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Agenda 05-15-01
The City of 100 E. Boynton Beach Boulevard (561) 742-6000 City Commission AGENDA MAY 15, 2001 Gerald Broening Mayor At Large Ronald Weiland Vice Mayor District I VACANT Commissioner District II Mike Ferguson District III Charlie Fisher Commissioner District IV Kurt Bressner City Manager DISTRICT Ii !!1 DISTRICT ! Visit our Web site www.ci.boynton-beach.fl.us WELCOME Thank you for attending the City Commission Meeting GENERAL RULES & PROCEDURES FOR PUBLIC PARTICIPATION AT CITY OF BOYNTON BEACH COMMISSION MEETINGS THE AGENDA: There is an official agenda for every meeting of the City Commissioners, which determines the order of business conducted at the meeting. The City Commission will not take action upon any matter, proposal, or item of business, which is not listed upon the official agenda, unless a majority of the Commission has first consented to the presentation for consideration and action. Consent Agenda Items: These are items, which the Commission does not need to discuss individually and which are voted on as a group. · Regular Agenda Items: These are items, which the Commission will discuss individually in the order listed on the agenda. · Voice Vote: A voice vote by the Commission indicates approval of the agenda item. This can be by either a regular voice vote with "Ayes & Nays" or by a roll call vote. · SPEAKING AT COMMISSION MEE11:NGS: The public is 'encouraged to offer comment to the COmmission at their meetings during Public Hearings, Public Audience, and on any regular agenda item. City Commission meetings are business meetings, and as such, the Commission retains the right to limit discussion on an issue. Comment cards are located on the table by the entry door to the Chambers. Please complete a "Comment by the Public Card" and give it to the City Clerk at the left end of the dais before the "Openings" portion of the meeting. As a general practice, comment cards will not be accepted after presentation of an agenda item has begun. · Public Hearings: Any citizen may speak on an official agenda item under the section entitled "Public Hearings". · Public Audience: Any citizen may be heard concerning any matter within the scope of the jurisdiction of the Commission. Please use the yellow colored card for matters not listed on the agenda. The Mayor will call for speakers by name from the yellow cards provided by the City Clerk. · Regular Agenda Items: Any citizen may speak on any official agenda item(s) listed on the agenda after a motion has been made and properly seconded. Please use the green colored card for matters listed on the agenda. The Mayor will call for speakers by name from the green cards provided by the City Clerk. ADDRESSING THE COMMISSION: When your name is called, please step up to either podium and state, for the record, your name and address. DECORUM: Any person making impertinent or slanderous remarks or who becomes boisterous while addressing the Commission will be barred from further audience before the Commission by the presiding officer, unless permission to continue or again address the Commission is granted by the majority vote of the Commission members present, Please turn off all pagers and cellular phones in the City Commission Chambers while the City Commission Meeting is in session. City Commission meetings are held in the Boynton Beach City Commission Chambers, 100 East Boynton Beach Boulevard, Boynton Beach. All regular meetings are held typically on the first and third Tuesdays of every month, starting at 6:30 p.m. (Please check.the Agenda Schedule - some meetings have been moved due to Holidays/Election Day). , '7 CITY OF BOYNTON B CH REGULAR CITY COMMISSION MEETING AGENDA May 15, 2001 6:30 P.M. OPENINGS: Am Call to Order- Mayor Gerald Broening Invocation - Reverend .lames Bouie- Community Deliverance Church Pledge of Allegiance to the Flag led by Vice Mayor Ron Weiland D. IF YOU WISH TO ADDRESS THE COMMISSION: · F~LL OUT THE APPROPRIATE REQUEST FORM , GIVE Tr TO THE cTrY CLERK (ON THE DAIS) BEFORE THE "OPENINGS" PORTION OF THE AGENDA HAS BEEN COMPLETED. · COME TO THE PODIUM WHEN THE MAYOR CALLS YOUR NAME II. INDIVIDUALS MAY SPEAK FOR THREE UNINTERRUPTED MINUTES. E. Agenda Approval: 1. Additions, Deletions, Corrections 2. Adoption PUBLIC AUDIENCE: INDIVIDUAL SPEAKERS WILL BE L/MI'rED TO 3-MINUTE PRESENTA'rZONS III. ADMINISTRATIVE: A. Accept resignation of Betty Bomni, Regular member of the Ubrary Board C. Appointments to be made: Appointment To Be Made Length of Term Board Expiration Date II IV I II Vacant Fisher Weiland Vacant Children & Youth Advisory Bd Children & Youth Advisory Bd Children & Youth Advisory Eld Children & Youth Advisory Bd Alt Stu/Reg/Voting Stu/Reg/NonVoting Alt I yr term to 4/02 I yr term to 4/02 I yr term to 4/02 I yr term to 4/02 (Tabled-3) (Tabled-3) (Tabled-3) C~TY OF BOYNTON BEACH AGENDA REGULAR C~I'Y COMMI~SSZON MAY 1S, 2001 II Vacant I Weiland III Ferguson IV Fisher II Vacant I Weiland II Vacant II Vacant III Ferguson II Vacant IV Fisher Mayor Broening IV Fisher II Vacant IV Fisher Bldg. Bd of Adj & Appeals Bldg. Bd of Adj & Appeals Cemetery Board Code Compliance Board Education Advisory Board Education Advisory Board Education Advisory Board Ubrary Board Library Board Nuisance Abatement Board Nuisance Abatement Board Recreation & Parks Board Senior Advisory Board Senior Advisory Board Senior Advisory Board Reg 3 yr term to 4/04 Alt 1 yr term to 4/02 Alt 1 yr term to 4/02 Alt 1 yr term to 4/02 Reg 2 yr term to 4/03 Alt 1 yr term to 4/02 Stu 1 yr term to 4/02 Reg 3 yr term to 4/04 Reg 3 yr term to 4/02 Reg 2 yr term to 4/03 Alt ! yr term to 4/02 Alt ! yr term to 4/02 Reg 2 yr term to 4/03 Reg 2 yr term to 4/03 Alt 1 yr term to 4/02 (Tabled-3) (Tabled-3) (Tabled-3) (Tabled-3) (Tabled-3) (Tabled-3) (Tabled-3) (Tabled-3) (Tabled-3) (Tabled-3) (Tabled-3) ('l'abled-3) (Tabled-3) (Tabled-3) ANNOUNCEMENTS & PRESENTATZONS: A. Announcements: 1. "2"d Annual Amnesty Vegetation Week" - May 21 - May 25, 2001 2. Community Meeting to discuss residential water issues - 6:30 p.m. on Wednesday, May 16, 2001 at Rolling Green Elementary School B. Presentations: 1. Proclamations: a. "National Safe Boating Week"- May 19 - May 25, 2001 b. "National Public Works Week" - May 20 - May 26, 2001 c. Boynton Veterans Coundl "Memorial Day Celebration - May 27, 2001 d. "Stand for Children Day" - 3une 1, 2001 - Presented to representative of Advisory Board on Children & Youth CTrY OF BOYNTON BEACH AGENDA REGULAR CTW COHHtSSI'ON MAY 15, 2001 Presentation of "Great Floridian 2000" plaque to the Mrs. Bernard Thomas - Presentation by Don Johnson, Building Official Presentation of donation to Jean Wicken, Executive Director of the Susan G. Komen Breast Cancer Foundation on behalf of The Links at Boynton Beach, The Ladies Golf Association and the players - Joe Sciortino, Golf Director Presentation of Certificates to Stephanie Barbodni and Greg Shore, students at St. Mark School, for submitting the winning entries in the "Name Pond B" contest - Presented by Vice Mayor Ron Weiland V. CONSENT AGENDA: Matters in this section of the Agenda are .proposed and recommended by the City Manager for "Consent Agenda" approval of the action indicated in each item, with all of the accompanying material to become a part of the Public Record and subject to staff comments. .. A. Minutes: Special City Commission Meeting of April 23, 200:1 Agenda Preview Conference of April 26, 2001 Regular City Commission Meeting of May :1, 200:1 Bids - Recommend Approval - All expenditures are approved in the 2000-200! Adopted Budget Award "ANNUAL CONTRACT FOR SECURITY OFFICER SERVICE FOR THE EZELL HESTER .1R. COMMUNITY CENTER, THE PUBLIC LIBRARY AND THE SCHOOLHOUSE MUSEUM", BID #05:1-27:10-0:1/C3D, to Safeguard Group Holdings Ltd., in the amount of $693 per week Award "INSTALLATION OF FLOOR/NG SYSTEM tN VEHICLE BAY AREAS FOR THE cI'rY OF BOYNTON BEACH'S THREE (3) FIRE STATIONS", BleD #0~9-2413-0:1/KR, to Dura Floor, d/b/a Dura Bond Company, in the amount of $37,485 (~ROI~O$~D RN$O~II~ONNO. Award "PUBLIC WORKS FUEL ISLAND UPGRADES", BID #046-2413- 01/KR, to Glasgow Equipment Service, Inc. in the amount of $67,036.24 (~ROI~O$~D R~.qo~orZON NO, R01-184) Award "CO-OP BULK QUICKLIME", BID #052-2821-0:1/KR to Dravo Ume, Inc., Longview Operation, Alabama, in the amount of $!,407,000 with an estimated annual expenditure of $126,000 for the City of Boynton Beach Utility Department CITY OF BOYNTON BEACH AGENDA REGULAR CITY COHHTSSTON HAY 15, 2001 C. Resolutions: Proposed Resolution No. R01-185 Re: Approving a hledtronic Physiocontrol Technical Support Service Agreement for cardiac monitor units Proposed Resolution No. R01-186 Re: Execution of contract between the Florida East Coast Railway and the City of Boynton Beach for Sale & Purchase of Lots 8 & 9, Block 1 e Proposed Resolution No. R01-187 Re: Authorizing the hlayor to sign two street lighting agreements with FPL for Gateway Boulevard-Seacrest Boulevard to US #! Proposed Resolution No. R01-188 Re: Authorizing the execution of an agreement between the City of Boynton Beach and Palm Beach county providing for the satisfaction of the City's connection fees and capital facilities charges by Palm Beach County on behalf of those residents of Tucks Road so electing Proposed Resolution No. R01-189 Re: Approving a reduction in surety for the project known as Sterling Records Management from $85,030 down to $4,250 and return the amount of $80,780 to the project's developer Proposed Resolution No. R01-190 Re: Approving the release of the remaining surety on the Hills of Lake Eden subdivision ($19,350), the approval of the subdivision, the acceptance o the dedications and the maintenance responsibilities of those improvements dedicated to the City Proposed Resolution No. R01-191 Re: Approving the Department of Community Affairs grant award contract for the purchase of an emergency AH radio system to provide emergency notification and information to all citizens and visitors of the Oty Proposed Resolution No. R01-192 Re: Approving the release of a Letter of Credit in the amount of $42,000 for Eastridge in exchange for a bill of sale to the sewer system that is free of all liens and a cash bond or letter of credit in the amount of $4,200 Ratification of Planning & Development Board Action: None Ratification of Community Redevelopment Agency action: 4 CITY OF BOYNTON BEACH AGENDA REGULAR CI'TY COMMZSSZON MAY 15, 2001 Zuhair Marouf - Lot Size Variance - Request relief from Land Development Regulations Chapter 2, Zoning Sec. 6.C.3. to allow development of a car wash facility on a 9,908 square foot parcel in lieu of the !5,000 Square foot minimum lot area required by the C-3 Zoning district regulations Approve the purchase of 10 Automatic External Defibrillators (AED) from Medtronic PhysioControl in the amount of $17,500 funded by an American Heart Association grant Approve $80,000 of S.H.[.P. funds in assistance to Robust Development Company for the purpose of site development of the Eastridge Parc*el located at NE 4~ Street V]:. ClTY MANAGER'S REPORT: A. Performance Review - City Manager Approve the demolition of the Mangrove Park School (Old High School) at 125 East Ocean Avenue and create up to 50 parking spaces on site at a cost not to exceed $250,000 VI~T. PUBLTC HEAR.I:NG: 7:00 P.M. OR AS SOON THEREAFTER AS THE AGENDA PERMI'TS Project: Agent: Location: Description.' Boynton Beach t4asonic Lodge - Daycere Gentile, Holloway, O'Mahoney & Associates, [nc. Boynton Lodge #236, Free & Accepted Masons 2701 Quantum Boulevard Request Conditional Use Approval for Lots 22 and 22-A Plat of Quantum Park, at Boynton Beach, P[D, Plat No. 3 for use as a Daycare/Preschool Project: Agent: Owner: Location: Description: A Pink Princess - LUAR Bradley Miller George & Maron R. Uhazie 1120 S, Federal Highway Small scale land use amendment from Office Commercial (OC) to Local Retail Commercial (IRC) and rezoning from Office and Professional Commercial (C-1) to Neighborhood Commercial (C- 2) for a .73 acre parcel of land CITY OF BOYNTON BEACH AGENDA REGULAR CTrY COMMTSSlON MAY 15, 2001 VlIl. FUTURE AGENDA I'TEMS: A. Status report on new meeting schedule for advisory boards (June19, 2001) Bo Discuss adoption of an Comprehensive Water Conservation Strategy for all water customers of the City of Boynton Beach Utilities - (TABLED ON MAY 1ST _ WILL BE DISCUSSED ON JULY 3RD) Application for fundingthfrom County DIP and RAP funds for a footbridge for Girl Scout Park (RAP), 17 & Seacrest Boulevard Traffic Control and Hester area traffic calming (DIP) and Seacrest Landscape Island Improvements (DIP) - July 17, 2001 D. Update on Senior Citizen Center Programs and Usage - June 5, 2001 DEVELOPMENT PLANS: None NEW BUSINESS: Amendment to the City Charter and Code to reflect a change in the date of Municipal Elections from March to November to coincide with County State and Federal elections (',oROPO$~"O ORDINANC~ NO, 0.~- ) LEGAL: A. Ordinances - 2nd Reading - PUBLIC HEAR/NG Proposed Ordinance No. O1-20 Re: Adopting the Federal Highway Corridor Redevelopment Plan and Implementation Plan (7'A~Z~O ON S~CONO ~.40J'N~ ON tVA r B. Ordinances - 1" Reading Proposed Ordinance No, 01-21 Re: Approving the rezoning of a ~= 53.69 acre scrub preserve from ``Single Family Residential" (R-l-AA) and "Duplex Residential" (R-2) to "Recreation" (REC) pursuant to a condition of an interlocal agreement with Palm Beach County Proposed Ordinance No. 01-22 Re: Approving the rezoning of a d: 13.59 acre scrub preserve from "Single Family Residential" (R-l) to ``RecreaUon" (REC) pursuant to a condition of an interlocal agreement with Palm Beach County J Proposed Ordinance No. 01-23 Re: Amending Chapter 2. Admini~bation Article I. Section 2-20 of the Code of Ordinances to clarify the reconsideration process as it relates to quasi-j~didal boards CI'TY OF BOYNTON BEACH AGENDA REGULAR CI'TY COMMTSS~ON MAY 15, 2001 Proposed Ordinance No. 01-24 Re: Amending Section 15- 8.6 Exemptions, by creating a new subsection 15-8.6 (8) exempting municipal construction from Section 15.8-5 noise control prohibited acts Resolutions: Proposed Resolution No. R01-193 Re: Approving the issuance of not to exceed $27 million in aggregate principal Utility Revenue Refunding Bonds, Series 2002, providing a method for trrxing and determining the principal amount, interest rates, maturity dates, redemption provisions and other details of Said bonds D. Other: UNF/NZSHED BUS[NESS: ITEM D]'SCUSSED I'IqHED~IkTELY FOLLOW/NG CONSENT AGENDA OTHER: A. Informational Items by members of the City Commission, XI'V. ADJOURNMENT: NOTICE IF A PERSON DECIDES TO APPEAL ANY DECISION HADE BY THE CITY COMMISSION WITH RESPECT TO ANY HATTER CONSIDERED AT THIS MEETING, HE/SHE WILL NEED A RECORD OF THE PR(X.I:,~INGS AND, FOR SUCH PURPOSE~ HE/SHE la. AY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDING IS IqADE~ WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. (F.S. 286.0105) THE CITY ~HALL FURNISH N~.OflRIATE AUXILIARY AIDS AND SERVICES WHERE NEO=_ ;~r, Na, Y TO AFFORD AN INDIVIDUAL WITH A DISABII--'-TY AN EQUAL OPPORTUNITY TO PARTICIPATE IN AND EN3OY THE BENEFITS OF A SERVICEv PROGRAM, OR ACHVITY CONDUCTED BY THE OTY. PI.EASE CONTACT .1OYCE COEI~J.O, (561) 742-6013 AT LEAST TWENTY-FOUR HOURS PR[OR TO THE PROGRAM OR Acr]vTrY IN ORDER FOR THE CTI'Y TO ~Y ACCOI'4NOI~TE YOUR REQUEST. FINAL AGENDA - 0511112001 12:14 PM \~ch~aainkshrdata~cc\wpkaagcndaXagendas\year 2001 ~05 ! 501 first draft doc III-ADM I N I STRATIVE ITEM A Ol ~PR 20 AH I1: 5'/ April 20, 2001 Chairperson, Library Board City Commissioners City Clerk Boynton Beach, Florida Dear Sirs and Madam: Please be advised that I hereby resign as a member of the Library Board, effective immediately. Very truly yours, Be.y 702 sw 8th Place Boynton Beach, FL Requested City Commission Meeting Dates [] March 20,2001 [] ^p~il 3, 2001 [] April 17, 2001 [] May 1,2001 IV-ANNOUNCEMENTS & PRESENTATIONS CITY OF BOYNTON BEACH ITEM A.~. AGENDA ITEM REQUEST FOR Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00p.m.) Requested City Commission Meeting Dates [] May 15, 2001 [] June 5,2001 [] June 19,2001 [] July 3,2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Corisent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Announcing Friday, May 25t~, 2001 EXPLANATION: In conjunction wit offering residential vegetation amnesty may put out for collection unlimited an lengths not to exceed four inches in dia: residential bulk trash pickup day. In p weak, hanging limbs and to keep a reg~ foliage in your yard. We are asking residents to "Not Delay PROGRAM IMPACT: N/A FISCAL IMPACT: N/A ALTERNATIVES: N/A /t~/~/~! ~ Depart~t Head's Signature Depaxtment Name 'he Second Annual Vegetation Amnesty Week ? Monday, May 21~t through National Public Works Week, the Public Works Solid Waste Division is cleanup week. During the week of May 21~t through May 25t~, 2001 residents ~ounts of trimmed vegetation. Branches and trees should be cut in 4-foot neter, and placed at the curb. The vegetation will be picked up on the reparation for the up-coming hurricane season it is very important to cut down ilar maintenance program all during the year by cutting back trees and dense and Trim Today"! /~-C~/~' s Signature City Attorney / Finance / Human Resources S:XBULLETIN~ORMS~AGENDA ITEM REQUEST FORM.DOC ~ / ~ Item B.l.a. I U,S. DEPARTMENT OF TRANSPORTATION "-/ UNITED sTATEs cOAST GUARD-AUXILIARY Deiray-Boynton Beach, Flotilla 54 April 12, 200l Hon. Gerald Broening Mayor, Boynton Beach 100 East Boynton Beach Blvd. Boymon Beach, FL 33435-0310 Dear Mayor Broening, ~V'ANNOUNCEHENTS & PRESENTATIONS 7536 Wentworth Drive, Lake Phone - 561-968-9546 - F The members of the United States Coast Guard and the Coast Guard Auxiliary, Flotilla 54 of Delray/Boynton Beach, hereby request that you proclaim the weekend of May 12 & 13, 2001 as Safe Boating Weekend for Boynton Beach and May 19 to May 25, 2001 as National Safe Boating Week. Enclosed is a sample proclamation for your reference following ti~ year's theme ~-- ~Boat smart from the Start, Wear your Life Jacket". A member of Flotilla 54 will be - "~" ~present at themeetingtoaocept the proclamation. You may reach me at 561-968-9546 or Fax' no. 561-968-5298 for-any questiom, youmight!m. _ye. .......... Our Flotilla is very dedicated to the encouragement of Safe Boating practices in our area so we will again be holding a Safe Boating Fair for the weekend of May 12 & 13, 2001 at the Boymon Boat Club Park from 9am to 3pm. In addition to displays we will have scheduled boating safety classes for children and demonstrations of safety equipment. Also we are very happy to be hosting COASTIE For the weeken& (see n__tt~e_.hmellt) and we will be doing Vessel Safety Checks each day. We invite you to attend and help us encourage the boating public to protect themselves and their families by becoming aware of tbe safe way to operate a boat on our surrounding wazerways. We look forward to seeing you there. The members of Flotilla 54 aplxociate the courtesies the City of Boynton Beach has shown us and look forward to numy mom years of continued mutual efforts to ensure safe boating on the Intercoastal Wat~'way Sincerely, Mary R Suckow. Flotilla Commander Attachments: cc: City Manager Recreational boating is fun and enjoyable, and Boynton Beach is fortunate to have sufficient resources to accommodate the wide variety of pleasure boating demands. However, our waterways can become crowded at times and be a place of chaos and confusion. Nationally, between 700 and 800 people die each year in boating-related mishaps. Neady 70 percent of these are fatalities caused by drowning. The vast majodty of these accidents are caused by human error or poor judgment and not by the boat, equipment or environmental factors. Not knowing or obeying navigation Rules or the nautical "Rules of the Road," ddnking alcohol or taking drugs while operating a boat, or choosing not to wear a life jacket when doing so is cleady the smart thing to do, are all exam pies of human error or a lack of proper judgment. Weadng a life jacket can reduce the number of boaters who lose their lives by drowning each year by approximately 90 percent. Modem life jackets are more comfortable, more attractive and more wearable than styles of years past. Putting one on is a simple task that has the potential to reduce terdble loss in lives. Now, therefore, I, Gerald Broening, by virtue of the authority vested in me as Mayor of the City of Boynton Beach, Flodda, hereby proclaim May 19-25, 2001, to be observed as: National Safe Boating Week and call upon all our citizens who boat to "Boat Smart from the Start" by weadng a life jacket and practicing safe boating habits. IN WITNESS WHEREOF, I, Gerald Broening, Mayor of the City of Boynton Beach, have set hereunto my hand and caused the Seal of the City of Boynton Beach, Flodda, to be affixed at Boynton Beach, Flodda, this 15th day of May in the Year 2001. ATTEST: Gerald Broening, Mayor City of Boynton Beach City Clerk (Corporate Seal) j:~shrdala~cc~wp~c, agenda~3rodamations\proc. 173 national safe boating week.doc Requested City Commission Meeting Dates [] March20,2001 [] April 3, 2001 [] April 17, 2001 [] May 1,2001 IV-ANNOUNCEMENTS & PRESENTATIONS :[tern B.l.b CITY OF BOYNTON BEACI AGENDA ITEM REQUEST FOi. ,. Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 15, 2001 [] June 5, 2001 [] June 19, 2001 [] July 3,2001 Date Final Form Must be Tumed in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Consent Agenda [] Public Hearing [] Bids [] Announcement [] City Manager's Report [] Development Plans [] New Business [] Legal [] Unfinished Business [] Presentation RECOMMENDATION: Read Proclamation regarding National Public Works Week. EXPLANATION: The week of May 20t~ through May 26th, 2001 is National Public Works Week. A proclamation is prepared outlining the services the public works provides in our community and recognizes the positive improvements public works employees have made to our communities. This year's theme is "Working in the Public Interest". PROGRAM IMPACT: N/A FISCAL IMPACT: N/A ALTERNATIVES: N/A ~/ f~/' d ~-epartmexffaead'sSignature Department Name f ~i~ M~nag~r's Signature City Attorney / Finance / Human Resources S:\BULLETINGrORMSL~GENDA ITEM REQUEST FORM.DOC WHEREAS public works services provided in our community are an integral part of our citizens' everyday lives; and WHEREAS, the support of an understanding and informed citizenry is vital to the efficient operation of public works systems and programs such as water, sewers, streets and highways, public buildings, and solid waste collection, parks and canal maintenance; and WHEREAS, the health, safety and comfort of this community greatly depends on these facilities and services; and WHEREAS, the quality and effectiveness of these facilities, as well as their planning, design, and construction, is vitally dependent Upon the efforts and skill of public works officials; and WHEREAS, the efficiency of the qualified and dedicated personnel who staff public works departments is materially influenced by the people's attitude and understanding of the importance of the work they perform. WHEREAS, this year's theme "Working in the Public Interest" is a tribute to the positive improvements public works employees have made to our communities NOW THEREFORE, I, Gerald Broening, by virtue of the authority vested in me as Mayor of the City of Boynton Beach, Florida, hereby proclaim the week of May 20-26, 2001 as "NATIONAL PUBLIC WORKS WEEK" in the City of Boynton Beach, and I call upon all citizens and civic organizations to acquaint themselves with the issues involved in providing our public works and to recognize the contdbUtions which public works officials make every day to our health, safety, comfort, and quality of life. IN WITNESS WHEREOF, I have hereunto set my hand caused the Seal of the City of Boynton Beach, Florida, to be affixed this 15th day of May in the Year 2001. ATTEST: Gerald Broening, Mayor City of Boynton Beach City Clerk (Corporate Seal) \\ch\main~shrdata\cc\wp\CCagenda\proclamatJons~proc.122-national public works week.doc January 19, 2001 MR KURT BRESSNER CITY MANAGER CITY OF BOYNTON BEACH 100 E. BOYNTON BCH. BOYNTON BECH, FL 33425-0310 RE: "Working in the Public Interest" during National Public Works Week May 20 - 26, 2001 Dear MR. BRESSNER: This year National Public Works Week Will be. celebrated May 20th - 26th} 2001. The theme of"Working in the Public Interest" clearly promotes your efforts as a public works professional since Public works projeCts are vitalto the growth and quality of life of any community. By promoting thiSevent, government officials, business leaders, and citizens will learn from you about'the positive impact of public Works projects. Public Works professionals have been participating in eventS and activitiesto increase public awareness and appreciation of the Profession ever since 1960 when President Kennedy proclaimed that this event would serve as an annual reminder of the value that public works professionals contribute to our lives. During this week, there are also many activities and events you may implement to remind the public that our work improves the quality of life for everyone in the community. Some communities hold special community events to showcase the ser¢ices provided along with employees, others have held equipment rodeos and give away prizes to' employees or door prizes to the public. Ideas and suggestions are welcome as it may assist your fellow public works directors. Join this celebration by acknowledging the men and women who perform so well in their chosen profession by issuing, a proclamation recognizing National Public Works Week. Last year the FL Chapter of APWA received over 65 proclamations to display at the Annual Tradeshow. What an impressive sight to see! With your participation, we can show the continued support to those in the Public Works field. Please, mail your proclamation to me at the address below so that your proclamation will be proudly displayed for all to see at the APWA FL Chapter Annual Meeting and Tradeshow April 9th - 12', 2001. A sample proclamation has been enclosed for your review. Please submit your proclamation no later than April 4th. I hope you find this information to be a valuable tool as you plan a National Public Works Week celeb, ration. Please do not hesitate to contact me at the telephone number listed below if you have any questions. Good luck with National Public Works Week and thank you for your continued support! ....~._.V_e~ truly yourfl~ Chairman Public Works Week Committee APWA Florida Chapter Mail Public Works Week Proclamation to: City of Punta Gorda C/O Rick Keeney 900 West Henry Street Puma Gorda, FL 33950 (941) 575-5050 Telephone (941) 575-5044 Fax E-mail: pubworks~sunline.com IV-ANNOUNCEMENTS & PRESENTATIONS Item B.:t.c Boynton Veterans Counc _ American Legion Posts 164 & 288: Disabled American Veterans 152: Jewish War Veterans Post 440: Military Order of the Purple Heart Post 687: Korean War Veterans Unit 17: Veterans of Foreign Wars Posts 5335 & 10150: Sons of 0,2001 the American Legion Post 164 9525 Majestic Way Boynton Beach, FL 33437 Gerald Broening, Mayor Mr. Kurt Bressner, City M/anager Sue Kruse, City Clerk ~ Marshall Gage, Police Chief John Wildner, Park & Recreation Sgt. Richard Root, police Honor Guard April 1 TO: COPY TO: Jan Johnson Dave Elliott Boynton Beach City Hall 100E. BoyntonBeachBIvd. Boynton Beach, FL 33435 Please forgive the memo format of this note. The Boynton Veterans Council has no secretary or volunteer secretary. Your specific section is highlighted. The Boynton Veterans Council will be holding our Memorial Day Celebration on Sunday~ May27~2001~ at 2:~00 p~n. This letter is a written confirmation to the City that we are requesting the usage of the Boynton .Memorial Cemetery, as well as set-up of ~the tent, seating, and .speaker system. Your Parks Department staff (John Wildner) is familiar with the requirements of this program. We are also requesting assistance in .grave decoration for Friday May 25th. Jan Johnson will.be directly.contacting you with the details. It would be appreciated if the City would issue a Proclamation in Honor of this event. Mayor .Gerald Broening is invited to present this at the. program; all members of the City Council are invited to attend and will be introduced to the attendees. Please confirm the date when the Proclamation will.be read to the City Counsel. The Police Firing Squad is requested to fire the salute during the ceremony. The program opens promptly at 2:00 PM when the Posts will present their colors. We would be greatly pleased if the Police Honor Guard joined in presenting your flags. (Ted Wright will be Sgt. Mjr. organizing honor guards at 1:45 PM.) Following this Cemetery program, the group goes to the Boynton Inlet Park, where a wreath is dropped into the sea, honoring al~ airmen and sailors who gave their lives for their country. A police escort would be appreciated. We are also requesting the City Police Marine Unit to actually -take the wreath and drop it at sea. Dave Elliott of the Sons of the American Legion will be our representative for this effort. This will be at approximately 3:15 p.m. We'll use ceil phones to confirm the time when the Flags are displayed on the bridge and the boat can start its voyage. Afterwards, a light supper is served at the AL Post 164 for all attendees, and their-guests. Please join us in this repast. Our final request is for the City Clerk to prepare an updated list including those Veterans who were buried during the past year. This should be mailed to Ms. Jan Johnson who is our coordinator for the decoration of the cemetery. The cemetery will be decorated on Friday May 25, 2001. I sincerely appreciate your help, and understanding, regarding this impersonal contact. Sincerely yours, Gerald Levine, Chairman 9525 Majestic Way Boynton Beach, FL 33437 561-734-030t e-mail: gerry~OL.com WHEREAS, Monday, May 28, 2001 has been declared Memodal Day and has been designated as a national holiday by legislative enactment; and WHEREAS, the Citizens of this Nation, the State of Flodda, and the City of Boynton Beach, live in freedom because of the sacrifices and contributions made by those who served in the Armed Forces of the United States of Amedca in time of national danger; and WHEREAS, Boynton Beach Memorial Park is the final resting place for so many of our citizens who sacrificed their lives for their country, I declare this ground to be hallowed ground sacred to their memories; and WHEREAS, the Veterans Council of Boynton Beach, representing all veterans' posts in Boynton Beach is hereby commended for its efforts in promoting this Uemodal Day ceremony for our veterans who served in all wars; and WHEREAS, dudng peacetime there have been occasions when our active military personnel have become casualties due to the hazardous nature of their duties; and WHEREAS, these servicemen and women deserve only the highest honors equal to those who died in combat. NOW, THEREFORE, I, Gerald Broening, by virtue of the authority vested in me as Mayor of the City of Boynton Beach, Flodda, do hereby proclaim Sunday, MaY 27, 2001, as THE BOYNTON VETERANS COUNCIL MEMORIAL DAY CELEBRATION in the City of Boynton Beach and urge all citizens to remember the sacrifices and contributions of all those who served this Nation in time of war to preserve our cherished heritage of freedom, and further urge that we all join together to commemorate our veterans with an appropriate observance at 2:00 p.m. at Boynton Memodal Park and by prayers in our homes and houses of worship. IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the City of Boynton Beach, Flodda to be affixed this 15th day of May in the Year 2001. ATTEST: City Clerk (Corporate Seal) Gerald Broening, Mayor City of Boynton Beach \~ch~nain~shrdataXcc~wp~x~nda~rodamalions~oroc.135 boynton veterans coundl memorial day celebration.doc Requested City Commission Meeting Dates CITY OF BOYNTON BEAC] AGENDA ITEM REQUEST F(] Date Final Form Must be Turned in to City Clerk's,Office Requested City Commission Meeting Dates IV-ANNOUNCEMENTS & PRESENTATIONS Item B.Ld. Date Final Form Must be Turned in to City Clerk's Office [] March 20, 2001 [] April3,2001 [] April 17, 2001 [] May 1,2001 March 7, 2001 (5:00 p.m.) [] March 21, 2001 (5:00 p.m.) [] April 4, 2001 (5:00 p.m.) [] April 18,200l (5:00 p.m.) [] May5,2001 June 5,2001 June 19, 2001 July 3,2001 May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation RECOMMENDATION: On behalf of the Advisory Board on Children and Youth, the Recreation Department requests the Mayor to proclaim June 1, 2001 as "STAND FOR CHILDREN DAY". EXPLANATION: On June 1, 2001, Americans from all backgrounds will come together in their communities to take a Stand For Children and renew their community's commitment to improving the quality of our children's lives by building the voice and vision of all children. We urge our community to support this day by dedicating ourselves to the task of improving the quality of life for all our children. PROGRAM IMPACT: life for all our children. FISCAL IMPACT: N/A ALTERNATIVES: Making this proclamation will demonstrate our commitment to improving the quality of De ( t Heaa's Signature Recreation Department Name ' ~ty Manager's Signature City Attorney / Finance / Human Resources S:~BULLETIN~ORMSL~.GENDA ITEM REQUEST FORM.DOC WHEREAS, on June 1, 2001, Americans from all backgrounds will come together in their communities to take a Stand for Children and renew their community's commitment to improving the quality of our children's lives; and WHEREAS, on "Stand for Children Day" and beyond, families, members of religious congregations, schools, community-based organizations, businesses and political and cultural groups will join together as a local and national community to recognize our children's unmet needs and re-dedicate ourselves to addressing them; and WHEREAS, cadng for our children must be our families', community's, and nation's first pdodty; and WHEREAS, this commilment must begin at the local level where children and families live and work and have the potential to thdve, and where all citizens, working together, can make a difference in our children's lives; and WI-IER .EAS, The City of Boynton Beach, through its Advisory Board on Children & Youth, stands for all children being ready to leam and ready to succeed by advocating improvements in health care, child care, after-school activities, and schools that challenge all children; and NOW, THEREFORE, I, Gerald Broening, Mayor of the City of Boynton Beach, Florida, by virtue of the authority vested in me, do hereby proclaim June 1, 2001: "STAND FOR CHILDREN DAY" and urge all citizens to support this day by dedicating ourselves to the task of improving the quality of life for all our children from this day forward. IH WITNESS WHEREOF, I have hereunto set my hand and caused the Seal of the City of Boynton Beach, Florida, to be affixed at Boynton Beach, Florida, this 15~ day of May in theYear 2001. ATTEST: City Clerk (Corporate Seal) Gerald Broening, Mayor City of Boynton Beach \~:h~main~shrdata~:c~4o~:cagenda~3clamations~3c.135 stand for children.doc Requested City Commission Meeting Dates [] March 20, 2001 [] April 3, 2001 [] April 17, 2001 [] May 1,2001 IV-ANNOUNCEMENTS & PRESENT~ Item B.2.. CITY OF BOYNTON BEAC AGENDA ITEM REQUEST -:> O IHA¥-i AHg:12 Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00p.m.) Requested City Commission Meeting Dates [] May 15,2001 [] June 5, 2001 [] June 19, 2001 [] July 3, 2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 200l (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unf'mished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Presentation of Great Floridian 2000 plaque to the family of Bernard Thomas by Don $ohnson. Plaque will be placed in the Woman's Club. EXPLANATION: Mr. Bernard Preston Thomas was nominated by the City of Boynton Beach, and approved by the State of Florida, as a Gmat Floridian 2000 (sec attachment). PROGRAM IMPACT: N/A FISCAL IMPACT: N/A ALTERNATIVES: Development Department Name City Attorney / Finance / Human Resources S:~BULLETIIxhFORMSkAGENDA ITEM REQUEST FORM.DOC Requested City Commission Meeting Dates [] March 20,2001 [] April 3, 2001 [] April 17, 2001 [] May 1,200l IV-ANNOUNCEMENTS & PRESEN ~ i '~S Item B.3.. CITY OF BOYNTON BEA t AGENDA ITEM REQUEST FO:I ,. Ol PR2 , Date Final Form Must be Turned in to Cit~ Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 15, 2001 [] June 5,2001 [] June 19,2001 [] July 3,2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative . [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Presentation of donation to Jean Wicken, Executive Director of the Susan G. Komen Breast Cancer Foundation, on behalf of The Links at Boynton Beach, The Ladies Golf Association and the players. EXPLANATION: The mission statement of The Links at Boytnon Beach is "Growing the Game and Our People". To this end one of our department's Goals for this fiscal year was to increase our customer base through community involvement by hosting various tournaments at our facility. This not only grows the game for those who enjoy competitive play but also gives our staff the opportunity to "grow" their knowledge and skills in the hosting of tournament style events. On March 31, 2001 "The Links" co-sponsOred a charity golf tournament, with the Ladies Golf Association, to support' the Susan G. Komen Breast CanCer Foundation. The event raised $6,425.16 for this charitable cause. PROGRAM IMPACT: None FISCAL IMPACT: None ALTERNATIVES: None nt Head's Signature Golf Course Department Name City Manager's Signature City Attorney / Finance / Human Resources S:~BULLETINVxFORMS~AGENDA ITEM REQUEST FORM.DOC Requested City Commission Meeting Dates [] March 20, 2001 [] April 3, 2001 [] April 17, 2001 [] May 1,2001 CITY OF BOYNTON BEAK AGENDA ITEM REQUEST F( Date Final Form Must be Tumed in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Comnfission Meeting Dates [] May 15, 2001 [] June 5,2001 [] June 19, 2001 [] July 3, 2001 ~I/-ANNOUNCEMENTS & PRESENTATIONS Item B.4. Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfmished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Award certificates to Stephanie Barborini and Greg Share, students at St. Mark School, for submitting the winning entries in the '`Name Pond 'B'" comest. EXPLANATION: Stephanie and Greg will share the prize for submitting the winning name in the "Name Pond 'B'" contest. Their entries, which were Mangrove Lake and Mangrove Pond, respectively, were altered slightly to reflect the pond's character and position as a bridge between Mangrove Park and the new Boynton Beach Marina and Marketplace. The area will be called Mangrove Walk at The Marina. PROGRAM IMPACT: None FISCAL IMPACT: None ALTERNATIVES: None (~ Depar~e-nt H~ s Signature Department Name Manager's Signature City Attomey/ Finance / Human Resources S:'uBULLETINWORMSkAGENDA ITEM REQUEST FORM.DOC V-CONSENT AGENDA ITEM A. 1 MINUTES OF SPECIAL CITY COMMISSION MEETING HELD IN THE COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA ON MONDAY, APRIL 23, 2001 AT 6:30 P.M. PRESENT Gerald BroenJng, Mayor Ronald Weiland, Vice Mayor Bruce Black, Commissioner Mike Ferguson, Commissioner Charlie Fisher, Commissioner Kurt Bressner, City Manager James Cherof, City Attorney Janet Prainito, City Clerk Call to Order Mayor Broening called the meeting to order at 6:33 p.m. Mayor Broening stated the purpose of tonight's meeting was for the Commission to determine in accordance with the City Charter what process the City would take to fill the vacancy in District !! when Commissioner Black steps down on April 30th. Mayor Broening read the applicable provision in the Charter dealing with "Filling Vacancy on City Commission" (Section 51). The Commission tonight will determine how to proceed to receive applications from duly qualified people who wish to be considered. Mayor Broening asked if there were any questions from the audience before the Commission proceeded any further? Mr. Eddie Mitchell, 329 NE 12~ Avenue, Boynton Beach noted that a vacancy in District !1! occurred recently and it seemed to him that the Commission did not go through the same steps as it is doing now. Mr. Mitchell said he could not understand why the Commission was now seeking procedures, which they did not do when filling the vacancy in District !1!. Attorney Cherof responded that when the vacancy in District III occurred as a result of Commissioner Sherman's resignation, the City followed the exact procedures set forth in Section 51 of the City's Charter. The only difference in this situation is the timing because Mr. Black's letter of resignation fixed a future date, which in effect means that currently there is no vacancy and therefore the Commission cannot act to fill it. When the effective date of the resignation occurs, then there is a vacancy. Therefore, Commissioner Black is still a member of the Commission until the date of his resignation. Special Meeting Minutes City Commission Boynton Beach, FL April 23, 2001 Mr. IVlitchell inquired why the Commission did not just wait until the vacancy occurred to fill it. Further, Mr. Mitchell felt that holding a meeting tonight was premature. Mayor Broening stated that some of the Commissioners wanted to have as much time as possible to consider the prospective applicants. Mr. Mitchell asked if the selection would be made prior to May 15u~ and Mayor Broening responded that is their intention. Mayor Broening pointed out that they are required by the Charter to do so by the second meeting in May. Mr. Bressner responded that City Staff put together a draft Notice of Vacancy and followed the same format that was followed to fill Commissioner Sherman's district and the only thing changed was the district number. The exact same application form was also utilized. The Commission tonight needs to decide the deadline to receive the applications. Mr. Bressner stated that a legal notice is required to be published in the newspaper. Mr. Bressner pointed out that they started the process for recruitment for applicants prior to Commissioner Sherman's leaving. Further, there is no significant difference in the way the Commission is going about filling this vacancy compared to Commissioner Sherman's vacancy. Mr. Bressner said he was looking for a "date certain" when the applications will be due to allow the Commissioners enough time to review them and evaluate the qualifications of the individuals. Vice Mayor Weiland requested to read a portion of Section 141 of the City's Charter and stated that even though the vacancy won't occur until May 1st, the Commission wanted to let the public know what the process would be. Mayor Broening reiterated that the Commission tonight is strictly following the Charter of the City, which states that the Commission shall discuss the process to be followed. He further pointed out that they have not received formal applications Attorney Cherof reported that the City Commission has two meetings to make a decision. If the Commission is deadlocked, then a special election must be held. Commissioner Fisher said that even though the people who took the time to attend tonight's meeting cannot participate any further, everyone is encouraged to attend the next meeting so that the entire Commission will know what the people want. 2 Special Meeting Minutes City Commission Boynton Beach, FL April 23, 2001 Mr. Herb Suss asked if people from other districts could have any input on what goes on in District 1I. Mayor Broening responded that during a public hearing anyone could speak. Also, Mr. Bressner pointed out that if anyone has any input from other districts, they should speak directly with their Commissioner. Commissioner Black said that since he made his resignation effective April 30~, a duly noted vacancy cannot be published until May 1s~. FOr clarification, Commissioner Black asked if the Commission would be officially declaring a vacancy on May is~ and then the first regular meeting would actually be the second meeting in May? Commissioner Fisher inquired that after the Commission announces the opening could it also designate the first meeting in May to consider the applicants? Attorney Cherof replied that this procedure is possible and that the Commission would be pre-authorizing the administration to post the Notice of Vacancy sometime late on the 30~. Attorney CherOf pointed out that the resignation letter did not indicate a time when it would become effective. If the Commission does not approach it in this manner, then the Notice of Vacancy would be made on the 1st and the Commission would then have to consider it at the first regular meeting, following the declaration of vacancy, which would be May 15~. Ms..3oy Currier was under the impression that how the candidates actually fared at the polls was a determining factor, i.e., candidates A,B,C D, etc. If A, who was the winner, then decides to leave office, wouldn't B or C be considered? Attorney Cherof replied there is no such presumption under the Code. He stated there is only one winner in a municipal election and there is no provision in the Charter that pro¥ides that the second highest vote-getter would step into the place of the resigning winner. Mayor Broening closed the public hearing. Motion Commissioner Ferguson moved to set a deadline of 5:00 p.m. on Tuesday, May 8, 2001 to receive all the applications. Motion failed for lack of a second. Commissioner Fisher asked if the Commission could set the date for applications to be in by April 30~? Commissioner Fisher asked if staff could have the 3 Special Meeting Minutes City Commission Boynton Beach, FL April 23, 2001 information ready for the meeting on May lSt? Mr. Bressner replied if there was enough time to publish the date, this is possible. Mr. Bressner pointed out if this procedure were followed, at the May 1st Commission Meeting the Commission would declare the vacancy and would review the applications at that time. Mr. Bressner said if 5:00 p.m. on April 30~ was the deadline, staff could get the information hand delivered to the Commissioners in time for the May 1st meeting. Commissioners discussed the timeline if the first consideration was put off until May 15th and then a special election would be necessary, this would delay the issue even longer. Commissioner Fisher asked how long it would take if a special election were necessary? Attorney Cherof replied that it would, take 60 days for the opening and qualifying and then qualifying closes 30 days later. Commissioner Black did not feel that a great many people will be seeking, to fill the vacancy. He would like to have the application deadline on Monday, April 30~ at 5:00 p.m. so that staff could verify their residency and at the May 1st Commission Meeting, declare a vacancy and the first meeting would be the first open meeting. Commissioner Black said he would not want the City to go to the expense and delay in holding a special election to fill the vacancy. Commissioner Black felt that anyone that would be applying could have their application in by April 30~, Commissioner Black pointed out that the special election would only take place in District I! and noted how difficult it is to get peOple to vote at regular elections, and felt the turnout for a special election would be very Iow. Commissioner Black.said he would be willing to amend his letter of resignation to take effect tomorrow, April 24, 2001 at 5:00 p.m. Mayor Broening stated if the Commission accepts Commissioner Black's amended resignation, it would give the City more time to get the Notice of Vacancy published and at that time, the City could begin to accept applications for consideration. This would also allow the Commission at its' May 1, 2001 meeting to begin consideration for a new Commissioner for District Motion Commissioner Fisher moved to accept applications tentatively after 5:00 p.m. tomorrow to give Commissioner Black the opportunity to submit his amended resignation and to close receiving applications on April 30, 2001 at 5:00 p.m. and publish the notice of vacancy immediately after 5:00 p.m., provided Commissioner Black submits a new letter of resignation. Motion seconded by Commissioner Black. 4 Special Meeting Minutes City Commission Boynton Beach, FL April 23, 2001 Vice Mayor Weiland said he agreed with the motion, but he did not feel that the Commission should rush to judgment. Vice Mayor Weiland suggested that after the applications are received that a workshop be scheduled to review and discuss the applications without making a decision at that time. Vice Mayor Weiland felt this would give the Commissioners more of an opportunity to fully review and study the applications instead of reviewing and discussing them on May 1~t and then make a decision immediately after the discussion. Commissioner Black did not feel that a workshop was necessary, since the Commission had two meetings to make a decision. He felt that holding a special meeting would delay the process and that the candidates could answer any questions during the May is~ meeting. Commissioner Fisher concurred with · Commissioner Black and noted that the Commissioners just went through this process recently with District III. Vice Mayor Weiland said he was not trying to delay the process, and he was the one who suggested that tonight's meeting be held instead of on Thursday, as originally scheduled. Vice Mayor Weiland said that any workshop would be scheduled in between the regularly scheduled meetings. Commissioner Black called for the question on the motion. Mayor Broening said he would restate the motion to make certain everyone understood the procedure. The motion is conditional upon Commissioner Black moving up his resignation of April 30, 2001 as soon as possible, i.e., April 24, 2001 at 10:00 a.m.- The City will immediately publish a notice of vacancy and begin accepting applications to close at 5:00 p.m. on April 30, 2001 and the first consideration of the candidates would be at the May 1, 2001 Regular City Commission Meeting. The motion carded unanimously. Mr. Bressner requested that the Commissioners review the Notice of Vacancy, which was distributed to the Commissioners so that he could proceed. The Commission agreed by consensus to accept the Notice of Vacancy as submitted. Commissioner Fisher pointed out that even though the City has moved into single member districts, Commissioners outside District II would be responsible for voting for the appointment. Commissioner Fisher urged everyone to call their Commissioners to voice their opinion. 5 Special Meeting Minutes City Commission Boynton Beach, FL April 23, 2001 Adiournment There being no further business, Commissioner Black moved to adjourn, which was duly seconded by Commissioner Ferguson. The meeting properly adjourned at 7:15 p.m. CI'TY OF BOYNTON BEACH Hayor ATTEST: Vice Mayor Commissioner City Clerk Recording Secretary (one tape) Commissioner Commissioner 6 V-CONSENT AGENDA ITEM A.2 MINUTES OF THE AGENDA PREVIEW CONFERENCE HELD IN CONFERENCE ROOM "B", CITY HALL, BOYNTON BEACH, FLORIDA ON THURSDAY, APRIL 26, 2001 AT 5:00 P.M. PRESENT Gerald Broening, Mayor Ronald Weiland, Vice Mayor Mike Ferguson, Commissioner Chadie Fisher, Commissioner Kurt Bressner, City Manager James Cherof, City Attorney Janet Prainito, City Clerk The agenda review began at 5:15 p.m. Mr. Bressner called the Commissioners' attention to the list that Ms. Prainito prepared regarding the remaining board openings, together with additional talent bank forms that have recently been received, which have been included on the list. The recommendations from last night's Planning and Development Board meeting have been added. The letter of credit from BJs Wholesale Club will be added. Attorney Cherof said he has looked at the document and it was satisfactory. It should be added as a resolution and not a motion as presented. Legal will redo it in proper form and it will be Item C.8 on the agenda. VlI.A. Seacrest Scrub Preserve. Mr. Greene pointed out that Ms. Rossi, during public hearing, recommended that the City create a preservation zoning district, which the City currently does not have. Staff will_ present this at the meeting. Item F. under City Manager's Report. Mr. Bressner inquired how this item should be treated? Mayor Broening said he was still interested in the property and questioned if the item should be turned over to the CRA to handle. Commissioner Ferguson suggested removing the item from the agenda. Vice Mayor Weiland did not see the need to turn it over to the CRA since the item would onlY come back to the Commission. Mr. Greene thought turning it over to the CRA might be beneficial. It was determined to remove the item from the agenda. VI.3 - Motions to Reconsider. Attorney Cherof stated that the back-up matedal was not included in the agenda packet. Ms. Prainito responded that she never received a new Agenda Memo..Attorney Cherof requested that the old back-up be included. VIII. Future Agenda Items - remove item D. MEETING MINUTES AGENDA PREVIEW BOYNTON BEACH, FLORIDA April 26, 2001 X.A. New Business: Declaration of Vacancy in Office of City Commissioner for District II and X.B. Review of Applications. Commissioner Fisher suggested that these items be moved up on the agenda and to move New Business before the City Manager's Report. This will be announced at the beginning of the meeting. XI.B. Legal. Ms. Prainito said she would be changing the title to read the way the title is written. Mr. Bressner explained that by Ordinance the City Commission would consider moving the election to November instead of March to take effect for the November 2002 election, This means that the people whose terms would expire in March 2002 would remain in office for six more months until November 2002. In the following election year of 2003, those persons whose terms expired in March 2003, would also have their terms extended for six months until November 2003. Attorney Cherof pointed out that this i~ permitted by State Statute in the Election Code to allow a City to change the term by Ordinance without going to Referendum. This has been opined by the Attorney General. It was decided to remove this item from the agenda and to place it under Future Agenda Items for May 15, 2001. Commissioner Fisher requested that when Mr. McCann makes his presentation that he include a portion of his presentation on what he and Commissioner Fisher worked on during Commissioner Fisher's trip to Tallahassee. ADJOURNMENT There being no further business to come before the Commission, the meeting propedy adjourned at 5:40 p.m. CITY OF BOYNTON BEACH Mayor ATTEST: Vice Mayor City Clerk Recording Secretary (one tape) Commissioner Commissioner CITY OF BOYNTON BEAC] AGENDA ITEM REQUEST FO V-CONSENT AGENDA Requested City Commission Date Final Form Must be Turned Requested City Commission Meeting Dates in to City Clerk's Office Meeting Dates [] March 20, 2001 March 7, 2001 (5:00 p.m.) [] May 15, 2001 [] April 3, 2001 March 21, 2001 (5:00 p.m.) [] June 5, 2001 [] April 17,2001 April4,2001 (5:00p.m.) [] June 19,200l [] Mayl, 2001 April l8, 2001 (5:00p.m.) [] July3,2001 Item B-I. Date Final Form Must beITurna~ in to City Clerk's Olde May 2, 2001 (5:00 p.m.) ~ May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda. [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Motion to award "ANNUAL CONTRACT FOR SECURITY OFFICER SERVICE FOR THE EZELL HESTER JR. COMMUNITY CENTER, THE PUBLIC LIBRARY AND THE SCHOOLHOUSE MUSEUM", Bid #051-2710-01/CJD, to Safeguard Group Holdings LTD, in the amount of: $693.00 per week. EXPLANATION:On April 17, 2001, Procurement Services received and opened seven (7) proposals for the bid referenced above. After careful review and evaluation by the Recreation Department and the Library staff, it has been determined that a recommendation to award this bid to Safeguard Group Holdings LTD of West Palm Beach, Florida, the second lowest bidder. It was determined by the evaluation committee that the low bidder's references were not favorable and they are not a local company which has been a draw back with the existing security company when the need arises for a back up in case of a "no show". Therefore, the committee feels that Safeguard Group Holdings LTD is the most responsive, responsible bidder who meets all specifications. Wally Majors, Recreation Director and A.D. Henehan concur with this recommendation (see attached memo g01-30). PROGRAM IMPACT: The purpose of this bid was to seek proposals from Security Service vendors to provide security on a yearly basis to patrol Ezell Hester Jr. Community Center for 40 hours per week, the Public Library, and the Schoolhouse Museum for (26) hours per week. FISCAL IMPACT: BUDGET ACCOUNT# 001-2710-572'49.17 (Recreation) 001-2610-571-49.17 (Library) Total Expenditure: Deputy Director of Financial Services ESTIMATED EXPENDITURE $21,840.00 14~196.00 ~ ~ $36,036.00 Procurement Services Department Name City Attorney / Finance / Human Resources S:~BULLETINWORMS~AGENDA ITEM REQUEST FORM.DOC C: Wally Majors - Recreation Director A.D. Henehan- Asst. Director Librapj TO: VIA: FROM: DATE: SUBJECT: RECREATION DEPARTMENT MEMORANDUM NO. 01-30 Bill Atkins, Deputy Director of Financial Services Wally Majors, Recreation Director ,~ Mary DeGraffenreidt, Recreation Manager/~6 May 2, 2001 RECEIVED ~A¥ 2 Security Guard Services for Hester Community Center We' recommend using the 2nd lowest bidder, Safeguard Group Holdings Ltd., as the security service vendor for Ezell Hester Jr. Community Center and the Library. The serVice for Hester Center should be charged to the Recreation Division (other contractual serVices) account #001-2710-572-49-17, which has a current available balance of $10,136. The service for the Library should be charged to account # 001-2610-571-49-16, which has a current available balance of $16,147 We checked references for the vendors who submitted the two lowest quotes, Tunjos Security Services and Safeguard. Attached you will find a short summary about information we received. Considering this information, we believe the Recreation Department and the Library will be better served by using Safeguard as its security vendor. MLD:clw Cc: Carol Doppler Sherri Claude A.D. Henehan File Security Services References Safeguard GrOup Holdinq LTD Doubletree Hotel The following information was provided by Geof Krizan contact person in charge of security. 