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Res 66-06 ernornndtnn To: Rebecca O'Connor, Treasurer CC: File From: Lanelda Gaskins, Executive Assistant/Agenda Coordinator Date: 11/15/2006 Re: Resolutions No. 66-06 Jg Attached for your record and disbursement, please find a copy Resolution No. 66- 06 regarding the issuance of Bonds, which was approved at the November 7, 2006 Commission Meeting. Please call me at 243-7059 if you have any questions. Thank you. LG/lg Attachment 1 RESOLUTION NO. 66-06 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, SUPPLEMENTING RESOLUTION NO. 39-88, AS AMENDED AND SUPPLEMENTED, FOR THE PURPOSE OF AUTHORIZING A TENTH SERIES OF WATER AND SEWER REVENUE BONDS DESIGNATED AS WATER AND SEWER REVENUE BONDS, SERIES 2006B (THE "BONDS"), IN THE AGGREGATE PRINCIPAL AMOUNT OF $2,350,000 FOR THE PURPOSE OF FINANCING CERTAIN ADDITIONS, EXTENSIONS AND IMPROVEMENTS TO THE CITY'S COMBINED PUBLIC UTILITY; PROVIDING FOR THE TERMS OF SAID BONDS; PROVIDING FOR THE APPLICATION OF THE BOND PROCEEDS; AUTHORIZING THE NEGOTIATED SALE OF SAID BOND AND APPROVING THE FORM, AND AUTHORIZING THE EXECUTION AND DELIVERY, OF A BOND PURCHASE AGREEMENT TO EFFECT THE NEGOTIATED SALE OF THE BONDS TO SUNTRUST BANK; INCORPORATING BY REFERENCE THE TERMS AND PROVISIONS OF RESOLUTION NO. 39-88, AS AMENDED AND SUPPLEMENTED; DESIGNATING THE BONDS AS "QUALIFIED TAX-EXEMPT OBLIGATIONS" WITHIN THE MEANING OF SECTION 265(b) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; AUTHORIZING THE PROPER OFFICERS OF THE CITY TO DO ALL OTHER THINGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION WITH THE ISSUANCE, SALE AND DELIVERY OF THE BONDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach, Florida, a municipal corporation of the State of Florida (the "City"), presently owns and operates its own potable water and sanitary sewer system (herein, the "Combined Public Utility''); and WHEREAS, the City Commission of the City of Delray Beach, Florida (the "Commission''), did, on June 12, 1984, adopt Resolution No. 45-84, which was amended and supplemented on June 26, 1984, and October 10, 1984, authorizing the issuance of its Water and Sewer Revenue Bonds, Series 1984 (the "1984 Bonds''); and WHEREAS, the Commission did, on June 28, 1988, adopt Resolution No. 36-88, which was amended, supplemented and restated by Resolution No. 39-88, adopted on July 12, 1988, as further amended and supplemented (collectively, the "1988 Resolution"), authorizing the issuance of the City's Water and Sewer Refunding Revenue Bonds, Series 1988 (the "1988 Bonds"), to refund the City's 1984 Bonds; and WHEREAS, the City did, on September 15, 1988, issue its 1988 Bonds in the aggregate principal amount of $25,135,000; and WHEREAS, the 1988 Resolution authorizes in Section 4.G of Article III thereof, of Part I, the issuance of water and sewer revenue bonds payable on a parity with the 1988 Bonds issued pursuant to the 1988 Resolution, on the terms and conditions therein contained; and WHEREAS, the Commission did, on April 24, 1990, adopt Resolution No. 46-90, as amended and supplemented, which authorized the issuance of $8,000,000 Water and Sewer Revenue Bonds, Series 1991 A (the "1991 A Bonds") of the City for the purpose of financing certain additions, extensions and improvements to the City's Combined Public Utility; and WHEREAS, the Commission did, on October 23, 1990, adopt Resolution No. 104-90, as amended and supplemented, which authorized the issuance of not exceeding $50,000,000 Water and Sewer Revenue Bonds, Series 1991 B (the "1991 B Bonds") of the City for the purpose of financing certain additions, extensions and improvements to the City's Combined Public Utility; and WHEREAS, the City did, on April 30, 1991, issue its 1991 A Bonds and 1991 B Bonds in the aggregate principal amounts of $8,000,000 and $14,585,000, respectively; and 2 Res. No. 66-06 .;~ WHEREAS, the Commission did, on June 8, 1993, adopt Resolution No. 50-93, which authorized the issuance of not exceeding $30,000,000 Water and Sewer Refunding Revenue Bonds, Series 1993 A (the "1993 A Bonds'') for the purpose of paying and refunding a portion of the 1988 Bonds and the 1991 A Bonds; and WHEREAS, the Commission did, on June 8, 1993, adopt Resolution No. 51-93, which authorized the issuance of not exceeding $10,000,000 Water and Sewer Revenue Bonds, Series 1993 B (the "1993 B Bonds") for the purpose of financing certain additions, extensions and improvements to the City's Combined Public Utility; and WHEREAS, the City did, on June 29, 1993, issue its 1993 A Bonds and 1993 B Bonds in the aggregate principal amounts of $21,238,997.35 and $6,865,477.25, respectively; and WHEREAS, the Commission did, on August 19, 1997, adopt Resolution No. 58-97, as amended and supplemented, authorizing the issuance of its Water and Sewer Revenue Refunding Bonds, Series 1997 A (the "1997 Bonds"), in the aggregate principal amount of not exceeding $17,000,000 to advance refund the outstanding 1991 B Bonds; and WHEREAS, the City did on November 18, 1997, issue its 1997 Bonds in the aggregate principal amount of $15,030,000; and WHEREAS, the Commission did, on June 8, 1999, adopt Resolution No. 33-99, authorizing the issuance of not to exceed $3,500,000 in principal amount of Water and Sewer Bonds, Subordinate Series 1999 (the "1999 Bonds''); and WHEREAS, the City did, on June 11, 1999, issue its 1999 Bonds in the aggregate principal amount of $3,500,000; and 3 Res. No. 66-06 WHEREAS the Commission did on June 17, 2003, adopt Resolution No. 34-03 and Resolution No. 34-05, authorizing the issuance of not to exceed $13,500,000 in principal amount of Water and Sewer Revenue Refunding Bonds, Series 2003 (the "2003 Bonds") to pay and defease all or a portion of the 1993 A Bonds, the 1993 B Bonds and the 1999 Bonds; and WHEREAS, the City did, on July 9, 2003, issue its 2003 Bonds in the aggregate principal amount of $11 ,670,000; and WHEREAS, the Commission did on May 16, 2006, adopt Resolution No. 25-06, authorizing the issuance of $7,000,000 in principal amount of Water and Sewer