Res 50-93 RESOLUTION NO. 50-93
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY
BEACH, FLORIDA, SUPPLEMENTING RESOLUTION NO. 39-88 BY
AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $30,000,000
WATER AND SEWER REFUNDING REVENUE BONDS OF THE CITY OF
DELRAY BEACH, FLORIDA, FOR THE PURPOSE OF REFUNDING A
PORTION OF THE CITY'S WATER AND SEWER REFUNDING REVENUE
BONDS, SERIES 1988, AND A PORTION OF ITS WATER AND SEWER
REVENUE BONDS, SERIES 1991 A, AND PROVIDING FOR THE TERMS
AND PAYMENT OF SAID WATER AND SEWER REFUNDING REVENUE
BONDS, AND THE RIGHTS, REMEDIES AND SECURITY OF THE
HOLDERS OF THE WATER AND SEWER REFUNDING REVENUE BONDS,
MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION
THEREWITH; PROVIDING FOR CERTAIN OTHER MATTERS IN
CONNECTION THEREWITH; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the City of Delray Beach, Florida, a Florida
municipal corporation (the "City"), is authorized by law to issue
revenue bonds to finance and refinance additions, extensions and
improvements to its Combined Public Utility (as herein defined);
and
WHEREAS, the City Commission of the City of Delray Beach,
Florida (referred to herein as the "City Commission"), did, on
June 12, 1984, adopt Resolution No. 45-84, which was amended and
supplemented on June 26, 1984, and October 17, 1984, authorizing
the issuance of its Water and Sewer Revenue Bonds, Series 1984 (the
"1984 Bonds"); and
WHEREAS, the City 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
W~ER~AS, the City did, on September 15, 1988, issue its
1988 Bonds in the aggregate principal amount of $25,135,000; and
W~EREAS, the 1988 Resolution authorizes in Section 4.G of
Article III thereof, of Part I, the issuance of 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 City Commission did, on April 24, 1990,
adopt Resolution No. 46-90, as amended and supplemented (the "1991
A Resolution"), which authorized the issuance of $8,000,000 Water
and Sewer Revenue Bonds (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 City Commission did, on October 23, 1990,
adopt Resolution No. 104-90, as amended and supplemented (the
"1991 B Resolution"), which authorized the issuance of not
exceeding $50,000,000 Water and Sewer Revenue Bonds (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 1988 Bonds and the 1991 A Bonds remaining
outstanding after the refunding of a portion thereof, and the
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1991 B Bonds and 1993 B Bonds, when issued, are, collectively,
called the "Prior Bonds"; and
~HEREAS, it is deemed necessary and desirable and in the
best financial and economic interest of the City to issue Water and
Sewer Refunding Revenue Bonds, in one or more series, for the
purpose of paying and refunding a portion of the 1988 Bonds and a
portion of the 1991 A Bonds, which Water and Sewer Refunding
Revenue Bonds will be on parity with the Prior Bonds as to the lien
on, and source and security for payment from, the Net Revenues (as
herein defined) derived from the operation of the Combined Public
Utility, and in all other respects.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COI. fl'fISSION OF
THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS:
CITY OF DELI~Y BE~CH, FLORIDA
$30,000,000
WATER ~ SE~ER REFUNDINg REVENUE BONDS
WATER ~ SE~ER REFUNDINg
REVENUE BOND RESOLUTION
NO. $0-93
ADOPTED JUNE 8~ 1993
C:~DATA\DP. LRAY.34\BON])-Rp_,S.F
TABLE OF CONTENTS
ARTICLE I. STATUTORY AUTHORITY, FINDINGS AND DEFINITIONS . . I-1
SECTION 1. Authority of this Resolution ........ I-1
SECTION 2. Findings ................... I-1
SECTION 3. Definitions .............. I-5
SECTION 4. Original Resolution and This R~solut~o~ . . 1-23
ABTICLE II. AUTHORIZATION, TERMS, EXECUTION ANDREGISTRATION
OF BONDS ................... II-1
SECTION 1. Authorization of Bonds .......... II-1
SECTION 2. Description of ~o~ds ........... II-1
SECTION 3! RedemptLon Provisions ........... II-4
SECTION 4 Execution of Bonds . . ~ ......... II-4
SECTION 5 Negotiability, RegistratLon and Cancella-
tion ................ -- II-5
SECTION 6. Bonds Mutilated,'Destroyed, Stolen or Lost II-8
SECTION 7. Preparation of Definitive Bonds~ Temporary
Bonds ................... II-9
SECTION S. Form of Bonds ............... II-10
SECTION 9. Book-Entry System ............. II-30
ARTICLE III. COVENANTS, FUNDS AND APPLICATION THEREOF . . III-1
SECTION 1. The Bonds on Parity With the Prior Bonds . III-1
SECTION 2. Bonds Not to be Indebtedness of the City . III-1
SECTION 3. The Bonds Secured by the Original Resolu-
tion ................... III-1
SECTION 4. Bonds Secured by Pledge of Net Revenues and
Additional Security of Special Assessments
and Pledged Impact Charges ........ III-2
SECTION 5. Application of Bond Proceeds ....... III-3
SECTION 6. Covenants of the City ........... III-5
ARTICLE IV. MISCELLANEOUS PROVISIONS ........... IV-1
SECTION 1. Modification or Amendment ......... IV-1
SECTION 2. Severability of Invalid Provisions .... IV-2
SECTION 3. Sale of Bonds ............... IV-2
SECTION 4. Further Authorization ............ IV-3
SECTION 5. Repealer ................. IV-3
SECTION 6. Bond Insurer~ Default ........... IV-3
SECTION 7. Validation ................ IV-3
SECTION 8. Effective Date ................ IV-4
ARTICLE I
STATUTORY AUTHORITY, FINDINGS ~ DEFINITIONS
SECTION 1. Authority of this Resolution. This Resolution
is adopted pursuant to the provisions of 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 Z. Findinqs. It is hereby ascertained, deter-
mined and declared:
A. That all terms not otherwise defined in this
Section 2 shall have the meaning ascribed to such terms in
Section 3 of this Article 1.
B. That the City now owns, operates and maintains a
combined water system and sewer system for the supply and distribu-
tion of water to the inhabitants of the city and for the collec-
tion, treatment and disposal of sewage in said City (the "Combined
Public Utility") and owns a one-half (1/2) undivided interest in a
treatment and disposal system operated by the South Central
Regional Wastewater Treatment and Disposal Board (herein the
"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
1988 Bonds, heretofore 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
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and supplemented (collectively, the "1988 Resolution"), and the
1991 A Bonds, 1991 B Bonds and 1993 B Bonds (as such terms are
herein defined), when the 1993 B Bonds are issued.
D. That the 1988 Resolution, as supplemented by
Resolution No. 46-90, adopted on April 24, 1990, as amended and
supplemented (the "1991 A Resolution"), authorized the issuance of
$8,000,000 Water and Sewer Revenue Bonds, Series 1991 A (the
"1991 A Bonds").
E. That the 1988 Resolution, as supplemented by
Resolution No. 104-90, adopted on October 23, 1990, as amended and
supplemented (the "1991 B Resolution"), authorized the issuance of
$14,585,000 Water and Sewer Revenue Bonds, Series 1991 B (the "1991
B Bonds").
F. That the 1988 Resolution, as supplemented by
Resolution No. 51-93, adopted on the date of adoption of this
Resolution (the "1993 B Resolution"), authorized the issuance of
not to exceed $10,000,000 Water and Sewer Revenue Bonds (the "1993
B Bonds").
G. That the 1988 Resolution, the 1991 A Resolution, the
1991 B Resolution and the 1993 B Resolution, as such resolutions
may be amended and supplemented from time to time, shall be,
collectively, referred to as the "Original Resolution".
H. That the 1988 Resolution in Section 4.G of Art-
icle III of Part I provides for the issuance of pari passu
additional bonds, under the terms, conditions and limitations
provided therein.
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I. That the 1988 Bonds and the 1991 A Bonds remaining
outstanding after the issuance of the Bonds, and the 1991 B Bonds
and the 1993 B Bonds, when issued, are herein referred to as the
Prior Bonds.
J. That the City is authorized to issue the Bonds (as
herein defined) as pari passu additional bonds within the terms,
conditions and limitations provided in Section 4.G of Article III,
Part I, of the 1988 Resolution.
K. That a portion of the proceeds derived from the sale
of the Bonds shall be used to pay and refund a portion of the 1988
Bonds and a portion of the 1991 A Bonds (herein, such portion is
referred to as the "Refunded Bonds").
L. That the City has heretofore issued and now has
outstanding and unpaid the Refunded Bonds, and there is hereby
authorized the payment and refunding of the Refunded Bonds by the
issuance of the Bonds authorized pursuant to this Resolution.
M. That, for the payment and refunding of the Refunded
Bonds, the City shall deposit a portion of the proceeds derived
from the sale of the Bonds in an escrow deposit trust fund, which
together with other available funds, if any, and the income and
earnings derived from the investment thereof, shall be sufficient
to pay and refund the Refunded Bonds, as the same become due and
payable or are redeemed prior to maturity in accordance with the
proceedings which authorized their issuance, all as provided in the
Escrow Deposit Agreement and a details resolution adopted by the
City Commission.
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N. 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 Original Resolution and this Resolution, as the same become
due and payable, and all sinking fund, reserve and other payments
provided for in the Original Resolution and in this Resolution in
accordance with the requirements of the Original Resolution and
this Resolution.
O. That the principal of and interest on the Bonds and
all of the reserve, sinking fund and other payments provided for in
the Original 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 reserve, sinking fund or other payments provided
for in the Original 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.
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P. That the proceeds derived from the sale of the Bonds
shall be used to finance the cost of paying and refunding the
Refunded Bonds; such cost shall be deemed to include the costs of
issuance of the Bonds, the premium for the Bond Insurance Policy,
if any, the initial premium or fee for a reserve Account Credit
Facility Substitute, if any, legal expenses, fees for financial
services, the costs associated with the purchase and subsequent
management of the U. S. Obligations deposited pursuant to the terms
and provisions of the Escrow Deposit Agreement, expenses in
connection with the performance of the duties of the escrow agent
under the provisions of the Escrow Deposit Agreement, and such
other costs and expenses necessary and incidental to the refunding
of the Refunded Bonds.
SECTION 3. Definitions. That, as used in this Resolu-
tion, the following terms shall have the following meanings unless
the text otherwise expressly requires:
A. "ACCRETED VALUE" shall mean, as of any date of
computation with respect to any Capital Appreciation Bond, the
amount set forth as of such date in the supplemental resolution
authorizing such Capital Appreciation Bond plus, with respect to
matters related to the payment upon redemption or other payment of
such Capital Appreciation Bond, if such date of computation shall
not be an Interest Payment Date, a portion of the difference
between the Accreted Value as of the immediately preceding Interest
Payment Date (or the date of original issuance if the date of
computation is prior to the first Interest Payment Date succeeding
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the date of original issuance) and the Accreted Value as of the
immediately succeeding Interest Payment Date, calculated based on
the assumption that Accreted Value accrues during any semiannual
period in equal daily amounts on the basis of a year of twelve
30-day months.
B. "ACT" shall mean the Florida Constitution; the City
Charter of the City, as amended and supplemented; Chapter 166,
Florida Statutes, as amended and supplemented; and other applicable
provisions of law.
C. "ANNUAL DEBT SERVICE REQUIREMENT" shall mean, at any
time, the amount required to be deposited in the then current
Fiscal Year into the Interest Account, Principal Account, and Bond
Redemption Account, as provided in the Original Resolution and this
Resolution; provided, however, that such amount shall be reduced by
any earnings or investment income in the then current Fiscal Year
on moneys and investments on deposit in the Debt Service Reserve
Account and transferred to the Interest Account, as provided in the
Original Resolution and this Resolution; and provided further,
however, that in computing such Annual Debt Service Requirement for
any future period (other than in connection with determining the
Debt Service Reserve Requirement), any Variable Rate Bonds shall be
deemed to bear interest at all times to the maturity thereof at a
constant rate of interest equal to either the rate borne by such
Variable Rate Bonds on the date they were issued plus one-half of
the difference between such rate and the maximum interest rate for
such Variable Rate Bonds as such maximum interest rate shall be
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determined by subsequent proceedings of the City Commission, or the
actual rate of interest borne by such Variable Rate Bonds on such
date of calculation, whichever is higher. For the purpose of this
definition, the amount to be deposited to the aforementioned
accounts with respect to Capital Appreciation Bonds and Capital
Appreciation and Income Bonds shall be the amounts set forth in
subsequent proceedings of the City Commission.
