Res 84-84 RESOLUTION NO. 84-84
A RESOLUTION AMENDING AND SUPPLEMENTING "A RESOLUTION
AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $28,000,000
WATER AND SEWER REVENUE BONDS OF THE CITY OF DELRAY
BEACH, FLORIDA, FOR THE PURPOSE OF REFUNDING CERTAIN
OUTSTANDING OBLIGATIONS; TO FINANCE THE COST OF
CONSTRUCTION OF ADDITIONS, EXTENSIONS AND IMPROVEMENTS
TO THE CITY'S COMBINED PUBLIC UTILITY; AND PROVIDING
FOR THE TERMS OF TH]~ WATER AND SEWER REVENUE BONDS,
AND THE RIGHTS, REMEDIES AND SECURITY OF THE HOLDERS
OF THE WATER AND SEWER REVENUE BONDS, AS AMENDED ON
JUNE 26, 1984."
WHEREAS, the City of Delray Beach, Florida did on June 12, 1984 adopt
Resolution No. 45-84 authorizing the issuance of its 1984 water and sewer revenue
bonds; and,
WHEREAS, Resolution No. 45-84 was amended by Resolution No. 50-84 on
June 26, 1984; and,
WHEREAS, it is now deemed necessary and desirable to further amend and
supplement Resolution No. 45-84 and to incorporate all previous amendments relating to
Resolution No. 45-84, including Resolution No. 50-84, int. o this one resolution.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA THAT RESOLUTION NO. 45-84,
AS AMENDED, IS HEREBY AMENDED AND SUPPLEMENTED TO NOW READ IN FULL AS
FOLLOWS:
ARTICLE I
DEFINITIONS, FINDINGS AND STATUTORY AUTHORITY
SECTION 1. DEFINITIONS. That, as used in the Resolution, the following
terms shall have the following meanings unless the text otherwise expressly requires:
A. "Accreted Value" shall mean as of any date of calculation the amount
owed on a Capital Appreciation Bond prior to maturity or at maturity taking into
consideration the initial offering price plus accrued interest compounded semiannually on
October 1 and April i of each year, with interest commencing the date of delivery of
the Capital Appreciation Bonds, as shall be determined by subsequent proceedings of
the City Council.
B. "Act" shall mean Chapter 166, Florida Statutes, as
amended and supplemented and other appl.icable 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 Resolution.
D. "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.
E. "Bonds" shall mean the $28,000,000 Water and Sewer
Revenue Bonds authorized to be issued pursuant to this Resolution,
together with any ~ additional bonds hereafter issued in the
manner hereinafter provided.
F. "1961 Bonds" shall mean the outstanding Water and
Sewer Revenue Bonds of the City of Delray Beach, dated December 1,
1961, originally issued in the amount of $500,000.
G. "1962 Bonds" shall mean the outstanding Water and
Sewer Revenue Bonds,' Series 1962, of the C£ty of Delray Beach, dated
December 1, 1962, originally issued in the amount of $1,500,000.
H. "1963 Bonds" shall mean the outstanding Water and
Sewer Revenue Refunding Bonds, dated December 1, 1963, of the City of
Delray Beach, originally issued in the amount of $1,550,000.
I. "1965 Bonds" shall mean ~he outstanding Water and
Sewer Revenue Bonds, Series 1965, of the City of Delray Beach, dated
June 1, 1965, originally issued in the amount of $2,000,000.
J. "1972 Bonds" shall mean the outstanding Water and
Sewer Revenue Bonds, Series 1972, of the City of Delray Beach, dated
June 1, 1972, originally issued in the amount of $5,000,000.
K. "1979 Bonds" shall mean the outstanding Water and
Sewer Revenue Bonds, Series 1979, of the City of Delray Beach, dated
June 1, 1979, originally issued in the amount of $4,000,000.
-2- Res. No. 84-84
L. "1983 Bonds" shall mean the outstanding Water and
Sewer Bonds, Series 1983, of the City of Delray Beach, dated May 1,
1983, originally issued in the amount of $4,000,000.
M. "Capital Appreciation Bonds" shall mean the aggregate
principal amount of the Bonds that bear interest payable at maturity
or upon redemption prior to maturity in the amounts determined by
reference to the Accreted Value, all as shall be de~ermined by subse-
quent proceedings of the City Council.
N. "City" shall mean the City of Delray Beach, Florida.
O. "City Council" shall mean the governing body of the
City.
P. "Combined Public Utility" means the combined Water
System and Sewer System of the City.
Q. "Consulting Engineers" shall mean the firm of Russell
& Axon of Daytona Beach, Florida, or such other qualified engineer or
engineering firm at the time retained by the City to perform the acts
and carry out the duties provided for such Consulting Engineers in
this Resolution.
R. "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 trustee, to be
hereafter designated by subsequent proceedings of the City, in con-
nection with the refunding of the Refunded Bonds.
S. "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 C~nbined Public Utility, or any
part thereof, by any additions, betterments, extensions, improvements
thereto, or property of any kind or nature, real or personal, tangi-
ble or intangible, hereafter constructed or acquired.
T. "Fiscal Year" shall mean that period commencing on
October 1 and continuing to and including the next succeeding
-3- Res. No. 84-84
September 30, or such other annual period as may be prescribed by
law. '
U. "Independent Insurance Consultant" shall mean a person
or firm who is not an employee or officer of the City who is
appointed by the City and is qualified to survey risks and to recom-
men~ insurance coverage for organizations engaged in like opera~ions,
who has a favorable reputation for skill and experience in such sur-
veys and recommendations, and who may be a broker or agent with whom
the City transacts business.
V. "Maximum Annual Debt Service Requirement" shall mean,
at. any time, the maximum ~mount 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
Resolution. The amount of Term Bonds maturing in any Fiscal Year
which are subject to mandatory redemption prior to their stated date
of maturity by operation of the Bond Redemption Account shall not be
included in determining the Maximum Annual Debt Service Requirement
in their final Fiscal Year of maturity.
W. "Net Revenues" shall mean the Gross Revenues remaining
after deduction of Operating Expenses.
X. "Operating Expenses" shall mean the current expenses
of operation, maintenance and ordinary current repairs of the
Combined Public Utility and its Facilities and shall include, without
limiting the generality of the foregoing, insurance premiums, admin-
istrative expenses of the City relating solely to the Combined Public
Utility, and such other reasonable current expenses as shall be in
accordance with generally accepted accounting principals. "Operating
Expenses" shall not include any allowance for depreciation or any
extraordinary items arising from the early extinguishment of debt.
Y. "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
-4- Res. No. 84-84
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 4.R 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, or
redemption prior to maturity; and (v) Bonds held by the City.
Z. "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.
AA. "Permitted Investments" shall mean (i) to the extent
permitted by law U.S. Obligations and (ii) all other investments per-
mitted under the laws of Florida.
BB. "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 ~Q rata share of the costs of
the Project which are attributable to the increased demand such addi-
tional connections create upon the Combined Public Utility. 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).
CC. "Project" shall mean the cost of the construction and
acquisition of additions, extensions and improvements to the Combined
Public Utility of the City, consisting of, but not being limited to,
the construction of new water wells and an associated raw water main,
the design and construction of an additional clarifier and aerator
basin, sludge handling facilities and administration building and the
expansion and improvement to the facility operated by the South
Central Regional Wastewater Treatment and Disposal Board.
-5- Res. No. 84-84
DD. 'Refunded Bonds" shall mean the outstanding water and
sewer revenue bonds of the City which includes the 1961 Bonds, the
1962 Bonds, the 1963 Bonds, the 1965 Bonds, the 1972 Bonds, the 1979
Bonds and the 1983 Bonds.
EE. 'Registrar" shall mean the bank or trust company and
any successor bank or trust company appointed by the City to act as
Registrar hereunder.
FF. 'Resolution" shall mean this Water and Sewer Revenue
Bond Resolution as from time to time amended and supplemented in
accordance with the terms hereof.