Revenue Bonds, Series 2006 (the "2006 Bonds") for the purpose of financing certain additions, extensions and improvements to the Combined Public Utility; and WHEREAS, the City did, on May 25, 2006, issue its 2006 Bonds in the aggregate principal amount of $7,000,000; and WHEREAS, on the date hereof there remains Outstanding the 1997 Bonds, the 1993 B Bonds, the 2003 Bonds and the 2006 Bonds (collectively, the "Prior Bonds"). WHEREAS, any capitalized terms used in this Resolution and not otherwise defined, shall have the meaning ascribed to such term in the 1988 Resolution; and WHEREAS, the Commission hereby deems it necessary for the City to issue a tenth series of Water and Sewer Revenue Bonds, pursuant to the terms and provisions of the 1988 Resolution and this Resolution to finance all or a portion of the 2006B Project (as herein defined) which Water and Sewer Revenue Bonds shall be designated "City of Delray Beach, Florida, Water and Sewer Revenue Bonds, Series 2006B" (herein, the "Bonds'') and such Bonds shall be issued in the 4 Res. No. 66-06 aggregate principal amount of TWO MILLION THREE HUNDRED FIFlY THOUSAND DOLLARS ($2,350,000); and WHEREAS, except for any Bond Insurance and/or Reserve Account Credit Facility Substitutes applicable to the Prior Bonds, the Bonds shall be on parity with the Prior Bonds as to lien on, and source and security for payment from, the Net Revenues derived from the operation of the Combined Public Utility and in all other respects, except as provided herein or in the Bonds; and WHEREAS, the City staff has previously solicited bids from lending institutions to provide, through the purchase of the Bonds, financing for the 2006B Project; and WHEREAS, City staff has determined and the City Commission hereby concurs that SunTrust Bank, a banking corporation organized under the laws of the State of Georgia (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 2006, and other factors described herein, it would be in the best interest of the City to sell the Bonds to the Bank on a negotiated basis pursuant to the terms and provisions of the 1988 Resolution, this Resolution and that certain Bond Purchase Agreement dated the date of delivery of the Bonds (herein, the "Agreement") by and between the City and the Bank in substantially the form attached hereto as Exhibit A; and WHEREAS, the City does not expect to issue more than $10,000,000 of its tax-exempt obligations in calendar year 2006, and based upon the advice of its Bond Counsel, the City 5 Res. No. 66-06 :, Commission shall designate the Bonds as "qualified tax-exempt obligations" within the meaning of Section 265(b) of the Code. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: SECTION 1: AUTHORITY OF THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of the 1988 Resolution, the City Charter of the City, as amended and supplemented, the Florida Constitution, Chapter 166, Florida Statutes, as amended and supplemented, and other applicable provisions of law. SECTION 2: FINDINGS. It is hereby ascertained, determined and declared: A. That all terms not otherwise defined in the recitals set forth above, in this Section 2 or in Section 3 hereof shall have the meaning ascribed to such terms in Part I, Section 2 of Article 1 of the 1988 Resolution. B. That the City now owns, operates and maintains a combined water system and sewer system for the supply and distribution of water to the inhabitants and customers of the City and for the collection, treatment and disposal of sewage in said City (the "Combined Public Utility'') and owns a one-half (1/2) undivided interest in a treatment and disposal system operated by the South Central Regional Wastewater Treatment and Disposal Board; and that the City derives revenues from the operation of said Combined Public Utility. C. That the revenues of the Combined Public Utility are not pledged or encumbered in any manner, except for the Outstanding Prior Bonds issued pursuant to the 1988 Resolution. 6 Res. No. 66-06 D. That the 1988 Resolution in Section 4.G of Article III of Part I provides for the issuance of pari passu additional bonds, under the terms, conditions and limitations provided therein. E. That the City is authorized to issue the Bonds as pari passu additional bonds within the terms, conditions and limitations provided in Section 4.G of Article III, Part I, of the 1988 Resolution. F. That the proceeds derived from the sale of the Bonds shall be used to finance all or a portion of the 2006B Project. G. That the estimated Revenues to be derived in each year hereafter from the operation of the Combined Public Utility will be sufficient at all times to pay all the costs of operation and maintenance of the Combined Public Utility and the principal of and interest on the Prior Bonds and the Bonds authorized pursuant to the 1988 Resolution and this Resolution, as the same become due and payable, and all sinking fund, reserve, if any, and other payments provided for in the 1988 Resolution and in this Resolution in accordance with the requirements of the 1988 Resolution and this Resolution. H. That the principal of and interest on the Bonds and all of the sinking fund and other payments provided for in the 1988 Resolution and this Resolution will be paid from the Net Revenues derived from the operation of the Combined Public Utility in the manner provided therein and herein, on a parity with the Prior Bonds; and the ad valorem taxing power of the City will never be necessary or authorized to pay the principal of and interest on the Bonds to be issued pursuant to this Resolution, or to make any of the sinking fund or other payments provided for in 7 Res. No. 66-06 the 1988 Resolution and this Resolution, and the Bonds issued pursuant to this Resolution shall not constitute a lien upon the Combined Public Utility or upon any other property whatsoever of or in the City but shall be payable solely from the Net Revenues derived from the operation of the Combined Public Utility in the manner provided herein. I. That it is necessary and in the best economic interest of the