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Res 69-86 RESOLUTION NO. 69 -86 A RESOLUTION AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $10,500,000 UTILITIES TAX REVENUE BONDS, SERIES 1987, OF THE CITY OF DELRAY BEACH, FLORIDA, TO FINANCE THE COST OF THE LANDSCAPING, IRRIGATION, PLANTING AND CURBING OF ROADWAYS, ACQUISITION OF LAND FOR A COUNTY COURTHOUSE, CONSTRUCTION OF DRAINAGE ADDITIONS, EXTENSIONS AND IMPROVEMENTS, ACQUISITION AND CONSTRUCTION OF ADDITIONS, EXTENSIONS AND IMPROVEMENTS TO FIREFIGHTING FACILITIES AND EQUIPMENT AND CON- STRUCTION OF ADDITIONS, EXTENSIONS AND IMPROVE- MENTS TO THE CITY HALL; PROVIDING FOR THE TERMS OF SAID UTILITIES TAX REVENUE BONDS, SERIES 1987, AND THE RIGHTS AND SECURITY OF THE C~TNERS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: ARTICLE I STATUTORY AUTHORITY; FINDINGS AND DEFINITIO~ SE¢'TION 1.1. AUTHORITY OF THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of the Charter of the City of Delray Beach, Florida (the "City"), as amended and sup- plemented, the Florida Constitution, Chapter 166, Florida Statutes and other applicable provisions of law. SECTION 1.2. FINDINGS. It is hereby ascertained, deter- mined and declared: A. That the City hereby authorizes (i) the landscaping, irrigation, planting and curbing of certain roadways located within the general boundaries of the City; (ii) the acquisition of land for a county courthouse; (iii) the construction of certain drainage addi- tions, extensions and improvements; (iv) the acquisition and con- struction of certain additions, extensions and improvements to the City's firefighting facilities and equipment; and (v) the construc- tion of certain additions, extensions and improvements to the City Hall (collectively, the "Improvements"). Such Improvements shall be financed from part of the proceeds derived from the sale of the Bonds issued pursuant to this Resolution, all in accordance with plans and specifications filed or to be filed with and approved or to be approved by the City Council. 8. That it is necessary and essential to construct and acquire the Improvements in order to preserve and promote the safety and welfare of the citizens of the City. C. That the City has heretofore issued and has now out- standing $200,000 principal amount of Utilities Tax Revenue Certificates, Series 1962, $350,000 principal amount of Utilities Tax Revenue Certificates, Series 1967 and $3,535,000 principal amount of Utilities Tax Revenue Certificates, Series 1978. D. That pursuant to proceedings heretofore adopted the City has been levying a tax on the purchase of certain utilities ser- vices, the proceeds of which tax are not pledged or encumbered in whole or in part in any manner or for any purpose other than the pay- ment of the Bonds and for the payment of certain Utilities Tax Revenue Certificates, Series 1962, originally issued in the amount of $1,100,000 and now outstanding in the amount of $200,000, certain Utilities T~x Revenue Certificates, Series 1967, originally issued in the amount of $570,000 and now outstanding in the amount of $350,000 and certain Utilities Tax Revenue Certificates, Series 1978, origi- nally issued in the amount of $4,000,000 and now outstanding in the amount of $3,535,000. E. For the purposes of this Resolution the Bonds autho- rized herein are determined to be additional certificates within the meaning of Section 7 of Resolution Number 1428 adopted by the City on November 26, 1962, which Bonds shall be on a parity with the 1962 Certificates, the 1967 Certificates and the 1978 Certificates. F. That under the provisions of Section 7 of Resolution Number 1429 adopted by the City on November 26, 1962, authorizing said Utilities Tax Revenue Certificates, Series 1962, additional -2- Res. No. 69 -86 obligations may be issued on a parity therewith for purposes other than refunding if certain conditions prescribed in said Section 7 are met, including the condition that the Utilities Tax proceeds col- lected during twenty-four consecutive months of the last thirty months immediately preceding the issuance of the additional certifi- cates have been equal to three times the highest future annual prin- cipal and interest requirement of all certificates then outstanding and the certificates so proposed to be issued. G. That the Bonds authorized herein, when issued, will comply with all the provisions, conditions and limitations of Section 7 of the 1962 Certificate Resolution. H. That the cost of the Improvements shall be deemed to include the cost of construction and improvements, the cost of real estate, including easements and other interests therein, or any other property real or personal, necessary therefor; administrative expenses; reserve or other funds created and established pursuant to the Certificate Resolutions and this Resolution; discount on the sale of the Bonds, if any; engineering and legal expenses; expenses for fiscal agents or financial services; expenses for estimates of costs and of Utilities Tax proceeds; expenses for plans, specifications and surveys; and such other expenses as may be necessary or incidental to the Improvements and the issuance of the Bonds herein authorized. I. That the principal of and interest on the Bonds and all of the reserve and other payments provided for in this Resolution will be paid solely from Utilities Tax proceeds; 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, or to make any of the reserve or other payments provided for in this Resolution, and the Bonds issued pursuant to this Resolution shall not constitute a lien upon any other property whatsoever of or in the City. -3- Res. No. 69..