GG. 'Revenues" or "Gross Revenues' shall mean all rates,
fees, charges, or other income, received by the City or any 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 by the
Resolution, which by the terms and provisions of the 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) s~ecial
assessments and (4) capital contributions.
HH. "Serial Bonds" shall mean the Bonds of an issue other
than Term Bonds which shall be stated to mature annually.
II. 'Sewer System" shall mean the complete sanitary sewer
collection and transmission facility and the Ocean Outfall System of
the City and the Cityts one-half (1/2) undivided interest in the
treatment and disposal system operated by the South Central Regional
Wastewater Treatment and Disposal Board (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
-6- Res. No. 84-84
City, except that the Sewer System shall not include the Ocean
Outfall System after the date on which (1) the 1961 Bonds, the 1962
Bonds, the 1963 Bonds, the 1965 Bonds and the' 1972 Bonds Shall have
been paid or provision for payment has been arranged and (2) the City
shall have received payments from the Board fo~ 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.
JJ. "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.
KK. "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 ~r~ rata share of the
costs of any project other than the Project which are attributable to
the increased demand such additional connections created upon the
Combined Public Utility. Unpledged Impact Charges, however, shall
not include the installation charges imposed ~y 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).
LL. "U.S. Obligations" shall mean the direct obligations
of, or obligations the principal of and interest on which are uncon-
ditionally guaranteed by, the United States of America, and, if
determined by subsequent proceedings of the City, certificates which
evidence ownership of the right to the payment of the principal of,
or interest on, such obligations.
MM. "Variable Rate Bonds" shall mean Bonds issued with a
variable, adjustable, convertible or other similar rate which is not
fixed in percentage for the entire term thereof at the date of
issue.
-7- Res. No. 84-84
NN. "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 improvements,
extensions, and additions thereto hereafter constructed or acquired,
together with all lands or interest therein, plants, buildings,
machinery, franchises, pipes, fixtures, equil~nent 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 per-
sons shall include firms and corporations.
SECTION 2. FINDINGS. It is hereby ascertained, determined
and declared:
A. That the City of Delray Beach, Florida, now owns,
operates and maintains a Combined Public Utility consisting of a
municipal waterw6rks plant and system for the supply and distribution
of water and a sanitary sewer system for the collection and transmis-
sion of sewage and waste matters, within and Without the City and it
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.
B. That it is deemed necessary and advisable and for the
health and welfare of the inhabitants and citizens of the City and to
meet the increased demand for new connections to the Combined Public
Utility, to construct and acquire additions, extensions and improve-
ments to the Combined Public Utility (the "Project"), at an estimated
cost of $14,000,000 to be financed from a portion of the proceeds
derived from the sale of the Bonds.
C. 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.
-8- Res. No. 84-84
D. That for the payment and refunding of the Refunded
Bonds, the City shall deposit a 9ortion 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 a details resolution
adopted by the City Council and the Escrow Deposit Agreement.
E. 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 mainte-
nance of the Combined Public Utility, and together with the Pledged
Impact Charges, the principal of and interest on the Bonds, as the
same become due and payable, and all sinking fund, reserve and other
payments provided for in the Resolution.
F. That the principal of and interest on the Bonds and
all of the reserve, sinking fund and other payments provided for in
the Resolution will be paid from the Net Regenues derived from the
operation of the Combined Public Utility and the Pledged Impact
Charges, all as provided herein; 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 the Resolution,
or to make any of the reserve, sinking fund or other payments pro-
vided for in the Resolution, and the Bonds issued pursuant to the
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 from the Net Revenues derived from the operation of
the Combined Public Utility and the Pledged Impact Charges, all in
the manner as provided herein.
G. The proceeds derived from the sale of the Bonds shall
be used to finance the cost of paying and refunding the Refunded
-9- Res. No. 84-84
Bonds; to finance the cost of the Project all substantially in
accordance with the plans and specifications prepared or to be pre-
pared by the Consulting Engineers, now on file or to be filed with
the City. Such cost shall be deemed to include, with respect to the
Refunded Bonds, legal expenses, fees for financial services,~ the
costs associated with the purchase and subsequent management of the
U.S. Obligations, expenses in connection with the performance of the
duties of the trustee under the provisions of the Escrow Deposit
Agreement and such other costs and expenses necessary and incidental
to the refunding of the Refunded Bonds and with respect to the
Project, the cost of the construction or acquisition of the addi-
tions, extensions and improvements.to the Combined Public Utility,
including the acquisition of any lands or interest therein and of any
fixtures or equipment or properties deemed necessary or convenient
therefor, capitalization of all or part of the debt service reserve,
engineering and legal expenses, interest on that portion of the Bonds
used to finance the cost of such construction and acquisition prior
to, during and for one (1) year after the completion of the Project,
fees for financial services, expenses for estimates of costs and of
revenues, expenses for plans, specifications and surveys, administra-
tive expenses and such other expenses as may be necessary or inciden-
tal to the financing authorized by this Resolution, and the construc-
tion or acquisition of the additions, extensions and improvements to
the Combined Public Utility authorized by this Resolution, and the
placing of same in operation, and for the payment of any temporary
obligations issued for the purposes provided in this Resolution.
SECTION 3. AUTHORIT~ OF ~HIS ~ION. This Resolution is
adopted pursuant to the provisions of Chapter 166, Florida Statutes,
as amended and supplemented, and other applicable provisions of law.
SECTION 4. 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
-10- Res. No. 84-84
Resolution shall be deemed to be and shall constitute a contract
between the City and such Bondholders, and the covenants and agree-
ments 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 pref-
erence, priority, or distinction of any of the Bonds over any other
thereof except as expressly provided therein and herein.
-11- Res. No. 84-84
~'T~ CLE 'fl[
~UTHOR?ZATION, TEI~IS, EXERTION ~
RE~ISTI~TION OF BC~S
SECTION 1. A~THORIZATION OF B(~H)S. Subject and pursuant to
the provisions of the Resolution, Bonds of the City of Delray Beach,
Florida, are hereby authorized to be issued in accordance with the
terms of this Resolution.
SECTION 2. DESC~IPTI(H~ O~ B(~DS. There is hereby authorized
an original issue of Bonds to be issued pursuant to the Resolution in
the aggregate principal amount of not exceeding TWENTY EIGHT MILLION
DOLLARS ($28,000,000) for the purposes provided in Article I,
Section 2.G. of this Resolution. The Bonds shall be issued in regis-
tered form, shall be in the denomination of $5,000 each, or any inte-
gral multiple thereof, provided, however, if such Bonds are Capital
Appreciation Bonds then in $5,000 maturity amounts or in $5,000
multiples thereof and shall be numbered separately fr~n one upward.
The Bonds shall be designated City of Delray Beach, Florida, Water
and Sewer Revenue Bonds, Series 1984, shall bear interest .at not
exceeding the maximum rate or rates ~ermitt~d 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 registry books of the City maintained by the Registrar at the
close of business on the fifteenth day of the calendar month preced-
ing each interest payment date or on the date the principal sun of
any Bond is paid. The Bonds authenticated prior to the first inter-
est payment date shall be dated and bear interest from the date
determined by subsequent proceedings of the City. Bonds authenti-
cated on or subsequent to the first interest payment date shall be
dated as of the date of their registration and shall bear interest
from the date of the original issuance of the Bonds, or the next
preceding interest payment date on which such interest has been paid,
or if registered during the 15-day period preceding an interest
-12- Res. No. 84-84
payment date from such interest payment date if interest is then
paid, as the case may be; ~, 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 registry 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 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, shall
mature within forty (40) years from their date of issuance, shall be
dated, principal payable at the principal corporate trust office of
the Paying Agent located within or without the State of Florida,
shall mature in such years and amounts, all as shall be determined by
subsequent proceedings of the City Council.
