Loading...
Res 65-78 RESOLUTION NO. 65-78 A RESOLUTION AUTHORIZING THE ISSUANCE OF $4,500,000 UTILITIES TAX REVENUE CERTIFICATES, SERIES 1978, OF THE CITY OF DELRAY BEACH, FLORIDA, TO FINANCE PART OF THE COST OF THE ACQUISITION AND CONSTRUCTION OF PUBLIC WORKS FACILITIES, ACQUISITION AND IMPROVE- MENTS TO GOLF COURSE FACILITIES, ACQUISITION OF PROPERTY FOR MUNICIPAL PURPOSES AND CONSTRUCTION OF ADDITIONS, IMPROVEMENTS AND EXTENSIONS TO THE MUNICIPALLY OWNED WATER AND SANITARY SEWER SYSTEM AND TOREFUND CERTAIN OUTSTANDING OBLIGATIONS; AND PROVIDING FOR THE TERMS OF SAID UTILITIES TAX REVE- NUE CERTIFICATES, SERIES 1978, AND THE RIGHTS AND SECURITY OF THE HOLDERS THEREOF. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DLERAY BEACH, PALM BEACH COUNTY, FLORIDA, AS FOLLOWS: ARTICLE I STATUTORY AUTHORITY; FINDINGS AND DEFINITIONS SECTION 1.1. AUTHORITY OF THIS RESOLUTION. This resolution is adopted pursuant to the provisions of the Charter of the City, as amended and supplemented, and other applicable provisions of law. SECTION 1.2. FINDINGS. It is hereby ascertained, determined and declared: A. That the City hereby authorizes (i) the acquisition and construc- tion of certain public works facilities, including, but not limited to, the acquisition of land, site improvements and the acquisition and construction of a garage and warehouse to maintain and store materials, supplies and City equipment; (ii) the acquisition of land of the Delray Beach Country Club and improvements thereto and to provide golf course facilities and other recrea- tional facilities, including, but not limited to, necessary and incidental equipment for the purposes thereof; (iii) the acquisition of property for municipal purposes including, but not limited to garage, storage and main- tenance facilities; and (iv) the construction of additions, extensions and improvements to the municipally owned water and sanitary sewer system (the ~"Improvements"). Such Improvements to be financed at an estimated cost of $8,520,000 of which $4,000,000 shall be financed from part of the proceeds derived from the sale of the Certificates issued pursuant to this resolution and the balance thereof from other moneys of the City lawfully available therefor, all in accordance with plans and specifications filed or to be filed with and approved or to be approved by the City Council. B. That it is necessary and essential to construct and acquire the Improvements in order to preserve and promote the safety and welfare of the citizens of the City. C. That the City has heretofore issued and has now outstanding $640,000 principal amount of Utilities Tax Revenue Certificates, Series 1962, and $480,000 principal amount of Utilities Tax Revenue Certificates, Series 1967. D. That pursuant to proceedings heretofore adopted the City has been levying a tax on the purchase of certain utilities services, the proceeds of which tax are not pledged or encumbered in whole or in part in any manner or for any purpose other than the payment of the Certificates and for the pay- ment of certain Utilities Tax Revenue Certificates, Series 1962, originally issued in the amount of $1,100,000 and now outstanding in the amount of $640,000 and certain Utilities Tax Revenue Certificates, Series 1967, origin- ally issued in the amount of $570,000 and now outstanding in the amount of $480,000. E. That the payment and refunding of the outstanding Utilities Tax ~ Revenue Certificates, Series 1967 (the "1967 Certificates") is hereby deter- ~ mined to be in the best interest of the City and the payment and refunding of the 1967 Certificates is hereby authorized. For the purposes of this resolution the Certificates authorized here- in are determined to be on a parity with the 1962 Certificates and the 1967 Certificates. If the City determines at the time of the sale of the Certifi- cates that the terms of said sale are such that the payment and refunding of the 1967 Certificates is in the best interest of the City, then a sufficient amount of Certificates shall be sold to provide sufficient proceeds to pay and refund the 1967 Certificates in accordance with the terms and provisions of this resolution. Upon the deposit in a special escrow deposit trust fund of Certificate proceeds sufficient to pay principal of, interest and redemp- tion premium on the 1967 Certificates to June 1, 1979, at which time the 1967 Certificates shall be redeemed as hereinafter provided, the 1967 Certificates and shall not be outstanding for the purposes of this resolution and the Certificates authorized herein shall be on a parity with the 1962 Certifi- cates. F. That for the payment and refunding of the 1967 Certificates the City shall as provided herein deposit part of the proceeds derived from the sale of the Certificates authorized by this Resolution in a special escrow deposit trust fund, which amount shall be sufficient at the time of such deposit, to pay the principal of and interest on the 1967 Certificates to June 1, 1979, and to pay the principal of and redemption premium on the 1967 Certificates on June 1, 1979, as the same are redeemed prior to their stated dates of maturity on June 1, 1979, all as provided in this resolution. G. That under the provisions of Section 7 of Resolution Number 1429 adopted on November 26, 1962, authorizing said Utilities Tax Revenue Certifi- cates, Series 1962 (the "1962 Certificates"), additional obligations may be issued on a parity therewith for purposes