D. "APPRECIATED VALUE" shall mean, (i) as of any date of
computation with respect to any Capital Appreciation and Income
Bonds up to the Interest Commencement Date set forth in subsequent
proceedings of the City Commission providing for the issuance of
such Bonds, the amount set forth as of such date in the supplemen-
tal resolution authorizing such Capital Appreciation and Income
Bonds plus, if such date of computation shall not be an Interest
Payment Date, a portion of the difference between the Appreciated
Value as of the immediately preceding Interest Payment Date (or the
date of original issuance if the date of computation is prior to
the first Interest Payment Date succeeding the date of original
issuance) and the Appreciated Value as of the immediately succeed-
ing Interest Payment Date calculated based upon an assumption that
Appreciated Value accrues during any semiannual period in equal
daily amounts on the basis of a year of twelve 30-day months, and
(ii) as of any date of computation on and after the Interest
Commencement Date, the Appreciated Value on the Interest Commence-
ment Date.
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E. "BENEFICIAL OWNER shall mean, during any period the
Bonds are registered under the Book-Entry System, any purchaser of
a Bond and others who acquire a beneficial ownership interest in a
Bond held by the Securities Depository. In determining the
Beneficial Owner of the Bond, the city, the Paying Agent, the
Registrar and the Bond Insurer, if any, may rely exclusively upon
written representations made, and information given to the City,
the Paying Agent, the Registrar or the Bond Insurer, if any, by the
Securities Depository or its Participants with respect to any Bond
held by the Securities Depository in which a beneficial ownership
interest is claimed. With respect to Replacement Bonds, the City,
the Paying Agent, the Registrar and the Bond Insurer, if any, shall
consider the owner of any such Replacement Bond as registered on
the registration books of the City maintained by the Registrar to
be the Beneficial Owner thereof.
F. "BOARD" shall mean the South Central Regional
Wastewater Treatment and Disposal Board.
G. "BOND COUNSEL" shall mean a firm or firms of
nationally recognized attorneys-at-law selected by the City and
experienced in the financing of capital projects for governmental
units through the issuance of tax-exempt revenue bonds under the
exclusion from gross income provided under Section 103(a) of the
Code.
H. "BOND INSURANCE POLICY" shall mean an insurance
policy issued for the benefit of any Holders of Bonds, pursuant to
which the Bond Insurer shall be obligated to pay when due the
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principal of and interest on such Bonds to the extent of any
deficiency in the amounts in the funds and accounts created under
the Original Resolution and continued and maintained under this
Resolution, in the manner and in accordance with the terms provided
in such Bond Insurance Policy.
I. "BOND INSURER" shall mean the issuer of a Bond
Insurance Policy and its successors.
J. "BONDHOLDER" OR "HOLDER OF BONDS" or any similar
term, shall mean any person who shall be the registered owner of
any Bond or Bonds Outstanding under the terms of this Resolution.
K. "BONDS" shall mean the not to exceed $30,000,000
Water and Sewer Refunding Revenue Bonds authorized to be issued
pursuant to this Resolution, together with any pari passu addition-
al bonds hereafter issued in the manner provided in the Original
Resolution.
L. "BOOK-ENTRY SYSTEM" shall mean the system under which
the City may issue its Bonds and maintain the registration for such
Bonds in book-entry form only.
M. "CAPITAL APPRECIATION BONDS" shall mean those Bonds
issued under this Resolution as to which interest is compounded
periodically on each of the applicable periodic dates designated
for compounding and payable in an amount equal to the then current
Accreted Value only at the maturity, earlier redemption or other
payment date therefor, all as so designated by subsequent proceed-
ings of the City Commission relating to the issuance thereof, and
which may be either Serial Bonds or Term Bonds.
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N. "CAPITAL APPRECIATION AND INCOME BONDS" shall mean
any Bonds issued under this Resolution as to which accruing
interest is not paid prior to the Interest Commencement Date
specified in the resolution authorizing such Bonds and the
Appreciated Value for such Bonds is compounded periodically on
certain designated dates prior to the Interest Commencement Date
for such Capital Appreciation and Income Bonds, all as so designat-
ed by subsequent proceedings of the City Commission relating to the
issuance thereof, and which may be either Serial Bonds or Term
Bonds.
O. "CITY" shall mean the City of Delray Beach, Florida.
P. "CITY COMMISSION" shall mean the governing body of
the City.
Q. "CODE" shall mean the Internal Revenue Code of 1986,
as amended, and all subsequent tax legislation duly enacted by the
Congress of the United States. Each reference to a section of the
Code herein shall be deemed to include, if applicable, final,
temporary or proposed regulations, revenue rulings and proclama-
tions issued or amended with respect thereto, and any final,
temporary or proposed regulations and revenue rulings and proce-
dures promulgated under the Internal Revenue Code of 1954, as
amended, by the Treasury Department or Internal Revenue Service of
the United States.
R. "COMBINED PUBLIC UTILITY" shall mean the combined
Water System and Sewer System of the City.
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S. "CONSULTING ENGINEER" shall mean the engineering firm
or qualified engineer retained by the City to perform the acts and
carry out the duties provided for such Consulting Engineer in the
Original Resolution and this Resolution.
T. "CREDIT FACILITY" shall mean, either individually or
collectively, as appropriate, any Bond Insurance Policy, surety
bond, a letter of credit, line of credit, or such other instrument
or instruments that would enhance the credit of the Bonds. The
term "Credit Facility" shall not mean a Reserve Account Credit
Facility Substitute.
U. "DEBT SERVICE RESERVE REQUIREMENT" shall mean an
amount equal to (i) the maximum amount of principal of and interest
on the Bonds becoming due in any succeeding Fiscal Year, (ii) one
hundred twenty-five percent (125%) of the average annual amount of
principal of and interest on the Bonds becoming due in any
succeeding Fiscal Year, or (iii) ten percent (10%) of the net
proceeds (as such term is defined in the Code for such purposes) of
the Bonds, whichever is the lesser, required to be maintained in
the Debt Service Reserve Account of the Sinking Fund created and
established under the 1988 Resolution and continued and maintained
under this Resolution. Such Debt Service Reserve Requirement may
be satisfied, in whole or in part, by obtaining a Reserve Account
Credit Facility Substitute (as herein defined) with the requisite
coverage.
V. "DEFEASANCE OBLIGATIONS" shall mean to the extent
permitted by law and (other than with respect to the obligations
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described in clause (a) below) acceptable to the Bond Insurer if
the principal of and interest on the defeased bonds is guaranteed
under a Bond Insurance Policy, and such Bond Insurer is not in
default under such policy, or acceptable to the Rating Agency or
Agencies then rating the defeased bonds if they are not guaranteed
under a Bond Insurance Policy:
(a) U. S. Obligations which are not callable prior
to maturity except by the holder thereof;
(b) any bonds or other obligations of any state of
the United States of America or of any agency, instrumen-
tality 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 (a) 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 (b), as appropriate, and (iii) as to which
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the principal of and interest on the bonds and obliga-
tions of the character described in clause (a) 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 (b) on the maturity date or dates thereof or on
the redemption date or dates specified in the irrevocable
instructions referred to in subclause (i) of this clause
(b), as appropriate; and
(c) Evidences of ownership of proportionate
interests in future interest and principal payments on
obligations described in (a) held by a bank or trust
company as custodian.
W. "ESCROW DEPOSIT AGREEMENT" shall mean the Escrow
Deposit Agreement, entered into by and between the City and a bank
or trust company, or national banking association, as escrow agent,
to be hereafter designated by subsequent proceedings of the
Commission, in connection with the refunding of the Refunded Bonds.
X. "FACILITIES" shall mean all the facilities of the
Combined Public Utility, and all parts thereof, and any facilities
which may hereafter be a part of the Combined Public Utility, or
any part thereof, by any additions, betterments, extensions,
improvements thereto, or property of any kind or nature, real or
personal, tangible or intangible, hereafter constructed or acquired
by the City.
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Y. "FISCAL YEAR" shall mean that period commencing on
October 1 and continuing to and including the next succeeding
September 30, or such other annual period as may be prescribed by
law.
Z. "INTEREST COMMENCEMENT DATE" shall mean, with respect
to any particular Capital Appreciation and Income Bond, the date
specified in the resolution providing for the issuance of such
Bonds (which date must be prior to the maturity date for such
Bonds) after which interest accruing on such Bonds shall be payable
semi-annually, with the first such payment date being the applica-
ble Interest Payment Date immediately succeeding such Interest
Commencement Date.
AA. "INTEREST PAYMENT DATE" shall mean such dates of
each Fiscal Year on which interest on the Bonds is payable on Bonds
(other than Capital Appreciation Bonds and Capital Appreciation and
Income Bonds prior to the applicable Interest Commencement Date)
that are then Outstanding and the date the principal of a Bond is
to be paid.
BB. "MAXIMUM ANNUAL DEBT SERVICE REQUIREMENT" shall
mean, at any time, the maximum amount required to be deposited in
the then current or any succeeding Fiscal Year into the Interest
Account, Principal Account and Bond Redemption Account, as provided
in the Original Resolution and this Resolution. The amount of Term
Bonds which were subject to mandatory sinking fund redemption, in
part, prior to their stated date of maturity by operation of the
Bond Redemption Account shall not be included in determining the
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Maximum Annual Debt Service Requirement in their final Fiscal Year
of maturity.
CC. "MOODY'S" shall mean Moody's Investors Service,
Inc., a corporation organized and existing under the laws of the
State of Delaware, its successors and their assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer
perform the functions of a securities rating agency, "Moody's"
shall be deemed to refer to any other nationally recognized
securities rating agency designated by the City.
DD. "NET REVENUES" shall mean the Gross Revenues
remaining after deduction of Operating Expenses and shall also
include Special Assessments which the City Commission may elect, by
subsequent proceedings, to pledge for the payment of principal of
and interest on any series of Bonds.
EE. "1988 BONDS" shall mean the Outstanding Water and
Sewer Refunding Revenue Bonds, Series 1988, of the City, dated
September 1, 1988, originally issued in the principal amount of
$25,135,000.
FF. "1988 RESOLUTION" shall mean Resolution No. 36-88,
adopted by the City Commission on June 28, 1988, as amended,
supplemented and restated by Resolution No. 39-88, adopted by the
City Commission on July 12, 1988, as further amended and supple-
mented, which 1988 Resolution authorized the issuance of the 1988
Bonds.
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GG. "1991 A BONDS" shall mean the Outstanding Water and
Sewer Revenue Bonds, Series 1991 A, of the City, dated April 1,
1991, originally issued in the principal amount of $8,000,000.
HH. "1991 A RESOLUTION" shall mean the 1988 Resolution,
as supplemented by Resolution No. 46-90, adopted by the City
Commission on April 24, 1990, as further amended and supplemented,
which 1991 A Resolution authorized the issuance of the 1991 A
Bonds.
II. "1991 B BONDS" shall mean the Outstanding Water and
Sewer Revenue Bonds, Series 1991 B, of the City, dated April 1,
1991, originally issued in the principal amount of $14,585,000.
JJ. "1991 B RESOLUTION" shall mean the 1988 Resolution,
as supplemented by Resolution No. 104-90, adopted by the City
Commission on October 23, 1990, as further amended and supplement-
ed, which 1991 B Resolution authorized the issuance of the 1991 B
Bonds.
KK. "1993 B BONDS" shall mean the Water and Sewer
Revenue Bonds, Series 1993 B, of the City, to be issued simulta-
neously with the issuance of the Bonds.
LL. "1993 B RESOLUTION" shall mean the 1991 B Resolu-
tion, as supplemented by Resolution No. 51-93, adopted by the City
Commission on June 8, 1993, as may be further amended and supple-
mented, which 1993 B Resolution authorizes the issuance of the 1993
B Bonds.
MM. "OPERATING EXPENSES" shall mean the expenses of
operation, maintenance and ordinary repairs of the Combined Public
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Utility and its Facilities and shall include, without limiting the
generality of the foregoing, insurance premiums, administrative
expenses of the City relating solely to the Combined Public
Utility, and such other reasonable expenses as shall be in
accordance with generally accepted accounting principles.
"Operating Expenses" shall not include any allowance for deprecia-
tion or any extraordinary items arising from the early extinguish-
ment of debt.
NN. "ORIGINAL RESOLUTION" shall mean, collectively, the
1988 Resolution, the 1991 A Resolution, the 1991 B Resolution and
the 1993 B Resolution, as such resolutions may, from time to time,
be amended and supplemented.
OO. "OUTSTANDING" shall mean, when used with reference
to the Bonds, as of any particular date, all Bonds theretofore, or
thereupon being, authenticated and delivered by the Registrar under
this Resolution, except (i) Bonds theretofore or thereupon
cancelled by the Registrar or surrendered to the Registrar for
cancellation, (ii) Bonds with respect to which all liability of the
City shall have been discharged in accordance with Article III,
Section 6.F of this Resolution, (iii) Bonds in lieu of or in
substitution for which other Bonds shall have been authenticated
and delivered by the Registrar pursuant to any provision of this
Resolution; (iv) Bonds cancelled after purchase in the open market
or because of payment at redemption prior to maturity, and (v)
Bonds held or purchased by the City.
1-17
PP. "PARTICIPANTS" shall mean brokers, dealers, banks
and other financial institutions and other persons for whom, from
time to time, the Securities Depository effects book-entry
transfers and pledges of securities deposited with the Securities
Depository.