-86 SECTION 1.3. DEFINITIONS. That as used herein the following terms shall have the following meanings unless the context otherwise clearly requires: (a)-'Bond Insurance Policy' shall mean an insurance policy issued for the benefit of the Owners of the Bonds, pursuant to which the issuer of such Bond Insurance Policy shall be obligated to pay when due the principal of and interest on the Bonds to the extent of any deficiency in the amounts in the funds and accounts held under the Certificate Resolutions and this Resolution in the manner and in accordance with the terms provided in such Bond Insurance Policy. (b) 'Bonds" and 'Bonds herein authorized' shall mean the not exceeding $10,500,000 Utilities Tax Revenue Bonds, Series 1987, authorized by this Resolution, which Bonds shall be deemed to be additional certificates within the meaning of Section 7 of the 1962 Certificate Resolution. (c) 'Certificate Resolutions" shall mean, collectively, the 1962 Certificate Resolution, the 1967 Certificate Resolution and the 1978 Certificate Resolution. (d) "City" shall mean the City of Delray Beach, Florida. (e) 'City Council" shall mean the City Commission of the City, which is the duly constituted governing body of the City. (f) 'i962 Certificate Resolution' shall mean Resolution Number 1429 adopted by the City Council of the City on November 26, 1962, authorizing the issuance of $1,100,000 Utilities Tax Revenue Certificates, Series 1962., of the City. (g) "1962 Certificates' shall mean the out standing Utilities Tax Revenue Certificates, Series 1962, authorized by the 1962 Certificate Resolution. (h) '1967 Certificate Resolution' shall mean Resolution Number 26-67 adopted by the City Council of the City on October 30, -4- Res. No. 69 -86 1967, authorizing the issuance of $600,000 Utilities Tax Revenue Certificates, Series 1967, of the City. (i) "1967 Certificates" shall mean the out standing Utilities Tax Revenue Certificates, Series 1967, authorized by the 1967 Certificate Resolution. (j) "1978 Certificate Resolution" shall mean Resolution Number 65-78 adopted by the City Council of the City on July 24, 1978, authorizing the issuance of $4,500,000 Utility Tax Revenue Certificates, Series 1978, of the City. (k) "1978 Certificates" shall mean the out standing Utilities Tax Revenue Certificates, Series 1978, authorized by the 1978 Certificate Resolution. (1) "Defeasance Obligations" shall mean to the extent permitted by law: (a) U.S. Obligations; (b) Any bonds or other obligations of any state of the United States of America or of any agency, instrumentality or local governmental unit of any such state (i) which are not callable prior to maturity or as to which irrevocable instructions have been given to the trustee of such bonds or other obligations by the obligor to give due notice of redemption and to call such bonds for redemption on the date or dates specified in such instructions, (ii) which are secured as to principal and interest and redemption premium, if any, by a fund consisting only of cash or bonds or other obligations of the character described in clause (a) hereof which fund may be applied only to the pay- ment 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 -5- Res. No. 69 -86 date or dates specified in the irrevocable instructions referred to in subclause (i) of this clause (b), as appropriate, and (iii) as to which the principal of and interest on the bonds and obligations 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 princi- pal of and interest and redemption premium, if any, on the bonds or other obligations described in this clause (b) to and including the maturity d~te or dates thereof or to and including the redemption date or dates specified in the irrevocable instructions referred to in subclause (i) of this clause (b), as appropriate; (c) Evidences of indebtedness issued by the Federal Home Loan Banks, Federal Home Loan Mortgage Corporation (including participation certificates), Federal Financing Banks, or any other agency or instrumentality of the United States of America cre- ated by an act of Congress provided that the obliga- tions of such agency or instrumentality are uncondi- tionally guaranteed by the United States of America or any other agency or instrumentality of the United States of America or of any corporation wholly-owned by the United States of America; and (d) 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. (m) "Fiscal Year" shall mean that period commencing on October 1 and continuing to and including the next succeeding -6- Res. No. 69-86 September 30, or such other annual period as may be prescribed by law. (n) 'Improvements' shall mean (i) the landscaping, irriga- tion, planting and curbing of certain roadways located within the general boundaries of the City; (ii) the acquisition of land for a county courthouse~ (iii) the construction of certain drainage addi- tions, extensions and improvements~ (iv) the acquisition and con- struction of certain additions, extensions and improvements to the City's firefighting facilities and eguipment~ and (v) the construc- tion of certain additions, extensions and improvements to the City Hall. (o) 'Owner' or any similar term shall mean any person who shall be the Owner of any Bond or Bonds outstanding under this Resolution. (p) "Parity Certificates' shall mean obligations issued on a parity with the Bonds herein authorized under the provisions of Section ? of the 1962 Certificate Resolution. (g) 'Paying Agent' s,hall mean the bank or trust company and any suc.cessor bank or trust company appointed by the City to act as Paying Agent hereunder. (r) 'Registrar' shall mean the bank or trust company and any successor bank or trust company appointed by the City to act as Registrar hereunder. (s) 'Resolution' shall mean this Resolution as the same may from time to time be amended and supplemented in accordance with the terms of the Resolution. (t) 'Utilities Tax' shall mean the tax imposed by said City