other than refunding if certain conditions prescribed in said Section 7 are met, including the condition that the Utilities Tax proceeds collected during twenty-four consecutive months of the last thirty months immediately preceding the issuance of the addition- al certificates have been equal to three times the highest future annual principal and interest requirement of all certificates then outstanding and the certificates so proposed to be issued. H. That the Certificates authorized herein, when issued, will comply with all the provisions, conditions and limitations of Section 7 of the 1962 Resolution. I. That the cost of the Improvements and the refunding of the 1967 Certificates shall be deemed to include the cost of construction and improve- ments, the cost of real estate, including easements and other interest there- in, or any other property real or personal, necessary therefore; administra- tive expenses; reserve or other funds created and established pursuant to this resolution; discount on the sale of the Certificates, if any, engineering and legal expenses; expenses for fiscal agents or financial services; expenses for estimates of costs and of Utilities Tax proceeds; expenses for plans, specifications and surveys; and such other expenses as may be neces- sary or incidental to the Improvements, the refunding of the 1967 Certifi- cates and the issuance of the Certificates herein authorized. J. That the principal of and interest on the Certificates and all of the reserve and other payments provided for in this resolution will be paid solely from Utilities Tax proceeds; and the ad valorem taxing power of the City will never be necessary or authorized to pay the principal of an interest on the Certificates, or to make any of the reserve or other payments provided for in this resolution, and the Certificates issued pursuant to this resolution shall not constitute a lien upon any other property whatsoever of or in the City. ~ - 2 - Res. No. 65-78i SECTION 1.3. DEFINITIONS. That as used herein the following terms shall have the following meanings unless the contex otherwise clearly requires: (a) "City" shall mean the City of Delray Beach, Florida. (b) "Certificates" and "certificates herein authorized" shall mean the $4,500,000 Utilities Tax Revenue Certificates, Series 1978, authorized by this resolution. (c) "1962 Certificate Resolution" shall mean Resolution Number 1429 adopted by the City Council of the city on November 26, 1962, authorizing the issuance of $1,100,000 Utilities Tax Revenue Certificates, Series 1962, of the City. (d) "1962 Certificates" shall mean the outstanding Utilities Tax Revenue Certificates, Series 1962, authorized by the 1962 Certificate Reso- lution. (e) "1967 Certificate Resolution" shall mean Resolution Number 26-67 adopted by the City Council of the City on October 30, 1967, authorizing the issuance of $600,000 Utilities Tax Revenue Certificates, Series 1967, of the City. (f) "1967 Certificates" shall mean the outstanding Utilities Tax Revenue Certificates, Series 1967, authorized by the 1967 Certificate Reso- lution. (g) "Escrow Deposit Agreement" shall mean the Escrow Deposit Agree- ment, dated as of June 1, 1978, entered into by and between the City and a bank or trust company or national banking association, as trustee, in connec- tion with the refunding of the 1967 Certificates. (h) "Fiscal Year" shall mean that period commencing on October 1 and continuing to and including the next succeeding September 30, or such other annual period as may be prescribed by law. (i) "Improvements" shall mean (i) the acquisition and construction of certain public works facilities including, but not limited to, the acqui- sition of land, site improvements and the acquisition and construction of a garage and warehouse to maintain and store materials, supplies and City equipment, (ii) the acquisition of land of the Delray Beach Country Club and improvements thereto to provide golf course facilities, and other recreation- al facilities, including, but not limited to, necessary and incidental equip- ment for the purposes thereof, (iii) the acquisition of property for munici- pal purposes including, but not limited to garage, storage and maintenance facilities and (iv) the construction of additions, improvements and exten- sions to the municipally owned water and sanitary sewer system. (j) "Parity certificates" shall mean obligations issued on a parity with the Certificates herein authorized under the provisions of Section 7 of the 1962 Certificate Resolution. (k) "Utilities Tax" shall mean the tax imposed by said City on each and every purchase in the City of electricity, bottled gas (natural or manufactured), and local telephone service. Said term shall also apply to all taxes imposed by the City on the purchase of utility services other than water, whether levied in the amounts prescribed by the Utilities Tax Ordi- nance or in any other amounts and whether imposed on the purchase of the same utilities services or any other or additional utilities services, either by amendment to the Utilities Tax Ordinance or otherwise. - 3- Res. No. 65-78 (1) "Utilities Tax Ordinance" shall mean all proceedings imposing the Utilities Tax, including Ordinance Number 535 of the City adopted on July 9, 1945, as amended, and every supplementary ordinance or other ordi- nance in lieu thereof as may hereafter be adopted. Words importing singular number shall include the plural number in