Res 48-07RESOLUTION NO. R-48-07
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 AN ELEVENTH SERIES OF WATER AND SEWER
REVENUE BONDS DESIGNATED AS WATER AND SEWER REVENUE
BONDS, SERIES 2007 (THE "BONDS"), IN THE AGGREGATE
PRINCIPAL AMOUNT OF $9,000,000 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 BRANCH BANHING AND TRUST
COMPANY; INCORPORATING BY REFERENCE THE TERMS AND
PROVISIONS OF RESOLUTION NO. 39-88, AS AMENDED AND
SUPPLEMENTED; 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 Ciry Commission of the Ciry 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
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,
2 Res. No. R-48-07
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
Revenue 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
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
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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 not to exceed $7,000,000 in principal amount of Water and Sewer
Revenue Bonds, Series 2006 (the "2006 Bonds"); and
WHEREAS, the City did, on May 25, 2006, issue its 2006 Bonds in the aggregate principal
amount of $7,000,000; and
WHEREAS, the Commission did, on November 7, 2006, adopt Resolution No. 66-06
authorizing the issuance of not to exceed $2,350,000 in principal amount of Water and Sewer
Revenue Bonds, Series 2006B (the " 2006B Bonds'; and
WHEREAS, the City did, on November 17, 2006, issue its 2006B Bonds in the aggregate
principal amount of $2,350,000; and
WHEREAS, on the date hereof there remains Outstanding the 1997 Bonds, the 1993 B
Bonds, the 2003 Bonds, the 2006 Bonds and the 2006B Bonds (collectively, the "Prior Bonds"); and
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 an eleventh
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 2007 Project (as herein defined)
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which Water and Sewer Revenue Bonds shall be designated "City of Dekay Beach, Florida, Water
and Sewer Revenue Bonds, Series 2007" (herein, the "Bonds") and such Bonds shall be issued in the
aggregate principal amount of NINE MILLION DOLLARS ($9,000,000); and
WHEREAS, except for any Bond Insurance and/or Reserve Account Credit Facility
Substitutes applicable to certain of 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 Ciry staff has previously solicited bids from lending institutions to provide,
through the purchase of the Bonds, financing for the 2007 Project; and
WHEREAS, Ciry staff has determined and the City Commission hereby concurs that
Branch Banking and Trust Company, a banking organization organized under the laws of the State
of North Carolina (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 2007, 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.
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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 aone-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 Resolution
No. 36-88, adopted on June 28, 1988, as amended, supplemented and restated by Resolution No.
39-88, adopted on July 12, 1988, as further amended and supplemented (collectively, the "1988
Resolution'.
6 Res. No. R-48-07
D. That the 1988 Resolution in Section 4.G of Article III of Part I provides for
the issuance of >an assu additional bonds, under the terms, conditions and limitations provided
therein.
E. That the City is authorized to issue the Bonds as ~ assu 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 2007 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 taking 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. R-48-07
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 Ciry 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 Ciry to acquire,
construct and implement the 2007 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 2007 Project will serve a valid municipal purpose.
K. That the cost of financing the 2007 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 2007 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 2007 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 2007
Project, the aforementioned solicitation of bids, and present market conditions.
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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.
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.
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
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or Statutory Notice of Deficienry 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 a 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, a fixed rate of interest on the Bonds
which, shall be equal to 4.41 percent per annum (4.41%). 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;
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 Ciry 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.
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"Payment Date" shall mean, with respect to interest on the Bonds, each April 1 and October
1, commencing April 1, 2008, and with respect to scheduled principal on the Bonds, on each
October 1, commencing October 1, 2008 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 1.5234.
"2007 Project" shall mean, unless determined otherwise by subsequent proceedings of the
Commission, additional funding for a reclaim and deep well project relating to the operation of the
City's combined Public Utility and all related and incidental costs.
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 Dekay Beach,
Florida, to be known as "Water and Sewer Revenue Bonds, Series 2007" (herein the "Bonds") are
11 Res. No. R-48-07
hereby authorized to be issued in the aggregate principal amount of Nine Million Dollars
($9,000,000) for the purpose of financing all or a portion of the costs of the 2007 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 C-wners, 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 C-wners 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.