City to acquire, construct and implement the 2006B Project in order to improve and enhance the City's Combined Public Utility and the services so provided by such Combined Public Utility. J. That the 2006B Project will serve a valid municipal purpose. K. That the cost of financing the 2006B Project shall be deemed to include, but not be limited to, the cost of acquisition, construction, improving, installing, renovating and equipping all or a portion of the 2006B Project, the cost of all real or personal property necessary therefor; administrative expenses; design, engineering and legal expenses; the fees and expenses of Bond Counsel; the fees and reasonable expenses of counsel for the Bank; 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 2006B Project and the issuance of the Bonds herein authorized. L. That the City, having previously solicited bids for the sale of the Bonds, has determined that the best qualified bid for the Bonds was delivered by the Bank. M. That the negotiated sale of the 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 financing of the 2006B Project, the aforementioned solicitation of bids, and present market conditions. 8 Res. No. 66-06 N. 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. O. That pursuant to the provisions of the 1988 Resolution and this Resolution, the City may issue obligations in the future on parity with the Bonds and the Prior Bonds secured by the Net Revenues. P. The City hereby designates the Bonds to be qualified "tax-exempt obligations" within the meaning of Section 265(b) of the Code. SECTION 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. "Business Day" shall mean any day other than a Saturday or Sunday, or a day on which the Bank is closed. "Code" shall mean the Internal Revenue Code of 1986, as amended, the applicable Treasury Regulations promulgated thereunder and any administrative or judicial interpretations of the same published in a form on which the City may rely as a matter of law. "Determination of Taxability" shall mean the circumstance of interest paid or payable on the Bonds becoming includable for federal income tax purposes in the gross income of the Bondholder. 9 Res. No. 66-06 A Determination of Taxability will be deemed to have occurred upon (i) the receipt by the City or Bondholder of an original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency which holds that any interest payable on the Bonds is includable in the gross income of the Bondholder for federal income tax purposes; (ii) the issuance of any public or private ruling of the Internal Revenue Service that any interest payable on the Bonds is includable in the gross income of the Bondholder for federal income tax purposes; or (iii) receipt by the City or Bondholder of an opinion of Bond Counsel that any interest on the Bonds has become includable in the gross income of the Bondholder for federal income tax purposes. For all purposes of this definition, a Determination of Taxability will be deemed to occur on the date as of which the interest on the Bonds is first deemed includable in the gross income of the Bondholder for federal income tax purposes. "Interest Rate" shall mean with respect to the Bonds, unless the Bonds are no longer a "qualified tax-exempt obligation" within the meaning of Section 265(b) of the Code and the Interest Rate is adjusted pursuant to Section 8 hereof, a fixed rate of interest on the Bonds which, shall be equal to 3.98 percent per annum (3.98%). The Interest Rate shall be calculated on the basis of a 360 day year of twelve thirty-day months. "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the Bonds, October 1,2021. "Owner," "Bondholder" or "registered holder" or any similar term shall mean the Bank or, subject to the provisions of Section 10 hereof, any successor registered holder of the Bonds; 10 Res. No. 66-06 provided no Bondholder may be the registered owner of less than $1,000,000 in the aggregate principal amount of the Bonds or all Bonds if less than $1,000,000 remains outstanding. "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 Bonds, each April 1 and October 1, commencing April 1, 2007, and with respect to scheduled principal on the Bonds, on each October 1, commencing October 1, 2007 in the principal amounts set forth in Section 7 hereof, and, prior to the Maturity Date, on any date the principal of the 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 and interest shall continue to accrue until the payment is received by the Owner. "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. "Taxable Rate" shall mean the Interest Rate times 1.5084. "2006B Project" shall mean, unless determined otherwise by subsequent proceedings of the Commission, additional funding for the phased expansion of the South Center Regional Wastewater Treatment Facility and all related and incidental costs. 11 Res. No. 66-06 ";-;J 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 4: AUTHORIZATION OF BONDS. Subject and pursuant to the provisions of this Resolution and the 1988 Resolution, obligations of the City of Delray Beach, Florida, to be known as ''Water and Sewer Revenue Bonds, Series 2006B" (herein the "Bonds") are hereby authorized to be issued in the aggregate principal amount of Two Million Three Hundred Fifty Thousand Dollars ($2,350,000) for the purpose of financing all or a portion of the costs of the 2006B Project. SECTION 5: INCORPORATION BY REFERENCE. Unless otherwise provided herein, all the terms and provisions of the 1988 Resolution shall, by this reference, be incorporated herein as though fully set forth in this Resolution. SECTION 6: 1988 RESOLUTION AND THIS RESOLUTION CONSTITUTES CONTRACT. In consideration of the acceptance of the Bonds authorized to be issued hereunder by those who shall hold the same from time to time, this 1988 Resolution and the Resolution shall be deemed to be and shall constitute a contract between the City and such Owners, including the Bank, and the covenants and agreements herein set forth to be performed by said City shall be for the equal benefit, protection and security of the Owners of any and all of such Bonds, including the Bank, all of which shall be of equal rank and without preference, priority, or distinction of any of the Bonds over any other thereof, except as expressly provided therein and herein. 