each case and vice versa, and words importing persons shall include firms and corporations. SECTION 1.4. RESOLUTION CONSTITUTES CONTRACT. In consideration of the acceptance of the Certificates authorized to be issued hereunder by those who shall hold the same from time to time, this resolution and the 1962 Certificate Resolution shall be deemed to be and shall constitute a contract between the City and the holders of such Certificates and the covenants and agreements herein set forth to be performed by said City shall be for the equal benefit, protection and security of the legal holders of any and all of such Certificates and the coupons attached thereto, all of which shall be of equal rank and without preference, priority, or distinc- tion of any of the Certificates or coupons over any other thereof except as expressly provided therein and herein. ARTICLE II AUTHORIZATION, TERbIS, EXECUTION AND REGISTRATION OF CERTIFICATES SECTION 2.1. AUTHORIZATION OF CERTIFICATES. Subject and pursuant to the provisions of this resolution, obligations of the City of Delray Beach, Florida, to be known as "Utilities Tax Revenue Certificates, Series 1978" are hereby authorized to be issued in the aggregate principal amount of not exceeding Four Million Five Hundred Thousand Dollars ($4,500,000) for the-purpose of financing part of the cost of the Improvements and the refunding of the 1967 Certificates. SECTION 2.2. DESCRIPTION OF CERTIFICATES. The Certificates shall be dated June 1, 1978, shall be in the denomination of $5,000 each; shall bear interest at not exceeding the maximum rate or rates permitted by law, payable semi-annually on June 1 and December 1 of each year and shall mature within forty (40) years from the date of issuance of the Certificates, annually on June 1 of each year, all as provided for by subsequent resolu- tion of the City. The Certificates shall be issued in coupon form, shall bear interest at such rate or rates and shall mature in such years and amounts as shall be determined by subsequent resolution of the City. The certificates shall be payable at The Chase Manhattan Bank, N.A., New York, New York. SECTION 2.3. REDEMPTION PROVISIONS. The Certificates shall be sub- ject to redemption prior to maturity at such times, at such redemption prices and upon such terms as shall be determined by subsequent resolution of the City. SECTION 2.4. EXECUTION OF CERTIFICATES AND COUPONS. That the Certificates shall be signed by the Mayor of the City, attested by the City Clerk, and endorsed by the City Attorney and shall have imprinted thereon a facsimile of the corporate seal of the City of Delray Beach. The signatures of said Mayor, City Clerk and City Attorney on said Certificates may be manual or facsimile signatures, provided, however, that either the signature of the Mayor or the signature of the City Clerk shall be a manual signature. The coupons attached to the Certificates and the validation certificate on the back thereof may be signed with the facsimile signatures of said Mayor and City Clerk. The Certificates shall be registrable as to principal only in the manner and with the effect set forth in the next section hereof. . - 4 - Res. No. 65-78 SECTION 2.5. NEGOTIABILITY AND REGISTRATION. The Certificates may be registered at the option of the holder as to principal only, at the office of the City Clerk of the City, as Registrar, or such other Registrar as shall be hereafter appointed, such registration to be noted on the back of the Certificates in the space provided therefor. After such registration' as to principal only, no transfer of the Certificates shall be valid unless made at said office by the registered owner, or by his duly authorized agent or representative and similarly noted on the Certificates, but the Certificates may be discharged from registration by being in like manner transferred to bearer and thereupon transferability by delivery shall be restored. At the option of the holder, the Certificates may thereafter again from time to time be registered or transferred to bearer as before. Such registration as to principal only shall not affect the negotiability of the coupons which shall continue to pass by delivery. SECTION 2.6. CERTIFICATES MUTILATED, DESTROYED, STOLEN OR LOST. In case any Certificate shall become mutilated or be destroyed, stolen or lost, the City may, in its discretion, issue and deliver a new Certificate with all unmatured coupons attached of like tenor as the Certificate and attached coupons, if any, so mutilated, destroyed, stolen or lost, in ex- change and substitution for such mutilated Certificate, upon surrender and cancellation of such mutilated Certificate and attached coupons, if any, or in lieu of and substitution for the Certificate and attached coupons, if any, destroyed, stolen or lost and upon the holder furnishing the City proof of his ownership thereof and satisfactory indemnity and complying with such other reasonable regulations and conditions as the City may require. All Certificates and coupons so surrendered shall be cancelled by the City Clerk and held for the account of the City. If any such Certificate or coupon shall have matured or be about to mature, instead of issuing a sub- stituted Certificate or coupon, the City may pay the same upon being indem- nified as aforesaid, and if such Certificates or coupon be lost, stolen or destroyed, without surrender thereof. Any such duplicate Certificates and coupons issued pursuant