Res 79-96 RESOLUTION NO. 79-96
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF NOT
TO EXCEED $3,300,000 IN AGGREGATE PRINCIPAL AMOUNT OF
UTILITIES TAX REVENUE BONDS, SUBORDINATE SERIES 1996, OF
THE CITY OF DELRAY BEACH, FLORIDA FOR THE PURPOSE OF
FINANCING ALL OR A PORTION OF THE COSTS OF DESIGN,
ENGINEERING, CONSTRUCTION AND EQUIPPING OF CERTAIN
MUNICIPAL PROJECTS; DETERMINING THE NEED FOR A
NEGOTIATED SALE OF SUCH BONDS TO SUNTRUST BANK, SOUTH
FLORIDA, N.A.; PROVIDING FOR THE TERMS AND PAYMENT OF
SAID UTILITIES TAX REVENUE BONDS, SUBORDINATE SERIES 1996,
AND THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS
THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE
ISSUANCE OF SAID UTILITIES TAX REVENUE BONDS, SUBORDINATE
SERIES 1996; APPROVING THE FORM OF AND AUTHORIZING THE
EXECUTION OF A LINE OF CREDIT AGREEMENT WITH SUNTRUST
BANK, SOUTH FLORIDA, N.A.; DESIGNATING THE UTILITIES TAX
REVENUE BONDS, SUBORDINATE SERIES 1996 AS "QUALIFIED TAX-
EXEMPT OBLIGATIONS" WITHIN THE MEANING OF SECTION 265(b)
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED;
AUTHORIZING THE PROPER OFFICERS OF THE CITY TO DO ALL
OTHER THINGS DEEMED NECESSARY OR ADVISABLE IN
CONNECTION WITH THE ISSUANCE OF SAID BONDS; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Delray Beach, Florida (the "City
Commission"), hereby determines that it is in the best interest of the City of Delray Beach,
Florida (the "City"), (i) to make certain renovations to City Hall including the fortification and
hardening of the walls thereof to better protect said building from windstorm damage, (ii) to
purchase and install a new air conditioning system for City Hall, (iii) to renovate and remodel
all or a part of the Finance Department within City Hall, and (iv) to renovate, remodel and
expand the golf course dining facility located at the City's municipally owned golf course
clubhouse and (v) if approved by subsequent proceedings of the Commission, to make
improvements and renovations to the City's Lakeview golf course clubhouse or in the alternative,
to finance the acquisition and construction of a new facility (collectively, clauses (i) through (v)
are referred to as the "Improvements"); and
WHEREAS, the City may replace any one or more of the components of the
Improvements with other capital projects in the manner provided in Section 3.6 hereof; and
WHEREAS, the City Commission hereby determines that it would be in the best
economic interest of the City to finance the costs of the Improvements and all incidental and
necessary costs relating thereto (collectively, the "1996 Project"); and
Resolution No. 79-96
WHEREAS, pursuant to the terms and provisions of this Resolution, the City shall issue
at one time or from time to time a series of obligations known as "City of Delray Beach, Florida
Utilities Tax Revenue Bonds, Subordinate Series 1996" (herein, the "1996 Bonds") to finance the
costs of the 1996 Project including the c'osts of issuing such 1996 Bonds; and
WHEREAS, the 1996 Bonds shall be secured by a pledge of and lien on the proceeds of
the Utilities Tax (as such term is defined below), subject and subordinate in all respects to the
pledge of and lien on such Utilities Tax proceeds for the payment of Senior Obligations (as such
term is defined below); and
WHEREAS, City staff has previously solicited bids from qualified lending institutions
to provide a line of credit or term loan as the vehicle by which the 1996 Bonds are to be issued
and the 1996 Project is to be financed; and
WHEREAS, City staff has determined and the City Commission hereby concurs that
SunTrust Bank, South Florida, N.A., a national banking association with its designated office in
West Palm Beach, Florida (herein, the "Bank") has provided the best overall bid to the City; and
WHEREAS, the City Commission hereby finds that in light of present market conditions,
the aforementioned bid provided by the Bank, the subordinate nature of the 1996 Bonds, and
other factors described herein, it would be in the best interest of the City to sell the 1996 Bonds
to the Bank on a negotiated basis pursuant to the terms and provisions of this Resolution and that
certain Line of Credit Agreement dated as of November 1, 1996 (herein, the "Agreement") by
and between the City and the Bank in substantially the form attached hereto as Exhibit A; and
WHEREAS, the City does not expect to issue more than $10,000,000 of its tax-exempt
obligations in calendar year 1996, and based upon the advice of its Bond Counsel, the City
Commission shall designate the 1996 Bonds as "qualified tax-exempt obligations" within the
meaning of Section 265(b) of the Code.
NOW, THEREFORE, be it resolved by the City Commission of the City of Delray
Beach, Florida, as follows:
ARTICLE I
STATUTORY AUTHORITY; FINDINGS AND DEFINITIONS
SECTION 1.1 AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted
pursuant to the provisions of the Charter of the City of Delray Beach, Florida, as amended and
supplemented, the Florida Constitution, Chapter 166, Florida Statutes, as amended and
supplemented, and other applicable provisions of law (collectively, the "Act").
Resolution No. 79-96
SECTION 1.2 FINDINGS. It is hereby ascertained, determined and declared:
(a) That the City hereby authorizes the following capital projects and the financing of
such capital projects namely: (i) to make certain renovations to City Hall including the
fortification and hardening of the walls thereof to better protect said building from windstorm
damage; (ii) to purchase and install a new air conditioning system for City Hall, (iii) to renovate
and remodel all or a part of the Finance Department within City Hall, and (iv) to renovate,
remodel and expand the golf course dining facility located at the City's municipally owned golf
course clubhouse, (v) if approved by subsequent proceedings of the Commission, to make
improvements and renovations to the City's Lakeview golf course clubhouse or in the alternative,
to finance the acquisition and construction of a new facility (collectively, clauses (i) through (v)
are referred to as the "Improvements"); and (vi) to pay all other incidental and necessary costs
and expenses associated therewith, as more fully set forth in Section 1.2(d) hereof (the
Improvements, together with such other costs and expenses, are collectively referred to as the
"1996 Project"). The 1996 Project shall be financed from all or a part of the proceeds derived
from the 1996 Bonds issued pursuant to this Resolution, all in accordance with plans and
specifications filed or to be filed with and approved or to be approved by the City Commission.
For purposes of Section 2.2 of this Resolution, it is assumed that the projects described in clauses
(i), (ii) and (iii), in clause (iv), and in clause (v) are being financed with three (3) separate series
of 1996 Bonds, respectively, each series bearing interest at the Interest Rate, but with different
maturity dates, maturity amounts and annual mandatory prepayment installments for each series,
all as set forth on Exhibit C attached hereto and by this reference incorporated herein.
(b) That it is necessary and essential to construct and acquire the 1996 Project for the
health, and safety of the residents of the City and in order to preserve and promote tourism and
recreation in the City and that such 1996 Project will be in the best economic interest of the City.
(c) That the Improvements will serve a valid municipal purpose.
(d) That the cost of the Improvements shall be deemed to include, but not be limited
to, the cost of construction and improvements, the cost of real estate, including easements and
other interests therein, or any other property real or personal, necessary therefor; administrative
expenses; engineering and legal expenses; expenses for fiscal agents or financial services; the fees
and expenses of Bond Counsel; expenses for estimates of costs; expenses for plans, specifications
and surveys; and such other expenses as may be necessary or incidental to the Improvements and
the issuance of the 1996 Bonds herein authorized.
(e) That pursuant to the terms and provisions of the Original Resolution (as herein
defined), the City has heretofore issued and has now outstanding its Utilities Tax Revenue
Refunding and Improvement Bonds, Series 1992, its Utilities Tax Revenue Refunding and
Improvement Bonds, Series 1994 and its Utilities Tax Revenue Bonds, Series 1995 (herein
collectively, the "Prior Senior Obligations").
(f) That pursuant to the Utilities Tax Ordinance (as herein defined), the City has been
levying a tax on the purchase of certain utilities services as more particularly described in Section
Resolution No. 79-96
1.3 hereof (herein, the "Utilities Tax"), the proceeds of such tax are not pledged or encumbered,
in whole or in part, in any manner or for any purpose other than for the payment of the Prior
Senior Obligations.