If the City receives an opinion of counsel of recognized
standing in the field of law relating .to municipal bonds to the
effect that the issuance of any of the Bonds in coupon form will not
adversely affect the exemption from Federal 'income taxation of the
interest on any of the Bonds and the City adopts a supplemental reso-
lution authorizing coupon Bonds, the Registrar shall mail notice to
the registered owners of the Bonds of the availability of interchang-
ing registered Bonds for coupon Bonds. Registered Bonds may then be
exchanged for an equal aggregate principal amount of coupon Bonds of
the same series and maturity of any authorized denomination and
thereafter, coupon Bonds may be exchanged for an equal aggregate
principal in the manner provided in such supplemental resolution.
SECTION 3. REDF/~PTION PROVISI(H~S. T~e Bonds may be subject
to redemption prior to maturity at such times, at such redemption
-13- Res. No. 84-84
prices and upon such terms as shall be determined by subsequent
proceedings of the City Council.
SECTION 4. EXECUTION OF BONDS. The Bonds shall be executed
in the name of the City by the signature of the Mayor and its offi-
cial seal shall be affixed thereto or im~rinte~ 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 deliv-
ered, 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 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 7 '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 obliga-
tory 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 con-
clusive evidence that the Bond so authenticated has been duly authen-
ticated and delivered under this Resolution and that the Holder
thereof is entitled to the benefits of this Resolution.
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
-14- Res. No. 84-84
and Clerk at any time on or after the date of the Bonds,
notwithstanding that he may have ceased to be such Mayor or Clerk at
the time when said Bonds shall be actually delivered.
SECTION 5. NEGOTIABILITY, P~G~I(H~ AND ~~u~A~ON. At
the option of the registered Holder thereof and upon surrender
thereof at the principal corporate trust office of the Registrar with
a written instrument of transfer satisfactory to the Registrar duly
executed by the registere~ Holder or his duly authorize~ 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 and maturity of any other authorized
denom ina tio ns.
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 utx>n 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 author'ized 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 Holder 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. Ail
such payments so made to any such Holder or upon his order shall be
valid and effectual to satisfy and discharge the liability u~on such
Bond to the extent of the sun or suns so paid, and neither the City,
the Paying Agent nor the Registrar shall be affecte~ by any notice to
the contrary.
-15- Res. No. 84-84
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 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 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 appro-
priate denomination.
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
City, shall thereupon be prcmptly cancelled. Bonds so cancelled may
at any time be destroyed by the Registrar, who shall execute a cer-
tificate of destruction in duplicate by the signature of one of its
authorized officers describing the Bonds so destroyed, and one exe-
cuted certificate shall be filed with the City and the other executed
certificate shall be retained by the Registrar.
SECTION 6. BONDS ~TILATED, DESTROY, ~ OR LO~T. In
case any Bond shall become mutilated, destroyed, stolen or lost, the
-16- Res. No. 84-84
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 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 pledged hereunder, with all other Bonds issued hereunder.
SECTION 7. l~)~ OF BG~H)S. The text of the Bonds shall be of
substantially the following tenor, with such omissions, insertions
and variations as may be necessary and desirable:
-17- Res. No. 84-84
(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.
No. R $5,000
UNITED STATES OF AMERICA
STATE OF FLORIDA
PALM BEACH COUNTY
CITY OF DELRAY BEACH
BOND, SERIES
Date of
Int ere s t Mat ur i ty Ori gi nal
Rate Date Issue CUSIP
KN~ ALL MEN BY THESE PRESENTS, that the City of Delray'
Beach, Palm Beach County, Florida, for value received, hereby prom-
ises to pay, from the Net Revenues (as defined in the Resolution
hereinafter referred to) derived from the operation of its Cc~bined
Public Utility (consisting of the combined Water and Sewer Systems)
and Pledged Impact Charges, hereinafter mentioned, to
or registered assigns on the date specified above, upon the presenta-
tion and surrender hereof at the principal corporate trust office of
. , as paying agent (said and any bank
or trust company becoming successor paying agent being herein called
the "Paying Agent"), the principal sum of DOLLARS
($ ), with interest thereon, from the date hereof, at the
-18- Res. No. 84-84
rate of ~er centum ( %) ~er annum, payable , 19__
and semi-annually thereafter on an~
until the City's obligation with respect to the payment of such prin-
cipal sum shall be discharged; provided, however, that interest shall
be paid by check or draft made payable to the registered owner and
mailed to the address of the registered owner as such name and
address shall appear on the registry books of the City initially
maintained by . . , as Registr. ar' (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 on the
date the principal sum of this bon~ is paid. If this bond is authen-
ticated prior to the first interest payment date it shall be dated
and bear interest from the dated date appearing on this bond. If
this bond is authenticated on or subsequent to the first interest
payment date it shall be dated as of the date of its registration and
shall bear interest from the date of the original issuance of the
Bonds, or the next preceding interest payment date on which such
interest has been paid, or if registered during the 15-day period
preceding an interest payment date frs such interest payment date if
interest is then paid as the case may be; ~~l~, 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 regis-
try 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.
~Insert applicable Redemption Provisions]
This bond is one of an authorized issue of Bonds in the
aggregate principal amount of not exceeding $ of like date,
-19- Res. No. 84-84
tenor, and effect, except as to number, date of maturity and interest
rate, issued for the purpose of paying the cost of refunding the
Refunded Bonds (as defined in the Resolution hereinafter referred
to), to provide funds to finance the construction and acquisition of
additions, extensions and improvements to the Combined Public Utility
under the authority of and in full compliance with t_he Constitution
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 resolution duly adopted by the
City Council on .... , 1984, as amended (herein 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 derived from the operation of the City's
Combined Public Utility and the Pledged Impact Charges, as defined in
the Resolution, 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.
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,
all in the manner provided in the Resolution.
-20- Res. No. 84-84
The City has covenanted in the Resolution that in each
Fiscal Year it will fix, establish and maintain such rates and col-
lect such fees, rentals or other charges for the services and facili-
ties 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 together with the Pledged Impact Charges received
in such Fiscal Year, shall be adequate to pay at least one hundred
and twenty-five percent (125%) of the Annual Debt Service Requirement
(as defined in the Resolution) for the Bonds and any pari passu addi-
tional Bonds hereafter issued, provided that Net Revenues received in
such Fiscal Year shall at all times be adequate to pay at least one
hundred ten percent (110%) of the Annual Debt Service Requirenent for
the Bonds and any pari passu additional Bonds hereafter issued; and
that such Net Revenues together with the Pledged Impact Charges 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 regis-
tered 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 attorney. Upon the
transfer of any such Bond, the City shall issue in the name of the
transferee a new Bond or Bonds.
-21- Res. No. 84-84
(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 receiv-
ing payment of, or on account of, the principal of and interest on
such bond as the same becomes due, and for all other purposes. Ail
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 autho-
rized 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 series
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 accordance 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 gov-
ernmental 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 next preceding any selec-
tion 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
-22- Res. No. 84-84
redeemed or defeased, the City shall execute and the Registrar shall
authenticate 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 appro-
priate denomination.
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 applicable
thereto, and that the issuance of this bond, and of the issue of
Bonds of which this bond is one, is in full compliance with all con-
stitutional or statutory limitations or provisions.
-23- Res. No. 84-84
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 day of , .
CITY OF DELRAY BEACH, FLORIDA
By.
Mayor
(SEAL)
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
By.
Authorized Officer
-24- Res. No. 84-84
(FORM OF VALIDATION CERTIFICATE)
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 , 198_.
Mayor
City Clerk
-25- Res. No. 84-84
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 registra-
tion thereof, with full power of substitution in the premises.
Dated:
In the presence of:
-26- Res. No. 84-84
ARTICLE III
COVENANTS, FUNDS AND APPLICATION THEREOF
SECTION 1. 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 or other
limitation of indebtedness, but shall be payable solely from the Net
Revenues derived from the operation of the Combined Public Utility,
and the Pledged Impact Charges, as herein provided. 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 2. BONDS SECU~.n BY PLEDGE OF NET REVENUES AND
PLEDGED IMPACT CHARGES. The payment of the principal of and interest
on all of the 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 and a first
lien on and pledge of the Pledged Impact Charges. The Net Revenues
derived from the operation of the Combined Public Utility and the
Pledged Impact Charges in an amount sufficient to pay the principal
of and interest on the Bonds herein authorized and to make the pay-
ments into the reserve and sinking fund and all other payments pro-
vided for in the Resolution, are hereby irrevocably pledged to the
payment of the principal of and interest on the Bonds authorized
herein, and other payments provided for herein, as the same become
due and payable.