to this Section shall constitute additional contractual obligations on the part of the City, whether or not the lost, stolen or destroyed Certificates or coupons be at any time found by anyone, and such duplicate Certificates and coupons shall be entitled to equal and proportionate benefits and rights as to lien on and source and security for payment from the Utilities Tax pro- ceeds, with all other Certificates and coupons issued hereunder. SECTION 2.7. FORM OF CERTIFICATES AND COUPONS. The text of the Certificates and coupons shall be substantially the following tenor, with such omissions, insertions and variations as may be necessary and desirable and authorized or permitted by this resolution or any subsequent resolution adopted prior to the issuance thereof: (Form of Certificate) UNITED STATES OF AMERICA STATE OF FLORIDA COUNTY OF PALM BEACH CITY OF DELRAY BEACH UTILITIES TAX REVENUE CERTIFICATE SERIES 1978 Number $5,000 ~ - 5 - Res No 65-78 Know all men by these presents, that the City of Delray Beach in Palm Beach County, Florida, for value received hereby promises to pay to bearer, or if this certificate is registered as to principal then to the registered holder hereof, solely from the revenues hereinafter specified, the sum of Five Thousand Dollars ($5,000) on the first day of June, 19 , and to pay, solely from said revenues, interest on said sum until paid at the rate of per cent ( %) per annum, payable June 1, 1979, and semi-annually thereafter on the first days of June and December of each year, with interest due on and prior to maturity hereof payable only upon presentation and surrender of the annexed interest coupons as they severally become due. Both principal hereof and interest hereon are payable in lawful money of the United States of America at The Chase Manhattan Bank, N.A., New York, New York. This certificate is one of an authorized issue of certificates in the aggregate principal amount of not exceeding $ of like date, tenor, and effect, except as to number, date of maturity and interest rate, issued for the purpose of financing part of the cost of the construc- tion and acquisition of certain municipal facilities and the refunding of certain outstanding obligations of the City of Delray Beach, Florida, (the "City") under the authority of and in full compliance with the Constitution and Statutes of the State of Florida, including the Charter of the City of Delray Beach, Florida, as amended and supplemented, and other applicable provisions of law, and a resolution duly adopted by the City Council of said City on , 1978, (hereinafter referred to as the "Resolution") and is subject to all the terms and conditions of said Resolution: [Redemption Provisions] This certificate and the issue of which it is a part are payable, together with certain outstanding Utilities Tax Revenue Certificates, Series 1962, and Utilities Tax Revenue Certificates, Series 1967 and such obligations as may in the future be issued on a parity therewith, solely, as to both principal and interest, from the proceeds of the tax imposed by said City on the purchase of certain utility services, including electri- city, bottled gas (natural or manufactured), and local telephone service in said City. The Resolution provides that, to the extent necessary to pay principal of and interest on the certificates and to carry out the provisions of the Resolutions, said tax shall be levied and collected in an amount sufficient to pay the principal of and interest on the certifi- cates and to make all other payments required by the Resolution, and that said tax as it is now being levied will not be repealed while any of such certificates remain outstanding. This certificate, including interest hereon, is payable solely from the proceeds of said utilities tax and does not constitute an indebtedness of the City of Delray Beach within the meaning of any constitutional, statutory or charter provision or limita- tion. It is expressly agreed by the holder of this certificate that such holder shall never have the right to require or compel the exercise of the ad valorem taxing power of said City for the payment of the principal of or interest on this certificate or the making of any reserve or other payments provided for in the Resolution. It is further agreed between said City and the holder of this certificate that this certificate and the obligation evidenced thereby shall not constitute a lien upon any property of or in the City of Delray Beach but shall constitute a lien only on the revenues hereinabove in this paragraph described. Additional certificates, payable from the proceeds of such utilities tax pari passu with the certif- icates of the issue of which this certificate is one, may be issued by the City from time to time upon the conditions and within the limitations and in the manner provided in the Resolution. This certificate, and the coupons appretaining thereto, is and has all the qualities and incidents of a negotiable instrument under the law merchant and the Uniform Commerical Code-Investment Securities Law of the - 6 - Res. No. 65-78 State of Florida, and the original holder and each successive holder of this certificate, or the coupons appertaining thereto, shall be conclusive- ly deemed to have agreed that this certificate shall be and have all the qualities and incidents of negotiable instruments under the law merchant and the Uniform Commercial Code-Investment Securities Law of the State