(g) That the principal of and interest on the 1996 Bonds shall be secured solely by and
paid from the Pledged Revenues (as herein def'med); and the ad valorem taxing power of the City
will never be necessary or authorized to pay the principal of and interest on the 1996 Bonds, and
the 1996 Bonds issued pursuant to this Resolution shall not constitute a lien upon any other
property whatsoever of or in the City.
(h) That the City, having previously solicited bids for the sale of the 1996 Bonds, has
determined that the best qualified bid for the 1996 Bonds was delivered by the Bank.
(i) That the negotiated sale of the 1996 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 1996 Project, the
aforementioned solicitation of bids, present market conditions and the subordinate nature of the
1996 Bonds.
(j) 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.
(k) The City hereby designates the 1996 Bonds to be "qualified tax-exempt
obligations" within the meaning of Section 265(b) of the Code.
(1) That pursuant to the provisions of the Original Resolution, the City may issue-
obligations on parity with the Prior Senior Obligations.
SECTION 1.3 DEFINITIONS. That, in addition to terms defined elsewhere in this
Resolution, the following terms shall have the following meanings unless the context otherwise
clearly requires:
(a) "Act" shall mean the Florida Constitution, 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 the law.
(b) "Amortization Assumption" shall mean with respect to any Senior Obligation or
Parity Obligation issued pursuant to the provisions of the Original Resolution, this Resolution or
any other resolution of the City, that does not have scheduled amortization, the assumption that
the principal amount of such Senior Obligation or Parity Obligation is payable in substantially
equal amounts each year over the term of each Parity Obligation.
(c) "Authorized Investments" shall mean any of the following:
Resolution No. 79-96
(1) U.S. Obligations;
(2) bonds, debentures, notes or other evidences of indebtedness payable in cash
issued by any one or a combination of any of the following federal agencies: Farmer's
Home Administration (or its successor), Federal Housing Administration, Maritime
Administration, Public Housing Authority, Government National Mortgage Association;
(3) the following investments fully insured by the Federal Deposit Insurance
Corporation ("FDIC") (i) certificates of deposit, (ii) savings account, (iii) deposit accounts,
or (iv) depository receipts of a bank, savings and loan associations and mutual savings
bank;
(4) certificates of deposit, either in excess of FDIC insurance or without FDIC
insurance, properly secured at all times, by collateral security described in clause (a) and
(b) above or secured as required for a "qualified public depository" under the Florida
Security for Public Deposits Act, being Chapter 280, Florida Statutes, as amended, or any
successor statute. Such agreements are only acceptable with commercial banks, savings
and loan associations and mutual savings banks or other "qualified public depository";
(5) commercial paper rated in one of the two highest rating categories by at
least two. nationally recognized rating agencies or commercial paper backed by a letter of
credit or line of credit rated in one of the two highest rating categories;
(6) written repurchase agreements with any bank, savings institution or trust
company which is insured by the FDIC or with any broker dealer with retail customers
which falls under Securities Investors Protection Corporation protection, provided that
such repurchase agreements are fully secured by collateral security described in clause (1)
above, and provided further that (i) such collateral is held by the City or any agent acting
solely for the City during the term of such repurchase agreement, (ii) such collateral is
not subject to lien or claims of third parties, (iii) such collateral has a market value
(determined at least once every 14 days) at least equal to the amount invested in the
repurchase agreement, (iv) the City has a perfected first security interest in the collateral,
(v) the agreement shall be for a term not longer than 270 days, and (vi) the failure to
maintain such collateral at the level required in (iii) above will require the City to
liquidate the collateral;
(7) money market funds rated in the highest rating category of either Standard
& Poor's or Moody's Investors Service, or any successor thereto;
(8) investments in the Local Government Surplus Funds Trust Fund established
pursuant to Part IV of Chapter 218, Florida Statutes, as amended, or any successor mast
fund established for the investment of surplus municipal funds; and
(9) any other investments permitted under Florida law and acceptable to the
Bank.
Resolution No. 79-96
(d) "Bank" shall mean SunTrust Bank, South Florida, N.A., the initial Bondholder.
(e) "Bond Counsel" shall mean Greenberg Traurig Hoffman Lipoff Rosen & Quentel,
P.A. or any other firm of nationally recognized bond counsel selected by the City.
(f) "City" shall mean the City of Delray Beach, Florida, a municipal corporation in
the County of Palm Beach, State of Florida, and its successors and assigns.
(g) "City Commission"" shall mean the duly constituted governing body of the City.
(h) "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.
(i) "Debt Service Fund" shall mean the Delray Beach Subordinated Utilities Tax
Revenue Bond Debt Service Fund, created and established pursuant to this Resolution and which
is the fund in which the Pledged Revenues shall be deposited by the City for the payment of the
1996 Bonds in accordance with the provisions hereof.
(j) "Defeasance Obligations" shall mean, to the extent permitted by law, the following
securities:
(1) U.S. Obligations;
(2) Any bonds or other obligations of any state of the United States of America
or of any agency, instrumentality or local governmental unit of any such state (i) which
are not callable prior to maturity or as to which irrevocable instructions have been given
to the trustee of such bonds or other obligations by the obligor to give due notice of
redemption and to call such bonds for redemption on the date or dates specified in such
instructions, (ii) which are secured as to principal and interest and redemption premium,
if any, by a fund consisting only of cash or bonds or other obligations of the character
described in clause (1) hereof which fund may be applied only to the payment of such
principal of and interest and redemption premium, if any, on such bonds or other
obligations on the maturity date or dates thereof or the redemption date or dates specified
in the irrevocable instructions referred to in subclause (i) of this clause (2), as appropriate,
and (iii) as to which the principal of and interest on the bonds and obligations of the
character described in clause (1) hereof which have been deposited in such fund along
with any cash on deposit in such fund are sufficient to pay principal of and interest and
redemption premium, if any, on the bonds or other obligations described in this clause (2)
to and including the maturity date or dates thereof or to and including the redemption date
or dates specified in the irrevocable instructions referred to in subclause (i) of this clause
(2), as appropriate;
(3) Evidences of indebtedness issued by the Federal Home Loan Banks, Federal
Home Loan Mortgage Corporation (including participation certificates), Federal Financing
Resolution No. 79-96
Banks, or any other agency or mentality of the United States of America created by
an act of Congress provided that the obligations of such agency or mentality are
unconditionally guaranteed by the United States of America or any other agency or
instrumentality of the United States of America or of any corporation wholly-owned by
the United States of America; and
(4) Evidences of ownership of proportionate interests in future interest and
principal payments on obligations described in clause (1) above held by a bank or trust
company as custodian.
(k) "Interest Rate" shall mean the rate of interest on the 1996 Bonds which, when
calculated on an actual 365/366-day year basis, shall be equal to five and twenty-two hundredths
percent (5.22%) per annum.
(I) "Maturity Date" shall mean, with respect to the unpaid principal of and interest on
the 1996 Bonds, June 1, 2013.
(m) "1996 Bonds" shall mean the not to exceed $3,300,000 aggregate principal mount
of Utilities Tax Revenue Bonds, Subordinate Series 1996, authorized by this Resolution.
(n) "Owner," "Bondholder" or "registered holder" or any similar term shall mean the
Bank or, subject to the provisions of Section 2.4 hereof, any successor registered holder of the
1996 Bonds, provided that there shall never be more than 1 registered holder at any one time.
(o) "Original Resolution" shall mean Resolution No. 98-91, adopted by the City
Commission on December 3, 1991, as amended and supplemented.
(p) "Parity Obligations" shall mean any notes, bonds or other forms of indebtedness,
payable from the Pledged Revenues on parity with the 1996 Bonds, whether or not such
obligations are issued under this Resolution.
(q) "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 tmst company appointed by the City to act as Paying Agent hereunder.
(r) "Payment Date" shall mean each June 1 and December 1, commencing June 1,
1997, the Maturity Date and any date the principal of the 1996 Bonds is optionally prepaid in
whole or in part.