on each and every purchase in the City of electricity, metered and bottled gas (natural or manufactured), and local telephone service. Said term shall also apply to all taxes imposed by the City on the p~rchase of utility services other than water, whether levied -7- Res. No. 69 -86 in the amounts prescribed by the Utilities Tax Ordinance or in any other amounts and whether imposed on the purchase of the same utili- ties services or any other or additional utilities services, either by amendment to the Utilities Tax Ordinance or otherwise. (u) 'Utilities Tax Ordinance' shall mean all proceedings imposing the Utilities Tax, including Ordinance Number 535 of the City adopted on July 9, 1945, as amended, and every supplementary ordinance or other ordinance in lieu thereof as may hereafter be adopted. Words importing singular number shall include the plural number in each case and vice versa, and words importing persons shall include firms and corporations. SECTION 1.4. RESOLUTION CONSTITUTES CONTRACT. In consid- eration of the acceptance of the Bonds authorized to be issued here- under by those who shall own the same from time to time, this Resolution and the Certificate Resolutions shall be deemed to be and shall constitute a contract between the City and the Owners of such Bonds and the covenants and agreements herein and therein set forth to be performed by said City shall be for the equal benefit, protec- tion and security of the Owners 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. -8- Res. No. 69-86 ARTICLE II AUTHORIZATION, TERMS, EXRC~TION A~) I~EGISTRATION OF B(H~DS ~ECTION 2.1. AUTHORIZATION OF BONDS. Subject and pursuant to the provisions of this Resolution, obligations of the City of Delray Beach, Florida, to be known as 'Utilities Tax Revenue Bonds, Series 1987' are hereby authorized to be issued in the aggregate principal amount of not exceeding Ten Million Five Hundred Thousand Dollars ($10,500,000) for the purpose of financing the cost of the Improvements. SECTION 2.2. DESCRIPTION OF BONDS. The Bonds shall be issued in registered form, shall be in the denomination of $5,000 each or any integral multiple thereof, and shall be numbered sepa- rately from one upward, preceded by the letter 'R". The Bonds shall be in such series, shall bear interest at not exceeding the maximum rate or rates permitted by law, payable semi-annually on June 1 and December 1 of each year, shall mature within forty (40) years from the date of issuance of the Bonds, annually on June 1 of each year, shall be payable at such place or places within or without the State of Florida and shall mature in such years and amounts, all as shall be determined by subsequent resolution of the City. SECTION 2.3, REDEMPTION PROVISIONS. The Bonds shall be subject to redemption prior to maturity at such times, at such redemption prices and upon such terms as shall be determined by sub- sequent resolution of the City. SECTION 2.4. EXECUTION OF BONDS. The Bonds shall be exe- cuted in the name of the City by the signature of the Mayor of the City and its official seal shall be affixed thereto or imprinted or reproduced thereon and attested by the City Clerk. The signatures of the Mayor of the City and City Clerk on the Bonds may be manual or facsimile signatures. In case any one or more of the officers who -9- Res. No. 69 -86 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 person who at the actual time of the execution of the Bonds shall hold the proper office, although at the date the Bonds shall be actu- ally 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 2.7 hereof, executed manually be the Registrar. Only the Bonds as shall bear thereon such certifi- cate 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. The certificate of authentication 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 Owner thereof is entitled to the benefits of this Resolution. The validation certificate on the back of any Bonds so val- idated shall be signed with the facsimile signatures of the present or any future Mayor of the City and City 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 of the City and City Clerk at any time on or after the date of the Bonds, notwithstanding that he/she may have ceased to be such Mayor of the City or City Clerk at the time when the Bonds shall be actually delivered. SECTION 2.5. NEGOTIABILITY, REGISTRATI(~t A~H) CANC-R~.r~,TI~II. At the option of the registered Owner thereof 'and upon surrender -10- Res. No. 69-86 thereof at the principal corporate trust office of the Registrar with a written instrument of transfer satisfactory to the Registrar duly executed by the registered O~ner or his duly authorized attorney and upon payment by the registered Owner of any charges which the Registrar may make as provided in this Section, the Bonds may be exchanged for other Bonds of the same maturity of any other autho- rized denominations. The Registrar shall keep books for the .registration of the Bonds and for the registration of transfers of the Bonds. The Bonds shall be transferable by the Owner thereof in per'son or by his/her 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 Owner or his/her 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 may deem and treat the person in whose name any Bond shall be registered 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 receiv- ing 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 Owner or upon his/her 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. In all cases in which the privilege of exchanging Bonds or transferring the Bonds is exercised, the City shall execute and the Registrar shall authenticate and deliver the Bonds in accordance with the provisions of this Resolution. All Bonds surrendered in any such exchanges or transfers shall forthwith -11- Res. No. 