of Florida, and the original holder and each successive holder shall be con- clusively deemed to have agreed and consented that this certificate shall be incontestable in the hands of a bona fide holder for value. It is hereby certified and recited that all acts, conditions and things required to exist, to happen, and to be performed, precedent to and in the issuance of this certificate exist, have happened and have been per- formed in regular and due form and time as required by the Laws and Consti- tution of the State of Florida and the charter of said city as so required. IN WITNESS WHEREOF said City of Delray Beach has caused this cer- tificate to be signed by the Mayor of said City either manually or with his facsimile signature, attested by its Clerk either manually or with his fac- simile signature and approved bY its City Attorney, and a facsimile of the corporate seal of said city to be imprinted hereon, and has caused the interest coupons hereto attached to be executed with the facsimile signa- tures of said Mayor and City Clerk, all as of the first day of June, 1978. Mayor Attest: City Clerk Approved as to form, language and execution. City Attorney (Form of Coupon) Number $ On the first day of , 19 ., unless the certificate to which this coupon was attached has been duly called for redemption prior to maturity and payment thereof duly provided for, the City of Delray Beach, Florida, will pay to bearer at solely from the revenues described in the certificate to which this coupon was attached, the sum shown hereon being the semi-annual interest then due upon its Utilities Tax Revenue Certificate, Series 1978, dated June 1, 1978, and numbered . Mayor Attest: City Clerk - 7 - Res. No. 65-78 (FORM OF VALIDATION CERTIFICATE) This certificate is one of an issue of certificates which were validated by judgement of the Circuit Court of the Fifteenth Judicial Cir- cuit of the State of Florida in and for Palm Beach County rendered on , 1978. City Clerk Mayor (Form of Registration Certificate) The within certificate may be registered as to principal on books kept by the City Clerk of the City of Delray Beach, as Registrar, upon presentation to such Registrar, who shall make notation of such registra- tion in the registration blank below, and this certificate may thereafter be transferred only upon written assignment of the registered owner or his attorney thereunto duly authorized or proved, such transfer to be made on such books and endorsed thereon by the Registrar. If so registered, this certificate may thereafter be transferred to bearer and thereby transfer- ability by delivery shall be restored but this certificate shall again be subject to successive registrations and transfers as before. The principal of this certificate if registered, unless registered to bearer, shall be payable only to the registered owner or his legal representatives. Not- withstanding the registration of this certificate as to principal the cou- pons shall remain payable to bearer and shall continue to be transferable by delivery. Date of : Name of~ : Signature of Reqistration : Regi~t~rqd..O~ner : Registrar : : : : : : : : : : : : : : : : ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF SECTION 3.1. CERTIFICATES NOT TO BE INDEBTEDNESS OF THE CITY. Neither the Certificates nor coupons shall be or 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 proceeds of the Utilities Tax. No holder or holders of any Certificates issued hereunder, or of any coupon appertaining thereto, shall ever have the right to compel the exercise of the ad valorem taxing power of the City, or taxa- - 8 - Res. No. 65-78 tion in any form of any real property therein to pay said Certificates or the interest thereon. SECTION 3.2. CERTIFICATES ON PARITY WITH THE OUTSTANDING UTILITIES TAX REVENUE CERTIFICATES. The certificates issued pursuant to this resolu- tion shall be on a parity and rank equally, as to lien on and source and security for payment from the Utilities Tax proceeds and in all other respects, with the 1962 Certificates and the 1967 Certificates and any pari passu additional obligations hereafter issued pursuant to and within the terms, limitations and conditions contained in the 1962 Resolution; except, however, if the City determines to issue Certificates herein authorized for the payment and refunding of the 1967 Certificates, upon the deposit of a sufficient amount of proceeds derived from the sale of said Certificates, in a special escrow deposit trust fund to pay the principal of and interest on the 1967 Certificates to June 1, 1979 and to pay the principal of and premium on the 1967 Certificates on June 1, 1979 as the same are redeemed prior to their stated dates of maturity on June 1, 1979, then the Certifi- cates herein authorized shall be on a parity and rank equally, as to lien on and source and security for payment from the Utilities Tax proceeds and in all other respects, solely with the 1962 Certificates and any pari passu additional obligations hereafter issued pursuant to and within the terms, limitations and conditions contained in the 1962 Resolution. SECTION 3.3. CERTIFICATES SECURED BY PLEDGE OF UTILITY TAX PROCEEDS. That from and after the issuance of any of the Certificates, and continuing until thepayment of all Certificates as to principal and in- terest the proceeds of the Utilities Tax shall continue to be pledged for the prompt payment of principal of and interest on said Certificates. The Certificates shall be payable as to principal and interest from the City of Delray Beach Utilities Tax Certificates Principal and Interest Redemp- tion Fund (hereinafter sometimes called the "Certificate Fund"), created and established by the 1962 Certificate Resolution. Said fund shall be continued and maintained as provided in said 1962 Certificate Resolution so long as any of the Certificates herein authorized remain outstanding. SECTION 3.4. PAYMENTS INTO RESERVE FUND. Payments into the Reserve Fund created by said 1962 Certificate Resolution will be made on or before the 10th day of the month, commencing on the first month subsequent to the delivery of the Certificates, in an amount equal to one-sixtieth (1/60th) of: (i) the highest future annual principal and interest require- ments of all the 1962 Certificates, the 1967 Certificates, and the Certifi- cates herein authorized less (ii) the amount then on deposit in said Reserve Fund for the 1962 Certificates and the 1967 Certificates. Such payments into the Reserve Fund shall continue to be made until the amount in said fund shall equal the highest future annual principal and interest requirement on all 1962 Certificates, 1967 Certificates and Certificates. Whenever a deficiency in such payments shall occur or whenever the amount in the Reserve Fund falls below the amount then required to be in said fund, such deficiency shall be made up from all money in the Utilities Tax Revenue Fund created and established pursuant to the 1962 Certificate Resolution which is not required for payments into the Certificate Fund. SECTION 3.5. ARBITRAGE COVENANT. The City agrees that it will not direct the investment of the proceeds of the Certificates in a manner that (1) would have been, but for this covenant, reasonably expected on the date of issuance of the Certificates and (2) would have caused, if so reasonably expected, any of the Certificates to be an "arbitrage bond" 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 such use and applicable to the Certificates. SECTION 3.6. COVENANTS. That all covenants contained in Section 5, 6 and 7 of the 1962 Certificate Resolution shall apply with like force and effect for the benefit of the holders of the Certificates herein - 9 - Res. No. 65-78 authorized, which shall in all respects be deemed to carry all of the rights and privileges granted to the holders of the 1962 Certificates and the 1967 Certificates; provided, however, with respect to the Certificates herein authorized the covenant contained in Section 6(A) of the 1962 Cer- tificate Resolution is hereby modified to provide that the City may decrease the Utilities Tax, provided the Utilities Tax proceeds after such decrease shall be sufficient to make all payments required by this Resolu- tion. Such modification shall not be effective so long as any 1962 Certif- icates and 1967 Certificates remain outstanding and unpaid. SECTION 3.7. APPLICATION OF CERTIFICATE PROCEEDS. All moneys received by the City from the sale of the Certificates authorized and issued pursuant to this resolution shall be applied as follows: A. The accrued interest derived from the sale of the Certificates shall be deposited in the Certificate Fund. B. A portion of said Certificate proceeds shall be deposited irrevocably in an escrow deposit trust fund to be held by a bank or trust company, as trustee, under the terms and provisions of the Escrow Deposit Agreement, which shall be sufficient, at the time of such deposit, to pay the principal of and interest on the 1967 Certificates to June 1, 1979, and to pay on June 1, 1979 the principal of and redemption premium on the 1967 Certificates on June 1, 1979 as the same are redeemed prior to their stated dates of maturity on June 1, 1979. In the event the City determines not to refund the 1967 Certificates, no Certificate proceed shall be deposited pursuant to this Section 3.7 (B). C. The remainder of the proceeds of the sale of the Certificates, together with other moneys of the City lawfully available, shall be deposited in the "Construction Fund" in a bank or trust company in the State of Florida which is eligible under the state laws to receive deposits of state and municipal funds, which fund is hereby created and established, and such moneys so deposited will be used to pay for the Improvements. No withdrawals shall be made from the Construction Fund, except for legal, financial and engineering expenses and fees and expenses and fees in con- nection with the construction of the Improvements and the issuance of the Certificates, without the written approval of the City Manager and only upon receipt of a written requisition executed by an authorized represen- tative 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 this resolution. If for any reason the moneys in said fund, or any part thereof, are not necessary for, or are not applied to the purposes provided in this resolution then such unapplied proceeds shall be deposited upon certification of the City Manager that such surplus proceeds are not needed for the purposes of the Construction Fund, in the Reserve Fund to the full extent necessary to make the amount then on deposit therein equal to the maximum amount required to be on deposit in the Reserve Fund and the balance, if any, to be deposited in the Certificate Fund. The moneys deposited in the Construction Fund may, pending their use for the purposes provided in this Resolution, be temporarily invested in (i) direct obligations of the United States of America, (ii) in obliga- tions fully guaranteed by the United States of America, or (iii) in Certificates of Deposit and Repurchase Agreements continuously and fully secured by direct obligations of the United States of America, or insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation, or secured in such manner as provided by the laws of the state of Florida, maturing not later than the dates on which such moneys will be needed for the purpose of the Construction Fund. All the earnings from such investments shall remain in and become a part of -10- Res. No. 65-78 said Construction Fund and used for the purposes of the Construction Fund. All of the moneys on deposit in the Construction Fund shall be and constitute trust funds for the purposes hereinabove provided, and there is hereby created a lien upon such moneys, until so applied, in favor of the holders of the Certificates. Notwithstanding the foregoing provisions moneys on deposit in the Construction Fund shall be used for the payment into the Certificate Fund whenever the moneys on deposit in the Certificate Fund and Reserve Fund are insufficient for such purposes, provided, however, that before such moneys may be used for the above purposes, the City Manager shall certify that such moneys are not necessary for or are not to be applied to the cost of the Improvements. SECTION 3.8. REMEDIES. Any holder of Certificates or of the cou- pons appertaining thereto issued under the provisions of this resolution or any trustee acting for such Certificateholders in the manner hereinafter provided, may either at law or in equity, by suit, action, mandamus or other proceedings in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted and contained in this resolution, and may enforce and compel the performance of all duties required by this resolution or by any applicable statutes to be performed by the City or by any officer thereof. In the event that default shall be made in the payment of the interest on or the principal of any of the Certificates issued pursuant to this resolution as the same shall become due, or in the making of the pay- ments into any reserve fund or any other payments required to be made by this resolution, or in the event that the City or any officer, agent or employee thereof shall fail or refuse to comply with the provisions of this resolution or shall default in any 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 Certificates, or any trustee appointed to represent Certificateholders as hereinafter provided, shall be entitled as of right to the appointment of a receiver 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 Certificates issued pursuant to this Resolution. The receiver so appointed shall forthwith, directly or by his agents and attorneys, collect and receive all Utilities Tax proceeds and comply under the jurisdiction of the court appointing such receiver, with all of the provisions of this resolution. Whenever all that is due upon Certificates issued pursuant to this resolution, and interest thereon, and under any covenants of this resolu- tion for reserve or other funds, and upon any other obligations and interest thereon having a charge, lien or encumbrance upon the Utilities Tax proceeds, shall have been paid and made good, and all defaults under the provisions of this resolution shall have been cured and made good, possession of any Utilities Tax proceeds shall be surrendered to the City upon the entry of an order of the court to that effect. Upon any subse- quent default, any holder of Certificates issued pursuant to this resolu- tion, or any trustee appointed for Certificateholders as hereinafter provided, shall have the right to secure the further appointment of a receiver upon any such subsequent default. Such receiver shall in the performance of the powers hereinabove conferred upon him be under the direction and supervision of the court making such appointment, shall at all times be subject to the orders and decrees of such court and may be removed thereby and a successor receiver - 11 - Res. No. 65-78 appointed in the discretion of such court. Nothing herein contained shall limit or restrict the jurisdiction of such court to enter such other and further orders and decrees as such court may deem necessary or appropriate for the exercise by the receiver of any function not specifically set forth herein. The holder or holders of Certificates in an aggregate principal amount of not less than twenty-five per centum (25%) of Certificates issued under this resolution then outstanding may by a duly exercised certificate in writing appoint a trustee for holders of Certificates issued! pursuant to this resolution with authority to represent such Certificate- holders in any legal proceedings for the enforcement and protection of the rights of such Certificateholders. Such certificate shall be executed by such Certificateholders or their duly authorized attorneys or representa- tives, and shall be filed in the office of the City Clerk. SECTION 3.9. REFUNDING. The certificates herein authorized may be refunded in the manner provided in paragraph number 1 of said Section 7 of the 1962 Certificate Resolution and subject to the restrictions therein contained. SECTION 3.10. ADDITIONAL PARITY CERTIFICATES. Additional Parity Certificates may be issued in accordance with paragraph number 2 of said Section 7 of said 1962 Certificate Resolution. SECTION 3.11. DISCHARGE AND SATISFACTION OF CERTIFICATES. The covenants, liens and pledges entered into, created or imposed pursuant to this resolution may be fully discharged and satisfied with respect to the Certificates in any one or more of the following ways: (a) by paying the principal of and interest on Certificates when the same shall become due and payable; or (b) by depositing in the Certificate Fund or such other accounts as the City may hereafter create and establish by resolution moneys suffi- cient at the time of such deposit to pay the Certificates, all appurtenant interest coupons and the redemption premium, if any, as the same become due on said Certificates on or prior to the redemption date or maturity date thereof; or (c) by depositing in the Certificate Fund, or such other accounts as the City may hereafter create and establish by resolution moneys which when invested in direct obligations of the United States of America or obligations fully guaranteed by the United States of America or in time deposits in bank or trust companies fully secured by direct obligations by the United States of America or obligations that are fully guaranteed by the United States of America, will provide moneys which shall be sufficient to pay the Certificates, all appurtenant interest coupons and the redemp- tion premium, if any, as the same shall become due on said Bonds on or prior to their redemption date or maturity date thereof. Upon such payment or deposit in the amount and manner provided in this resolution, the Certificates shall no longer be deemed to be outstand- ing for the purposes of this resolution and all liability of the City with respect to the Certificates shall cease, determine and be completely dis- charged and extinguished, and the holders thereof shall be entitled for payment solely out of the moneys or securities so deposited. - 12 - Res. No. 65-78 ARTICLE IV MISCELLANEOUS PROVISIONS SECTION 4.1. MODIFICATION OR AMENDMENT. No material modification or amendment of this resolution or of any resolution amendatory thereof or supplemental thereto, may be made without the consent in writing of the holders of seventy-five percent or more in principal amount of the Certifi- cates then outstanding; provided, however, that no modification or amend- ment shall permit a change in the maturity of such Certificates or a reduc- tion in the rate of interest thereon, or affecting the unconditional promise of the City to pay the interest of and principal on the Certifi- cates, as the same mature or become due, from the Utilities Tax proceeds, or reduce such percentage of holders of such Certificates required above for such modification or amendments, without the consent of the holder of all the Certificates. The 1962 Certificate Resolution may be amended with the consent of the holders of seventy-five per cent (75%) in principal amount of the 1962 Certificates, the 1967 Certificates,the Certificates herein authorized and any future parity certificates as provided in Section 8 of said 1962 Certificate Resolution. SECTION 4.2. SALE OF CERTIFICATES. The Certificates shall be issued and sold at one time or from time to time and at such price or prices consistent with the provisions of the Charter of the City and the requirements of this resolution as the City shall hereafter determine by resolution. SECTION 4.3. VALIDATION AUTHORIZED. That the City Attorney, is hereby authorized and directed to take appropriate proceedings in the Circuit Court of the Fifteenth Judicial Circuit of Florida, in and for Palm Beach County, for the validation of the Certificates and the Mayor and City Clerk are authorized to sign any pleadings in such proceedings for and in behalf of the City Council of the City of Delray Beach. SECTION 4.4. SEVERABILITY. That if any section, paragraph, clause or provision of this resolution or the application of any of the pledged revenue to the payment of principal of and interest on the Certificates shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph, clause or provision or of the application of such pledged revenue to the payment of such principal and interest, shall not affect any of the remaining provisions of this resolution, or the application of the remainder of such pledged revenue to the payment of such principal and interest. SECTION 4.5. EFFECTIVE DATE. That all resolutions and orders, or parts thereof, in conflict herewith are, to the extent of such conflict, hereby repealed, and this resolution shall take effect upon its passage in the manner provided by law. Adopted and approved July 24,1978/~ Mayor~ Attest: City~/~lerk - 13 - Res. No. 65-78 The foregoing resolution and the forms of certificate and interest coupon therein contained are hereby approved by me as to form, language and execution this day of , 1978. City Attorney STATE OF FLORIDA ) COUNTY OF PALM BEACH ) I, , do hereby certify that I am the duly qualified and acting City Clerk of the City of Delray Beach, Palm Beach County, Florida. I further certify that the above and foregoing constitutes a true and correct copy of the minutes of a meeting of the City Council of said city held on , and of a resolution adopted at said meeting, as said minutes and resolution are officially of record in my possession. IN WITNESS WHEREOF, I have hereunto subscribed my official signa- ture and impressed hereon the official seal of the City of Delray Beach this day of , 1978. City Clerk (SEAL) - 14 - Res. No. 65-78