(s) "Pledged Revenues" shall mean all moneys on deposit in the Debt Service Fund
derived from the proceeds of the Utilities Tax required to be deposited therein each month after
the deposits required by Article III, Section 4.D of the Original Resolution have been made by
the City, subject in all respects to the prior lien on such moneys for the payment of Senior
Obligations.
Resolution No. 79-96
(t) "Prime Rate" shall mean the annual interest rate announced by SunTrust Banks,
Inc. from time to time as its prime rate, which interest rate is only a bench mark, is purely
discretionary and is not necessarily the best or lowest interest rate charged borrowing customers
of any subsidiary bank of SunTrust Banks, Inc.
(u) "Prior Senior Obligations" shall mean the City's outstanding Utilities Tax Revenue
Refunding and Improvement Bonds, Series 1992, its Utilities Tax Revenue Refunding and
Improvement Bonds, Series 1994 and its Utilities Tax Revenue Bonds, Series 1995.
(v) "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.
(w) "Resolution" shall mean this Resolution as the same may from time to time be
amended and supplemented in accordance with the terms hereof.
(x) "Senior Obligations" shall mean the Prior Senior Obligations and any pari passu
additional Bonds issued pursuant to the provisions of Section 4.G of Article III of the Original
Resolution.
(y) "Tax Certificate" shall mean the Arbitrage Certificate of the City executed on the
date of initial delivery of the 1996 Bonds.
(z) "U. S. Obligations" shall mean the direct obligations of, or obligations on which
the timely payment of principal and interest are unconditionally guaranteed by the United States
of America, and, if determined by subsequent proceedings of the City Commission, certificates
which evidence ownership of the right to the payment of the principal of, or interest on, such
obligations.
(aa) "Utilities Tax" shall mean the tax imposed by the City on each and every purchase
in the City of electricity, metered and bottled gas (natural liquified petroleum gas or
manufactured) and telecommunication services. Said term shall also apply to all taxes imposed
by the City on the purchase of utility services, whether levied in the amounts prescribed by the
Utilities Tax Ordinance or in any other amounts and whether imposed on the purchase of the
same utilities services or any other or additional utilities services, either by amendment to the
Utilities Tax Ordinance or otherwise.
(ab) "Utilities Tax Ordinance" shall mean all proceedings imposing the Utilities Tax,
including Ordinance No. 535 of the City adopted on July 9, 1945, as amended, and every
supplementary ordinance or other ordinance in lieu thereof as may hereafter be adopted.
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.
W.B\SA~NFO[tDS\95251.7\16787010400\lllOlI~26 8 Resolution No. 79-96
SECTION 1.4 RESOLUTION CONSTITUTES CONTRACT. In consideration
of the acceptance of the 1996 Bonds authorized to be issued hereunder by those who shall own
the same from time to time, this Resolution shall be deemed to be and shall constitute a contract
between the City and the Bondholders and the covenants and agreements herein and therein set
forth to be performed by said City shall be for the benefit, protection and security of the
Bondholders.
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF 1996 BONDS
SECTION 2.1 AUTHORIZATION OF 1996 BONDS. Subject and pursuant to
the provisions of this Resolution, obligations of the City of Delray Beach, Florida, to be known
as "Utilities Tax Revenue Bonds, Subordinate Series 1996" are hereby authorized to be issued
in the aggregate principal amount of not exceeding Three Million Three Hundred Thousand
Dollars ($3,300,000) for the purpose of financing the costs of the 1996 Project.
SECTION 2.2 DESCRIPTION OF 1996 BONDS. The text of the 1996 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 1996 Bonds (initially issued in one (1) typewritten certificate) shall be dated the date
of initial issuance. Unless the interest rate on the 1996 Bonds is converted to the Prime Rate
pursuant to the provisions of Section 2.7 hereof, the 1996 Bonds shall bear interest on the
outstanding principal amount of the 1996 Bonds from time to time at the Interest Rate and shall
be payable on each Payment Date, conunencing June 1, 1997. Principal of the 1996 Bonds shall
be payable on each June 1 commencing June 1, 1997, in the amounts set forth below, provided
however that the amortization schedule shall be adjusted by the City pursuant to the provisions
of the next succeeding paragraph, if the City shall issue less than $3,300,000 in principal amount
of 1996 Bonds or if the City shall require a different allocation of proceeds of the 1996 Bonds
then that provided on Exhibit C attached hereto. If the provisions of the next succeeding
paragraph become applicable, the City shall provide to the Bank a new amortization schedule by
not later than the close of business on May 31, 1997, which new schedule shall be conclusive and
binding on the City and the Bank, absent manifest error. All unpaid principal of the 1996 Bonds
and all accrued and unpaid interest on the 1996 Bonds shall be payable on the Maturity Date.
The 1996 Bonds shall be issued in registered form.
Date . Amount
1997 $ 54,000
1998 102,000
1999 133,000
2000 139,000
2001 147,000
2002 153,000
2003 180,000
2004 197,000
2005 209,000
2006 216,000
2007 233,000
2008 241,000
~,,,~F~s, gs~s,.8,,6,8,.0~o,00,~,,,~ 9 Resolution No. 79-96
Date Amount
2009 1,072,000
2010 52,000
2011 54,000
2012 57,000
2013 61,000
If the City does not allocate $2,600,000 in proceeds of the 1996 Bonds for the
Improvements listed for column (1) on Exhibit C the principal amounts listed in column (1) may
be reduced by multiplying each of such principal amounts by a fraction, the numerator being the
actual amount of proceeds of the 1996 Bonds allocated for the Improvements listed for column
(1) and the denominator being $2,600,000 or in the alternative, the City will continue to make
the principal payments listed in column (1) until the total principal amount allocated for such
Improvements is repaid. If the City shall allocate more than $2,600,000 of the proceeds of the
1996 Bonds to such Improvements listed for column (1), the City shall have the option of either
increasing each principal payment in column (1) on Exhibit C pro rata by the amount of such
increased amount or by repaying the increased amount on the June 1, 2009 Payment Date. If the
City shall allocate more than $400,000 of the proceeds of the 1996 Bonds for the Improvements
listed for column (2), the City shall repay the $400,000 in accordance with the schedule in
column (2) and repay such increased principal amount not later than the June 1, 2013 Payment
Date. If the City does not allocate $300,000 in proceeds of the 1996 Bonds for the Improvements
listed for column (3) of Exhibit C, the principal amounts listed in column (3) of Exhibit C will
be reduced by multiplying each of such principal amounts by a fraction, the numerator being the
actual amount of proceeds of the 1996 Bonds allocated for the Improvement listed for column
(3) and the denominator being $300,000. If the City shall allocate more than $300,000 of the
proceeds of the 1996 Bonds for the Improvements listed in column (3), the City shall have the
option of either increasing each principal, payment in column (3) pro-rata by the amount of such
increased amount or by repaying the increased amount on the June 1, 2013 Payment Date.
Principal and interest on the 1996 Bonds shall be payable at the office of the Paying
Agent (the designated corporate trust office of the Paying Agent if the City's Finance Department
is not the Paying Agent). The 1996 Bonds shall be numbered in such manner as may be
prescribed by the Registrar.
The 1996 Bonds shall be payable, with respect to interest and principal, in any coin or
currency of the United States of America which at the time of payment is legal tender for the
payment of public and private debts.
The City may prepay the 1996 Bonds in whole or in part, at any time or from time to
time, without penalty or premium, by paying to the registered holder all or part of the principal
amount of the 1996 Bonds, together with the unpaid interest accrued on the amount of principal
so prepaid to the date of such prepayment. Such accrued and unpaid interest shall be payable on
the next succeeding Payment Date. 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. If such prepayment shall be for only a
portion of the unpaid principal balance of the 1996 Bonds, the City shall provide in such written
,P,,~o~o~,~,2~.~,6,,,.o~00,,~,~ 10 Resolution No. 79-96
notice, which future amortization installments shall be reduced as a result of such prepayment.
