86-VResolution No.
A RESOLUTION AUTEORIZING TEE ISSUANCE OF NOT
EXCEEDING $11,000,000 AGGREGATE PRINCIPAL
AMOUNT OF PUBLIC SERVICE TAX REVENUE BONDS OF
THE CITY OF BOYNTON BEACH, FLORIDA, FOR THE
PURPOSE OF PROVIDING FUNDS TO PAY THE COST OF
CONSTRUCTING CERTAIN RECREATIONAL FACILITIES
ON LANDS OWNED BY THE CITY; PROVIDING FOR THE
PAYMENT OF SUC~ BONDS AND OF ANY ADDITIONAL
BONDS AND TEE INTEREST THEREON FROM CERTAIN
DESIGNATED REVENUES, PARTICULARLY PUBLIC
SERVICE TAX REVENUES; DESCRIBING T~E TERMS,
SECURITY AND OT~tER PROVISIONS OF S.UCE BONDS;
SETTING FORTH TEE RIGETS AND REMEDIES OF THE
OWNERS OF SUC~ BONDS; PROVIDING SEVERABILITY;
AND PROVIDING AN EFFECTIVE DATE.
W~EREAS, under the authority granted by the Constitution and
laws of the Sta~e of Florida, including the Charter of the City
of Boynton Beach (Chapter 24398, Laws of Florida, Acts of 1947,
as amended) and Chapter 166, Florida Statutes, the City of
Boynton Beach, Florida (the "City") is authorized to issue
revenue bonds payable from the Designated Revenues hereinafter
described, which bonds do not pledge the property, credit or
· general tax revenue of the City, for the purpose of paying the
cost of acquiring and constructing capital projects; and
W~EREAS, pursuant to Resolution No. 84-TTT, adopted by the
City Council of the City (the "City Council") on September 5,
1984 (the "1984 Resolution") the City has heretofore issued
$4,000,000 aggregate principal amount of its Recreational
Facilities Revenue Bonds, Series 1984 (the "1984 Bonds") for the
purpose of refunding $4,000,000 aggregate principal amount of
Recreational Facilities Revenue Bonds, Series 1982, issued to
finance the acquisition and construction of a twenty-seven hole
golf course and appurtenant facilities in the City; and
W~EREAS, pursuant to a resolution adopted or to be adopted
by the City Council (the "Refunding Resolution"), the City
Council has determined to authorize the issuance of not exceeding
$5,000,000 aggregate principal amount of its Recreational
Facilities Revenue Refunding Bonds, payable primarily from moneys
other than Designated Revenues, for the purpose of paying or
providing for the payment of the principal of and premium, if
any, and interest on the 1984 Bonds; and
Wt{EREAS, the City Council kas determined and does hereby
determine at this time to authorize the issuance of not exceeding
$11,000,000 aggregate principal amount of Public Service Tax
Revenue Bonds of the City of Boyn~on Beach, Florida (the "1986
Bonds") for the purpose of providing funds, together with other
available funds, for paying the Cost (as defined herein) of
constructing the 1986 Projects hereinafter described;.and
WqIEREAS, prior to the earlier of the date on which the
payment of the 1984 Bonds and the interest and premium thereon is
provided for and the date on which the conditions set forth in
Section 514 of the 1984 Resolution are satisfied~ the 1986 Bonds
shall be payable, as to principal and premium, if any, and
interest, solely from proceeds received from Designated Revenues
and deposited to the Sinking Fund Account hereinafter created,
after all payments and deposits, if any, required under the 1984
Resolution to be made from proceeds received from Designated
Revenues have been made and to the extent hereinafter set forth;
NOW, TEEREFORE, BE IT RESOLVED BY TEE CITY COUNCIL OF TEE
CITY OF BOYNTON BEACE, FLORIDA:
ARTICLE I.
Definitions and Rules of Construction
Section 101. Meaninq of Words and Terms. In addition to
words and terms elsewhere defined in this Resolution, the
following words and terms as used in this Resolution shall have
the following meanings, unless some other meaning is plainly
intended:
"Accountant" shall mean the independent certified public
accountants or firm of independent certified public accountants
employed by the City under the provisions of Section 702 of this
Resolution to perform and carry out the duties imposed on the
Accountant by this Resolution.
"Accreted Amount" shall mean with respect to Capital
Appreciation Bonds of any series, the amount set forth in a
Supplemental Resolution as the amount representing the initial
public offering price, plus the accumulated and compounded
interest on such Bonds.
"Amortization Requirement", as applied to the Term Bonds of
each maturity and for any Bond Year, shall mean the principal
amount fixed or computed as hereinafter set forth for the
retirement of such Term Bonds by purchase or redemption on the
Principal Payment Date of the following Bond Year, as provided in
the Supplemental Resolution contemplated by Section 301 hereof.
"Amortized Cost", when used with respect to an obligation
purchased at a premium above or discount below pare shall mean as
of any subsequent date of valuation, the value obtained by
dividing the total premium or discount by the number of interest
payment dates remaining to maturity on any such obligation at the
time of such purchase and by multiplying the amount calculated by
the number of interest payment dates having passed since the date
of purchase and (i) in the case of an obligation purchased at a
premium, by deducting the product thus obtained from the purchase
price, and (ii) in the case of an obligation purchased at a
discount, by adding the product thus obtained to the purchase
price.
"Balloon Indebtedness" shall mean Indebtedness twenty-five
percent (25%) or more of the principal of which matures in a
single Bond Year on the same date, which portion of the principal
is not required by the documents governing such Indebtedness to
be amortized by payment or redemption prior to such date. If~ any
Indebtedness consists partially of Variable Rate Indebtedness and
partially of Indebtedness bearing interest at a fixed rate, the
portion constituting Variable Rate Indebtedness and the portion
bearing interest at a fixed ra~e shall be treated as separate
issues for purposes of determining whether any such Indebtedness
constitutes Balloon Indebtedness.
"Bond Registrar" shall mean for the Bonds of any series, the
bank or trust company, either within or without the State of
Florida, designated as such by the City Council~ and performing
the duties that are required by this Resolution and/or the duties
set forth in the Supplemental Resolution providing for the
issuance of such Bonds.
"Bondholders" shall mean the registered owners of the Bonds.
"Bonds" shall mean, collectively, the bonds issued under the
provisions of Article II of this Resolution, but not any Junior
Obligations or obligations payable from the General Account.
"Bond Year" shall mean the period commencing on the first
day of November of any calendar year and ending on the 31st day
of October of the following calendar year or such other annual
period commencing and ending on the dates specified in a
Supplemental Resolution.
"Business Day" shall mean any day other than a Saturday or
Sunday, on which commercial banks (including the Fiscal Agent if
a bank or trust company has been appointed as Fiscal Agent, the
Bond Registrar, any. Depositary and any Paying Agent) are open for
business in the State of Florida and in New York, New York and on
which the New YOrk Stock Exchange is open.
"Capital Appreciation Bonds" shall mean Bonds the interest
on which is compounded and accumulated at the rates and on the
dates set forth in a Supplemental Resolution and is payable upon
redemption or on the maturity date of such Bonds.
"City" shall mean the City of Boynton Beach, F~orida, a
municipal corporation organized and existing under the laws of
the State of Florida.
"City Attorney" shall mean the City Attorney of the City or
the officer succeeding to his principal functions.
"City Clerk" shall mean the City Clerk of the City, any
Deputy Clerk or the officer succeeding to his principal
functions.
"City Council" shall mean the City Council of the City of
Boynton Beach or the board or body succeeding to its principal
functions.
"City Manager" shall mean the City Manager of the City or
his designee or the officer succeeding to his principal
functions.
"Closing" shall mean the date on which Bonds are initially
delivered against payment therefor.
"Construction Account" shall mean the Boynton Beach Public
Service Tax Revenue Bonds Construction Account, a special account
created and designated by Section 401 of this Resolution.
"Cost", as applied to any Project, shall embrace the cost of
acquisition and construction and all obligations and expenses and
all items of cost that are set forth in Section 402 of this
Resolution.
"Coverage" shall mean the number derived by dividing (a) the
amount of the proceeds received by the City from Designated
Revenues, as shown in any twelve consecutive, monthly reports of
the eighteen monthly reports immediately preceding the date of
calculation and adjusted in the manner described in Section 209
of this Resolution, by (b) the sum of (I) the maximum amount of
the Debt Service Requirements for the current Bond Year and any
future Bond Year on account of all Bonds and Parity Indebtedness
(other than the Refunding Pledged Amount) then outstanding and
(II) the maximum annual Refunding Pledged Amount for the current
Bond Year and any future Bond Year.
"Credit Bank" shall mean as to any particular series of
Bonds, the person (other' than an Insurer) providing a letter of
credit, a line of credit, a guaranty or another credit- or
liquidity-enhancement facility, as designated in the Supplemental
Resolution providing for the issuance of such Bonds.
"Credit Facility" shall mean as to any particular series of
Bonds, a letter of credit, a line of credit, a guaranty or
another credit- or liquidity-enhancement facility (other than an
insurance policy issued by an Insurer), as described in the
Supplemental Resolution providing for the issuance of such Bonds.
"Current Interest Bonds" shall mean Bonds the interest on
which is payable on the Interest Payment Dates provided therefor
in a Supplemental Resolution.
"Daily Newspaper" shall mean a newspaper or
journal published in the English language on at
Business Day in each calendar week.
financial
least one
"Debt Service Requirement" shall mean, for any Bond Year,
the aggregate of (a) Principal and Interest Requirements on Bonds
of all series then outstanding for such Bond Year and (b) the
payments required to be made in respect of Parity Indebtedness
for such Bond Year, employing the methods of calculation set
forth in clauses (A), (B), and (C) of Section 209 hereof in the
cases of Balloon Indebtedness, Variable Rate Indebtedness and
Optional Tender Indebtedness; provided, however, that interest
expense shall be excluded from the determinations of Debt Service
Requirement to the extent such interest is to be paid from the
proceeds of such Indebtedness or from investment (but not
reinvestment) earnings thereon (other than proceeds and
investment earnings on deposit in the Reserve Subaccount) if such
proceeds shall have been invested in Federal Securities and to
the extent such earnings may be determined precisely; and
provided further that interest expense on Credit Facilities drawn
upon to purchase but not to retire Bonds, to the extent such
interest exceeds the interest payable on the related Bonds, shall
be included in the determination of Debt Service Requirement.
"Defaulted Interest" shall
defined in Section 203 hereof.
mean Defaulted Interest as
"Depositary" shall mean any one or more banks or trust
companies duly authorized by law to engage in the banking
business and designated by the City Council as a depositary of
moneys under the provisions of this Resolution.
"Deposit Day" shall mean (i) the twentieth (20th) day of
each month in which a withdrawal from the Designated ReVenue
Account is required to accomplish the deposits and transfers
required by Section 503 of this Resolution, and (ii) for any
series of Bonds or for Parity Indebtedness any other day that may
be designated in a Supplemental Resolution as a "Deposit Day".
"Designated Revenue Account" shall mean the Boynton Beach
Public Service Tax Fund and any other special account or
subaccount created in accordance with the last paragraph of
Section 501 of this Resolution.
"Designated Revenues" shall mean (a) the non-ad valorem tax
revenue source available to the City consisting of the public
service taxes levied at any time on the purchase of electricity,
metered or bottled gas (natural, liquified petroleum gas or
manufactured), water service, telephone service~ and telegraph
service pursuant to the authority granted to the City by Section
166.231, Florida Statutes; (b) any other non-ad valorem revenue
source designated by the City Council as a "Designated Revenue"
in the event all or any portion of the revenue source described
in clause (a) of this paragraph becomes unavailable; and (c) all
income realized from the investment of moneys on deposit in or
credited to the Sinking Fund Account, whether such investment
income remains in said account or is transferred to the
Designated Revenue Account.
"Federal Securities" shall mean obligations described in
paragraphs (1) and (2) of the definition of Permitted
Investments.
"Finance Director" shall mean the Director of Finance of the
City or his designee or the officer succeeding to his principal
'functions.
"Fiscal Agent" shall mean the Finance Director or, if so
designated by the City Council, any bank or trust company
authorized by law to engage in the banking business and to
exercise trust powers.
"Fiscal Year" shall mean the period commencing on the first
day of October and ending on the last day of September of the
following year as the same may be amended from time to time to
conform to the fiscal year of the City.
"General Account" shall mean the Boynton Beach Public
Service Tax Revenue Bonds General Account, a special account
created and designated by Section 503 of this Resolution.
"Government Obligations" shall mean (i) direct obligations
of, or obligations the timely payment of the principal of and the
interest on which are unconditionally guaranteed by, the United
States of America, or evidences of indirect ownership of such
obligations, and (ii) obligations of state or local government
bond issuers, provision for the payment of the principal of and
interest on which shall have been made by deposit with an escrow
agent or trustee of obligations described in clause (i) the
principal of and interest on which when due will be sufficient to
pay the principal of and interest on such state or local
governmental obligations when due.
"Indebtedness" shall mean (i) Bonds, (ii) the Refunding
Pledged Amount, (iii) all other indebtedness of the City for
borrowed money payable from proceeds received from Designated
Revenues and (iv) all installment sales and capital lease
obligations incurred or assumed by the City and payable from
proceeds received from Designated Revenues. Obligations to
reimburse Credit Banks for amounts drawn under Credit Facilities
to pay the Purchase Price of Optional Tender Indebtedness shall
not constitute Indebtedness, except to the extent such
obligations exceed the Debt Service Requirements on the Bonds or
any Parity Indebtedness held by or pledged to or for the account
of a Credit Bank that shall have paid the Purchase Price of
Optional Tender Indebtedness.
"Insurer" shall mean, as to any particular maturity or any
particular series of Bonds, the person undertaking to insure such
Bonds as designated in a Supplemental Resolution providing for
the issuance of such Bonds.
"Interest Payment Date" shall mean a May 1 or November-I, as
the case may be; provided, however, that Interest Payment Date
may mean, if so provided in a Supplemental Resolution, such other
date or dates provided therein or permitted thereby.
"Interest Period" shall mean each period from and including
an Interest Payment Date to and including the day immediately
preceding the next Interest Payment Date.
"'Interest Requirement" for any Bond Year, as applied to
Bonds of any series, shall mean the amount that is required to
pay interest on all outstanding Bonds on the May 1 Interest
Payment Date in such Bond Year and on the November 1 Interest
Payment Date of the next succeeding Bond Year. If the Interest
Payment Dates for any Bonds are other than or are in addition to
May 1 and November 1, or if interest is not payable at a single
numerical rate for the entire term of such Bonds, the "Interest
Requirement" shall have the appropriate meaning assigned thereto
by the Supplemental Resolution providing for the issuance of such
Bonds.
"Junior Obligations" shall mean the obligations of the City
for the payment of the principal of and the interest on which
moneys in the Junior Obligations Account are pledged pursuant to
the provisions of Section 506 of this Resolution.
"Junior Obligations Account" shall mean the Boynton Beach
Public Service Tax Revenue Bonds Junior Obligations Account, a
special account created and designated by the provisions of
Section 503 of this Resolution.
"Mayor" shall mean the Mayor or Vice Mayor' of the City or
the officer succeeding to his principal functions.
"Moody's" shall mean Moody's Investors Service, Inc., its
successors and assigns and, in the event such corporation ceases
to rate municipal bonds, any other nationally recognized rating
service.
'~1984 Bonds" shall mean the outstanding Recreational
Facilities Revenue Bonds, Series 1984, of the City dated as of
October 1, 1984.
"1984 Resolution" shall mean Resolution No. 84-TTT, adopted
by the City Council on September 5, 1984, as such resolution may
be amended from time to time.
"1986 Bonds" shall mean the Bonds authorized to be issued
under Section 208 of this Resolution.
"1986 Projects" shall mean
(a) the construction of a multi-purpose civic center to
consist of approximately 1,500 seats on a site to be owned by
the City;
(b) improvements required to complete the Congress Avenue
Community Park, located on South Congress Avenue, including,
inter alia, an additional section of tennis courts, a softball
hitting practice-field, a baseball hitting practice-field, a
playground, a picnic area (with pavillions), an outdoor
amphitheater, parking lots, roads, entrances, and other related
facilities;
(c) improvements at Rolling Green Park, including a
neighborhood-sized gymnasium with spectator seating; concession
areas, lockers, showers, and public restrooms; space for meeting
rooms and community activities; an adjacent parking lot; con-
struction on the remainder of the acreage on North Seacrest, and
the expansion of the existing park, to encompass the area sur-
rounding the proposed community center and the construction
thereon, of athletic ballfields with bleachers and lighting,
outside basketball courts, children's playground and equipment,
picnic area with tables, tennis courts and/or handball courts,
parking, and other related facilities;
(d) improvements at Rolling Green Elementary Community
School Park, including parking facilities with approximately
40 spaces, lighted tennis courts, a multipurpose ballfield,
basketball court improvements, quiet games- and picnic- areas,
playground equipment improvements, and other related
facilities; and
(e) any other capital project or expenditure the City
Council determines in a subsequent resolution should be
acquired, constructed or made with the proceeds received from
the sale of the 1986 Bonds.
"Optional Tender Indebtedness" shall mean any portion of
Indebtedness incurred under this Resolution a feature of which
Indebtedness is an option on the part of the owners of such
Indebtedness to tender to the City or to the Fiscal Agent or to
any Depositary, Paying Agent, remarketing agent or other
fiduciary for any such owners or remarketing agent, or to an
agent of any of the foregoing, all or a portion of such
Indebtedness for payment or purchase.
"Outstanding" shall mean, when used with respect to the
Bonds, all Bonds theretofore authenticated and delivered except:
(a) Bonds paid or redeemed or delivered to or acquired
by the City Council or the Bond Registrar for cancellation;
(b) Bonds for which the Fiscal Agent or the Bond
Registrar or any Depositary or Paying Agent shall hold
sufficient moneys or Government Obligations the principal of
and the interest on which, when due and payable, will
provide sufficient moneys to pay the principal of, and the
interest and redemption premium, if any, on such Bonds to
their maturity date or dates or dates fixed with respect to
Amortization Requirements or to the date or dates fixed for
their optional redemption; provided, however, that for
Variable Rate Indebtedness, the City Council may Provide in
a Supplemental Resolution entered inSo prior to the issuance
of such Variable Rate Indebtedness for a method of
calculating the, or for a m~ximum assumed, rate of interest
to be taken into account in determining the sufficiency of
such moneys or Government Obligations; and
(c) Bonds in exchange for or in lieu of which other
Bonds have been authenticated and delivered under this
Resolution;
provided, however, that in determining whether the owners of the
requisite principal amount of outstanding Bonds have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder, Bonds owned by the City or any other obligor
upon the Bonds shall be disregarded and deemed not to be
outstanding, except that the term "obligor upon the Bonds" shall
not include any Insurer or any Credit Bank unless otherwise
provided in a Supplemental Resolution and except that in
determining whether the Fiscal Agent or Bond Registrar shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Bonds
that the Fiscal Agent or Bond Registrar knows to be so owned
shall be so disregarded. Bonds so owned that have been pledged
in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Fiscal Agent or Bond
Registrar the pledgee's right so to act with respect to such
Bonds and that the pledgee is not the City or any other obligor
upon the Bonds except a Credit Bank or an Insurer.
"Parity Indebtedness" shall mean any Indebtedness incurred
in accordance with Section 704 of this Resolution and payable
from proceeds received by the City from Designated Revenues on a
parity with the Principal and Interest Requirements of the Bonds
and either (I) on and after the date on which the City first
satisfies the conditions set forth in the second paragraph of
Section 514 of the 1984 Resolution, the 1984 Bonds if the 1984
Bonds are then deemed to be outstanding under the 1984 Resolution
or (II) the Refunding Pledged Amount.
"Paying Agents" shall mean with respect to the Bonds of each
series the one or more banks or trust companies designated as the
paying agent or tender agent in a Supplemental Resolution and
performing the duties set forth in such Supplemental Resolution.
"Permitted Investments" shall mean any of the following that
at the time are legal investments under the laws of the State of
Florida for moneys held hereunder and then proposed to be
invested therein:
(1) Government Obligations;
(2) obligations, debentures, notes or other evidences
of indebtedness issued or guaranteed by any of the
following: Banks for Cooperatives, Federal Intermediate
Credit Banks, Federal Home Loan Bank Systems, Export-Import
Bank of the United States, Federal Financing Bank, Federal
Land Banks, Federal National Mortgage Association or
Government National Mortgage Association;
(3) all other obligations issued or unconditionally
guaranteed as to the timely payment of principal and
interest by an agency or person controlled or supervised by
and acting as an instrumentality of the United States of
America pursuant to authority granted by the Congress of the
United States of America;
(4) obligations issued by public agencies or
municipalities and fully secured as to the payment of both
principal and interest by a pledge of annual contributions
under an annual contributions contract or contracts with the
United States of America, or temporary notes, preliminary
loan notes or project notes issued by public agencies or
municipalities and fully secured as to the payment of both
principal and interest by a requisition or payment agreement
with the United States of America;
(5) interest-bearing demand or time deposits
(including certificates of deposit) in banks and savings and
loan associations, either having a capital and surplus of at
least $20,000,000 at the time of the investment or any
renewal thereof or secured at all times, in the manner and
to the extent provided by law, by collateral security
described in clauses (1) or (2) of this definition and of a
market value of no less than the amount of moneys so
invested; and
(6) repurchase agreements with reputable financial
institutions fully secured by investments described in
clause (1) continuously having a market value at least equal
to the amount so invested and held by a third party.
"[P]erson" shall mean and include an association,
unincorporated organization, a corporation, a partnership, a
joint venture, a business trust, or a government or an agency or
a political subdivision thereof, or any other public or private
entity, or a natural person.
"Predecessor Bonds" of any particular Bond shall mean every
previous Bond evidencing all or a portion of the same debt as
that evidenced by such particular Bond. For purposes of this
definition, any Bond authenticated and delivered under Section
213 of this Resolution in lieu of a mutilated, destroyed, stolen
or lost Bond shall be deemed to evidence the same debt as the
mutilated, destroyed, stolen or lost Bond.
"[P]rincipal" shall mean (i) with respect to the principal
amount of any Capital Appreciation Bond, the Accreted Amoun~
thereof (the difference between the stated amount to be paid at
maturity and the Accreted Amount being deemed unearned interest)
except as used in this Resolution in connection with the
authorization and issuance of Bonds and with the order of
priority of payments of Bonds after an event of default, in which
case "principal" means the initial public offering price of a
Capital Appreciation Bond (the difference between the Accreted
Amount and the initial public offering price being deemed
interest) but when used in connection with determining whether
the owners of the requisite principal amount of Bonds then
outstanding have given any request, demand, authorization,
direction, notice, consent of waiver, "principal amount" means
the Accreted Amount and (ii) with respect to the principal amount
of any Current Interest Bond, the principal amount of such Bond
payable at maturity.
"Principal and Interest Requirements" for any Bond Year
shall mean the sum of the Principal Requirement and the Interest
Requirement for such Bond Year.
10.
"Principal and Interest Subaccount" shall mean the Principal
and Interest Subaccount, a special subaccount created and
designated by Section 503 of this Resolution.
~'Principal Payment Date" shall mean a November 1 upon which
the principal of any Bond is stated to mature or upon which the
principal of any Term Bond is subject to redemption in
satisfaction of an Amortization Requirement; provided, however,
Principal Payment Date may mean, if so provided by a Supplemental
Resolution, such other date or dates as may be provided thereby
or permitted therein.
~'Principal Requirement" for any Bond Year, as applied to the
Bonds of any series, shall mean the sum of
(a) the amount required to pay the principal of all
outstanding Bonds of such series scheduled to mature on
November 1 in the following Bond Year, and
(b) the Amortization Requirement for the outstanding
Term Bonds of such series for November 1 of the following
Bond Year.
If the Principal Payment Date for any Bonds is other than or in
addition to a November 1, then "Principal Requirement" shall have
the appropriate meaning assigned thereto by the applicable
Supplemental Resolution.
"Projects" shall mean, collectively, the 1986 Projects and
any ot~her projects, including improvements to any project,
designated as such by the City Council and financed as a whole or
in part under this Resolution, all as described in the plans and
specifications of the City, as such plans and specifications may
be amended from time to time and filed at the office of the City
Manager.
"Purchase Price" shall mean the purchase price established
in any Supplemental Resolution for Optional Tender Indebtedness
as the purchase price to be paid for such Indebtedness upon an
optional or mandatory tender of all or a portion of such
Indebtedness.
"Redemption Price" shall mean, with respect to Bonds or a
portion thereof, the principal amount of such Bonds or portion
thereof plus the applicable premium, if any, payable upon
redemption thereof in the manner contemplated in accordance with
their terms and this Resolution.
11.
"Refunding Pledged Amount" shall mean the amount of
Designated Revenues equal to the amount of the maximum annual
debt service requirements for any Bond Year on account of all
bonds and indebtedness payable on a parity therewith issued or
incurred under the Refunding Resolution and then outstanding,
less the amount of Guaranteed Entitlement (as defined in the
Refunding Resolution) received or to be received in such Bond
Year.
"Refunding Resolution" shall mean the resolution adopted or
to be adopted by the City Council, which resolution provides for
the issuance of Recreational Facilities Revenue Refunding Bonds
to pay or to provide for the payment of the 1984 Bonds.
"Regular Record Date" shall mean, for each series of Bonds,
the record date or dates established for the Bonds of such series
in a Supplemental Resolution.
"Reserve Subaccount" shall mean the Reserve Subaccount, a
special accoun~ created and designated by Section 503 of this
Resolution.
"Reserve Subaccount Insurance Policy" shall mean the
insurance policy or surety bond or irrevocable letter of credit
or guaranty deposited in the Reserve Subaccount in lieu of or in
partial substitution for cash on deposit or to be deposited
therein. Such Reserve Subaccount Insurance Policy shall be
payable (upon the giving of notice as required thereunder) on any
Interest or Principal Payment Date (for the series of Bonds
respect of which it was deposited) on which a deficiency exists
in the Principal and Interest Subaccount. The issuer providing
such Reserve SUbaccount Insurance Policy shall be (A) an insurer
that has been assigned either (i) one of the two highest
policyholder ratings accorded insurers by A.M. Best & Co. or any
comparable service or (ii) for bonds insured by the issuer of
such Policy, a rating by either Moody's or Standard & Poor's in
one of the two highest rating categories (without regard to
gradations, such as "plus" or "minus", of such categories) or
(B) a commercial bank, insurance company or other financial
institution the bonds payable or guaranteed by which have been
assigned a rating by either Moody's or Standard & Poor's in one
of the two highest rating categories (without regard to
gradations, such as "plus" or "minus", of such categories).
"Reserve Subaccount Requirement" (a) as to each series of
Bonds shall mean, as of any date of calculation, an amount of
money, securities or Reserve Subaccount Insurance Policy equal to
50% of the maximum Principal and Interest Requirements for any
Bond Year if the Coverage on the date of calculation is at least
2, 75% of the maximum Principal and Interest Requirements for any
12.
Bond Year if the Coverage on the date of calculation is less than
2 but is at least 1.75, and 100% of the maximum Principal and
Interest Requirements for any Bond Year if the Coverage is less
than 1.75; and (b) as to Parity Indebtedness (except the 1984
Bonds) shall mean an amount of money, securities or Reserve
Subaccount Insurance Policy equal to 50% of the maximum annual
payments to be made on such Parity Indebtedness in any Bond Year
if the Coverage on the date of calculation is at least 2, 75% of
the maximum amount of annual payments to be made on such Parity
Indebtedness in any Bond Year if the Coverage is less than 2 but
is at least 1.75, and 100% of the maximum amount of annual
payments to be made on such Parity Indebtedness if the Coverage
is less than 1.75. In computing the Reserve Subaccount
Requirement in respect of any Bonds or Parity Indebtedness that
constitute Variable Rate Indebtedness, the interest rate on such
Bonds or Parity Indebtedness shall be assumed to be the greatest
of (i) the interest rate on any Bonds or Parity Indebtedness that
do not constitute Variable Rate Indebtedness delivered
simultaneously with the Bonds or Parity Indebtedness that
constitute Variable Rate Indebtedness, (ii) one hundred twenty-
five percent (125%) of the daily average interest rate on any
outstanding Bonds or Parity Indebtedness constituting Variable
Rate Indebtedness during the twelve (12) months ending with the
month preceding the date of calculation, or such shorter period
that such Bonds or Parity Indebtedness shall have been
outstanding, (iii) the rate of interest on such Bonds or Parity
Indebtedness constituting Variable Rate Indebtedness on the date
of calculation and (iv) the interest rate determined in a
Supplemental Resolution and in a letter from an investment
banking or financial advisory firm to be the interest rate such
Bonds or Parity Indebtedness would have borne had such Bonds or
Parity Indebtedness not constituted Variable Rate Indebtedness.
In the case of Bonds or Parity Indebtedness constituting
Balloon Indebtedness, the Principal Requirement or principal
payment shall be adjusted to include the greatest principal
amount established for any Bond Year pursuant to clauses (A)(i)
or (ii) of Section 209 of this Resolution.
In connection with the Bonds or Parity Indebtedness
constituting Optional Tender Indebtedness, the date or dates on
which the owners thereof may at their option tender such Bonds or
Indebtedness for payment or purchase shall be disregarded.
"Resolution" shall mean this Resolution as the same may be
amended or supplemented from time to time in accordance with
Article X hereof.
13.
"Serial Bonds" shall mean the Bonds that shall be stated to
mature in annual installments and "Term Bonds" shall mean Bonds
of a series, other than Serial Bonds, that shall be stated to
mature on one or more dates.
"Sinking Fund Account" shall mean the Boynton Beach Public
Service Tax Revenue Bonds Interest and Sinking Fund Account, a
special account created and designated by Section 503 of this
Resolution.
"Special Record Date" for the paymen5 of any Defaulted
Interest on Bonds shall mean a date fixed by the Bond Registrar
pursuant to Section 203 of this Resolution.
"Standard & Poor's" shall mean Standard & Poor's Corporation
and its successors and assigns and, in the event such corporation
ceases to rate municipal bonds, any other nationally recognized
rating service.
"Supplemental Resolution" shall mean (a) an agreement
between the City and the Bond Registrar or any Paying Agent,
supplemental to this Resolution and in conformity with the
provisions of Article X hereof, or (b) a resolution adopted by
the City Council in conformity with the provisions of this
Resolution, providing for the issuance of a series of Bonds and
setting forth the provisions and details thereof not inconsistent
herewith.
"Variable Rate Indebtedness" shall mean any portion of
Indebtedness the interest rate on which is not established at the
time of incurrence of such Indebtedness at a single numerical
rate for the entire term of the Indebtedness.
Section 102. Rules of Construction. (a) Words of the
masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Unless the
context shall otherwise indicate, the words "Bond", "owner ",
"holder" and "person" shall include the plural as well as the
singular number, and the word "holder" or "Bondholder" or "owner"
when used herein with respect to Bonds issued hereunder shall
mean the registered owner of Bonds at the time issued and
outstanding hereunder.
(b) Headings of articles in sections herein and the table
of contents hereof are solely for convenience of reference, do
not constitute a part hereof and shall not affect the meaning,
contruction or effect hereof.
14.
(c) Provisions calling for the redemption of Indebtedness or
the calling of Indebtedness for redemption do not mean or include
the payment of Indebtedness a5 its stated maturity.
15.
ARTICLE II.
Form, Execution, Issuance,
Authentication, Delivery and Registration
of Bonds
Section 201. Limitation of Issuance of Bonds. No Bonds may
be issued under this Resolution except in accordance with the
provisions of this Article. All covenants, agreements and
provisions of this Resolution shall be for the equal benefit and
security of all present and future Bondholders without preference,
priority or distinction as to lien or otherwise, except as
otherwise hereinafter provided.
Section 202. Form of Bond's. Unless otherwise provided in a
Supplemental Resolution, the definitive Bonds are issuable in
fully registered form in the denomination of $5,000 or any
integral multiple thereof. The definitive Bonds issued under the
provisions of Section 208 of this Article shall be substantially
in the form hereinafter set forth, with such appropriate
variations, omissions and insertions as are required or permitted
by this Resolution. The Bonds issued under the provisions of any
other Section of this Article shall be substantially in the form
hereinafter set forth, with such additional changes as may be
necessary or appropriate to conform to the provisions of this
Resolution and any Supplemental Resolution providing for the
issuance of such Bonds. All such Bonds may have endorsed thereon
such legends or. text as may be necessary or appropriate to
conform to any applicable rules and regulations of any
governmental authority or of any securities exchange on which the
Bonds may be listed or any usage or requirement of law with
respect thereto.
16.
[Form of Face of Bonds]
No.
United States of America
State of Florida
County of Palm Beach
City of Boynton Beach
Public Service Tax Revenue Bond
Series 1986
[Initial]
Interest Rate
Maturity Date Original Issue Date
CUSIP No.
Registered Owner
Principal Amount
Dollars
The City of Boynton Beach (the "City"), a municipal
corporation organized and existing under the laws of the State of
Florida, for value received, promises to pay, but solely from the
sources and in the manner described herein, to the Registered
Owner named above, or registered assigns, on the Maturity Date
set forth above (or earlier as hereinafter referred to), upon the
presentation and surrender hereof, a5 the principal corporate
trust office of , in
, (said bank, together with any
successor appointed to act as such, is hereinafter referred to as
the "Bond Registrar"), the Principal Amount set forth above in
any coin or currency of the United States of America that on the
date of payment thereof is legal tender for the payment of public
and private debts, and to pay in like coin or currency interest
on said Principal Amount on [each 1 and
l, commencing ,] solely from such sources, from
the date hereof or the [ 1 or 1]
17.
next preceding the date on which this bond is authenticated
unless it is authenticated on [ 1 or 1],
in which event from such date, [at the Interest Rate set forth
above] 'until the Principal Amount hereof is paid. The interest
so payable and punctually paid or duly provided for on any
interest payment date will, as provided in the Resolution
hereinafter referred to, be paid by check mailed to the person in
whose name this Bond (or one or more Predecessor Bonds, as
defined in the Resolution) is registered at the close of business
on the regular record date for such interest [, which shall be
the next preceding such interest payment
date]. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the registered owner
on such regular record date and may be paid to the person in
whose name this Bond (or any Predecessor Bond, as defined in the
Resolution) is registered at the close of business on a special
record date for the payment of such defaulted interest to be
fixed by the Bond Registrar hereinafter mentioned, notice whereof
being given by the Bond Registrar by mail to the registered
owners not less than 10 days prior to such special record date,
or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Bonds of ~this series may be listed and upon such notice
as may be required by such exchange, or as more fully provided in
the Resolution. Such payment of interest shall be by check
mailed to the registered owner at such owner's address as it
appears on the bond registration books of the City maintained by
the Bond Registrar and shall be made in any coin or currency of
the United States of America that on the date of payment thereof
is legal tender for the payment of public and private debts.
Revise the
paraqraph above as appropriate for Capital
ADpreciation Bonds and for such Bonds that become Current
Interest Bonds and for Variable Rate Indebtedness and for such
Bonds that may convert to a fixed interest rate.
This Bond shall not be deemed to constitute a debt of the
City or a pledge of the faith and credit of the City, but shall be
payable exclusively from the special account provided therefor
from the proceeds received by the City from certain designated,
non-ad valorem tax revenue sources, particularly certain public
service tax revenues (the "Designated Revenues"). The issuance of
this Bond shall not directly or indirectly or contigently obligate
the City to levy or to pledge any form of taxation whatever
therefor, other than the Designated Revenues, and the holder of
this Bond shall have no recourse to the power of ad valorem
taxation.
18.
This Bond is one of a duly authorized series of revenue bonds
of the City known as "City of Boynton Beach Public Service Tax
Revenue Bonds, Series 1986" (the "Series 1986 Bonds"), consisting
of Bonds [stated to mature in annual installments on [November] !
in the years 19 to , inclusive ("Serial Bonds"), and of
Bonds stated to mature on the 1st day of [November], ("Term
Bonds")], all of like date and issued for the purpose of providing
funds, together with any other available funds, for paying the
Cost (as defined in the Resolution) of acquiring and constructing
the 1986 Projects described in the Resolution.
The Series 1986 Bonds, together with any other Bonds of the
City issued under the Resolution are referred to herein as the
"Bonds".
ADDITIONAL PROVISIONS OF TEIS BOND ARE SET FORTE ON TEE
REVERSE EEREOF AND S~tALL FOR ALL PURPOSES HAVE TEE SAME EFFECT AS
T~OUG~ SET FORTE EERE.
IN WITNESS WHEREOF, the City of Boynton Beach has caused this
Bond to bear the facsimile signature of [to be signed by] its
Mayor and to bear the facsimile signature of [to be signed by] its
City Clerk and a facsimile of its official seal to be imprinted
hereon, all as of the 1st day of , .
CITY OF BOYNTON BEAC~
By
Mayor
[Seal]
City Clerk
The foregoing Bond has
been approved by me as
to form and correctness.
[Facsimile Siqnature]
City Attorney
19.
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the seri~s designated
therein and issued under the provisions of the within-mentioned
Resolution.
Bond Registrar
By
Authorized Officer
Date of Authentication:
[Form of Reverse of Bonds]
Ail of the Bonds of this series are issued under and pursuant
to a resolution (the "Resolution") duly adopted by the City
Council on March 4, 1986, reference to which is hereby made for
the provisions, among others, with respect to the custody and
application of the proceeds of Bonds issued under the Resolution,
the account charged with and pledged to the payment of the
principal of and premium, if any, and interest on the Bonds, the
nature and extent of the security, the terms and conditions on
which the Bonds are or may be issued, the rights, duties and
obligations of the City under the Resolution and the rights of the
owners of the Bonds, and, by the acceptance of this Bond, the
owner hereof assents to all the provisions of the Resolution.
This Bond is issued and the Resolution was adopted under and
pursuant to the Constitution and laws of the State of Florida,
particularly the Charter of the City and Chapter 166, Florida
Statutes.
20.
The Resolution provides for the deposit of a sufficient
amount of the proceeds received by the City from Designated
Revenues to the credit of a special account, which account is
pledged to the extent set forth in the Resolution to the payment
of the principal of and premium, if any, and interest on all Bonds
and Parity Indebtedness (as defined in the Resolution) issued
under or in accordance with the Resolution and to create a reserve
for such purpose.
[Insert as appropriate paraqraphs concerninq credit
enhancement.]
Reference is made to the Resolution for a more complete
statement of the provisions thereof and of the rights of the City
and the owners of Bonds. Copies of the Resolution are on file and
may be inspected at the principal office of the Finance Director
of the City ~n the City of Boynton Beach, Florida.
The Series 1986 Bonds are issuable as registered Bonds
without coupons in the denomination of [$5,000] or any integral
multiple thereof. At the principal corporate trust office of the
Bond Registrar in the manner and subject to the limitations and
conditions provided in the Resolution, Bonds may be exchanged for
an equal aggregate principal amount of Bonds of the same series
and maturity, of other authorized denominasions and bearing
interest at the same rate.
Any Bondholder requesting any exchange or registration of
transfer of this Bond shall pay any tax or other governmental
charge required to be paid with respect thereto but shall not bear
any other cost with respect thereto. Except as otherwise provided
in the Resolution or any Supplemental Resolution, the Bond
Registrar shall not be required to make any exchange or to
register the transfer of any Bond during the period of [fifteen
(15)] days immediately preceding the day on which a notice of
redemption of Bonds or any portion thereof is to be mailed or
after such Bond (or any portion thereof) has been selected for
redemption.
[Insert as appropriate Daraqraphs concerninq riqhts and
obliqations of Bond owners to "put" their Bonds and methods of
determininq the interest rates on Bonds as Variable Rate
Indebtedness and upon conversion to fixed rate Bonds.]
[Insert optional redemption provisions applicable to the
Bonds beinq issued].
In addition, Series Bonds stated to mature on
, shall be called for redemption, pursuant to
the sinking fund redemption requirements of, and in the amounts
21.
of the Amortization Requirements provided in, the Resolution, on
1, and on each 1 thereafter to and including
1, , at the principal amount thereof plus accrued
interest to the redemption date, and without premium.
If less than all of the Bonds of any one maturity of a
series shall be called for redemption,, the partiCular Bonds or
portions of Bonds to be redeemed from such series and maturity
shall be selected by lot or in such other manner as the Fiscal
Agent deems appropriate as provided in the Resolution.
At least [thirty (30)] days before the redemption date of
any Series Bonds, whether such redemption is in whole or
in part, the City shall cause a notice of any such redemption
signed by the Fiscal Agent to be mailed, first class mail,
postage prepaid, to all registered owners of Series Bonds
to be redeemed in whole or in part, but any defect in such notice
or the failure so to mail any such notice to the registered owner
of any Bond shall not affect the validity of the proceedings for
the redemption of any other Bonds. On the date fixed for
redemption, notice having been mailed in the manner provided in
the Resolution, the Series Bonds or portions thereof
called for redemption shall be due and payable at the redemption
price provided therefor, plus accrued interest to such date. If
a portion of this Bond shall be called for redemption a new
Series Bond or Bonds in principal amount equal to the
unredeemed portion hereof will be issued to the registered owner
upon the surrender hereof.
The owner of this Bond shall not have any right to enforce
the provisions of the Resolution, to institute action to enforce
the covenants therein, to take any action with respect to any
event of default under the Resolution, or to institute, appear in
or defend any suit or other proceeding with respect thereto,
except as provided in the Resolution.
Upon the occurrence of certain events of default under the
Resolution, and on the conditions, in the manner and with the
effect set forth in the Resolution, the principal of all Bonds
then outstanding under the Resolution may become or may be
declared due and payable before the stated maturities thereof,
together with the interest accrued thereon.
Modifications or alterations of the Resolution or of any
resolution supplemental thereto may be made only to the extent and
under the circumstances permitted by the Resolution.
The transfer of this Bond is registrable by the owner hereof
in person or by his attorney or legal representative at the
principal corporate office of the Bond Registrar but only in the
22.
manner and subject to the limitations and conditions provided in
the Resolution and upon the surrender and cancellation of this
Bond. Upon any such registration of transfer the City shall
execute and the Bond Registrar shall authenticate and deliver in
exchange for this Bond a new Bond or Bonds, registered in the name
of the transferee, of authorized denominations in aggregate
principal amount equal to the principal amount of this Bond, of
the same series and maturity and bearing interest at the same
rate.
Ail acts, conditions and things required to happen, exist and
be performed precedent to and in the issuance of this Bond have
happened, exist and have been performed as so required.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any benefit or security under the
Resolution until it shall have been authenticated by the execution
by the Bond Registrar~ of the certificate of authentication
endorsed hereon.
[Form of Assignment]
FOR VALUE RECEIVED, the undersigned hereby sellsf assigns
and transfers unto
[Please Print or Typewrite Name, Tax Identification Number and
AddreSs of Transferee] the within bond, and all rights thereunder
and hereby irrevocably constitutes and appoints
attorney to register the transfer of the within bond on the books
kept for registration thereof, with full power of substitution in
the premises.