QQ. "PAYING AGENT" shall mean the bank or trust company
and any successor bank or trust company appointed by the City to
act as Paying Agent hereunder.
RR. "PERMITTED INVESTMENTS" shall mean (i) to the extent
permitted by law, U.S. Obligations, and (ii) all other investments
permitted under the laws of Florida and acceptable to the Bond
Insurer, if any.
SS. "PLEDGED IMPACT CHARGES" shall mean the charges that
may be imposed by the City on new users connecting to the Combined
Public Utility which would represent a pro rata share of the costs
of a Project which are attributable to the increased demand such
additional connections create upon the Combined Public Utility,
which Project has been financed with the proceeds of the Bonds, and
which Charges the City has pledged to payment of the principal of
and interest on the Bonds. Pledged Impact Charges, however, shall
not include the installation charges imposed by the City for the
cost of physically connecting into the City's Combined Public
Utility (including but not limited to the cost of excavation,
plumbing, installation of meters and landscaping).
I-lB
TT. "PRIOR BONDS" shall mean the remaining outstanding
1988 Bonds and the 1991 A Bonds, and the 1991 B Bonds and 1993 B
Bonds, when issued.
UU. "RATING AGENCY" OR "AGENCIES" shall mean Moody's
and/or S&P, and/or any other securities rating agency which shall
have a rating then in effect with respect to the Bonds.
VV. "REFUNDED BONDS" shall mean that portion of the 1988
Bonds and that portion of the 1991 A Bonds that the City determines
to pay and refund with a portion of the proceeds of the Bonds
authorized under this Resolution as determined by subsequent
proceedings of the City Commission.
WW. "REGISTRAR" shall mean the bank or trust company and
any successor bank or trust company appointed by the city to act as
Registrar hereunder.
XX. "REPLACEMENT BONDS" shall mean certificated Bonds,
authenticated and delivered pursuant to the terms and provisions of
this Resolution, when the City or the Securities Depository
discontinues the Book-Entry System.
YY. "RESERVE ACCOUNT CREDIT FACILITY SUBSTITUTE" shall
mean any one of the facilities described in Section 6.D.4 of
Article III of this Resolution.
ZZ. "RESOLUTION" shall mean this Water and Sewer Revenue
Refunding Bond Resolution, as from time to time may be amended and
supplemented in accordance with the terms hereof.
AAA. "REVENUES" OR "GROSS REVENUES" shall mean all
rates, fees, charges, or other income, received by the City or any
1-19
agency thereof in control of the management and operation of the
Combined Public Utility, and all parts thereof, from the operation
of the Combined Public Utility and shall also include the earnings
and investment income derived from the investment of moneys on
deposit in the various funds and accounts created and established
under the Original Resolution and continued and maintained under
this Resolution, which by the terms and provisions of the Original
Resolution and this Resolution are required to be deposited in the
Revenue Fund and the Interest Account; provided, however, that
Revenues shall not include (1) Pledged Impact Charges, (2)
Unpledged Impact Charges, (3) Special Assessments, and (4) capital
contributions.
BBB. "S&P" shall mean Standard & Poor's Corporation, a
corporation organized and existing under the laws of the State of
New York, its successors and their assigns, and, if such corpora-
tion shall be dissolved or liquidated or shall no longer perform
the functions of a securities rating agency, "S&P" shall be deemed
to refer to any other nationally recognized securities rating
agency designated by the City.
CCC. "SECURITIES DEPOSITORY" shall mean, with respect to
any Bonds to be issued in book entry form, The Depository Trust
Company and its successors and assigns, or a successor clearing
agency designated pursuant to Article II hereof and its successors
and assigns.
DDD. "SERIAL BONDS" shall mean the Bonds of an issue
other than Term Bonds which shall be stated to mature annually.
1-20
EEE. "SEWER SYSTEM" shall mean the complete sanitary
sewer collection and transmission facility, any interests the City
may have in the Ocean Outfall System, and the city's one-half (1/2)
undivided interest in the treatment and disposal system and
property operated by the Board, as they now exist and as may
hereafter be improved and extended, consisting of all real and
personal property of every nature owned by the City and used or
useful in the operation thereof, whether within or without the
City, except that the Sewer System shall not include the Ocean
Outfall System after the date on which the City shall have received
payments from the Board for the use of the Ocean Outfall System
totalling $1,155,646 in accordance with the terms of the Ocean
Outfall Agreement dated July 12, 1979 among the City, the Board and
the City of Boynton Beach, Florida.
FFF. "SPECIAL ASSESSMENTS" shall mean all proceeds
derived by the City from the special assessments levied against the
real property specially benefitted by the acquisition and construc-
tion of a Project financed by a series of Bonds, including interest
collected on such special assessments and any penalties or moneys
received upon foreclosure of the liens of such special assessments.
GGG. "TAX CERTIFICATE" shall mean the Tax Certificate as
to Arbitrage and Instructions as to Compliance with Provisions of
Section 103(a) of the Internal Revenue Code of 1986, executed by
the City on the date of initial issuance and delivery of the Bonds,
as such Tax Certificate may be amended from time to time, and which
1-21
serves as a source of guidance for achieving compliance with the
Code.
HHH. "TERM BONDS" shall mean the Bonds of an issue which
shall be stated to mature on one date and for the amortization of
which mandatory payments are required to be made into the Bond
Redemption Account in the Sinking Fund.
III. "UNPLEDGED IMPACT CHARGES" shall mean the charges
that may be imposed by the City on new users connecting to the
Combined Public Utility which would represent a Dro rata share of
the costs of any Project which are attributable to the increased
demand such additional connections created upon the Combined Public
Utility, which Project may or may not be financed with the proceeds
of the Bonds, but in any event, such charges are not pledged to the
payment of the Bonds. Unpledged Impact Charges, however, shall not
include the installation charges imposed by the City for the cost
of physically connecting into the City's Combined Public Utility
(including but not limited to the cost of excavation, plumbing,
installation of meters and landscaping).
JJJ. "U. $. OBLIGATIONS" shall mean the direct obliga-
tions 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.
KKK. "VARIABLE RATE BONDS" shall mean Bonds issued with
a variable, adjustable, convertible or other similar rate which is
1-22
not fixed in percentage for the entire term thereof at the date of
issue.
LLL. "WATER SYSTEM" shall mean the complete waterworks
plant and system, within and without the City, now owned by the
City, or hereafter constructed or acquired, including all improve-
ments, extensions, and additions thereto hereafter constructed or
acquired, together with all lands or interest therein, plants,
buildings, machinery, franchises, pipes, fixtures, equipment and
all property, real or personal, tangible or intangible, now or
hereafter owned or used by the City in connection therewith.
Words importing the singular number shall include the
plural number in each case and vice versa, and words importing
persons shall include firms and corporations.
SECTION 4. Oriqinal 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, the Original Resolution and this Resolution
shall be deemed to be and shall constitute a contract between the
City and such Bondholders, and the covenants and agreements therein
and herein set forth to be performed by the City, shall be for the
equal benefit, protection and security of the Holders of any and
all of such Bonds, 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.
1-23
ARTICLE II
AUTHORIZ&TION, TERMS, EXECUTION ~ REGISTRATION OF BONDS
SECTION 1. Authorization of Bonds. Subject and pursuant
to the provisions of the Act, this Resolution and the Original
Resolution, obligations of the City to be known as "Water and Sewer
Refunding Revenue Bonds" are hereby authorized to be issued, in one
or more series, in the initial aggregate principal amount of not
exceeding THIRTY MILLION DOLLARS ($30,000,000) for the purpose
provided in Article I, Section 2.M of this Resolution. The Bonds
authorized by this Resolution may be issued all at one time or in
part, from time to time, as the City Commission may in its
discretion hereafter determine by subsequent resolution; subject to
the requirements of Part I, Article III, Section 4.G of the 1988
Resolution.
SECTION 2. Descriptio~ of Bonds. The Bonds shall be
issued in registered form, shall be in the denomination of $5,000
each, or any integral multiple thereof; provided, however, (i) if
such Bonds are Capital Appreciation Bonds, then in $5,000 maturity
amounts or in $5,000 multiples thereof, and (ii) Capital Apprecia-
tion and Income Bonds, which may be issued in any denomination, as
long as their Appreciated Value at maturity shall be $5,000 or any
integral multiple thereof; and shall mature on such dates in such
years and in such amounts, all as provided by subsequent proceed-
ings of the City Commission. Principal shall be payable at the
principal corporate trust office of the Paying Agent. The Bonds
shall be numbered in such manner as may be prescribed by the
II-1
Registrar. The Bonds shall bear interest at not exceeding the
maximum rate or rates permitted by law, payable by check or draft
made payable to the Holder of Bonds and mailed to the address of
such Holder of Bonds, as such name and address shall appear on the
registration books of the City maintained by the Registrar at the
close of business on the fifteenth day of the calendar month
preceding each Interest Payment Date or date of selection of Bonds
for redemption; provided, however, that if such 15th day is a
Saturday, Sunday or holiday, then to the registered Holder and at
the registered address shown on the registration books of the City
maintained by the Registrar at the close of business on the day
next preceding such 15th day which is not a Saturday, Sunday or
holiday (herein the "Record Date"); provided, however, that payment
of interest on the Bonds may, at the option of any Holder of Bonds
in an aggregate principal amount of at least $1,000,000 be
transmitted by wire transfer to the Holder to the bank account
number on file with the Paying Agent as of the Record Date, except
for (i) Capital Appreciation Bonds which shall bear interest as
described under the defined term Accreted Value, payable only upon
redemption or maturity thereof, and (ii) Capital Appreciation and
Income Bonds which shall bear interest as described under the
defined term Appreciated Value, such interest payable on the
principal amount due at maturity but only from and after the
Interest Commencement Date. The Bonds authenticated prior to the
first Interest Payment Date shall be dated and bear interest from
the date determined by subsequent proceedings of the City. Bonds
II-2
authenticated subsequent to the first Interest Payment Date shall
bear interest from the next preceding Interest Payment Date on
which such interest has been paid, unless such Bond is registered
on an Interest Payment Date or between a Record Date and the next
succeeding Interest Payment Date, then from such Interest Payment
Date if interest is then paid, as the case may be; provided,
however, that if and to the extent there is a default in the
payment of the interest due on such Interest Payment Date, such
defaulted interest shall be paid to the persons in whose name Bonds
are registered on the registration books of the City maintained by
the Registrar at the close of business on the fifteenth day prior
to a subsequent Interest Payment Date established by notice mailed
by the Registrar to the registered owner not less than the tenth
day preceding such subsequent Interest Payment Date, such interest
shall be payable semiannually on April 1 and October 1 of each
year, except that (i) interest on any Capital Appreciation Bonds
shall be paid only at maturity or upon redemption prior to maturity
in the amount determined by reference to the Accreted Value, and
(ii) interest on a Capital Appreciation and Income Bond shall be
payable semiannually on April 1 and October 1 of each year only
after the Interest Commencement Date.
The Bonds shall be payable, with respect to interest,
principal and premium, if any, 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;
II-3
The Bonds issued hereunder may be Serial Bonds or Term
Bonds and such Term Bonds may be Variable Rate Bonds, and such
Bonds issued hereunder may be Capital Appreciation Bonds and
Capital Appreciation and Income Bonds as determined by subsequent
proceedings of the City Commission.
The payment of principal of and interest on the Bonds
may, in addition to the Net Revenues, be secured by Bond Insurance
or other Credit Facility and/or Pledged Impact Charges, all as
shall be determined by subsequent proceedings of the City Commis-
sion.
SECTION 3. Redemption Provisions. The Bonds may be
subject to redemption prior to maturity at such times, at such
redemption prices and upon such terms as shall be determined by
subsequent proceedings of the city Commission.
SECTION 4. Execution of Bonds. The Bonds shall be
executed in the name of the City by the signature of the Mayor and
its official seal shall be affixed thereto or imprinted or
reproduced thereon and attested by the City Clerk. The signatures
of said Mayor and 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 any of 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.
Any Bond may be signed and sealed on behalf of the City by such
II-4
person who at the actual time of the execution of such Bond shall
hold the proper office, although at the date such 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 authentica-
tion, in the form set forth in Section 8 of this Article, executed
manually by the Registrar. Only such Bonds as shall bear thereon
such certificate of authentication shall be entitled to any right
or benefit under this Resolution and no Bond shall be valid or
obligatory for any purpose until such certificate of authentication
shall have been duly executed by the Registrar. Such certificate
of the Registrar upon any Bond executed on behalf of the City shall
be conclusive evidence that the Bond so authenticated has been duly
authenticated and delivered under this Resolution and that the
Holder thereof is entitled to the benefits of this Resolution.
If the Bonds are validated as directed by the City
Commission, the validation certificate on the Bonds shall be signed
with the facsimile signatures of the present or any future Mayor
and Clerk, as aforesaid, and the City may adopt and use for that
purpose the facsimile signature of any person who shall have been
such Mayor and Clerk at any time on or after the date of the Bonds,
notwithstanding that he or she may have ceased to be such Mayor or
Clerk at the time when said Bonds shall be actually delivered.