Notice having been given as aforesaid, the principal amount stated in such notice or the whole
thereof, as the case may be, shall become due and payable on the prepayment date stated in such
notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the
principal of the 1996 Bonds is to be paid, upon presentation and surrender of the 1996 Bond or
1996 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 1996 Bonds is to be paid, upon presentation of such 1996 Bond or 1996 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 1996 Bond in the principal amount not redeemed. Notwithstanding
the provisions of clause (ii) above, if all of the 1996 Bonds are registered in the name of the
Bank, a partial prepayment may be effected by payment to the Bank of the principal without
surrender of the 1996 Bonds. If, on the prepayment date, funds for the payment of the principal
amount to be prepaid shall have been provided to the Paying Agent, as above provided, then from
and after the prepayment date interest on such principal amount of the 1996 Bonds shall cease
to accrue. If said funds shall not have been so paid on the prepayment date with respect to
principal and on the next succeeding Payment Date with respect to interest, the principal amount
of the 1996 Bonds shall continue to bear interest until payment thereof at the Interest Rate or
Prime Rate, as the case may be.
SECTION 2.3 EXECUTION OF THE 1996 BONDS. The 1996 Bonds shall be
executed in the name of the City by the signature of the 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 of the City and City Clerk on the 1996 Bonds may be manual or
facsimile signatures. In case any one or more of the officers who shall have signed or sealed the
1996 Bonds shall cease to be such officer of the City before the 1996 Bonds so signed and sealed
shall have been actually sold and delivered, such 1996 Bonds may nevertheless be sold and
delivered as herein provided and may be issued as if the person who signed or sealed such 1996
Bonds had not ceased to hold such office. The 1996 Bonds may be signed and sealed on behalf
of the City by such person who at the actual time of the execution of the 1996 Bonds shall hold
the proper office, although at the date the 1996 Bonds shall be actually delivered such person
may not have held such office or may not have been so authorized.
The 1996 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 1996 Bonds as shall bear thereon such certificate of
authentication shall be entitled to any right or benefit under this Resolution and no 1996 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 1996
Bonds executed on behalf of the City shall be conclusive evidence that the 1996 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.
Resolution No. 79-96
SECTION 2.4 NEGOTIABILITY, REGISTRATION AND
CANCELLATION. The Registrar shall keep books for the registration of the 1996 Bonds and
for the registration of transfers of the 1996 Bonds. The 1996 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 1996 Bond, the City shall issue in the name of the transferee
a new 1996 Bond.
The City, the Paying Agent and the Registrar shall deem and treat the person in
whose name the 1996 Bonds shall be registered upon the books kept by the Registrar as the
absolute Owner of such 1996 Bonds, whether such 1996 Bonds shall be overdue or not, for the
purpose of receiving payment of, or on account of, the principal of and interest on such 1996
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 1996 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 1996 Bonds is exercised, the
City shall execute and the Registrar shall authenticate and deliver the 1996 Bonds in accordance
with the provisions of this Resolution. The 1996 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. There shall be a reasonable charge for any transfer of the 1996 Bonds, and 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 1996 Bonds paid or redeemed, in whole, either at or before maturity, shall be
delivered to the Registrar when the payment or redemption is made, and such 1996 Bonds shall
thereupon be promptly canceled. The 1996 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 1996 Bonds, and one executed certificate shall be filed
with the City and the other executed certificate shall be retained by the Registrar (if not the City's
Finance Department).
SECTION 2.5 MUTILATED, DESTROYED, STOLEN OR LOST 1996 Bonds.
In case any 1996 Bond shall become mutilated, destroyed, stolen or lost, the City shall execute
and the Registrar shall authenticate and deliver a new 1996 Bond of like date, maturity and
..~s~o~os~s~s~.~u~mo~o~oom~o~ 12 Resolution No. 79-96
denomination as the 1996 Bond so mutilated, destroyed, stolen or lost; provided that, in the case
of any mutilated 1996 Bond, such mutilated 1996 Bond shall first be surrendered to the City and,
in the case of any lost, stolen or destroyed 1996 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 1996 Bonds shall be about to mature or have matured, instead of issuing a
duplicate 1996 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 1996 Bond their
reasonable fees and expenses in connection with this transaction. Any 1996 Bonds surrendered
for replacement shall be canceled in the same manner as provided in Section 2.4 hereof.
Any such duplicate 1996 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 1996
Bond be at any time found by anyone, and such duplicate 1996 Bonds shall be entitled to equal
proportionate benefits and rights as to lien on the source and security for payment from Pledged
Revenues with the 1996 Bond issued hereunder.
SECTION 2.6 CONDITIONS FOR ISSUANCE OF TIlE 1996 BONDS. Prior
to the issuance of the 1996 Bonds, the City shall comply with the following conditions:
(a) Deliver to the Bank a fully executed 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 1996 Bonds
and the due adoption of this Resolution (enforceability of such instruments may be subject to
standard bankruptcy exceptions and the like) and the exclusion of interest on the 1996 Bonds
from gross income for federal income tax purposes, that the 1996 Bonds are not specified "private
activity bonds" within the meaning of Section 57(a)(5) of the Code and, therefore, the interest
on the 1996 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 1996 Bonds owned by corporations may be subject to the federal alternative minimum tax
which is based in part on adjusted current earnings). Such opinion shall also state that the 1996
Bonds are "qualified tax-exempt obligations" within the meaning of Section 265(b) of the Code;
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 1996
Bonds, the Agreement and the due adoption of this Resolution (enforceability may be subject to
standard bankruptcy exceptions and the like); and
Resolution No. 79-96
(e) Deliver to the Bank a general certificate of the City in form satisfactory to the
Bank certifying, among other things, that the City is in compliance with the term of the Original
Resolution.
To the extent that the City does not issue all of the $3,300,000 in principal amount
of 1996 Bonds at the time of initial issuance, the City shall provide written notice to the Bank
(signed by the City Manager, Finance Director or Treasurer of the City) of the City's intention
to draw additional amounts under the Agreement at least two (2) business days prior to the date
the City intends to receive the funds. Such notice shall confnm that the City is in compliance
with terms and provisions of this Resolution and the Original Resolution. Such additional
amounts drawn under the Agreement shall constitute additional principal amount of 1996 Bonds
without any further action required.
SECTION 2.7 INTEREST RATE ADJUSTMENT. If the interest on the 1996
Bonds while registered in the name of the Bank becomes includable in the gross income of the
Bank for federal income tax purposes as determined in the manner set forth below (herein a
"Determination of Taxability") the interest rate on the 1996 Bonds shall be adjusted so that the
1996 Bonds shall bear interest at the Prime Rate. A Determination of Taxability shall have
deemed to occur when (i) the Bank has been advised in writing by the Internal Revenue Service
that the interest payable on the 1996 Bonds must be includable in the gross income of the Bank
for federal income tax purposes or (ii) the entry by a court of a final judgment or order or the
promulgation by the Internal Revenue Service of a final ruling or decision, in either such case
to the effect that the interest on the 1996 Bonds is includable for federal income tax purposes in
the gross income of the Bank. Notwithstanding the foregoing, there shall be no Determination
of Taxability unless the inclusion of interest on the 1996 Bonds in the gross income of the Bank
is the result of actions taken by City or is a result of the City's failure to take actions required
to be taken by the City and it is within the City's power to take such action.
A Determination of Taxability shall not include inclusion of interest on any 1996 Bond
in the income of the Bank for purposes of any alternative minimum tax, environmental tax or
branch profits tax.
In the case of (i) above, no Determination of Taxability shall be deemed to occur unless
the City has been given timely written notice by the Bank of such determination by the Internal
Revenue Service and afforded an opportunity to participate in and seek at its own expense, a final
administrative determination or determination by a court of competent jurisdiction (from which
no further right of appeal exists) as tothe existence of such Determination of Taxability; provided
that the City, at its own expense, delivers to the Bank an opinion of Bond Counsel acceptable to
the Bank to the effect that such appeal., or action for judicial or administrative review is not
without merit and there is a reasonable possibility that the judgment, order, ruling or decision
from which such appeal or action for judicial or administrative review is taken will be reversed,
vacated or otherwise set aside.
In the event of a Determination of Taxability, the City covenants that it shall also pay any
interest, additions to tax or penalties, resulting from the interest on the 1996 Bonds being
~PB,S,~F0,mgSZS~.,,~6787.O~0~00, m~ 14 Resolution No. 79-96
includable in the Bank's gross income for federal income tax purposes, and any arrears in interest
resulting from such Determination of Taxability. Any such additional mounts (established to
the satisfaction of the City) shall be payable by the City to the Bank on the next succeeding
Payment Date or, if such amounts become payable after the Maturity Date of the 1996 Bonds
within 60 days of the date the City is notified by the Bank that such amounts are due.