69 -86 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 8onds, but the City or the Registrar may require the payment of a sum sufficient to pay any tax, fee or other governmental charges required to be paid with respect to such exchange or transfer. Neither the City nor the Registrar shall be required (a) to transfer or exchange Bonds for a period of 15 days next preceding an 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. Ail 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 City, shall thereupon be promptly cancelled. The 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 ce{tificate shall be filed with the City and the other exe- cuted certificate shall be retained by the Registrar. SECTION 2.6. BONDS NUTILATED, 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 and denomination as the Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated Bond, such mutilated Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed Bond, there shall first be furnished to the City and the Registrar 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 -12- Res. No. 69 -86 been called for redemption, instead of issuing a duplicate Bond, the City may pay the same without surrender thereof. The City and the Registrar may charge the Owner 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 2.5 hereof. 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 proportionate benefits and rights as to lien on the source and security for payment from the Utilities Tax proceeds, with all other Bonds issued hereunder. SECTION 2.7. FORM OF BONDS. The text of the Bonds shall be substantially the following tenor, with such omissions, insertions and variations as may be necessary and desirable and authorized or permitted by this Resolution or any subsequent resolution adopted prior to the issuance thereof: (Face of Bond) No. $ UNITED STATES OF AMERICA STATE OF FLORIDA COUNTY OF PALM BEACH CITY OF DELRAY BEACH UTILITIES TAX REVENUE BOND, SERIES 1987 Date of Interest Maturity Original Date Issue CUSIP -13- Res. No. 69-86 Registered Owner= Principal Amount= DOLLARS KNOW ALL MEN BY THESE PRESENTS, that the City of Delray Beach (the "City") in Palm Beach County, Florida, for value received, hereby promises to pay, to the Registered Owner specified above 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 specified above, with interest thereon at the Interest Rate specified ab?ye, payable from the date of authentication on June 1 and December 1 of each year, commencing , until the City's obligation with respect to the payment of such principal amount shall be discharged; pro- vided, however, that interest shall be paid by check or draft made payable to the registered owner and mailed to the address of the reg- istered owner as such name and address shall appear on the registry books of , as Registrar (said and any bank or trust company becoming successor Registrar being herein called the "Registrar") at the close of business on the fifteenth day of the calendar month preceding each interest payment date or the date the principal amount is paid. Payment of both principal of and interest on this Bond may be made in any coin or currency of the United States of America which on the date of payment thereof is legal tender for the payment of public and private debts. This Bond is one of an authorized issue of 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 of financing the cost of the construction and acquisition of certain municipal facilities of the City under the -14- Res. No. 69 -86 authority of and in full compliance with the Constitution and Statutes of the State of Florida, including the Charter of the City, as amended and supplemented, the Florida Constitution, Chapter 166, Florida Statutes and other applicable provisions of law, and resolu- tions duly adopted by the City Council of the City on November 26, 1962, as supplemented, and , 1986 (herein collectively referred to as the 'Resolution") and is subject to all the terms and conditions of the Resolution. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE REVERSE SIDE HEREOF AND SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FOR%~{ ON THE FRONT SIDE HEREOF. It is hereby certified and recited that all acts, condi- tions and things required to exist, to happen, and to be performed, precedent to and in the issuance of this Bond exist, have happened and have been performed in regular and due form and time as required by the Laws and Constitution of the State of Florida and the Charter of the City applicable thereto, and that the issuance of this Bond, and of the issue of Bonds of which this Bond is one, is in full com- pliance with all constitutional or statutory limitations or provisions. -15- Res. No. ...69-86 IN WITNESS WHEREOF, the City of Delray Beach, Palm Beach County, Florida, has caused this Bond to be signed by the Mayor of said City, either manually or with his/her facsimile signature, and the seal of the City of Delray Beach to be affixed hereto or imprinted or reproduced hereon, and attested by its City Clerk, either manually or with his/her facsimile signature, and this Bond to be dated the Date of Original Issue specified above. CITY OF DELRAY 'BEACH (SEAL) PALM BEACH COUNTY, FLORIDA Mayor Attest: City Clerk -16- Res. No. 69 -86 POll# OF CEI~TIFICATE OF AUTltENTICATION Date of Authentication: This Bond is one of the Bonds delivered pursuant to the within mentioned Resolution. , as Registrar B~ Authorized Officer FORM OF VALIDATIO~ CERTIFICJtTE [insert if Bonds are validated] This Bond is one of a series of Bonds which were validated by judgment of the Circuit Court for Palm Beach County, Florida, rendered on the day of , 1987. Mayor City Clerk -17- Res. No. 69 -86 (Back of Bond) [Redemption Provisions ] This Bond and the issue of which it is a part are