SECTION 3. APPLICATION OF BOND PttOCEEDS. Ail moneys
received by the City from the sale of the Bonds originally authorized
and issued pursuant to the Resolution shall be disbursed as follows:
-27- Res. No. 84-84
A. The accrued interest derived from the sale of the
Bonds shall be deposited in the Interest Account, hereinafter created
and established, 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 an amount which
together with any other moneys lawfully available therefor, including
moneys and investments transferred from the funds and accounts cre-
ated and established by the proceedings authorizing the issuance of
the Refunded Bonds (such .amounts to be determined by subsequent pro-
ceedings of the City) shall be deposited in escrow deposit trust
funds to be held by a bank or trust company, as trustee, under the
terms and provisions of the Escrow Deposit Agreement and such pro-
ceeds shall be held irrevocably in trust in the escrow deposit trust
funds under the terms and provisions of the Escrow Deposit Agreement;
such moneys shall be invested at the time of deposit in U.S.
Obligations, the principal and interest of which shall be sufficient
to pay the principal of and interest on the Refunded Bonds as the
same mature and become due and payable or are redeemed prior to matu-
rity, as provided in the Escrow Deposit Agreement.
C. From the proceeds of the Bonds there may be deposited
in the Debt Service Reserve Account such amount as shall be deter-
mined by subsequent proceedings of the City Council.
D. The balan=e of the proceeds derived from the sale of
the Bonds shall be deposited into a "Construction Fund" which is
hereby created and established. No withdrawals shall be made from
the Construction Fund (except from the Funded Interest Account hereby
created and established in the Construction Fund for the payment of
interest on that portion of the Bonds allocable to the Project prior
to, during and for one (1) year after the completion of the Project
in such amounts as the City Council shall hereafter determine by
subsequent proceedings, legal, financial and engineering expenses and
fees, and .expenses and fees in connection with the issuance of the
-28- Res. No. 84-84
Bonds) without the written approval of the Consulting Engineer and
only upon receipt of a written requisition executed by a duly autho-
rized official of the City, specifying the purpose for which such
withdrawal is to be made and certifying that such purpose is one of
the purposes provided for in the Resolution. Amounts on deposit in
the Funded Interest Account shall be transferred to the Interest
Account at such times and in such amounts as shall be determined by
the Financial Director of the City. 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 the Resolution, then
such unapplied proceeds, upon certification of the Consulting
Engineer that such surplus proceeds are not needed for the purposes
of the Construction Fund, shall be deposited in the following manner
and order of priority:
First to the Debt Service Reserve Account in the Sinking
Fund, hereinafter created and established, to the full extent neces-
sary to make the amount then on deposit therein equal to Maximum
Annual Debt Service Requirement, and
Second, the balance, if any, to the Renewal, Replacement
and Improvement Fund, hereinafter created and established.
The moneys deposited in the Construction Fund may, pending
their use for the purposes provided in the ResolutiOn, be temporarily
invested in Permitted Investments maturing not later than the dates
on which such moneys will be needed for the purposes of the
Construction Fund. All the earnings from such investments shall
remain in and become a part of said Construction Fund and be used for
the purposes of the Construction Fund.
The proceeds of the sale of the Bonds shall be and consti-
tute trust funds for the purposes hereinabove provided and there is
hereby created a lien upon such moneys, until so applied, in favor of
the Holders of said Bonds.
-29- Res. No. 84-84
SECTION 4. COVENANTS OF THE CITY. So 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, herein cre-
ated and established, 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 provisions of
Section 4.R. of this Article III have been complied with, the City
covenants with the Holders of any and all of the Bonds issued pursu-
ant to the Resolution as follows:
A. ARBITRAGE COVENANT. The City agrees that it will not
direct the investment of the proceeds of the Bonds or any other funds
in a manner which would cause the Bonds to be "arbitrage bonds" as
defined in Section 103(c) of the Internal Revenue Code of 1954, as
amended, or the regulations thereunder, proposed or in effect as of
the date of issuance of the Bonds.
B. RATES. The City in each Fiscal Year, will fix, estab-
lish 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 together
with the Pledged Impact Charges received in such Fiscal Year, shall
be adequate to pay at least one hundred and twenty-five percent
(125%) of the Annual Debt Service Requirement for the Bonds and any
pari passu additional Bonds hereafter issued, provided that Net
Revenues receive in such Fiscal Year shall at all times be adequate
to pay at least one hundred ten percent (110%) of the Annual Debt
Service Requirement for the Bonds and any pari passu additional Bonds
hereafter issued; and that such Net Revenues together with the
Pledged Impact Charges shall be sufficient to make all of the
payments required by the terms of the Resolution and that such rates,
-30- Res. No. 84-84
fees, rentals or other charges shall not be so reduced so as to be
insufficient for such purposes.
C. COMBINED PUBLIC UTILITY REVENUE FUND. The Revenues
derived from the operation of the Combined Public Utility shall be
deposited in a fund in a bank or trust company in the State of
Florida which is eligible under state laws to receive deposits of
city funds, which fund is hereby created, established and designated
as the "Combined Public Utility Revenue Fund" (hereinafter referred
to as the "Revenue Fund"). Said Revenue Fund shall constitute a
trust fund for the purposes provided in the Resolution, and shall be
kept separate and distinct from all other funds of the City and used
only for the purposes and in the manner provided for in Section 4.D.
of this Article III.
D. CREATION AND ESTABLISHMENT OF VARIOUS FUNDS AND
ACCOUNTS AND THE DISPOSITION OF REVENUES. There are hereby cre-
ated and established the following funds and accounts:
The "Water and Sewer System Operation and Maintenance Fund"
(hereinafter referred to as the "Operation and Maintenance Fund").
The "Water and Sewer System Sinking Fund" (hereinafter
referred to as the "Sinking Fund"). There are also hereby created
and established four (4) separate accounts in the Sinking Fund to be
known as the "Interest Account", the "Principal Account", the "Bond
Redemption Account" and the "Debt Service Reserve Account".
The "Water and Sewer System Renewal, Replacement and
Improvement Fund" (hereinafter referred to as the "Renewal,
Replacement and Improvement Fund").
The "Water and Sewer System Pledged Impact Charge Fund"
(hereinafter referred to as "Pledged Impact Charge Fund").
Revenue s:
The Revenues at any time on deposit in the Revenue Fund
shall be disposed of only in the following manner:
-31- Res. No. 84-84
1. Revenues shall first be used, to the full extent
necessary, for deposit into the Operation and Maintenance Fund in an
amount' equal to the Operating Expenses to be paid during the current
calendar month.
2. Revenues shall next be used, to the full extent neces-
sary, for deposit into the Interest Account in the Sinking Fund, 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 semi-annual 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 on deposit therein is sufficient 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, Revenues shall be deposited at such other or
additional times and amounts as necessary to pay the interest becom-
ing 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.. Moneys on deposit in the
Funded Interest Account shall be transferred to the Interest Account
in accordance with the determinations of the Financial Director of
the City. Such moneys will be available to pay interest on a portion
of the Bonds allocable to the Project prior to, during and for one
(1) year after completion of the Project. Such monthly deposits
required for interest shall be reduced in an amount equal to the
moneys on deposit in the Funded Interest Account and available to pay
interest on the next succeeding interest payment date.
The. earnings and investment incc~ne 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
-32- Res. No. 84-84
be deposited in the Interest Account as required by the terms of the
Resolution, shall be credited against the amount of 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 semi-annual interest payment
date will be less or more than six (6) months, then such monthly pay-
ments shall be increased or decreased accordingly in sufficient
amounts to provide the required semi-annual interest amount maturing
on the next interest payment date.
3. Revenues shall next be used, to the full extent neces-
sary,
(a) for deposit in the Principal Account in the
Sinking Fund, on the fifteenth (15th) day of each
month in each year, one twelfth (1/12th) of the prin-
cipal amount or 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 Council. In the event the
period 'to elapse between the dat'e 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 princi-
pal amount maturing on the next principal payment
date.
(b) for deposit into the Bond Redemption
Account in the Sinking Fund, on the fifteenth (15th)
day of each month in each year, one twelfth (1/12th)
of the amount required for the payment of the Term
Bonds, as shall hereafter be determined by subsequent
proceedings of the City Council, until the amount on
-33- Res. No. 84-84
deposit therein is equal to the amount required to be
paid on the next installment ~ayment date.
The moneys in the Bond Redemption Account shall
be used 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 (if such Capital Appreciation Bond
is a Term Bond) at prices not greater than the
Accreted Value as of the date of purchase. If, by the
application of moneys in the Bond Redemption Account,
the City shall purchase or call for redemption in any
year Term Bonds in excess of the installment require-
ment for such year, such excess of Term Bonds so pur-
chased 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, be mandatorily obligated
to use such moneys for the redemption prior to matu-
rity of Term Bonds in such manner and at such times as
shall hereafter be determined by subsequent proceed-
ings of the City Council.
No distinction or preference shall exist in the
use of moneys on deposit in the Revenue Fund for pay-
ment 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. Revenues shall next be used, to the full extent
necessary, for deposits into the Debt Service Reserve Account in the
Sinking Fund, on the fifteenth (15th) day of each month in each year,
-34- Res. No. 84-84
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 Maximum Annual Debt Service Requirement; pro-
vided, however, that if Bond proceeds are deposited in the Debt
Service Reserve Account in an amount less than the Maximum Annual
Debt Service Requirement, the City shall (except as hereafter pro-
vided in the following paragraph) cause Revenues to be deposited in
an amount equal to one-sixtieth (1/60th) of the difference between
the amount on deposit in the Debt Service Reserve Account and the
Maximum Annual Debt Service 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 Maximum Annual Debt Service Requirement.
In the event the City shall hereafter issue Variable Rate
Bonds, the maximum amount required to be deposited in the Interest
Account for the payment of interest on such Variable Rate Bonds and/
or for the purpose'of determining the amount required to be on
deposit in the Debt Service Reserve Account, shall be calculated as
of. the first day of each Fiscal Year and shall be based upon one hun-
dred ten per centum (110%) of the greater of (i) the average daily
interest rate on such Variable Rate Bonds during the preceding Fiscal
Year, or (ii) the actual rate of interest applicable to such Variable
Rate Bonds on the date of calculati°n.
Notwithstanding the foregoing provisions, in lieu of the
deposits of Revenues into the Debt Service Reserve Account, the City
may cause to be deposited into the Debt Service Reserve Account a
surety bond, unconditional direct pay letter of credit issued by a
bank or a municipal bond insurance policy issued by a reputable and
recognized municipal bond insurer for the benefit of the Bondholders
in an amount equal to the difference between the Maximum Annual Debt
-35- Res. No. 84-84
Service Requirement and the sums then on deposit in the Debt Service
Reserve Account, which surety bond, letter or credit, or insurance
policy shall be payable (upon the giving of notice as required
thereunder) on any interest or principal 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 by this Resolution.
Such municipal bond insurer or bank in the case of a letter of credit
shall be one whose municipal bond insurance policies or unconditional
direct pay letters of credit 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
either Standard & Poor's Corporation or Moody's Investors Service, or
their successors. If a disbursement is made from a surety bond,
letter of credit or an insurance policy provided pursuant to this
paragraph, the City shall be obligated to reinstate the maximum
limits of such a surety bond, letter of credit or insurance policy
immediately following such disbursement or to replace such surety
bond, letter of credit or insurance policy by depositing into the
Debt Service Reserve Account from the Revenues and Pledged Impact
Charges, as herein provided, funds in the maximum amount originally
payable under such policy or letter of credit, or a combination of
such alternatives.
Whenever, there is on deposit in the Debt Service Reserve
Account an amount in excess of the Maximum Annual Debt Service
Requirement, 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 Fund a surety bond, letter of credit or an
insurance policy as provided herein, the principal amount thereof
shall be reduced by the amount of such excess and (b) by reducing the
amount of moneys and/or securities in the Debt Service Reserve
Account in an amount equal to such excess. The moneys and/or
-36- Res. No. 84-84
securities 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
and expenses incurred from the investment and reinvestment of moneys
on deposit in the Debt Service Reserve Account 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 Redeaption Account when the moneys
in the Revenue Fund are insufficient therefor.
In the event that any moneys shall be withdrawn from the
Debt Service Reserve Account for ~ayments into the Interest Account,
the Principal Account and the Bond Redemption Account such withdraw-
als shall be subsequently restored from the first 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 moneys on deposit in the Pledged Impact Charge Fund as
hereinafter provided.
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. Revenues shall next be used, to the full extent neces-
sary, for deposits into the Renewal, Replacement and Improvement Fund
on the fifteenth (15th) day of each month, beginning with the fif-
teenth (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 purchase~ 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. No further deposits need be made if the
-37- Res. No. 84-84
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 extensions,
improvements or additions to, or the replacement or renewal of capi-
tal 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 are insuf-
ficient therefor.
6. Revenues shall next be used for the payment of any sub-
ordinated 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 Revenues remaining in
the Revenue Fund shill 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 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, provided, further, however,
that the 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 and the Debt Service Reserve Account and the Pledged
Impact Charge Fund are insufficient therefore.
Pledged Impact Charges:
-38- Res. No. 84-84
There shall be deposited in the Pledged Impact Charge Fund
all Pledged Impact Charges 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.
(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 in the Interest Account and used to pay
interest b~coming due on the Bonds; provided, however,
that none of such Pledged Impact Charges shall ever be
used for the purposes provided in this subparagraph
8(d) unless all payments required under subparagraphs
8(a) through 8(c), including any deficiencies for
prior payments are made in full to date of such use.
8. The Operation and Maintenance Fund, 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 and
the Construction Fund and all other special funds and accounts
created and established by the Resolution shall constitute trust
-39- Res. No. 84-84
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 and accounts as herein
provided. The designation and establishment of funds and accounts in
and by the Resolution shall not be construed to require the estab-
lishment of any completely independent funds and accounts but rather
is intended solely to constitute an allocation of certain revenues
and assets of the Combined Public Utility for certain purposes and to
establish such certain priorities for application of certain revenues
and assets as herein provided.
Moneys on deposit in the Revenue Fund, Operation and
Maintenance Fund and the Renewal, Replacement and Improvement Fund
may be invested in Permitted Investments maturing not later than the
dates on which such moneys will be needed for the purposes of such
fund or account.
Moneys on deposit in the Debt Service Reserve Account,
Interest Account, Principal Account, Bond Redemption Account and
Pledged Impact Charge Fund may be invested in U.S. Obligations or
any other Permitted Investments (provided that Permitted Investments
other than U.S. Obligations shall be fully collateralized with U.S.
Obligations) maturing not later than such date or dates as the City
shall determine.
Ail income and earnings received from the investment and
reinvestment of moneys on deposit in the Operation and Maintenance
Fund and 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.
-40- Res. No. 84-84
All 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 in the Sinking
Fund shall be transferred to the Interest Account and be credited'
against any moneys required to be deposited int'o the Interest Account
as provided in the Resolution.
Ail 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 ResolUtion. Ail income and earnings received fr~n the invest-
ment and reinvestment of moneys on deposit in the Pledged Impact
Charge Fund and shall be retained therein and used in the manner pro-
vided for in this Resolution.
E. SALE OF THE COMBINED PUBLIC UTILITY. Except as oth-
erwise provided herein, the Combined Public Utility may be sold,
leased or otherwise disposed of only as a whole or substantially as a
whole, and only if the net proceeds to be realized, together with
other moneys lawfully available for such purpose, if any, shall be
sufficient to retire all of the Bonds issued pursuant to the
Resolution and to pay all interest thereon to their respective dates
of maturity or earlier redemption dates in the manner provided in
Section 4.R. of this Resolution. The proceeds from such sale, lease
or other disposition of the Combined Public Utility and such other
available moneys shall be applied in the manner provided in
Section 4.R. of this Resolution and shall be used solely for the pur-
poses of paying the principal of the Bonds, the interest thereon and
redemption premiums, if any, as the same shall become due-on the
Bonds on or prior to the redemption date or the maturity date thereof
as shall be hereafter determined by subsequent proceedings of the
City Council.
Except as above provided, prior to any sale, lease or other
disposition of the Combined Public Utility or any portion thereof, if
-41- Res. No. 84-84
the amount to be received therefor is not in excess of one per centum
(1%) of the original cost before depreciation of the fixed assets to
be sold, leased or otherwi'se disposed, the general manager or other
duly authorized officer in charge of the Combined Public Utility
shall make a finding in writing determining that such property com-
prising a pa.rt of such Combined Public Utility is no longer necessary
or useful or profitable in the operation thereof, and such proceeds
shall be deposited in the Renewal, Replacement and Improv~nent Fund
to the extent necessary to make the amount then on deposit therein
equal to the maximum amount required to be on deposit therein and the
balance of such moneys not needed for said Renewal, Replacement and
Improvement Fund shall be deposited in the Bond Redemption Account
and used in the manner provided therein.
If the amount to be received from such sale, lease or other
disposition of said property shall be in excess of one per centum
(1%) of the original cost before depreciation of the fixed assets,
the general manager or other duly authorized officer in charge of
such Combined Public Utility and the Consulting Engineer, shall first
each make a finding in writing determining that such property com-
prising a part of such Combined Public Utility is no longer necessary
or useful or profitable in the operation-thereof, and the-City
Council shall, by resolution duly adopted, approve and concur in the
findings of the general manager or other duly authorized officer and
the Consulting Engineer, and authorize such sale, lease or other dis-
position of said property and such proceeds shall be deposited into
the Renewal, Replacement and Improvement Fund to the extent necessary
to make the amount then on deposit therein equal to the maximum
amount required to be on deposit therein, and the balance of such
moneys not needed for said deposit into the Renewal, Replacement and
Improvement Fund shall be deposited in the Bond Redemption Account
and used in the manner provided therein.
-42- Res. No. 84-84
Notwithstanding the foregoing provisions of this Section E,
the City shall have the authority to sell for fair and reasonable
consideration any land comprising a part of the Combined Public
Utility which is no longer necessary or useful in the operation of
the Combined Public Utility and the proceeds derived from the sale of
such land shall be deposited in the Renewal, Replacement and
Improvement Fund and applied to the purposes provided therein.
F. ISSUANCE OF OTHER OBLIGATIONS PAYABLE OUT OF NET
REVENUES AND PLEDGED IMPACT CHARGES. The City will not issue any
other obligations, except upon the conditions and in the manner pro-
vided herein, payable from the Net Revenues and the Pledged Impact
Charges, nor voluntarily create or cause to be created any debt,
lien, pledge, assignment, encumbrance or any other charge having pri-
ority or being on a parity with the lien of the Bonds issued pursuant
to the Resolution and the interest thereon upon any of the Net
Revenues and the Pledged Impact Charges. Any obligations issued by
the City other than the Bonds authorized by the Resolution and any
pari passu additional Bonds issued under the terms, restrictions and
conditions containe~ in the Resolution, shall contain an express
statement that such obligations are junior, inferior and subordinate
in all respects to the Bonds issued pursuant to the Resolution as to
lien on and source and security for payment from the Net Revenues and
the Pledged Impact Charges and in all other respects.
G. ISSUANCE OF PARI PASSU ADDITIONAL BONDS. N o p a r i
passu additional Bonds, as in this subsection defined, payable pari
passu with Bonds issued pursuant to the Resolution out of Net
Revenues and Pledged Impact Charges shall be issued after the issu-
ance of any Bonds pursuant to the Resolution except upon the condi-
tions and in the manner herein provided.
No such pari passu additional Bonds shall be issued unless
the following conditions are complied with:
-43- Res. No. 84-84
~e va=~o ~oce ~e~
~Sit~O~ { t~e ~esO~U~ _
o~ ~o~d$' ~ t~e ~et ~e~e~e~~~~~e
~°~t~ of said
t~e issuance ~f~l either
Debt 5e~ce ~[]~ a~8/°: Ce~ o~ ~on of ~e C°~['.~ ~on~S
'a~ag:a~hs" _
ance o~._. ~L~
. ~eq~f:~e~t, . _- OutSta~d~ ~ t~e~ OUtSet' - -o be
issue~, F _,,~ Debt ,_,~ ~-~
the fnteceS
shall be the greater of (i) the average daily interest rate
on such Variable Rate Bonds during the preceding Fiscal
Year or (ii) the actual rate of interest applicable to such
Variable Rate Bonds on the date of issuance of such
Variable Rate Bonds; and provided, further, that if pari
passu additional Variable Rate Bonds are to be issued the
interest rate thereon shall be calculated in accordance
with the 30 year Revenue Bond Index as published by The
Bond Buyer as of the last week of the month preceding the
date of issuance of such Variable Rate Bonds, or if that
index is no longer published, the interest rate as of the
last week of such month as published in an index that is
deemed to be substantially equivalent.
(3) In the event any pari passu additional Bonds are
issued for the purpose of refunding any Bonds then
Outstanding, the condition of (2) above shall not apply,
provided that the issuance of such pari passu additional
Bonds shall result in a reduction or shall not increase the
annual debt sergice payments over the 'life of the Bonds so
r ef unde d.
For the purpose of this Section 4.G., the phrase
"twelve (12) consecutive months of the eighteen (18) months
immediately preceding the issuance of said pari passu addi-
tional Bonds" shall be sometimes referred to as "twelve
(12) consecutive months".
The adjustment of Net Revenues which are permitted by
the foregoing subsection (2) hereof shall be certified to
by the Consulting Engineer and shall be computed as
follows:
(a) If the City, prior to the issuance of the
proposed pari passu additional Bonds, shall have
increased the rates, fees, rentals or other charges
-45- Res. No. 84-84
for the services of the Combined Public Utility, the
Net Revenues for the twelve (12) consecutive months
immediately preceding the issuance of the pari passu
additional Bonds shall be adjusted to include the Net
Revenues which would have been derived from said
Combined Public Utility in such twelve (12) consecu-
tive months as if such increased rates, fees, rentals
or other charges for the services of the Combined
Public Utility had been in effect during all of such
twelve (12) consecutive months.
(b) If the City shall have acquired or has con-
tracted to acquire any privately or publicly owned
existing water system, sewer system or water and sewer
system, the cost of which shall be paid from all or
part of the proceeds of the issuance of the proposed
pari passu additional Bonds, then the Net Revenues
derived from the Combined Public Utility during the
twelve (12) consecutive months immediately preceding
the issuance of said pari passa additional Bonds,
shall be increased by adding to the Net Revenues for
such twelve (12) consecutive months seventy-five per-
cent (75%) of the Net Revenues which would have been
derived from the existing water system, sewer system
or water and sewer system as if such existing water
system, sewer system or water and sewer system had
been operated by the City as a part of the Combined
Public Utility during such twelve (12) consecutive
months..
(c) If the City shall have entered into a con-
tract, which contract shall be for a duration of not
less than the final maturity of the pari passu
additional Bonds authorized for the purposes of such
-46- Res. No. 84-84
financing from the date of the issuance of the
proposed pari passu additional Bonds, with any public
body whereby the City shall have agreed to furnish
services for the collection, treatment and disposal of
sewage or other waste matter and/or agreed to furnish
services in connection with any water system, then the
Net Revenues of the Combined Public Utility during the
twelve (12) consecutive months immediately preceding
the issuance of the pari passu additional Bonds shall
be increased by the least amount which the public body
shall guarantee to pay in any one year for the fur-
nishing of the services by the City, after deducting
from such payment the estimated proportion of operat-
ing expenses and repair, renewal and replacement cost
attributable in such year to such services.
(d) If there is an estimated increase in
Revenues to be received by the City as a result of
additions, extensions or improvements to the Combined
Public Utility during the period' of three (3) years
from delivery of the pari passu additional Bonds, then
the Net Revenues derived from the Combined Public
Utility during the twelve (12) consecutive months
immediately preceding the issuance of said pari passu
additional Bonds shall be increased by the average
annual additional Revenues calculated for such three
year period.
(e) If the City shall impose and collect
Pledged Impact Charges, then the Net Revenues derived
from the Combined Public Utility during the twelve
(12) consecutive months immediately preceding the
issuance of said pari passu additional Bonds shall be
-47- Res. No. 84-84
increased by such Pledged Impact Charges collected
during such twelve (12) consecutive month period.
The term "pari passu additional Bonds" as used in this sub-
section shall be deemed to mean additional obligations evidenced by
Bonds issued under the provisions and within the limitations of this
subsection payable from the Net Revenues of the Combined Public
Utility and the Pledged Impact Charges pari passu with Bonds origi-
nally authorized and issued pursuant to the Resolution. Such Bonds
shall be deemed to have been issued pursuant to the Pledged
Resolution the same as the Bonds originally authorized and issued
pursuant to the Resolution and all of the covenants and other provi-
sions of the Resolution (except as to details of such Bonds evidenc-
ing such pari passu additional obligations inconsistent therewith),
shall be for the equal benefit, protection and security of the
Holders of any Bonds originally authorized and issued pursuant to the
Resolution and the holders of any Bonds evidencing pari passu addi-
tional obligations subsequently issued within the limitations of and
in compliance with this subsection. Ail of such Bonds, regardless of
the time or times of {heir issuance shall rank equally with respect
to their lien on the Net Revenues of the Combined Public Utility and
the Pledged Impact Charges, and their sources and security for pay-
ment therefrom without preference of any Bonds, over any other.
The term "pari passu additional Bonds" as used in this sub-
section shall not be deemed to include bonds, notes, certificates or
other obligations subsequently issued under the terms of the
Resolution, the lien of which on the Net Revenues of the Combined
Public Utility and the Pledged Impact Charges is subject to the prior
and superior lien on the Net Revenues and the Pledged Impact Charges
of Bonds issued pursuant to the Resolution, as provided in Section
4.F. of this Article III, and the City shall not issue any
obligations whatsoever payable fr~n the Net Revenues of the Combined
Public Utility and the Pledged Impact Charges which rank equally as
-48- Res. No. 84-84
to lien on and source and security for their payment from such Net
Revenues and Pledged Impact Charges, with Bonds issued pursuant to
the ResolutiOn except in the manner and uhder the conditions provided
in this subsection.
In the event that the total amount of the Bonds herein
authorized to be issued are not issued simultaneously but from time
to time, such Bonds which are subsequently issued from time to time
shall not be subject to the restrictions, conditions and limitations
as to the issuance of pari passu additional Bonds as provided in this
Section 4G of the Resolution, provided, that such Bonds which are
subsequently issued shall be issued within six (6) months from the
date the Bonds originally authorized hereunder are issued.
If at any time the City shall enter into an agreement or
contract for an ownership interest in any public or privately owned
water and/or sewer system or for the reservation of capacity therein
whereby the City has agreed as part of the cost thereof to pay part
of th~ debt service on the obligations of such public or privately
owned water and/or sewer system issued in connection therewith, such
payments to be made by' the City shall be junior, inferior and subor-
dinate in all respects to the Bonds issued hereunder and to any other
obligations hereafter issued by the City under the provisions of
Section 4.F. hereof.
H. INSURANCE. The City will carry such insurance as is
ordinarily carried by private or public corporations owning and oper-
ating utilities similar to the Combined Public Utility with a reputa-
ble insurance carrier or carriers, including public and product
liability insurance in such ~nounts as the City shall determine to be
sufficient and such other insurance against loss or damage by fire,
explosion (including underground explosion), hurricane, tornado or
other hazards and risks, and said property loss or damage insurance
shall at all times be in an amount or amounts equal to the fair
appraisal value of the buildings, properties, furniture, fixtures and
-49- Res. No. 84-84
equipment of the Combined Public Utility, or such other amount or
amounts as the Consulting Engineer shall approve as sufficient.
The City may establish certain minimum levels of insurance
for which the City may self-insure. Such minimum levels of insurance
shall be in amounts as recommended by the Independent Insurance
Cons ul rant.
I. BOOKS AND RECORDS. The City will keep books and
records of the Combined Public Utility, which shall be separate and
apart from all other books, records and accounts of the City, in
which complete and correct entries shall be made of all transactions
relating to the Combined Public Utility, in accordance with generally
accepted accounting principles for goverr~ental units, and any Holder
or Holders of Bonds or their agents issued pursuant to the
Resolution, shall have the right at reasonable times and under rea-
sonable conditions to inspect all records, accounts and data of the
City relating to the operation of the Combined Public Utility.
The City shall prcmptly be required to obtain an audit by a
qualified and independent fi~m of certified public accountants of the
books, records and ac6ounts of the Combined. Public Utility for the
preceding Fiscal Year which shall be completed within six (6) months
after the close of each Fiscal Year, and the financial statement pre-
pared by such certified public accountants shall be filed with the
City, which such financial statement shall cover in reasonable detail
the operation of the Combined Public Utility, the funds and fund bal-
ances and the City shall make available upon request a reasonable
summary thereof, to any Holder or Holders of the Bonds issued pursu-
ant to the Resolution.
J. OPERATING BUDGET. The City shall annually, prior to
the start of each Fiscal Year, prepare and adopt by proper proceed-
ings of its governing body a detailed budget of the estimated
expenditures for operation and maintenance of the Combined Public
Utility and the estimated Revenues of the Combined Public Utility
-50- Res. No. 84-84
during the succeeding Fiscal Year. No expenditures for the operation
and maintenance of the Combined Public Utility shall be made in any
Fiscal Year in excess of the amounts provided therefor in such budget
without a written finding and recommendation by the general manager
of the Combined Public Utility or other duly authorized officer in
charge thereof, which finding and recommendation shall state in
detail the purpose of and necessity for such increased expenditures
for the operation and maintenance of the Combined Public Utility, and
no such increased expenditures shall be made until the governing body
of said City shall have approved such finding and recommendation by a
resolution duly adopted. The City shall mail copies of such annual
budget and all resolutions authorizing increased ~xpenditures for
operation and maintenance to the Holder or Holders of Bonds who shall
file his address with the City and request in writing that copies of
all such budgets and resolutions be furnished him or them, and shall
make available such budgets and all resolutions authorizing increased
expenditures for operation and maintenance of the Combined Public
Utility at all reasonable times to any Holder or Holders of Bonds
issued pursuant to th~ Resolution.
K. MAINTENANCE OF THE COMBINED PUBLIC UTILITY. The
City will maintain said Combined Public Utility in good condition and
continuously operate the same in an efficient manner and at a reason-
able cost as a City revenue producing enterprise.
The City shall also at the end of every second Fiscal Year,
cause the Combined Public Utility to be inspected by the Consulting
Engineer, who shall make a written report of such inspection and of
the condition of the Combined Public Utility of the City and file
such annual report with the City, and the City shall mail upon
request, and make available generally, the report of said Consulting
Engineer, or a reasonable summary thereof, to any Holder or Holders
of Bonds issued pursuant to the Resolution.
-51- Res. No. 84-84
L. NO FREE SERVICE. The City will not render or cause to
be rendered any free services of any nature by its Combined Public
Utility or any part thereof, nor will any preferential rates be
established for users of the same class, and in the event the City,
or any department, agency or instrumentality, officer or employee
thereof, shall avail itself of the Facilities or services provided by
said Combined Public Utility or any part thereof, the same rates,
fees or charges applicable to other customers receiving like services
under similar circumstances shall be charged the City and any such
department, agency, instrumentality, officer or employee, provided,
however, that this subsection shall not affect any rights of person,
firm or corporation under pre-existi~g agre~nents or contracts. Such
charges shall be paid as they accrue, and the City shall transfer
from its general funds sufficient moneys to pay such charges. The
revenues so received shall be deened to be Revenues derived from the
operation of the Combined Public Utility, and shall be deposited and
accounted for in the same manner as other Revenues.
M. REMEDIES. Any Holder of Bonds issued under the provi-
sions of the Resolutioh 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 the Resolution,
and may enforce and compel the performance of all duties required by
the 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 pursuant
to the Resolution as the same shall become due, or in the making of
the payments into any reserve or sinking fund or any other payments
-52- Res. No. 84-84
required to be made by the 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 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 hereinaf-
ter 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 the 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 and maintain and operate the Combined Public Utility
in the manner provided in the Resolution and comply under the juris-
diction of the court appointing such receiver, with all of the provi-
sions of the Resolution.
Whenever all that is due upon Bonds issued pursuant to the
Resolution, and interest thereon, and under any covenants of the
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, shall have been paid and made good, and all
defaults under the provisions of the Resolution shall have been cured
and made good, possession of the Combined Public Utility shall be
-53- Res. No. 84-84
surrendered to the City upon the entry of an order of the court to
that effect. Upon any subsequent ~efault, any Hol~er of Bonds issued
pursuant to'the 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 ~ers here-
inabove conferred upon him be under the direction and supervision of
the court making such appointment, shall at all t/mes be subject to
the orders and decrees of such court and may be r~moved 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.
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 the Resolution.. Such receiver shall have no power
to sell, assign, mortgage or otherwise dis~o'se 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 mainte-
nance of the C~bined Public UtLlity for the sole purpose of the pro-
tection of both the City and the Bondholders.
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 Resolution then Outstanding may by a duly executed certifi-
cate in writing appoint a trustee for Holders of Bonds issued pursu-
ant to the Resolution with authority to represent such Bon~olders in
any legal proceedings for the enforcement and protection of the
rights of such Bondholders. Such certificate shall be executed by
-54- Res. No. 84-84
such Bondholders or their duly authorized attorneys or
representatives, and shall be filed in the office of the City Clerk.
N. ENFORCEMENT OF COLLECTIONS. The City will diligently
enforce and collect all fees, rentals or other charges for the ser-
vices and Facilities of the Combined Public Utility, and take all
steps, actions and proceedings for the enforcement and collection of
such fees, rentals or other charges which shall beccme delinquent to
the full extent permitted or authorized by the laws of the State of
Florida.
The City will, to the full extent permitted by law, under
reasonable rules and regulations shut off and discontinue the supply-
ing of the services and Facilities of the Combined Public Utility for
the nonpayment of fees, rentals or other charges for said water and
sewer services, and will not restore said water and sewer services
until all delinquent charges, together with interest and reasonable
penalties, have been paid in full. Where the user of the Sewer
System is also a customer of the Water System, the City shall furnish
to such a customer a single bill containing the charges due for the
use of the services and Facilities of the Sewer System and Water
System and the City will, to the full extent permitted by law, dis-
continue furnishing water service to such user in the event of the
non-payment of charges imposed for the services of the Sewer System.
O. CONNECTIONS WITH THE SE~ER SYSTEM. The City will, to
the full extent permitted by law, require all lands, buildings and
structures within the area of the Combined Public Utility which can
use the Facilities and services of the Sewer System of the Combined
Public Utility, to connect with and use the Facilities and services
of such Sewer System, and to cease all other means and methods for
the collection, purification, treatment and disposal of sewage and
waste matter.
P. NO COMPETING FACILITIES. The City will, to the full
extent permitted by law, not grant any franchise, license or permit,
-55- Res. No. 84-84
for the construction or operation of any water and sewer facilities
which will be competitive with the services and Facilities of the
water and/or Sewer system; provided, however, that this subsection
shall not affect any vested rights of any persons, firms or corpora-
tions now owning or operating water and sewer facilities.
Q. CONSULTING ENGINEER. The City will retain a
Consulting Engineer, on an biannual basis to inspect the Combined
Public Utility, to make a report concerning the same, and will fur-
ther retain the Consulting Engineer as may be necessary in order to
perform the duties provided in the Resolution for the Consulting
Engineer.
R. DISCHARGE AND SATISFACTION OF BONDS. The covenants,
liens and pledges entered into, created or imposed pursuant to the
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,
Principal 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 shall be sufficient at the time of such
deposit to pay the Bonds, all appurtenant interest
coupons, if any, 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
(c) by depositing in the Interest Account,
Principal 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
-56- Res. No. 84-84
create and establish by resolution, moneys which
together with other moneys l~fully available therefor
'when invested in U.S. Obligations or in time ~e~osits
in bank or trust companies fully secured by U.S. obli-
gations, will provide moneys which shall be sufficient
to pay the Bonds, all appurtenant interest coupons, if
any, and the redemption premium, if any, as the s~e
shall become due on said Bonds on or prior to the
redemption date or maturity date thereof.
(d) Notwithstanding the foregoing all refer-
ences 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.
For the purposes of determining the amount of interest on
Variable Rate Bonds whether discharged and satisfied under the provi-
sions of subsections (a), (b) and (c) above, the amount required for
the interest thereon shall be calculated at the maxim~ rate permit-
ted 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 pro-
vided in this Section 4.P. of Article III, the Bonds shall no longer
be deemed to be Outstanding for the purposes of the Resolution and
all liability of the City with respect to the Bonds shall cease, ter-
minate and be completely discharged and extinguished, and the Holders
thereof shall be entitled for payment solely out of the moneys or
securities so deposited.
S. VALUATION. The value of Permitted Investments on
deposit in the funds and accounts created and established under this
Resolution shall be the lower of par, or if purchased at other than
-57- Res. No. 84-84
par, amortized value. Amortized value, when used with respect to
securities purchased at a premium above or a discount below par,
sh~ll 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 secu-
rities after such purchase and by multiplying the amount so calcu-
lated by the nunber 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 price.
-58- Res. No. 84-84
ARTICLE IV
~IlS~EOUS PROVISIONS
SECTION 1. ~IODIFICATION OR A~IEND~NT. Except as otherwise
provided in the second paragraph hereof, no material modification or
amendment of the 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 amend-
ment shall ~ermit a change in the maturity of such Bonds or a reduc-
tion 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 ~ay 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, or reduce the ~ercentage of Holders of Bonds required
above for such modification or amen~nents, without the consent of the
Holders of all the Bonds.
This Resolution may be amended, changed, modified and
altered without the consent of the Holders 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 Holder of Bonds and (iii) to provide for the
issuance of Bonds in coupon form if, in the opinion of a nationally
recognized bond counsel, such issuance will not affect the exemption
from federal income taxation of interest on the Bonds.
SECTION 2. SEVERABILITY OF INVALID PROVISIONS. If any one
or more of the covenants, agreements or provisions of the 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
-59- Res. No. 84-84
and void and shall be deemed separate from the re~aining covenants,
agreements or provisions, and shall in no way affect t~e validity of
any of ~he o~her provisions of the Resolution or of the Bonds or cou-
pons issued hereunder.
SECTION 3. VALI~)ATION A~H~Z~. That Herbert W.A. Thiele,
as attorney for the City or his successor, 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 val-
idation of the Bonds, and the Mayor and City Clerk are hereby autho-
rized to sign any pleadings in such proceedings for and on behalf of
the City Council of the City of Delray Beach.
SECTION 4. SA~.E 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 Resolution as the City Council shall hereafter
determine by subsequent proceedings.
SECTION 5. REPEALER. That all resolutions or riders or
parts thereof in conflict herewith are to the extent of such conflict
hereby re~ealed.
SECTION 6. EFFECTIVE DATE. This Resolution shall take
effect upon its passage in the manner provided by law.
PASSED AND ADOPTED in special session on this 10th day of
October, 1984.
Attest: M A Y O~R
CitWClerk '
-60- Res. No. 84-84