1. Safeguard was hired to secure the hotel for special events etc. 2. Safeguard has provided two (2) years of services for the hotel, and services provided have been very good. 3. Believes that the outcome of services is good because of work schedules and specific orders that were outlined by the hotel. 4. Replaced Safeguard with Wackerhut Security, and feels it was a great move. Noble Manaaement The following information was provided by Peter Sydle contact person in charge of security. 1. .The president of the company doesn't tolerate any lack of performance from his guards. All complaints are problems are handled in a timely manner. 2. Have experience good and bad guards. Security Services References Tunios Standard Press (Name on Reference submitted by company) Standard Printing Company (correct name) First Call Response - Don't know who you're talking about, never heard of the company before. Second Call Response - Oh yell, they're all right, now good bye. DePartment of Transportation FHP Tunjos isn't employed by FHP for security services, only for maintenance service and mowing. FHP uses in house service for business. The vendor contact person (Adenola Adelekan) submitted by Tunjos provided all information. Department of Labor and Employment The following information was provided the reference contact person (Mr. Gunn). Tunjos Security Service doesn't give you quality services. The . Department of Labor is now seeking other services for security. following problems occurred with Tunjos: The 4. 5. 6. No back-up person available (whenever there's and absence) The company doesn't supply quality services like, making daily checks etc. Have problems keeping staff· Started off good and dropped the ball. Supervisor seldom checks on his guards. Never hired any quality guards. Unfortunately, these are the same problems we experienced with Art Hall Protection Services. , ~ z~ cc 0 0 0100 m m 0 m~ ~ m 0 m ~m ~ z m N 0 0 ~ m m ~ 0 ~ ~ 0 m > mo mO ~ ~ m m C~ ~m m m ~ ~ ~ ~ m ~ ~ m Z ~ ~ o msozm ~ ~ ~ ~ mmm ! m m z ~ ~ m~ ~ ~ m 8 8 ~o bo ~ -~ ~'~- ~ ~<m © ~ mm o ~, m ~ o Zc ~ ~ o o Z 0 C CZ rn =~'"___ ~-n ~-~ z = _=× C ~Z 0 mc <> __ ITl m m m o~0 -< ~ .-< > --I ITl '--I ITl ITl ~ C:(~ o ~m om .< C~, ..< "n;o - ~0 rn ~_ m r-mm _z ~* - Z zO '~ ~ ~ mm m c/.-~mo r.nm 8~ Om -< '-< ~ 0 ~ ~z 'n~o ~ r'nO t- m --q zz m~ ~ ~8 · . Oz.-i ,-,. ~ ;;o m ~00 zz zz $~o O0 ~ mm ~m~ · . Oz-i T~ m V-CONSENT AGENDA CITY OF BOYNTON ITEM B-2. AGENDA ITEM REQUEST F0 ) i t Requested City Commission Meeting Dates [] March 20, 2001 [] April 3, 2001 [] April 17, 2001 [] May 1,200l Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 15,2001 [] June 5,2001 [] June 19, 2001 [] July 3,2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 200t (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Motion to award "INSTALLATION OF FLOORING SYSTEM IN VEHICLE BAY AREAS FOR THE CITY OF BOYNTON BEACH'S THREE (3) FIRE STATIONS", Bid #049-2413-01/KR, to Dura Floor, d/b/a Dura Bond Company, in the amount of $ 37,485.00. EXPLANATION: On April 10, 2001, Procurement Services received and opened three (3) proposals for the bid referenced above. After careful review and evaluation by the Engineering Department, we recommend an award to Dura Floor, d/b/a Dura Bond Company of Miami FL, the lowest, most responsive, responsible bidder who meets all specifications. John Guidry, Interim Director of Engineering; Bill DeBeck, Project Manager; and Chief Bingham, Fire Chief; concur with this recommendation (see attached Memo 001-061). PROGRAM IMPACT: The purpose of this bid was to seek proposals for the installation of a resin rich epoxy flooring system that is vehicle rated, chemical resistant and has a pedestrian non-slip surface. Flooring will be installed in vehicle bay areas at City's three (3) Fire Stations. FISCAL IMPACT: BUDGET ACCOUNT/NAME Fire/Building Improvements 001-2210-522-62-01 Reserve/Fire Bldg. Improvement 001-5000-590-02-20 TOTAL Deputy Director of Financial Services BUDGETED AMOUNT 30,000.00 7,500.00 ,~. 37,500.00 Ci~ livla~ger's Signature Procurement Services Department Name City Attorney / Finance / Human Resources cc: John GuichT, Interim Engineering Director Bill DeBeck, Project Manager David Liu, Fire Department S:XBULLETI~FORMSXAGENDA ITEM REQUEST FORM.DOC Paul Fleming, Senior Project Manager File DEPARTMENT OF ENGINEERING MEMORANDUM NO. 01-061 TO: THRU: FROM: DATE: RE: Bill Atkins Assistant Finance Director/Purchasing Agent John Guidry ~'/ Interim Director of Engineering ! ~ Bill DeBeck ~ ~ Project Manager RECEPJED APR '~ 2001 April 26, 2001 :&,. ~/ FIRE STATION RECOMMENDATION FOR CONSTRUCTION CONTRACT AWARD The Engineering Department has reviewed the bid results provided by Purchasing on the subject project and hereby recommends contract award in accordance with the following: Project Name: Installation of Flooring System in Vehicle Bay areas for the City of Boynton Beach's three (3) Fire Stations. Bid Number: 049-2413-01/KR Recommended Contractor: Dura Floor d.b.a. Dura Bond Company, 142 NW 29th Street, Miami, FL 33137 Amount: $37,485.00 Account No. 001-2210-522-62-01:$30,000 001-5000-590-02-20, Reserve: $7,500 Responsibility of Contractor: Verified by reference check and knowledge of contractor's reputation. Compliance with Drawings and Specifications: Engineering Department has reviewed bid data/brochures submitted and checked with the Architect and the bid as submitted is in compliance. Client Office Concurrence: Based upon email dated 4/17/01 from David Liu to Bill DeBeck which indicates concurrence by Chief Bingham, the Engineering Department has the necessary client office approval to proceed with contract award. If there are any questions please contact Clem Bucher at ext. 6491 JAG:WMD/ck Xc: David Liu, Fire Dept. Paul Fleming, Senior Project Manager J:\SHRDATAXEngineering~DeBoek~Fire Station 1, 2 & 3 - Bay Floors Contract Award.doe RESOLUTION NO. R 0l- A RESOLLFFION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING THE AWARD OF A BID (NO. 049- 2413-01-KR) TO DURA FLOOR, INC., d/b/a DURA BOND COMPANY, FOR THE INSTALLATION OF THE FLOORING SYSTEM IN VEHICLE BAY AREAS FOR THREE (3) FIRE STATIONS, IN THE AMOUNT OF $37,485.00; AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE SAID CONTRACT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Procurement Services received and opened Bids for the above mentioned project on April 10, 2001, and it was determined Dura Floor, dfo/a Dura Bond Company, was the most responsive bidder who met and exceeded all specifications; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida, hereby approves the award of a bid for thc installation of a flooring system in the vehicle bay area for the City's three (3) fire stations in the amount of $37,485.00, to Dura Floor, dfo/a Dura Bond Company, and authorizing the Mayor and City Clerk to execute a Contract between the parties, a copy of which is attached hereto as Exhibit Section 2. That this Resolution shall become effective immediately. PASSED AND ADOPTED THIS __ day of May, 2001o CITY OF FLORIDA BOYNTON BEACH, Mayor Vice Mayor Commissioner Commissioner ;T: Commissioner City Clerk (Corporate Seal) s:Reso\Bid Award\Dura Bond Co05070! CONTRACT THIS AGREEMENT, made and entered into this day of , A.D. 20__, by and between the CITY OF BOYNTON BEACH, a municipal corporation of Florida, hereinafter called the "City" and DURA FLOOR, INC. d/b/a DURA BOND COMPANY a Florida Corporation ( ) a Florida General Partnership ( ) a Florida Limited Partnership ( ) a Sole Proprietor ( ) Check One hereinafter called "CONTRACTOR". WlTNESSETH That under the due procedure of law, bids were heretofore received by the City Commission of said City for the performance of work and supplying materials, hereinafter described, and said Commission having canvassed said bids, had determined that the bid in the total amount of Thirty-seven thousand, four hundred eigh _ty-five dollars and no cents submitted by the aforementioned CONTRACTOR was the best and most desirable bid submitted, and has authorized the execution of this contract. NOW, THEREFORE, in consideration of these premises and the mutual conditions and covenants contained herein, the parties agree as follows: 1.0 AGREEMENT 1.1 The CITY-does award the contract to and does hire and employ the CONTRACTOR and the CONTRACTOR does accept the award, predicated upon the bid of the CONTRACTOR, dated ., which is hereby incorporated by reference into this agreement, and the CONTRACTOR does agree to furnish the necessary labor, tools, equipment, materials and supplies, etc., and to perform all the work provided in the bid, contract documents, bond documents, plans and specifications for: Bid Title: Bid Number: "INSTALLATION OF FLOORING SYSTEM IN VEHICLE BAY AREAS FOR THE CITY OF BOYNTON BEACH'S THREE (3) FIRE STATIONS" 049-2413-01/KR City of Boynton Beach, Florida, all of which are incorporated herein by reference at such unit prices/or lump sum prices as specified in CONTRACTOR'S bid totaling $ 37,485.00. c-1 2.0 SCOPE OF SERVICES 2.1 CONTRACTOR further agrees to furnish all materials, supplies, machines, equipment, tools, superintendents, labor, insurance, and other accessories and services necessary to complete said project in accordance with the conditions and prices as stated in the contract conditions, supplemental general conditions and special conditions of the contract, plans which include all maps, plats, blueprints, and other drawings and printed or written explanatory matter thereof as contained in the bid, contract documents and specifications for the project. 2.2 All the work and labor performed under this contract shall be performed, and all of the material furnished shall be, in strict conformity with said plans and specifications, and CONTRACTOR accepts and consents to the conditions contained in said plans and specifications and expressly agrees to comply with every requirement and stipulation therein contained to be performed by the party contracting to do said work. 2.3 The CONTRACTOR further agrees to furnish all tools, equipment, materials and supplies and to do all the work above mentioned in a first-class, substantial and workmanlike manner, and in conformity with the detail for said work on file in the office of the City Engineer of the City and strictly in accordance with the specifications, general stipulations and plans which are hereby referred to and made a part of this contract, as well as to the satisfaction of the City Commission and City Engineer of the said City, and in strict obedience with the directions which may be given by the City Manager or his authorized representative, at and for the prices herein plainly set forth. 2.4 Upon receipt of written notification from the CITY, to correct any defective or faulty work or materials which may appear within one (1) year after completion of the contract and receipt of final payment. CONTRACTOR shall make the necessary corrections within ten (10) days of receipt of the written notice. 2.5 To comply with the provisions of Section 255.05, Florida Statutes, if applicable. 2.6 To pay promptly, before final settlement, any and all claims or liens incurred in and about this work. Furnish release of liens forms from all subcontractors and suppliers of materials. Forms to be supplied by CITY. 2.7 The CONTRACTOR shall remove and clean up all rubbish, debris, excess material, temporary structures, tools and equipment from streets, alleys, parkways and adjacent property that may have been used or worked on by the CONTRACTOR in connection with the project promptly as such section or portion is completed and ready for use, leaving the same in a neat and presentable condition. C-2 3.0 Payment of monthly or partial estimates may be withheld until this has been done to the satisfaction of the City Engineer. Final acceptance and payment for the entire project will not be made until the site is satisfactory to the CITY. 2.8 The CONTRACTOR shall at all times observe and comply with the provisions of the charter, ordinances, codes and regulations of the City of Boynton Beach, Florida. 2.9 Upon completion of the work, the City Engineer shall satisfy himself, by examination and test, that the work has been fully completed in accordance with the plans, specifications and contract documents. When the City Engineer is so satisfied, he shall recommend acceptance thereof to the City Manager, who shall, if he agrees with such recommendation, present the final payment application to City Commission for review and vote to formally accept the project. The right of general supervision of the CITY as hereinafter provided under "authority of the engineer" shall not make the CONTRACTOR an agent or employee of the CITY, but the CONTRACTOR, shall at all times, and in all respects have the rights and liabilities of an independent contractor. 2.10 After the cleaning up of the work, premises, streets, alleys, manholes, catch basins, or other areas of structure in anyway connected with the performance of the contract, the work as a whole shall be inspected by the City Engineer, and any workmanship or material found not meeting the requirements of the specifications shall be removed by or at the expense of the CONTRACTOR and good and satisfactory workmanship or material substituted therefor. All settlement, defects or damage upon any part of the work shall be remedied and made good by the CONTRACTOR. 2.11 The CONTRACTOR will be held responsible for the care, protection and condition of all work until final completion and acceptance thereof, and will be required to make good at his own cost any damage or injury occurring from any cause. COMMENCEMENT OF WORK 3.1 CONTRACTOR hereby agrees to commence work under this contract on or before a date to be specified in the written "Notice to Proceed" of the CITY and to fully complete the project within 30 days following the commencement date as specified in same. C-3 4.0 5.0 3.2 Time is the essence e f the contract. In the event the CONTRACTOR shall fail in the performance of the work specified and required to be performed within the time limit set forth in the contract, after due allowance for any extension or extensions of time made in accordance with herein before set forth, the CONTRACTOR shall be liable to the CITY, as hquidated damages and not as penalty, in the amount stipulated therefore in the special conditions or in other documents for each and every calendar day that the CONTRACTOR shall be in default of completion. The CITY shall have the fight to deduct said liquidated damages from any amount due, or that may become due the CONTRACTOR, or to collect such liquidated damages from the CONTRACTOR or his Surety. 3.3 CONTRACTOR shall, as soon as practicable, after s~gnamre of contract, notify City Engineer in writing of names of subcontractors proposed for principal parts of work, and for such others as City Engineer may direct, and shall not employ an that architect may, within a reasonable time, object to as incompetent or as unfit. LIQUIDATED DAMAGES 4.1 The CONTRACTOR further agrees to pay N/A per day as liquidated damages, for failure to begin within ten (10) days of''Notice to Proceed" or failure to complete the work within 30 calendar days from the commencement date to be indicated in the written "Notice to Proceed". PROTECTION OF EXISTING FACILITIES 5.1 The CONTRACTOR warrants that prices include the protection and continuous use of all existing sewers, conduits, drains, pipes, buildings, walks, bridges, guard rails and other construction encOuntered, and the prompt repairing of any damage done to them during the progress of the work, or from insufficient support thereafter; also all the filling, backfilling, tamping, ramming, puddling and consolidating; the removal and disposal of all rubbish and surplus material; also all pumping bailing draining or unwatering of all excaVations, incidental to the execution of the work; also the furnishing of all necessary labor, tools, equipment, materials and supplies, etc. and the performance of the whole work mentioned in the detailed plans and specifications necessary to give a finished result, and including all expense incurred in or in consequence of the suspension or discontinuance of the said work specified and a faithful compliance with each and every one of the requirements of the contract and for the maintenance of the entire work and construction in good condition and repair until final acceptance. C-4 5.2 The CONTRACTOR shall assume full responsibility and expense for the protection of all public and private property, structures, water mains, sewers, utilities, etc., both above and below ground, at or near the site or sites of the work being performed under the contract, or which are in any manner affected by the prosecution of the work or the transportation of men and materials in connection therewith. The CONTRACTOR shall give reasonable written notice in advance to the department of the CITY having charge of any property or utilities owned by the CITY and to other owner or owners of public or private property or utilities when they shall be affected by the work to be performed under the contract, and shall make all necessary arrangements with such department, departments, owner or owners for the removal and replacement or protection of such property or utilities. 6.0 INDEMNIFICATION '6.1 The CONTRACTOR shall indemnify and save harmless and defend the CITY, its agents, servants, and employees from and against any claim, demand, or cause of action of whatsoever kind or nature arising out of error, omission or negligent act of CONTRACTOR, its agents, servants, or employees in the performance of services under this Agreement. 6.2 CONTRACTOR shall indemnify and save harmless and defend CITY, its agents, servants and employees from against any kind and all causes, claims, demands, actions, losses, liabilities, settlements, judgments, damages, costs, expenses, and fees (including without limitation reasonable attorney's and appellate attomey's fees) of whatsoever kind or nature for damages to persons or property caused in whole or in part by any act, omission, or default of the CITY, its agents, servants or employees arising from this contract or its performance. The CONTRACTOR and the CITY hereby agree and covenant that the CONTRACTOR has incorporated in this original bid, which constitutes the contract sum payable by the CITY to the CONTRACTOR, specific additional consideration sufficient to support this obligation of indemnification provided for in this paragraph. It is the CITY'S and CONTRACTOR'S full intention that this provision shall be enforceable and said provision shall be in compliance with Florida Statute 725.06. 6.3 The execution of this Agreement by the CONTRACTOR shall obligate CONTRACTOR to comply with the foregoing indemnification provision, as well as the insurance provisions which are set forth in Attachment "_A." herein. However, the indemnification provision, and the insurance provision contained in this Contract are not interdependent of each other, each one is separate and distinct from the other. 6.4 The obligation of the CONTRACTOR to indemnify the CITY is not subject to any offset, limitation or defense as a result of any insurance proceeds available to either the CITY or the CONTRACTOR. C-5 7.0 8.0 PAYMENT BY CITY 7.1 The CITY agrees to pay the CONTRACTOR in current funds for the performance of the contract, subject to additions and deductions as provided in the specifications. CHANGES IN THE WORK 8.1 The CITY, without invalidating the Contract, may order extra work or make changes by altering, adding to or deducting from the work, the Contract sum being adjusted accordingly. All such work shall be executed under the conditions of the original Contract. Any claim for extension of time caused thereby shall be made in writing at the time such change is ordered. 