 2008 Bonds shall bear interest at an Interest Rate, which is less than the Maximum Rate, the City shall also pay to the Owner the unpaid Excess Interest until the earlier of (i) the Maturity Date, (ii) the date all of the Excess Interest has been paid, or (iii) any date the combination of the Interest Rate on the 2008 Bonds, plus the Excess Interest, would exceed the Maximum Rate. ARTICLE IV MISCELLANEOUS PROVISIONS Section 4.1 MODIFICATION OR AMENDMENT. No modification or amendment of this Resolution or of any resolution amendatory thereof or supplemental thereto, may be made without the consent in writing of all of the Bondholders. Section 4.2 ADDITIONAL AUTHORIZATION. The Mayor, the Vice-Mayor, the City Manager, the Finance Director, the Treasurer and any other proper official of the City, be and each of them is hereby authorized and directed to execute and deliver any and all documents and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated by this Resolution. Section 4.3 SEVERABILITY OF INVALID PROVISIONS. If any one or more of the covenants, agreements or provisions of this Resolution should 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 11 Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions of this Resolution or of the 2008 Bonds issued hereunder. Section 4.4 REPEALER. All resolutions and orders, or parts thereof, in conflict herewith are, to the extent of such conflict, hereby repealed and this Resolution shall take effect upon its passage in the manner provided by law. In the event of a conflict between the provisions of this Resolution and the Bond Resolution, the provisions of this Resolution shall control. Section 4.5 EFFECTIVE DATE. This Resolution shall be effective immediately upon its adoption. PASSED AND ADOPTED in regular session on this 16'h day of September, 2008. ATTEST: By: City Clerk The foregoing resolution is hereby approved by me as to form this 16'h day of September, 2008. By: City Attorney 12 THE CITY OF DELRAY BEACH, FLORIDA By: Mayor Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 EXHIBIT A BOND PURCHASE AGREEMENT THIS BOND PURCHASE AGREEMENT (the "Agreement") dated [September] _, 2008, by and between TD Bank, N.A., a national banking association organized under the laws of the United States (herein the "Bank") and the City of Delray Beach, Florida, a municipal corporation of the State of Florida (together with its successors and assigns, the "City"). WITNESSETH: WHEREAS, pursuant to the Act, as such term is defined in Resolution No. 76-99, as supplemented by Resolution No. 47-08 (collectively, the "Resolution"), adopted by the City Commission of the City on December 14, 1999 and September 16, 2008, respectively, the City authorized the issuance of $3,000,000 in aggregate principal amount of City of Delray Beach, Florida Revenue Improvement Bonds, Series 2008 (Taxable) (the "Bonds"); and WHEREAS, any capitalized term used in this Agreement and not otherwise defined shall have the meaning ascribed to such term in the Resolution; and WHEREAS, the Bank has reviewed the Resolution and hereby finds the terms acceptable; and WHEREAS, on this date, the City has, pursuant to provisions of the Act, the Resolution and this Agreement, agreed to issue and sell to the Bank and the Bank has, pursuant to the terms of this Agreement and the terms and provisions of the Resolution, agreed to purchase, all but not less than all, of the Bonds; and WHEREAS, on the date hereof, the Bank shall purchase the Bonds in the principal amount of $3,000,000; and WHEREAS, the City and the Bank have heretofore negotiated the terms of the Bonds and the Resolution and by execution of this Agreement each will have confirmed that such are acceptable. NOW THEREFORE, the City and the Bank hereby agree as follows: 1. Purchase and Sale. Upon the terms and conditions set forth herein and in the Bonds and the Resolution and upon the representations and warranties of the City set forth in the Resolution and other closing certificates, the City agrees to sell on this date the Bonds on a negotiated basis to the Bank and the Bank agrees on this date to purchase, with immediately available funds, the principal amount of the Bonds issued by the City. The purchase price for the Bonds shall be equal to the principal amount of the Bonds so issued by the City. Since the dated date of the Bonds is the date the Bonds are issued, there will be no accrued interest as part of the purchase price. 2. Private Placement Negotiated Sale. The Bank hereby acknowledges that the purchase of the Bonds from the City was on a negotiated private placement basis and that there has been no offering document prepared by the City in connection with such sale. A-1 Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 3. Conditions for Purchase. The Bank's agreement to purchase the Bonds on this date is subject to the satisfaction of the conditions set forth in Section 2.6 of Resolution No. 47- 08. The Bank's purchase of the Bonds will constitute full evidence that such conditions have been satisfied or waived. 4. Section 218.385 Florida Statutes. On or before the purchase of the Bonds, the Bank has provided the City with the disclosure and truth-in-bonding statements required by and in accordance with, Section 218.385, Florida Statutes, as amended and supplemented. The above-referenced statements are attached to this Agreement as Schedule A. 5. Expenses. As between the City and the Bank, the Bank shall not be liable for any expenses incurred by the City in connection with the issuance of the Bonds. The Bank represents to the City that it has not employed or used the services of any attorney or other professional in connection with the Bank's negotiations with the City and its purchase of the Bonds other than Bryant Miller Olive, which fee, in the amount. of $2,500 shall be paid by the Bank. 6. Trial by Jury Waived. The City and the Bank, for mutual consideration, each acknowledged to be received by the other party hereto, mutually and willingly waive the right to atrial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by this Agreement or the Resolution. 