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
12 Res. No. R-48-07
time at the Interest Rate and shall be payable on each Payment Date, commencing April 1, 2008.
Unless the Bonds are optionally redeemed, at the option of the City, 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:
Principal
Date Amount
2008 $ 190,000
2009 200,000
2010 210,000
2011 210,000
2012 220,000
2013 230,000
2014 240,000
2015 940,000
2016 980,000
2017 1,020,000
2018 1,060,000
2019 1,110,000
2020 1,170,000
2021 * 1.220.000
Total
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.
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
13 Res. No. R-48-07
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 any one or more of the officers who shall have signed or sealed the 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 beaz 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
14 Res. No. R-48-07
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 C-wner 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 C-wner 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 C+wner 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
15 Res. No. R-48-07
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
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 Chvner 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 Gwner of
16 Res. No. R-48-07
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.
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); and
17 Res. No. R-48-07
(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 bankruptry 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 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
18 Res. No. R-48-07
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
Pledge 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. $3,700 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 2007 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
amount of Bonds to be optionally redeemed plus accrued interest to the applicable redemption date.
19 Res. No. R-48-07
Such optional redemption shall be accomplished by paying to the registered holder all or part
of the principal amount of the Bonds, together with the unpaid interest accrued on the amount of
principal so prepaid to the date of such redemption. Each prepayment shall be made on such
Payment 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, or
the whole thereof, together with accrued interest, 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, 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, together with unpaid interest
accrued thereon, without surrender of the Bonds. If, on the optional redemption 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 Bonds
shall continue to be Outstanding and to bear interest until payment thereof at the Interest Rate.
20 Res. No. R-48-07
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 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 Bonds.
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.
21 Res. No. R-48-07
SECTION 19: EFFECTIVE DATE. That this Resolution shall take effect immediately
upon its passage.
PASSED AND ADOPTED in regular session on this the 4`~ day of September, 2007.
CITY OFD RAY BEACH, FLORIDA
sy:
Mayor
Attest:
C~ • ~, ~ ,
J,,, ~, , ~J *p,~ Date of Adoption:
Ciry Clerk
The foregoing Resolution is hereby approved
by me as to form, language and execution
this
By:
September 4.2007
22 Res. No. R-48-07
EXHIBIT A
BOND PURCHASE AGREEMENT
THIS BOND PURCHASE AGREEMENT (the "Agreement") dated September ;
2007, by and between Branch Banking and Trust Company, a banking corporation organized under
the laws of the State of North Carolina (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").
WITNES~ETH:
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 Ciry (the
"Commission") on June 28, 1988 and July 12, 1988, respectively, and pursuant to Resolution No. R-
48-07, adopted by the Commission on September 4, 2007 (herein, the "2007 Resolutions" and
together with the 1988 Resolution, the "Resolution") the City authorized the issuance of not to
exceed $9,000,000 in aggregate principal amount of City of Dekay Beach, Florida Water and Sewer
Revenue Bonds, Series 2007 (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 Ciry 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 Ciry 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 $9,000,000, which purchase price is equal to the principal amount of the Bonds.
A-1 Res. No. R-48-07
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 2007 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
Holland & Knight LLP, which fee, in the amount of $3,700 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. Heading. 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.
[Space Left Blank Intentionally]
A-2 Res. No. R-48-07
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.
BRANCH BANKING AND TRUST
COMPANY
By:
Title:
(SEAL)
Date: September 4, 2007
CITY OF DELRAY BEACH, FLORIDA
By:
Title:
(SEAT-) Date: September 4, 2007
A-3 Res. No. R-48-07
Schedule A
September 4, 2007
City Commission
City of Delray Beach, Florida
Delray Beach, Florida 33444
Re:
$9,000,000
City of Delray Beach, Florida
Water and Sewer Revenue Bonds
Series 2007
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 "2007 Bonds") to Branch Banking and Trust Company (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 2007 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
$9,000,000 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 171 months. At an
interest rate of 4.41 %, the total interest paid over the life of the debt or obligation could be as much
as $3,983,553. [BB&T to Confirm]
Schedule A Res. No. R-48-07
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 $12,983,553 of Net Revenues not being available to finance or refinance other
capital projects for the City's Combined Public Utility in calendar years 2007 through October 1,
2021.