SECTION 5. Negotiability, Reqistration and Cancellation.
At the option of the registered Holder thereof and upon surrender
thereof at the principal corporate trust office of the Registrar
II-5
with a written instrument of transfer satisfactory to the Registrar
duly executed by the registered Holder or his duly authorized
attorney and upon payment by such Holder of any charges which the
Registrar may make as provided in this Section, the Bonds may be
exchanged for Bonds of the same series, interest rate and maturity
of any other authorized denominations.
The Registrar shall keep books for the registration of
Bonds and for the registration of transfers of Bonds. The Bonds
shall be transferable by the Holder thereof in person or by his
attorney duly authorized in writing only upon the books of the City
kept by the Registrar and only upon surrender thereof together with
a written instrument of transfer satisfactory to the Registrar duly
executed by the Holder or his duly authorized attorney. Upon the
transfer of any such Bond, the City shall issue in the name of the
transferee a new Bond or Bonds.
The City, the Paying Agent and the Registrar shall deem
and treat the person in whose name any Bond shall be registered
upon the books kept by the Registrar as the absolute Holder of such
Bond, whether such Bond shall be overdue or not, for the purpose of
receiving payment of, or on account of, the principal of and
interest on such Bond as the same become due and for all other
purposes. All such payments so made to any such Holder or upon his
order shall be valid and effectual to satisfy and discharge the
liability upon such Bond 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.
II-6
In all cases in which the privilege of exchanging Bonds
or transferring Bonds is exercised, the City shall execute and the
Registrar shall authenticate and deliver Bonds in accordance with
the provisions of this Resolution. All Bonds surrendered in any
such exchanges or transfers shall forthwith be delivered to the
Registrar and cancelled by the Registrar in the manner provided in
this Section. There shall be no charge for any such exchange or
transfer of Bonds, but the City or the Registrar may require the
payment of a sum sufficient to pay any tax, fee or other governmen-
tal charge required to be paid with respect to such exchange or
transfer. Neither the City nor the Registrar shall be required
(a) to transfer or exchange Bonds during the period from and
including the Record Date for an Interest Payment Date to and
including such Interest Payment Date on such Bonds or 15 days next
preceding any selection of Bonds to be redeemed or thereafter until
after the mailing of any notice of redemption, or (b) to transfer
or exchange any Bonds called for redemption. However, if less than
all of a Term Bond is redeemed or defeased, the City shall execute
and the Registrar shall authenticate and deliver, upon the
surrender of such Term Bond, without charge to the Bondholder, for
the unpaid balance of the principal amount of such Term Bond so
surrendered, a registered Term Bond in the appropriate denomination
and interest rate.
All Bonds paid or redeemed, either at or before maturity
shall be delivered to the Registrar when such payment or redemption
is made, and such Bonds, together with all Bonds purchased by the
~I-7
City, shall thereupon be promptly cancelled. Bonds so cancelled
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 so destroyed, and one
executed certificate shall be filed with the City and the other
executed certificate shall be retained by the Registrar.
The city Commission may, by subsequent proceedings,
provide for the registration of the Bonds by adopting the Book-En-
try System. Bonds held by the Securities Depository while the
Bonds are registered under the Book-Entry System shall be regis-
tered in the name of the Securities Depository or its nominee, and
beneficial ownership of such Bonds shall be transferred in
accordance with the procedures of the Securities Depository and its
Participants.
SECTION 6. Bonds Mutilated, Destroyed, Stolen or Lost.
In case any Bond shall become mutilated, destroyed, stolen or lost,
the City may execute and the Registrar shall authenticate and
deliver a new Bond of like date, maturity, denomination and
interest rate 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 evidence of such loss, theft, or
destruction satisfactory to the City and the Registrar, together
with indemnity satisfactory to them. In the event any such Bond
shall be about to mature or have matured or have been called for
II-8
redemption, instead of issuing a duplicate Bond, the City may pay
the same without surrender thereof. The City and the Registrar may
charge the Holder of such Bond their reasonable fees and expenses
in connection with this transaction. Any Bond surrendered for
replacement shall be cancelled in the same manner as provided in
Section 5 of this Article.
Any such duplicate Bonds issued pursuant to this Section
shall constitute additional contractual obligations on the part of
the City, whether or not the lost, stolen or destroyed Bonds be at
any time found by anyone, and such duplicate Bonds shall be
entitled to equal and proportionate benefits and rights as to lien
on and source and security for payment from the Net Revenues
derived from the operation of the Combined Public Utility and the
Pledged Impact Charges, if any are so pledged hereunder, with all
other Bonds issued hereunder.
SECTION 7. Preparation of Definitive Bonds; Temporary
Bonds. The definitive Bonds shall be lithographed or printed on
steel engraved borders. Until the definitive Bonds are prepared,
the Mayor and the City Clerk may execute and the Registrar may
authenticate, in the same manner as is provided in Section 4 of
this Article II, and deliver, in lieu of definitive Bonds, but
subject to the same provisions, limitations and conditions as the
definitive Bonds, one or more printed, lithographed or typewritten
temporary fully registered Bonds, substantially of the tenor of the
definitive Bonds in lieu of which such temporary Bond or Bonds are
issued, in authorized denominations or any integral multiple
II-9
thereof, and with such omissions, insertions and variations as may
be appropriate to such temporary Bonds. The City, at its own
expense, shall prepare and execute and, upon the surrender at the
corporate trust office of the Registrar of such temporary Bonds for
which no payment or only partial payment has been provided, for
exchange and the cancellation of such surrender temporary Bonds,
the Registrar shall authenticate and, without charge to the Holder
thereof, deliver in exchange therefor, at the principal corporate
trust office of the Registrar, definitive Bonds of the same
aggregate principal amount, interest rate and maturity as the
temporary Bonds surrendered. Until so exchanged, the temporary
Bonds shall in all respects be entitled to the same benefits and
security as definitive Bonds issued pursuant to this Resolution.
SECTION 8. Form of Bonds. The text of the Bonds shall be
of substantially the following tenor, with such omissions,
insertions and variations as may be necessary and desirable:
(Form of Bond)*
* The text of the Bonds shall be of substantially the tenor set
forth below. Provisions of the Bonds may be set forth on the
back of the Bonds and shall for all purposes have the same
effect as if set forth on the front of the Bonds.
(Face of Bond with certain provisions applicable to a
Capital Appreciation Bond or a Capital Appreciation
and Income Bond as indicated)
II-10
No. R- $
UNITED STATES OF AMERICA
STATE OF FLORIDA
PALM BEACH COUNTY
CITY OF DELRAY BEACH
WATER AND SEWER REFUNDING REVENUE BOND
SERIES
Interest Maturity Dated
Rate Date Date CUSIP
Registered Owner:
Principal Amount:
KNOW ALL MEN BY THESE PRESENTS, that the City of Delray
Beach, Palm Beach County, Florida (the "City"), for value received,
hereby promises to pay, from the Net Revenues and Pledged Impact
Charges [if so pledged by the City], hereinafter mentioned, to the
Registered Owner or registered assigns on the Maturity Date
specified above, upon the presentation and surrender hereof at the
principal corporate trust office of ,
as paying agent (said and any bank or
trust company becoming successor paying agent being herein called
the "Paying Agent"), the Principal Amount stated hereon with
interest thereon at the Interest Rate stated above, payable on the
first day of and of each year
until the City's obligation with respect to the payment of such
Principal Amount shall be discharged. Interest on this Bond is
payable by check or draft of the Paying Agent made payable to the
II-11
registered owner and mailed to the address of the registered owner
as such name and address shall appear on the registration books of
the City maintained by , as Registrar
(said , and any successor Registrar
being herein called the "Registrar") at the close of business on
the fifteenth day preceding each interest payment date or the date
on which the principal of a Bond is to be paid or the date of
selection of Bonds to be redeemed; provided, however, that if such
fifteenth day is a Saturday, Sunday or holiday, then to the
registered owner and at the registered address shown on the
registration books of the City maintained by the Registrar at the
close of business on the day next preceding such fifteenth day
which is not a Saturday, Sunday or holiday (the "Record Date");
provided further, however, that payment of interest on the Bonds
may, at the option of any Holder of Bonds in an aggregate principal
amount of at least $1,000,000, be transmitted by wire transfer to
the Holder to the bank account number on file with the Paying Agent
as of the Record Date. Such interest shall be payable from the
most recent interest payment date next preceding the date of
authentication to which interest has been paid, unless the date
hereof is an 1 or 1 to which interest has
been paid, in which case from the date hereof, or unless the date
hereof is prior to , 19 , in which case from ,
19 , or unless the date hereof is between a Record Date and the
next succeeding interest payment date, in which case from such
interest payment date; provided, however, that if and to the extent
II-12
the Registrar may require payment of a sum sufficient to pay any
tax, fee or other governmental charge required to be paid with
respect to such exchange or transfer. Neither the City nor the
Registrar shall be required (a) to transfer or exchange Bonds
during the period from and including the Record Date for an
interest payment date to and including such interest payment date
on such Bonds or 15 days next preceding any selection of Bonds to
be redeemed or thereafter until after the mailing of any notice of
redemption; or (b) to transfer or exchange any Bonds called for
redemption. However, if less than all of a Bond is redeemed or
defeased, the City shall execute and the Registrar shall authenti-
cate and deliver, upon the surrender of such Bond, without charge
to the Bondholder, for the unpaid balance of the principal amount
of such Bond so surrendered, a registered Bond in the appropriate
denomination and interest rate.
This Bond shall not be valid or obligatory for any
purpose until the certificate of authentication set forth hereon
shall have been duly executed by the Registrar.
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 applicable thereto, and that the issuance of this Bond, and
of the issue of Bonds of which this Bond is one, is in full
~I-23
attorney. Upon the transfer of any such Bond, the City shall issue
in the name of the transferee a new Bond or Bonds.
(2) The City, the Paying Agent and the Registrar shall
deem and treat the person in whose name any Bond shall be regis-
tered upon the books kept by the Registrar as the absolute owner of
such Bond, whether such Bond shall be overdue or not, for the
purpose of receiving payment of, or on account of, the principal of
and interest on such Bond as the same becomes due, and for all
other purposes. All such payments so made to any such registered
owner or upon his order shall be valid and effectual to satisfy and
discharge the liability upon such Bond 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.
(3) At the option of the registered owner thereof and
upon surrender hereof at the principal corporate trust office of
the Registrar with a written instrument of transfer satisfactory to
the Registrar duly executed by the registered owner or his duly
authorized attorney and upon payment by such registered owner of
any charges which the Registrar or the City may make as provided in
the Resolution, the Bonds may be exchanged for Bonds of the same
interest rate and maturity of any other authorized denominations.
(4) In all cases in which the privilege of exchanging
Bonds or transferring Bonds is exercised, the City shall execute
and the Registrar shall authenticate and deliver Bonds in accor-
dance with the provisions of the Resolution. There shall be no
charge for any such exchange or transfer of Bonds, but the City or
II-22
on such Net Revenues and Pledged Impact Charges [if so pledged by
the City].
The city has covenanted in the Resolution that in each
Fiscal Year it will fix, establish and maintain such rates and
collect such fees, rentals or other charges for the services and
facilities of its Combined Public Utility and revise the same from
time to time whenever necessary, as will always provide in each
Fiscal Year, Net Revenues which shall be adequate to pay at least
one hundred ten percent (110%) of the Annual Debt Service Require-
ment (as defined in the Resolution) for the Prior Bonds, the Bonds
and any pari passu additional Bonds hereafter issued; and that such
Net Revenues shall be sufficient to make all of the payments
required by the terms of the Resolution and that such rates, fees,
rentals or other charges shall not be so reduced so as to be
insufficient for such purposes.
The original registered owner, and each successive
registered owner of this Bond shall be conclusively deemed to have
agreed and consented to the following terms and conditions:
(1) The Registrar shall maintain the books of the City
for the registration of Bonds and for the registration of transfers
of Bonds as provided in the Resolution. The Bonds shall be
transferable by the registered owner thereof in person or by his
attorney duly authorized in writing only upon the books of the City
maintained by the Registrar and only upon surrender hereof together
with a written instrument of transfer satisfactory to the Registrar
duly executed by the registered owner or his duly authorized
II-21
It is further agreed between the City and the Holder of
this Bond that this Bond and the obligation evidenced thereby shall
not constitute a lien upon the City's Combined Public Utility, or
any part thereof, or on any other property of or in the city, but
shall constitute a lien only on the Net Revenues derived from the
operation of the City's Combined Public Utility and the Pledged
Impact Charges [if so pledged by the City], all in the manner
provided in the Resolution.