12 Res. No. 66-06 SECTION 7: DESCRIPTION OF BONDS. Notwithstanding the form of Bonds set forth in the 1988 Resolution, the text of the 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 Bonds (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance. The Bonds shall be issued in registered form designating the Bank or its designee as the registered owner. Unless the interest rate on the Bonds is adjusted in accordance with Section 8 hereof, the Bonds shall bear interest on the outstanding principal amount of the Bonds from time to time at the Interest Rate and shall be payable on each Payment Date, commencing April 1, 2007. Unless all or a portion of the Bonds is optionally or mandatorily redeemed in accordance with the terms of this Resolution, the outstanding principal of the Bonds shall be payable on each October 1 in the years and amounts set forth below: Date 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 Principal Amount $120,000 125,000 125,000 130,000 130,000 135,000 140,000 145,000 165,000 170,000 180,000 185,000 195,000 13 Res. No. 66-06 Date 2020 2021' Total Principal Amount 200,000 205.000 $2,350,000 , Final maturity Principal and interest on the Bonds shall be payable by the Paying Agent to the Owner by wire transfer in accordance with written instructions provided to the City by the Owner. The Bonds shall be numbered in such manner as may be prescribed by the Registrar. SECTION 8: ADJUSTMENT TO INTEREST RATE. Upon a Determination of Taxability the interest rate on the Bonds shall be converted to the Taxable Rate. In addition, the City shall also pay to the Bank any additions to tax, penalties, and any interest on the Bonds and any arrears in interest resulting from a Determination of Taxability. Any penalties in the form of interest or otherwise shall be paid by the City on the next succeeding Payment Date. The Interest Rate shall also be adjusted automatically as of the effective date of any change in the maximum corporate tax rate, presendy 35%, or in the Preference Reduction Rate (hereinafter defined), presently 20%, based upon the following calculations. Provided, however, if the Bonds are not a "qualified tax-exempt obligation" within the meaning of Section 265 (b) (3) of the Code on the date of delivery of the Bonds, or if the Bonds at any time subsequent to delivery of the Bonds no longer qualify as a "qualified tax-exempt obligation," then the Preference Reduction Rate shall be adjusted as of the date of delivery of the Bonds or as of such subsequent date, as the case may be. Upon the occurrence of any of the foregoing events, the Interest Rate shall be adjusted to the product obtained by multiplying the Interest Rate by a fraction, the numerator of which is equal 14 Res. No. 66-06 to the sum of (i) the product of the Fully Taxable Equivalent (hereinafter defined) times one minus the maximum corporate tax rate in effect as of the day of adjustment, plus (ii) the TEFRA Adjustment (hereinafter defined) in effect as of the date of adjustment, and the denominator of which is equal to the sum of (i) the product of the "Fully Taxable Equivalent" times one minus the maximum corporate tax rate in effect as of the date of delivery of the Bonds plus (ii) the TEFRA Adjustment in effect as of the date of delivery of the Bonds. For the purpose hereof: (1) "TEFRA Adjustment' means an adjustment equal to the product of the following: Cost of Funds multiplied by the applicable maximum corporate tax rate multiplied by the applicable Preference Reduction Rate; (2) "Cost of Funds" means one hundred (100) multiplied by a fraction, the numerator of which is equal to the total interest expense of SunTrust Bank, for the immediately preceding tax year and the denominator of which is equal to the average total assets of SunTrust Bank, but at no time will be determined to exceed the cost of Fed Funds; (3) "Preference Reduction Rate" means the percentage reduction to be applied to the amount allowable as a deduction under Chapter I of the Code with respect to any financial institution preference item (as such term is defined in Section 291(e) of the Code); and (4) "Fully Taxable Equivalent" means the Interest Rate times 1.5084 expressed as a number and not as a percentage. SECTION 9: EXECUTION OF THE BONDS. The 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 Bonds may be manual or facsimile signatures. In case anyone or more of the officers who shall have signed or sealed the 15 Res. No. 66-06 Bonds shall cease to be such officer of the City before the Bonds so signed and sealed shall have been actually sold and delivered, such Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such Bonds had not ceased to hold such office. The Bonds may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the Bonds shall hold the proper office, although at the date the Bonds shall be actually delivered such person may not have held such office or may not have been so authorized. The Bonds shall bear thereon a certificate of authentication, in the form set forth on Exhibit B 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 Bonds as shall bear thereon such certificate of authentication shall be entitled to any right or benefit under this Resolution and no 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 Bonds executed on behalf of the City shall be conclusive evidence that the 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 10: NEGOTIABILITY, REGISTRATION AND CANCELLATION. The Registrar shall keep books for the registration of the Bonds and for the registration of transfers of the Bonds. The 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 16 Res. No. 66-06 addressed to the City as to the sophistication of the inve~tor) 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 Bond, the City shall issue in the name of the transferee a new Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the Bonds shall be registered upon the books kept by the Registrar as the absolute Owner of such Bonds, whether such Bonds shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 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 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 Bonds is exercised, the City shall execute and the Registrar shall authenticate and deliver the Bonds in accordance with the provisions of this Resolution. The 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 17 Res. No. 66-06 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 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 Bonds shall thereupon be canceled upon written acknowledgement from the Owner that the Bonds have been paid in whole. The 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 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 11: MUTILATED, DESTROYED, STOLEN OR LOST BONDS. In case any Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new Bond of like date, maturity and denomination as the Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated Bond, such mutilated Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 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 Bonds shall be about to mature or have matured, instead of issuing a duplicate 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 Bond their reasonable fees and expenses in connection with this transaction. Any Bonds surrendered for replacement shall be canceled in the same manner as provided in Section 10 hereof. 18 Res. No. 66-06 Any such duplicate 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 Bond be at any time found by anyone, and such duplicate Bonds shall be entitled to equal proportionate benefits and rights as to lien on the source and security for payment from Net Revenues with the Bonds issued hereunder. SECTION 12: CONDITIONS FOR ISSUANCE OF THE BONDS. Prior to the issuance of the Bonds, the City shall comply with the following conditions: A. Deliver to the Bank a fully executed arbitrage tax certificate; and B. Deliver to the Bank a copy of a completed and executed Form 8038-G to be filed by the City with the Internal Revenue Service; and C. Deliver to the Bank an opinion of Bond Counsel, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the Bonds and the due adoption of this Resolution (enforceability of such instrument may be subject to standard bankruptcy exceptions and the like) and the exclusion of interest on the Bonds from gross income for federal income tax purposes, that the Bonds are not specified "private activity bonds" within the meaning of Section 57 (a) (5) of the Code and, therefore, the interest on the Bonds will not be treated as a preference item for purposes of computing the alternative minimum tax imposed by Section 55 of the Code (however, a portion of the interest on the Bonds owned by corporations may be subject to the federal alternative minimum tax which is based in part on adjusted current earnings). Sucho opinion shall also state that the Bonds are "qualified tax-exempt obligations" within the meaning of Section 265(b) of the Code; and 19 Res. No. 66-06 D. Deliver to the Bank an opinion of the City Attorney, satisfactory to the Bank, regarding the due authorization, execution, delivery, validity and enforceability of the Bonds, the Agreement and the due adoption of this Resolution and the 1988 Resolution (enforceability may be subject to standard bankruptcy exceptions and the like); and E. 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 term of the 1988 Resolution. SECTION 13: COVENANTS OF THE CITY. The City hereby covenants to comply with the terms and provisions of Part I, Section 4.G of Article III, of the 1988 Resolution, as certified by the City in writing and delivered to the Bank prior to the issuance of the Bonds. In addition, the City reaffirms and acknowledges that all of the covenants set forth in the 1988 . Resolution applicable thereto, apply to the Bonds authorized to be issued pursuant to this Resolution, except those relating to a debt service reserve account, Bond Insurance and any Reserve Account Credit Facility Substitute. The Combined Public Utility Revenue Fund, the Water and Sewer Sinking Fund, the Water and Sewer System Renewal, Replacement and Improvement Fund and the Pledged Impact Charge Fund, all created and established under the 1988 Resolution, and the separate accounts therein shall be continued and maintained as provided in the 1988 Resolution as long as any of the Bonds, issued pursuant to the terms and provisions of the 1988 Resolution and this Resolution are Outstanding; and the payments required to be made from the Revenue Fund into the Interest Account, Principal Account, and Bond Redemption Account, shall be adjusted so as to provide the amounts necessary 20 Res. No. 66-06 to pay the principal of and interest on the Bonds issued pursuant to this Resolution, in the amounts, at the times and in the manner provided in the 1988 Resolution and this Resolution. The City will continue to pay into the Water and Sewer System Renewal, Replacement and Improvement Fund and Pledged Impact Charge Fund, if applicable, from the Revenue Fund as long as any of the Bonds issued pursuant to the terms and provisions of this Resolution and the 1988 Resolution, or interest thereon, are Outstanding and unpaid, the amounts required to be deposited therein pursuant to, and in the manner provided in the 1988 Resolution and the moneys in the Pledged Impact Charge Fund, if any, and the Water and Sewer System Renewal, Replacement and Improvement Fund shall be used only for the purposes provided for in the 1988 Resolution for such funds. SECTION 14: APPLICATION OF BOND PROCEEDS. All moneys received by the City from the sale of the Bonds originally authorized and issued pursuant to the 1988 Resolution and this Resolution, shall be disbursed as follows: A. $2,500 shall be paid to the Bank's counsel, unless such amount has been netted from the proceeds of the Bonds. B. The balance of the proceeds