8.2 All change orders and adjustments shall be in writing and approved by the City Manager or City Commission if required, otherwise, no claim for extras will be allowed. 8.3 The General Contractor and all of his subcontractors shall be apprised of, and familiar with, the following conditions and procedures governing extra-work under the Contract: 8.3.1 Any change order has to be recommended by the City Manager and officially approved by the City Commission before any steps are taken to implement the change order. 8.3.2 Should the CONTRACTOR or any of his subcontractors commence with the work without making a claim in writing for unforeseen extra work he encounters, it will be construed as an acceptance and agreement by him that any such work is required under the contract and no future claim for extras will be considered or allowed by the CITY. 8.3.3 No claim for extra work will be allowed unless and until authority for same by written Change Order has been obtained from the City Manager or the City Commission of Boynton Beach, if necessary, which authorization will be signed by the Mayor. 8.3.4 Changes in the work directed in writing by the CITY'S Representative under the following procedures shall become a part of the Contract by a written Change Order. 8.3.5 Information regarding changes in the work involving claims to the CITY for additional work, credits, and/or adjustments under the contract shall be promptly transmitted in writing by the General CONTRACTOR to the CITY'S Representative with full explanations and justifications for his consideration in preparing a Change Order to the Contract. c-6 8.4 The value of any change ordered under the Contract for extra work and/or any reductions in work required, shall be determined under one or more of the following procedures before a written Change Order is issued: 8.4.1 By such applicable unit prices, if any, as are set forth in the Contract except in those cases where increases in quantities exceed fifteen (15) percent of the original bid quantity and the total dollar change of that bid item is significant in the opinion of the Engineer, the unit price shall be subject to review to determine if a new unit price should be negotiated; or 8.4.2 If no such unit prices are set forth, then by a lump sum or other unit prices mutually agreed upon by the CITY and the CONTRACTOR; or 8.4.3 By cost reimbursement, which is the actual cost for labor, direct overhead, materials, supplies, equipment and other services necessary to complete the work plus fifteen (15) percent to cover the cost of general overhead and profit. For all labor and foreman in direct charge of the authorized operations, the CONTRACTOR shall receive the current local rate of wages to be agreed upon in writing before starting such work, for each hour said labor and foreman are actually engaged thereon. An upper limit of total cost and of profit shall be agreed upon and shall not be exceeded unless approved by the CITY. 8.4.3,1 The CONTRACTOR shall submit sufficient cost and pricing data to enable the Engineer to determine the necessity and reasonableness of costs and amounts proposed and the allowability and eligibility of costs proposed. 8.4.3.2 The CONTRACTOR shall have an accounting, system which accounts for such costs in accordance with generally accepted accounting principles. This system shall provide for the identification, accumulation and segregation of allowable and unallowable Change Order costs. 8.4.3.3 Where it is indicated that the Contract is Federally or State assisted, the CONTRACTOR'S attention is directed to the applicable rules and regulations relative to cost principles which must be used for the determination and allowability of costs under grant. 8.4.3.4 In no case shall fringe benefit costs on direct labor costs exceed forty (40) percent of direct labor costs. C-7 8.4.3.5 9.0 In no case shall the CONTRACTOR and Subcontractors' general overhead and profit in the aggregate exceed fifteen (15) percent of the total cost of direct labor, fringe benefits, direct overhead, materials, supplies, equipment and directly related services supplied by him. Among the items considered as general overhead are bonds, insurance, incidental job burdens, supervision and general office expenses. 8.4.3.6 In no case shall the CONTRACTOR'S cost for administering subcontracts exceed five (5) percent of the subcontractors' cost not including subcontractors' profit. 8.4.3.7 For special equipment and machinery such as power driven pumps, concrete mixers, trucks, and tractors, or other equipment, required for the economical performance of the authorized 'work, the CONTRACTOR shall receive payment based on the agreed rental price for each item of equipment and the actual time of its use on the work provided that the rental price shall not exceed the current rates published by the Equipment Guide Book Company in the Blue Book, "Rental Rates for Construction Equipment". Rate shall be daily, weekly or monthly as appropriate. 8.4.3.8 Records of extra work done shall be reviewed at the end of each day by the CONTRACTOR and the Engineer. Such daily records shall clearly distinguish between the work done under the contract and that done under the Change Order. Duplicate copies of the accepted daily records shall be made, signed by the CONTRACTOR and the Engineer and one copy retained by each. 8.5 Claim of payment for extra work shall be submitted by the CONTRACTOR upon certified statement supported by receipted bills. Such statements shall be submitted' for the current contract payment for the month in which the work was done. No claim for extra work shall be allowed unless that same was ordered, in writing, as aforesaid and the claim presented at the time of the first estimate after the work is completed. PROJECT ENGINEER 9.1 The project engineer shall be BII.L DE BECK (561) 742-6286. 9.2 The Engineer shall have general supervision and direction of the work. The Engineer is the agent of the CITY only to the extent prOvided in the contract documents and when in special instances he has the authority by CITY to act, and in such instances he shall, upon request, show CONTRACTOR written authority. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the contract. C-8 10.0 11.0 9.3 As the Engineer is, in the first instance, the interpreter of the conditions of the contract and the judge of its performance, he shall side neither with CITY nor with CONTRACTOR, but shall use his power under the contract to enforce its faithful performance by both. INSURANCE 10.1 The CONTRACTOR shall maintain during the term of this contract commercial liability, motor vehicle, and property damage insurance, acceptable to the CITY, covering the work contracted and all operations connected herewith, and whenever any of the work in the contract is to be sublet, CONTRACTOR'S contingent or protective liability and property damage insurance. Such insurance shall provide limits not less than those set forth on the insurance requirement schedule attached as Attachment "A". 10.2 Required insurance shall be documented in a certificate of insurance which provides that the CITY of Boynton Beach shall be notified at least fifteen (15) days in advance of cancellation, nonrenewal or adverse change. Contractor agrees to furnish policies if Certificate of Insurance is not acceptable. 10.3 The CONTRACTOR shall take all necessary precautions to prevent the generation of loud, unnecessary noise in conjunction with his operations at the work site. Internal combustion engines used with construction equipment shall be equipped with mufflers, as required by the Code of the City of Boynton Beach, and the CONTRACTOR shall comply with all requirements of this Code as they pertain to prevention of noise. No pile driver, excavating or other construction equipment, pneumatic hammer, derrick, the use of which is attend by loud or unusual noise, shall be operated between the hours of 6:00 P.M. and 7:00 A.M., except by written permission of the City Manager, and then only in case of emergency. GUARANTEE AND WARRANTIES 11.1 All the work shall be guaranteed to remain in good condition for one year fi:om date of acceptance. c-9 12.0 TERMINATION OF CONTRACT 12,1 If the work to be performed under the contract is assigned by the CONTRACTOR other than provided for herein; if the CONTRACTOR should be adjudged as bankrupt; if a general assignment of his assets be made for the benefit of his creditors; if a receiver should be appointed for the CONTRACTOR or any of his property; if at any time the Engineer shall certify in writing to the City Manager that the performance of the work under the contract is being unnecessarily delayed or that the CONTRACTOR is willfully violating any of the conditions, provisions, or covenants of the contract, plans or specifications, or that he is executing the same in bad faith or otherwise not in accordance with the terms of the contract; if the work be not fully completed within the time named for its completion or within the time to which such completion date may be extended; or if other just causes exist, the City Manager may serve ten (10) days' written notice upon the CONTRACTOR of the intent to terminate the contract for the CITY and if the CONTRACTOR shall not, prior to the effective date of termination set forth in such notice, take such measures as will, in the judgment of the City Manager, ensure the satisfactory performance of the work, the City Commission and the City Manager may declare the contract terminated on the effective date specified in such notice, or any date subsequent thereto. In the event of such termination, the City Manager shall notify the CONTRACTOR and Surety and the CONTRACTOR shall immediately respect such notice and stop work and cease to have any right to the possession of the ground and shall forfeit his contract. Upon such termination, the City Manager shall provide the Surety with written notice of the CITY'S action and the Surety shall within ten (10) days of receipt of said notice remedy the default or the Surety shall as expeditiously as possible: 12.1.1 Complete the contract in accordance with its terms and conditions, or 12.1.2 Obtain a bid or bids for completing the contract in accordance with its terms and conditions, and upon determination by Surety and the CITY of the lowest responsible bidder, make available as work progresses (even though there should be a default or a succession of defaults under the contract or contracts or completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the contract price", as used in this paragraph, shall mean the total amount payable by CITY to CONTRACTOR under the contract and any amendments thereto, less the amount properly paid by CITY to CONTRACTOR. C-10 13.0 CONTRACT CONTROLS 13.1 The subject contract between the CITY and the CONTRACTOR shall supersede any and all documents executed between the parties relative to the project. In the event of any inconsistencies, the terms, provisions and conditions set forth in the subject contract shall supersede all other documents and shall be controlling. 14.0 TIME OF ESSENCE 14.1 Inasmuch as the provisions hereof, and of the plans and specifications herein, and of all the other contract documents relating to the times of performance and completion of the work are for the purpose of enabling the CITY to complete the construction of a public improvement in accordance with a predetermined program, all such time limits are of the essence of the contract. 15.0 REMEDY FOR DELAY 15.1 In the' event of any delay in the project caused by any act or omission of the CITY, its agents or employees, by the act or omission of any other party, or delay caused by weather conditions or unavailability of materials, the sole remedy available to CONTRACTOR shall be by extension of the time allocated to complete the project. No monetary damages shall be claimed or awarded to CONTRACTOR in association with any delay in the project caused by an act or omission of the CITY, its agents or employees. 15.2 Failure on the part of CONTRACTOR to timely process a request for an extension of time to complete the work shall constitute a waiver by CONTRACTOR and CONTRACTOR shall be held responsible for completing the work within the time allocated by this contract. 15.3 All requests for extension of time to complete the work shall be made in accordance with the General and Special Conditions. 15.4 For the purpose of this section the phrase "the CITY, its agents and employees" shall include but shall not be limited to the architect, project manager and consulting engineers. C-11 IN WITNESS WHEREOF, the CITY has caused these presents to be signed by its Mayor, attested by the City Clerk with the Corporate Seal of the said CITY and the CONTRACTOR has executed these presence the day and year herein before written. Signed, sealed and witnessed in the presence of: CITY OF BOYNTON BEACH~ FLORIDA Mayor Attest: Approved as to Form: City Clerk City Attorney Signed, sealed and wimessed in the presence of: Contractor President or the Vice President Attest as to Contractor C-12 State of Florida County of Palm Beach ) ) SS: On this __ day of ,20 , personally appeared before me duly authorized to administer oaths to me known to be the persons described herein and who executed the foregoing instrument and have acknowledged before me and they have executed same. Notary Public My Commission Ex' ~ires: 11/15/96 nc C-13 ATTACHMENT A City of Boynton Beach Risk Management Division INSURANCE ADVISORY FORM Under the terms and conditions of all conu-acts, leases, and agreements, the City requires appropriate coverages listing the City of Bolmton Beach as Additional Insured. This is done by providing a Certificate of Insurance listing the City as "Certificate Holder" and "The City of Boynton Beach is Additional Insured as respect to liability." Insurance companies providing insurance coverages must have a current rating by A.M. Best Co. of"B+" or higher. (NOTE: An insurance contract or binder may be accepted as proof of insurance if Certificate is provided upon select~on of vendor.) The following is a list of types of insurance required of contractors, lessees, etc., and the limits required by the City: (NOTE: This list is not all inclusive, and the City reserves the right to require additional types of insurance, or to raise or lower the stated ilngts, based upon identified risk.) TYPE (Occurrence Based Only) MINIMIJM LIMITS REOUIRED General Liabihty .General Ag~egate Commercial General Liability Products-Con~p/Op Agg. Owners & Contractor's Prot. Personal & Adv. Injury Liquor Liability Each Occurrence · Professional Liability Fire Damage (any one fire) Employees & Officers Med. Expense (any one person) Pollution Liability Asbestos Abatement Lead Paint Abatement Broad Form Vendors Premises Operations Undergro, md Explosion & Collapse Products Completed Operations Corm-actual Independent Contractors Broad Form Property Damage Fire Legal Liability Builder's Risk (Limits based on Project Cost) $1,000,000.00 $1,000,000.00 $1,000,000.00 $1,000,000.00 $ 50,000.00 S 5,000.00 Automobile Liability Any Auto All Owned Autos Scheduled Autos Hired Autos Non-Owned Autos PIP Basic Intermodal Combined Single Limit Bodily Injury (per penon) Bodily Injury (per accident) Propert3t Damage Trailer Interchange $ 500,000.00 to be determined to be determined to be determined $ 50,000.00 Garage Liability Any Auto Garage Keepers Liability Auto Only, Each Accident Other Than Auto Only Each Accident $1,000,000.00 $ 100,000.00 $1,000,000.00 $1,000,000.00 Excess Liability Umbrella Form Each Occurrence Ag~gate to be determined to be determined Worker's Compensation Employers Liability Each Accident Disease, Policy Limit Disease Each Employee Statutory Limits S 100,000.00 S 500,000.00 $ 100,000.00 Other - As Risk Identified to be determined rNSURANCEADVISORYFORM03 R~vised 01/2000 ~g ~.g ~g ~.-, 0 ~ ::0 :::O rn - _ _ ~> ~g ~ ~> o o o o o o ---~ z z .z ~ ~ ~ oo -n -n -n r,,0Z 0 0 0 0 0 m m rn > 0 0 0 itl Z ~ ~ o ~ ~ m~ o o o o m m- mm 81-- ZZ I" zz Z?.I m~ Requested City Commission Meeting Dates [] March 20, 2001 [] ^pdl 3,2OOl [] April 17, 2001 [] May 1, 2001 V-CONSENT AGENDA CITY OF BOYNTON BEACI ITEH B-3. AGENDA ITEM REQUEST FOK ' HA¥-- -2 h5 Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 15, 2001 [] June 5,2001 [] June 19,2001 [] July 3, 2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfmished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Motion to award "PUBLIC WORKS FUEL ISLAND UPGRADES", Bid #046- 2413-01/KR, to Glasgow Equipment Service, Inc. in the amount of $ 67,036.43. EXPLANATION: On April 19, 2001, Procurement Services received and opened four (4) proposals for the bid referenced above. After a careful review and evaluation by the Engineering Department, it has been determined that Glasgow Equipment Service, Inc. of West Palm Beach, Florida is the lowest, most responsive, responsible bidder who meets all specifications. John Guidry, Interim Director of Engineering; Paul Fleming, Senior Project Manager; and Jeff Livergood, Public Works Director concur with this recommendation (see attached Memo #01-062). PROGRAM IMPACT: The purpose of this bid was to seek proposals for fuel island upgrades at the Public Works CompOund. Proposal includes, but is not limited to the purchase of two (2) new dispensers to be installed atop existing fuel islands with containment pans, shear valves, hoses, nozzles, and accessories; reconnection of piping from existing tanks and reconnection of existing electrical. In addition, proposal includes the purchase and installation of a Veeder-Root electronic leak detection sensor system which is the only system compatible to existing fuel dispensing software. FISC~ IMPACT: BUDGET ACCOUNT/NAME Reserve/Fuel Island Improvements 501-5000-590-02-49 Deputy Director of Financial Services BUDGETED AMOUNT ~ignamre Procurement Services Department Name City Attorney / Finance Human Resources cc: John GuichDr, Interim Director of Engineering Paul Fleming, Senior Project Manager Jeff Livergood, Public Works Director File S:~BULLETIN~ORMSkA. GENDA ITEM REQUEST FORM.DOC DEPARTMENT OF ENGINEERING MEMORANDUM NO. 01-062 THRU: FROM: DATE: RECEIVED TO: Bill Atldns A?