payable, together with certain outstanding Utilities Tax Revenue Certificates, Series 1962, certain Utilities Tax Revenue Certificates, Series 1967 and certain Utilities Tax Revenue Certificates, Series 1978 and such obligations as may in the future be issued on a parity therewith, solely, as to both principal and interest, from the proceeds of the tax imposed by the City on the purchase of certain utility services, including electricity, metered and bottled gas (natural or manufactured), and local telephone service in said City. The Resolution provides that, to the extent necessary to pay principal of and interest on obligations of which this Bond is one and to carry out the provisions of the Resolution, said tax shall be levied and collected in an amount sufficient to make such payments of principal of and interest and to make all other payments required by the Resolution. This Bond, including interest hereon, is payable solely from the proceeds of said utilities tax and does not constitute an indebtedness of the City within the meaning of any constitutional, statutory or charter provision or limitation. It is expressly agreed by the owner of this Bond that such owner 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 or interest on this Bond or the making of any reserve or other payments provided for in the Resolution. It is further agreed between the City and the owner of this Bond that this Bond and the obligation evidenced thereby shall not constitute a lien upon any property of or in the City but shall constitute a lien only on the revenues hereinabove in this paragraph described. Additional obligations, payable from the proceeds of such utilities tax pari passu with the Bonds of the issue of which this Bond is one, may be issued by the City from time to time upon the -18- Res. No. 69-86 conditions and within the limitations and in the manner provided in the Resolution. This Bond is and has all the qualities and incidents of a negotiable-instrument under the law merchant and the Uniform Commercial Code-Investment Securities Law of the State of Florida, and the original registered owner and each successive registered owner of this Bond shall be conclusively deemed by his acceptance thereof to have agreed that this Bond shall be and have all the qual- ities and incidents of negotiable instruments under the law merchant and the Uniform Commercial Code-Investment Securities Law of the State of Florida. The original registered owner and each successive registered owner shall be conclusively deemed to have agreed and con- sented to the following terms and conditions: (1) The Registrar shall keep books 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 reg- istered owner thereof in person or by his attorney duly autho- rized in writing only upon the books of the City kept by the Registrar and only upon surrender hereof together with a written instrument of transfer satisfactory to the Registrar duly exe- cuted by the registered owner 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. (2) The City, the Paying Agent and the Registrar may deem and treat the person, in whose name any Bond shall be registered 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 -19- Res. No. 69-86 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 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 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 for a period of 15 days next preceding an 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. -20- Res. No. 69 -86 FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name, address and tax identification number of assignee) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within Bond on the books kept for registra- tion thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: In the presence of: NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Bond in every particular, without alteration or enlargement, or any change whatever. -21- Res. No. 69 -86 IRTICLB III ¢OV~S, FUNDS ~ APPLICATIO~ TInt, OF ~ECT~0N 3.1. BONDS NOT TO BE INDEBTED~SS OF THE CIT~. The Bonds shall not be or constitute an indebtedness of the City within the meaning of any constitutional, statutory or other l£mita- tion of indebtedness, but shall be payable solely from the Utilities Tax proceeds. No O~ner or Owners 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 said Bonds or the interest thereon. SECTION 3.2. BGI~IDS (~ PARITY WITH THE (]OTSTA~ING W~I~IXIES TAX REVE~F~/E CERTIFICATES. The Bonds issued pursuant to this Resolution shall be deemed to be additional certificates within the meaning of Section 7 of the 1962 Certificate Resolution, and shall be on a parity and rank equally, as to lien on and source and security for payment from the Utilities Tax proceeds and in all other respects, with the 1962 Certificates, the 1967 Certificates and the 1978 Certificates and any pari passu additional obligations hereafter issued pursuant to and within the terms, limitations and conditions contained in the 1962 Certificate Resolution. SECTION 3.3, BONDS SECURED BY PLEDGE OF UTILITY TAX PROCEEDS. From and after the issuance of any of the Bonds, and con- tinuing until the payment of all Bonds as to principal and interest, the Utilities Tax proceeds shall continue to be pledged for the prompt payment of principal of and interest on said Bonds. The Bonds shall be payable as to principal and interest from the City of Delray Beach Utilities Tax Certificates Principal and Interest Redemption Fund (hereinafter sometimes called the 'Certificate Fund'), created and established by the 1962 Certificate Resolution. Said fund shall be continued and maintained as provided in said 1962 Certificate -22- Res. No. 69 -86 Resolution so long as any of the Bonds herein authorized remain outstanding. SECTXON 3.4. PAY~IENTS INTO ]~BSERVE