derived from the sale of the Bonds shall be applied by the City to pay any other costs of issuing the Bonds and to finance of all or a portion of the 2006B Project. SECTION 15: REDEMPTION PROVISIONS. The Bonds are subject to optional redemption in whole or in part at any time at a redemption price equal to 100% of the principal 21 Res. No. 66-06 amount of Bonds to be optionally redeemed plus accrued interest to the applicable redemption date, plus an additional fee, if applicable, calculated as follows: Upon two (2) business days' prior written notice to the Bank, the City may prepay amounts owing hereunder at any time and from time to time. Such prepayment notice shall specify the amount of the prepayment which is to be applied. In the event of prepayment, the City may be subject to pay the Bank an additional fee, determined in the manner provided below, to compensate the Bank for all losses, costs and expenses incurred in connection with such prepayment. The fee shall be equal to the present value of the difference between (1) the amount that would have been realized by the Bank on the prepaid amount for the remaining term of the Bond at an interest rate equal to the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps for a term corresponding to the term of the Bonds, interpolated to the nearest month if necessary, that was in effect two (2) Business Days prior to the delivery date of the Bonds; and (2) the amount that would be realized by the Bank by reinvesting such prepaid funds for the remaining term of the Bonds at the Federal Reserve H. 15 Statistical Release rate for fixed-rate payers in interest rate swaps, interpolated to the nearest month, as released two (2) Business Days prior to the Bond prepayment date; both (1) and (2) discounted at same rates stated or calculated above. Should the present value have no value or a negative value, the City may prepay with no additional fee. Should the Federal Reserve no longer release rates for fixed-rate payers in interest rate swaps, the Bank may substitute the Federal Reserve H.15 Statistical Release with another similar index. The Bank shall provide the City with a statement explaining the calculation of any additional fee due, which statement shall, in the absence of manifest error, be conclusive and binding. Partial prepayments 22 Res. No. 66-06 may be made according to the same calculation methodology described above. Any partial prepayment of the Bonds shall not postpone the due dates of, or relieve the amounts of, any scheduled installment payments due hereunder. Amounts repaid hereunder may not be reborrowed. 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, together with accrued interest thereon and any additional fee, if applicable, or the whole thereof, together with the accrued interest thereon and any additional fee, if applicable, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal, together with accrued interest and any additional fee, if applicable, shall be paid (i) in case the entire unpaid balance of the principal of the Bonds is to be paid, upon presentation and surrender of the 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 Bonds is to be paid, upon presentation of such 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 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, unpaid interest accrued thereon and any additional fee, if applicable, without surrender of the Bonds. If, on the optional redemption date, funds for the payment of the principal amount to be prepaid, the unpaid interest accrued thereon and any 23 Res. No. 66-06 -;i additional fee, if applicable, shall not have been provided to the Paying Agent, as above provided, the principal amount of the Bonds shall continue to be Outstanding and to bear interest until payment thereof at the Interest Rate. Any partial redemption shall be applied to the installments of principal on the Bonds in the inverse order of scheduled payment and shall not postpone the due dates of, or relieve the City, from paying the adjusted amounts of, any scheduled installment payments due hereunder SECTION 16: FURTHER AUTHORIZATIONS; RATIFICATION OF PRIOR ACTS. That the Mayor, the Vice Mayor, the City Manager, the Finance Director, the Treasurer, the City Clerk, the City Attorney and any other authorized 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. All actions heretofore taken and documents prepared or executed by or on behalf of the City by any of its authorized officers, in connection with the transactions contemplated hereby, are hereby ratified, confirmed, approved and adopted. SECTION 17: SEVERABILITY OF INVALID PROVISIONS. If anyone 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 Bonds. 24 Res. No. 66-06 SECTION 18: REPEALER. That all resolutions or proceedings, or parts thereof, in conflict with the provisions of this Resolution are to the extent of such conflict hereby repealed. SECTION 19: EFFECTIVE DATE. That this Resolution shall take effect immediately upon its passage. 25 Res. No. 66-06 PASSED AND ADOPTED in regular session on this the 7th day of November, 2006. By: , FLORIDA Attest: ~-~~~. ~'\~~~\ City Clerk Date of Adoption: November 7. 2006 The foregoing Resolution is hereby approved by me as to form, language and execution this 7th ovember, 2006. By: 26 Res. No. 66-06 EXHIBIT A BOND PURCHASE AGREEMENT THIS BOND PURCHASE AGREEMENT (the "Agreement") dated November -, 2006, by and between SunTrust Bank, a banking corporation organized under the laws of the State of Georgia (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"). WI TN E S ~ E T H: WHEREAS, pursuant to the Act, as such term is defined in Resolution No. 36-88, as amended and supplemented by Resolution No. 39-88, as further amended and supplemented (collectively, the "1988 Resolution''), adopted by the City Commission of the City (the "Commission") on June 28, 1988 and July 12, 1988, respectively, and pursuant to Resolution No. R- 66-06, adopted by the Commission on November 7, 2006 (herein, the "2006 Resolutions" and together with the 1988 Resolution, the "Resolution") the