Very truly yours,
BRANCH BANKING AND TRUST COMPANY
By:
Name:
Title:
Schedule A Res. No. R-48-07
EXHIBIT B
FORM OF BOND
No. R-48-07
$9,000,000
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF DELRAY BEACH, FLORIDA
WATER AND SEWER REVENUE BOND, SERIES 2007
Interest Rate Maturity Date Dated Date
4.41% October 1, 2021 September 4, 2007
REGISTERED OWNER: --BRANCH BANKING AND TRUST COMPANY-----------------
PRINCIPAL AMOUNT:-------NINE MILLION DOLLARS($9,000,000.00)-----------
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 Net Revenues (as
such term is defined in the herein defined 1988 Resolution), to the Registered C-wner 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 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 $9,000,000 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. 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-48-07, adopted on September 4, 2007 (the "2007 Resolution" and together with
the 1988 Resolution, 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
B-1 Res. No. R-48-07
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
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 2007 Resolution.
Interest shall be payable on April 1, 2008, 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.
Principal
Date Amount
2008 $ 190,000
2009 200,000
2010 210,000
2011 210,000
2012 220,000
2013 230,000
2014 240,000
2015 940,000
2016 980,000
2017 1,020,000
2018 1,060,000
2019 1,110,000
2020 1,170,000
2021 * _ 1,220.000
Total
B-2 Res. No. R-48-07
s Final maturity
The City may prepay this Bond in whole or in part, at any time or from time to time, upon
payment of the principal amount of the Bonds to be redeemed, 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, together with accrued interest, or the whole
thereof, together with accrued interest, as the case may be, shall become due and payable on the
prepayment date stated in such notice, which shall be a Payment Date; 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.
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.
B-3 Res. No. R-48-07
IN WITNESS WHEREOF, the City of Dekay 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
B-4 Res. No. R-48-07
FORM OF CERTIFICATE OF AUTHENTICATION
Date of Authentication: September 4, 2007
This Bond is the Bond delivered pursuant to the within mentioned Resolution.
CITY OF DELRAY BEACH
Finance Department, as Registrar
By:
Authorized Officer
B-5 Res. No. R-48-07
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.
WPB 381713387v8 016787.012000 8/29/2007
B-6 Res. No. R-48-07
MEMORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM• REBECCA S. O'CONNOR, TREASURER
THROUG CITY MANAGER
DATE: AUGUST 29, 2007
SUBJECT: AGENDA ITEM # -REGULAR MEETING OF SEPTEMBER 4, 2007
2007 WATER AND SEWER REVENUE BOND ISSUE
ITEM BEFORE COMMISSION
Authorize the sale of City of Delray Beach Water and Sewer Revenue Bonds, Series 2007 in the
principal amount of $9,000,000 to Branch Banking and Trust at a rate of 4.41 % for a term of 15
years with no penalty for eazly pre-payment.
BACKGROUND
The South Central Regional Wastewater Treatment Board approved in December, 2006 the Reclaim
and Deepwell projects totaling approximately $18,000,000 with funding to be split between the City
of Boynton Beach and the City of Delray Beach. These projects were subsequently approved by
City Commission.
On August 15, 2007, the Finance Department received bids for a proposed $9,000,000 Water and
Sewer Bonds, Series 2007 ("Series 2007 Bonds") to provide tax exempt f nancing to fund the City's
share of these projects and to pay the costs of issuance for these bonds.