Dated:
23.
NOTICE: The signature to this assignment must correspond with
the name as it appears upon the face of the within bond in every
particular, without alteration or enlargement or any change
whatever.
Signature Guaranteed* by:
* Signatures must be guaranteed by a commercial bank or trust
company having an officer or correspondent in New York, New York,
or by a firm having membership on the New York Stock Exchange.
24.
Section 203. Details and Execution of Bonds. Unless
otherwise provided in a Supplemental Resolution, the Bonds shall
be dated, shall bear interest until their payment, such interest
to the respective maturities of the Bonds being payable
semiannually on the 1st days of May and November in each year,
and shall be stated to mature (subject to the right of prior
redemption), all as hereinafter provided.
Unless otherwise provided in a Supplemental Resolution, each
Bond shall bear interest from the Interest Payment Date next
preceding the date on which it is authenticated, unless it is (a)
authenticated on an Interest Payment Date, in which case it shall
bear interest from such Interest Payment Date, or (b)
authenticated prior to the first Interest Payment Date, in which
case it shall bear interest from its date; provided, however,
that if at the time of authentication of any Bond interest is in
default, such Bond shall bear interest from the date to which
interest shall have been paid.
Unless otherwise provided in a Supplemental Resolution, the
Bonds shall bear the manual or facsimile signatures of the Mayor
and the City Clerk, but it shall not be necessary that the same
officer sign all of the Bonds that may be issued hereunder at any
one time, and a facsimile of the official seal of the City shall
be imprinted on the Bonds.
In case any officer whose signature or a facsimile of whose
signature shall appear on any Bonds shall cease to be such
officer before the delivery of such Bonds, such signature or such
facsimile shall nevertheless be valid and sufficient for all
purposes the same as if he had remained in office until such
delivery, and also any Bond may bear the facsimile signature of
or may be signed by such persons as at the actual time of the
execution of such Bond shall be the proper officers to sign such
Bond although at the date of such Bond such persons may not have
been such officers.
The principal of and premium, if any, and the interest on
the Bonds shall be payable in any coin or currency of the United
States of America that on the respective dates of payment thereof
is legal tender for the payment of public and private debts.
Unless otherwise provided in a Supplemental Resolution, the
principal of all Bonds shall be payable at the principal
corporate trust office of the Bond Registrar upon the
presentation and surrender of such Bonds as the same shall become
due and payable.
25.
Interest on any Bond that is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid
by check or draft (unless otherwise provided in a Supplemental
Resolution) to the person in whose name that Bond (or one or more
Predecessor Bonds) is registered at the close of business on the
Regular Record Date for such Interest Payment Date.
Any interest on any Bond that is payable but that is not
punctually paid or duly provided for, on any Interest Payment
Date ("Defaulted Interest"), shall forthwith cease to be payable
to the owner as of the relevant Regular Record Date solely by
virtue of such owner's having been such owner on such Date; and
such Defaulted Interest may be paid by the City, at its election
in each case, as provided in subparaqraph A or B below:
A. The City may elect to make payment of any Defaulted
Interest on the Bonds to the persons in whose names such
Bonds are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest,
which Special Record Date shall be fixed in the following
manner. The Fiscal Agent (or the City, if the Fiscal Agent
is no longer the Finance Director) shall notify the Bond
Registrar and any Paying Agent (and the Fiscal Agent, if no
longer the Finance Director), in writing of the amount of
Defaulted Interest proposed to be paid on each Bond and the
date of the proposed payment (which date shall be a date
that will enable the Piscal Agent, Bond Registrar or Paying
Agent to comply with the next sentence hereof), and at the
same time the City shall deposit or cause to be deposited
with the BOnd Registrar an amount of money equal to the
aqqregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Bond Registrar for such deposit prior to the date of
the proposed payment, such money when deposited to be held
in trust for the benefit of the persons entitled to such
Defaulted Interest as in this subparagraph provided.
Thereupon, the Bond Registrar shall fix a Special Record
Date for the payment of such Defaulted Interest that shall
be not more than 15 days nor less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Bond Registrar of the notice of the
proposed payment. The Bond Registrar shall promptly notify
the City and any Paying Agents of such Special Record Date,
and the Bond Registrar, in the name and at the expense of
the City, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to
be mailed, first-class mail postage prepaid, to each owner,
at his address as it appears in the registration books
maintained under Section 206 of this Resolution, not less
than 10 days prior to such Special Record Date. The Bond
26.
Registrar may, in its discretion, in the name and at the
expense of the City, cause a similar notice to be published
at least once in a financial newspaper distributed in the
Borough of Manhattan, City and State of New York, and a
newspaper of general circulation in the City of Boynton
Beach, Florida, but such publications shall not be a
condition precedent to the establishment of such Special
Record Date. Notice of the proposed payment of such
Defaulted Interest and of the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest
shall be paid to the persons in whose names the Bonds (or
their respective Predecessor Bonds) are registered on such
Special Record Date and shall no longer be payable pursuant
to the following subparagraph B.
B. The City may make payment of any Defaulted Interest
on the Bonds in any other lawful manner not inconsistent
with the requirements of any securities exchange on which
such Bonds may be listed and upon such notice as may be
required by such exchange, if, after notice given by the
City to the Fiscal Agent and the Bond Registrar of the
proposed payment pursuant to this subparagraph, such payment
shall be deemed practicable by the Bond Registrar.
Subject to the foregoing provisions of this Section, each Bond
delivered under this Resolution upon transfer of or in exchange
for or in lieu of any other Bond shall carry all the rights to
interest accrued and unpaid, and to accrue, that were carried by
such other Bond, and each such Bond shall bear interest from a
date such that 'neither gain nor loss in interest shall result
from such transfer, exchange or substitution.
Section 204. Authentication of Bonds. Only such of the
Bonds as shall have endorsed thereon a certificate of
authentication substantially in the form hereinabove set forth,
duly executed by the Bond Registrar, shall be entitled to any
benefit or security under this Resolution. No Bond shall be valid
or obligatory for any purpose unless and until such certificate of
authentication shall have been duly executed by the Bond
Registrar, and such certificate of the Bond Registrar upon any
such Bond shall be conclusive evidence that such Bond has been
duly authenticated and delivered under this Resolution. The Bond
Registrar's certificate of authentication on any Bond shall be
deemed to have been duly executed if signed by an authorized
officer of the Bond Registrar, but it shall not be necessary that
the same officer sign the certificate of authentication on all of
the Bonds that may be issued hereunder at any one time.
27.
Section 205. Exchanqe of Bonds. Bonds, upon surrender
thereof at the principal corporate trust office of the Bond
Registrar, together with an assignment duly executed by the
registered owner or his attorney or legal representative in such
form as shall be satisfactory to the Bond Registrar, may, at the
option of the owner thereof, be exchanged for an equal aggregate
principal amount of Bonds of the same series and maturity of any
denomination or denominations authorized by this Resolution, and
bearing interest at the same rate as the Bonds surrendered for
exchange.
The City shall make provision for the exchange of Bonds at
the principal corporate trust office of the Bond Registrar.
Section 206. Reqistration of Transfer. Except as otherwise
provided in a Supplemental Resolution, the Bond Registrar shall
keep books for the registration of and for the registration of
transfer of Bonds, and, if so provided by Supplemental
Resolution, of Parity Indebtedness, as provided in this
Resolution. The transfer of any Bond may be registered only upon
the books kept for the registration of and registration of
transfer of Bonds upon surrender of such Bond to the Bond
Registrar, together with an assignment duly executed by the
registered owner or his attorney or legal representative in such
form as shall be satisfactory to the Bond Registrar.
Upon any exchange or registration of transfer, the City
shall execute and the Bond Registrar shall authenticate and
deliver in exchange for such Bond a new Bond or Bonds, registered
in the name of the transferee, of any denomination or
denominations authorized by this Resolution in an aggregate
principal amount equal to the principal amount of such Bond
surrendered, of the same series and maturity and bearing interest
at the same rate.
In all cases in which Bonds shall be exchanged or the
transfer of Bonds shall be registered hereunder, the City shall
execute and the Bond Registrar shall authenticate and deliver
within a commercially reasonable time according to then
prevailing industry standards Bonds in accordance with the
provisions of this Resolution. All Bonds surrendered in any such
exchange or registration of transfer shall forthwith be cancelled
by the Bond Registrar. The City or the Bond Registrar may make a
charge for every such exchange or registration of transfer of
Bonds sufficient to reimburse it for any tax or other
governmental charge required to be paid with respect to such
exchange or registration of transfer, but no other charge shall
be made to any Bondholder for the privilege of exchanging or
reqisterinq the transfer of Bonds under the provisions of this
Resolution. Except as otherwise provided in a Supplemental
28.
Resolution, neither the City nor the Bond Registrar shall be
required to make any such exchange or registration of transfer of
Bonds during the fifteen (15) days immediately preceding the day
on which a notice of redemption of Bonds is to be mailed
accordance with Section 302 of this Resolution or after such Bond
or any portion thereof has been selected for redemption.
Section 207. Ownership of Bonds. The City, the Fiscal
Agent, the Bond Registrar and the Paying Agents may deem and
treat the person in whose name any Bond is registered on the
books of the City kept by the Bond Reqistrar as the absolute
owner of such Bond for the purpose of receiving payment of
principal of and premium, if any, and interest on, such Bond and
for all other purposes whatsoever, whether such Bond be overdue
and, to the extent permitted by law, neither the City, the Fiscal
Agent, the Bond Registrar nor the Paying Agents shall be affected
by any notice to the contrary.
Section 208. Issuance of 1986 Bonds. Bonds of the City in
an aggregate principal amount of not exceeding $11,000,000 may be
issued at one time or in series from time to time under, and
secured by, this Resolution, subject to the conditions hereinafter
provided in this Section, for the purpose of providing funds,
together with any available funds, for paying the Cost of 'the 1986
Projects, including the costs of issuing the 1986 Bonds, and for
making a deposit or deposits to the Reserve Sub.account, and/or for
paying the cost of obtaining a Reserve Subaccount Insurance
Policy.
Such Bonds may be issued as Current Interest Bonds, Capital
Appreciation Bonds, Balloon Indebtedness, Variable Rate
Indebtedness, Optional Tender Indebtedness, Serial Bonds, or Term
Bonds, or any combination thereof, shall have such series
designation or designations, shall be dated and shall be stated
to mature, subject to the right and requirement, if any, of prior
redemption, on the dates and in the principal amounts, shall have
such other details, shall be sold in such manner to such
purchasers upon the payment of such purchase price and may be
insured and may be secured by a Credit Facility as a whole or in
part, all as shall be provided by the applicable Supplemental
Resolution.
Except as to any Credit Facility or insurance policy in
respect of the Bonds or any Reserve Subaccount Insurance Policy
and as to any differences in the rate or rates of interest, the
maturities or the provisions for redemption or purchase and
except for such differences, if any, respecting the use of moneys
in various subaccounts in the Sinking Fund Account, the Bonds
shall be on a parity with and shall be entitled to the same
29.
benefit and security of this Resolution as all other Bonds
theretofore and thereafter issued, and any Parity Indebtedness
incurred, under or in accordance with this Resolution.
As provided in Section 501 of this Resolution, prior to the
earlier of the date on which provision is made for the payment of
the principal of and premium, if any, and interest on the 1984
Bonds and the date on which the Finance Director delivers to the
Bond Registrar a certificate evidencing satisfaction by the City
of the conditions set forth in the second paragraph of Section 514
of the 1984 Resolution, the 1986 Bonds shall be payable from
proceeds received by the City from Designated Revenues after
payments and deposits required under the 1984 Resolution to be
made from proceeds of the Designated Revenues have been made.
Before the 1986 Bonds of any series shall be issued under the
provisions of this Section, the City Council shall adopt a
resolution authorizing the issuance of such Bonds, fixing the
amount and the details thereof, and providing for the
capitalization, if any, of interest on the Bonds of such series.
Such Bonds shall be executed in the form and manner hereinabove
set forth, with such changes as may be necessary or appropriate to
conform to the provisions of the Supplemental Resolution
authorizing the issuance of such Bonds, and shall be deposited
with the Bond Registrar for authentication, but before such Bonds
shall be authenticated by the Bond Registrar, there shall be
delivered to the Bond Registrar the following:
(a) a copy, certified by the City Clerk, of this
Resolution, of the Refunding Resolution, if any, and, if the
1984 Bonds are then outstanding, of the 1984 Resolution;
(b) a copy, certified by the City Clerk, of the
Supplemental Resolution adopted by the City Council providing
for the application of the proceeds of the Bonds of such
series, awarding such Bonds, specifying, among othsr things,
the interest rate of each of such Bonds and directing the
delivery of such Bonds to or upon the order of the purchasers
therein named upon payment of the purchase price therein set
forth;
(c) an opinion of the City Attorney stating that the
issuance of the Bonds has been duly authorized and that all
conditions precedent to the delivery of the Bonds have been
fulfilled; and
(d) if the 1984 Bonds are then outstanding and the 1986
Bonds are then to be payable from proceeds received by the
City from Designated Revenues on a parity with the 1984 Bonds
30.
then outstanding, a certificate of the Finance Director
evidencing compliance with the provisions of the second
paragraph of Section 514 of the 1984 Resolution.
When the documents mentioned above in this Section shall have
been delivered to the Bond Registar and when the Bonds described
in the resolutions mentioned in clauses (a) and (b) of this
Section shall have been executed as required by this Resolution,
the Bond Registrar shall authenticate and deliver such Bonds at
one time to or upon the order of the purchasers named in the
resolution mentioned in said clause (b), but only upon paymen5 to
the Fiscal Agent of the purchase price of such Bonds and the
accrued interest, if any, thereon. The Fiscal Agent and the Bond
Registrar shall be entitled to rely upon such resolution as to all
matters stated therein.
Except as provided in a Supplemental Resolution, the proceeds
(excluding accrued interest) of such Bonds shall be transferred by
the Fiscal Agent to the Depositary designated by the City Council
for deposit to the credit of the Construction Account; provided,
however, that the Fiscal Agent shall deduct from such proceeds and
deposit to the credit of the Reserve Subaccount in the Sinking
Fund Account such amount, if any, as may be required to make the
amount then to the credit of the Reserve Subaccount equal to the
Reserve Subaccount Requirement for all Bonds then outstanding; and
provided, further, that the Fiscal Agent shall also deduct from
such proceeds and shall deposit to the credit of the Principal and
Interest Subaccount in the Sinking Fund Account or transfer to the
Depositary designated by the City for deposit to a special
subaccount in ~the Construction Account such amount of interest
during construction as is set forth in the Supplemental Resolution
of the City Council authorizing the issuance of such Bonds. The
amount received as accrued interest on such Bonds shall be
deposited with the Fiscal Agent to the credit of the Principal and
Interest Subaccount in the Sinking Fund Account.
Section 209A. Additional Bonds Issuable When 1984 Bonds are
Outstandinq; No Additional Bonds or Parity Indebtedness Under 1984
Resolution. If and so long as 1984 Bonds are deemed to be
outstanding under the 1984 Resolution but in such case, only on
and after the date on which the Finance Director delivers the
certificate described in clause I of this Section 209A, additional
BOnds may be issued from time to time under, and secured by, this
Resolution subject to the conditions hereinafter provided in this
Section, for the purpose of paying all or any part of the Cost of
any additional Project or Projects or for any other lawful
purpose. Such Bonds may be issued as Current Interest Bonds,
Variable Rate Indebtedness, Capital Appreciation Bonds, Optional
Tender Indebtedness, Balloon Indebtedness, Serial Bonds or Term
Bonds or any combination thereof; provided, however, that so long
31.
as the 1984 Bonds are deemed to be outstanding, no additional
Bonds may be issued hereunder and no Parity Indebtedness may be
incurred unless and until the conditions set forth in clause I of
this Section 209A shall have been satisfied. As provided in
Section 501 hereof, the City covenants that at no time will it
issue any additional Bonds or incur any Parity Indebtedness under
or pursuant to the 1984 Resolution.
Before any Bonds shall be issued under the provisions of this
Section, the City Council shall adopt a resolution authorizing the
issuance of such Bonds and fixing the amount and the details
thereof. The Bonds of each series issued under th'e provisions of
this Section shall be designated, shall be dated, shall bear
interest at a rate or rates, shall be stated to mature in such
year or years and shall be made redeemable at such times and
prices (subject to the provisions of Article III of this
Resolution), may be insured and may be secured by a Credit
Facility, all as may be provided by the resolution authorizing the
issuance of such Bonds. Except as to any Credit Facility or
insurance policy or any Reserve Subaccount Insurance Policy in
respect to the Bonds and as to any differences in the maturities
thereof or the rate or rates of interest or the provisions for
redemption or purchase and except for such differences, if any,
respecting to the use of moneys in various subaccounts in the
Sinking Fund Account, such additional Bonds shall be on a parity
with and shall be entitled to the same benefit and security under
this Resolution as the Bonds issued under the provisions of
Section 208 of this Article. Such additional Bonds shall be
executed substantially in the form and manner hereinabove set
forth and shall be authenticated by the Bond Registrar, but before
such Bonds shall be delivered by the Bond Registrar there shall be
delivered to the Bond Registrar the following:
(a) a copy, certified by the Clerk, of the resolution
mentioned above, together with an executed counterpart of an
applicable Supplemental Resolution, if any;
(b) a copy, certified by the Clerk, of the Supplemental
Resolution adopted by the City Council awarding such Bonds,
designating the Bond Registrar and the Paying Agents for such
Bonds, fixing the Amortization Requirements for the Term
Bonds, if any, of such series, specifying the interest rate
for each of such Bonds and directing the authentication and
delivery of such Bonds to or upon the order of the purchasers
therein named upon payment of the purchase price therein set
forth and the accrued interest on such Bonds;
(c) a statement, signed by the Mayor or the City Manager
giving a brief and general description of the Project or
Projects and the scope thereof and the estimate of the Cost
32.
to the City of such Project or Projects, including an amount
for contingencies but excluding financing charges, reserves
and interest during construction, and an estimate of the date
such Project or Projects will be placed in service or an
opinion that such Project or Projects has or have previously
been placed in service and certifying that, according to the
estimate of the total amount required to pay the Cost to the
City of such Project or Projects, the proceeds of such Bonds
(net of amounts required for financing charges, reserves and
capitalized interest), together with other funds made or to
be made available therefor, will be sufficient for paying
such Cost;
(d) a certificate,
setting forth
signed by the Finance Director,
(i) the amount of the proceeds received by the
City from Designated Revenues shown by any twelve
consecutive, monthly reports of the last eighteen
monthly reports filed under the provisions of Section
703 of this Resolution immediately preceding the date of
such certificate, and
(ii) the maximum combined amount in any Fiscal Year
after the date of such certificate of the "principal and
interest requirements" (as defined in the 1984
Resolution) of the 1984 Bonds, the principal and
interest accruing on any Indebtedness then outstanding
issued on a parity with the 1984 Bonds, the principal
and interest accruing on the 1986 Bonds and the
principal and interest accruing on the Indebtedness then
to be incurred;
(e) a certificate, signed by the Mayor and the City
Attorney, stating that the City is not then in default in the
performance of any of the covenants (except the covenant set
forth in Section 603 hereof), conditions, agreements or
provisions contained in this Resolution or in the 1984
Resolution; and
(f) an opinion of the City Attorney stating that the
issuance of such Bonds has been duly authorized and that all
conditions precedent to the delivery of such Bonds have been
fulfilled.
When the documents mentioned above in this Section shall have
been delivered to the Bond Registrar and when the Bonds described
in the resolutions mentioned in clauses (a) and (b) of this
Section shall have been executed and authenticated as required by
this Resolution, the Bond Registrar shall deliver such Bonds at
33.
one time to or upon the order of the purchasers named in the
resolution mentioned in said clause (b) hereof, but only upon
payment to the Fiscal Agent of the purchase price of such Bonds
and the accrued interest, if any, thereon. The Fiscal Agent and
the Bond Registrar shall be entitled to rely upon such resolution
as to the names of the purchasers, the names of the Bond Registrar
and the Paying Agents for such Bonds, the Amortization
Requirements for the Term BOnds, if any, of such series, the
interest rate of each of such Bonds and the amount of such
purchase price, but the Bond Registrar shall not deliver such
Bonds unless
(I) the Fiscal Agent shall have received on any date
(the "Certificate Date") prior to the date the additional
Bonds are to be issued pursuant to this Section a certificate
of the Finance Director stating that the number derived by
dividing (A) the total amount of the Designated Revenues
received by the City during any twelve consecutive months in
the eighteen months next preceding the Certificate Date, by
(B) the maximum combined amount in any Fiscal Year thereafter
of the principal and interest requirements (as defined in the
1984 Resolution) on the 1984 Bonds and the principal and
interest accruing on the 1986 Bonds is not less than two; and
(II) the amount shown in item (i) of the certificate
mentioned in clause (d) of this Section, divided by the
amount shown in item (ii) of said certificate, is not less
than two.
Except as provided in a Supplemental Resolution, the proceeds
(excluding accrued interest) of such Bonds shall be transferred by
the Fiscal Agent to the Depositary designated by the City Council
for deposit to the credit of the Construction Account; provided,
however, that the Fiscal Agent shall deduct from such proceeds and
deposit to the credit of the Reserve Subaccount in the Sinking
Fund Account such amount, if any, as may be required to make the
amount then to the credit of the Reserve Subaccount equal to the
Reserve Subaccount Requirement for all Bonds then outstanding; and
provided, further, that the Fiscal Agent shall also deduct from
such proceeds and shall deposit to the credit of the Principal and
Interest Subaccount in the Sinking Fund Account or transfer to the
Depositary designated by the City for deposit to a special
subaccount in the Construction Account such amount of interest
during construction as is set forth in the Supplemental Resolution
of the City Council authorizing the issuance of such Bonds. The
amount received as accrued interest on such Bonds shall be
deposited with the Fiscal Agent to the credit of the Principal and
Interest Subaccount in the Sinking Fund Account.
34.
Section 209. Additional Bonds Issuable When No 1984 Bonds
are Outstanding. On and after the date as of which no 1984 Bonds
are outstanding under the 1984 Resolution, additional Bonds may be
issued from time to time under, and secured by, this Resolution,
subject to the conditions hereinafter provided in this Section,
for the purpose of paying all or any part of the Cost of any
additional Project or Projects or for any other -lawful purpose.
Such Bonds may be issued as Current Interest Bonds, Variable Rate
Indebtedness,. Capital Appreciation Bonds, Optional Tender
Indebtedness, Balloon Indebtedness, Serial Bonds or Term Bonds or
any combination thereof.
Before any Bonds shall be issued under the provisions of this
Section, the City Council shall adopt a resolution authorizing the
issuance of such Bonds and fixing the amount and the details
thereof. The Bonds of each series issued under the provisions of
this Section shall be designated, shall be dated, shall bear
interest at a rate or rates, shall be stated to mature in such
year or years and shall be made redeemable at such times and
prices (subject to the provisions of Article III of this
Resolution), may be insured and may be secured by a Credit
Facility, all as may be provided by the resolution authorizing the
issuance of such Bonds. Except as to any Credit Facility or
insurance policy or Reserve Subaccount Insurance Policy in respect
of Bonds and as to any differences in the maturities thereof or
the rate or rates of interest or the provisions for redemption or
purchase and except for such differences, if any, respecting to
the use of moneys in various subaccounts in the Sinking Fund
Account, such additional Bonds shall be on a parity with and shall
be entitled to the same benefit and security of this Resolution as
the Bonds issued under the provisions of Section 208 of this
Article. Such additional Bonds shall be executed substantially in
the form and manner hereinabove set forth and shall be
authenticated by the Bond Registrar, but before such Bonds shall
be delivered by the Bond Registrar there shall be delivered to the
Bond Registrar the following:
(a) a copy, certified by the Clerk, of the resolution
mentioned above, together with an executed counterpart of an
applicable Supplemental Resolution, if any;
(b) a copy, certified by the Clerk of the Supplemental
Resolution adopted by the City Council awarding such Bonds,
designating the Bond Registrar and the Paying Agents for such
Bonds, fixing the Amortization Requirements for the Term
Bonds, if any, of such series, specifying the interest rate
for each of such Bonds and directing the authentication and
delivery of such Bonds to or upon the order of the purchasers
therein named upon payment of the purchase price therein set
forth and the accrued interest on such Bonds;
35.
(c) a statement, signed by the Mayor or City Manager
giving a brief and general description of the Project or
Projects and the scope thereof and the estimate of the Cost
to the City of such Project or Projects, including an amount
for contingencies but excluding financing charges, reserves
and interest during construction, and an estimate of the date
such Project or Projects will be placed in service or an
opinion that such Project or Projects has or have previously
been placed in service (such estimated date or the date of
such opinion being hereinafter sometimes called the
"Reference Date") and certifying that, according to the
estimate of the total amount required to pay the Cost to the
City of such Project or Projects, the proceeds of such Bonds
(net of amounts required for financing charges, reserves and
capitalized interest), together with other funds made or to
be made available therefor, will be sufficient for paying
such Cost;
(d) a certificate,
setting forth
signed by
the Finance Director,
(i) the amount of the proceeds received by the
City from .Designated Revenues, shown by any twelve
consecutive, monthly reports of the last eighteen
monthly reports filed under the provisions of Section
703 of this Resolution immediately preceding the date of
such certificate, adjusted as hereinafter permitted,
(ii) the amount of the Debt Service Requirements
for the current Bond Year and for each Bond Year
thereafter on account of the Bonds of each series then
outstanding (as determined by the Bond Registrar), any
Parity Indebtedness (except the Refunding Pledged
Amount) and the Bonds then requested to be authenticated
and delivered, and
(ill) the Refunding Pledged Amount for the current
Bond Year and for each Bond Year thereafter on account
of bonds or other parity indebtedness issued or incurred
under the Refunding Resolution and then outstanding;
(e) a statement, signed by the Finance Director, giving
the City's estimates of the proceeds of Designated Revenues
to be received in the current Bond Year and in each Bond Year
thereafter to and including the fifth complete Bond Year
following the Reference Date, taking into account any
revisions assumed necessary during such period of the rates
of non-ad valorem taxes included as Designated Revenues;
36.
(f) a certificate, signed by the Mayor and the City
Attorney, stating that the City is not then in default in the
performance of any of the covenants (except the covenant set
forth in Section 603 hereof), conditions, agreements or
provisions contained in this Resolution; and
(g) an opinion of the City Attorney stating that the
issuance of such Bonds has been duly authorized and that all
conditions precedent to the delivery of such Bonds have been
fulfilled.
In determining whether to execute and deliver the certificate
mentioned in clause (d)(i) of this Section 209, if the rate or
rates of non-ad valorem taxes comprising Designated Revenues shall
ha~e been revised by the City Council and such revised rate or
rates of non-ad valorem taxes shall have gone into effect prior to
the issuance of such additional Bonds, the Finance Director may
use the amount of proceeds of the Designated Revenues that would
have been received during the months required to be examined and
reported upon in said certificate had such revised rate or rates
of non-ad valorem taxes gone into effect on the first day"of such
period.
When the documents mentioned above in this Section shall have
been delivered to the Bond Registrar and when the Bonds described
in the resolutions mentioned in clauses (a) and (b) of this
Section shall have been executed and authenticated as required by
this Resolution, the Bond Registrar shall deliver such Bonds at
one time to or upon the order of the purchasers named in the
resolution mentioned in said clause (.b); but only upon payment to
the Fiscal Agent of the purchase price of such Bonds and the
accrued interest, if any, thereon. The Fiscal Agent and the Bond
Registrar shall be entitled to rely upon such resolution as to the
names of the purchasers, the names of the Bond Registrar and the
Paying Agents for such Bonds, the Amortization Requirements for
the Term Bonds, if any, of such series, the interest rate of each
of such Bonds and the amount of such purchase price, but the Bond
Registrar shall not deliver such Bonds unless
(I) the amount shown in item (i) of the certificate
mentioned in clause (d) of this Section shall be not less
than the sum of (A) one hundred twenty-five percent (125%) of
the amount of the Debt Service Requirements for the current
Bond Year on account of the Bonds of all series then
outstanding and any Parity Indebtedness (except the Refunding
Pledged Amount), as shown in item (ii) of such certificate
and (B) 125% of the Refunding Pledged Amount for the current
Bond Year, as shown in item (iii) of such certificate,
37.
(II) the amount shown in the statement mentioned in
clause (e) of this Section for the current Bond Year and for
each Bond Year to and including the fourth complete Bond Year
following the Reference Date shall be not less than one
hundred twenty-five percent (125%) of the sum of the
Refunding Pledged-Amount for each Bond Year, the amount of
the Debt Service Requirements for each such Bond Year on
account of the Bonds of all series then outstanding and any
Parity Indebtedness (except the Refunding Pledged Amount) and
the Principal and Interest Requirements of the Bonds then
requested To be authenticated and delivered, as shown in
items (ii) and (iii) of the certificate mentioned in clause
(d) of this Section, and
(III) the amount shown in the statement mentioned in
clause (e) of this Section for the fifth complete Bond Year
following the Reference Date shall be not less than the sum
of (A) one hundred twenty-five'percent (125%) of the maximum
amount of the Debt Service Requirements for any future Bond
Year on account of the Bonds of all series then outstanding
and any Parity Indebtedness (except the Refunding Pledged
Amount) and the Principal and Interest Requirements of the
Bonds then requested to be authenticated and delivered as
shown in item (ii) of the certificate mentioned in clause (d)
of this Section and (B) 125% of the maximum Refunding Pledged
Amount for any future Bond Year, as shown in item (iii) of
said certificate.
Notwithstanding the foregoing provisions of this Section 209, in
the case of the following described Indebtedness or additional
Bonds the foregoing requirements and provisions respecting the
issuance thereof shall be modified as hereinafter indicated:
(A) Balloon Indebtedness. If any of the outstanding
Indebtedness or of the additional Bonds of the series to be
issued constitute Balloon Indebtedness or Balloon
Indebtedness and Variable Rate Indebtedness, then for pur-
poses of the amounts to be shown in item (ii) of clause (d)
above, the City shall adjust such amounts as if the principal
amount of such Bonds or Indebtedness were to be amortized in
substantially equal, annual installments of principal and
interest over a term equal to twenty-five (25) years, the
fixed interest rate used for such computation being the rate
at which it is assumed that the City could reasonably expect
to borrow or to have borrowed by issuing such Bonds or
Indebtedness for such term and with level Debt Service
Requirements for each Bond Year, such reasonable expectations
being established by a certificate of the Finance Director
and a letter of a banking or investment banking or financial
38.
advisory institution knowledgeable in financial matters
relating to the City, confirming the interest rate assumption
as reasonable.
(B) Optional Tender Indebtedness. If any of the out-
standing Indebtedness or of the additional Bonds of the
series to be issued constitute Optional Tender Indebtedness,
then (1) for purposes of the amounts to be shown in item (ii)
of clause (d) above, the options of the owners of such Bonds
or Indebtedness to tender the same for payment prior to their
stated maturity or maturities shall be ignored, (2) if such
Indebtedness or additional Bonds also constitute Variable
Rate Indebtedness or Variable Rate Indebtedness and Balloon
Indebtedness, the City shall adjust such amounts shown in
item (ii) of clause (d) above as provided in clause (C) be-
low, (3) such additional Bonds shall have been rated in one
of the three highest rating categories (without reference to
gradations such as "plus" or "minus") by either Moody's or
Standard & Poor's, and (4) any' obligation the City may have,
other than its obligation on such Indebtedness and additional
Bonds (which need not be uniform as to all holders thereof),
to reimburse any person for its having extended a Credit
Facility or a bond insurance policy, or similar arrangement
shall be subordinated to the obligations of the City on the
Bonds and Parity Indebtedness and be payable in accordance
with the provisions of Section 506 or 507 or from funds not
constituting proceeds of Designated Revenues of the City.
(C) Variable Rate Indebtedness. If any of the out-
standing Indebtedness or of the additional Bonds of the
series to be issued constitute Variable Rate Indebtedness,
then for purposes of the amounts shown in item (ii) of clause
(d) above, the interest rate used in such computation shall
be the lower of (1) the maximum interest rate established in
a Supplemental Resolution for such Bonds or Indebtedness or
(2) if and so long as an interest-fate guaranty agreement or
an interest-rate protection agreement is in effect with an
institution that is rated by Moody's or Standard & Poor's in
a category that is equal to or higher than the category in
which the Bonds are rated, the maximum interest rate to be
paid by the City on such Bonds or Indebtedness in accordance
with such agreement. The conversion of Bonds constituting
Variable Rate Indebtedness to bear interest at fixed rate, in
accordance with their terms, shall not constitute a new
issuance of Bonds under Section 209A, 209, 210 or 211 of this
Resolution.
Except as provided in a Supplemental Resolution the proceeds
(excluding accrued interest) of such Bonds shall be transferred by
the Fiscal Agent to the Depositary designated by the City Council
39.
for deposit to the credit of the Construction Account; provided,
however, that the Fiscal Agent shall deduct from such proceeds and
deposit to the credit of the Reserve Subaccount in the Sinking
Fund Account such amount, if any, as may be required to make the
amount then to the credit of the Reserve Subaccount equal to the
Reserve Subaccount Requirement for all Bonds then outstanding; and
provided, further, that the Fiscal Agent shall also deduct from
such proceeds and shall deposit to the credit of the Principal and
Interest Subaccount in the Sinking Fund Account or zransfer to the
Depositary designated by the City for deposit to a special
subaccount in the Construction Account such amount of interest
during construction as is set forth in the resolution of the City
Council authorizing the issuance of such Bonds. The amount
received as accrued interest on such Bonds shall be deposited with
the Fiscal Agent to the credit of the Principal and Interest
Subaccount in the Sinking Fund Account.
Section 210. Refundinq Bonds Issuable to Reduce Debt Servicp
ReQuirements When No 1984 Bonds Are Outstandinq. On and after the
date as of which no 1984 Bonds are deemed to be outstanding under
the 1984 Resolution (unless the Bonds hereinafter authorized in
this Section are to be issued to refund the 1984 Bonds), refunding
Bonds of the City may be issued from time to time under, and
secured by, this Resolution, subject to the conditions hereinafter
provided in this Section, for the purpose of providing funds, with
any other available funds, for redeeming prior to their maturity
or maturities, including the payment of any redemption premium
thereon, or for paying at their maturity or maturities, all or any
portion of the outstanding Bonds of any series or of Parity
Indebtedness and, if deemed necessary by the City, for paying the
interest to accrue thereon to the date fixed for their redemption
or payment and any expenses in connection with such refunding.
Before any Bonds shall be issued under the provisions of this
paragraph, the City Council shall adopt a resolution authorizing
the issuance of such Bonds, fixing the amount and the details
thereof and describing the Bonds or Parity Indebtedness to be
redeemed or paid. Such refunding Bonds shall be designated, shall
be dated, shall bear interest at a rate or rates, shall be stated
to mature in such year or years, may be insured and may be secured
by a Credit Facility and shall be made redeemable at such times
and prices (subject to the provisions of Article III of this
Resolution), all as may be provided by the Supplemental Resolution
authorizing the issuance of such Bonds. Such Bonds may be issued
as Capital Appreciation Bonds, Current Interest Bonds, Variable
Rate Indebtedness, Balloon Indebtedness, Optional Tender
Indebtedness, Serial Bonds or Term Bonds or any combination
thereof, all as provided in the Supplemental Resolution. Except
as to any Credit Facility or insurance policy or Reserve
Subaccount insurance policy and as to any differences in the
maturities thereof or the rate or rates of interest or the
40.
provisions for redemption and except for such differences, if any,
respecting the use of moneys in various subaccounts in the Sinking
Fund Account, such refunding Bonds shall be on a parity with and
shall be entitled to the same benefit and security of this
Resolution as the Bonds issued under the provisions of Section 208
of this Article.
Refunding Bonds issued under the provisions of this Section
shall be executed substantially in the form and manner hereinabove
set forth and shall be deposited with the Bond Registrar for
authentication, but before such Bonds shall be authenticated and
delivered by the Bond Registrar there shall be delivered to the
Bond Registrar the following:
(a) a copy, certified by the Clerk, of the resolution
mentioned above, together with an executed counterpart of any
other Supplemental Resolution;
(b) a copy, certified by the Clerk, of the Supplemental
Resolution adopted by the City Council awarding such Bonds,
designating the Bond Registrar and Paying Agents for such
'Bonds, fixing the Amortization Requirements for the Term
Bonds, if any, of such series, specifying the interest rate
for each of such Bonds and directing the authentication and
delivery of such Bonds to or upon the order of the purchasers
therein named upon payment of the purchase price therein set
forth and the accrued interest, if any, on such Bonds;
(c) an opinion of the City Attorney stating that the
issuance of such Bonds has been duly authorized and that all
conditions precedent to the delivery of such Bonds have been
fulfilled; and
(d) (i) a certificate, signed by the Finance Director,
setting forth the respective amounts of the Debt Service
Requirements for each Bond Year thereafter on account of the
Bonds of each series then outstanding (as determined by the
Bond Registrar), any Parity Indebtedness and the Bonds then
requested to be authenticated and delivered and (ii) such
documents as shall be required by the Bond Registrar to show
that provision has been duly made in accordance with the
provisions of this Resolution for ~the redemption of all of
the Bonds being redeemed or that provision has been made for
the redemption or prepayment of all Parity Indebtedness
being redeemed or prepaid.
When the documents mentioned above in this Section shall have
been delivered to the Bond Registrar and when the Bonds described
in the resolutions mentioned in clauses (a) and (b) of this
Section shall have been executed and authenticated as required by
41.
this Resolution, the-Bond Registrar shall deliver such Bonds at
one time to or upon the order of the purchasers named in the
Supplemental Resolution mentioned in said clause (b), but only
upon payment to the Fiscal Agent of the purchase price of such
Bonds and the accrued interest, if any, thereon. The Fiscal Agent
and the Bond Registrar shall be entitled to rely upon such
resolution as to the names of the purchasers, the names of the
Bond Registrar and the Paying Agents, any Amortization
Requirements, the interest rate of each of such Bonds and the
amount of such purchase price, but the Bond Registrar shall not
deliver such Bonds unless
(I) either (A) the proceeds (excluding accrued interest
but including any premium) of such refunding Bonds, together
with any other moneys that have been made available to the
Fiscal Agent for such purpose and the amount, if any,
withdrawn from the Principal and Interest Subaccount in the
Sinking Fund Account as hereinafter provided in this Section,
shall be not less than an amount sufficient to pay the
principal of and the redemption premium, if any, on the Bonds
or Parity Indebtedness to be redeemed or paid, and the inter-
est that will become due and payable on or prior to the date
of their redemption or payment, or (B) simultaneously with
the delivery of such refunding Bonds, the Bond Registrar or
an escrow agent shall hold Government Obligations the
principal of and the interest on which when due and payable
will provide sufficient moneys to pay the principal of, the
redemption premium, if any, on and the ~nterest that will
become due and payable on or prior to the date of redemption
or payment on the Bonds or Parity Indebtedness to be redeemed
or paid, and
(II) the maximum amount of the Debt Service Requirements
for any Bond Year thereafter during which any of the Bonds
not so refunded are outstanding on account of the Bonds of
all series to be outstanding after the issuance of such
refunding Bonds and all other Parity Indebtedness shall no~
exceed the maximum amount of the Debt Service Requirements
for any Bond Year thereafter on account of the Bonds of all
series outstanding immediately prior to the issuance of such
refunding Bonds, including the Bonds to be redeemed or paid,
and any Parity Indebtedness.
In applying the foregoing test, (i) if any Parity
Indebtedness or Bonds outstanding immediately prior to or after
the issuance of the refunding Bonds to be issued constitute
Balloon Indebtedness, Optional Tender Indebtedness or Variable
Rate Indebtedness, the conventions employed in paragraphs (A), (B)
and (C), respectively, of Section 209 shall be applied in
42.
determining the Debt Service Requirements of such Bonds and Parity
Indebtedness and in determining the Principal and Interest
Requirements of the refunding Bonds to be issued.
Simultaneously with the delivery of such refunding Bonds, the
Fiscal Agent shall withdraw from the Principal and Interest
Subaccount in the Sinking Fund Account, such amount, if any, as
may have been deposited to the credit of the Principal and
In~eres~ Subaccount from the proceeds of Designated Revenues for
the payment of principal of or interest on the Bonds or Parity
Indebtedness to be redeemed, prepaid or paid. The amounts so
withdrawn, the proceeds (excluding accrued interest but including
any premium) of such refunding Bonds and any other moneys
(including any excess moneys to the credit of the Reserve
Subaccount in the Sinking Fund Account) that have been made
available to the Fiscal Agent for such purpose, or such Government
Obligations, shall be held by the Bond Registrar or an escrow
agent in trust for the sole and exclusive purpose of paying the
principal of, the redemption premium, if any, on and the interest
that will become due and payable on or prior to the date of
redemption or payment on the Bonds or Parity Indebtedness to be
redeemed, prepaid or paid; provided, however, that any part of
the proceeds of such refunding Bonds that are not needed for such
purpose or any expenses in connection with such refunding shall be
deposited with the Fiscal Agent to the credit of the Reserve
Subaccount in the Sinking Fund Account. The amount received as
accrued interest on such refunding Bonds shall be deposited with
the Fiscal Agent to the credit of the Principal and Interest
Subaccount in the Sinking Fund Account.
Ail expenses in connection with the issuance of such
refunding Bonds may be paid from the Revenue Account, the General
Account or the proceeds of such refunding Bonds.
Section 211. Other Refunding Bonds. In addition to any
refunding Bonds issued under the provisions of Section 210 of this
Article, refunding Bonds of the City may be issued from time to
time under, and secured by, this Resolution, subject to the
conditions hereinafter provided in this Section, for the purpose
of providing funds, with any other available funds, for redeeming
prior to their maturity or maturities, or for paying at their
maturity or maturities, all or any part of any Indebtedness of the
City then outstanding (including, without limitation, the 1984
Bonds, Bonds, Parity Indebtedness, Junior Obligations Indebtedness
incurred under the Refunding Resolution and other Indebtedness
payable from the General Account) that may have been issued or
incurred under the provisions of Florida law, and whether or not
under the provisions of this Resolution, including the payment of
any redemption premium thereon, and, if deemed necessary by the
43.
City, for paying the interest to accrue thereon to the date fixed
for their redemption or payment and any expenses in connection
with such refunding.
Before any Bonds shall be issued under the provisions of this
Section, the City Council shall adopt a resolution authorizing the
issuance of such Bonds, fixing the amount and the details thereof
and describing the Indebtedness or other Obligations to be
redeemed or paid. Such refunding Bonds may be issued as Current
Interest Bonds, Capital Appreciation Bonds, Variable Rate
Indebtedness, Balloon Indebtedness, Optional Tender Indebtedness,
Term Bonds, Serial Bonds or any combination thereof, shall be
desianated, shall be dated, shall bear interest at a rate or
rates, shall be stated to mature in such year or years and shall
be made redeemable at such times and prices (subject to the
provisions of Article III of this Resolution), may be secured by a
Credit Facility or insurance policy or Reserve Subaccount
insurance policy and may be insured, all as may be provided by the
resolution authorizing the issuance of such Bonds. Except as to
any Credit Facility and as to any difference in the maturities
thereof or the rate or rates of interest or the provisions for
redemption and except for such differences, if any, respecting the
use of moneys in various subaccounts in the Sinking Fund Account,
such refunding Bonds shall be on a parity with and shall be
entitled to the same benefit and security of this Resolution as
the Bonds issued under the provisions of Section 208 of this
Article. Such Bonds shall be executed substantially in the form
and manner hereinabove set forth and shall be deposited with the
Bond Registrar for authentication, but before such Bonds shall be
authenticated and delivered by the Bond Registrar there shall be
delivered to the Bond Registrar the following:
(a) a copy, certified by the Clerk, of the resolution
mentioned above, together with an executed counterpart of any
other Supplemental Resolution;
(b) a copy, certified by the Clerk, of the Supplemental
Resolution adopted by the City Council awarding such Bonds,
designating the Bond Registrar and the Paying Agents for such
Bonds, fixing the Amortization Requirements for the Term
Bonds, if any, of such series, specifying the interest rate
for each of such Bonds and directing the authentication and
delivery of such Bonds to or upon the order of the purchasers
therein named upon payment of the purchase price therein set
forth and the accrued interest, if any, on such Bonds;
(c) statements and certificates of the Finance Director
comparable to, and adjusted in the manner permitted by,
those required by clauses (c), (d) and (e) of Section 209 (or
of Section 209A if the 1984 Bonds will be outstanding under
44.
the 1984 Resolution on the day after the date the refunding
Bonds are issued), subStituting, if necessary, the Closing
for the Reference Date;
(d) a statement, signed by the Finance Director, giving
the City's estimates of the proceeds of Designated Revenues
to be received .in each Bond Year thereafter to and including
the fifth complete Bond Year following the delivery of the
Bonds then requested to be authenticated and delivered,
taking into account any revisions assumed necessary during
such period of the rate or rates of non-ad valorem taxes and
revenues included as Designated Revenues;
(e) a certificate, signed by the Mayor and the City
Attorney, stating that the City is not then in default in the
performance of any of the covenants (except the covenant set
forth in Section 603 hererof), conditions, agreements or
provisions contained in this Resolution;
(f) an opinion of the City Attorney stating that the
issuance of such Bonds has been duly authorized and that all
conditions precedent to the delivery of such Bonds have been
fulfilled; and
(g) such documents as shall be required by the Bond
Registrar to show that provision has been duly made in
accordance with the provisions of the instruments authorizing
the issuance of the Indebtedness to be redeemed or paid for
the redemption or payment of all of the Indebtedness being
redeemed.
When the documents mentioned above in this Section shall have
been delivered to the Bond Registrar and when the Bonds described
in the resolutions mentioned in clauses (a) and (b) of this
Section shall have been executed and authenticated as required by
this Resolution, the Bond Registrar shall deliver s~ch Bonds at
one time to or upon the order of the purchasers named in the
resolution mentioned in said clause (b), but only upon payment to
the Fiscal Agent of the purchase price of such Bonds and the
accrued interest, if any, thereon. The Fiscal Agent and the Bond
Registrar shall be entitled to rely upon such resolution as to the
names of the purchasers, the names of the Bond Registrar and the
Paying Agents for such Bonds, the Amortization Requirements for
the Term Bonds of such series, the interest rate of each of such
Bonds and the amount of such purchase price, but the Bond
Registrar shall not deliver such Bonds unless
(I) either (A) the proceeds (excluding accrued interest
but including any premium) of such refunding Bonds, together
with any other moneys tha5 have been made available to the
45.
Fiscal Agent for such purpose, shall be not less than an
amount sufficient to pay the principal of and the redemption
premium, if any, on the Indebtedness to be redeemed or paid,
and the interest that will become due and payable on or prior
to the date of their redemption or payment, or (B)
simultaneously with the delivery of such refunding Bonds, the
Bond Registrar or an escrow agent shall hold Government
Obligations the principal of and the interest on which when
due and payable will provide sufficient moneys to pay the
principal of, the redemption premium, if any, on and the
interest that will become due and payable on or prior to the
date of redemption or payment on the Indebtedness to be
redeemed or paid, and
(II) the City shall demonstrate satisfaction of the test
set forth in Section 209A if the 1984 Bonds will be
outstanding on the day after the issuance of the refunding
Bonds or if not, the tests set forth in Section 209(I), (II)
and (III), in connection with the issuance of additional
Bonds, in each case as applied mutatis mutandis (including
the substitution of clause (d) of this Section for clause (e)
of Section 209 in the event construction of the project
financed with the proceeds of the Indebtedness to be paid or
redeemed has been completed) to the refunding Bonds to be
issued under the provisions of this Section and the Project
financed from the proceeds of the Indebtedness to be paid or
redeemed.
In applying the foregoing tests, (i) if any Parity
Indebtedness or Bonds outstanding immediately prior to or after
the issuance of the refunding Bonds or the refunding Bonds to be
issued constitutes Balloon Indebtedness, Optional Tender
Indebtedness or Variable Rate Indebtedness, the conventions
employed in paragraphs (A), (B) and (C), respectively, of Section
209 on the date of issuance of such outstanding Indebtedness shall
be applied in determining the Debt Service Requirements of such
Indebtedness and in determining the Principal and Interest
Requirements of the refunding Bonds to be issued.
The proceeds (excluding accrued interest but including any
premium) of such refunding Bonds, ~ogether with any such other
moneys, or such Government Obligations, shall be held in trust for
the sole and exclusive purpose of paying the principal of, the
redemption premium, if any, on and the interest that will become
due and payable on or prior to the date of redemption or payment
on the Indebtedness to be redeemed or paid; provided, however,
that any part of the proceeds of such refunding Bonds that are not
needed for such purpose or any expenses in connection with such
refunding shall be deposited with the Fiscal Agent to the credit
of the Reserve Subaccount in the Sinking Fund Account. The
46.
amount, if any, received as accrued interest on such refunding
Bonds shall be deposited with the Fiscal Agent to the credit of
the Principal and Interest Subaccount in the Sinking Pund Account.
Ail expenses in connection with the issuance of such
refunding Bonds may be paid from the Designated Revenue Account
(if no 1984 Bonds are outstanding) or the General Account or the
proceeds of such refunding Bonds.
Upon the delivery of refunding Bonds of any series under the
provisions of this Section all moneys (other than moneys held for
the redemption or payment of Bonds), including any obligations
purchased as an investment of such moneys, derived from proceeds
of Designated Revenues, that are not applied to the payment of the
principal of or the redemption premium or interes~ on the
Indebtedness to be refunded, shall be deposited to the credit of
such accounts and subaccounts created under the provisions of this
Resolution as may be determined by the City by resolution prior to
the issuance of such refunding Bonds. Any obligation or expense
that may be payable from such moneys at the time of the delivery
of such refunding Bonds shall be payable from the appropriate
account or subaccount created under the provisions of this
Resolution.
Section 212. Temporary Bonds. Until definitive Bonds of any
series are ready f~or delivery, there may be executed, and upon
request of the City the Bond Registrar shall authenticate and
deliver, in lieu of definitive Bonds and subject to the same
limitations and conditions, temporary printed, engraved,
typewritten or lithographed Bonds, in the form of fully registered
Bonds without coupons in the denomination (except as otherwise
provided by the City in a Supplemental Resolution ) of $5,000 or
any integral multiple thereof, substantially of the tenor
hereinabove set forth and with such appropriate omissions,
insertions and variations as may be required.
Until definitive Bonds of any series are ready for delivery,
any temporary Bond of such series may, if so provided by the City
Council by resolution, be exchanged at the principal corporate
trust office of the Bond Registrar, without charge to the owner
thereof, for an equal aggregate principal amount of temporary,
fully registered Bonds of authorized denominations, of like tenor,
of the same series and maturity and bearing interest at the ~same
rate.
If temporary Bonds shall be issued, the City shall cause the
definitive Bonds to be prepared and to be executed and delivered
to the Bond Registrar, and the Bond Registrar, upon presentation
to it at its principal corporate trust office of any temporary
Bond, shall cancel the same and authenticate and deliver in
47.
exchange therefor at the place designated by the owner, without
charge to the owner, a definitive Bond or Bonds of an equal
aggregate principal amount, of authorized denominations of the
same series and maturity and bearing interest at the same rate as
the temporary Bond surrendered. Until so exchanged the temporary
Bonds shall in all respects be entitled to the same benefit and
security of .this Resolution as the definitive Bonds to be issued
and authenticated hereunder.
Section 213. Mutilated, Destroyed, Stolen or Lost Bonds. In
case any Bond secured hereby shall become mutilated or be
destroyed, stolen or lost, the City shall cause to be executed,
and the Bond Registrar shall authenticate and deliver, a new Bond
of like date and tenor in exchange and substitution for and upon
the cancellation of such mutilated Bond or lieu of and in
substitution for such Bond, destroyed, stolen or lost, upon the
owner's paying the reasonable expenses and charges of the City and
the Bond Registrar in connection therewith and, in the case of a
Bond destroyed, stolen or lost, his filing with the Bond Registrar
evidence satisfactory to it and to the City that such Bond was
destroyed, stolen or lost, and of his ownership thereof, and
furnishing the City and the Bond Registrar with indemnity
satisfactory to them.
Every Bond issued pursuant to the provisions of this Section
in exchange or substitution for any Bond that is mutilated,
destroyed, stolen or lost shall constitute an additional
contractual obligation of the City, whether the destroyed, stolen
or lost Bond shall be found at any time, or be enforceable by
anyone, and shall be entitled to all the besefits hereof equally
and proportionately with any and all other Bonds duly issued under
this Resolution. All Bonds shall be held and owned upon the
express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed,
stolen or lost Bonds, and shall preclude any and all other rights
or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without
their surrender.
48.
ARTICLE III.
Redemption of Bonds
Section 301. Redemption Generally. The Bonds issued under
the provisions of this Resolution shall be subject to redemption,
either in whole or in part and at such times and prices, as may
be provided by the Supplemental Resolution adopted prior to the
issuance of such Bonds.
The Bonds shall be redeemed only in the minimum denomination
authorized by the applicable Supplemental Resolution or in whole
multiples of such minimum denomination. In selecting Bonds for
redemption, the Fiscal Agent shall treat each Bond as
representing the number of Bonds that is obtained by dividing the
principal amount' of such Bond by the minimum denomination
authcrized by the applicable Supplemental Resolution. Except as
otherwise provided in a Supplemental Resolution, if less than all
of the Bonds of any one maturity shall be called for redemption,
the particular Bonds or portions of Bonds to be redeemed shall be
selected by lot by the Fiscal Agent or in such other manner as
the Fiscal Agent in its discretion may determine.
Section 302. Redemption Notice. Except as otherwise
provided in a Supplemental Resolution, at least thirty (30) days
before the redemption date, a notice of any such redemption,
either as whole or in par~, signed by the Fiscal Agent, (a) shall
be filed with the Paying Agents, the Bond Registrar and the
Fiscal Agent, and (b) shall be mailed by the Bond Registrar,
postage prepaid, to all registered owners of Bonds to be redeemed
at their addresses as they appear on the registration books
hereinabove provided for, but any defect in such notice or the
failure so to mail any such notice to the owner of any Bond shall
not affect the validity of the proceedings for such redemption of
any other Bonds. Each such notice shall set forth the Bonds or
portions thereof to be redeemed, the date fixed for redemption,
the Redemption Price to be paid, the series and, if less than
all of the Bonds then outstanding of a series shall be called for
redemption, the maturities and if less than all of the Bonds of
any one maturity then outstanding shall be calked for redemption,
the numbers and letters, if any, of such Bonds to be redeemed
and, in case of Bonds to be redeemed in part only, the portion of
the principal amount thereto to be redeemed. If any Bond is to
be redeemed in part only, the notice of redemption shall state
also that on or after the redemption date, upon surrender of such
Bond, a new Bond in principal amount equal to the unredeemed
portion of such Bond and of the same series and maturity will be
issued.
49.
Section 303. Effect of Callinq for RedemDtion. On the date
so designed for redemption, notice having been mailed in the
manner and under the conditions hereinabove provided, the Bonds
or portions thereof so called for redemption shall become and be
due and payable at the Redemption Price provided for redemption
of such Bonds or portions thereof on such date, plus interest
accrued thereon to the date fixed for redemption and, moneys or
Government Obligations or a combination thereof for payment of
the Redemption Price, plus interest accrued thereon to the date
fixed for redemption, being held in separate accounts by the
Fiscal Agent in trust for the holders of the Bonds or portions
thereof to be redeemed, all as provided in this Resolution,
interest on the Bonds or portions thereof so called for
redemption shall cease to accrue after the date fixed for
redemption, such Bonds shall cease to be entitled to any lien,
benefit or security under this Resolution or to be deemed
outstanding, and the Bondholders shall have ~o rights in respect
thereof except to receive payment of the Redemption Price thereof
plus interest accrued thereon to the date fixed for redemption.
Section 304. Cancellation. Unless the applicable
Supplemental Resolution shall otherwise provide in the case of
Optional Tender Indebtedness, Bonds so redeemed, presented and
surrendered shall be cancelled upon the surrender thereof.
Section 305. Redemption of Portion of Bonds. If a portion
of an outstanding Bond shall be selected for redemption, the
holder thereof or his attorney or legal representative shall
present and surrender such Bond to the Bond Registrar for payment
of the principal amount thereof so cal'led for redemption and the
redemption premium, if any, on such principal amount, and the
City shall execute and the Bond Registrar shall authenticate and
deliver to or upon the order of such registered owner or his
attorney or legal representative, without charge therefor, for
the unredeemed portion of the principal amount of the Bond so
surrendered, a Bond of the same series and maturity and bearing
interest at the same rate.
Section 306. Use of Government Obliqations to Redeem Bond~.
For purposes of all Sections in this Article, Government
Obligations shall be deemed to be sufficient to pay or redeem
Bonds on a specified date if the principal of and the interest on
such Government Obligations, when due, will be sufficient to pay
on such date the Redemption Price of, and the interest accruing
on, such Bonds to such date.
50.
ARTICLE IV.
Custody and Application of Proceeds of Bonds
Section 401. Construction Account. A special account is
hereby created and designated "City of Boynton Beach Public
Service Tax Revenue Bonds Construction Account" (the "Construction
Account"), to the credit of which such deposits shall be made as
are required by the provisions of Section 208, 209A, 209, 506 and
704 of this Resolution.
The moneys in the Construction Account shall be held by the
City in trust and shall be applied to the payment of the Cost of
Projects or of the repair, replacement or reconstruction of any
damaged or destroyed Project or shall be paid to the Fiscal Agent
and applied to the retirement of Bonds issued under the provisions
of this Resolution and, pending such application~ the proceeds of
Indebtedness issued under the provisions of this Resolution for
the purpose of paying all or any part of the Cost of any Project
or Projects shall be subject to a lien and charge in favor of the
owners of such indebtedness, issued and outstanding under this
Resolution and for the further security of such owners until
disbursed.
Section 402. Items of Cost. For the purposes of this
Resolution the Cost of Projects shall include the cost of
constructing or acquiring the same, and, without intending thereby
to limit or restrict any proper definition of such cost under the
· provisions of Florida law, shall include the following:
(a) obligations incurred for labor and materials and to
contractors, builders and materialmen, for machinery and
equipment, for the restoration or relocation of property
damaged or destroyed in connection with such construction,
for the removal or relocation of structures, for the clearing
of lands and for the relocation of utilities;
(b) the cost of acquiring by purchase, if such purchase
shall be deemed expedient, and the amount of any deposit in
court or award or final judgment in or any settlement or
compromise of any proceeding to acquire by eminent domain,
such lands, property, rights, rights of way, easements,
franchises and other interests as may be deemed necessary or
convenient by the City, options and partial payments thereon,
the cost of demolishing or removing any buildings or
structures on land so acquired, including the cost of
acquiring any lands zo which such buildings or structures may
be moved, and the amount of any damages incident to or
consequent upon the construction and operation of Projects;
51.
(c) interest on any Bonds issued under the provisions
of Sections 208, 209A and 209 of this Resolution prior to the
commencement of and during the construction of Projects and
after the completion of their construction, and the
reasonable fees of the Fiscal Agent, the Bond Registrar and
the Paying Agents for the payment of such interest;
(d) the fees and expenses of the Fiscal Agent, the Bond
Registrar, Paying Agents, indexing agents and remarketing
agents for their services prior to and during construction,
taxes or other governmental charges lawfully levied or
assessed during construction, fees of Credit Banks and
Insurers during construction and premiums on insurance (if
any) during construction;
(e) the cost of borings and other preliminary
investigations to determine foundation or other conditions,
expenses necessary or incident to determining the feasibility
or practicability of constructing Projects, and fees and
expenses of engineers for making studies, surveys and
estimates of costs and of revenues and other estimates and
for preparing plans and specifications and supervising
construction, as well as for the performance of all other
duties of engineers;
(f) expenses of administration properly chargeable to
Projects, legal expenses and fees, financing charges, cost of
audits and of preparing and issuing the Bonds, and all other
items of expense not elsewhere in this Section specified
incident to the construction and equipment of Projects, the
financing thereof, the placing of the same in operation
(including the initial premiums on any insurance required or
obtained under the provisions of this Resolution), and the
acquisition of lands, property, rights, rights of way,
easements, franchises and interests therefor, including
abstracts of title, title insurance, cost of surveys and
other expenses in connection with such acquisition; and
(g) any obligation or expense heretofore or hereafter
incurred by the any agency of the City in connection with
Projects with the approval of the City or by the City for any
of the foregoing purposes.
Section 403. Payments from Construction Account. Payments
from the Construction Account shall be made by the City in
accordance with the provisions of this Article, and the City
covenants that it will not pay or cause or agree to permit to be
paid from the Construction Account any amount except in accordance
with such provisions. Payments from the Construction Account
shall be made by an appropriate officer or employee of the City in
52.
accordance with the procedures established from time to time by
the City. All such written requests and any other written orders,
statements, certificates and approvals required by this Article or
by resolution of the City Council in accordance herewith may be
conclusively relied upon by such officer or employee and shall be
retained by such officer or employee, subject at all reasonable
times To inspection by the Fiscal Agent.
Notwithstanding the foregoing provisions of this Article IV,
the Fiscal Agent shall withdraw from the Construction Account and
remit to the United States Treasury the amounts, if any, specified
by the City Manager to be so paid in order to comply with the
provisions of the Internal Revenue Code of 1954, as amended.
53.
ARTICLE V.
Revenues and Accounts
Section 501. DesiGnated Revenues and DesiGnated Revenue
Account; Covenant as to DesiGnated Revenues. Except as
hereinafter provided, the principal of and premium, if any, and
interest on the Bonds and parity Indebtedness, including the
Refunding Pledged Amount, shall be secured equally and ratably by
a pledge of all the proceeds received by the City from the
Designated Revenues, but in the event 1984 Bonds are then deemed
to be outstanding under the 1984 Resolution, only after all
payments and deposits required by the 1984 Resolution to be made
from proceeds of Designated Revenues have been made. The City
hereby irrevocably pledges such proceeds as received by the City
to the payment of the principal of and premium, .if any, and
interest on the Bonds and Parity Indebtedness. Notwithstanding
the foregoing or any other provision of this Resolution, on and
after the earlier of the date on which payment of the principal
of and premium, if any, and interest on the 1984 Bonds is
provided for and the date on which the Finance Director delivers
to the Bond Registrar a certificate evidencing compliance with
the provisions of the second paragraph of Section 514 of the 1984
Resolution, the Bonds issued under this Resolution and any Parity
Indebtedness shall be payable from, and shall be secured equally
and ratably by a pledge of, all the proceeds received by the City
from the Designated Revenues, on a parity and equally and ratably
with the payments to be made from, and the pledge of Designated
Revenues to, the 1984 Bonds then outstanding under the 1984
Resolution.
The City covenants that while any of the Bonds issued under
the provisions of this Resolution shall be outstanding it will
not take any action or fail to take any action that might result
in a suspension or termination of the receipt of the Designated
Revenues; that it will take all appropriate action to keep and
maintain the Designated Revenues at the required levels; that
except as permitted herein or in the Refunding Resolution, it
will not create or permit to be created any charge or lien on the
proceeds of the Designated Revenues ranking equally with or prior
to the charge or lien on the proceeds of the Designated Revenues
of the Bonds issued under the provisions of this Resolution; and
that it will not issue any additional Bonds or incur other
Indebtedness pursuant to Section 514 of the 1984 Resolution.
The City Council covenants that if any component of the
Designated Revenues shall become unavailable uo the City by
reason of a change in Florida law, the City Council will
designate another non-ad valorem revenue source or other non-ad
54.
valorem revenue sources in replacement of the unavailable
component, in an amount sufficient to cause the amount of
Designated Revenues to remain at the level of Designated Revenues
that would have been received had such component not become
unavailable, and thereafter, such non-ad valorem revenue source
to the extent so designated will be deemed to be Designated
Revenues for all purposes of this Resolution.
The City hereby covenants to continue and maintain the
Public Service Tax Fund of the City and if necessary, to
establish and maintain one or more special accounts within such
Public Service Tax Fund appropriately designated according to the
Designated Revenue source from which the Designated Revenues to
be deposited to said account are received; provided, however,
should another non-ad valorem revenue source or other non-ad
valorem revenue sources be substituted for the Designated
Revenues, as presently constituted, pursuant to the preceding
paragraph of this Section, the City shall establish and maintain
in the General Fund or other fund of the City, an appropriately
designated account or accounts designated according to the type
of such substituted non-ad valorem revenue source. The City
hereby covenants that all revenues received, collected and
derived from the Designated Revenues, including substitutions
therefor pursuant to the preceding paragraph of this Section, in
each Fiscal Year will be deposited or credited to the
appropriately designated account created hereby in the Public
Service Tax Fund. The Public Service Tax Fund and the account or
accounts created or required to be created in the Public Service
Tax Fund or in the General Fund by this paragraph for the
collection of proceeds of Designated Revenues are herein
collectively called the "Designated Revenue Account". All moneys
deposited or credited to the Designated Revenue Account shall be
held in trust and applied only as provided in this Resolution,
and pending such application, are hereby pledged to the security
of the owners of the Bonds and Parity Indebtedness until applied,
as provided herein, to a purpose inconsistent with such pledge.
Section 502. Annual Budqet. The City covenants that on or
before the first day of each Fiscal Year, it will include in its
annual budget or, at the City's option, adopt a separate budget
of current expenses and capital expenditures payable from
Designated Revenues for such Fiscal Year (herein sometimes called
the "Annual Budget"). Copies of the Annual Budget shall be filed
with the City Clerk and the Fiscal Agent and mailed by the City
to all Bondholders who shall have filed their names and addresses
with the City Clerk for such purpose.
If for any reason the City shall not have adopted an Annual
Budget before the first day of any Fiscal Year, the Annual budget
for the preceding Fiscal Year shall until the adoption of such
55.
Annual Budget, shall be deemed to be in force and shall be
treated as such Annual Budget under the provisions of this
Article.
The City may at any time adopt an amended or suplemented
Annual Budget for the remainder of the then current Fiscal Year,
and the Annual Budget so amended or supplemented shall be treated
as the Annual Budget under the provisions of this Article.
Copies of any such amended or supplemented Annual Budget shall be
filed with the City Clerk and the Fiscal Agent and mailed by the
City to all Bondholders who shall have filed their names and
addresses with the City Clerk for such purpose.
Section 503. Sinkinq Fund Account and Other Accounts. A
special account is' hereby created and designated the Boynton
Beach Public Service Tax Revenue Bonds Interest and Sinking Fund
Account (the "Sinking Fund Account"). There are hereby created
in the Sinking Fund Account two separate subaccounts, designated
the "Principal and Interest Subaccount" and the "Reserve
Subaccount", respectively. Two additional, special accounts are
hereby created and designated the "Boynton Beach Public Service
Tax Revenue Bonds Junior Obligations Account" (the "Junior
Obligations Account") and the "Boynton Beach Public Service Tax
Revenue Bonds General Account" (the "General Account").
The moneys in each of said Accounts and Subaccounts shall be
held in trust and applied only as hereinafter provided with
regard to each said Account or Subaccount, and, pending such
application, shall be subject to a lien and charge in favor of
the owners of the Bonds issued and outstanding under this
Resolution and of the owners of any Parity Indebtedness and for
the further security of such owners until paid out or transferred
as herein provided.
If Parity Indebtedness is then outstanding, on each Deposit
Day the Designated Revenues shall be divided, pro rata, for the
payment of deposits into any fund or account for payment of the
Principal ahd Interest Requirements of the Bonds, the Debt
Service Requirements of all Parity Indebtedness and the Refunding
Pledged Amount. Unless an event of default under this Resolution
or an event of default under the Refunding Resolution or any
other ordinance or resolution authorizing Parity Indebtedness
("Parity Resolution") shall have occurred and all bonds and
Parity Indebtedness issued thereunder shall have been declared
immediately due and payable, the proration of moneys on deposit
in the Designated Revenue Account in respect of scheduled debt
service on the Bonds and any Parity Indebtedness shall be made on
each Deposit Day for each month of each Bond Year (without regard
to any conflicting provisions of this ordinance or any Parity
Resolution, as either may be supplemented or amended) as though
56.
one-twelfth (1/12th) of the Principal and Interest Requirements
of the Bonds, of the Debt Service Requirement, of Parity
Indebtedness and of the Refunding Pledged Amount for such Bond
Year were scheduled ~o become due and payable in each month. If
Bonds or Parity Indebtedness shall bear interest at other than a
fixed rate of interest, the amount prorated in respect of the
interest on such Indebtedness in any such month shall not exceed
one-twelfth (1/i2th) of the maximum amount of the interest that
was assumed to accrue in such Bond Year for purposes of
determining whether such Indebtedness could be issued or incurred
in compliance with Section 209A or 209, as appropriate.
The City Manager shall, on or before the Deposit Day next
succeeding the month in which Bonds are issued under the
provisions of Section 208 of this Resolution and not later than
the Deposit Day of each month thereafter, withdraw from the
Designated Revenue Account, and deposit the sums so withdrawn to
the credit of the following Accounts and Subaccounts in the
following amounts and order:
(a) for 'deposit to the credit of the Principal and
Interest Subaccount,
(1) beginning on the Deposit Day of the month
next succeeding the month in which the Closing shall
occur, one-sixth (1/6th) of the interest payable on the
Bonds on the next Interest Payment Date~
(2) beginning on the twentieth (20th) day of
November in the Bond Year next preceding the Bond Year
on the first day of which any Serial Bond matures,
one-twelfth (1/12th) of the principal of all Serial
Bonds due on the next ensuing November 1 Principal Pay-
ment Date;
(3) beginning on the twentieth (20th) day of
November in the Bond Year next preceding the Bond Year
on the first day of which any Term Bond is scheduled to
be called for mandatory sinking funds redemption or to
mature, one-twelfth (1/12th) of the amount required to
retire the Term Bonds to be called by mandatory redemp-
tion or to be paid at maturity on the next ensuing
November 1 Principal Payment Date in accordance with
the Amortization Requirements therefor; and
(4) such amount of the debt service on Parity In-
debtedness as the City determines is necessary to
accrue in equal monthly installments and to insure the
sufficiency of deposits to make timely payment of
Parity Indebtedness;
57.
provided, however, that in making such payments, the City may take
into account any accrued interest deposited from the proceeds of
Bonds and any amounts specified in a certificate of the Finance
Director delivered to the Bond Registrar prior to such Deposit Day
as credited to a special subaccount in the Construction Account,
dedicated to pay interest on Bonds and anticipated to be available
to pay interest on Bonds on the next Interest Payment Date;
(b) for deposit to the credit of the Reserve
SubaccoUnt, {i) beginning on the Deposit Day of the month
next. succeeding the month in which an amount is transferred
from the Reserve Subaccount to the Principal and Interest
Subaccount to cure a deficiency therein pursuant to Section
505 of this Resolution, an amount that, together with
investment income credited to such Reserve Subaccount during
such month, is equal to one-eleventh (1/llth) of the amount
or amounts so transferred until the amount then on deposit in
the Reserve SubaccOunt is equal to the current Reserve
Subaccount Requirement and (ii) beginning on the Deposit Day
of the month next succeeding the month in which a valuation
is made in accordance with Section 602 of this Resolution and
in which valuation a loss resulting from a decline in value
of investments held to the credit of the Reserve Subaccount
is computed, an amount that, taking into account any gain or
loss in a subsequent valuation and any investment income
credited to such Subaccount during such month, is equal to
one-twenty-third (1/23rd) of such loss until the amount of
such loss is reimbursed;
(c) deposit to the credit of the Junior Obligations
Account, such amount, if any, of any balance remaining after
making the payments and deposits under clauses (a) and (b)
above (or the entire balance if less than the required
amount) as may be required by the Supplemental Resolution
applicable to the outstanding Junior Obligations; and
(d) deposit to the credit of the General Account, the
balance, if any, remaining after making the deposits under
clauses (a), (b) and (c) above.
The payments and deposits required pursuant to this Section
shall be cumulative, and the amount of any deficiency on any
Deposit Day shall be added to the amount otherwise required to be
paid or deposited on each Deposit Day thereafter until such time
as such deficiency shall have been made up.
Notwithstanding the foregoing provisions of subparagraphs
(a) and (b), if there shall be to the credit of either Subaccount
on a Deposit Day the amount required to be on deposit to the
credit of such Subaccount on the next Interest Payment Date or
58.
the next Principal Payment Date, no further deposit into such
Subaccount on account of the requirements of said subparagraph
(a) or (b) shall then be required.
If the Supplemental Resolution authorizing any series of
Bonds or any other Indebtedness shall provide that the interest
is payable otherwise than semiannually or otherwise than on May 1
or November 1 of each year or that the principal or Amortization
Requirements are payable otherwise than on a November 1, then the
City CounCil shall provide in such Supplemental Resolution for
such deposits to the Subaccounts ~entioned in subparagraphs (a)
and (b) above as shall be necessary to accrue evenly and to
ensure the sufficiency of the required deposits to make timely
payment of the debt service on such Bonds.
Section 504. ADplication of Moneys in Principal and Interest
Subaccount. The Fiscal Agent shall, immediately preceding each
Interest Payment Date, withdraw from the Principal and Interest
Subaccount and transfer to the Bond Registrar, and the Bond
Registrar shall (a) remit by mail to each registered owner the
amounts required for paying the interest on such Bonds as such
interest becomes due and payable and (b) set aside or deposit in
trust with any Paying Agent the amounts required for paying the
principal of the Bonds as such principal becomes due and payable.
Payment of Parity Indebtedness shall be timely made from moneys
set aside for such purpose in the Principal and Interest
Subaccount, and the Fiscal Agent shall pay or deposit in trust
with the Bond Registrar or any Paying Agent the amounts required
for paying such Parity Indebtedness.
Except in the case of Variable Rate Indebtedness or Optional
Tender Indebtedness, the Fiscal Agent shall endeavor to purchase
Bonds prior to maturity at the most advantageous price obtainable
with reasonable diligence, such price not to exceed the principal
of such Bonds. The Fiscal Agent shall pay the purchase price and
the interest accrued on such Bonds to the date of settlement
therefor from the Principal and Interest Subaccount. Except in
the case of Variable Rate Indebtedness or Optional Tender
Indebtedness, if and as provided in the applicable Supplemental
Resolution, in the case of a purchase of Bonds pursuant to this
Resolution, upon the deposit of cash or Government Obligations
(the principal of and the interest on which will be payable at the
times and in the amounts required for such purpose) in the
Principal and Interes5 Subaccount sufficient, together with other
amounts available therefor in the Principal and Interest
Subaccount, to make the purchase of Bonds, the Fiscal Agent shall
take and cause to be taken the necessary steps to redeem or
purchase such principal amount of Bonds as may be specified by the
City Manager; provided, however, that money in the Principal and
Interest Subaccount may be used by the Fiscal Agent, to purchase
59.
Bonds for cancellation only to the extent said moneys are in
excess of the amount required for payment of the Bonds theretofore
matured or called for redemption and the total amount of interest
and principal scheduled to become due on the next succeeding
Interest Payment Date or Principal Payment Date, respectively, and
in excess of the amounts required to pay Parity Indebtedness in
such Bond Year; and provided further that no such purchase shall
be made within the period of forty-five (45) days immediately
preceding any Interest Payment Date on which the Bonds are subject
to call for redemption under the provisions of this Resolution
except from moneys other than moneys set aside or deposited for
the redemption of Bonds.
in the case of bonds secured by a Credit Facility, amounts on
deposit in the Principal and Interest Subaccount may be applied as
provided in the applicable Supplemental Resolution to reimburse
the Credit Bank for amounts drawn under such Credit Facility to
pay the principal of and premium, if any, and interest on such
Bonds.
Notwithstanding the foregoing provisions of this Section
504, the Fiscal Agent shall withdraw from the Principal and
Interest Subaccount and remit to the United States Treasury the
amounts, if any, specified by the City Manager to be so paid in
order to comply with the provisions of the Internal Revenue Code
of 1954, as amended.
Section 505. Application of Moneys in Reserve Subaccount.
Except as hereinafter provided, moneys held for the credit of the
Reserve Subaccount shall be transferred to the credit of the
Principal and Interest Subaccount and used for the purpose of
paying the Debt Service Requirements of all Bonds and Parity
Indebtedness whenever and to the extent that the moneys held for
the credit of the Principal and Interest Subaccount shall be
insufficient for such purpose. If at any time during the first
fifteen (15) days of October and April in each Fiscal Year the
moneys held for the credit of the Reserve Subaccount shall exceed
an amount equal to the Reserve Subaccount Requirement or such
greater amount as shall be determined by the City Council by
resolution from time to time filed with the Bond Registrar and the
Fiscal Agent, such excess shall be transferred by the Fiscal Agent
to the City for deposit to the credit of the Designated Revenue
Account. The Fiscal Agent may, however, in its discretion
transfer such excess moneys to the Cisy for deposit to the credit
of the Designated Revenue Accoun5 at any time.
If the amount transferred from the Reserve Subaccount to the
Principal and Interest Subaccount pursuant ~o the foregoing
provisions of this Section shall be less than the amount required
to be transferred under such provisions, any amount thereafter
60.
deposited to the credit of the Reserve Subaccount shall be
immediately transferred to the Principal and Interest Subaccount
as, and to the extent, required to make up any such deficiency.
In the event that two or more separate subaccounts have been
established in the Reserve Subaccount as contemplated by Sections
209A, 209, 210, 211 and 704 in the event that Bonds constituting
Balloon Indebtedness or Optional Tender Indebtedness or Bonds
secured by a Credit Facility or Bonds the interest on which is
subject to federal income tax are issued or Parity Indebtedness is
incurred and outstanding and a deficiency in the amount of money
to the credit of the Principal and Interest Subaccount or a
subaccount established under a Supplemental Resolution shall exist
with respect to a series of Bonds constituting Optional Tender
Indebtedness or Balloon Indebtedness by virtue of the exercise by
the owners of Optional Tender Indebtedness of their rights to
tender such Bonds for payment or purchase or by virtue of an
insufficiency of moneys in the Principal and Interest Subaccount
to meet the balloon Principal Requirement, respectively, or, with
respect to Bonds secured by a Credit Facility by virtue of a draw
under such Credit Facility or with respect to any Parity
Indebtedness, the necessary withdrawals shall be made solely from
and to the extent of moneys credited to the subaccount
corresponding to such series of Bonds or Parity Indebtedness;
otherwise, such accounts shall be drawn upon pro rata in
accordance with the amounts of principal and interest coming due
on Parity Indebtedness or on the Bonds of different series that,
on the one hand do not, and, on the other hand, do constitute
Balloon Indebtedness or Optional Tender Indebtedness or Bonds
secured by a Credit Facility, to the extent necessary to remedy
such deficiencies.
Whenever the amount on deposit in the Reserve Subaccount is
less than the Reserve Subaccount Requirement, the Fiscal Agent
shall notify the Finance Director and the City Manager of the
amount of the deficiency. Upon such notification, the City
Manager immediately shall pay, and shall pay on the Deposit Day in
each month thereafter, to the Fiscal Agent for deposit to the
credit of the Reserve Subaccount an amount not less than one-
eleventh (1/llth) of the amount of such deficiency or, if such
deficiency is determined as a result of a valuation described in
Section 602 hereof, one-twenty-third (I/23rd) of the amount of
such deficiency until such deficiency is made up, drawing upon
funds available in the Designated Revenue Account or upon other
funds legally available for such purpose.
tn the case of Bonds secured by a Credit Facility, amounts on
deposit in a separate subaccount in the Reserve Subaccount may be
applied as provided in the applicable Supplemental Resolution to
reimburse the Credit Bank for amounts drawn under such Credit
61.
Facility to pay the principal of and premium, if any, and interest
on such Bonds and to pay the Purchase Price of Optional Tender
Indebtedness.
Notwithstanding the foregoing provisions of this Section
505, the Fiscal Agent shall withdraw from the Reserve Subaccount
and remit to the United States Treasury the amounts, if any,
specified by the City Manager to be so paid in order to comply
with the provisions of the Internal Revenue Code of 1954, as
amended.
Section 506. ApDlication of Moneys in the Junior Obliqations
Account; Limitation on the Issuance of Junior Obliqations. Moneys
held for the credit of the Junior Obligations Account shall be
applied to the retirement of Junior Obligations issued under the
provisions of this Resolution in accordance with their terms.
Moneys held for the credit of the Junior Obligations Account may
be pledged to the payment of the principal of and premium, if any,
and interest on any Junior Obligations issued by the City. Junior
Obligations may be issued or incurred by the City for the purpose
of paying all or any part of the cost of any Project or Projects,
and the proceeds of such Junior Obligations shall be deposited
with the City to the credit of the Construction Account. Junior
Obligations may also be issued by the City for the purpose of
providing funds, with any other available funds, for redeeming
prior to their maturity or maturities, or for paying at their
maturity or maturities, all or any part of the outstanding Bonds
of any series or of other Indebtedness or Junior Obligations or
for any other lawful purpose. The City shall have the right to
covenant with the holders from time to time of any Junior
Obligations issued by the City to add to the conditions,
limitations and restrictions under which any additional Bonds may
be issued under the provisions of Section 209A and 209 of this
Resolution.
Section 507. Use of General Account. The City shall from
time to time (i) transfer or deposit to the credit of any Account
or Subaccount created under the provisions of this Resolution any
moneys held for the credit of the General Account or (ii) deposit
any such moneys to the General Fund of the City. or to any other
fund or account permitted by law, upon the receipt of a certified
copy of a resolution duly adopted by the City Council directing
such transfer or payment or (iii) apply such moneys for any other
lawful purpose.
Payments from the General Account shall be made by an
appropriate officer or employee of the City in accordance with the
procedures established from time to time by the City.
62.
Section 508. Application and Pledqe of Moneys in Sinkinq
Fund Account and Junior Obliqations Account. Subject to the terms
and conditions set forth in this Resolution and except as
otherwise provided in a Supplemental Resolution, moneys held for
the credit of the Principal and Interest Subaccount and the
Reserve Subaccount shall be held in trust and disbursed by the
Fiscal Agent for Ca) the payment of interest on the Bonds issued
hereunder as such interest becomes due and payable, or (b) the
payment of ~he principal of such Bonds at their respective
maturities , or (c) the payment of the Purchase or Redemption
Price of such Bonds before their respective maturities or (d) the
payment of Parity Indebtedness, and such moneys are hereby pledged
to and charged with the payments mentioned in this Section.
Except as otherwise provided in this Resolution or in any
Supplemental Resolution, moneys held for the credit of the Junior
Obligations Account shall be held in trust and disbursed by the
City for the payment of Junior Obligations in accordance with
their terms, and such moneys are hereby pledged to and charged
with such payment.
Section 509. Moneys Set Aside for the Payment of
Indebtedness to Be Meld in Trust. Ail moneys that the Fiscal
Agent shall have withdrawn from the Principal and Interest
Subaccount or shall have received from any other source and set
aside, or deposited with the Bond Registrar or Paying Agents, for
the purpose of paying any of the Bonds hereby secured or any
Parity Indebtedness, either at the maturity thereof or upon call
for redemption or prepayment, shall be held in trust for the
respective owners of such Bonds or Parity Indebtedness. All
moneys that shall have been withdrawn by the City from the Junior
Obligations Account or shall have been received by the City from
any source and set aside for the payment of Junior Obligations
shall be held in trust for the owners of such Junior Obligations.
Notwithstanding the foregoing any moneys that shall be so set
aside or deposited and that shall remain unclaimed by the owners
of such Indebtedness for the period of four (4) years after the
date on which such Indebtedness shall have become due and payable
shall upon request in writing be paid to the City or to such
officer, board or body as may then be entitled by law 5o receive
the same, and thereafter the owners of such Indebtedness shall
look only to the City or to such officer, board or body, as the
case may be, for payment and then only to the extent of the
amounts so received without any interest thereon, and the Fiscal
Agent, the Bond Registrar and the Paying Agents shall have no
responsibility with respect to such moneys.
Section 510. Cancellation of Bonds. Except as otherwise
provided herein or in a Supplemental Resolution, all Bonds paid,
redeemed or purchased, either at or before maturity, shall be
cancelled upon the payment, redemption or purchase of such Bonds
63.
and shall be delivered to the Bond Registrar when such payment,
redemption or purchase is made. All Bonds cancelled under any of
the provisions of this Resolution shall be destroyed by the Bond
Registrar, and the Bond Registrar shall execute a certificate of
destruction in triplicate describing the Bonds so destroyed. One
executed certificate of destruction shall be filed with the Clerk
and one with the Fiscal Agent and the other executed certificate
shall be retained by the Bond Registrar.
64.
ARTICLE VI.
Depositaries of Moneys, Security for Deposits
and Investment of Funds
Section 601. Security for DepoSits. Ail moneys received
under the provisions of this Resolution shall be held in trust,
shall be applied only in accordance with the provisions of this
Resolution and shall not be subject to lien or attachment by any
creditor of the City.
Ail moneys held by the Fiscal Agent or the Bond Registrar or
deposited with any Depositary hereunder in excess of the amount
guaranteed by the Federal Deposit Insurance Corporation or other
federal agency shall be continuosly secured for the benefit of
the City and the holders of the Bonds, either (a) by lodging with
a bank or trust company approved by the City as custodian, or, if
then permitted by law, by setting aside under control of the
trust department of the bank holding such deposit, as collateral
security, Federal Securities, or, with the approval of the City
Manager, other Permitted Investments eligible as security for the
deposit of trust funds under applicable regulations of the
Comptroller of the Currency of the United States or applicable
law and regulations of the State of Florida, having at all times
a market value (exclusive of accrued interest) not less than the
amount of such deposit, or (b) if the furnishing of security as
provided in clause (a) of this Section is not permitted by
applicable law, in such other manner as may then be required, or
permitted by applicable State of Florida or federal laws or
regulations regarding the security for, or granting a preference
in the case of, the deposit of trust funds; provided, however,
that it shall not be necessary for the Bond Registrar or any
Paying Agents to give security for the deposits of any moneys
with them for the payment of the principal of or the redemption
premium or-the interest of any Bonds issued hereunder, or for the
Fiscal Agent to give security for any moneys that shall be
represented by obligations purchased under the provisions of this
Article as an investment of such moneys.
Ail moneys held by the Piscal Agent and deposited with each
Depositary shall be credited to the particular Account or
Subaccount to which such moneys belong.
Moneys held for the credit of the Designated Revenue Account
shall be invested from time to time, by any one of the officers
or employees of the City who shall be designated by the City
Council for such purpose, in Permitted Investments that shall
65.
mature, or that shall be subject to redemption by the holder
thereof at the option of such holder, not later than one year
after the date of such investment.
Moneys held for the credit of the Principal and Interest
Subaccount to the extent suCh moneys cannot be applied to the
purchase of Bonds under the provisions of this Resolution and
(unless otherwise provided in a Supplemental Resolution) in the
Junior Obligations Account shall, as nearly as may be
practicable, be invested and reinvested in Permitted Investments
that shall mature, or that shall be subject to redemption by the
holder thereof at the option of such holder, not later than the
respective dates on which the moneys held for the credit of said
Subaccount will be required for the purposes intended.
Moneys held for the credit of the Reserve Subaccount shall,
as nearly as may be practicable, be invested and reinvested in
Permitted Investments that shall mature, or that shall be subject
to redemption by the holder thereof at the option of such holder,
not later than fifteen (15) years after the date of such
investment.
Moneys held for the credit of the Construction Account and
the General Account shall be invested from time to time in
Permitted Investments.
Any investment in any Permitted Investments, except the
collateral for such Investments, that must be delivered, may be
made in the form of an entry made on the records of the issuer of
the particular obligation. Investments so .purchased as an
investment of moneys in any such Account or Subaccount shall be
deemed at all times to be a part of such Account or Subaccount,
and the interest accruing thereon and any profit realized from
such investment shall be credited to such Account or Subaccount,
and any loss resulting from such investment shall be charged to
such Account or Subaccount; provided, however, that the interest
accruing on the investment of moneys in the Principal and
Interest Subaccount and the Reserve Subaccount and any profit
realized from such investment shall be credited to the Designated
Revenue Account and any loss resulting from such investment shall
be charged to the Designated Revenue Account. The Fiscal Agen~
(or the Bond Registrar) or the City shall sell at the best price
obtainable or presen~ for redemption any obligations so purchased
whenever it shall be necessary so to do tn order ~o provide
moneys to meet any payment or transfer from any such Account or
Subaccoun~. Neither the Fiscal Agent, the Bond Registrar nor the
City shall be liable or responsible for any loss resulting from
any such investment.
66.
Section 602. Valuation. For the purpose of determining the
amount of deposit to the credit of any such Account or
Subaccount, obligations in which money in such Account of
Subaccount shall have been invested shall be valued at the market
value or the amortized cost thereof, whichever is lower.
The Fiscal Agent and the City shall value the investments in
the Reserve Subaccount semi-annually twelve (12) Business Days
prior to each November 1 and May 1. In addition~ the Permitted
Investments in the Sinking Fund Account shall be valued by the
Deposita5y at any time requested by the City on reasonable notice
(which period of notice may be waived or reduced by the
Depositary); provided, however, that the Depositary shall not be
required to value such investments more than once in any calendar
month.
If upon valuation of the obligations on deposit to the
credit of the Reserve Subaccount, the balance to the credit of
the Reserve Subaccount is less than the Reserve Subaccount
Requirement, the Fiscal Agent shall compute the amount by which
the Reserve Subaccount Requirement exceeds such balance and shall
immediately give the City notice of such deficiency and of the
amount necessary to cure the same.
Section 603. Covenant as to Arbitraqe. The City agrees
that so long as any of the Bonds (the interest on which was
exempt from federal income taxes on the date such Bonds were
issued) remain outstanding, moneys on deposit in any Account or
Subaccount maintained in connection with such Bonds, whether such
moneys were derived from the proceeds of the sale of the Bonds or
from any other sources, will not be used in a manner that would
cause such Bonds to be "arbitrage bonds" as defined in the
Internal Revenue Code of 1954, as amended (the "Code") and
applicable regulations promulgated from time to time thereunder.
Except as to Bonds the interest on which was not exempt from
federal income taxes on the date of ~ssuance, the City shall
observe and not violate the requirements of the Code and any such
applicable regulations. In the event the City is of the opinion
that it is necessary to restric5 or limit the yield on the
investment of moneys held by it or the Fiscal Agent, the Bond
Registrar or any Depositary pursuant to this Resolution, or to
use such moneys in a certain manner, in order to avoid such
Bonds' being considered "arbitrage bonds" within the meaning of
the Code and the regulations thereunder, as such may be
applicable to the Bonds at such time, the City may issue to the
Fiscal Agent, the Bond Registrar or any Depositary a written
certificate to such effect and appropriate instructions, in which
event the Fiscal Agent, the Bond Registrar or any Depositary
shall take such action as is necessary to restrict or limit the
yield on investments or to use moneys to the credit of such
67.
Account or Subaccount in accordance with such certificate and
instructions, irrespective of whether the Fiscal Agent, the Bond
Registrar or such Depositary shares such opinion.
68.
the Fiscal Agent, and copies of such report shall be mailed to
any owner of Indebtedness who shall have filed his name and
address with the City Clerk for such purpose. Each such audit
report shall set forth in respect of said Fiscal Year the same
matters as are hereinbelow required for the monthly reports and
shall include a comparison with the Annual Budget for said Fiscal
Year. The Accountant, in addition to such audit report, shall
furnish a special report stating that an examination of the
financial statements has been conducted in accordance with
generally accepted auditing standards and stating whether such
financial statements present fairly the financial position
described therein and changes in such financial position for the
period covered by such audit report in conformity with generally
accepted accounting principles applied on a consistent basis.
Such special report shall state (i) whether at year end any
violation of bond covenants existed and (ii) if at any time
during the Fiscal Year under audit an event of default (as
defined in Section 802(a) through (i), inclusive, hereof)
occurred and if so, the nature of the default. Such special
reports shall be limited to financial matters described in the
Resolution. In the event that for any reason beyond the control
of the City, it is unable to obtain the foregoing certificate as
to compliance with generally accepted accounting principles and
is taking all reasonable and feasible actions to obtain such
certificates as to subsequent Fiscal Years, the City shall be
deemed to be in compliance with the provisions of this Section,
if, in lieu of the certificate required above s~ch certificate
states the reasons for such non-compliance or non-conformity.
The City further covenants that it will prepare or cause to
be prepared on a timely manner and will cause to be filed with
the City Manager a monthly statement setting forth in respect of
the preceding month:
(a) the amount of proceeds of the Designated Revenues
in the preceding month;
(b) all deposits to the credit of and withdrawals from
each special account and subaccount created under the
provisions of this Resolution;
(c) the details of all
purchased or redeemed; and
Indebtedness issued, paid,
(d) the amounts on deposit at the end of such month to
the credit of each such account and subaccount, showing the
respective amounts on deposit to the credit of each such
account and subaccoun~, the security held therefor and the
details of any investments thereof.
70.
The City further covenants that it will cause any additional
reports or audits relating to the Designated Revenues or to the
Projects to be made as required by law or by any applicable rules
or regulations of any governmental authority having jurisdiction
in the premises.
For the purposes of this Resolution, each account and
subaccount created hereunder shall be a series of accounts within
the book of accounts of the City and shall connote a segregation
of accounts that will support special purpose disclosure reports,
not to be construed as a separate set of books of accounts.
Section 704. Limitations on Parity Indebtedness. (a) The
City may incur and refund Parity Indebtedness provided that the
documents providing for such Parity Indebtedness shall specify
(i) the amounts and due dates of the Debt Service Requirements of
such Parity Indebtedness or the amount of any additional
Refunding Pledged Amount and the principal and interest
components of such Debt Service Requirements or Refunding Pledged
Amount and (ii) the amount, if any, to be deposited to the credit
of the Reserve Subaccount or the portion, if any, of the
Refunding Pledged Amount to be deposited to any reserve
subaccount under the Refunding Resolution and that the Bond
Registrar shall determine that all the requirements of clauses I,
II and III of Section 209, or all the requirements of Section
209A, 210 or 211, as appropriate, of this Resolution shall have
been met the same as if such Parity Indebtedness to be incurred
were an additional series of Bonds to be issued under the
provisions of Section 209A, 209, 210, or 211, respectively.
Parity Indebtedness that constitutes Variable Rate Indebtedness
may bear interest payable on a parity with interest on Bonds
issued under this Resolution to the extent the rate of such
interest on Parity Indebtedness does not exceed the maximum rate
of interest at which additional Bonds could have been issued
pursuant to Section 209A or 209, as appropriate.
(b) The City covenants that it will faithfully fulfill all
lawful requirements of all contracts or agreements creating such
Parity Indebtedness and that i~ will require all other parties
thereto to fulfill their lawful obligations therefor.
71.
ARTICLE VIII.
Events of Default and Remedies
Section 801. Extension of Interest Payment. In case the
time for the payment of the interest on any Bond or Parity
Indebtedness shall be extended, whether such extension be by or
with the consent of the City, such interest so extended shall not
be entitled in case of default hereunder to the benefit or
security of this Resolution except subject to the prior payment
in full of the principal of. all Bonds and Parity Indebtedness
then outstanding and of all interest the time for the payment of
which shall not have been extended.
Section 802. Events of Default. Each of the following
events is hereby declared an."event of default", that is to say:
if
(a) payment of the principal and of the redemption
premium, if any, of any of the Bonds or any Parity
Indebtedness shall not be made by the close of business on
the third day after the same shall be come due and payable,
either at maturity or by proceedings for redemption or
otherwise; or
(b) payment of any installment of interest on any of
the Bonds or Parity Indebtedness shall not be made by the
close of business on the third day after the same shall
become due and payable; or
(c) payment of any amount required to satisfy any
Amortization Requirement shall not be made by the close of
business on the third day after the same shall become due
and payable; or
(d) final judgment for the payment of money to be paid
from the proceeds of Designated Revenues shall be rendered
against the City and any such judgment shall not be
discharged within sixty (60) days from the entry thereof or
an appeal shall no~ be taken therefrom or from the order,
decree or process upon which or pursuant to which such
judgment shall have been granted or entered, in such manner
as to stay the execution of or levy under such judgment,
order, decree or process or the enforcement thereof; or
(e) if the City admits in writing its inability to pay
its debts generally as they become due, or files a petition
in bankruptcy or makes an assignment for the benefit of its
72.
creditors or consents to the appointment of a receiver or
trustee for itself or for the whole or any part of the
proceeds of Designated Revenues; or
(f) if the City is adjudged insolvent by a court of
competent jurisdiction, or it be adjudged a bankrupt on a
petition in bankruptcy filed by or with the acquiesence of
the City, or an order, judgment or decree be entered by any
court of competent jurisdiction appointing, a receiver or
trustee of the City or of the whole or any part of the
proceeds of Designated Revenues and any of the aforesaid
jurisdictions, orders, judgments or decrees shall not be
vacated or set aside or stayed within ninety (90) days from
the date of entry thereof; or
(g) if the City shall file a petition or answer
seeking reorganization or any arrangement under the federal
bankruptcy laws or any other applicable law or statute of
the United States of America or any state thereof; or
(h) if, under the provisions of any other law for the
relief or aid of debtors, any court of competent
jurisdiction shall assume custody or control of the City or
of the whole or any substantial part of the proceeds of
Designated Revenues, and such custody or control shall not
be terminated within ninety (90) days from the date of
assumption of such custody or control; or
(i) the City shall default in the due and punctual
performance of any other of the covenants, conditions,
agreements and provisions contained in the Bonds or in this
Resolution on the part of the City to be performed, and such
default shall continue for thirty (30) days after written
notice specifying such default and requiring same to be
remedied shall have been given to the City, which notice the
Fiscal Agent or the Bond Registrar may give to the City and,
upon the written request of not less than twenty-five per
centum (25%) in aggregate principal amount of the Bonds and
Parity Indebtedness then outstanding, shall give to the
City.
Section 803. Acceleration of Maturities. Upon the
happening and continuance of any event of default specified in
clauses (a) through (c) of Section 802 of this Article, then and
in every such case the holders of not less than twenty-five per
centum (25%) in aggregate principal amount of the Bonds and
Parity Indebtedness then outstanding may, by a notice in writing
to the City, declare the principal of all of the Bonds and Parity
Indebtedness then outstanding (if not then due and payable) to be
due and payable immediately, and upon such declaration the same
73.
shall become and be immediately due and payable, anything
contained in the Bonds, in the Parity Indebtedness or in this
Resolution to the contrary notwithstanding; provided that if at
any time after the principal of the Bonds and Parity Indebtedness
shall have been so declared to be due and payable, and before the
entry of final judgment or decree in any suit, action or
proceeding instituted on account of such defaultr or before the
completion of the enforcement of any other remedy under this
Resolution, moneys shall have accumulated in the Sinking Fund
Account sufficient to pay the principal of all matured Bonds and
Parity Indebtedness and all arrears of interest, if any, upon all
Bonds and Parity Indebtedness then outstanding (except the
principal of any Bonds and Parity Indebtedness not then due
except by virtue of such declaration and any interest accrued on
such Bonds and Parity Indebtedness since the last interest
payment date), and all amounts then payable by the City hereunder
shall have been paid or a sum sufficient ~o pay the same s~alI
have been deposited with the Bond Registrar, and every other
default in the observance or performance of any covenant,
condition, agreement or provision contained in the Bonds or
Parity Indebtedness or in this Resolution (other than a default
in the payment of the principal of such Bonds or Parity
Indebtedness then due only because of a declaration unde~ this
Section) shall have been remedied, then and in every such case
the holders of not less than twenty-five per centum (25%) in
aggregate principal amount of the Bonds and Parity Indebtedness
not then due except by virtue of such declaration and then
outstanding may, by written notice to the City, rescind and annul
such declaration and its consequences, but no such rescission or
annulment shall extend to or affect any subsequent default or
impair any right consequent thereon.
Section 804. Enforcement of Remedies. Upon the happening
and continuance of any event of default specified in Section 802
of this Article, then and in every such case the holders of no~
less than twenty-five per centum (25%) in aggregate principal
amount of the Bonds and Parity Indebtedness then outstanding
hereunder shall proceed to protect and enforce the rights of the
owners of the Bonds and of Parity Indebtedness under Florida law,
or under this Resolution by such suits, action or special
proceedings in equity or at law, either for the specific
performance of any covenant or agreement contained herein or in
aid or execution of any power herein granted or for the
enforcement of any proper legal or equitable remedy, as such
Bondholders or owners of Parity Indebtedness shall deem mos5
effectual to protect and enforce such rights.
Section 805. Pro Rata Application of Funds. Anything in
this Resolution to the contrary notwithstanding, if at any time
the moneys in the Sinking Fund Account shall not be sufficient ~o
74.
pay the principal of or the interest on the Bonds and Parity
Indebtedness as the same become due and payable (either by their
terms or by acceleration of maturities under the provisions of
Section 803 of this Article), such moneys, together with any
moneys then available or thereafter becoming available for such
purpose, whether through the exercise of the remedies provided
for in this Article or otherwise, shall be applied as follows:
(a) Unless the principal of all the Bonds and Parity
Indebtedness shall have become due and payable or shall have
been declared due and payable, all such moneys shall be
applied
first: to the payment of the persons entitled
thereto of all installments of interest then due and
payable on the Bonds and ~Parity Indebtedness, in the
order in which such installments become due and
payable, and, if the amount available shall not be
sufficient to pay in full, any particular installment,
then to the payment ratably, according to the amounts
due on such installment, to the persons entitled
thereto, without any discrimination or preference
except as to any difference in the respective rates of
interest specified in the Bonds and Parity
Indebtedness;
second: to the payment of the persons entitled
thereto of the unpaid principal of any of the Bonds and
Parity Indebtedness that shall have become due (other
than Bonds and Parity Indebtedness called for
redemption for the payment of which sufficient moneys
are held pursuant to the provisions of this
Resolution), in the order of their due dates, with
interest upon such Bonds and Parity Indebtedness at the
respective dates upon which they became due, and, if
the amount available shall not be sufficient to pay in
full the principal of Bonds and Parity Indebtedness due
on any particular date, together with such interest,
then to the payment first of such interest, ratably
according to the amount of such interest due on such
date, and then to the payment of such principal,
ratably according to the amount of such principal due
on such date, to the persons entitled thereto without
any discrimination or preference except as ~o any
difference in the respective rases of interest
specified in the Bonds and Parity Indebtedness; and
third: to the payment of the interest on and the
principal of the Bonds and Parity Indebtedness, to the
purchase and retirement of Bonds and Parity
75.
Indebtedness and to the redemption of Bonds and Parity
Indebtedness, all in accordance with the provisions of
Article V of this Resolution.
(b) If the principal of all the Bonds and Parity
Indebtedness shall have become due and payable or shall have
been declared due and payable, all such moneys shall be
applied to the payment of the principal and interest then
due and unpaid upon the Bonds and Parity Indebtedness,
without preference or priority of principal over interest or
of interest over principal or of any installment of interest
over any other installment of interest, or of any Bond and
Parity Indebtedness over any other Bond and Parity
Indebtedness, ratably, according to the amounts due
respectively for principal and interest, to the persons
entitled thereto without any discrimination or preference
except as to any difference in the respective rates of
interest specified in the Bonds and Parity Indebtedness.
(c) If the principal of all the Bonds and Parity
Indebtedness shall have been declared due and payable and if
such declaration shall thereafter have been rescinded and
annulled under the provisions of Section 803 of this
Article, then, subject to the provisions of paragraph (b) of
this Section in the event that the principal of all the
Bonds and Parity Indebtedness shall later become due or be
declared due and payable, the moneys remaining in and
thereafter accruing to the Sinking Fund Account shall be
applied in accordance with the provisions of paragraph (a)
of this Section.
The provisions of this Section are in all respects subject
to the provisions of Section 801 of this Article.
Whenever moneys are to be applied by the Fiscal Agent or the
Bond Registrar pursuant to the provisions of this Section, such
moneys shall be applied by the Fiscal Agent at such times, and
from time to time, as the Fiscal Agent in its sole discretion
shall determine, having due regard ~o the amoun~ of such moneys
available for application and the likelihood of additional moneys
becoming available for such application in the future; the
deposit of such moneys with .the Bond Registrar, or otherwise
setting aside such moneys, in trust for the proper purpose, shall
constitute proper application by the Fiscal Agent; and the Fiscal
Agent shall incur no liability whatsoever to any Bondholder, the
owner of any Parity Indebtedness or to any other person for any
delay in applying any such funds, so long as the Fiscal Agent
acts with reasonable diligence, having due regard to the
circumstances, and ultimately applies the same in accordance with
such provisions of this Resolution as may be applicable at the
76.
time of application. Whenever the Fiscal Agent shall exercise
such discretion in applying such funds, it shall fix the date
upon which such application is ~o be made and upon such date
interest on the amounts of principal to be paid on such date
shall cease to accrue, The Fiscal Agent shall give such notice
as it may deem appropriate of the fixing of any such date, and
shall not be required to make payment to the holder of any unpaid
Bond or Parity Indebtedness until such Parity Indebtedness or
such Bond shall be surrendered to it for appropriate endorsement.
Section 806. Effect of Discontinuance of Proceedings. In
case any proceeding taken by the Fiscal Agent on account of any
default shall have been discontinued or abandoned for any reason,
then and in every such case the City and the Fiscal Agent shall
be restored to their former positions and rights hereunder~
respectively, and all rights and remedies of the Fiscal Agent and
the Bondholders and owners of any Parity Indebtedness shall
continue as though no such proceeding had been taken.
Section 807. Restriction on Individual Bondholder Actions.
No holder of any of the Bonds or Parity Indebtedness hereby
secured shall have any right in any manner whatever by his or
their action to affect, disturb or prejudice the security of this
Resolution, or to enforce any right hereunder except in the
manner herein provided, and all such proceedings at law or in
equity shall be instituted, had and maintained for the benefit of
all owners of such Bonds and Parity Indebtedness.
Section 808. No Remedy Exclusive. No remedy herein
conferred upon the Fiscal Agent on behalf of the Bondholders or
owners of Parity Indebtedness is intended to be exclusive of any
other remedy or remedies herein provided, and each and every such
remedy shall be cumulative and shall be in addition to every
other remedy given hereunder.
Section 809. Delay Not a Waiver. No delay or omission of
the Fiscal Agent or Bond Registrar to exercise any right or power
accruing upon any default shall impair any such right or power or
shall be construed to be a waiver of any such default or an
acquiescence therein; and every power and remedy given by this
Article to the Fiscal Agent on behalf of the Bondholders or
owners of Parity Indebtedness may be exercised from time to time
and as often as may be deemed expedient.
Section 810. Riqht to Enforce Payment of Bonds. Nothing in
this Article shall affect or impair the right of any Bondholder
to enforce the paymen~ of the principal of and interest on the
Bonds or Parity Indebtedness, or the obligation of the City to
77.
the Fiscal Agent, and copies+X
X
C~
C~
o
Z
o
-;
Z
0
X
Section 602. Valuation. For the purpose of determining the
amount of deposit to the credit of any such Account or
Subaccount, obligations in which money in such Account of
Subaccount shall have been invested shall be valued at the market
value or the amortized cost thereof, whichever is lower.
The Fiscal Agent and the City shall value the investments in
the Reserve Subaccount semi-annually twelve (12) Business Days
prior to each November 1 and May 1. In addition, the Permitted
Investments in the Sinking Fund Account shall be valued by the
Depositary at any time requested by the City on reasonable notice
(which period of notice may be waived or reduced by the
Depositary); provided, however, that the Depositary shall not be
required to value such investments more than once in any calendar
month.
If upon valuation of the obligations on deposit 5o the
credit of the Reserve Subaccount, the balance to the credit of
the Reserve Subaccount is less than the Reserve Subaccount
Requirement, the Fiscal Agent shall compute the amount by which
the Reserve Subaccount Requirement exceeds such balance and shall
immediately give the City notice of such deficiency and of the
amount necessary to cure the same.
Section 603. Covenant as to Arbitraqe. The City agrees
that so long as any of the Bonds (the interest on which was
exempt from federal income taxes on the date such Bonds were
issued) remain outstanding, moneys on deposit in any Account or
Subaccount maintained in connection with such Bonds, whether such
moneys were derived from the proceeds of the sale of the Bonds or
from any other sources, will not be used in a manner that would
cause such Bonds to be "arbitrage bonds" as defined in the
Internal Revenue Code of 1954, as amended (the "Code") and
applicable regulations promulgated from time to time thereunder.
Except as to Bonds the interest on which was not exemp5 from
federal income taxes on the date of issuance, the City shall
observe and not violate the requirements of the Code and any such
applicable regulations. In the event the City is of the opinion
that it is necessary to restric5 or limit the yield on the
investment of moneys held by it or the Fiscal Agent, the Bond
Registrar or any Depositary pursuant to this Resolution, or co
use such moneys in a certain manner, in order to avoid such
Bonds' being considered "arbitrage bonds" within the meaning of
the Code and the regulations thereunder, as such may be
applicable to the Bonds a[ such time, the City may issue to the
Fiscal Agent, the Bond Registrar or any Depositary a written
certificate to such effect and appropriate instructions, in which
eventrr47 the Fiscal Agent, the Bond Registrar or any Deposisary
shall take such action as is necessary to restrict or limit the
yield on investments or to use moneys to the credit of such
67.
pay the principal of and interest on each Bond and Parity
Indebtedness to the holder thereof at the time and place in said
Bond or Parity Indebtedness expressed.
78.
ARTICLE IX.
Execution of Instruments by Bondholders
and Proof of Ownership of Bonds and Parity Indebtedness
Section 901. Execution of Instruments by Bondholders and
Proof of OwnershiD of Bonds. Any request, direction, consent or
other instrument in writing required or permitted by this
Resolution to be signed or executed by Bondholders or owners of
Parity Indebtedness may be in any number of concurrent
instruments of similar tenor and may be signed or executed by
such Bondholders or owners or their attorneys or legal
representatives. Proof of the execution of any such instrument
and of the ownership of Bonds and Parity Indebtedness shall be
sufficient for any purpose of this Resolution and shall be
conclusive in favor of the City or the Bond Registrar with regard
to any action taken by it under such instrument if made in the
following manner:
(a) The fact and date of the execution by any person
of any such instrument may be proved by the verification of
any officer in any jurisdiction who, by the laws thereof,
has power to take affidavits within such jurisdiction, to
the effect that such instrument was subscribed and sworn to
before him, or by an affidavit of a witness to such
execution. Where such execution is on behalf of a person
other than an individual such verification or affidavit
shall also constitute sufficient proof of the authority of
the signer thereof.
(b) The ownership of Bonds shall be proved by the
registration books kept under the provisions of Section 206
of this Resolution, and the ownership of Parity Indebtedness
shall be provided as provided by Supplemental Resolution,
which Resolution may provide that the books kept by the Bond
Registrar under Section 206 shall be used to determine
ownership of Parity Indebtedness.
But nothing contained in this-Articie shall be construed as
limiting the Fiscal Agent or the Bond Registrar to such proof, it
being intended that the Fiscal Agent and the Bond Registrar may
accept any other evidence of the matters herein stated that it
may deem sufficient. Any request or consent of the holder of any
Bond or Parity Indebtedness shall bind every future holder of the
same Bond or Parity Indebtedness in respect of anything done by
the City in pursuance of such request or consent.
79.
ARTICLE X.
Supplemental Resolutions
Section 1001. Supplemental Resolutions Without Consent.
The City Council, from time to time and at any time may adopt
such resolutions supplemental hereto as shall not be inconsistent
with the terms and provisions hereof (which' supplemental
resolution shall thereafter form a part hereof)
(a) to cure any ambiguity or formal defect or omission
or to correct any inconsistent provisions in this Resolution
or in any Supplemental Resolution, or
(b) to substitute a different source of Designated
Revenues, to grant to or confer upon the Bondholders, the
owners of Parity Indebtedness, the Fiscal Agent or the Bond
Registrar any additional rights, remedies, powers,
authority or security that may lawfully be granted to or
conferred upon the Bondholders, the owners of Parity
Indebtedness, the Fiscal Agent or the Bond Registrar, or
(c) ~o add to the conditions, limitations and
restrictions thereafter to be observed by the City under the
provisions of this Resolution other conditions, limitations
and restrictions thereunder to be observed, or
(d) to add to the covenants and agreements of the City
in this Resolution other covenants and agreements thereafter
to be observed by the City or to surrender any right or
power herein reserved to or conferred upon the City, or
(e) to provide for the issuance of Parity
Indebtedness, to provide for the issuance of additional and
refunding Bonds, to provide for coupon Bonds if then
permitted, to provide for the issuance of uncertificated
(book-entry) Bonds, and to provide for such other related
matters as may be required or contemplated by or appropriate
under this Resolution, or
(f) to comply with the requirements of Moody's or
Standard & Poor's or to make any other change that, in the
opinion of the City, would not materially adversely affect
the security for the Bonds or any Parity Indebtedness.
At least thirty (30) days prior to the adoption of any
supplemental resolution for any of the purposes of this Section,
the City Clerk shall cause a notice of the proposed adoption of
such supplemental resolution to be mailed, postage prepaid, ~o
80.
all registered owners of Bonds at their addresses as they appear
on the registration books. Such notice shall briefly set forth
the nature of the proposed supplemental resolution and shall
state that copies thereof are on file at the office of the City
Clerk for inspection by all Bondholders. A failure on the part
of the City Clerk to mail the notice required by this Section
shall not affect the validity of such supplemental resolution.
Section 1002. Supplemental Resolutions With Consent.
Subject to the terms and provisions contained in this Section,
and not otherwise, the holders of not less than two-thirds (2/3)
in aggregate principal amount of the Bonds and Parity
Indebtedness then outstanding shall have the right, from time to
time, anything contained in this Resolution to the contrary
notwithstanding, to consent to and approve the adoption of such
resolution or resolutions supplemental hereto as shall be deemed
necessary or desirable by the City for the purpose of modifying,
altering, amending, adding to or rescinding, in any particular,
any of the terms or provisions contained in this Resolution or in
any Supplemental Resolution; provided, however, that nothing
herein contained shall permit, or be construed as permitting, (a)
an extension of the maturity of the principal of or the interest
on any Bond or Parity Indebtedness issued hereunder or incurred
in accordance herewith, or (b) a reduction in the principal
amount of any' Bond or Parity Indebtedness or the redemption
premium or the rate of interest thereon, or (c) the creation of a
lien upon or a pledge of the proceeds of Designated Revenues
superior to the lien and pledge created by this Resolution} or
(d) a preference or priority of any Bond or Bonds or Parity
Indebtedness over any other Bond or Bonds or Parity
Indebtedness, or (e) a reduction in the aggregate principal
amount of the Bonds or Parity Indebtedness required for consent
to such supplemental resolution. Nothing herein contained,
however, shall be construed as making necessary the approval by
Bondholders or owners of Parity Indebtedness of the adoption of
any supplemental resolution as authorized in Section 1001 of this
Article.
if at any time the City shall determine that it is necessary
or desirable to adopt any supplemental resolution for any of the
purposes of this Section, the City Clerk shall cause no~ice of
the proposed adoption of such supplemental resolution to be
mailed, postage prepaid, to all registered owners of Bonds and
Parity Indebtedness at their addresses as they appear on the
registration books. Such notice shall briefly set forth the
nature of the proposed supplemental resolution and shall state
that copies thereof are on file at the office of the City Clerk
for inspection by all owners. The City shall not, however, be
subject to any liability to any owners by reason of any defect in
such notice or of its failure to cause the notice required by
81.
this Section to be mailed and any such failure shall not affect
the validity of such supplemental resolution when consented to
and approved as provided in this Section.
Whenever, at the time within two years after the date of the
first mailing of such notice, the City shall deliver to the Bond
Registrar an instrument or instruments in writing purporting to
be executed by the holders of not less than two-thirds (2/3) in
aggregate principal amount of the Bonds and Parity Indebtedness
then outstanding, which instrument or instruments shall refer ~o
the proposed supplemental resolution described in such no~ice and
shall specifically consent to and approve the adoption thereof in
substantially the form of the copy thereof referred to in such
notice, thereupon, but not otherwise, the City Council may adopt
such supplemental resolution in substantially such form, without
liability or responsibility to any holder of any Bond or Parity
Indebtedness, whether or not such holder shall have consented
thereto.
If the holders of not less than two-thirds (2/3) in
aggregate principal amount of the Bonds and Parity Indebtedness
outstanding at the time of the adoption of such supplemental
resolution shall have consented to and approved the adoption
thereof as herein provided, no holder of any Bond or Parity
Indebtedness shall have any right to object to the adoption of
such supplemental resolution, or to object to any of the terms
and provisions contained therein or the operation thereof, or in
any manner to question the propriety of the adoption thereof, or
to enjoin or restrain the City Council from adopting the same or
from taking any action pursuant to the provisions thereof.
Upon the adoption of any supplemental resolution pursuant to
the provisions of this Section, this Resolution shall be and be
deemed to be modified and amended in accordance therewith, and
the respective rights, duties and obligations under this
Resolution of the City and all holders of Bonds and Parity
Indebtedness then outstanding shall thereafter be determined,
exercised and enforced in all respects under the provisions of
this Resolution as so modified and amended.
Section 1003. Supplemental Resolutions Part of Resolution.
Any supplemental resolution adopted in accordance with the
provisions of this Article and approved as to legality by the
City Attorney shall thereafter form a part of this Resolution,
and all of the terms and conditions contained in any such
supplemental resolution as to any provision authorized to be
contained therein shall be and shall be deemed to be part of the
terms and conditions of this Resolution for any and all purposes.
In case of the adoption and approval of any supplemental
82.
resolution, express reference may be made thereof in the text of
any Bonds issued thereafter, if deemed necessary or desirable by
the City.
83.
ARTICLE XI.
Defeasance
Section 1101. Defeasance. If, when the Bonds and any
Parity Indebtedness secured hereby shall have become due and
payable in accordance with their terms or otherwise as provided
in this Resolution or -are to be paid at their maturity or
maturities or shall have been duly called for redemption or
. irrevocable instructions to call the Bonds for redemption shall
have been given by the City to an appropriate fiduciary
'institution acting as escrow agent, the whole amount of the
principal and the interest and premium, if any, so due and
payable upon all of the Bonds and any Parity Indebtedness then
outstanding shall be paid or sufficient moneys, or Government
Obligations, not callable at the option of the obligor, either
the principal of and the interest on which when due or the
principal of which when due will provide sufficient moneys, shall
be held by such escrow agent for such purpose under the
provisions of this Resolution, and provision shall also be made
for paying all other sums payable hereunder by the City, then and
in that case the right, title and interest of the holders of the
Bonds and any Parity Indebtedness secured hereby in the proceeds
of the Designated Revenues and in the Accounts and Subaccounts
mentioned in this Resolution shall thereupon cease, determine and
become void, and the City Council in such case, shall release
this Resolution and may apply any surplus in any subaccount in
the Sinking Fund Account and all balances remaining in any other
Accounts or Subaccounts other than moneys held for the redemption
or payment of Bonds or Parity Indebtedness to any lawful purpose
of the City as the City Council shall determine; otherwise this
Resolution shall be, continue and remain in full force and
effect; provided, however, that in the event Government
Obligations shall be deposited with and held by such escrow agent
as hereinabove provided, and in addition to the requirements set
forth in Article III of this Resolution, the Fiscal Agent shall
within thirty (30) days after such Government Obligations shall
have been deposited with such escrow agent cause a notice signed
by the Fiscal Agent to be published once in a Daily Newspaper of
general circulation in the City and in a Daily Newspaper of
general circulation or a financial journal published in the
Borough of Manhattan, City and State of New York~ setting forth
(a) the date designated for the redemption of the Bonds, (b) a
description of the Government Obligations so held by such escrow
agent, (c) that this Resolution has been released in accordance
with the provisions of this Section, and (d) the Bond Registrar
and the Fiscal Agent retain such rights, powers and privileges
under this Resolution (including Articles II and III hereof) as
may be necessary and convenient in respect of the Bonds and any
84.
Parity Indebtedness for the payment of the principal, interest
and any premium on the Bonds and Parity Indebtedness for the
payment of which such Government Obligations have been deposited.
Ail moneys and obligations held by an escrow agent pursuant
to this Section shall be held in trust and the principal and
interest of said obligations when received, and said moneys,
applied to the payment, when due, of the obligations payable
therewith.
The provisions of this Article XI may be modified with
respect to Bonds of any series that constitute Variable Rate
Indebtedness and/or Optional Tender Indebtedness, with respect to
any Parity Indebtedness and with respect to Junior Obligations.
85.
ARTICLE XII.
Miscellaneous Provisions
Section 1201. Effect of Covenants. Ail covenants,
stipulations, obligations and agreements of the City contained in
this Resolution shall be deemed to be covenants, stipulations,
obligations and agreements of the City and of the City Council
and of each department and agency of the City to the full extent
~uthorized or permitted by law, and all such covenants,
stipulations, obligations and agrements shall bind or inure to
the benefit of the successor or successors thereof from time to
time and any officer, board, body or commission to whom or to
which any power or duty affecting such covenants, stipulations,
obligations and agreements shall be transferred by or in
accordance with law.
Except as otherwise provided in this Resolution, all rights,
powers and privileges conferred and duties and liabilities
imposed upon the City or upon the City Council by the provisions
of this Resolution shall be exercised or performed by the City
Council, or by such other officers, board, body or commission as
may be required by law to exercise such powers or to perform such
duties.
No covenant, stipulation, obligation or agreement herein
contained shall be deemed to be a covenant, stipulation,
obligation or agreement of any member, agent or employee of the
City Council in his individual capacity, and neither the members
of the City Council nor any official executing the Bonds or any
Parity Indebtedness shall be liable personally on the Bonds or
any Parity Indebtedness or be subject to any personal liability
or accountability by reason of the issuance thereof.
Section 1202. Manner of Giving Notice. Any notice, demand,
direction, request or other instrument authorized or required by
this Resolution to be given to or filed with the City or the City
Council shall be deemed to have been sufficiently given or filed
for all purposes of this Resolution if and when delivered by
messenger or sent by certified mail, return receipt requested:
to the City, if addressed to the City Manager of the City of
Boynton Beach, Florida, City Hall, Boynton Beach, Florida;
and
to the Fiscal Agent and the Bond Registrar, if sent to the
persons at the addresses set forth in a Supplemental
Resolution.
86.
Ail documents received by the City Manager and City Council
under the provisions of this Resolution shall be retained in
their possession, subject at all reasonable times to the
inspection of the City, any Bondholder, the owner of any Parity
Indebtedness, and the agents and representatives thereof.
Section 1203. Successorship of Bond Reqistrar. Any bank or
trust company with or into which a Bond Registrar may be merged
or consolidated, or to which the assets and business or the
corporate trust business of such Bond Registrar may be sold,
shall be deemed the successor of such Bond Registrar for the
purposes of this Resolution. If the position of a Bond Registrar
shall become vacant for any reason, the City Council shall,
within thirty (30) days thereafter, appoint a bank or trust
company to fill such vacancy.
Section 1204. SuccessorshiD of City Officers. In the event
that the offices of Mayor, City Manager, City Clerk, Finance
Director or City Attorney shall be abolished or any two or mcre
of such offices shall be merged or consolidated, or in the event
of a vacancy in any such office by reason of death, resignation,
removal from office or otherwise, or in the event any such
officer shall become incapable of performing the duties of his
office by reason of sickness, absence from the City or otherwise,
all powers conferred and all obligations and duties imposed upon
such officer shall be performed by the officer succeeding to the
principal functions thereof or by the officer upon whom such
powers, obligations and duties shall be imposed by law.
Section 1205. Substitute Publication. If, because of the
temporary or permanent suspension of publication of any Daily
Newspaper or financial journal or for any other reason, the City
Manager shall be unable to publish in a Daily Newspaper or
financial journal any notice required to be published by any
provision of this Resolution, the City shall give such notice in
such other manner as in its judgment shall most effectively
approximate such publication, and the giving of such notice in
such manner shall for all purposes of this Resolution be deemed
to be in compliance with the requirement for the publication
thereof.
Section 1206. Inconsistent Resolutions. Ail resolutions
and parts thereof which are inconsistent with any of the
provisions of this Resolution are hereby declared to be
inapplicable to the provisions of this Resolution.
Section 1207. Further Acts. The officers and agents of the
City are hereby authorized and directed to do all the acts and
things required of them by the Bonds and this Resolution, for the
87.
full, punctual and complete performance of all of the terms,
covenants, provisions and agreements contained in the Bonds and
this Resolution.
Section 1208. Headinqs Not Part of Resolution. Any
headings preceding the texts of the several Articles and Sections
hereof and any table of contents, marginal notes or footnotes
appended to copies hereof shall be solely for convenience of
reference, and shall not constitute a part of this Resolution,
nor shall they affect its meaning, construction or effect.
Section 1209. City and' Bondholders and Owners of Parity
Indebtedness Alone Have Riqhts under Resolution. Except as
herein otherwise expressly provided, nothing in this Ordinance,
expressed or implied, is intended or shall be construed to confer
upon any person, firm or corporation, other than the City and the
holders of the Bonds and Parity Indebtedness issued under and
secured by this Resolution, any right, remedy or claim, legal or
equitable, under or by reason of the Resolution or any provision
hereof, this Resolution and all its provisions being intended to
be and being for the sole and exclusive benefit of the City and
the holders from time to time of the Bonds and of any Parity
Indebtedness issued hereunder.
Section 1210. Effect of Partial Invalidity. In case any
one or more of the provisions of this Resolution or of any Bonds
issued hereunder shall for any reason, be held to be illegal or
invalid, such illegality or invalidity shall not affect any other
provision of this Resolution or of the Bonds, but this Resolution
and the Bonds shall be construed and enforced as if such illegal
or invalid provision had been contained therein. The Bonds are
issued and this Resolution is adopted with the intent tha5 the
laws of the State of Florida shall govern their construction.
Section 1211. Resolution Effective. This Resolution shall
take effect immediately upon its adoption.
PASSED AND ADOPTED this 4th day of March, 1986.
CITY OF BOYNTON BEACH, FLORIDA
Mayor
88.
(Official Seal)
Vice M~yo/~
/
~Council Member
~uncil Member ~ ~/ _~/
ATTEST:
Approved as to Form
and Legal Sufficiency:
City Attorney
89.
ARTICLE VII.
Particular Covenants
Section 701. Payment of PrinciDal, Interest and Premium.
The City covenants that it will promptly pay the principal of and
the interest on each and every Bond issued under the provisions
of this Resolution at the places, on the dates and in the manner
specified herein and in said Bonds and any premium required for
the retirement of said Bonds by purchase or redemption, according
to the true intent and meaning thereof. Such principal, interest
and premium will be payable solely from the proceeds of the
Designated Revenues received by the City, and said proceeds are
hereby pledged to the payments thereof in the manner and to the
extent hereinabove particularly specified.
Bonds issued under the provisions of this Resolution shall
not be deemed to constitute a debt of the City or a pledge of the
faith and credit of the City but such Bonds shall be payable
solely from the account provided therefor from the proceeds of
such Designated Revenues. The issuance of the Bonds shall not
directly or indirectly or contingently obligate the City to levy
or to pledge any form of ad valorem taxation whatever therefor or
to make any appropriation for their payment except from the
special account provided therefor, nor shall any such Bonds
constitute a charge, lien or encumbrance legal or equitable, upon
any property of the City.
Section 702. Employment of Accountant. The City covenants
and agrees that it will for the purpose of performing and
carrying out the duties imposed on the Accountant by this
Resolution employ an independent certified public accountant or
firm of independent certified public accountants of suitable
experience and responsibility.
Section 703. Records, Accounts and Audits. The City
covenants that it will keep accurate records and accounts of all
items of costs and of all expenditures relating to the Projects
and of the proceeds of the Designated Revenues collected and the
application of the proceeds of such Designated Revenues. Such
records and accounts shall be open to the inspection of all
interested persons.
The City further covenants that within six months after the
close of each Fiscal Year, it will cause an audit 5o be completed
by the Accountant of its books and accounts pertaining to the
proceeds received by the City from the Designated Revenues.
Reports of each such audit shall be filed with the City Council,
the City Manager, and with Moody's and Standard & Poor's (if the
Bonds of any series are then rated by such rating agencies) and
69.