City authorized the issuance of $2,350,000 in aggregate principal amount of City of Delray Beach, Florida Water and Sewer Revenue Bonds, Series 2006B (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 Resolutions; and WHEREAS, the Bank has reviewed the Resolutions and hereby finds the terms acceptable; and WHEREAS, on this date, the City has, pursuant to provisions of the Act, the Resolutions 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, 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 Resolutions and upon the representations and warranties of the City set forth in the Resolutions, the arbitrage tax certificate 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, all but not less than all, of the Bonds. The purchase price for the Bonds shall be $2,350,000, which purchase price is equal to the principal amount of the Bonds. A-l Res. No. 66-06 Since the dated date of the Bonds is the date hereof, 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. 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 12 of the 2006 Resolution. 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 Adorno & Yoss, LLP, which fee, in the amount of $2,500 shall be paid by the City. 6. Effectiveness. This Agreement shall become effective upon the execution by the appropriate officials of the City and the Bank. 7. Headings. The headings set forth in this Agreement are inserted for convenience only and shall not be deemed to be a part hereof. 8. 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. 9. Governing Law. The laws of the State of Florida shall govern this Agreement. 10. 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. A-2 Res. No. 66-06 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. SUNTRUST BANK By: Title: (SEAL) Date: November _, 2006 CIlY OF DELRA Y BEACH, FLORIDA By: Title: (SEAL) Date: November -' 2006 A-3 Res. No. 66-06 Schedule A November _,2006 City Commission City of Delray Beach, Florida Delray Beach, Florida 33444 Re: $2,350,000 City of Delray Beach, Florida Water and Sewer Revenue Bonds Series 2006B To The Honorable Mayor and Commissioners: This letter shall serve as the disclosure statements and truth-in-bonding statement pursuant to Section 218.385, Florida Statutes, in connection with the award of the above-referenced bonds (the "2006 Bonds'') to SunTrust Bank (the "Purchaser"). We represent to you as follows: 1. No management fee will be charged by the Purchaser. 2. The Underwriting spread which the Purchaser expects to realize will be -0-. 3. No fee, bonus or other compensation will be paid by the Purchaser in connection with the issue of the 2006 Bonds to any person not regularly employed or retained by the Purchaser. 4. The City of Delray Beach, Florida (the "City"), is proposing to issue up to $2,350,000 of debt or obligation for the purposes of financing certain additions, extensions and improvements to the City's combined public utility systems, and other costs associated therewith. This debt or obligation is expected to be repaid over a period of approximately 179 months. At an interest rate of 3.98%, the total interest paid over the life of the debt or obligation could be as much as $810,577. The source of repayment or security for this proposal is the Net Revenues (as defined in the resolution authorizing the issuance of the debt or obligation). Authorizing this debt or obligation will result in up to $3,160,577 of Net Revenues not being available to finance or refinance other capital projects for the City combined public utility in the calendar year 2006 through October 1, 2021. A-4 Res. No. 66-06 Very truly yours, SUNTRUST BANK By: Name: Title: A-5 Res. No. 66-06 EXHIBIT B FORM OF BOND No. R- $2,350,000 UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DELRAY BEACH, FLORIDA WATER AND SEWER REVENUE BOND, SERIES 2006B Interest Rate 3.98% Maturity Date October 1,2021 Dated Date November -' 2006 RE<JIS1rEREI> OWNEFt:------------------------SlJNTRlJSll13J\NfC--------------------------- PRINCIPAL AMOUNT: TWO MILLION THREE HUNDRED FIFlY THOUSAND DOLLARS($2,350,000.OO) 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 Net Revenues (as such term is defined in the herein defined 1988 Resolution), to the Registered Owner specified above or registered assigns on the Maturity Date specified above or earlier upon mandatory or optional prepayment as provided below, 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 from time to time 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. The interest rate on the Bond may be adjusted as provided in the Bond Resolution (as herein defined). The. principal amount, redemption premium, if applicable, 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 $2,350,000 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. 36-88 duly adopted on June 28, 1988, Resolution No. 39-88 duly adopted on July 12, 1988, as amended and supplemented to date (the "1988 Resolution'') and Resolution No. R-66-06, adopted on November 7, 2006 (the "2006 Resolution" and together with the 1988 Resolution, the "Bond Resolution"), as such resolutions may be further amended and B-1 Res. No. 66-06 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 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 proV1Slons. 