FUNDING SOURCE
N/A
RECOMMENDATION
Recommend the authorization of the sale of Delray Beach Water and Sewer Revenue Bands, Series
2007 in the principal amount of $9,000,000 to Branch Banking and Trust at a rate of 4.41 % for a
term of 15 years with no penalty for eazly pre-payment.
q~G
MEMORANDUM
To: David T. Harden, City Manager
From ~ 1 Rebecca S. O'Connor, Treasurer
Thru: ~ Joseph M. Safford, Director of Finance
Subject: Proposed $9,000,000 Water and Sewer Bands, Series 2007
Date: August 29, 2007
Backs~round
The South Central Reg~nal Wastewater Board approved in December, 2006 the Reclaim and
Deepwell projects totaling approximately $18,000,000 with funding to be split between the City of
Boynton Beach and the City of Delray Beach. This was subsequently approved by City
Commission.
On August 15, 2007, the Finance Department received bids for a proposed $9,000,000 Water and
Sewer Series 2007 Bonds ("Series 2007 Bonds") to provide tax exempt financing to fund the
Cityrs share of these projects and to pay the costs of issuance of the Series 2007 Bonds.
Teams
The term of the Series 2007 Bonds will be approximately 15 years. The City will pay interest on
the Series 2007 Bonds on April 1, 2008 and October 1, 2008 and then semi-annually on every
April 1 and October 1 thereafter. Principal will be paid annually commencing on October 1, 2008
and ending on October 1, 2021.
Bid Responses
The City received the folkrwing responses:
Financial Institution Rate W"~th Penalty
t.a ua Rate Without
Pena L.a Miscellaneous
Fees
Bank of America n/a 4.515% -0-
Branch Bankin 8~ Trust Na 4.410°~ 3,700
SunTrust Bank 4.410% 4.460% 2,000
Wachovia 5.290% 5.6409'0 2,500
Recommendation
We recommend the offer submitted by Branch Banking and Trust, the knNest bidder without a
penalty. Attached is a draft Resolution No. 48-07 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 $9,000,000 and authorizes the sad of such bonds to Branch Banking and
Trust, at a rate of 4.41 % for a term of 15 years With no penalty for early pre-payment
File: rfp commiss07wsres.doc
RESOLUTION NO. R-48-07
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 AN ELEVENTH SERIES OF WATER AND SEWER
REVENUE BOND5 DESIGNATED AS WATER AND SEWER REVENUE
BONDS, SERIES 2007 (THE "BONDS"), IN THE AGGREGATE
PRINCIPAL AMOUNT OF $9,000,000 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 BRANCH BANHING AND TRUST COMPANY;
INCORPORATING BY REFERENCE THE TERMS AND PROVISIONS
OF RESOLUTION NO. 39-88, AS AMENDED AND SUPPLEMENTED;
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
fizrther 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
Res. No. R-48-07
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
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
2 Res. No. R-48-07
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
Revenue 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
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
3 Res. No. R-48-07
WHEREAS, the Commission did, on May 16, 2006, adopt Resolution No. 25-06
authorizing the issuance of not to exceed $7,000,000 in principal amount of Water and Sewer
Revenue Bonds, Series 2006 (the "2006 Bonds"); and
WHEREAS, the City did, on May 25, 2006, issue its 2006 Bonds in the aggregate
principal amount of $7,000,000; and
WHEREAS, the Commission did, on November 7, 2006, adopt Resolution No. 66-06
authorizing the issuance of not to exceed $2,350,000 in principal amount of Water and Sewer
Revenue Bonds, Series 2006B (the " 2006B Bonds"); and
WHEREAS, the City did, on November 17, 2006, issue its 2006B Bonds in the
aggregate principal amount of $2,350,000; and
WHEREAS, on the date hereof there remains Outstanding the 1997 Bonds, the 1993 B
Bonds, the 2003 Bonds, the 2006 Bonds and the 2006B Bonds (collectively, the "Prior Bonds");
and
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 an eleventh
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 2007 Project (as herein defined)
which Water and Sewer Revenue Bonds shall be designated "City of Delray Beach, Florida,
Water and Sewer Revenue Bonds, Series 2007" (herein, the "Bonds") and such Bonds shall be
issued in the aggregate principal amount of NINE MILLION DOLLARS ($9,000,000); and
WHEREAS, except for any Bond Insurance and/or Reserve Account Credit Facility
Substitutes applicable to certain of the Prior Bonds, the Bonds shall be on parity with the Prior
4 Res. No. R-48-07
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 2007 Project; and
WHEREAS, City staff has determined and the City Commission hereby concurs that
Branch Banking and Trust Company, a banking organization organized under the laws of the
State of North Carolina (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 2007, 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.
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:
5 Res. No. R-48-07
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 aone-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
Resolution No. 36-88, adopted on June 28, 1988, as amended, supplemented and restated by
Resolution No. 39-88, adopted on July 12, 1988, as further amended and supplemented
(collectively, the "1988 Resolution")
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 ~ 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 2007 Project.
6 Res. No. R-48-07
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 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 2007 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 2007 Project will serve a valid municipal purpose.
K. That the cost of financing the 2007 Project shall be deemed to include, but
not be limited to, the cost of acquisition, construction, improving, installing, renovating and
7 Res. No. R-48-07
equipping all or a portion of the 2007 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 2007 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 2007
Project, the aforementioned solicitation of bids, and present market conditions.
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.
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.
8 Res. No. R-48-07
"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. 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 a 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, a fixed rate of interest on the Bonds
which, shall be equal to 4.41 percent per annum (4.41%). 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.
9 Res. No. R-48-07
"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;
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, 2008, and with respect to scheduled principal on the Bonds, on
each October 1, commencing October 1, 2008 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 1.5234.
"2007 Project" shall mean, unless determined otherwise by subsequent proceedings of the
Commission, additional funding for a reclaim and deep well project relating to the operation of
the City's combined Public Utility and all related and incidental costs.
10 Res. No. R-48-07
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 2007" (herein the "Bonds")
are hereby authorized to be issued in the aggregate principal amount of Nine Million Dollars
($9,000,000) for the purpose of financing all or a portion of the costs of the 2007 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.
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.
11 Res. No. R-48-07
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, 2008. Unless the Bonds are optionally redeemed, at the option of the City,
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:
Principal
Date Amount
2008 $ 190,000
2009 200,000
2010 210,000
2011 210,000
2012 220,000
2013 230,000
2014 240,000
2015 940,000
2016 980,000
2017 1,020,000
2018 1,060,000
2019 1,110,000
2020 1,170,000
2021 * 1.220.000
Total
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 maybe 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.
12 Res. No. R-48-07
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 any one or more of the officers who shall have signed or sealed
the 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.
13 Res. No. R-48-07
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 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 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.
14 Res. No. R-48-07
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 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
15 Res. No. R-48-07
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.
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
16 Res. No. R-48-07
corporations may be subject to the federal alternative minimum tax which is based in part on
adjusted current earnings); and
(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
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
17 Res. No. R-48-07
the amounts necessary 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 Pledge 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. $3,700 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 2007 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
amount of Bonds to be optionally redeemed plus accrued interest to the applicable redemption
date.
18 Res. No. R-48-07
Such optional redemption shall be accomplished by paying to the registered holder all or
part of the principal amount of the Bonds, together with the unpaid interest accrued on the
amount of principal so prepaid to the date of such redemption. Each prepayment shall be made
on such Payment 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, or the whole thereof, together with accrued interest, 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, 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, together with unpaid interest accrued thereon, without surrender of
the Bonds. If, on the optional redemption 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 Bonds shall continue to be
Outstanding and to bear interest until payment thereof at the Interest Rate.
19 Res. No. R-48-07
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 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 Bonds.
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.
20 Res. No. R-48-07
PASSED AND ADOPTED in regular session on this the 4th day of September, 2007.
CITY OF DELRAY BEACH, FLORIDA
By:
Mayor
Attest:
Date of Adoption: September 4, 2007
City Clerk
The foregoing Resolution is hereby
approved by me as to form, language and
execution this 4th day of September, 2007.
By:
City Attorney
21 Res. No. R-48-07
EXHIBIT A
BOND PURCHASE AGREEMENT
THIS BOND PURCHASE AGREEMENT (the "Agreement") dated September ,
2007, by and between Branch Banking and Trust Company, a banking corporation organized
under the laws of the State of North Carolina (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. 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-48-07, adopted by the Commission on September 4, 2007 (herein, the "2007 Resolutions"
and together with the 1988 Resolution, the "Resolution") the City authorized the issuance of not
to exceed $9,000,000 in aggregate principal amount of City of Delray Beach, Florida Water and
Sewer Revenue Bonds, Series 2007 (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 $9,000,000, which purchase price is equal to the principal amount of
the Bonds. Since the dated date of the Bonds is the date hereof, there will be no accrued interest
as part of the purchase price.
A-1 Res. No. R-48-07
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 2007 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 Holland & Knight LLP, which fee, in the amount of $3,700 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.
[Space Left Blank Intentionally]
A-2 Res. No. R-48-07
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.
BRANCH BANKING AND TRUST
COMPANY
By:
Title:
(SEAL) Date: September , 2007
CITY OF DELRAY BEACH, FLORIDA
By:_
Title:
(SEAL) Date: September _, 2007
A-3 Res. No. R-48-07
Schedule A
September , 2007
City Commission
City of Delray Beach, Florida
Delray Beach, Florida 33444
Re:
$9,000,000
City of Delray Beach, Florida
Water and Sewer Revenue Bonds
Series 2007
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 "2007 Bonds") to Branch Banking and Trust Company (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 2007 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
$9,000,000 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 171
months. At an interest rate of 4.41%, the total interest paid over the life of the debt or obligation
could be as much as $3,983,553. [BB&T to Confirm]
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 $12,983,553 of Net Revenues not being available to finance or
refinance other capital projects for the City's Combined Public Utility in calendar years 2007
through October 1, 2021.
Very truly yours,
BRANCH BANKING AND TRUST COMPANY
By:
Name:
Title:
Schedule A Res. No. R-48-07
EXHIBIT B
FORM OF BOND
No. R-
UNITED STATES OF AMERICA
STATE OF FLORIDA
$9,000,000
CITY OF DELRAY BEACH, FLORIDA
WATER AND SEWER REVENUE BOND, SERIES 2007
Interest Rate Maturity Date Dated Date
4.41% October 1, 2021 September _, 2007
REGISTERED OWNER:---BRANCH BANKING AND TRUST COMPANY
PRINCIPAL AMOUNT:-------NINE MILLION DOLLARS($9,000,000.00)-----------
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 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 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 $9,000,000 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. 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-48-07, adopted on September 4, 2007 (the "2007
Resolution" and together with the 1988 Resolution, 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 happened
B-1 Res. No. R-48-07
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 2007 Resolution.
Interest shall be payable on April 1, 2008, 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.
Principal
Date Amount
2008 $ 190,000
2009 200,000
2010 210,000
2011 210,000
2012 220,000
2013 230,000
2014 240,000
2015 940,000
2016 980,000
2017 1,020,000
2018 1,060,000
2019 1, l 10,000
2020 1,170,000
2021 * 1.220.000
Total
Final maturity
The City may prepay this Bond in whole or in part, at any time or from time to time,
upon payment of the principal amount of the Bonds to be redeemed, 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, together with
accrued interest, or the whole thereof, together with accrued interest, as the case may be, shall
B-2 Res. No. R-48-07
become due and payable on the prepayment date stated in such notice, which shall be a Payment
Date; 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.
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.
(SEAL)
ATTEST:
CITY OF DELRAY BEACH, FLORIDA
By:
By:
Clerk of the City of Delray Beach, Florida
Mayor
B-3 Res. No. R-48-07
FORM OF CERTIFICATE OF AUTHENTICATION
Date of Authentication: September _, 2007
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 Res. No. R-48-07
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.
WPB 381713387v8 016787.012000 8/29/2007
B-5 Res. No. R-48-07