ARTICLE IH
COVENANTS, FUNDS AND APPLICATION THEREOF
SECTION 3.1 1996 BONDS NOT TO BE INDEBTEDNESS OF THE CITY.
The 1996 Bonds shall not be or constitute an indebtedness of the City within the meaning of any
constitutional, statutory or other limitation of indebtedness, but shall be secured solely by and
payable from the Pledged Revenues. No Bondholder shall ever have the fight to compel the
exercise of the ad valorem taxing power of the City, or taxation in any form of any real property
therein, to pay said 1996 Bonds or the interest thereon. The pledge of the Pledged Revenues will
not constitute a lien upon any property of the City.
SECTION 3.2 1996 BONDS JUNIOR AND SUBORDINATE TO SENIOR
OBLIGATIONS. The lien of the 1996 Bonds on the Pledged Revenues shall be junior and
subordinate, as to the lien of the Senior Obligations on the Utilities Tax proceeds and in all other
respects, to the pledge and lien granted to the Senior Obligations.
SECTION 3.3 1996 BONDS SECURED BY PLEDGE OF PLEDGED
REVENUES. From and after the issuance of any of the 1996 Bonds, and continuing until the
payment of all 1996 Bonds as to principal and interest, the Pledged Revenues shall continue to
be pledged for the prompt payment of principal of and interest on said 1996 Bonds.
SECTION 3.4 COVENANTS OF THE CITY. As long as any of the principal of
or interest on any of the 1996 Bonds shall be outstanding and unpaid, or until there shall have
been set apart in the Debt Service Fund in accordance with Section 3.7 hereof a sum sufficient
to pay, when due, the entire principal of the 1996 Bonds remaining unpaid, together with interest
accrued and to accrue thereon, the City covenants with the Bondholders as follows:
(a) Tax Covenants Relating to the Internal Revenue Code of 1986, as amended
(1) In order to maintain the exclusion from gross income for purposes of
federal income taxation of interest on the 1996 Bonds, the City covenants to comply with each
requirement of the Code. In furtherance of the covenant contained in the preceding sentence, the
City agrees to continually comply with the provisions of the Tax Certificate, as such certificate
may be amended from time to time, as a source of guidance for achieving compliance with the
Code.
(2) The City covenants and agrees with the Bondholders that the City shall not
take any action or omit to take any action, which action or omission, if reasonably expected on
Resolution No. 79-96
the date of initial issuance and delivery of the 1996 Bonds, would cause any of the 1996 Bonds
to be "private activity bonds" or "arbitrage bonds" within the meaning of Sections 141(a) and
148(a), respectively, of the Code.
(3) The City shall make any and all payments required to be made to the
United States Department of the Treasury in connection with the 1996 Bonds pursuant to Section
148(f) of the Code.
(4) Notwithstanding any other provision of this Resolution to the contrary, so
long as necessary in order to maintain the exclusion from gross income for purposes of federal
income taxation of interest on the 1996 Bonds, the covenants contained in this Section shall
survive the payment of the 1996 Bonds and the interest thereon, including any payment or
discharge thereof pursuant to Section 3.7 of this Resolution.
(b) Establishment of Debt Service FuncL There is hereby created and established the
following fund entitled the "Delray Beach Subordinate Utilities Tax Revenue Bond Debt Service
Fund" (hereinafter referred to as the "Debt Service Fund"). The Debt Service Fund shall
constitute a trust fund for the benefit of the Bondholder and shall be held by the City and shall
be kept separate and distinct from all oilaer funds of the City, and shall be used only for the
purpose and in the manner provided in this Resolution. Notwithstanding the provisions of the
next preceding sentence, the City may deposit the proceeds of the Utilities Tax in a single bank
account for the City, provided that adequate accounting procedures are maintained to reflect and
control the restricted allocations of the funds on deposit therein for the various purposes of such
funds. The designation and establishment of the Debt Service Fund in and by this Resolution
shall not be construed to require the establishment of any completely independent self-balancing
fund, as such term is commonly defined and used in governmental accounting, but rather is
intended solely to constitute an allocation of certain revenues of the City for certain purposes and
to establish certain priorities for application of such revenues as provided herein.
Any excess amounts remaining in the Debt Service Fund after payment has been
made on the 1996 Bonds on any Payment Date, may be withdrawn and deposited at the direction
of the City to be used for any lawful municipal purpose.
Moneys on deposit in the Debt Service Fund may be invested in Authorized
Investments, provided such investments mature not later than the next succeeding Payment Date.
Subject to the terms and provisions of the Code, all income and earnings received from the
investment and reinvestment of the moneys on deposit in the Debt Service Fund shall remain on
deposit in the Debt Service Fund and be' used in the same manner as other moneys on deposit
therein.
(e) Disposition of Pledged Revenues. Not later than the fifteenth day of each month
commencing December 15, 1996, the City shall deposit in the Debt Service Fund the proceeds
of the Utilities Tax, subject to and dependent upon satisfaction of all current deposit requirements
of such Utilities Tax proceeds set forth in Article III, Section 4.D of the Original Resolution, in
an amount equal to one-sixth (1/6) of an amount sufficient to pay the principal and interest
Resolution No. 79-96
becoming due on the 1996 Bonds on June 1, 1997 and beginning June 15, 1997 in an amount
equal to one-sixth (1/6) of the interest becoming due on the 1996 Bonds on the next Payment
Date and an amount equal to one-twelfth (1/12) Of an amount sufficient to pay the principal
becoming due on the 1996 Bonds on the next June 1 Payment Date, and shall further cause to
be deposited into the Debt Service Fund one business day prior to each Payment Date the
proceeds of the Utilities Tax in an amount necessary to satisfy any deficiency in the Debt Service
Fund on such date; provided, however, that such deposit of the interest and principal amount shall
not be required to be made to the extent that moneys on deposit in the Debt Service Fund are
sufficient for such purpose. The City covenants to deposit, on the business day prior to the
Maturity Date, the proceeds of the Utilities Tax (or other legally available moneys) into the Debt
Service Fund in an amount sufficient to pay the outstanding principal of and interest on the 1996
Bonds.
(d) Levy of Utilities Tax. The City will not repeal, amend or modify the Utilities Tax
Ordinance in any manner so ms to (i) impair or adversely affect the power and obligation of the
City to levy and collect the Utilities Tax, (ii) impair or adversely affect in any manner the pledge
of the Utilities Tax made herein, or (iii) reduce the rate at which the Utilities Tax is collected or
the persons from whom it is collected.
(e) Enforcement of Collections. The City will diligently enforce and collect the
Utilities Tax, will take steps, actions and proceedings for the enforcement and collection of such
Utilities Tax as shall become delinquent to the full extent permitted or authorized by law, and
will maintain accurate records with respect thereof.
(f) Budget and Other Financial Information. The City shall demonstrate in each
annual budget that there are sufficient proceeds of the Utilities Tax to pay the principal of and
interest on the 1996 Bonds and Senior Obligations coming due in such fiscal year. The City
shall, upon the request of the Bank, provide the Bank with a copy of its annual budget and such
other financial information regarding the City as the Bank may reasonably request.
SECTION 3.5 REMEDIES OF BONDHOLDER. Subject to the provisions of
Section 4 of the Agreement, should the City default in any obligation created by this Resolution,
the Bondholders may, in addition to any remedy set forth in this Resolution, either at law or in
equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction,
protect and enforce any and all rights under the laws of the State of Florida, or granted and
contained in this Resolution, and may enforce and compel the performance of all duties required
by this Resolution, or by any applicable statutes to be performed by the City or by any officer
thereof. The City hereby agrees with the Bondholders that the filing of any bankruptcy or
insolvency under any federal or state law by or against the City which is not dismissed with
prejudice within 30 days of such filing shall give the Bondholders the right to exercise any of the
remedies provided to them under this Section 3.5. In addition, if the City shall breach any of its
obligations set forth in the Original Resolution the Bondholders will have the right to exercise
any of the remedies provided to them under this Section 3.5. Notwithstanding anything in this
Section 3.5 to the contrary the Bondholders' right to exercise any remedy permitted hereunder
shall be subordinate in all respect to the. rights of the owners of the Senior Obligations.