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 Bond Resolution. Upon the occurrence of a Determination of Taxability this Bond shall bear interest at the Taxable Rate, as defined, and subject to the provisions set forth, in the Bond Resolution. This Bond shall bear interest at the Interest Rate, as such rate may be adjusted in accordance with the terms of the 2006 Resolution. Interest shall be payable on April 1, 2007, and each October 1 and April 1 thereafter and principal on the Bonds, unless prepaid, shall be payable on each October 1 in the amounts set forth below; provided that if such date is not a Business Day, the payment shall be made on the next succeeding Business Day (each a "Payment Date'') and interest shall continue to accrue until the payment is received by the Owner. The principal of and interest on the Bonds shall be secured solely by the Net Revenues. Date 2007 2008 2009 2010 2011 2012 2013 2014 2015 Principal Amount $ 120,000 125,000 125,000 130,000 130,000 135,000 140,000 145,000 165,000 B-2 Res. No. 66-06 Date 2016 2017 2018 2019 2020 2021' Total Principal Amount 170,000 180,000 185,000 195,000 200,000 205.000 $2,350,000 , Final maturity The City may prepay this Bond in whole or in part, at any time or from time to time, upon payment of a redemption price equal to the principal amount of the Bonds to be redeemed, plus accrued interest plus, if applicable, an additional fee as calculated in the second succeeding paragraph, by paying to the registered holder all or part of the principal amount of this Bond, together with the redemption premium and 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, together with accrued interest thereon and any additional fee, if applicable, or the whole thereof, together with accrued interest thereon, and any additional fee, if applicable, 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, unpaid interest accrued thereon, and any additional fee, if applicable, 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, and any additional fee, if applicable, 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. In the event of such prepayment, the City may be required to pay to SunTrust Bank, as the registered owner of the Bonds (herein, the "Bank"), an additional fee, determined in the manner B-3 Res. No. 66-06 provided below, to compensate the Bank for all losses, costs and expenses incurred in connection with such prepayment. Such additional fee shall be equal to the present value of the difference between (1) the amount that would have been realized by the Bank on the prepaid amount for the remaining term of the Bonds at _% (the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps for a term corresponding to the term of the Bonds, interpolated to the nearest month, if necessary, that was in effect two (2) Business Days prior to the delivery date of the Bonds) and (2) the amount that would be realized by the Bank by reinvesting such prepaid funds for the remaining term of the Bonds at the Federal Reserve H.15 Statistical Release rate for fixed-rate payers in interest rate swaps, interpolated to the nearest month, as released two (2) Business Day's prior to the prepayment date; both (1) and (2) discounted at the interest rates stated above. Should the present value have no value or a negative value, the City may prepay the Bonds with no additional fee. Should the Federal Reserve no longer release rates for fixed-rate payers in interest rate swaps, the Bank may substitute the Federal Reserve H.15 Statistical Release with another similar index. The Bank shall provide the City with a written statement explaining the calculation of the additional payment due, which statement shall, in absence of manifest error, be conclusive and binding. Partial prepayments may be made subject to payment of an additional fee based upon the same calculation methodology described above. Any partial prepayment of the Bonds shall be applied to installments of principal in the inverse order of maturity and shall not postpone the due dates of, or relieve the amounts of, any scheduled installment 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 solely by the Net 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. The applicable 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. B-4 Res. No. 66-06 (SEAL) CITY OF DELRAY BEACH, FLORIDA ATTEST: By: Mayor By: Clerk of the City of Delray Beach, Florida B-5 Res. No. 66-06 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: November -' 2006 This Bond is the Bond delivered pursuant to the within mentioned Resolution. CITY OF DELRAY BEACH Finance Department, as Registrar By: Authorized Officer B-6 Res. No. 66-06 ASSIGNMENT FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name, address and tax identification number 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. Dated: 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-7 Res. No. 66-06 ~d MEMORANDUM To: David T. Harden, City Manager Fro~ Thru: Rebecca S. O'Connor, Treasurer Joseph M. saff~ctor of Finance Subject: Proposed $2,350,000 Water and Sewer Bonds Date: November 1,2006 Backaround On October 17, 2006, the Finance Department received bids for a proposed $2,350,000 Water and Sewer Series 2006B Bonds ("Series 2006B Bonds"). The Series 2006B Bonds will provide tax exempt financing to fund the City's share of the phased expansion of the South Central Regional Central Wastewater Facility Reclaimed Water Treatment Facility; and (ii) pay the costs of issuance of the Series 2006B Bonds. Terms The term of the Series 2006B Bonds will be approximately 15 years. The City will pay interest on the Series 2006 Bonds on April 1, 2007 and October 1, 2007 and then semi-annually on every April 1 and October 1 thereafter. Principal will be paid annually commencing on October 1, 2007 and ending on October 1, 2021. Bid Responses The City received responses from Bank of America, Branch Banking and Trust (BB&T), Fifth Third Bank, Regions Bank, SunTrust, and Wachovia. The following is a tabulation of the bids. Financial Rate With Penalty Rate Without Penalty Miscellaneous Institution Languaae Lanauaae Fees Bank of America 4.10% nfa 4,500 Branch Banking & 4.03% 4.17 3,700 Trust Fifth Third Bank 4.70% with rate reset 4.90% with rate reset 1,500 after 6th and 11 th vear after 8th and 15th vear Regions Bank 4.02% 4.33% 10 yr no call; no No fees oenaltv after 10th vear SunTrust Bank 3.98% 4.16% 2,500 Wachovia 4.03% 4.33% 5 year no call; 2,500 no penalty after 5th vear Recommendation We recommend the offer submitted by SunTrust Bank, the lowest bidder. Attached is a draft Resolution No. 66-06 provided by Steve Sanford of Greenberg Traurig, the City's Bond Counsel, which authorizes the issuance of Water and Sewer Bonds in the aggregate amount of $2,350,000 and authorizes the sale of such bonds to SunTrust Bank at a rate of 3.98% for a term of 15 years. File: rfpfcommiss06Bwsres.doc q,t=: