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Res 28-72 A RESOLb~iON AUTHORIZING THE ACQUISITION OF WATER A%ID SE~R FACILITIES FROM ECOLOGiC~ UTiLiTiES, INC.. AS ~zN ADDITION TO THE WATER kND SESFER SYSTEM OF THE CITY OF DELRAY BEACH, FLORIDA? AUTHORIZING THE ISSU.~4CE OF $280~000 CIGARETTE TAX BONDS, SERIES 1972, TO FINANCE THE COST THEREOF; AND PROVIDING FOR THE RIGHTS OF THE HOLDERS OF SAID BONDS. BE IT RESOL%~D BY THE CITY COUNCIL OF THE CITY OF DELRAY BEACH, FLORIDA: ARTICLE I STATUTORY AUTHORITY, FINDINGS ~ND DEFINITIONS Section 1.01. AUTHORITY OF THIS RESOLUTION. This resolution is enacted pursuant to the provisions of Chapter 25786, Laws of Florida, Acts of 1949, and acts amendatory thereof and supplemental thereto, being the Charter of the City of Delray Beach, Florida, Chapter 210, Florida Statutes, and other applicable provisions of law. Section 1.02. FINDINGS. It is hereby ascer- tained, determined and declared as follows: A. That it is necessary, essential and in the best interests of the City and the inhabitants thereof that there be acquired water and sewer facilities from Ecological Utilities, Inc. as hereinafter more par- ticularly described and authorized. B. That pursuant to Chapter 210, Florida Statutes, and other applicable provisions of law, the City Council of the City of Deiray Beach did, under date of June 24, 1963, enact ordinanace No. G-490, amending Subsections 24-7, 24-8 and 24-9 of the Code of Ordinances of the City of Delray Beach, levying excise or privilege taxes upon the sale, receipt, purchase, possession, con- sumption, handling, distribution and use~of cigarettes within the Corporate limits of said City (hereinafter referred to as "Cigarette Taxes"). C. That the City has heretofore issued $1,200,000 principal amount of Cigarette Tax Bonds, dated September 1, 1965 (herein called "1965 Bonds"), pursuant to a resolution adopted on August 13, 1965 (herein called "1965 Resolution"); that said 1965 Resolution provides for the issuance of pari passu additional Bonds payable from said Cigarette Taxes on a parity with said 1965 Bonds under the terms, limitations and conditions provided in Section 4.05(E) of said 1965 Resolution; that in the issuance of the Bonds authorized herein the City will comply fully with the terms, limitations and conditions provided for the issuance of such Bonds on a parity with said 1965 Bonds. D. That the City has also heretofore entered into an Equipment Lease with Sanco Corporation for a term of 48 months, beginning September 25, 1969, -2- RES. 28-72 under the terms of which lease payments ~ the amount of '$3,430.32 will be paid each month as provided in said Lease Agreement until total payments aggregating $164,660.64 have been paid; that a total ~.ount of $ 133,204.19 has already been paid by the City to said Sanco Corporation, and the last payment of said lease rentals will be paid on or about August 25 , 1973. (E) That the lien of the holders of the Bonds issued pursuant to this resolution on said Cigarette Taxes will be on a parity with the lien thereon of said 1965 Bonds, except that the lien of said lease rentals to Sanco Corporation on said Cigarette Taxes will be sub- ordinate to the lien thereon of said 1965 Bonds but will be prior and superior to the lien thereon of the 1972 Bonds issued pursuant to this resolution. (F) That it is deemed necessary and desirable to pledge to the payment of the principal and interest on the Cigarette Tax Bonds, Series 1972, author- ized by this resolution and reserves therefor the prOceeds derived by the City from said Cigarette Taxes. (G) That the estimated proceeds to be derived by the City from said Cigarette Taxes in each year will be sufficient to pay the principal of and in- terest on said 1965 Bonds and the Bonds authorized by this -3- RES. 28-72 resolution maturing and becoming due in such year and all reserve or other payments provided to be made in such year by said 1965 Resolution and this resolution', and the rentals under said Lease Agreement. (H) That the principal of and interest on the Bonds to be issued pursuant to this resolution and all of the sinking fund and other payments provided for in this resolution will be paid solely from the pro- ceeds of said Cigarette Taxes; that it will never be necessary to levy taxes on any real property in said City to pay the principal of or interest on the Bonds to be issued pursuant to this resolution, or to make any of the reserve, sinking fund or other payments provided for in this resolution, and the Bonds issued pursuant to this resolution shall not constitute a lien on any property of the City except said Cigarette Taxes. Section 1.03. 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 this resolution shall be deemed to be and shall constitute a contract between the City of Delray Beach, Florida, and such Bondholders, and the covenants and agreements therein and herein set forth to be perfomed '~by said City shall be for the equal benefit, protection and security of the legal holders of any and all of such -4- RES. 28-72 priority or distinction of any of the Bonds or coupons over any other thereof except as expressly provided therein and herein. Section 1.04. DEFINITIONS. The following terms shall have the following meanings in this reso- lution unless the text otherwise expressly requires: (A) "City" shall mean the City of Delray Beach, Florida. (B) "Act" shall mean Chapter 25786, Laws of Florida, Acts of 1949, and acts amendatory thereof and supplemental thereto, being the Charter of the City of Delray Beach, Chapter 210, Florida Statutes, and other applicable provisions of law. (C) "Bonds" shall mean the $280,000 Cigarette Tax Bonds, Series 1972, authorized to be issued pursuant to this resolution. ~ (D) "Holder of Bonds" or "Bondholder", or any similar term, shall mean any person who shall be the bearer or owner of any outstanding Bond or Bonds registered to bearer, or not registered, or the registered owner of any outstanding Bond or Bonds which shall at the time be registered other than to bearer or of any coupons r~i. re- senting interest accrued or to accrue on said Bonds. -5- RES. 28-72 (E) "Cigarette Taxes" shall mean taxes levied and collected on the sale, receipt, purchase, possession, consumption, handling, distribution and use of cigarettes within the corporate limits of said City referred to in Section 1.02 (B) hereof. (F) "Cigarette Tax Ordinance" shall mean Ordinance No. G-490, enacted by the City Council of said · City on June 24, 1963, amending Subsections 24-7, 24-8 and 24-9 of the Code of Ordinances of said City relating to the levy and collection of Cigarette Taxes. (G) Words importing singular number shall include the plural number in each case and vice versa, and words importing persons shall include firms and corporations. -6- RES. 28-72 ARTICLE II AUTHORIZATION OF ACQUISITION OF WATER AND SE~R FACILITIES Section 2.01. AUTHORIZATION OF ACQUISITION OF WATER AND SE~R FACILITIES. There is hereby authorized the acquisition from Ecological Utilities, Inc. of the water and sewer facilities, including five acres of land, located in Section 7, Township 46 South, Range 42 East in Palm Beach County, adjacent to and adjoining the city limits of the City of Delray Beach, together with the exclusive franchise of said Ecological Utilities, Inc. in said territory, all as more fully described in the pur- chase agreement between the City and said Ecological Utilities, Inc. at an' estimated cost of $280,000. Such estimated cost shall include the cost of the acquisition of said water and sewer facilities from Ecological Utilities, Inc., expenses of the authorization, issuance and sale of the Bonds authorized by this resolu- tion, and such other expenses as may be necessary or incidental to the financing authorized by this resolution. -7- RES. 28-72 ARTICLE III AUTHORIZATION, TE~ZS, EXECUTION AND REGISTRATION OF BONDS Section 3.01. AUTHORIZATION AND TERMS OF BONDS. For the purpose of financing the cost of the acquisition of said water and sewer'facilities from said Ecological Utilities, Inc. as provided in Section 2.01 hereof, there is hereby authorized the issuance of negotiable Cigarette Tax Bonds, Series 1972, of the City of Delray Beach, Florida (herein called "Bonds") in the aggregate principal amount of Two Hundred Eighty Thousand Dollars ($280,000). Said Bonds shall be dated June 15, 1972; shall be in the denomination of $35,000 each; shall be numbered consecutively, in numerical order, from 1 to 8, both inclusive; shall be payable as to both principal and interest at the office of the City Treasurer, Delray Beach, Florida, in lawful money of the United States of America; shall bear interest pay- able annually on June 15 of each year at the rate of four per centum (4%) per annum, and shall mature serially in numerical order on June 15 of each year as follows: Year Amount 1973 $70,000 1974 70,000 1975 70,000 1976 70,000 The Bonds issued pursuant to this resoluudDn zhall not be redeemable prior to their stated dates of maturity. -8- ~RES. 28-72 3.02. EXECUTION OF BONDS AND COUPONS. Said Bonds shall be executed in the name of the City by the Mayor, either manually or with his facsimile signature, and its corporate seal shall be affixed thereto or litho- graphed or reproduced thereon and attested by the City Clerk, either manually or with his facsimile signature; provided, however, that at least one of said signatures shall be a manual signature. In case any one or more of the officers who shall have signed or sealed any of the Bonds shall cease to be such officer of the City before the Bonds so signed and sealed shall have been actually sold and delivered, such Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such Bonds had not ceased to hold such office. Any Bond may be signed and sealed on behalf of the City by such person as at the actual time of the execution of such Bond shall hold the proper office in the City, although at the date of such Bonds such person may not have held such office or may not have been so authorized. Section 3.03. REGISTRATION AND NEGOTIABILITY. The Bonds shall be issued in bearer form, but may be registered at the option of the'holder as to both prin- cipal and interest, at the office of the Treasurer of the City, such registration to be noted on the back of said Bonds in the space provided therefor. After such regis- -9- RES. 28-72 tration as to both principal and interest, no transfer of the Bonds 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 Bonds, but the Bonds may be discharged from registration by being in like manner transferred to bearer and there- upon transferability by delivery shall be restored. At the option of the holder the Bonds may thereafter again from time to time be registered or transferred to bearer as before. The Bonds unless registered as to principal and interest as provided herein, shall be, and have all the qualities and incidents of, negotiable instruments ~nder the law merchant and the Uniform Commercial Code- Investment Securities Law of the State of Florida. Section 3.04. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case any Bond shall become mutilated or be destroyed, stolen or lost, the City may in its discretion issue and deliver a new Bond in exchange and substitution for such mutilated Bond, upon surrender and cancellation of such mutilated Bond, or in lieu of and substitution for the Bond destroyed, stolen or lost, and upon the holder furnishing the City proof of his owner- ship thereof and satisfactory indemnity and complying with such other reasonable regulations and conditions as -10- RES. 28-72 the City may prescribe and paying such expenses as the City may incur. All Bonds so surrendered shall be can- celled by the City Clerk and held for the account of the City. If any such Bond shall have matured or be about to mature, instead of issuing a substituted Bond the City may pay the same, upon being indemnified as afore- said, and if such Bond be lost, stolen or destroyed, without surrender thereof. Any such duplicate Bonds issued pursuant to this section shall constitute original, additional con- tractual 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 and source and security for payment from the Cigarette Taxes with all other Bonds issued hereunder. Section 3.05. FORM OF BONDS. The text of the Bonds shall be of substantially the following tenor, with such omissions, insertions and variations as may be necessary and desirable and authorized or permitted by · this resolution or any subsequent resolution adopted prfor to the issuance thereof: -11- RES. 28-72 No. UNITED STATES OP .AMERICA $35,000 STATE OF FLORIDA COUNTY OF PALM BEACH CITY OF DELRAY BEACH CIGARETTE TAX BOND, SERIES 1972 KNOW ALL MEN BY THESE PRESENTS that the City of Delray Beach, in Palm Beach County, F~orida, for value received, hereby promises to pay to the bearer, or if this bond be registered, to the registered holder as herein provided, on the fifteenth day of June, 19 , from the special funds hereinafter mentioned, the prin- cipal sum of THIRTY-FIVE THOUSAN~ DOLLARS with interest thereon at the rate of four per centum (4%) per annum, payable annually on the fifteenth day of June of each year. Both principal of and interest on this bond are payable, at the office of the City Treasurer, Delray Beach, Florida, in lawful money of the United States of America. The bonds of the issue of which this bond is one are not redeemable prior to their stated dates of maturity. This bond is one of an authorized issue of bonds in the aggregate principal amount of not exceed- ing $280,000 of like date, tenor and effect, excep~ as -12- RES. 28-72 tO number and date of maturity, issued to finance the cost of the acquisition of water and sewer facilities by said City, under the authority of and in full compliance with the Constitution and Statutes of the State of Florida, including Chapter 25786 Laws of Florida, Acts of 1949, as amended, Chapter 210, Florida Statutes, and other appli- cable provisions of law, and a resolution duly adopted by the City Council of the City of Delray Beach on , t972 (hereinafter called "resolution"), and is subject to all the terms and cOnditions of said reso- lution. The bonds of the issue of which this bond is one are payable solely from and secured by a lien upon and pledge of the proceeds derived by said City from the levy and collection of Cigarette Taxes in said City, all in the manner provided in said resolution. This bond does not constitute an indebtedness of the City of Delray Beach within the meaning of any constitutional, statutory or charter 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.said City for the pay- ment of the principal of and interest on this bond or the making of any sinking fund or other payments pro- vided for in the resolution. -13- RES. 28-72 It is further agreed between the City of Delray Beach and the holder of this bond that this bond 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 proceeds derived from the levy and collection of said cigarette taxes in the manner provided in said 'resolution. The City, in said resolution, has covenanted and agreed with the holders of the Bonds of this issue to fix, establish and maintain such rates and collect such cigarette taxes, within the limits now prescribed by law, as will always provide funds sufficient to pay, as the same mature and become due, the principal of and interest on said bonds, and all other obligations pay- able from said cigarette taxes, and all reserve or sinking funds or other payments provided for in said resolution; and said City has entered into certain further covenants with the holders of the bonds of the issue of which this bond is one, fOr the exact terms of which reference is made to said resolution. It is hereby certified and recited that all acts, conditions and things required to exist, to happen and to be performed precedent to and in the issuance of this bond, exist, have happened and have been performed -14- RES. 28-72 in regular and due form and time as required by the Laws and Constitution of the State of Florida appli- cable thereto, and that the issuance of this bond and the issue of bonds of which this bond is one, does not violate any constitutional, statutory or charter debt limitations or provisions. This bond, unless registered as to both prin- cipal and interest as provided herein, is and has all the qualifies and incidents of, a negotiable instrument under the law merchant and the Uniform Commercial Code- Investment Securities Law of the State of Florida. This bond may be registered as to both prin- cipal and interest in accordance with the provisions endorsed hereon. IN WITNESS WHEREOF said 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 said City to be affixed hereto or lithographed or reproduced hereon, and attested by the manual or facsimile signature of the City Clerk of said City, all as of the fifteenth day of June, 1972. CITY OF DELRAY BEACH, £LORiDA By Attest: Mayor -15- RES. 28-72 PROVISION FOR REGISTRATION This bond may be registered in the name of the holder on the books to be kept by the City Treasurer, as Registrar, or such other Registrar as may hereafter be duly appointed, as to both principal and interest, such registration being noted hereon by such Registrar, in the registration blank below, after which no trans- fer shall be valid unless made on said books by the registered'holder or attorney duly authorized and similarly noted in the registration blank below, but it may be discharged from registration by being trans- ferred to bearer, after which it shall be transferable by delivery, and it may again from time to time be registered aS both principal and interest or bearer as provided above. Date of : In Whose Name : Signature of ~e~istrat. io.n : Registered : Registrar : : : : : : : : -16- RES. 28-72 ARTICLE iV COVENANTS, SPECIAL Fb~DS AND APPLICATION THEREOF Section 4.01. BONDS NOT TO BE INDEBTEDNESS OF THE CITY. The Bonds shall not be oP cons%ttu%e an indebted- ness of the City, but shall be payable solely from the Cigarette Taxes 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 said Bonds or the interest thereon. Section 4.02. BONDS SECURED BY PLEDGE OF CIGARETTE TAXES. The payment of the debt service of all the Bonds issued hereunder shall be secured forthwith, equally and ratably by a lien on and pledge of the pro- ceeds received by the City from the Cigarette Taxes levied and collected in said City pursuant to Chapter 210, Florida Statutes, and Ordinance No. G-490, enacted on June 24, 1963, and the City does hereby irrevocably pledge such proceeds of such Cigarette Taxes to the payment of the principal of and interest on the Bonds issued pursuant to this resolution and for the necessary reserves therefor. The lien of the holders of the Bonds issued pursuant to this resolution on said Cigarette Taxes 2s -17- RES. 28-72 on a parity with the lien thereon of the holders of said 1965 Bonds, but is subordinate and inferior to the lien thereon of the lease rentals pursuant to said Lease Agreement. The City does further hereby covenant and agree that so long as any of the principal of or interest on any of the Bonds issued pursuant to this resolution are out-. standing and unpaid, or payment thereof not duly provided for, it will not repeal said Ordinance No. G-490, enacted' on June 2'4, 1963, and will not amend or modify said ordinance in any manner so as to impair or adversely affect the power or obligation of the City to levy and collect said Cigarette Taxes, or impair or adversely affect in any manner the pledge of such Cigarette Taxes made herein, or the rights of the holders of Bonds issued pursuant to this resolution. The City'does further covenant and agree that so long as any of the principal of or interest on any of the Bonds issued pursuant to this resolution are outstand- ing and unpaid, or payment thereof not duly provided for, it will, by proper proceedings, fix, establish and maintain such ra~es and collect such Cigarette Taxes within the limits now prescribed by law, as will always proviCa funds sufficient to pay, as the same become due the principal and interest on the Bonds issued pursuant to this reso- lution, and all other obligations payable from said Cigarette · -18- RES. 28-72 Taxes, and all reserve or sinking funds or other pay- ments provided for in this resolution. The City further expressly represents that it has legal and valid power to continue the levy and col- lection of said Cigarette Taxes in the manner provided in said ordinance No. G-490, enacted June 24, 1963, until all the 'principal of and interest on said Bonds have been duly paid, notwithstanding that the legislative authority contained in said Chapter 210, Florida Statutes, may be repealed, amended or modified by the Legislature of Florida prior to such time; and said City further represents that the covenant entered into between the City and holders of the Bonds pursuant to this Section constitutes a valid and legally binding contract between the City and such bondholders not subject to repeal, impairment or modification by the City or the Legislature of the State of Florida. Section 4.03. APPLICATION OF BOND PROCEEDS. All moneys received from the sale of the Bonds authorized and issued pursuant to this resolution, except the accrued interest received at the time of delivery of the Bonds which shall be deposited in the Sinking Fund hereinafter created, shall be deposited by the City with a bank or trust company in a fund to be known as the "Water and Sewer Acquisition Fund", and the moneys in said Fund -19- RES. 28-72 shall be used only for the purpose of the acquisition of said water and sewer facilities as provided 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 withdrawn by the City from said Fund and transferred to and deposited in the Sinking Fund for the Bonds issued pursuant to this resolution. All such proceeds of the sale of the Bonds shall be and constitute trust funds for such purposes and there is hereby~created a lien upon such moneys until so applied in favor of the holders of the Bonds. SectiOn 4.04. 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 hereinafter established, a sum sufficient to pay, when due, the entire principal of the Bonds remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the holders of any and all of the Bonds issued pursuant to ~his resolution as follows: (A) CIGARETTE TAX FUND. The entire pro- ceeds received by the City from the levy and collection -20- RES. 28-72 of said Cigarette Taxes shall, as soon as received, con- tinue to be deposited in the special fund with a bank or trust company, created by said 1965 Resolution and designated as the "Cigarette Tax Fund". The Cigarette Tax Fund shall constitute a trust fund for the purposes provided in this resolution and shall be kept separate and distinct from all other funds of the City and shall be used only for the purposes and in the manner provided in said 1965 Resolution and in subsection (B) of this Section 4.04. (B) DISPOSITION OF CIGARETTE TAXES. That all Cigarette Taxes at any time remaining on deposit in the Cigarette Tax Fund shall be disposed of only in the following manner and in the following order: (1) Such Cigarette Taxes shall be used to make deposits into the Sinking Fund and Reserve Account therein for said 1965 Bonds in the manner provided in Section 4.05(B) of said 1965 Resolution. (2) Such Cigarette Taxes shall next be used to make the monthly payments to Sanco Corporation pursuant' to said Lease Agreement. -21- RES. 28-72 (3) Such Cigarette Taxes shall next be used for deposits into a fund for the Bonds issued pursuant to this resolution, which is hereby created and established and designated as the Sinking Fund, and the City shall, on or before the 15th day of each month, beginning with June 15, .1972, transfer from said Cigarette Tax Fund and deposit in said Sinking Fund an amount equal to one-twelfth (1/12) of the amount of interest which will mature and become due on said Bonds on the next annual interest payment date; and an amount equal to one-twelfth (1/12) of the amount of principal which will mature and become due on said Bonds on the next principal payment date. In the event that the period between the delivery of said Bonds and the first annual interest payment date and first annual maturity date is less than twelve months, the monthly de- poSits for interest and principal into said Sink- ing Fund shall be proportionately increased to make the full amount of interest and principal maturing and becoming due on said Bonds on such first annual interest payment date and such first annual maturity date of the Bonds issued pursuant to this resolution. The monthly deposits into said Sinking Fund for principal and interest on -22- RES. 28-72 said Bonds shall not be required to be made to the extent of any moneys then on deposit in said Sinking Fund and available for payment of prin- cipal and interest on said Bonds. The deposits into the Sinking Fund and Reserve Account therein for said 1965 Bonds and into the Sinking Fund for the Bonds issued pursuant to this resolution, shall be on a parity and rank equally, except that, in the event of any deficiency of the amounts required for all the deposits under clauses (1), (2) and (3) the monthly payments of rentals to Sanco Corporation under said Lease Agreement shall be junior and subordinate to the deposits for said 1965 Bonds, but shall be prior and superior to the deposits for the Bonds issued pursuant to this resolution. The City shall not be required to make any further payments into the Sinking Fund for the Bonds issued pursuant to this resolution when the aggregate amount of moneys in said Sink- ing Fund are at least equal to the aggregate amount of principal and interest which will thereafter become due on the Bonds issued pursuant to this resolution. -23- RES. 28-72 (4) If on any deposit date the cigarette Taxes are insufficient to deposit the required amounts in the Sinking Fund for the Bonds issued pursuant to this resolution, the deficiency shall be made up in the subsequent deposits in addition to the deposits which would otherwise be required to be made into said Sink- ing Fund on the subsequent deposit dates. (5) After making all the deposits in each month for said 1965 Bonds, the rental pay- ments under said Lease Agreement and the Bonds issued pursuant to this resolution, the City may withdraw and use for any lawful purpose all moneys remaining in said Cigarette Tax Fund. (6) The Sinking Fund created here- in for the Bonds issued hereunder shall constitute a trust fund for the purposes provided herein for such fund. Said Sinking Fund shall be continuously secured in the same manner as state and municipal deposits of funds are required to be secured by the State of Florida. Moneys in said Sinking Fund may be invested in direct obligations of the United States of America, or in time deposits in banks or trust companies secured by direct obligations Df the United States of America, maturing not later -24- RES. 28-72 than one year after the date of purchase thereof or must otherwise be maintained in cash. Moneys in the Cigarette Tax Fund may be invested in the manner provided in said 1965 Resolution. The income derived from any in- vestments of said Sinking Fund shall.be retained therein and be used to reduce the deposits re- quired to be made into said Sinking Fund. (C) ISSUANCE OF OTHER OBLIGATIONS PAY- ABLE OUT OF CIGARETTE TAXES. That the City will not issue any other obligations, except upon the conditions and in the manner provided herein, payable from said Cigarette Taxes, nor voluntarily create or cause to be created any debt, lien, pledge, assignment, encumbrance or any other charge having priority to or being on a parity with (except pari passu additional Bonds herein- after provided for) the lien of the Bonds issued pur- suant to this resolution and the interest thereon, upon any of said Cigarette Taxes or any part thereof. Any other obligations issued by the City in addition to said 1965 Bonds and the Bonds authorized by this reso- lution and pari passu additional Bonds hereinafter pro- vided for, shall contain an express statement that such obligations are junior and subordinate in all respects to the Bonds issued pursuant to this resolution as to -25- RES. 28-72 lien and source and security for payment from the Cigarette Taxes. (D) BOOKS AND RECORDS. That the City will keep books and records of the Cigarette Taxes, 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 in accordance with standard p~inciples of accounting of all transactions relating to the Cigarette Taxes, and any holder of a Bond or Bonds issued pursuant to this resolution shall have~ the right at all reasonable times to inspect all records, accounts and data of the City relating thereto. The City shall, at least once a year, cause the books, records and accounts relating to the .Cigarette Taxes to be properly audited by a competent auditor or accountant of recognized standing and shall mail to the original purchasers of the Bonds a copy of the report of said auditor or accountant and make a copy available at all reasonable times to any holder or holders of Bonds issued pursuant to this resolution or to anyone acting for and in behalf of such Bondholder or Bondholders. (E) ISSUANCE OF PARI PASSU ADDITIO~?.L BONDS. Pari passu additional Bonds, as defined in -26- RES. 28-72 Section 4.05(E) of said 1965 Resolution, payable pari passu with the Bonds issued pursuant to this resolution out of said Cigarette Taxes, may be issued after the issuance of .the Bonds pursuant to this resolution, under the conditions and in the manner provided in Section 4.05(E) of said 1965 Resolution, which by reference is hereby made a part hereof as fully and to the same extent as if included verbatim herein. (F) REMEDIES. Any holder of Bonds issued under the provisions of this resolution, or any trustee acting for such Bondholders in the manner hereinafter provided, may either at law or in equity, by suit, action, mandamus or other proceedings in any court of competent jurisdiction, protect and enforce any and all rights under~ the laws of the State of. Florida, or granted and contained in this resolution, and may enforce and compel the performance of all duties required by this resolution or by any applicable statutes to be performed by the City or by any officer thereof, including the levy and collection of Cigarette Taxes. In the event that default shall be made in the payment of the interest on or the principal of any of the Bonds issued pursuant to this resolution as the same shall become due, or in the making of the pay- ments into the Sinking Fund or any other payments required -27- RES. 28-72 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 provisions of this reso- lution, or shall default in any covenant made herein, and in the further event that any such default shall continue for a period of thirty (30) days, any holder of such Bonds, or any trustee appointed to represent Bondholders as hereinafter provided, shall be entitled as of right to the appointment of a receiver to col- lect and receive said Cigarette Taxes in an appropriate judicial proceeding in a court of competent jurisdiction whether or not such holder or trustee is also seeking or shall have sought to enforce any other right or exercise any other remedy in connection with Bonds issued pursuant to this resolution. The receiver so appointed shall forth- with, directly or by his agents and attorneys, collect and receive all Cigarette Taxes in the manner provided in this resolution and comply under the jurisdiction of the court appointing such receiver, with all of the provisions of this resolution. Whenever all that is due upon Bonds issued pursuant to this resolution, and interest thereon, and under any covenants of this resolution for sinking -28- RES. 28-72 funds or other funds, and upon any other obligations and interest thereon having a charge, lien or encum- brance upon the Cigarette Taxes shall have been paid and made good, and all defaults under the provisions of this resolution shall have been cured and made good, said receivership shall be terminated upon the entry of an order of the court to that effect. Upon any sub- sequent default, any holder ~ Bonds issued pursuant to this resolution, or any trustee appointed for Bond- holders 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 conferrred upon him be under the direction and supervision of the court making such appointment, shall at all times be subject to the orders and decrees of such court and may be removed thereby and a successor receiver appointed in the discretion of such Court. Nothing herein contained shall limit or restrict the jurisdiction of such court to enter such other and further orders and decrees as such court may deem necessary or appropriate for the exercise by the receiver of any function not specifically set forth herein. The holder or holders of Bonds in an aggregate principal amount of not less than twenty-five -29- RES. 28-72 per centum (25%) of Bonds issued under this resolu- tion then outstanding may by a duly executed certif- icate in writing apPoint a trustee for holders of Bonds issued pursuant to this resolution with authority to represent such Bondholders in any legal proceedings for the enforcement and protection of the rights of such Bondholders. Such certificate shall be executed by such Bondholders or their dUly authorized attorney or representatives, and shall be filed in the office of the City Clerk. (G) ENFORCEMENT OF COLLECTIONS. That the City will diligently enforce and collect or cause to be collected the Cigarette Taxes and will take all steps, actions and proceedings for the enforcement and collection of such Cigarette Taxes which shall become delinquent to the full extent permitted or authorized by the Act and by the laws of the State of Florida. (H) AVAILABILITY OF CIGARETTE TAXES. That the City has not heretofore pledged or encumbered in any manner said Cigarette Taxes, except as stated in Section 1.02 of this resolution, and that any pledge or encumbrance hereafter made of said Cigarette Taxes, or any part thereof, will be made expressly subora.~ate and inferior in all respects to the pledge of said -30- RES. 28-72 Cigarette Taxes to the payment of the Bonds issued pursuant to this resolution, including any pari passu additional Bonds hereafter issued, as herein provided. (I) BONDHOLDERS NOT RESPONSIBLE FOR APPLICATION OF BOND PROCEEDS. The holders of Bonds issued pursuant to this resolution shall have no re- sponsibility whatever for the application of the pro- ceeds of said Bonds, and the City shall be uncondition- ally and irrevocably obligated to pay the principal of and interest on said Bonds from said Cigarette Taxes as the same mature and become due, notwithstanding the application made by the City of the proceeds of said Bonds. (J) WATER AND SEWER FACILITIES TO BECOME PART OF CITY'S WATER AND SEWER SYSTEM. The water and sewer facilities acquired by~ the City pursuant to this resolution shall become a part of the Water and Sewer System of the City. -31- RES. 28-72 ARTICLE V MISCELLANEOUS section 5.01. MODIFICATION OR AMENDMENT. No material~modification oramendment of this resolu- tion, or of any resolution amendatory hereof or supple- mental hereto, may be made without the consent in writing of the holders of two-thirds or more in principal amount of the Bonds outstanding; provided, however, that no modification or amendment shall permit a change in the maturity of such Bonds or a reduction in the rate of interest thereon, or in the amount of the principal obligation thereof or affecting the unconditional promise of the City to pay the principal of and inter- est on the Bonds as the same shall come due from said Cigarette Taxes, or reduce the percentage of Bondholders required to consent to any material modification or amendment of this resolution, without the consent of the holders of such Bonds. Section 5.02. SEVERABILITY OF INVALID PRO- VISION. If any one or more of the covenants, agreements or provisions of this resolution shall be held contrary to any express provision of law or contrary to the policy o2 express law, though not expressly prohibited, or against public policy, or shall for any reason what- soever be held invalid, then such covenants, agreements, -32- RES. 28-72 or provisions shall be null and void and shall be deemed separable from the remaining covenants, agree- ments, or provisions, and shall in no way affect the validity of any of the other provisions of this reso- lUtion or of the Bonds or coupons issued hereunder. Section 5.03. ISSUANCE AND SALE OF DONDS. That said Bonds shall be issued and sold in such manner and at such price or prices as shall hereafter be de- termined pursuant to law. Section 5.04. TIME OF TAKING EFFECT. That this resolution shall take effect immediately upon its passage. PASSED AND ADOPTED on this 8th day of JUNE .. 1972. / MAYOR ATTEST:. City Cler~ -33- RES. 28-72