Resolution No. 79-96
SECTION 3.6 APPLICATION OF 1996 BONDS PROCEEDS. The proceeds of
the 1996 Bonds shall be used to provide permanent f'mancing for the costs of the 1996 Project.
The City may substitute any of the Projects for any other capital project permitted under the Act;
provided that Bond Counsel shall first deliver to the City and the Bank an opinion to the effect
that such substitution will not adversely affect the exclusion of interest on the 1996 Bonds from
gross income for federal income tax purposes.
SECTION 3.7 DISCHARGE AND SATISFACTION OF 1996 BONDS. The
covenants, liens and pledges entered into, created or imposed pursuant to this Resolution may be
fully discharged and satisfied with respect to the 1996 Bonds in any one or more of the following
ways:
(a) by paying the principal of and interest on the 1996 Bonds when the same shall
become due and payable; or
(b) by depositing in the Debt' Service Fund or such other accounts as the City may
hereafter create and establish by resolution moneys sufficient at the time of such deposit to pay
the 1996 Bonds and all interest thereon as the same become due on said 1996 Bonds on or prior
to the maturity date thereof; or
(c) by depositing in the Debt Service Fund or such other accounts as the City may
hereafter create and establish by resolution (which Debt Service Fund or other account and all
moneys and securities deposited therein shall be irrevocably pledged to the Bondholders for the
payment of the 1996 Bonds and all interest thereon) moneys which, when invested in Defeasance
Obligations, will provide moneys which shall be sufficient to pay the 1996 Bonds and, all interest
thereon as the same shall become due on said 1996 Bonds on or prior to the Maturity Date
thereof. 'Upon such payment or deposit in the amount and manner provided in this Section 3.7,
the 1996 Bonds shall no longer be deemed to be outstanding for the purposes of this Resolution
and all liability of the City with respect to the 1996 Bonds shall cease, terminate and be
completely discharged and extinguished, and the Bondholders shall be entitled for payment solely
out of the moneys or securities so deposited.
SECTION 3.8 ADDITIONAL OBLIGATIONS. The City covenants with the
Bondholders that as long as the 1996 Bonds issued under this Resolution are outstanding, it will
not issue any Senior Obligations or any parity Obligations (collectively referred to as "Utility Tax
Debt") unless the following conditions are complied with.
(a) The City must be current in all deposits into the various funds and accounts and
all payments required to have been theretofore deposited or made by it under the provisions of
the Original Resolution and this Resolution, and any supplemental resolutions hereafter adopted
for the issuance of Utilities Tax Debt, and has complied with the covenants and provisions of the
Original Resolution and this Resolution, and any supplemental resolutions hereafter adopted for
the issuance of Utilities Tax Debt.
!aPB\SANFORD$\95251.7\16787.010400\ll/01196 18 Resolution No. 79-96
(b) The Utilities Tax proceeds collected by the City during any twelve (12)
consecutive months of the eighteen (18) months immediately preceding the issuance of said
Utilities Tax Debt, as evidenced by a certificate executed by the Finance Director of the City and
as may be adjusted, as hereinafter provided, will be equal to one hundred twenty-five per cenmm
(125%) of the maximum annual debt service on (1) the Senior Obligations issued pursuant to the
Original Resolution then outstanding, (2) the outstanding 1996 Bonds heretofore issued
(assuming, for purposes of this Section only, that the entire authorized amount of $3,300,000 has
been issued if the proposed Utility Tax Debt is to be issued prior to June 1, 1997), less any
repayments of principal made by the City, and (3) the Utilities Tax Debt then proposed to be
issued; provided that for the purpose of determining the maximum annual debt service under this
Section, the interest rate on variable or adjustable rate Utilities Tax Debt then outstanding shall
be the greater of (i) the average daily interest rate on such variable or adjustable rate Utilities Tax
Debt during the preceding Fiscal Year, or (ii) the actual rate of interest applicable to such
variable or adjustable rate Utilities Tax Debt on the date of issuance of such variable or adjustable
rate Utilities Tax Debt; and provided further, that if variable or adjustable rate Utilities Tax Debt
is to be issued, the interest rate thereon for purposes of this paragraph shall be calculated in
accordance with the 30-year Revenue Bond Index, as published by The Bond Buyer as of the last
week of the month preceding the date of issuance of such variable or adjustable rate Utilities Tax
Debt, or if that index is no longer published, the interest rate as of the last week of such month,
as published in an index that is deemed to be substantially equivalent. If the City, prior to the
issuance of the proposed Utilities Tax Debt shall have, by amendment or supplement to the
Utilities Tax Ordinance, increased the Utilities Tax to be collected, the Utilities Tax proceeds for
the twelve (12) consecutive months immediately preceding the issuance of the Utilities Tax Debt
shall be adjusted to include the Utilities Tax proceeds which would have been collected by the
City in such twelve (12) consecutive months as if such increase in the Utilities Tax had been in
effect during all of such twelve (12) consecutive months.
(c) In the event any Utilities Tax Debt is issued for the purpose of refunding any
Utilities Tax Debt then outstanding, the condition of paragraph (2) above shall not apply,
provided that the issuance of such Utilities Tax Debt shall result in a reduction or shall not
increase the annual debt service payments in any year over the life of the Utilities Tax Debt so
refunded.
For purposes of paragraph (2) set forth above, the principal component of the maximum
annual debt service on any outstanding Utility Tax Debt or Utility Tax Debt proposed to be
issued where principal is payable only at final maturity shall be determined by using the
Amortization Assumption.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.1 MODIFICATION OR AMENDMENT. Except as provided in the
next succeeding paragraph, no modification or amendment of this Resolution or of any resolution
amendatory thereof or supplemental thereto, may be made without the consent in writing of all
of the Bondholders.
Resolution No. 79-96
This Resolution may be amended, changed, modified and altered without the consent of
the Bondholders, (i) to cure any ambiguity, correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions contained herein, (ii) to provide
other changes which will not adversely affect the interest of such Bondholders, or (iii) to maintain
the exclusion of interest on the 1996 Bonds from gross income for federal income tax purposes.
SECTION 4.2 ADDITIONAL AUTHORIZATION. The Mayor, the City
Manager, the Finance Director, the Treasurer and any other proper official of the City, be and
each of them is hereby authorized and directed to execute and deliver any and all documents and
instruments and to do and cause to be done any and all acts and things necessary or proper for
carrying out the transactions contemplated by this Resolution.
SECTION 4.3 SEvERABiLITY OF INVALID PROVISIONS. If any one or
more of the covenants, agreements or provisions oft/tis 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 1996 Bonds issued hereunder.
SECTION 4.4 REPEALER. All resolutions and orders, or parts thereof, in
conflict herewith are, to the extent of such conflict, hereby repealed, and this Resolution shall
take effect upon its passage in the manner provided by law.
W~B,S~F0,0S,gS2~.,,6,8, 0~0,00,~,0~,96 20 Resolution No. 79-96
SECTION 4.5 EFFECTIVE DATE. This Resolution shall be effective
immediately upon its adoption. ~.
Passed and adopted in regular session on this 5th day of November, 1996.
City Cl~rk ~
The foregoing resolution and the form of 1996 Bond
therein contained are hereby approved by me as to
form, language and execution this 5th day of
November, 1996.
City Attorney ..
~,8,~Fo~os~gs25~.,,6,8,.o~oo,~,o~,~ 21 Resolution No. 79-96
Exhibit A
LINE OF CREDIT AGREEMENT
Dated as of November 1, 1996
WHEREAS, SunTrust Bank, South Florida, N.A. (the "Bank"), has offered to make a
closed-end line of credit (the "Line of Credit') available to the City of Delray Beach, Florida (the
"City"), in the principal amount of not exceeding $3,300,000 under which the City may, from
time to time, make drawings; and
WHEREAS, the City of Commission of the City of Delray Beach, Florida on October
29, 1996, adopted Resolution No. 79-96 (the "1996 Bond Resolution") author/zing the issuance
of not exceeding $3,300,000 in aggregate principal amount of City of Delray Beach, Florida
Utilities Tax Revenue Bonds, Subordinate Series 1996 (the "1996 Bonds") which 1996 Bonds
shall represent the City's obligation to reimburse the Bank for drawings made under the Line of
Credit; and
WHEREAS, the City and the Bank find it necessary to enter into this Agreement, to
acknowledge the terms and provisions of the 1996 Bond Resolution adopted by the City and the
extension of the Line of Credit by the Bank.
NOW THEREFORE, the City and the Bank hereby agree as follows:
1. That the Bank shall make immediately available to the City, pursuant to the terms
and provisions of the 1996 Bond Resolution, the Line of Credit in an aggregate principal amount
of not exceeding $3,300,000 which shall be available to the City in.one or more drawings prior
to June 1, 1997.
2. That the Line of Credit shall expire on May 31, 1997. The outstanding principal
amount of all drawings with interest thereon, shall become due and payable in accordance with
the terms and provisions of the 1996 Bond Resolution.
3. That the Bank hereby accepts the terms and conditions set forth in the 1996 Bond
Resolution applicable to the Line of Credit.
4. The City and the Bank, for mutual consideration, each acknowledged to be
received by the other party hereto, mutually and willingly waive the right to a trial by a jury in
Resolution No. 79-96
connection with any and all claims by any party hereto against the other arising from or in
connection with the transactions contemplated by this Agreement or the 1996 Bond Resolution.
5. The Bank represents to the City that it is not purchasing the 1996 Bonds with a
view to distributing the 1996 Bonds.
SUNTRUST BANK, SOUTH FLORIDA, N.A.
By:
Title:
(SEAL) Date: November 12, 1996
CITY OF DELRAY BEACH, FLORIDA
Attest By:
Title:
Date: November 12, 1996
City Clerk
.,,,s,,,,~o~os,,~,.,.6,,,.o~o, oo..o.,~ A-2 Resolution No. 79-96
Exhibit B
FORM OF 1996 BOND
No. R-_
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF DELRAY BEACH, FLORIDA
Utilities Tax Revenue Bond, Subordinate Series 1996
Interest Rate Maturity Date Dated Date
5.22% June 1, 2013 November 12, 1996
Registered Owner: SunTrust Bank, South Florida, N.A.
Principal Amount: Not to Exceed $3,300,000
KNOW ALL MEN BY THESE PRESENTS, that the City of Delray Beach (the "City")
in Palm Beach County, Florida, for value received, hereby promises to pay from the sources
herein mentioned, to the Registered Owner specified above or registered assigns on the Maturity
Date specified above or earlier upon mandatory prepayment as provided below, upon the
presentation and surrender hereof at the City's Finance Department or (if so determined by the
City) the designated trust office of the bank or trust company appointed by the City to act as
paying agent (said City's Finance Department or such bank or trust comPany and any bank or
mast company becoming successor paying agent being herein called the "Paying Agent"), the
Principal Amount of $3,300,000 or such lesser amount advanced by SunTrust Bank, South
Florida, N.A., to the City pursuant to the Bond Resolution (as herein defined) with interest
thereon at the Interest Rate specified above (unless interest on this Bond is converted to the Prime
Rate (as defined in the Resolution) in the manner provided in the Bond Resolution) calculated
on the basis of the actual number of days elapsed in a 365/366-day year, on each Payment Date
in the manner specified in the within described Resolution to the registered owner. The Principal
Amount and accrued interest thereon is payable in any coin or currency of the United States of
America, which, on the date of payment thereof, shall be legal tender for the payment of public
and private debts.
This Bond is authorized to be issued in a principal amount of not exceeding $3,300,000
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. 79-96, duly adopted on November 5, 1996 (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.
Resolution No. 79-96
It is hereby certified and recited that ail 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 ail constitutionai or statutory limitations or
provisions.
This Bond shall not be vaiid 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.
Except as otherwise provided in the Bond Resolution in the event of a Determination of
Taxability, this Bond shall bear interest at the Interest Rate.
Interest shall only be payable' on June 1, 1997, and each June 1 and December 1 thereafter
and principal on the Bonds shall be payable each June 1 commencing June 1, 1997 in the
amounts set forth below as such amounts may be adjusted as provided in the Bond Resolution
until the outstanding principai of the Bonds have been paid (each a "Payment Date"). The
principal of and interest on the Bonds stiall be secured solely by and payable from the Pledged
Revenues (as defined below).
Date Amount
1997 $ 54.000
1998 102000
1999 133 000
2000 139 000
2001 147 000
2002 153000
2003 180,000
2004 197,000
2005 209,000
2006 216,000
2007 233,000
2008 241,000
2009 1,072,000
2010 52,000
2011 54,000
2012 57,000
2013 61,000
"Originai Resolution"shailmeanResolutionNo. 98-91, adopted bythe City Commission
on December 3, 1991, as amendedand supplemented.
wP,,~F0,0s,gs,s~.,,~,8,.0~0400,,~,0~,96 B-2 Resolution No. 79-96
"Pledged Revenues" shall mean all moneys on deposit in the Debt Service Fund (created
and established under the Bond Resolution) derived from the proceeds of the Utilities Tax
required to be deposited therein each month after the deposits required by Article III, Section 4.D
of the Original Resolution have been made by the City, subject to the prior lien on such moneys
for the payment of the Senior Obligation.
"Utilities Tax" shall mean the tax-imposed by the City on each and every purchase in the
City of electricity, metered and bottled gas (natural liquified petroleum gas or manufactured) and
telecommunication services. Said term shall also apply to all taxes imposed by the City on the
purchase of utility services, whether levied in the amounts prescribed by the Utilities Tax
Ordinance or in. any other amounts and whether imposed on the purchase of the same utilities
services or any other or additional utilities services, either by amendment to the Utilities Tax
Ordinance or otherwise.
"Utilities Tax Ordinance" shall mean all proceedings imposing the Utilities Tax, including
Ordinance No. 535 of the City adopted on July 9, 1945, as amended, and every supplementary
ordinance or other ordinance in lieu thereof as may hereafter be adopted.
The City may prepay this Bond in whole or in part, at any time or from time to time,
without penalty or premium, by paying to the registered holder all or part of the principal amount
of this Bond, together with the unpaid interest accrued on the amount of principal so prepaid to
the date of such prepayment. Such accrued and unpaid interest shall be payable on the next
succeeding Payment Date. Each prepayment shall be made on such date and in such principal
amount as shall be specified by the City in a written notice delivered to the registered owner not
less than two (2) business days prior thereto. Notice having been given as aforesaid, the principal
amount stated in such notice or the whole thereof, as the case may be, shall become due and
payable on the prepayment date stated in such notice; and the amount of principal shall be paid
(i) in case the entire unpaid balance of the principal of this Bond is to be paid, upon presentation
and surrender of the Bond to the office of the Paying Agent (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 (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 without surrender of this Bond. If, on
the prepayment date, funds for the payment of the principal amount to be prepaid shall have been
provided to the Paying Agent, as above provided, then from and after the prepayment date
interest on such principal amount of this Bond shall cease to accrue. If said funds shall not have
been so paid on the prepayment date with respect to principal and on the next succeeding
Payment Date with respect to interest, the principal amount of the Bond shall continue to bear
interest until payment thereof at the Interest Rate provided for herein.
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
~ps,~0,0s~gs2s~.7,6787.0~0~00,~0,,,~ B-3 Resolution No. 79-96
secured solely by and payable from the Pledged Revenues. No Holder of this Bond shall ever
have the right to compel the exercise of ad valorem taxing power of the City, or taxation in any
form of any real property therein to pay the Bond or the interest thereon.
The terms and provisions of the Bond Resolution are incorporated in this Bond as though
such terms and provisions have been set out in full herein.
THE LIEN GRANTED IN FAVOR OF THE REGISTERED OWNER OF THIS
BOND ON THE PROCEEDS OF THE UTILITIES TAX SHALL BE JUNIOR AND
SUBORDINATE AS TO THE LIEN GRANTED IN FAVOR OF THE HOLDERS OF THE
SENIOR OBLIGATIONS ON THE UTILITIES TAX PROCEEDS AND IN ALL OTHER
RESPECTS TO THE PLEDGE AND LIEN GRANTED TO SUCH HOLDERS OF THE
SENIOR OBLIGATIONS.
IN WITNESS WltEREOF, 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) CITY OF DELRAY BEACH, FLORIDA
ATTEST: By:
Mayor
Clerk of the City of Delray
Beach, Florida
WPS\$I~FO~O$\95251.1\16787.OIOlO0\IllOII% B-4 Resolution No. 79-96
FORM OF CERTIFICATE OF AUTI-IENTICATION
Date of Authentication: November 12, 1996
This Bond is the Bond delivered pursuant to the within mentioned Resolution.
cITY OF DELRAY BEACH Finance Department,
as Registrar
By:
Authorized Officer
~,,,s,~F0,os,gs2s~.7~6,8,.0x0400,~0~,~ B-5 Resolution No. 79-96
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.
~pB,s~0~os,,~2s,.7,,67870,0400,,,,0,9, B-6 Resolution No. 79-96
STATE OF FLORIDA )
COUNTY OF PALM BEACH )
I, Alison MacGregor Harry, do hereby certify that I am the duly qualified City
Clerk of the City of Delray Beach, Palm Beach County, Florida.
I further certify that the above and foregoing constitutes a tree and correct copy
of the minutes of a meeting of the City Commission of said city held on November 5, 1996, and
of a resolution adopted at said meeting, as said minutes and resolution are officially of record in
my possession.
IN WITNESS WHEREOF, I have hereunto subscribed my official signature and
impressed hereon the official seal of the City of Delray Beach this 5th day of November, 1996.
City Clerk
(SEAL)
WPS,S'~FOR0S,9~ZSL7,~6,8,.0~0400, n,0~,9~ B-7 Resolution No. 79-96
EX]-IIBIT C
(1) (2) (3)
HURRICANE GOLF COURSE LAKEVIEW
PAYMENT HARDENING EXPANSION GOLF COURSE
DATES PROJECT PROJECT PROJECT
Annual Principal Annual Principal Annual Principal
Installment* Installment* Installment*
June 1, 1997 $ 15,000 $22,000 $17,000
June 1, 1998 75,000 15,000 12,000
June 1, 1999 105,000 16,000 12,000
June 1, 2000 110,000 16,000 13,000
June 1, 2001 115,000 18,000 14,000
June 1, 2002 120,000 19,000 14,000
June 1, 2003 145,000 20,000 15,000
June 1, 2004 160,000 21,000 16,000
June 1, 2005 170,000 22,000 17,000
June 1 2006 175,000 23,000 18,000
June 1 2007 190,000 25,000 18,000
June 1 2008 195,000 26,000 20,000
June 1, 2009 1,025,000 27,000 20,000
June 1, 2010 30,000 22,000
June 1 2011 31,000 23,000
June 1, 2012 33,000 24,000
June 1, 2013 36,000 25,000
TOTAL ~ $400.000 $300000
* Assumes the total amount in each of the respective columns was drawn under the
Agreement by the close of business on May 31, 1997.
Resolution No. 79-96
MEMORANDUM
To: City Commission
From: David T. Harden, City Manager~)~/(
Subject: Proposed Utility Tax Notes ($3,300,000)
Date: October 18, 1996
The attached resolution authorizes the City to execute a line of credit agreement with SunTrust of
up to $3,300,000 at a rate of 5.22% for the purpose of funding the City Hall Envelope Project, the
Municipal Golf Course Dining Room Expansion and, if later approved, improvements to the
Lakeview Golf Course Clubhouse and related facilities. The Finance Department has provided an
analysis of bids received from various banks and recommends approval of the agreement with
SunTrust. The agreement will allow for prepayment at any time without penalty, protect the City
against rate changes caused by amendments to the tax laws, and to draw down funds as needed.
I concur with their recommendation.
c: R.S. O'Connor, Treasurer
MEMORANDUM
To: David T.~anager
From: Joseph M. Sa~tor of Finance
Subject: Proposed Utility Tax Notes ($3,300,000)
Date: October 15, 1996
Background
On October 11, 1996, the City Finance Department received bids for the above referenced
financing for the purpose of funding the City Hall Envelope Project totalling $2,600,000 and the
Golf Course Dining Room Expansion totalling $400,00Q We bid the financing with an additional
$400,000 so if project cost overruns occur the financing will already be in place. Once the
analysis was prepared, the winning bidder agreed to increase the note by $300,000 for a total
loan amount of up to $3,300,000 to allow the City the ability to draw on the Note in the event that
proposed capital improvements to the Lakeview Golf Course Clubhouse are later approved by the
City Commission. The terms and specifics of the request for bid are as follows:
Term
The term of the Note for an amount up to $2,600,000 to provide funding for the Envelope Project
will be approximately 13 years. The term of the Note up to $400,000 to provide funding for the
expansion of the Municipal Golf Course Dining Room and up to $300,000 for the construction or
reconstruction of the Lakeview Golf Course Clubhouse and related facilities will be approximately
17 years.
Security
The Note will be secured by a subordinate pledge upon the City's receipt of Utilities Tax revenues.
The Note will be subordinate to the City's Utilities Tax Revenue Refunding and Improvement
Bonds, Series 1992 and 1994, and the City's Utilities Tax Revenue Bonds, series 1995 currently
outstanding in the aggregate principal amount of $19,085,000 and any other parity additional
bonds issued pursuant to the Bond Resolution. The debt service coverage calculated with the
current and proposed debt service is at 2.11 which is more than adequate coverage.
Prepayment Provisions/Gross-up Provisions
The City asked the banks to bid with and without a "prepayment penalty" as well as with and
without a "gross-up provision". The "prepayment penalty" is a fee charged or a premium paid by
the City in the event the City chooses to prepay the note. The penalty described by the bidding
banks is based upon a formula which basically protects the banks from any loss due to a
decrease in the interest rate at the time of prepayment. If the rates are higher at the time of
prepayment there would be no prepayment penalty. A "gross-up provision" is a protection for the
bank that, in the event of a change in the tax law the bank, the bank would be allowed to increase
the rate of the financing to the bank's effective yield.
Bid Responses
The City received both fixed and variable rate responses from Barnett Bank, First Union, Northern
Trust, and SunTrust (See Attachment A). To determine the bid award we applied the fixed
interest rate quotes to the proposed debt service on the original bid amount of $3,000,000 and
computed a total interest cost and then added in any legal or out of pocket expenses to be
charged by the bank to determine the total cost to the City (See Attachment B).
We did not compute the total cost of proposed variable rate loans since it is difficult to project
rates for a 17 year period. It is also our feeling that the rates are near the lowest in years and that
it is in the City's best interest to lock in a fixed rate and, therefore, only seriously looked at the
fixed rate scenarios.
Recommendation
We recommend (Option 1) the fixed rate financing option without the "penalty" language and
without the "gross up" language offered by SunTrust. This option is the third lowest alternative
offered by the banks. The lowest bid (Option 4) was not a consideration for various reasons.
First, the rates submitted by First Union were not firm. Secondly, for an additional $2,767,
SunTrust would provide the City with a locked-in rate, i.e., the rate would not be increased due to
a change in the tax laws (Option 3). Finally, there were many inconsistencies in the bid offered
by First Union and due to the inconsistencies we threw out the bid response.
Although Option 3 with SunTrust has the second lowest interest rate, it was eliminated from the
decision process due to the fact that all funds would be required to be drawn down at closing.
Based upon current estimates of the Envelope Project, this would mean that the City would be
paying debt service on an amount up to $700,000 that was not needed. Equally important, is the
fact that the City would incur a penalty if it chose to refinance under this option.
By choosing Option 1, the City would be able to draw funds as needed and would pay debt
service on only those funds. If the construction bids come in higher than anticipated or if change
orders occur, the City would have the flexibility to draw down funds over what is currently
anticipated. Additionally, with a rate increase of. 13% or an additional $37,000 over the life of the
Note (the difference between SunTrust Option 1 and 3) the City would have the comfort to prepay
or refinance without penalty. Our feeling is that this would be a small price to pay for this comfort.
In summary, we recommend Option 1 with SunTrust which provides long term financing with a
rate of 5.22%; allows for prepayment at any time without penalty; protects the City against rate
changes contingent upon amendments to the tax laws; and allows the City to draw down funds as
needed.
c: R.S. O'Connor, Treasurer