7. Effectiveness. This Agreement shall become effective upon the execution by the appropriate officials of the City and the Bank. 8. Headings. The headings set forth in this Agreement are inserted for convenience only and shall not be deemed to be a part hereof. 9. Amendment. No modification, alteration or amendment to this Agreement shall be binding upon any party until such modification, alternation or amendment is reduced to writing and executed by all parties hereto. 10. Governing Law. The laws of the State of Florida shall govern this Agreement. 11. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were signatories upon the same instrument. [Signature page follows] A-2 Resolution No. 47-OS 381, 891, 667v8/WPB/016787.012100 IN WITNESS WHEREOF, the City and the Bank has caused this Agreement to be executed by its respective duly authorized officers all as of the date hereof. (SEAL) TD BANK, N.A. By:_ Title: Date: September _, 2008 CITY OF DELRAY BEACH, FLORIDA By:_ Title: Date: September _, 2008 Resolution No. 47-08 A-3 381, 891, 667v6/WPB/016787.012100 EXHIBIT B FORM OF 2008 BOND THE INTEREST ON THIS BOND IS INCLUDABLE IN GROSS INCOME FOR FEDERAL INCOME TAX PURPOSES No. R- $3,000,000 UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DELRAY BEACH, FLORIDA . REVENUE IMPROVEMENT BOND, SERIES 2008 (TAXABLE) Interest Rate Maturity Date Dated Date Variable June 1, 2013 September _, 2008 REGISTERED OWNER:-----------------------------TD BANK, N.A.--------------------------------------- PRINCIPAL AMOUNT:--------------THREE MILLION DOLLARS ($3,000,000.00)--------------------- KNOW ALL MEN BY THESE PRESENTS, that the City of Delray Beach (the "City") in Palm Beach County, Florida, for value received, hereby promises to pay from the sources herein mentioned, to the Registered Owner specified above or registered assigns on the Maturity Date specified above or earlier upon optional prepayment as provided below, upon the presentation and surrender hereof at the City's Finance Department or (if so determined by the City) the designated trust office of the bank or trust company appointed by the City to act as paying agent (said City's Finance Department or such bank or trust company and any bank or trust company becoming successor paying agent being herein called the "Paying Agent"), the Principal Amount outstanding and not previously prepaid with interest thereon at the stated interest rate calculated on the basis of a 360-day year of 12 thirty-day months, on each Payment Date in the manner specified in the within described Bond Resolution to the registered owner. The interest rate on the Bond may be converted to the Default Rate or is otherwise adjusted as provided in the Resolution No. 47-08. The principal amount and accrued interest thereon is payable in any coin or currency of the United States of America, which, on the date of payment thereof, shall be legal tender for the payment of public and private debts. This Bond is authorized to be issued in a principal amount of not exceeding $3,000,000 under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 166, Florida Statutes, as amended and supplemented, the Charter of the City of Delray Beach, Florida, as amended and supplemented and other applicable provisions of law (the "Act") and Resolution No. 76-99 duly adopted on December 14, 1999 and Resolution No. 47-08 duly adopted on September 16, 2008 (collectively, the "Bond Resolution"), as such resolutions may be further amended and supplemented from time to time and is subject to all terms and conditions of said resolution. Any term used in this Bond and not otherwise defined, shall have the meaning ascribed to such term in the Bond 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 Resolution No. 47-08 B-1 381, 891, 667v6/WPB/016787.012100 happened and have been performed in regular and due form and time as required by the Laws and Constitution of the State of Florida-and the Charter of the City applicable thereto and that the issuance of this Bond is in full compliance with all constitutional or statutory limitations or provisions. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Bond Resolution until the certificate of authentication hereon shall have been signed by an authorized officer of the Registrar. This Bond shall bear interest at the Interest Rate, as such rate may be adjusted in accordance with the terms of the Resolution No. 47-08. Upon the occurrence of a default by the City under Resolution No. 47-08, this Bond shall bear interest at the Default Rate. Interest shall be payable on December 1, 2008 and each June 1 and December 1 thereafter and principal on the Bonds, unless prepaid, shall be payable on the Maturity Date, provided that, in either case, if such payment date is not a Business Day, the payment shall be made on the next succeeding Business Day (each a "Payment Date"). The principal of and interest on the Bonds shall be secured and payable solely by the Pledged Revenues (as defined in the Bond Resolution), all in the manner provided in the Bond Resolution. Subject to the terms and provisions of the Section 2.2 of Resolution No. 47-08 of the City, the City may prepay this Bond in whole or in part, at any time or from time to time, without penalty or premium, by paying to the registered holder all or part of the principal amount of this Bond, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than two (2) Business Days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of this Bond is to be paid, upon presentation and surrender of such Bond to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) and (ii) in case only part of the unpaid balance of principal of this Bond is to be paid, upon presentation of such Bond at the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the Bonds are registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal, together with unpaid interest accrued thereon, without surrender of this Bond. If, on the prepayment date, funds for the payment of the principal amount to be prepaid, together with unpaid interest accrued thereon, shall not have been provided to the Paying Agent, as above provided, the principal amount of this Bond shall continue to be outstanding and to bear interest until payment thereof at the Interest Rate. Any partial prepayment shall not postpone the due dates of, or relieve the amounts of, any payments due hereunder. This Bond shall not be and shall not constitute an indebtedness of the City within the meaning of any constitutional, statutory, charter or other limitations of indebtedness but shall be secured and payable solely by the Pledged Revenues. No Holder of this Bond shall ever have the right to compel the exercise of ad valorem taxing power of the City, or taxation in any form of any real property therein to pay the Bond or the interest thereon. No holder shall have a lien on B-2 Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 any Non-Ad Valorem Revenues until deposited into the Debt Service Fund created and established under the Bond Resolution. The terms and provisions of the Bond Resolution are incorporated in this Bond as though such terms and provisions have been set out in full herein. IN WITNESS WHEREOF, the City of Delray Beach, Florida, has caused this Bond to be signed by its Mayor, either manually or with his facsimile signature and the seal of the City Commission of the City of Delray Beach, Florida, to be affixed hereto or imprinted or reproduced hereon and attested by the Clerk of the City, either manually or with her facsimile signature and this Bond to be dated the Dated Date set forth above. (SEAL) ATTEST: CITY OF DELRAY BEACH, FLORIDA By: Mayor By: Clerk of the City of Delray Beach, Florida Resolution No. 47-08 B-3 381, 891, 667v6/WPB/016787.012100 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: , 2008 This Bond is the Bond delivered pursuant to the within mentioned Resolution. CITY OF DELRAY BEACH Finance Department, as Registrar By: B-4 Authorized Officer Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 ASSIGNMENT FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name and address of assignee) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Signature Guaranteed: In the presence of: NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Bond in every particular, without alteration or enlargement, or any change whatever. B-5 Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 EXHIBIT C Project (1) A portion of the cost of the acquisition and construction and equipping of the City's Old School Square Parking Garage Project, including all facilities relating thereto including without limitation the reimbursement to the City for expenditures previously made in that regard. (2) All related, necessary and incidental engineering, design, labor, contingency and costs of issuing the 2008 Bonds. C-1 Resolution No. 47-08 381, 891, 667v6/WPB/016787.012100 CIT4~ OF DELRA~ BEACH CITY ATTORNEY'S OFFICE TELE HONEV_5C~1J?43-DU<OK FAC IMILE~561~ 8-X175544 DELRAY BEACH O A All-America City I ~ DATE: 1993 Zoo1 TO: FROM SUBJECT Writer's Direct Line: 561/243-7091 MEMORANDUM September 22, 2009 Kimberly Wynn, Executive Assistant/Agenda Coordinator Cathy Inglese, Legal Secretary Resolution No. 47-08/TD Bank/Old School Square Parking Susan Ruby signed the above Resolution. Becky O'Connor asked if she could have a signed copy once it is executed by the Mayor. Thanks. /ci Attachment Memoraviduyrv To: Susan Ruby, City. Attorney', CC: File From: Kimberly Wynn, Executive Assistant/Agenda Coordinatof: Date: 9/18/2008 Re: Resolution No. 47-08/TD Bank/ Old School Square Parking Attached please find one (1) original Resolution No. 47-08 to authorize TD Bank to refund the City for upfrontin~ a portion of the cost of construction of the Old School Square Parking Garage proiect. This item was approved at the September 16, 2008 Regular Commission Meeting; item 9.B. Please sign, and return to me for further processing. Please call me at 243-7059 if you have any questions. Thank you. KW/kw Attachment RECEIVEC SEP 1 9 2U08 ~ CITY ATTORNEY Me+no~ndCUw To: ;Susan Ruby,, City Att'~orney, CC: File From: Kimberly Wynn, Executive Assistant/Agenda Coordinator Date: 9/18/2008 Re: Resolution No. 47-08/TD Bank/ Old School Square Parking Attached please find one (1) original Resolution No. 47-08 to authorize TD Bank to refund the City for upfronting a portion of the cost of construction of the Old School Square Parking Garage nroiect. This item was approved at the September 16, 2008 Regular Commission Meeting; item 9.B. Please sign, and return to me for further processing. Please call me at 243-7059 if you have any questions. Thank you. KW/kw Attachment ;;, 1 Memovandanyrv To: (Susan Ruby, City Attorney CC: File From: Kimberly Wynn, Executive Assistant/Agenda Coordinator Date: 9/18/2008 Re: Resolution No. 47-08/TD Bank/ Old School Square Parking Attached please find one (1) original Resolution No. 47-08 to authorize TD Bank to refund the City for upfrontinQ a portion of the cost of construction of the Old School Square Parking Garage proiect. This item was approved at the September 16, 2008 Regular Commission Meeting; item 9.B. Please sign, and return to me for further processing. Please call me at 243-7059 if you have any questions. Thank you. KW/kw Attachment 1