FUND. Payments into the Reserve Fund created by the 1962 Certificate Resolution will be made on or before the 10th day of the month, commencing on the first month subsequent to the delivery of the Bonds, in an amount equal to one-sixtieth (1/60th) of: (i) the highest future annual principal and interest requirements of all the 1962 Certificates, the 1967 Certificates, the 1978 Certificates and the Bonds herein authorized less (ii) the amount then on deposit in said Reserve Fund for the 1962 Certificates, the 1967 Certificates and the 1978 Certificates and the amount, if any, of the proceeds of the Bonds deposited in said Fund pursuant to Section 3.7 hereof. Such payments into the Reserve Fund shall continue to be made until the amount in said Fund shall equal the highest future annual principal and interest require- ment on all the 1962 Certificates, the 1967 Certificates, the 1978 Certificates and the Bonds herein authorized; provided, however, that such payments shall not be reguired to be made if the City shall deposit in said Fund, pursuant to Section 3.7 hereof, from the pro- ceeds of the Bonds, an amount sufficient to cause the amount in said Fund to equal the highest future annual principal and interest requirement on all the 1962 Certificates, the 1967 Certificates, the 1978 Certificates and the Bonds herein authorized. Whenever a defi- ciency in such payments shall occur or whenever the amount in the Reserve Fund falls below the amount then required to be in said Fund, such deficiency shall be made up from all money in the Utilities Tax Revenue Fund created and established pursuant to the 1962 Certificate Resolution which is not required for payments into the Certificate Fund. SECTION 3.5. TAX~ ~ TOT HE INTERNAL PA~flD~]E CODE OF 1986. 1. In order to maintain the exclusion from Federal -23- Res. No. 69 -86 gross income of interest on the Bonds, and for no other purpose, the City covenants to comply with the Internal Revenue Code of 1986. In furtherance of the covenant contained in the preceding sentence, the City agrees to comply with the Letter of Instructions (the "Letter of Instructions") as to the Internal Revenue Code of 1986, attached to the certificate as to arbitrage, delivered by Mudge Rose Guthrie Alexander & Ferdon on the date of initial issuance and delivery of the Bonds, as such letter may be amended from time to time, as a source of guidance for achieving compliance with the Internal Revenue Code of 1986. 2. The City covenants and agrees with the Owners of the Bonds that the City shall not take any action or omit to take any action, which action or omission, if reasonably expected on the date of initial issuance and delivery of the Bonds, would cause any of the Bonds to be "private activity bonds" or "arbitrage bonds" within the meaning of Sections 141(a) and 148(a), respectively, of the Internal Revenue Code of 1986. 3. Notwithstanding any other provision of the Resolution to the contrary, so long as necessary in order to maintain the exclu- sion from Federal gross income of interest on the Bonds, the cove- nants contained in this Section shall survive the payment of the Bonds and the interest thereon, including any payment or discharge thereof pursuant to Section 3.11 of the Resolution. SECTION 3.6. COVENANTS. All covenants contained in Sections 5, 6 and 7 of the 1962 Certificate Resolution shall apply with like force and effect for the benefit of the Owners of the Bonds herein authorized, which shall in all respects be deemed to carry all of the rights and privileges granted to the holders of the 1962 Certificates, the 1967 Certificates and the 1978 Certificates; provided, however, with respect to the Bonds herein authorized the covenant contained in Section 6(A) of the 1962 Certificate Resolution -24- Res. No. 69 -86 is hereby modified to provide that the City may decrease the Utilities Tax, provided the Utilities Tax proceeds after such decrease shall be sufficient to make all payments required by this Resolution. Such modification shall not be effective so long as any 1962 Certificates and 1967 Certificates remain outstanding an~ unpaid. SECTION 3,7, APPLICATION OF BOND PROCEEDS. A1 1 m one y s received by the City from the sale of the Bonds authorized and issued pursuant to this Resolution (hereinafter referred to as 'Bond Proceeds') shall be applied as follows: A. The accrued interest derived from the sale of the Bonds shall be deposited in the Certificate Fund. B. A sufficient amount of Bond Proceeds may be deposited in the Reserve Fund, which when added to the amount on deposit in the Reserve Fund will cause the total amount on deposit in the Reserve Fund to be equal to the highest future annual principal and interest requirements of all the 1962 Certificates, the 1967 Certificates, the 1978 Certificates and the Bonds herein authorized, as shall be deter- mined by subsequent proceedings of the City. C. The remainder of the Bond Proceeds shall be deposited in the 'Construction Fund' in a bank or trust company in the State of Florida which is eligible under the state laws to receive deposits of state and municipal funds, which Fund is hereby created and estab- lished, and such moneys so deposited will be used to pay for the Improvements. No withdrawals shall be made from the Construction Fund, except for legal, financial and engineering expenses and fees and expenses and fees in connection with the construction of the Improvements and the issuance of the Bonds, without the written approval of the City Manager and only upon receipt of a written requisition executed by an authorized representative of the City, specifying the purpose for which such withdrawal is to be made and -25- Res. No. 69 -86 certifying that such purpose is one of the purposes provided for in this Resolution. If for any reason