~ 80 2001 Assistant Finance Director/Purchasing Agent John Guidry (~ Interim Director of Engineering ~ Paul Fleming, Senior Project Manager'O[V[/~ April 27, 2001 RE: Public Works Fuel Island Upgrades The Engineering Departmem has reviewed the bid results provided by Purchasing on the subject project and hereby recommends contract award in accordance with the following: Project Name: Public Works Fuel Island Upgrades Bid Number: 046-2413-01/KR Recommended Contractor: Glasgow Equipment Service,Inc Amount: $67,036.43 Account No: 00r--'25-1"1--5'19':-¢6:1'0 #501-5000-590-02-49 Reserve/Fuel Island Improvements Responsibility of Contractor: Verified by reference check and knowledge of contracior's reputation. Compliance with Drawings and Specifications: Engineering Departmem has reviewed bid data/brochures submitted and checked with the Architect and the bid as submitted is in compliance. In addition a site walk thru has been conducted with Glasgow. Client Office Concurrence: Based upon telephone conversation between Paul Fleming and Jeff Livergood of the Public Works Dept the Client office has confirmed their approval to proceed with this project. If there are any questions please contact Clem Bucher at ext. 6491 CC: Jeff Livergood, Public Works Director RESOLUTION NO. R O1- A RESOLUTION OF THE CrTY COMMISSION OF THE ClTY OF BOYNTON BEACH, FLORIDA, APPROVING THE AWARD OF A BID (NO. 046- 2413-01KR) TO GLASGOW EQUIPMENT SERVICE, INC., FOR THE PUBLIC WORKS FUEL ISLAND UPGRADES, IN THE AMOUNT OF $67,036.43; AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE SAID CONTRACT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Procurement Services received and opened Bids for the above project on April 19, 2001, 'and it was determined that Glasgow Equipment Service, Inc., was the most responsive bidder who met and exceeded all specifications; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida, hereby approves the award of a bid for the Public Works fuel island upgrades in the amount of $67,036.43, to Glasgow Equipment Services, Inc., and authorizing the Mayor and City Clerk to execute a Contract between the parties, a copy of which is attached hereto as Exhibit "A". Section 2. That this Resolution shall become effective immediately. PASSED AND ADOPTED THIS __ day of May, 2001. CITY OF FLORIDA BOYNTON BEACH, Mayor Vice Mayor Commissioner Commissioner ATTEST: City Clerk (Corporate Seal) s:l~.eso\Bid Award\Glasgow PWlslands050701 Commissioner CONTRACT THIS AGREEMENT, made and entered into this day of ., A.D. 20__, by and between the CITY OF BOYNTON BEACH, a municipal corporation of Florida, hereinafter called the "City" and GLASGOW EQUIPMENT SERVICE, INC. a Florida Corporation ( ) a Florida General Partnership ( ) a Florida Limited Parmership ( ) a Sole Proprietor ( ) Check One hereinafter called "CONTRACTOR". WlTNESSETH That under the due procedure of law, bids were heretofore received by the City Commission of said City for the performance of work and supplying materials, hereinafter described, and said Commission having canvassed said bids, had determined that the bid in the total amount of Sixty-seven thousand , thirty-six dollars and forty-three cents submitted by the aforementioned CONTRACTOR was the best and most desirable bid submitted, and has authorized the execution of this contract. NOW, THEREFORE, in consideration of these premises and the mutual conditions and covenants contained herein, the parties agree as follows: 1.0 AGREEMENT 1.1 The CITY does award the contract to and does hire and employ the CONTRACTOR and the CONTRACTOR does accept the award, predicated upon the bid of the CONTRACTOR, dated ., which is hereby incorporated by reference into this agreement, and the CONTRACTOR does agree to furnish the necessary labor, tools, equipment, materials and supplies, etc., and to perform all the work provided in the bid, contract documents, bond documents, plans and specifications for: Bid Title: Bid Number: PUBLIC WORKS FUEL ISLAND UPGRADES 046-2413-01/KR City of Boynton Beach, Florida, all of which are incorporated herein by reference at such unit prices/or lump sum prices as specified in CONTRACTOR'S bid totaling $ 67,036.43. C-1 2.0 SCOPE OF SERVICES 2.1 CONTRACTOR further agrees to furnish all materials, supplies, machines, equipment, tools, superintendents, labor, insurance, and other accessories and services necessary to complete said project in accordance with the conditions and prices as stated in the contract conditions, supplemental general conditions and special conditions of the contract, plans which include all maps, plats, blueprints, and other drawings and printed or written explanatory matter thereof as contained in the bid, contract documents and specifications for the project. 2.2 All the work and labor performed under this contract shall be performed, and all of the material furnished shall be, in strict conformity with said plans and specifications, and CONTRACTOR accepts and consents to the conditions contained in said plans and specifications and expressly agrees to comply with every requirement and stipulation therein contained to be performed by the party contracting to do said work. 2.3 The CONTRACTOR further agrees to furnish all tools, equipment, materials and supplies and to do all the work above mentioned in a first-class, substantial and workmanlike manner, and in conformity with the detail for said work on file in the office of the City Engineer of the City and strictly in accordance with the specifications, general stipulations and plans which are hereby referred to and made a part of this contract, as well as to the satisfaction of the City Commission and City Engineer of the said City, and in strict obedience with the directions which may be given by the City Manager or his authorized representative, at and for the prices herein plainly set forth. 2.4 Upon receipt of written notification from the CITY, to correct any defective or faulty work or materials which may appear within one (1) year after completion of the contract and receipt of final payment. CONTRACTOR shall make the necessary corrections within ten (10) days of receipt of the written notice. 2.5 To comply with the provisions of Section 255.05, Florida Statutes, if applicable: 2.6 To pay promptly, before final settlement, any and all claims or liens incurred in and about this work. Furnish release of liens forms from all subcontractors and suppliers of materials. Forms to be supplied by CITY. 2.7 The CONTRACTOR shall remove and clean up all rubbish, debris, excess material, temporary structures, tools and equipment from streets, alleys, parkways and adjacent property that may have been used or worked on by the CONTRACTOR in connection with the project promptly as such section or portion is completed and ready for use, leaving the same in a neat and presentable condition. C-2 3.0 Payment of monthly or partial estimates may be withheld until this has been done to the satisfaction of the City Engineer. Final acceptance and payment for the entire project will not be made until the site is satisfactory to the CITY. 2.8 The CONTRACTOR shall at all times observe and comply with the provisions of the charter, ordinances, codes and regulations of the City of Boynton Beach, Florida. 2.9 Upon completion of the work, the City Engineer shall satisfy himself, by examination and test, that the work has been fully completed in accordance with the plans, specifications and contract documents. When the City Engineer is so satisfied, he shall recommend acceptance thereof to the City Manager, who shall, if he agrees with such recommendation, present the final payment application to City Commission for review and vote to formally accept the project. The right of general supervision of the CITY as hereinafter provided under "authority of the engineer" shall not make the CONTRACTOR an agent or employee of the CITY, but the CONTRACTOR, shall at all times, and in all respects have the rights and liabilities of an independent contractor. 2.10 After the cleaning up of the work, premises, streets, alleys, manholes, catch basins, or other areas of structure in anyway connected with the performance of the contract, the work as a whole shall be inspected by the City Engineer, and any workmanship or material found not meeting the requirements of the specifications shall be removed by or at the expense of the CONTRACTOR and good and satisfactory workmanship or material substituted therefor. All settlement, defects or damage upon any part of the work shall be remedied and made good by the CONTRACTOR. 2.11 The CONTRACTOR will be held responsible for the care, protection and condition of all work until final completion and acceptance thereof, and will be required to make good at his own cost any damage or injury occurring from any cause. COMMENCEMENT OF WORK 3.1 CONTRACTOR hereby agrees to commence work under this contract on or before a date to be specified in the written "Notice to Proceed" of the CITY and to fully complete the project within 120 days following the commencement date as specified in same. C-3 4.0 5.0 3.2 Time is the essence of the contract. In the event the CONTRACTOR shall fail in the performance of the work specified and required to be performed within the time limit set forth in the contract, after due allowance for any extension or extensions of time made in accordance with herein before set forth, the CONTRACTOR shall be liable to the CITY, as liquidated damages and not as penalty, in the amount stipulated therefore in the special conditions or in other documents for each and every calendar day that the CONTRACTOR shall be in default of completion. The CITY shall have the right to deduct said liquidated damages from any amount due, or that may become due the CONTRACTOR, or to collect such liquidated damages from the CONTRACTOR or his Surety. 3.3 CONTRACTOR shall, as soon as practicable, after signature of contract, notify City Engineer in writing of names of subcontractors proposed for principal parts of work, and for such others as City Engineer may direct, and shall not employ an that architect may, within a reasonable time, object to as incompetent or as unfit. LIQUIDATED DAMAGES 4.1 The CONTRACTOR further agrees to pay $250.00 per day as liquidated damages, for failure to begin within ten (10) days of "Notice to Proceed" or failure to complete the work within 120 calendar days from the commencement date to be indicated in the written ''Notice to Proceed". PROTECTION OF EXISTING FACILITIES 5.1 The CONTRACTOR warrants that prices include the protection and continuous use of all existing sewers, conduits, drains, pipes, buildings, walks, bridges, guard rails and other construction encountered, and the prompt repairing of any damage done to them during the progress of the work, or from insufficient support thereafter; also all the filling, backfilling, tamping, ramming, puddling and consolidating; the removal and disposal of all rubbish and surplus material; also all pumping bailing draining or unwatering of all excavations, incidental to the execution of the work; also the furnishing of all necessary labor, tools, equipment, materials and supplies, etc. and the performance of the whole work mentioned in the detailed plans and specifications necessary to give a finished result, and including all expense incurred in or in consequence of the suspension or discontinuance of the said work specified and a faithful compliance with each and every one of the requirements of the contract and for the maintenance of the entire work and construction in good condition and repair until final acceptance. C-4 5.2 The CONTRACTOR shall assume full responsibility and expense for the protection of all public and private property, structures, water mains, sewers, utilities, etc., both above and below ground, at or near the site or sites of the work being performed under the contract, or which are in any manner affected by the prosecution of the work or the transportation of men and materials in connection therewith. The CONTRACTOR shall give reasonable written notice in advance to the department of the CITY having charge of any property or utilities owned by the CITY and to other owner or owners of public or private property or utilities when they shall be affected by the work to be performed under the contract, and shall make all necessary arrangements with such department, departments, owner or owners for the removal and replacement or protection of such property or utilities. 6.0 INDEMNIFICATION 6.1 The CONTRACTOR shall indemnify and save harmless and defend the CITY, its agents, servants, and employees from and against any claim, demand, or cause of action ofwhatsoever kind or nature arising out of error, omission or negligent act of CONTRACTOR, its agents, servants, or employees in the performance of services under this Agreement. 6.2 CONTRACTOR shall indemnify and save harmless and defend CITY, its agents, servants and employees from against any kind and all causes, claims, demands, actions, losses, liabilities, settlements, judgments, damages, costs, expenses, and fees (including without limitation reasonable attorney's and appellate attorney's fees) of whatsoever kind or nature for damages to persons or property caused in whole or in part by any act, omission, or default of the CITY, its agents, servants or employees arising from this contract or its performance. The CONTRACTOR and the CITY hereby agree and covenant that the CONTRACTOR has incorporated in this original bid, which constitutes the contract sum payable by the CITY to the CONTRACTOR, specific additional consideration sufficient to support this obligation of indemnification provided for in this paragraph. It is the CITY'S and CONTRACTOR'S full intention that this provision shall be enforceable and said provision shall be in compliance with Florida Statute 725.06. 6.3 The execution of this Agreement by the CONTRACTOR shall obligate CONTRACTOR to comply with the foregoing indemnification provision, as well as the insurance provisions which are set forth in Attachment "A" herein. However, the indemnification provision, and the insurance provision contained in this Contract are not interdependent of each other, each one is separate and distinct from the other. 6.4 The obligation of the CONTRACTOR to indemnify the CITY is not subject to any offset, limitation or defense as a result of any insurance proceeds available to either the CITY or the CONTRACTOR. C-5 7.0 8.0 PAYMENT BY CITY 7.1 The CITY agrees to pay the CONTRACTOR in current funds for the performance of the contract, subject to additions and deductions as provided in the specifications. CHANGES IN THE WORK 8.1 The CITY, without invalidating the Contract, may order extra work or make changes by altering, adding to or deducting from the work, the Contract sum being adjusted accordingly. All such work shall be executed under the conditions of the original Contract. Any claim for extension of time caused thereby shall be made in writing at the time such change is ordered. 8.2 All change orders and adjustments shall be in writing and approved by the City Manager or City Commission if required, otherwise, no claim for extras will be allowed. 8.3 The General Contractor and all of his subcontractors shall be apprised of, and familiar with, the following conditions and procedures governing extra' work under the Contract: 8.3.1 Any change order has to be recommended by the City Manager and officially approved by the City Commission before any steps are taken to implement the change order. 8.3.2 Should the CONTRACTOR or any of his subcontractors commence with the work without making a claim in writing for unforeseen extra work he encounters, it will be construed as an acceptance and agreement by him that any such work is required under the contract and no future claim for extras will be considered or allowed by the CITY. 8.3.3 No claim for extra work will be allowed unless and until authority for same by written Change Order has been obtained from the City Manager or the City Commission of Boynton Beach, if necessary, which authorization will be signed by the Mayor. 8.3.4 Changes in the work directed in writing by the CITY'S Representative under the following procedures shall become a part of the Contract by a written Change Order. 8.3.5 ' Information regarding changes in the work involving claims to the CITY for additional work, credits, and/or adjustments under the contract shall be promptly transmitted in writing by the General CONTRACTOR to the CITY'S Representative with full explanations and justifications for his consideration in preparing a Change order to the Contract. c-6 8.4 The value of any change ordered under the Contract for extra work and/or any reductions in work required, shall be determined under one or more of the following procedures before a written Change Order is issued: 8.4.1 By such applicable unit prices, if any, as are set forth in the Contract except in those cases where increases in quantities exceed fifteen (15) percent of the original bid quantity and the total dollar change of that bid item is significant in the opinion of the Engineer, the unit price shall be subject to review to determine ifa new unit price should be negotiated; or 8.4.2 If no such unit prices are set forth, then by a lump sum or other unit prices mutually agreed upon by the CITY and the CONTRACTOR; or 8.4.3 By cost reimbursement, which is the actual cost for labor, direct overhead, materials, supplies, equipment and other services necessary to complete the work plus fifteen (15) percent to cover the cost of general overhead and profit. For all labor and foreman in direct charge of the authorized operations, the CONTRACTOR shall receive the current local rate of wages to be agreed upon in writing before starting such work, for each hour said labor and foreman are actually engaged thereon. An upper limit of total cost and of profit shall be agreed upon and shall not be exceeded unless approved by the CITY. 8.4.3.1 The CONTRACTOR shall submit sufficient cost and pricing data to enable the Engineer to determine the necessity and reasonableness of costs and amounts proposed and the allowability and eligibility of costs proposed. 8.4.3.2 The CONTRACTOR shall have an accounting system which accounts for such costs in accordance with generally accepted accounting principles. This system shall provide for the identification, accumulation and segregation of allowable and unallowable Change Order costs. 8.4.3.3 Where it is indicated that the Contract is Federally or State assisted, the CONTRACTOR'S attention is directed to the applicable rules and regulations relative to cost principles which must be used for the determination and allowability of costs under grant. 8.4.3.4 In no case shall fringe benefit costs on direct labor costs exceed forty (40) percent of direct labor costs. C-7 9.0 8.5 8.4.3.5 In no case shall the CONTRACTOR and Subcontractors' general overhead and profit in the aggregate exceed fifteen (15) percent of the total cost of direct labor, fringe benefits, direct overhead, materials, supplies, equipment and directly related services supplied by him. Among the items considered as general overhead are bonds, insurance, incidental job burdens, supervision and general office expenses. 8.4.3.6 In no case shall the CONTRACTOR'S cost for administering subcontracts exceed five (5) percent of the subcontractors' cost not including subcontractors' profit. 8.4.3.7 For special equipment and machinery such as power driven pumps, concrete mixers, trucks, and tractors, or other equipment, required for the economical performance of the authorized 'work, the CONTRACTOR shall receive payment based on the agreed rental price for each item of equipment and the actual time of its use on the work provided that the rental price shall not exceed the current rates published by the Equipment Guide Book Company in the Blue Book, "Rental Rates for Construction Equipment". Rate shall be daily, weekly or monthly as appropriate. 