The lien of the Holders of the Bonds of the issue of
which this Bond is one on the Net Revenues derived from the
operation of the City's Combined Public Utility and the Pledged
Impact Charges [if so pledged by the City] shall rank equally with
the lien on such Net Revenues of the Holders of the Prior Bonds (as
such term is defined in the Resolution), issued pursuant to the
Original Resolution, as defined in the Resolution, and any pari
passu additional obligations hereinafter issued by the City within
the terms, restrictions and limitations contained in the Original
Resolution. The Holders of the Bonds of the issue of which this
Bond is one and the holders of the Prior Bonds, and of the Holders
of any pari pass~ additional obligations hereinafter issued by the
City within the terms, restrictions, and limitations contained~in
the Original Resolution, shall jointly have a lien on the Net
Revenues derived from the operation of the Combined Public Utility
and the Pledged Impact Charges [if so pledged by the City], which
lien shall be prior and superior to all other liens or encumbrances
II-20
of paying and refunding the Refunded Bonds (as defined in the
Resolution hereinafter referred to) under the authority of and in
full compliance with the Constitution, the City Charter, as amended
and supplemented, and Statutes of the State of Florida, including
particularly Chapter 166, Florida Statutes, as amended and
supplemented and other applicable provisions of law, and a
resolutions duly adopted by the city Commission on June 28, 1988,
July 12, 1988, April 24, 1990, October 23, 1990, April 16, 1991 and
June 8, 1993, as further amended and supplemented (herein,
collectively, referred to as the "Resolution"), and is subject to
all the terms and conditions of the Resolution.
This Bond is payable from and secured by a lien upon and
pledge of the Net Revenues, as defined in the Resolution, derived
from the operation of the city's Combined Public Utility, as
defined in the Resolution, and the Pledged Impact Charges, as
defined in the Resolution [if so pledged by the City], all in the
manner provided in the Resolution. The full faith and credit of
the City is not pledged for the payment of this Bond and this Bond
does not constitute an indebtedness of the City within the meaning
of any Constitutional, statutory or other provision or limitation;
and it is expressly agreed by the Holder of this Bond that such
Holder shall never have the right to require or compel the exercise
of the ad valorem taxing power of the City for the payment of the
principal of and interest on this Bond or the making of any sinking
fund or reserve payments provided for in the Resolution.
II-19
the Appreciated Value as of the immediately preceding
or 1 (or the Dated Date if the date of computation is
prior to 1, 19__) and the Appreciated Value as of the
immediately succeeding 1 or 1, calculated
based upon an assumption that Appreciated Value accrues during any
semi-annual period in equal daily amounts on the basis of a year of
twelve 30-day months, and (ii) after the Interest Commencement
Date, the Appreciated Value at the Interest Commencement Date. The
Appreciated Value per $5,000 Amount Due at Maturity of this Bond on
each 1 and 1 is set forth in a table on the
reverse hereof. The table should not be construed as a representa-
tion as to the market value of this Bond at any time in the future
but may bear a relationship to the amount of tax-exempt interest
and taxable gain with respect to this Bond if sold prior to
maturity. Upon redemption or other payment subsequent to the
Interest Commencement Date and prior to the Maturity Date in
accordance with the provisions set forth on the reverse hereof,
payment of this Bond shall be made in an amount equal to the Amount
Due at Maturity plus any applicable premium plus accrued and unpaid
interest on such Amount Due at Maturity.
[THE FOLLOWING IS APPLICABLE TO ALL BONDS]
This Bond is one of an authorized issue of Bonds of the
City designated as its Water and Sewer Refunding Revenue Bonds,
Series __ (herein called the "Bonds"), in the aggregate principal
amount of $ of like date, tenor, and effect, except as to
number, date of maturity and interest rate, issued for the purpose
II-18
Date (stated above), compounded on each 1 and
1 during the period from the Dated Date (stated above)
to , (the "Interest Commencement Date"). The City
further promises to pay to the Registered Owner hereof by check or
draft of the Paying Agent made payable to the registered owner and,
mailed to such registered owner at the address shown on the
registration books of the City kept for that purpose at the
principal corporate trust office of ,
as Registrar (said and any successor
Registrar being herein called the "Registrar") as of the Record
Date, interest on the Amount Due at Maturity from the Interest
Commencement Date, at the rate per annum equal to the Interest Rate
(stated above), payable on the first days of and
in each year (commencing 1, __), until
the City's obligation with respect to the payment of such Amount
Due at Maturity shall be discharged. Upon earlier redemption or
other payment prior to the Interest Commencement Date, as set forth
on the reverse hereof, payment shall be made at the Appreciated
Value as of the date of redemption or other payment of this Bond.
The "Appreciated Value" of this Bond shall mean (i) as of any date
of computation up to and including, the Interest Commencement Date,
an amount equal to the Principal Amount hereof plus the interest
accrued thereon to the 1 or 1 next preceding
the date of computation or the date of computation if a 1
or 1, plus, if such date of computation shall not be a
1 or 1, a portion of the difference between
II-17
[THE FOLLOWING IS APPLICABLE TO CAPITAL APPRECIATION
AND INCOME BONDS ONLY]
No. $
UNITED STATES OF AMERICA
STATE OF FLORIDA
PALM BEACH COUNTY
CITY OF DELRAY BEACH
WATER AND SEWER [REFUNDING] REVENUE BOND
SERIES
INTEREST MATURITY DATED
RATE DATE DATE CUSIP
REGISTERED OWNER:
PRINCIPAL AMOUNT: $ PER $5,000 AMOUNT DUE AT MATURITY
AMOUNT DUE AT MATURITY:
KNOW ALL MEN BY THESE PRESENTS, that the City of Delray
Beach, Palm Beach County, Florida (the "City"), for value received,
hereby promises to pay from the Net Revenues and Pledged Impact
Charges [if so pledged by the City], hereinafter mentioned, to the
Registered Owner or registered assigns on the Maturity Date
specified above, upon presentation and surrender hereof at the
principal corporate trust office of , as paying agent
(said and any bank or trust company to become
successor paying agent being herein called the "Paying Agent"), the
Amount Due at Maturity (stated above), constituting the Principal
Amount (stated above) per $5,000 Amount Due at Maturity and
interest thereon at the Interest Rate (stated above) from the Dated
II-16
Amount per $5,000 Amount Due at Maturity (stated above) and
interest thereon at the Interest Rate (stated above) from the Dated
Date (stated above) compounded on and thereafter on
and , of each year, until payment of said
maturity amount or upon earlier redemption, as set forth on the
reverse side hereof, payment to be made at the Accreted Value as of
the date of redemption or other date of payment. The "Accreted
Value" of this Bond shall mean, as of any date of computation, an
amount equal to the principal amount hereof plus the compounded
interest accrued hereon to the 1 or 1 next
preceding the date of computation or the date of computation if a
1 or 1, plus, if such date of computation
shall not be a 1 or 1, a portion of the
difference between the Accreted Value as of the immediately
preceding 1 or 1 (or the Dated Date if the
date of computation is prior to , 19 ) and the
Accreted Value as of the i~mediately succeeding 1 or
1, calculated based upon the assumption that Accreted
Value accrues during any semiannual period in equal daily amounts
on the basis of a year of twelve 30-day months. The Accreted Value
per $5,000 maturity amount of this Bond on each 1 ~r
1 is set forth in a table on the reverse hereof. The
table should not be construed as a representation as to the market
value of this Bond at any time in the future but may bear a
relationship to the amount of tax- exempt interest and taxable gain
with respect to this Bond if sold prior to maturity.
II-15
[THE FOLLOWING IS APPLICABLE TO CAPITAL APPRECIATION BONDS ONLY]
NO. $
UNITED STATES OF AMERICA
STATE OF FLORIDA
PALM BEACH COUNTY
CITY OF DELRAY BEACH
WATER AND SEWER REFUNDING REVENUE BOND
SERIES
Interest Maturity Dated
Rate Date Date CUSIP
Registered Owner:
Principal Amount: $ per $5,000 Amount Due at Maturity
Amount Due at Maturity:
KNOW ALL MEN BY THESE PRESENTS, that the City of Delray
Beach, Palm Beach County, Florida, (the "City"), for value
received, hereby promises to pay from the Net Revenues and Pledged
Impact Charges [if so pledged by the City], hereinafter mentioned,
to the Registered Owner or registered assigns on the Maturity Date
specified above, upon presentation and surrender hereof at the
principal corporate trust office of , as paying agent
(said and any bank or trust company to become
successor paying agent being herein called the "Paying Agent"), the
Amount Due at Maturity (stated above), constituting the Principal
II-14
there is a default in the payment of the interest due on such
interest payment date, such defaulted interest shall be paid to the
persons in whose name Bonds are registered on the registration
books of the city maintained by the Registrar at the close of
business on the fifteenth day prior to a subsequent interest
payment date established by notice mailed by the Registrar to the
registered owner not less than the tenth day preceding such
subsequent interest payment date. 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.
II-13
compliance with all constitutional or statutory limitations or
provisions.
[THE FOLLOWING PARAGRAPH IS APPLICABLE TO
CAPITAL APPRECIATION BONDS ONLY]
The Capital Appreciation Bonds, of which this Bond is
one, pay principal and compound accrued interest only at maturity
or upon prior redemption. For the purposes of (i) receiving
payment of the redemption price if a Capital Appreciation Bond is
redeemed prior to maturity, or (ii) computing the amount of Bonds
held by the registered owner of a Capital Appreciation Bond in
giving to the City any notice, consent, request, or demand pursuant
to the Resolution for any purpose whatsoever, or (iii) computing
the amount of Bonds to be redeemed and the selection of Bonds to be
redeemed, the principal amount of a Capital Appreciation Bond shall
be deemed to be its Accreted Value.
[THE FOLLOWING PARAGRAPH IS APPLICABLE ONLY
TO CAPITAL APPRECIATION AND INCOME BONDS]
For the purposes of (i) receiving payment of the
redemption price if a Capital Appreciation and Income Bond is
redeemed prior to maturity, or (ii) computing the amount of Bonds
held by the registered owner of a Capital Appreciation and Income
Bond in giving to the City any notice, consent, request or demand
pursuant to the Resolution for any purpose whatsoever, the
II-24
principal amount of a Capital Appreciation and Income Bond shall be
deemed to be its Appreciated Value.
IN WITNESS WHEREOF, the City of Delray Beach, Florida,
has issued this Bond and has caused the same to be executed by the
manual or facsimile signature of its Mayor and the corporate seal
of the city to be affixed hereto or lithographed or imprinted or
reproduced hereon, and attested by the manual or facsimile
signature of the City Clerk of the City, all as of the Dated Date.
CITY OF DELRAY BEACH, FLORIDA
(SEAL)
By
Mayor
Attest:
City Clerk
(FORM OF CERTIFICATE OF AUTHENTICATION)
Date of Authentication:
This Bond is one of the Bonds delivered pursuant to the
within mentioned Resolution.
as Registrar
Authorized Officer
II-25
(FORM OF VALIDATION CERTIFICATE)
[INSERT IF BONDS ARE VALIDATED]
This Bond is one of a series of Bonds which were
validated by judgment of the Circuit Court of Palm Beach County,
Florida, rendered on the day of , 199 .
Mayor
City Clerk
II-26
[FOR CAPITAL APPRECIATION BONDS ONLY]
ACCRETED VALUE PER $5,000 MATURITY AMOUNT
Accreted Accreted
Date Value Date Value
II-27
[FOR CAPITAL APPRECIATION AND INCOME BONDS ONLY]
APPRECIATED VALUE PER $5,000 MATURITY AMOUNT
Accreted Accreted
Date Value Date Value
II-28
ASSIGNMENT AND TRANSFER
FOR VALUE RECEIVED the undersigned sells, assigns and
transfers unto
(please print or typewrite name and address of transferee)
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:
In the presence of:
[STATEMENT OF INSURANCE, if any]
II-29
SECTION 9. Book-Entry System. 1. As long as the Bonds
are registered under the Book-Entry System, the City and the
Registrar shall comply with the terms of the agreement entered into
with the Securities Depository (the "Book-Entry Agreement").
However, the Book-Entry System through the Securities Depository
may be terminated upon the happening of any of the following:
(a) The Securities Depository or the City, based
upon advice from the Securities DepositorY, advise the
Registrar that the Securities Depository is no longer
willing or able to properly discharge its responsibili-
ties under the Book-Entry Agreement and the Registrar and
the City are unable to locate a qualified successor
clearing agency satisfactory to the Registrar and the
City; or
(b) The City, in its sole discretion but with the
prior written consent of the Registrar, elects to
terminate the Book-Entry System by notice to the Securi-
ties Depository, the Registrar and the Bond Insurer, if
any.
2. Upon the occurrence of any event described above,
(i) the City and the Registrar shall, if necessary, enter into a
resolution supplemental to this Resolution to add to the provisions
of this Resolution any provisions deemed reasonably necessary or
required by the Registrar, and approved in writing by the Bond
Insurer, if any, with respect to Replacement Bonds (including, but
not limited to, the provision for the cost and expenses for the
II-30
printing thereof) and to account for the fact that, thereafter, the
Bonds will no longer be registered under the Book-Entry System, and
(ii) the Registrar shall notify the Securities Depository and the
Bond Insurer, if any, of the occurrence of such event and of the
availability of definitive or temporary Replacement Bonds to
Beneficial Owners requesting the same, in an aggregate Outstanding
amount representing the interest of each such Beneficial Owner,
making such adjustments and allowances as it may find necessary or
appropriate as to accrued interest and previous payments of
principal. Definitive Replacement Bonds shall be issued only upon
surrender to the Registrar of the Bond of each maturity by the
Securities Depository, accompanied by registration instructions for
the definitive Replacement Bonds for such maturity from the
Securities Depository. Neither the City nor the Registrar shall be
liable for any delay in delivery of such instructions and conclu-
sively may rely on, and shall be protected in relying on, such
instructions.