the moneys in said Construction Fund, or any part thereof, are not necessary for, or are not applied to the purposes provided in this Resolution then such unapplied pro- ceeds shall be deposited, upon certification of the City Manager that such surplus proceeds are not needed for the purposes of the Construction Fund, in the Reserve Fund to the full extent necessary to make the amount then on deposit therein equal to the maximum amount required to be on deposit in the Reserve Fund and the balance, if any, to be deposited in the Certificate Fund. The moneys deposited in the Construction Fund may, pending their use for the purposes provided in this Resolution, be temporar- ily invested in (i) direct obligations of the United States of America, (ii) in obligations fully guaranteed by the United States of America, (iii) in Certificates of Deposit and Repurchase Agreements continuously and fully secured by direct obligations of the United States of America, or insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation, or secured in such manner as provided by the laws of the state of Florida, maturing not later than the dates on which such moneys will be needed for the purpose of the Construction Fund or (iv) such other obligations as are permitted by the applicable laws of the State of Florida. All the earnings from such investments shall remain in and become a part of said Construction Fund and used for the purposes of the Construction Fund. All of the moneys on deposit in the Construction Fund shall be and constitute trust funds for the purposes hereinabove provided, and there is hereby created a lien upon such moneys, until so applied, in favor of the Owners of the Bonds. Notwithstanding the foregoing provisions, moneys on deposit in the Construction Fund shall be used for the payment into the -26- Res. No. 69 -86 Certificate Fund whenever the moneys on deposit in the Certificate Fund and Reserve Fund are insufficient for such purposes, provided, however, that before such moneys may be used for the above purposes, the City Manager shall certify that such moneys are not necessary for or are not to be applied to the cost of the Improvements. SECTION 3.8. ~E~EDIES. Any Owner of Bonds issued under the provisions of this Resolution or any trustee acting for such Owners in the manner hereinafter provided, may, either at law or in equity, by suit, action, mandamus or other proceedings in any court of compe- tent 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 per- formed by the City or by any officer thereof. In the event that default shall be made in the payment of the interest on or the principal of any of the Bonds issued pursuant to this Resolution as the same shall become due, or in the making of the payments into any reserve fund or any other payments required to be made by. 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 this Resolution or shall default in any cove- nant made herein, and in the further event that any such default shall continue for a period of sixty (60) days, any Owner of such Bonds, or any trustee appointed to represent Owners as hereinafter provided, shall be entitled as of right to the appointment of a receiver in an appropriate judicial proceeding in a court of compe- tent jurisdiction, whether or not such Owner or trustee is also seek- ing or shall have sought to enforce any other right or exercise any other remedy in connection with Bonds issued pursuant to this Resolution. -27- Res. No. 69 -86 The receiver so appointed shall forthwith, directly or by his agents and attorneys, collect and receive all Utilities Tax proceeds and comply under the jurisdiction of the court appointing such receiver, with all of the provisions of this Resolution. Whenever all that is due upon Bonds issued pursuant to this Resolution, and interest thereon, and under any covenants of this Resolution for reserve or other funds, and upon any other obligations and interest thereon having a charge, lien or encumbrance upon the Utilities Tax proceeds, shall have been paid and made good, and all defaults under the provisions of this Resolution shall have been cured and made good, possession of any Utilities Tax proceeds shall be surrendered to the City upon the entry of an order of the court to that effect. Upon any subsequent default, any Owner of Bonds issued pursuant to this Resolution, or any trustee appointed for Owners 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 here- inabove conferred upon him be under the direction and supervision 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 and decrees as such court may deem necessary or appropriate for the exercise by the receiver of any function not specifically set forth herein. The Owner or Owners of Bonds in an aggregate principal amount of not less than twenty-five per centum (25%) of Bonds issued under this Resolution then outstanding may by a duly exercised cer- tificate in writing appoint a trustee for Owners of Bonds issued pursuant to this Resolution. with authority to represent such owners in any legal proceedings for the enforcement and protection of the -28- Res. No. 69-86 rights of such Owners. Such certificate shall be executed by such Owners or their duly authorized attorneys or representatives, and shall be filed in the office of the City Clerk. Any remedy set forth in this Section 3.8 shall be subject to the consent of the issuer of the Bond Insurance Policy, and the issuer of the Bond Insurance Policy shall have the right, acting alone, to exercise said remedies so long as it has not defaulted in its obligations under the Bond Insurance Policy. SE~TION 3.9. REFUNDING. The Bonds herein authorized may be refunded in the manner provided in paragraph number i of Section 7 of the 1962 Certificate Resolution and subject to the restrictions therein contained. SECTION 3.10,, ADDITIONAL PARITY CERTIFICATES. Additional Parity Certificates may be issued in accordance with paragraph number 2 of Section 7 of said 1962 Certificate Resolution. SECTION ~,11. DISCHARGE AND SATISFACTION OF BONDS. The covenants, liens and pledges entered into, created or imposed pursu- ant to 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 Certificate Fund or such other accounts as the City may hereafter create and establish by resolution moneys sufficient at the time of such deposit to pay the Bonds, all interest thereon and the redemption premium, if any, as the same become due on said Bonds on or prior to the redemption date or matu- rity date thereof; or (c) by depositing in the Certificate Fund or such other accounts as the City may hereafter create and establish by resolution moneys which, when invested in Defeasance Obligations, will provide moneys which shall be sufficient to pay the Bonds, all interest -29- Res. No. 69-86 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. Upon such payment or deposit in the amount and manner pro- vided in this Resolution, the Bonds shall no longer be deemed to be outstanding for the purposes of this Resolution and all liability of the City with respect to the Bonds shall cease, determine and be com- pletely discharged and extinguished, and the Owners thereof shall be entitled for payment solely out of the moneys or securities so deposited. Notwithstanding the foregoing, all references to the dis- charge and satisfaction of Bonds shall include the discharge and sat- isfaction of any series of Bonds, any portion of a series of Bonds, any maturity or maturities of a series of Bonds, any portion of a maturity of a series of Bonds or any combination thereof. ARTICLE IV MISCELLANEOUS PROVISI(~S SE.C~..ION 4.1.,. MODIFICATION OR AMEND~[EN?. No material modi- fication or amendment of this Resolution or of any resolution amenda- tory thereof or supplemental thereto, may be made without the consent in writing of the Owners of seventy-five percent (75%) or more in principal amount of the Bonds then outstanding; provided, however, that no modification or amendment shall permit a change in the matu- rity of such Bonds or a reduction in the rate of interest thereon, or affect the unconditional promise of the City to pay the interest of and principal on the Bonds, as the same mature or become due, from the Utilities Tax proceeds, or reduce such percentage of Owners of such Bonds required above for such modification or amendments, without the consent of the Owners of all the Bonds. -30- Res. No. 69 -86 The 1962 Certificate Resolution may be amended with the consent of the holders (or, (i) in the case of the Bonds, the Owners, and (ii) in the case of any future Parity Certificates, the owners thereof) of seventy-five percent (75%) in principal amount of the 1962 Certificates, the 1967 Certificates, the 1978 Certificates, the Bonds herein authorized and any future Parity Certificates as pro- vided in Section 8 of said 1962 Certificate Resolution. For purpose of this Section 4.1, to the extent the Bonds authorized herein are insured by a Bond Insurance Policy and such Bonds are then rated in as high a rating category 'as the rating cate- gory in which the Bonds were rated at the. time of initial issuance and delivery thereof, by either Standard & Poor's Corporation or Moody's Investors Service, then the consent of the issuer of the Bond Insurance Policy shall constitute the consent of the Owners of the Bonds. ~..ECTION 4.2, SALE OF BONDS. The Bonds shall be issued and sold at one time or from time to time and at such price or prices consistent with the provisions of the Charter of the City, Chapter 166, Florida Statutes and the requirements of this Resolution as the City shall hereafter determine by resolution. SECTION 4.3.... VALIDATIO~ AUTHORIZED. The City Attorney is hereby authorized to 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 authorized to sign any pleadings in such proceedings for and on behalf of the City. ~ECTION 4.4. SEVERABILITY. If any section, paragraph, clause or provision of this Resolution or the application of any of the pledged revenue to the payment of principal of and interest on the Bonds shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, -31- Res. No. 69 -86 paragraph, clause or provision or of the application of such pledged revenue to the payment of such principal and interest, shal! not affect any of the remaining provisions of this Resolution, or the application of the remainder of such pledged revenue to the payment of such principal and interest. ~E(7~ION 4.5~ EFFECTIVE DATE. Ail resolutions and orders, or parts thereof, in conflict herewith are, to the extent of such conflict, hereby repealed, and this Resolution shall take effect upon its passage in the manner provided by law. Passed and adopted in Special session on this 30th day i of December, 1986. Mayo r Attest: ~Clerk -32- Res. No. 69 -86 The foregoing resolution and the form of Bond therein contained are hereby approved by me as to form, language and execu- tion this 30th day of December, 1986. C~ty Attorney STATE OF FLORIDA ) COUNTY OF PALM BEACH ) I, ~.TZABETHARNAU , do hereby certify that I am the duly quali- fied City Clerk of the City of Delray Beach, Palm Beach County, Florida. I further certify that the above and foregoing constitutes a true and correct copy of the minutes of a meeting of the City Council of said city held on December 30, 1986, and of a resolution adopted at said meeting, as said minutes and resolution are offi- cially of record in my possession. IN WITNESS WHEREOF, I have hereunto subscribed my official signature and impressed hereon the official seal of the City of Delray Beach this 30th day of December, 1986. ( SEAL ) -33- Res. No. 69 -86