3. Whenever the Bonds are registered under the Book-
Entry System and notice or other communication to the Bondholders
is required under this Resolution, unless and until definitive
Replacement Bonds shall have been issued with respect to the Bonds,
the City or the Registrar, as the case may be, shall give to the
Securities Depository one copy of each such notice and communica-
tion specified herein or required by this Resolution to be given to
the Beneficial Owners of the Bonds.
II-31
ARTICLE III
COVENANTS, FUNDS ~ND APPLICATION THEREOF
SECTION 1. The Bonds on Parity With the Prior Bonds. The
Bonds shall be on a parity and rank equally as to the lien on, and
source and security for payment from, the Net Revenues derived from
operation of the Combined Public Utility and, in all other
respects, with the Prior Bonds and any pari passu additional
obligations hereinafter issued pursuant to and within the terms,
limitations and conditions contained in Section 4.G of Article III,
Part I, of the 1988 Resolution.
SECTION 2. Bonds Not to be Indebtedness of the City. The
Bonds shall not be and shall not constitute an indebtedness of the
City within the meaning of any constitutional, statutory, charter
or other limitation of indebtedness, but shall be payable solely
from the Net Revenues derived from the operation of the Combined
Public Utility, as provided in the Original Resolution and this
Resolution. No Holder or Holders of any Bonds issued hereunder
shall ever have the right to compel the exercise of the ad valorem
taxing power of the City, or taxation in any form of any real
property therein to pay the Bonds or the interest thereon.
SECTION 3. The Bonds Secured by the Oriqinal Resolution.
The Bonds shall be deemed to have been issued pursuant to the
Original Resolution, as fully and to the same extent as the Prior
Bonds, and, except as otherwise provided herein, all of the
covenants and agreements contained in the Original Resolution shall
III-1
be deemed to have been made for the benefit of the holders of the
Bonds, and of any pari passu additional obligations hereafter
issued within the terms, limitations and conditions contained in
Section 4.G of Article III, Part I, of the 1988 Resolution, as
fully and to the same extent as the holders of the Prior Bonds.
All of the covenants, agreements, and provisions of the
Original Resolution shall be deemed to be part of this Resolution
to the same extent as if incorporated verbatim in this Resolution,
and shall be fully enforceable in the manner provided in the
Original Resolution by any of the holders of the Bonds, except as
otherwise provided herein.
SECTION 4. Bonds Secured by Pledqe of Net Revenues and
Additional Security of Special Assessments and Pledqed Impact
Charqes. The payment of the principal of and interest on all of
the Prior Bonds issued under the Original Resolution and Bonds
issued hereunder shall be secured forthwith equally and ratably by
a first lien on and pledge of the Net Revenues derived from the
operation of the Combined Public Utility. The Net Revenues derived
from the operation of the Combined Public Utility in an amount
sufficient to pay the principal of and interest on the Prior Bonds
and the Bonds herein authorized and to make the payments into the
reserve and sinking fund and all other payments provided for in the
Original Resolution and this Resolution, are hereby irrevocably
pledged to the payment of the principal of and interest on the
Bonds authorized herein, and other payments provided for in the
Original Resolution and in this Resolution, as the same become due
III-2
and payable. In addition, the City may by subsequent resolution of
the City Commission elect to pledge Special Assessments for the
payment of principal of and interest on the Bonds authorized under
this Resolution. If the City makes such election, the Special
Assessments so pledged shall be treated for all purposes under this
Resolution as Net Revenues, except as otherwise provided in the
Original Resolution. The City may also, by subsequent proceedings
of the City Commission, elect to pledge Pledged Impact Charges for
the payment of principal of and interest on the Bonds.
SECTION 5. &pplication of Bond Proceeds. All moneys
received by the city from the sale of the Bonds originally
authorized and issued pursuant to this Resolution shall be
disbursed as follows:
A. The accrued interest derived from the sale of the
Bonds shall be deposited in the Interest Account, created and
established under the 1988 Resolution and continued and maintained
under this Resolution, and used for the purpose of paying interest
on the Bonds as the same becomes due and payable.
B. From the proceeds of the Bonds there may be deposited
in the Debt Service Reserve Account, created and established under
the 1988 Resolution and continued and maintained under this
Resolution, such amount as shall be determined by subsequent
proceedings of the City Commission, but which amount shall not
exceed the Debt Service Reserve Requirement for the Bonds.
C. From the proceeds of the Bonds, an amount which
together with any other moneys lawfully available therefor,
III-3
including moneys and investments transferred from the funds and
accounts created and established by the proceedings authorizing the
issuance of the Refunded Bonds (such amounts to be determined by
subsequent proceedings of the City Commission), shall be deposited
in an escrow deposit trust fund to be held by a bank or trust
company, as trustee, under the terms and provisions of the Escrow
Deposit Agreement, and such proceeds shall be held irrevocably in
trust in the escrow deposit trust fund under the terms and
provisions of the Escrow Deposit Agreement; such moneys shall be
invested at the time of deposit in U. S. Obligations, which are not
callable prior to maturity except by the holder thereof, the
principal and interest of which shall be sufficient to pay the
principal of, redemption premium, if any, and interest on the
Refunded Bonds as the same mature and become due and payable or are
redeemed prior to maturity, as provided in the Escrow Deposit
Agreement.
D. The balance of the proceeds derived from the sale of
the Bonds shall be applied to pay the costs of issuing the Bonds,
including, but not limited to, payment of the premium for the Bond
Insurance Policy, if any, and the initial payment of the premium or
fee for the Reserve Account Credit Facility Substitute, if any.
The proceeds of the sale of the Bonds (other than amounts
deposited under the Escrow Deposit Agreement and amounts reserved
to pay the costs of issuing the Bonds) shall be and constitute
trust funds for the purposes hereinabove provided, and there is
III-4
hereby created a lien upon such moneys, until so applied, in favor
of the Holders of said Bonds.
SECTION 6. Covenants of the City. As long as any of the
principal of or interest on any of the Bonds shall be Outstanding
and unpaid, or until there shall have been set apart in the Sinking
Fund, consisting of the Interest Account, Principal Account, Bond
Redemption Account and the Debt Service Reserve Account, created
and established under the 1988 Resolution and continued and
maintained under this Resolution, a sum sufficient to pay, when
due, the entire principal of the Bonds remaining unpaid, together
with interest accrued and to accrue thereon, or until the provi-
sions of Article III, Section 6.F of this Resolution have been
complied with, the City covenants with the Holders of any and all
of the Bonds issued pursuant to the Resolution as follows:
A. TAX COVENANT. 1. The City covenants to comply with
each requirement of the Code, and any successor provisions thereto,
necessary to maintain the exclusion of the interest on the Bonds
from' gross income for Federal income tax purposes pursuant to
Section 103(a) of the Code. In furtherance of the covenant
contained in the preceding sentence, the City agrees to comply with
the provisions of the Tax Certificate.
2. The City shall make any and all payments required to
be made to the United States Department of the Treasury in
connection with the Bonds pursuant to Section 148(f) of the Code
from amounts on deposit in the funds and accounts established under
III-5
the 1988 Resolution and continued and maintained under this
Resolution and available therefor.
3. Notwithstanding any other provision of this Resolu-
tion to the contrary, as long as necessary in order to maintain the
exclusion of interest on the Bonds from gross income for Federal
income tax purposes, the covenants contained in this Section shall
survive the payment of the Bonds, including any payment or
defeasance thereof pursuant to Article III, Section 6.F, of the
Resolution.
B. RATES. The City, in each Fiscal Year, will fix,
establish and maintain such rates and collect such fees, rentals or
other charges for the services and Facilities of its Combined
Public Utility, and revise the same from time to time whenever
necessary, as will always provide in each Fiscal Year Net Revenues,
which shall be adequate to pay at least one hundred ten percent
(110%) of the Annual Debt Service Requirement for the Prior Bonds,
the Bonds and any pari passu additional Bonds hereafter issued; and
that such Net Revenues shall be sufficient to make all of the
payments required by the terms of the Original Resolution and this
Resolution, and that such rates, fees, rentals or other charges
shall not be so reduced so as to be insufficient for such purposes.
C. MAINTENANCE OF FUNDS AND ACCOUNTS CREATED UNDER THE
1988 RESOLUTION. The Combined Public Utility Revenue Fund, the
Water and Sewer Sinking Fund, consisting of four (4) separate
accounts, namely the Interest Account, the Principal Account, the
Bond Redemption Account and the Debt Service Reserve Account, the
III-6
Water and Sewer System Renewal, Replacement and Improvement Fund
and the Pledged Impact Charge Fund, all created and established
pursuant to the 1988 Resolution, shall be continued and maintained
as provided in this Resolution as long as any of the Bonds, or
interest thereon, remain unpaid.
D. DISPOSITION OF NET REVENUES AND PLEDGED IMPACT
CHARGES, IF ANY. The Revenues at any time on deposit in the
Revenue Fund shall be disposed of only in the following manner:
1. Revenues shall be used, to the full extent necessary,
to pay Operating Expenses that are due and payable during the
current calendar month.
2. Subject to the terms and provisions of the Original
Resolution, Net Revenues shall next be used, to the full extent
necessary, for deposit into the Interest Account in the Sinking
Fund, as provided in the Original Resolution, and the amount of
such deposits shall be increased, on the fifteenth (15th) day of
each month, beginning with the fifteenth (15th) day of the first
full calendar month following the date on which any or all of the
Bonds are delivered to the purchaser thereof, such sums as shall be
sufficient to pay one-sixth (1/6th) of the interest becoming due on
the Bonds on the next semiannual Interest Payment Date; provided,
however, that such monthly deposits for interest shall not be
required to be made into the Interest Account to the extent that
money is on deposit therein for such purpose; and provided further,
that in the event the City has issued pari passu additional
Variable Rate Bonds pursuant to the provisions of this Resolution
III-7
and the Original Resolution, Net Revenues shall be deposited at
such other or additional times and amounts as necessary to pay the
interest becoming due on the Bonds on the next Interest Payment
Date, all in the manner provided in the supplemental resolution
authorizing such pari passu additional Variable Rate Bonds.
The earnings and investment income derived from the
moneys and investments on deposit in the Principal Account, the
Bond Redemption Account and the Debt Service Reserve Account, which
are to be deposited in the Interest Account as required by the
terms of the Original Resolution and this Resolution, shall be
credited against the amount of Net Revenues required to be
deposited in the Interest Account.
In the event that the period to elapse between the date
of the delivery of the Bonds and the next semiannual Interest
Payment Date will be less or more than six (6) months, then such
monthly deposits shall be increased or decreased accordingly in
sufficient amounts to provide the required semiannual interest
amount maturing on the next Interest Payment Date.
3. Net Revenues shall next be used, to the full extent
necessary,
(a) for the monthly required deposits in the
Principal Account in the Sinking Fund, as provided in the
Original Resolution, and the amount of such deposits
shall be increased on the fifteenth (15th) day of each
month in each year, such sums as shall be sufficient to
pay one-twelfth (1/12th) of the principal amount or
III-8
Accreted Value of the Serial Bonds which will mature and
become due on the next annual maturity date, as shall be
determined by subsequent proceedings of the City Commis-
sion. In the event the period to elapse between the date
of delivery of the Bonds and the next principal payment
date will be less or more than twelve (12) months, then
such monthly payments shall be increased or decreased
accordingly in sufficient amounts to provide the required
principal amount maturing on the next principal payment
date.
(b) for the monthly required deposits into the Bond
Redemption Account (or such special account created
therein for the Bonds by subsequent proceedings of the
city Commission) in the Sinking Fund, as provided in the
Original Resolution, and the amount of such deposits
shall be increased on the fifteenth (15th) day of each
month in each year, such sums as shall be sufficient to
pay one-twelfth (1/12th) of the amount required for the
payment of the Term Bonds, as shall hereafter be deter-
mined by subsequent proceedings of the City Commission,
until the amount on deposit therein is equal to the
amount required to be paid on the next installment
payment date.
The moneys in the Bond Redemption Account (or such
special account created therein for the Bonds by subse-
quent proceedings of the City Commission) shall be used
III-9
solely for the purchase or redemption of the Term Bonds
payable therefrom. The City may purchase any of the Term
Bonds at prices not greater than par and accrued interest
and may purchase Capital Appreciation Bonds and/or
Capital Appreciation and Income Bonds (if such Capital
Appreciation Bond or Capital Appreciation and Income Bond
is a Term Bond) at prices not greater than the Accreted
Value or Appreciated Value, as the case may be, as of the
date of purchase. If, by the application of moneys in
the Bond Redemption Account (or such special account
created therein for the Bonds by subsequent proceedings
of the City Commission), the City shall purchase or call
for redemption in any year Term Bonds in excess of the
installment requirement for such year, such excess of
Term Bonds so purchased or redeemed shall at the option
of the City either be credited on a pro rata basis over
the remaining installment payment dates or credited
against the following year's installment requirement.
The City shall, to the extent of any moneys in the
Bond Redemption Account (or such special account created
therein for the Bonds by subsequent proceedings of the
City Commission), be mandatorily obligated to use such
moneys for the redemption prior to maturity of Term Bonds
in such manner and at such times as shall hereafter be
determined by subsequent proceedings of the City Commis-
sion.
III-10
No distinction or preference shall exist in the use
of moneys on deposit in the Revenue Fund for payment into
the Interest Account, the Principal Account and the Bond
Redemption Account in the Sinking Fund, such accounts
being on a parity with each other.
4. To the extent not funded from Bond proceeds, Net
Revenues shall next be used, to the full extent necessary, to
increase monthly deposits into the Debt Service Reserve Account in
the Sinking Fund, on the fifteenth (15th) day of each month in each
year, beginning with the fifteenth (15th) day of the first full
calendar month following the date on which any or all of the Bonds
issued hereunder are delivered to the purchaser thereof, such sums
as shall be sufficient to pay an amount equal to one-twelfth of
twenty percent (1/12th of 20%) of the Debt Service Reserve
Requirement for the Bonds; provided, however, that if Bond proceeds
are deposited in the Debt Service Reserve Account in an amount less
than the Debt Service Reserve Requirement, the City shall (except
as hereafter provided in the following paragraph) cause Net
Revenues to be deposited in an amount equal to one-sixtieth (1/60)
of the difference between the amount on deposit in the Debt Service
Reserve Account and the Debt Service Reserve Requirement, and
provided further, that no payments shall be required to be made
into the Debt Service Reserve Account whenever and as long as the
amount deposited therein shall be equal to the Debt Service Reserve
Requirement.
III-11
Notwithstanding the foregoing provisions, in lieu of the
deposits of Net Revenues into the Debt Service Reserve Account or
a deposit from Bond proceeds, the City may cause to be deposited
into the Debt Service Reserve Account a surety bond, an uncondi-
tional direct pay letter of credit issued by a bank, a reserve
account line of credit or a municipal bond insurance policy issued
by a reputable and recognized municipal bond insurer for the
benefit of the Bondholders (sometimes referred to herein as a
"Reserve Account Credit Facility Substitute") in an amount equal to
the difference between the Debt Service Reserve Requirement and the
sums then on deposit in the Debt Service Reserve Account, if any,
which Reserve Account Credit Facility Substitute shall be payable
(upon the giving of notice as required thereunder) on any Interest
Payment Date on which a deficiency exists which cannot be cured by
funds in any other account held pursuant to this Resolution and
available for such purpose under the terms and order of priority as
established under the Original Resolution and continued in this
Resolution. In addition, the City, at any time by subsequent
proceedings of the City Commission, may substitute a Reserve
Account Credit Facility Substitute for all moneys on deposit in the
Debt Revenue Reserve Account. Under such circumstances, the
Reserve Account Credit Facility Substitute shall be in an amount
equal to the Debt Service Reserve Requirement. Such municipal bond
insurer or bank in the case of a letter of credit or line of credit
shall be one whose municipal bond insurance policies or uncondi-
tional direct pay letters of credit or other type of credit
III-12
enhancement insuring or guaranteeing the payment, when due, of the
principal of and interest on municipal bond issues results in such
issues being rated in the highest rating category by the Rating
Agency or Agencies then rating the Bonds. If a disbursement is
made from a Reserve Account Credit Facility Substitute, provided
pursuant to this paragraph, the City shall be obligated to
reinstate the maximum limits of such Reserve Account Credit
Facility Substitute immediately following such disbursement or with
the consent of the issuer of the Reserve Account Credit Facility
Substitute, to replace such Reserve Account Credit Facility
Substitute by depositing into the Debt Service Reserve Account from
the Net Revenues and the Pledged Impact Charges, if any are so
pledged, as herein provided, funds in the maximum amount originally
payable under such Reserve Account Credit Facility Substitute, or
any combination of such alternatives. In the event the Debt
Service Reserve Account is funded, both with cash (including
Permitted Investments of such cash) and a Reserve Account Credit
Facility Substitute in the aforementioned manner, and it is
necessary to make payments into the Interest Account, Principal
Account or Bond Redemption Account in the Sinking Fund when moneys
in the Revenue Fund and the Pledged Impact Charge Fund, to the
extent Pledged Impact Charges have been pledged, are insufficient
therefor, the City covenants to deposit the cash (including
Permitted Investments of such cash) on deposit in the Debt Service
Reserve Account into such accounts in the Sinking Fund prior to any
III-13
disbursements made from the Reserve Account Credit Facility
Substitute.
Whenever there is on deposit in the Debt Service Reserve
Account an amount in excess of the Debt Service Reserve Require-
ment, the amount of such excess shall be reduced at the option of
the City in the following manner: (a) if there is on deposit in
the Debt Service Reserve Account, a Reserve Account Credit Facility
Substitute, as provided herein, the principal amount thereof shall
be reduced by the amount of such excess and (b) if the Debt Service
Reserve Account is funded with cash and/or Permitted Investments by
reducing the amount of moneys and/or securities in the Debt Service
Reserve Account in an amount equal to such excess. The cash and/or
Permitted Investments so withdrawn under subsection (b) above shall
be deposited in the Renewal, Replacement and Improvement Fund and
used for the purposes provided therein; provided, however, that all
of the income incurred from the investment and reinvestment of
moneys on deposit in the Debt Service Reserve Account in excess of
the Debt Service Reserve Requirement shall be deposited in the
Interest Account as herein provided in this Resolution.
Moneys in the Debt Service Reserve Account shall be used
only for the purpose of making payments into the Interest Account,
the Principal Account and the Bond Redemption Account when the
moneys in the Revenue Fund are insufficient therefor; and provided
further, however, that moneys on deposit in the Debt Service
Reserve Account may, upon final maturity of the Bonds, be used to
pay principal of and interest on the Bonds.
III-14
In the event that any moneys shall be withdrawn from the
Debt Service Reserve Account for payments into the Interest
Account, the Principal Account and the Bond Redemption Account such
withdrawals shall be subsequently restored from the first Net
Revenues available after all required payments have been made into
the Interest Account, the Principal Account and the Bond Redemption
Account including any deficiencies for prior payments to the extent
such deficiencies are not paid from Pledged Impact Charges, if any
are so pledged by the City, on deposit in the Pledged Impact Charge
Fund as hereinafter provided. Notwithstanding any provision in
this Resolution to the contrary, if a disbursement is made from a
Reserve Account Credit Facility Substitute, the City shall be
obligated to reinstate the maximum limits of such Reserve Account
Credit Facility Substitute prior to making any deposits into the
Debt Service Reserve Account from the Net Revenues and Pledged
Impact Charges, if any are so pledged. If more than one Reserve
Account Credit Facility Substitute shall be in effect, the City
shall reinstate each on a pro rata basis.
No distinction or preference shall exist in the use of
the moneys on deposit in the Debt Service Reserve Account for
payment into the Interest Account, the Principal Account and the
Bond Redemption Account, such accounts being on a parity with each
other.
5. Net Revenues shall next be used, to the full extent
necessary, for the monthly required deposits into the Renewal,
Replacement and Improvement Fund, as provided in the Original
III-15
Resolution, and the amount of such deposits shall be increased on
the fifteenth (15th) day of each month, beginning with the
fifteenth (15th) day of the first full calendar month following the
date on which any or all of the Bonds issued hereunder are
delivered to the purchaser thereof, in such sums as shall be
sufficient to pay one-twelfth (1/12th) of five per centum (5%) of
the Gross Revenues derived from the operation of the Combined
Public Utility during the preceding Fiscal Year, provided that the
payments set forth herein shall not be required to be made to the
extent the payments required under the Original Resolution with
respect to the Renewal, Replacement and Improvement Fund have been
made. No further deposits need be made if the Consulting Engineer
shall certify that no additional deposits are necessary for the
purposes of the Renewal, Replacement and Improvement Fund.
The moneys in the Renewal, Replacement and Improvement
Fund shall be used for the purpose of paying the costs of exten-
sions, improvements or additions to, or the replacement or renewal
of capital assets of the Combined Public Utility, or extraordinary
repairs of the Combined Public Utility; provided, however, that
moneys in the Renewal, Replacement and Improvement Fund shall be
used for payment into the Interest Account, the Principal Account
and the Bond Redemption Account when the moneys in the Revenue
Fund, the Debt Service Reserve Account and the Pledged Impact
Charge Fund, if any, are insufficient therefor.
6. Net Revenues shall next be used, first, for the
repayment of any obligations owed to the provider(s) of a Reserve
III-16
Account Credit Facility Substitute, and second, for the payment of
any subordinated indebtedness hereafter issued by the City in
connection with the Combined Public Utility in accordance with the
proceedings authorizing such subordinated indebtedness.
7. Thereafter, the balance of any Net Revenues remaining
in the Revenue Fund shall be used by the City to make improvements
to the Combined Public Utility, to purchase or redeem Bonds prior
to maturity or for any other lawful purpose; provided, however,
that none of such Net Revenues shall ever be used for the purposes
provided in this paragraph (7) unless all payments required in
paragraphs (1) to (6) above, including any deficiencies for prior
payments, have been made in full to the date of such use.
Pledged Impact Charges:
There shall be deposited in the Pledged Impact Charge
Fund created under the 1988 Resolution all Pledged Impact Charges,
if so pledged by the City as received by the City, and such Pledged
Impact Charges shall be used by the City to the extent permitted by
law in the following manner and order of priority:
(a) For the payment into the Interest Account, the
Principal Account and the Bond Redemption Account when
the moneys in the Revenue Fund and the Debt Service
Reserve Account are insufficient therefor.
(b) To restore any withdrawals or to make up any
deficiencies that may exist from time to time in the Debt
Service Reserve Account whenever the moneys in the
Revenue Fund are insufficient for such purpose.
III-17
(c) TO pay the cost of capital improvements to the
Combined Public Utility.
(d) The balance of any Pledged Impact Charges
remaining in the Pledged Impact Charge Fund shall be
deposited, as needed, in the Interest Account and used to
pay interest becoming due on the Bonds; provided,
however, that none of such Pledged Impact Charges shall
ever be used for the purposes provided in this subpara-
graph 7(d) unless all payments required under subpara-
graphs 7(a) through 7(c), including any deficiencies for
prior payments are made in full to date of such use.
(e) Thereafter, the balance of any Pledged Impact
Charges remaining in the Pledged Impact Charge Fund may
be used for any other lawful purpose for the Combined
Public Utility.
8. The Sinking Fund, including the Interest Account,
Principal Account, Bond Redemption Account and Debt Service Reserve
Account therein, the Renewal, Replacement and Improvement Fund, the
Pledged Impact Charge Fund created and established under the 1988
Resolution and continued and maintained under this Resolution shall
constitute trust funds. The amounts required to be accounted for
in each of the funds and accounts designated herein, except for the
Sinking Fund, may be deposited in a single bank account maintained
by the City provided that adequate accounting procedures are
maintained to reflect and control the restricted allocations of the
amounts on deposit therein for the various purposes of such funds
III-18
and accounts as herein provided. The designation and establishment
of funds and accounts in and by the Original Resolution and this
Resolution shall not be construed to require the establishment of
any completely independent funds and accounts but rather is
intended solely to constitute an allocation of certain revenues of
the Combined Public Utility for certain purposes and to establish
such certain priorities for application of certain revenues as
herein provided.
Moneys on deposit in the Revenue Fund, the Renewal,
Replacement and Improvement Fund, the Sinking Fund and the Pledged
Impact Charge Fund may be invested in U.S. Obligations or any other
Permitted Investments maturing not later than such date or dates as
the City shall determine.
Subject to the requirements under the Code and the Tax
Certificate, all income and earnings received from the investment
and reinvestment of moneys on deposit in the Renewal, Replacement
and Improvement Fund shall be transferred to the Revenue Fund and
used in the same manner as other moneys on deposit therein.
Subject to the requirements under the Code and the Tax
Certificate, all the income and earnings received from the
investment and reinvestment of moneys on deposit in the Principal
Account, Bond Redemption Account and Debt Service Reserve Account
(provided the Debt Service Reserve Requirement is maintained) shall
be transferred to the Interest Account and be credited against any
moneys required to be deposited into the Interest Account as
provided in the Original Resolution and in this Resolution.
III-19
Subject to the requirements under the Code and the Tax
Certificate, all the income and earnings received from the
investment and reinvestment of moneys on deposit in the Interest
Account in the Sinking Fund shall be retained therein and be
credited against any moneys required to be deposited into the
Interest Account, as provided in the Original Resolution and in
this Resolution.
Subject to the requirements under the Code and the Tax
Certificate, all the income and earnings received from the
investment and reinvestment of moneys on deposit in the Pledged
Impact Charge Fund shall be retained therein and used in the manner
provided for in the Original Resolution and in this Resolution.
E. REMEDIES. Any Holder of Bonds issued under the
provisions of this Resolution or any trustee acting for such
Bondholders in the manner hereinafter provided, may either at law
or in equity, by suit, action, mandamus or other proceedings 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, including the fixing, charging and collecting of rates,
fees or other charges for the services and Facilities of the
Combined Public Utility.
In the event that default shall be made in the payment of
the interest on or the principal of any of the Bonds issued
III-20
pursuant to this Resolution as the same shall become due, or in the
making of the payments into any reserve or sinking fund or any
other payments required to be made by the Original Resolution and
this Resolution, or in the event that the City or any officer,
agent or employee thereof shall fail or refuse to comply with the
provisions of the Original Resolution and this Resolution or shall
default in any covenant made herein, and in the further event that
any such default shall continue for a period of sixty (60) days,
any Holder of such Bonds, -or any trustee appointed to represent
Bondholders as hereinafter provided, shall be entitled as of right
to the appointment of a receiver of the Combined Public Utility in
an appropriate judicial proceeding in a court of competent
jurisdiction, whether or not such Holder or trustee is also seeking
or shall have sought to enforce any other right or exercise any
other remedy in connection with Bonds issued pursuant to this
Resolution.
The receiver so appointed shall forthwith, directly or by
his agents and attorneys, enter into and upon and take possession
of the Combined Public Utility, and each and every part thereof,
and shall hold, operate and maintain, manage and control the
Combined Public Utility, and each and every part thereof, and in
the name of the City shall exercise all the rights and powers of
the City with respect to the Combined Public Utility as the City
itself might do. Such receiver shall collect and receive all
Revenues and Pledged Impact Charges, if any are so pledged, and
maintain and operate the Combined Public Utility in the manner
III-21
provided in the Original Resolution and this Resolution and comply
under the jurisdiction of the court appointing such receiver, with
all of the provisions of the Original Resolution and this Resolu-
tion.
Whenever all that is due upon Bonds issued pursuant to
this Resolution, and interest thereon, and under any covenants of
the Original Resolution and this Resolution for reserve, sinking
fund or other funds, and upon any other obligations and interest
thereon having a charge, lien or encumbrance upon the Revenues of
the Combined Public Utility and the Pledged Impact Charges, if any
are so pledged, shall have been paid and made good, and all
defaults under the provisions of the Original Resolution and this
Resolution shall have been cured and made good, possession of the
Combined Public Utility shall be surrendered to the City upon the
entry of an order of the court to that effect. Upon any subsequent
default, any Holder of Bonds issued pursuant to this Resolution, or
any trustee appointed for Bondholders as hereinafter provided,
shall have the right to secure the further appointment of a
receiver upon any such subsequent default.
Such receiver shall in the performance of the powers
hereinabove conferred upon him be under the direction and supervi-
sion of the court making such appointment, shall at all times be
subject to the orders and decrees of such court and may be removed
thereby and a successor receiver appointed in the discretion of
such court. Nothing herein contained shall limit or restrict the
jurisdiction of such court to enter such other and further orders
III-22
and decrees as such court may deem necessary or appropriate for the
exercise by the receiver of any function not specifically set forth
herein.
Any receiver appointed as provided herein shall hold and
operate the Combined Public Utility in the name of the City and for
the joint protection and benefit of the City and Holders of Bonds
issued pursuant to this Resolution and the holders of the Prior
Bonds issued pursuant to the Original Resolution. Such receiver
shall have no power to sell, assign, mortgage or otherwise dispose
of any assets of any kind or character belonging or pertaining to
the Combined Public Utility, except as provided herein, but the
authority of such receiver shall be limited to the possession,
operation and maintenance of the Combined Public Utility for the
sole purpose of the protection of both the City and the Bondhold-
ers.
The Holder or Holders of Bonds in an aggregate principal
amount of not less than fifty-one per centum (51%) of Bonds issued
under the Original Resolution and this Resolution then Outstanding
may by a duly executed certificate in writing appoint a trustee for
Holders of Bonds issued pursuant to the Original Resolution and
this Resolution with authority to represent such Bondholders in any
legal proceedings for the enforcement and protection of the rights
of such Bondholders. Such certificate shall be executed by such
Bondholders or their duly authorized attorneys or representatives,
and shall be filed in the office of the City Clerk. The term
"Bonds," as used in this paragraph, shall mean both the Bonds
III-23
authorized to be issued under this Resolution and the Prior Bonds
issued under the Original Resolution.
Any exercise of a remedy set forth in this Section 4.E
shall be subject to the consent of the Bond Insurer, if any, and
the Bond Insurer shall have the right, acting alone, to exercise
said remedies as long as it has not defaulted in its obligations
under the Bond Insurance Policy.
F. DISCHARGE AND SATISFACTION OF BONDS. The covenants,
liens and pledges entered into, created or imposed pursuant to the
Original Resolution and this Resolution may be fully discharged and
satisfied with respect to the Bonds in any one or more of the
following ways:
(a) by paying the principal of and interest on
Bonds when the same shall become due and payable; or
(b) by depositing in the Interest Account, Princi-
pal Account, Debt Service Reserve Account and the Bond
Redemption Account, or in such other accounts which are
irrevocably pledged to the payment of the Bonds, as the
City may hereafter create and establish by resolution,
certain moneys, which together with other moneys lawfully
available therefor and deposited therein shall be
sufficient at the time of such deposit to pay the Bonds,
the interest thereon and the redemption premium, if any,
as the same become due on said Bonds on or prior to the
redemption date or maturity date thereof; or
III-24
(c) by depositing in the Interest Account, Princi-
pal Account, Debt Service Reserve Account and the Bond
Redemption Account, or such other accounts which are
irrevocably pledged to the payment of the Bonds as the
city may hereafter create and establish by resolution,
certain moneys which, together with other moneys lawfully
available therefor and deposited therein, when invested
in Defeasance Obligations will provide moneys which shall
be sufficient to pay the Bonds, the interest thereon and
the redemption premium, if any, as the same shall become
due on said Bonds on or prior to the redemption date or
maturity date thereof.
(d) Notwithstanding the foregoing all references to
the discharge and satisfaction of Bonds shall include the
discharge and satisfaction of any issue of Bonds, any
portion of an issue of Bonds, any maturity or maturities
of an issue of Bonds, any portion of a maturity of an
~issue of Bonds or any combination thereof.
Notwithstanding the foregoing, in the event that the
payment or deposit in the amount and manner provided in this
Resolution has been made by the Bond Insurer under the terms of the
Bond Insurance Policy, the Bond Insurer shall be subrogated to the
rights of the Holders of the Bonds and the liability of the City,
with respect thereto, shall not be discharged or extinguished.
For the purposes of determining the amount of interest on
Variable Rate Bonds whether discharged and satisfied under the
III-25
provisions of subsections (a), (b) and (c) above, the amount
required for the interest thereon shall be calculated at the
maximum rate permitted by the terms of the provisions which
authorized the issuance of such Variable Rate Bonds.
Upon such payment or deposit in the amount and manner
provided in this Section 6.F, the Bonds shall no longer be deemed
to be Outstanding for the purposes of the Original Resolution and
this Resolution and all liability of the City with respect to the
Bonds shall cease, terminate and be completely discharged and
extinguished, and the Holders thereof shall be entitled for payment
solely out of the moneys or securities so deposited.
In the case of Bonds which by their terms may be redeemed
prior to their stated maturity, the City shall give the Registrar,
in form satisfactory to the Registrar, irrevocable instructions:
(i) stating the date when the principal of each
such Bond is to be paid, whether at maturity or on a
redemption date;
(ii) requiring the Registrar to call for redemption
pursuant to the terms of such Bonds any Bonds to be
redeemed prior to maturity pursuant to (i) hereof; and
(iii) requiring the Registrar to publish and mail,
as soon as practicable, a notice to the owners of such
Bonds that the deposit required by this Section 6.F has
been made and that such Bonds are deemed to have been
paid in accordance with this Section 6.F and stating the
maturity or redemption date upon which money is to be
III-26
available for the payment of the principal or redemption
price, if applicable, on such Bonds as specified in (i)
hereof. Notwithstanding the foregoing, the discharge and
satisfaction of the Bonds shall not be conditioned on the
giving of such notices.
Notwithstanding anything contained in this Section 6.F to
the contrary, the covenants, liens and pledges contained in this
Resolution shall not be fully discharged and satisfied until all
obligations owed to the provider(s) of the Reserve Account Credit
Facility Substitute have been satisfied.
G. VALUATION. The value of Permitted Investments on
deposit in the funds and accounts created and established under the
1988 Resolution and continued and maintained under this Resolution
other than investments of moneys on deposit in the Debt Service
Reserve Account shall be the lower of par, or if purchased at other
than par, amortized value. Amortized value, when used with respect
to securities purchased at a premium above or a discount below par,
shall mean the value at any given date obtained by dividing the
total premium or discount at which such securities were purchased
by the number of interest payment dates remaining to maturity on
such securities after such purchase and by multiplying the amount
so calculated by the number of interest payment dates having passed
since the date of purchase; and (i) in the case of securities
purchased at a premium, by deducting the product thus obtained from
the purchase price, and (ii) in the case of securities purchased at
a discount, by adding the product thus obtained to the purchase
III-27
price. The value of Permitted Investments on deposit in the Debt
Service Reserve Account shall be determined by the terms and
provisions of the Tax Certificate.
H. ISSUANCE OF PARI PASSU ADDITIONAL BONDS. No pari
passu additional Bonds, as such term is defined in the 1988
Resolution, payable pari passu with the Prior Bonds and Bonds
issued pursuant to this Resolution out of Net Revenues, shall be
issued except upon the conditions and in the manner provided in
Section 4.G of Article III of Part I of the 1988 Resolution.
III-28
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 1. Modification or Amendment. Except as
otherwise provided in the second paragraph hereof, no material
modification or amendment of this Resolution, or of any resolution
amendatory thereof or supplemental thereto, may be made without the
consent in writing of the Holders of two-thirds or more in
principal amount of the Bonds then Outstanding; provided, however,
that no modification or amendment shall permit a change in the
maturity of such Bonds or a reduction in the rate of interest
thereon, or affecting the unconditional promise of the City to fix,
maintain and collect fees, rentals and other charges for the
Combined Public Utility or to pay the interest of and principal on
the Bonds, as the same mature or become due, from the Net Revenues
of the Combined Public Utility and the Pledged Impact Charges, if
any are so pledged, or reduce the percentage of Holders of Bonds
required above for such modification or amendments, without the
consent of the Holders of all the Bonds.
This Resolution may be amended, changed, modified and
altered without the consent of the Owners of Bonds, (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 Owners, (iii) to implement a
Credit Facility, (iv) to implement or discontinue a book-entry
system of registration for the Bonds (v) to maintain the exclusion
IV-1
of interest on the Bonds from gross income for federal income tax
purposes, or (vi) to secure or maintain a rating on the Bonds.
For purposes of this Section 1 of Article IV, to the
extent the Bonds are insured by a Bond Insurance Policy and such
Bonds are then rated in as high a rating category in which such
Bonds were rated at the time of initial issuance and delivery
thereof, by the Rating Agency or Agencies, then the consent of the
Bond Insurer shall constitute the consent of the Holders of the
Bonds under the terms and conditions of such Bond Insurance Policy,
provided, however, that such Bond Insurer is not in default under
the Bond Insurance Policy.
SECTION 2. Severabilit¥ 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 the
Resolution or of the Bonds.
SECTION 3. Sale of Bonds. The Bonds shall be issued and
sold at one time or from time to time, in such manner and at such
price or prices consistent with the provisions of the Act and the
requirements of the Original Resolution and this Resolution as the
IV-2
City Commission shall hereafter determine by subsequent proceed-
ings.
SECTION 4. Further Authorization. The Mayor, Vice
Mayor, city Manager, Finance Director, Treasurer, and City Clerk,
and other proper officers of the city are, 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 5. Regealer. That all resolutions or riders or
parts thereof in conflict herewith are to the extent of such
conflict hereby repealed.
SECTION 6. Bond Insurer: Default. Notwithstanding any of
the provisions of this Resolution to the contrary, all of the
rights of the Bond Insurer, if any, granted herein shall be null
and void if the Bond Insurer is in default under the Bond Insurance
Policy.
SECTION 7. Validation. That the City Attorney shall, if
directed by the City Commission, take appropriate proceedings in
the Circuit Court of the Fifteenth Judicial Circuit of Florida in
and for Palm Beach County for the validation of the Bonds, and the
Mayor and City Clerk are hereby authorized to sign any pleadings in
such proceedings for and on behalf of the City Commission.
IV-3
SECTION 8. Uffective Date. This Resolution shall take
effect immediately upon its passage.
PASSED AND ADOPTED in regular session on this the 8th day
of June, 1993.
BY---~'~CITY OF~B~CH,~FLORIDA
Attest: Mayor
City Clerk F /
IV-4