8.4.3.8 Records of extra work done shall be reviewed at the end of each day by the CONTRACTOR and the Engineer. Such daily records shall clearly distinguish between the work done under the contract and that done under the Change Order. Duplicate copies of the accepted daily records shall be made, signed by the CONTRACTOR and the Engineer and one copy retained by each. Claim of payment for extra work shall be submitted by the CONTRACTOR upon certified statement supported by receipted bills. Such statements shall be submitted for the current contract payment for the month in which the work was done. No claim for extra work shall be allowed unless that same was ordered, in writing, as aforesaid and the claim presented at the time of the first estimate after the work is completed. PROJECT ENGINEER 9.1 The project engineer shall be Paul Fleming, Senior Pro|ect Manager. 9.2 The Engineer shall have general supervision and direction of the work. The Engineer is the agent of the CITY only to the extent provided in the contract documents and when in special instances he has the authority by CITY to act, and in such instances he shall, upon request, show CONTRACTOR written authority. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the contract. c-8 10.0 11.0 9.3 As the Engineer is, in the first instance, the interpreter of the conditions of the contract and the judge of its performance, he shall side neither with CITY nor with CONTRACTOR, but shall use his power under the contract to enforce its faithful performance by both. INSURANCE 10:1 The CONTRACTOR shall maintain during the term of this contract commercial liability, motor vehicle, and property damage insurance, acceptable to the CITY, covering the work contracted and all operations connected herewith, and whenever any of the work in the contract is to be sublet, CONTRACTOR'S contingent or protective liability and property damage insurance. Such insurance shall provide limits not less than those set forth on the insurance requirement schedule attached as Attachment "A". 10.2 Required insurance shall be documented in a certificate of insurance which provides that the CITY of Boynton Beach shall be notified at least fifteen (15) days in advance of cancellation, nonrenewal or adverse change. Contractor agrees to furnish policies if Certificate of Insurance is not acceptable. 10.3 The CONTRACTOR shall take all necessary precautions to prevent the generation of loud, unnecessary noise in conjunction with his operations at the work site. Internal combustion engines used with construction equipment shall be equipped with mufflers, as required by the Code of the City of Boynton BeaCh, and the CONTRACTOR shall comply with all requirements of this Code as they pertain to prevention of noise. No pile driver, excavating or other construction equipment, pneumatic hammer, derrick, the use of which is attend by loud or unusual noise, shall be operated between the hours of 6:00 P.M. and 7:00 A.M., except by written permission of the City Manager, and then only in case of emergency. GUAR,aANTEE AND WARRANTIES 11.1 All the work shall be guaranteed to remain in good condition for one year from date of acceptance. c-9 12.0 TERMINATION OF CONTRACT 12.1 If the work to be performed under the contract is assigned by the CONTRACTOR other than provided for herein; if the CONTRACTOR should be adjudged as bankrupt; if a general assignment of his assets be made for the benefit of his creditors; if a receiver should be appointed for the CONTRACTOR or any of his property; if at any time the Engineer shall certify in writing to the City Manager that the performance of the work under the contract is being unnecessarily delayed or that the CONTRACTOR is willfully violating any of the conditions, provisions, or covenants of the contract, plans or specifications, or that he is executing the same in bad faith or otherwise not in accordance with the terms of the contract; if the work be not fully completed within the time named for its completion or within the time to which such completion date may be extended; or if other just causes exist, the City Manager may serve ten (10) days' written notice upon the CONTRACTOR of the intent to terminate the contract for the CITY and if the CONTRACTOR shall not, prior to the effective date of termination set forth in such notice, take such measures as will, in the judgment of the City Manager, ensure the satisfactory performance of the work, the City Commission and the City Manager may declare the contract terminated on the effective date specified in such notice, or any date subsequent thereto. In the event of such termination, the City Manager shall notify the CONTRACTOR and Surety and the CONTRACTOR shall immediately respect such notice and stop work and cease to have any right to the possession of the ground and shall forfeit his contract. Upon such termination, the City Manager shall provide the Surety with written notice of the CITY'S action and the Surety shall within ten (10) days of receipt of said notice remedy the default or the Surety shall as expeditiously as possible: 12.1.1 Complete the contract in accordance with its terms and conditions, or 12.1.2 Obtain a bid or bids for completing the contract in accordance with its terms and conditions, and upon determination by Surety and the CITY of the lowest responsible bidder, make available as work progresses (even though there should be a default or a succession of defaults under the contract or contracts or completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the contract price", as used in this paragraph, shall mean the total amount payable by CITY to CONTRACTOR under the contract and any amendments thereto, less the amount properly paid by CITY to CONTRACTOR. C-10 13.0 CONTRACT CONTROLS 13.1 The subject contract between the CITY and the CONTRACTOR shall supersede any and all documents executed between the parties relative to the project. In the event of any inconsistencies, the terms, provisions and conditions set forth in the subject contract shall supersede all other documents and shall be controlling. 14.0 TIME OF ESSENCE 14.1 Inasmuch as the provisions hereof, and of the plans and specifications herein, and of all the other contract documents relating to the times of performance and completion of the work are for the purpose of enabling the CITY to complete the constmction of a public improvement in accordance with a predetermined program, all such time limits are of the essence of the contract. 15.0 REMEDY FOR DELAY 15.1 In the event of any delay in the project caused by any act or omission of the CITY, its agents or employees, by the act or omission of any other party, or delay caused by weather conditions or unavailability of materials, the sole remedy available to CONTRACTOR shall be by extension of the time allocated to complete the project. No monetary damages shall be claimed or awarded to CONTRACTOR in association with any delay in the project caused by an act or omission of the CITY, its agents or employees. 15.2 Failure on the part of CONTRACTOR to timely process a request for an extension of time to complete the work shall constitute a waiver by CONTRACTOR and CONTRACTOR shall be held responsible for completing the work within the time allocated by this contract. 15.3 All requests for extension of time to complete the work shall be made in accordance with the General and Special Conditions.. 15.4 For the purpose of this section the phrase "the CITY, its agents and employees" shall include but shall not be limited to the architect, project manager and consulting engineers. C-11 IN WITNESS WHEREOF, the CITY has caused these presents to be signed by its Mayor, attested by the City Clerk with the Corporate Seal of the said CITY and the CONTRACTOR has executed these presence the day and year herein before written. Signed, sealed and wimessed in the presence of: CITY OF BOYNTON BEACH, FLORIDA Mayor Attest: Approved as to Form: City Clerk City Attorney Signed, sealed and wimessed in the presence of: Contractor President or the Vice President Attest as to Contractor C-12 State of Florida County of Palm Beach ) ) SS; On this __ day of ., 20 , personally appeared before me duly authorized to administer oaths to me known to be the persons described herein and who executed the foregoing instrument and have acknowledged before me and they have executed same. Notary Public My Commission Expires: 11/15/96 nc C-13 ATTACHMENT A City of Boynton Beach Risk Management Division Ii'qSURANCE ADVISORY FORM Under the terms and conditions of all contracts, leases, and agreements, the City requires appropriate coverages listing the City of Boynton Beacli as Additional Insured. This is done by providing a Certificate of Insurance listing the City as "Certificat~ Holder" and "The City of Boynton Beach is Additional Insured as respect to liability." Insurance companies providing insurance coverages must have a ~arrent rating by A.M. Best Co. of"B+" or higher. (NOTE: ~In insurance contract or binder may be accepted as proof of insurance if Cern'ficate is provided upon selecrwn of vendor.) The following is a list of types of imtuance required of contractors, lessees, etc., and the limits required by the City: (NOTE: This list is not all inclusive, and the City reserves the right to require additional types of insursnee, or to raise or lower the stated limits, based upon identified risk.) TYPE (Occurrence Based Only) General Liability Commercial General Liability Owners & Conwactofs Prot. Liquor Liability · Professional Liability Employees & Officers Pollution Liability Asbesws Abatement Lead Paint Abatement Broad Form Vendors Undm~round Explosion & Collapse Products Completed Operations Conwacmal Independent Conwactors Broad Form Property Damage F/re Legal Liability Builder's Risk (Limits based on Pmjec~ CosO MINIMUM LI3~FrS REOUTRED ..General Aggregate Produm-Comp/Op AgS. Personal & Adv. Injury Each Occun'ence Fire Damage (any one fire) Med. Exlnnse (any on~ Ire'son) $1,000,000.00 $1,0O0,000.00 $1,000,0O0.00 $1,000,0O0.0O $ 50,000.00 S 5,000.00 Automobile Liability Any Auto Ail Owned Autos Scheduled Autos Hired Autos Non-Owned Autos PIP Basic Intermodal Combined Singla Limit Sedily In~'y (per ~n) B~y ~j~ ~ ~i~) ~ D~ge T~ to be determined to be determined tO b~ determined $ 50,00O.00 Garage Liability Any Auto Garage Keepen Liability Auto Only, Each Accident Other Than Auto Only Each Accident $1,000,000.00 $ 10O,000.0O $1,000,000.00 $1,0O0,000.00 Excess Liability Umbrella Form E~h Occurlzn~ Ai,~x~gate to be determined to be determined Worker's Compensation Employers Liability Each Accident Disees~, Policy Limit Disea~ Each Employee Statutory Limits $ 100,0O0.0O $ 500,000.00 $ 10O,00O.00 Other - As Risk Identified to be determined -. [NSURANCEADVISORYI:O RM03 R~vis~d 01/2000 > ~ z ~ ~ ~'~ ~ ~ o ~ ~ +o = ~ z~ m~~ ~ ~ 0 - m ~ ~ m om o ~ m © m ~ m m ~ ~ ~ m m z ~ ~ m Z ~ < ~ m z zz ~×~ ~ _~ o · ~ ~ 0~ ~ 0 ~ ~ ~ ~ ~ ~ z > ~ m ~ ~ o ~ m m m ~"-~o ~ m m Em m o m ~ 0 ~ ~ ~ ~ 0 c ~ m~ ~ ° 0 m 0 ' ~ ~= o ~o o o ~ ~o ~ c ~ 0 z ~ z Oz 0 ~ O~ ~ z 0 ~ m Requested City Commission Meeting Dates V-CONSENT AGENDA 'TEM B-4 CITY OF BOYNTON AGENDA ITEM REQUESIC ) OI PR30 AHII:21 Date Final Form Must be Turned in to City Clerk's Office Requested City Commission Meeting Dates Date Final Form Must be Turned in to City Clerk's Office [] MarCh 20, 2001 March 7, 2001 (5:00 p.m.) [] May 15, 2001 May 2, 2001 (5:00 p.m.) [] April 3, 2001 March 21, 2001 (5:00 p.m.) [] June 5, 2001 May 16, 2001 (5:00 p.m.) [] April 17,2001 April4,2001 (5:00p.m.) [] June 19,2001 June6,2001 (5:00p.m.) [] May 1,2001 April 18,2001 (5:00p.m.) [] July3,2001 June20,2001 (5:00p.m.) [] Administrative [] Development Plans NATURE OF [] Consent Agenda [] New Business AGENDA ITEM [] Public Heating [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Motion to award "CO-OP BULK QUICKLIME", Bid #052-2821-01/KR, to Dravo Lime Inc., Longview Operation, Alabama, in the amount of $ 1,407,000.00 with an estimated annual expenditure of $126,000.00 for the City of Boynton Beach Utility Department. The City of Boynton Beach is the lead entity for this Palm Beach County Cooperative Purchasing bid. The total cooperative bid is $1,407,000.00. CONTRACT PERIOD: MAY 16, 2001 TO MAY 15, 2002 EXPLANATION: On April 18, 2001, Procurement Services received and opened three (3) sealed proposals for the bid mentioned above. Dravo Lime Inc., Longview Operation, Alabama was the lowest, most responsive, responsible bidder Who meets all specifications. Dependent upon rainfall, restrictions, and other factors, we anticipate a usage of approximately 1200 tons per year. Dravo has previously supplied lime in a satisfactory manner to the City. Bob Kenyon, Deputy Utilities Director, concurs with this recommendation (see attached Memo #01-095). PROGRAM IMPACT: The purpose of tliis bid is to secure a source to provide the best quality Bulk Quicklime available at the most economical price and deliver to various government entities who have elected to participate in the Cooperative Bid. Bulk quicklime is used by the East Water Treatment Plant to precipitate calcium carbonate from the water. FISCAL IMPACT: BUDGET ACCOUNT PROCESS Cl~MICALS g401-2821-536-5235 Deputy Director of Financial Services ESTIMATED ANNUAL EXPENDITURAE $126'°°°'°°,~_ ~L,.I City Manager's Signature Procurement Services Department Name City Attorney / Finance / Human Resources cc: John Guidry, Utilities Director Bob Kenyon, Deputy Utilities Director Barb Conboy, Administrative Coordinator File TO: FROM: MEMORANDUM Utilities #01-095 Bill Atkins, Procurement Services Bob Kenyon,~6~/~~ Deputy Utili~iesl>l~irect{5] I CE D DATE: April 23, 2001 SUBJECT: Co-Op Bulk Quicklime - Bid #052-2821-01/KR Bulk quicklime is used at the East Water Treatment Plant as a process chemical primarily to precipitate calcium carbonate. I have reviewed.the bids for bulk quicklime and recommend award to Dravo Lime, Inc. of Longview, AL. Dravo is the lowest priced bidder and has previously supplied lime in a satisfactory manner to the City. The Bid price is $105.00 per ton which is $1.61 higher that last year's price. Dependent upon rainfall, restrictions, and other factors, we anticipate a usage of approximately 1200 tons per year x $105.00 per ton delivered for a total of $126,000.00. Funds are available in account #401-2811-536-52.35, Process chemicals, for this necessary process chemical. Please present this to the Commission for their approval of this bid with Dravo Lime, Inc., with an estimated annual expenditure of up to $ 126,000.00. /gb XC: John A. Ouidry John Reynolds Barb Conboy ~,C~, ~,Cg, ~,0, 0 r'-,-.~, 0 ~,~, 0 r-,--., 0 '"0 0 .. :~,, ~,, ~,,, ~ - . , , , J , , 0 . -- , , j m , , , , c/~ rtl .. _ ,, ,,~ ~ ,,~ ~ ' ' m , ~ rrl J ' J j '0 : : J J 0 J J m~ j J Z " " _ m~ j j : : , -.. J J j J ~i I I : . --~ , I o I I o I , : : o I o Il, : : o j j J j , J j 0 ':' I I I I I l ' ,: ,: I j I I 'l l . it il · , . ... z ~- b m~ .... : : , I I I I -- , , ~,,, , i~! i ~' ' ~.,~.--~ " " '""' " ,'~,~.1 C~ t'~ 0 -" ' ' ' J ,' ,' : ' ' ' ' J ~ ' '" c~ . , , j , CtJ . . , , j ~ . . , , , J Oc~ . . , , , J ' J , . , , ; , j j Z~ . . , , J . . , , , ~ J , J .... ~ ~i~ ' ' I I I I I : : I i I , , , , . · J"rJ ' ' J ~ '* Irt :: il :~ :i ,o,~> x'~ '' : i I ' I ~ °-"C ::': i'i :i i: , I I I I ~ ca : : , , .-,Z rn '~,CO,~ CO, ,,.,, 0 0 ' 0 · ~..o . ,~,~ ,~,~; ., ,~ · .,~,o ~i- ~ m , , , , ITl m ,' .' ,' ,' J J ,' ,' Z . . , , , j J i ; . , , j , , ~ ' ' ' i J J 0 : . , , j J J . . , , , , j ~. j J , , . .: ,, , ,, , ~ ~ :~ , , j J J J : : , J ' I J J '~'~ Z.-~al:l-- : : J i j , j j m'-0 0 :: ,, , ~ ,, ': ii '' it$~ '- .. iii ,, : .r- ,' ,'1-- I Ir- . :rn o , ,In I IlTI .... -t ~ C'J ~!'.._~. --! "~'~" "~' ' "~' ---~, · , I~..~1 · I'~1 · i° i o..~: .... ~ ol'~l-':' oI-~1.~ ,..,,-"~'.,~, ,- 0 , ,Z , ,Z J ,Z rtl : ::' '~ , , , , , , , ,~K , ,~K , ,~K .. ,, ,, ,,~-~ . . , , j J J :11:0 0 ~!~:-5c-2~ · -- '- 9 z - ~- c~ ~z~ ~ ~z ~ m~ 0 ~ m c 00 X m ~ m ~ 0 ~ 0 0 ~ 0 m m~ m m m z 0 0 m ~ z ~ ~ ~ .mo ~ ~ ~¢ 0~ ~ ~ Z m~ ~ ~ ~ 0 ~ ~ ~,~ - m m ~ z W m m o ' ~ 0 ~ m ~ ~ m Z Z m m ~ z m m m ~ m~ m m m 0 m ~ ~ ~ ~ 0 m z ~oo ~ ~mm zz Requested City Commission Meeting Dates [] March 20, 2001 [] April 3, 2001 [] April 17,2001 [] Mayl,2001 V-CONSENT AGENDA CITY OF BOYNTON BEACH ITEM C.1. AGENDA ITEM REQUEST FOR_._ Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 15,2001 [] June 5, 2001 [] June 19, 2001 [] July 3, 2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearmg [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Approve service maintenance agreement with Medtronic PhysioControl for repair and maintenance of our Fire Rescue Cardiac Monitors. EXPLANATION: This agreement is for year one of a five-year maintenance agreement to provide routine maintenance and repairs of our paramedic cardiac monitors. The agreement also includes routine preventative maintenance. The contract covers a multitude of repairs of which any one single repair could result in an expense over and above the contract amount. PROGRAM IMPACT: This contract will save the city money in the long run and will provide routine preventative maintenance which is critical to reducing our medical liability. FISCAL IMPACT: $7,451.29 per year over a five year contract. Subsequent payments subject to yearly commission approVal. ALTERNATIVES: Pay for fl~outine maintenance and repairs on a Department Head's S~'gnatUre'- ' -~ City Manager's Signature Depatiment Name / City Attom4J//Fi~nce / Human Resources S:~BULLETIN~ORMSkAGENDA ITEM REQUEST FORM.DOC RESOLUTION R 01- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE A FIVE (5) YEAR SERVICE AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH, FLORIDA AND MEDTRONIC PHYSIO-CONTROL CORPORATION FOR THE REPAIR AND PREVENTATIVE MAINTENANCE OF SlX (6) LIFE PACK 12 MONITOR DEFIBRILLATORS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Boynton Beach, Florida, upon recommendation of staff, desires to enter into a service agreement with Medtronic 15hysio-Control Corporation, for a five year period at a fixed amount, subject to yearly budget appropriations; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida does hereby authorize and direct the Mayor and City Clerk to execute the Service Agreement between the City of Boynton Beach, Florida and Medtronic Physio-Control Corporation, a copy of said Agreement being attached hereto as Exhibit "A". Section 2. This Resolution will become effective immediately upon passage. PASSED AND ADOPTED this day of May, 2001. CITY OF BOyNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner ATTEST: City Clerk (Corporate Seal) Commissioner S:ca/resolagreements/BBFO\Medtronic Physio-Control Medtronic Physio-Control Co TECHNICAL SERVICE SUPPORT AGREEMENT Contract Number: PHYSIO-CONTROL End User # 03593602 CITY OF BOYNTON BEACH PUBLIC WORKS COMPLEX 222 NE 9TH AVE BOYNTON BEACH, FL 33435 Bill To # 03593601 CITY OF BOYNTON BEACH 100 E BOYNTON BEACH BLVD POBOX 310 BOYNTON BEACH, FL 33435 This Technical Service Support Agreement begins on 4/1/01 and exgnres on 3/31/06. The designated Covered Equipment and/or Software is listed on Schedule A. This Technical Service Support Agreement ~s subject to the Terms and Conditions on the reverse side of this document and any Schedule B, ff attached. If any Data Management Support and Upgrade Service is included on Schedule A then this Technical Service Support Agreemem is also subject to Medtromc Physio-Control Corp.'s Data Management Support and Upgrade Service Terms and Conditions, rev 7/99-1. Price of coverage specified on Schedule A is $37,256.47 per term, payable in Annual installments. S ecial Terms PRICE INCLUDES TWO LP12 LIMITED CASE CHANGES SERVICE AGREEMENT PAYABLE IN 5 ANNUAL INSTALMENTS OF 7,451.29 SUBJECT TO YEARLY COMMMISSION BUGET APPROPRIATIONS APPROVAL. Accepted: MEDTRONIC PHYSIOq2ONTROL CORP, Title: ~ ~ L , ~ _Suc 77 cl4 Date: o 2 ~ _4 o t Customer: ~y: Print: Title: Date: Purchase Order Number: Temtory Rep: DARREN LOGOZZO Phone: 800442-1142 X2743 FAX: 800-772-3340 Customer Contact: CHIEF JIM NESS Phone: 561-742-6333 FAX: 561-742-6334 Reference Number: S63-1097 Renewal 3/13/01 MEDTRONIC PHYSIO-CONTROL CORP. TECHNICAL SERVICE SUPPORT AGREEMENT SCHEDULE B LIFEPAK® 12 DEFIBRILLATOR/MONITOR · Battery Support System included when listed on equipment inventory (Schedule A). · ,Battery Support System 2 included when listed on equipment inventory (Schedule A). · AC Power Adapter included when listed on equipment inventory (Schedule A). · DC Power Adapter included when listed on equipment inventory (Schedule A). · Defibrillator paddle repairs are included (excludes internal, sterilizablc and pediatric paddles). · Communications and Patient cables are excluded. · PCMCIA Modems are excluded. · Therapy cables are exclude& · SpO2 Sensors are excluded. · Case Changes are excluded~ · Discount of 17% from the field installed list price for any current and/or future available LIFEPAK® 12 upgrade is included when installed by Medtromc Physio-Control Technical Services. · Discount of 17% from list price for any Medtromc Physio-Control® Data Management product is mcludex[ Medtromc Physio-Control Fastpak~, Fastpak 2, Lifepak SLA and Lifepak NiCd Battery Customer retains the responsibility to perform the battery maintenance and evaluation procedures outlined in the operating instruct/on manual and to replace batteries that do not pass the conditions outlined under "Discarding/ Recycling Batteries." Batteries failing to meet battery performance tests should be removed from service and properly discarded (recycled). If customer provides evidence that a Medtromc Physio-Control Battery Pak fails to meet the performance tests noted above and/or the Battery Pak age exceeds 2 years, Medlxomc Physio-Control shall replace said Medtronic Physio-Control Battery Pak (like for like) i.e. FASTPAK for FASTPAK, FASTPAK2 for FASTPAK2, LIFEPAK SLA for LIFEPAK SLA, or LIFEPAK NiCd for LIFEPAK NiCd, up to a maximum of 4 Medtronic Physio-Control Battery Paks evc~'y two years (including prior Support Plan periode) per LIFEPAK® 12 defibrillator/monitor (listed on Sehedule A). To assist in proof recycling and removal of low capacity batteries, replaced Battery Paks become the property of Medtromc Physio-Control and must be returned at the time of exchange. Lifepak-~ 12 Software Updates · ff combined Rep~ and Inspection services are designated on the Technical Service Support Agreement inventory for Lffepak 12 units, at the customer's request, a Medtromc Physio-Control Technical Services Representative will install Lffepak 12 software updates at no additional charge provided it is installed at the time of a regularly scheduled inspection. In addition during the term of this agreement, where an assembly such as a printed circuit board must be replaced in order to install the new software, these assemblies may be purchased by the customer at a 75% discount off the current list price of a new assembly. Software updates requested to be installed at a time other th~n the regularly scheduled inspection will be billed at $205 per unit per software update. The cost of the software update will be billed on a separate invoice. · ff Repair-Only services are desiLynated on the Service Order inventory for Lifepak 12 units, at the customer's request a Medtromc Physio-Control Technical Services Representative will install a Lffepak 12 software update at a discounted price of $205 per unit per software update. In addition during the term of this agreement, where an assembly such as a printed circuit board must be replaced in order to install the new software, these assemblies may be purchased by the customer at a 50% discount off the current list price of a new assembly. The cost of the software update will be billed on a separate invoice. Schedule B Page 1 04/27/2001 10:25 FAX .... ~002 ~cjwe, Nicholas SUb]ec~ Ness, Jim review of Service Contract w~th Physio c, ontmi ! I~ave reviewed the above contracts and would recommend that the following words be inserted into 04/27/2001 10:24 FAX ~001 pHYSIO-CONTROL Medtronic Physio-Control Corp. ~i8~ Willows Road NE P. O. Box 97o48 Redmond, WA 98073-9748 USA www.physiocontrol.com www.medtronic.corn FX: 425,867'4537 DATE: TELECOPY TR~NSMI'I'I'AL MESSAGE/COMMENTS:, PAGE 1 OF , IF YOU DO NOT I{£CEIVE ALL PAGES, PLEASE CALL AS SOON AS POSSlBL~ When Life Depends' on Medical Techn.olog'r' CITY OF BOYNTON BEAC ITEM ¢.2 AGENDA ITEM REQUEST FC k~ty Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be TUmed Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Offide [] M rch20,2001 [] A ril 3, 2001 [] A :il 17, 2001 [] MSy 1,2001 March 7, 2001 (5:00 p.m.) [] March 21, 2001 (5:00 p.m.) [] April 4, 200l (5:00 p.m.) [] April 18, 2001 (5:00 p.m.) [] May l5,2001 June 5,2001 June 19, 2001 July 3,2001 May2,2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6,2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) [] Administrative [] Development Plans NACRE OF [] Consent Agenda [] New Business AGE~DA ITEM [] Public Hearing [] Legal [] Bids [] Unfmished BUsiness ' [] Announcement [] Presentation [] City Manager's Report RECC VIMENDATION: Motior~ to approve a Resolution authorizing execution of a Purchase and Sale Agreement between the !City of Boynton Beach and Fle rida East Coast Railway (F.E.C.) for Lots 8 & 9. EXPL redeve pRoG FISC3 ALTE] d~IATION: It is the recommendation of staff that we acquire the parcel for city owned surface parking in the ~pment district. IMPACT: n/a L IMPACT: n/a NATIVES: Find alternate surface parking for the redevelopment district.) . Departmd//t Head s Signature ~ty Manager s ~igflamre Department Name City Atto(/n(~ff/Finance / Human Resources S:~BULI3ETIN'xFORMSX, AGENDA ITEM REQUEST FORM.DOC RESOLUTION NO. R01- J A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE A CONTRACT FOR PURCHASE AND SALE OF REAL PROPERTY BETWEEN THE CITY OF BOYNTON BEACH AND FLORIDA EAST COAST RAILWAY, L.L.C. (F.E.C.); AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Commission, upon recommendation of staff, has :leemed it to be in the best interests of the citizens and residents of the City to enter into a Contract for Purchase and Sale of Real Property between the City of Boynton Beach and F.E.C. Railway, L.L.C. for the purpose of city owned surface parking; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida does hereby authorize and direct the Mayor and City Clerk to execute a Contract for Purchase and Sale of Real Property between the City of Boynton Beach and F.E.C. Railway, L.L.C., for the real property more particularly described in said Agreement as Exhibit "A", which Agreement is attached hereto. Section2. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this day of May, 2001. CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner City Clerk (Corporate Seal) s:ca\Reso\ Purchse & Sale Agr- FEC Railway Florida East Coast RAILWAY, L.L.C. M. O. "Mike" Bagley Director Industrial Development & Real Estate April 25, 2001 File: 312-19-2 Mr. Jim Cherof Josias, Goren, Cherof, Doody & Ezrol, P.A. 3099 E. Commercial Blvd., #200 Ft. Lauderdale, FL 33308 Dear Mi'. Chemf: Attached are duplicate originals of Contract for Sale and Purchase between the Railway and City of Boynton Beach. The contracts were executed by the Railway on April 24, 2001 and provide twenty (20) days for Purchaser's execution and deposit of earnest money. Please handle for execution by the City dating contracts date of City's execution. Please return one original executed contract along with proof of deposit. As information we made two changes to the contract. Paragraph 7 changed "45" days to "30" to coincide with time period specified in paragraph 24. The word "and" in the last line of paragraph 9 changed to "as". I trust you will find the changes acceptable. Sincerely, M.O. Bagley. tor Industrial Development & Real Estate MOB/kp Enclosures Ph: (904) 826-2269. Fax: (904) 826-2322 One Malaga Street · P.O. Box 1048 · St. Augustine, FL · 32085-I048 CO~CT FOR S~E ~ P~C~E ~s Con~t sh~l be eff~ve ~ of~e day of ,2001 ~d s be~e~ ~O~A EAST COAST ~WAY L.L.C., a l~ited liabili~ co~o~on, ad.ess being P. O. ~w~ 1~8, St. Aurae, Florida 32085-1~8, h~e~er cfll~ SELLE~ ~& ~ OF BORON BEACH, a m~cipfl eo~omfion of~e Stme Flofi& whose M~s is 100 E~t Boston BeaCh Boulev~ Boston Be~ Flofi~ 33425-0310, h~e~er cfll~ P~C~ER. ~SSE~: For ~d ~ co~id~fion of&e mu~ pm~ses ~d coverts herein coning, · e ~es h~eto a~ee ~ follows: 1. LEG~ DESC~ON: ~e SELLER h~by a~ees to sell to ~e P~~SE~ ~d ~e P~C~SER he,by a~ees to p~c~e ~m ~e SELLE~ upon ~e t~ ~d ~n~fiom h~e~ set fo~, ~at ce~ ~ p~p~ l~at~ ~ lo~ 8 & 9, Bl~k 1, CiW of Bo~to~ Boston Beth, Flofi& ~d ~o be ~er defin~ by Bo~ S~ey to be pro~d~ ~ set fo~ ~ P~h 7, ~d by ~f~ce mad~ a p~ her~f. 2. EXCEPTIONS TO ~LE: ~e SELLER'S title to ~e r~ pmpe~ to be convey~ is ~bject to · e ~ollo~g: (a) T~ for ye~ subs~umt to ~e yes,or to clos~g. ~) App~c~le zo~g ~d o~ gov~m~ re~lafiom. (c) Rese~atiom, em~, d~c~om or ~fiom ofr~o~. ~ 3. PURCHASE PRICE: The purchase price shall be $90,000.00 net to seller. exec cont PUI~ Josi~ shall by e: 4. TIME FOR ACCEPTANCE: PURCTIASER shall have twenty (20) days from the day SELLER xted the contract to execute this contract or SELLER'S offer shall be null and void. The date of act, for purposes of performance, shall be the effective date. At the time of execution by CHASER, PURCHASER shall deposit the sum of $5,000.00 as earnest money with the law firm of s, Goren, Cherof, Doody & Ezrol, P.A., to be held in escrow until closing. Earnest money deposit be credited to the amount due from PURCHASER at the time of closing, which amount must be paid rher cash or local (1) Cashier's Check or (2) Certified Check. ~ 5. EVIDENCE OF TITLE AND DEFECTS: PURCHASER agrees to promptly cause the title to the l~'operty to be examined at PURCHASER'S sole cost and expense. PURcI-L&-SER agrees to notify SELLER in writing no later than sixty (60) days from the date of execution of this Contract of anY defects in tiile as of the date of the title examination which the PURCHASER alleges will prevent the PUI~ CHASER from obtaining good, clear and marketable title to the Property ("Title Notification Date"). In th ~ event PURCHASER shall fail to notify SELLER i~. writing of any such alleged defects by the title nofil icafion deadline, PURCHASER shall be conclusivelY deemed satisfied with the title to the Property. Page 1 In the event of any defects in title, PURCHASER may elect either (a) to terminate the Contract and PURCHASER'S deposit shall be returned, or (b) accept such title as SELLER can convey; subject to any defects without any reduction in the purchase price. 6. CONVEYANCE: The SELLER will execute and deliver to PURCHASER, at closing, a special warranty deed, subject to the conditions stated in this contract. 7. SURVEY: PURCHASER may obtain a boundary survey of the real property at its own expense within 30 days of the effective date of this contract. The survey must be made by a land surveyor registered in the State of Florida. Square footage contained within the real property is to be certified as same will be the basis of the total sales price. 8. PRORATION OF REAL ESTATE TAXES: Real Property taxes SHALL BE PRORATED BASED ON THE CURRENT YEAR'S TAX WITH DUE ALLOWANCE MADE FOR MAXIIVIUM ALLOWABLE DISCOUNT AND OTHER APPLICABLE EXEMPTIONS, IF ANY, ALLOWED FOR SAID YEAR. If closing occurs on a date when the current year's millage is not fixed and the current year's assessment is available, taxes will be prorated based upon such assessment and the prior year's millage. If the current year's assessment is not available, then taxes will be prorated based on the prior year's tax. Any tax proration based on an estimate shall, at the request of either party to the transaction, be subsequently readjusted upon receipt of the actual tax bill. 9. EXPENSE OF CLOSING: State documentary stamps, which are required to be affixed to the instrument of conveyance, shall be paid by the PURCHASER. All expenses are for PURCHASER'S account as sale is net to SELLER. 10. CLOSING: This transaction shall be closed in Palm Beach County, orat theoffices ofthe SELLER or as mutually agreed upon by PURCHASER and SELLER, on or before 60 days after the effective date of this contract subject to the following contingencies: (a) The PURCHASER obtaining authorization from the City Commission of BOYNTON BEACH authorizing the City officials to consummate this transaction. The PURCHASER obtains two (2) appraisals from appraisers pursuant to Section 253.025 (6)(b) of the Florida Statutes (2001). The appraisals shall show the Land to have an appraised value equal to or exceeding the Purchase Price as set forth in Section 2. In the event the appraisal value does not equal the Purchase Price, the City Commission elects to terminate this Agreement. 11. DEFAULT BY PURCHASER: If PURCHASER fails to perform any ofthe covenants ofthis contract, the down payment paid pursuant to this contract by PURCHASER, as aforesaid, shall be retained by or for the account of the SELLER as consideration for the execution of this contract and as agreed liquidated damages and in full settlement of any claims for damages. Page 2 12. DEFAULT BY SELLER: If the SELLER fails to perform any of the covenants of this toni act, the down payment paid by the PURCHASER, at the option of the PURCHASER, shall be returned to the PURCHASER on demand; or, the PURCHASER shall have only the right of specific performance. 13. ASSIGNABILITY: This contract shall not be assignable by the PURCHASER. 14. CONSTRUCTION LIENS: SELLER shall furnish to PURCHASER an affidavit that there have, been no improvements to subject property for 90 days immediately preceding closing date. If subject property has been improved within 90 days immediately preceding closing date, SELLER shall deliver releaSe or waiver of all construction liens and SELLER'S construction lien affidavit. ~ 15. DOCUMENTS FOR CLOSING: SELLER'S attorney or other closing agent shall prepare special warranty deed, SELLER'S construction lien affidavit, non-foreign affidavit and closing statement and Shall submit copies of same to PURCHASER'S attorney at least 3 days, exclusive of Saturdays, Sundays and holidays, prior to closing date. All other documents, if any, necessary for closing shall be prepared by the PURCHASER and submitted to the SELLER'S attorney by the same deadline. 16. ATTORNEY FEES AND COSTS: In connection with any litigation arising out of this con~act, each party shall bear its own costs, including attorney fees. Each party shall pay its own atto~ey's fees in connection with the negotiation, preparation, execution and closing of this agreement. 17. REAL ESTATE BROKER'S COMMISSION: SELLER and PURCHASER warrant and represent to each other that there is no real estate agent or broker involved in the negotiation of the trans~ction contemplated herein. In the event any claims arise for real estate commissions, fees or similar compensation in connection with this transaction, the party so causing such claims shall indemnify and hold harmless the other party from any loss or damage which said other party suffers because of said claim i 18. NOTICES: Any notice to be given orto be served upon any party hereunder, in connection with this contract, must be in writing and must be given by certified or registered marl and shall be deemed to h~ve been given and received when a certified or registered letter,, containing such notice, properly addressed, with postage prepaid, is deposited in the U.S. Mail; or, if given otherwise than by certified or registered mail, it shall be deemed to have been given when delivered to and received by the party to whom it is addressed. Such notices shall be addressed to the parties herein at the following addresses: TO SELLER: TO PURCHASER: M. O. Bagley, Director Industrial Development & Real Estate Florida East Coast Railway, L.L.C. P. O. Drawer 1048 (1 Malaga Street) St. Augustine, FL 32085-1048 Jim Cherof, City Attorney- Page 3 City of Boynton Beach 100 East Boynton Beach Boulevard Boynton Beach, Florida 33425-0310 19. TIME: Time is of the essence in this contract. 20. RECORDABILITY: This contract may not be recorded by either party. 21. TYPEWRITTEN OR HANDWRITTEN PROVISIONS: Should there be any conflict in terms between (1) typewritten provisions and (2) handwritten provisions to this contract, the handwritten provisions will prevail, when authorized and initialed by both parties. 22. OTHER AGREEMENTS: There are no agreements, promises or understandings between these parties except as specifically set forth herein. No modifications, alterations or changes shall be made to this contract except in writing and signed or initialed by the parties hereto. 23. CONSTRUCTION: This contract shall be construed according to the laws of the State of Florida. 24. INSPECTION PERIOD: PURCHASER and PURCHASER'S Agents shall be permitted to enter upon the property and conduct engineering tests, soil tests and borings, environmental assessments, and tests, surveys and such other inspections as PURCHASER shall deem appropriate. PURCHASER shall have a period of thirty (30) days (Inspection Period) following the effective date during which to conduct such testing, assessments, surveying and inspections. In the event, that PURCHASER determines that the Property is not suitable for the intended purpose, then PURCHASER shall have the option of canceling the Contract by written notice to such effect to SELLER and ESCROW AGENT, prior to expiration of the Inspection Period, in which event all deposits paid hereunder shall be promptly returned to PURCHASER and PURCHASER and SELLER shall be relieved of any and all obligations hereunder, whereupon this contract shall be deemed cancelled and of no further force and effect. If the transaction contemplated by this Agreement does not close, PURCHASER shall repair damage to the Property, if any, caused by PURCHASER'S testing and deliver to SELLER all surveys, reports and studies performed on the Property. Page 4 then sigm IN WITNESS WHEREOF, the respective parties have caused this contract to be executed by ;elves or their authorized officials in duplicate originals on the dates shown below their respective qESSES: (P~i (Prin :Name) IESSES: WIT SELLER: FLORIDA EAST COAST RAILWAY, L.L.C. a limited liability corpom~n 1~. ~. M~am, Executive Vice President Attest.~2~l,~ C~. ~-,f Date o£Executiom 4'/~-~r/O ' PURCHASER: CITY OF BOYNTON BEACH By..~ (Prir[t Name) Cl'rint Name) (Print Namo) Date of Execution: Page ~ Florida East Coast RAILWAY, L.L.C. M. O. "Mike" Bagley Director Industrial Development & Real Estate April 25, 2001 File: 312-19-2 Mr. Jim Cherof Josias, Goren, Cherof, Doody & Ezrol, P.A. 3099 E. Commercial Blvd., #200 Ft. Lauderdale, FL 33308 Dear Mr. Cherofi Attached are duplicate originals of Contract for Sale and Purchase between the Railway and City of Boynton Beach. The contracts were executed by the Railway on April 24, 2001 and provide twenty (20) days for Purchaser's execution and deposit of earnest money. Please handle for execution by the City dating contracts date of City's execution. Please return one original executed contract along with proof of deposit. As information we made two changes to the contract. Paragraph 7 changed "45" days to "30" to coincide with time period specified in paragraph 24. The word "and" in the last line of paragraph 9 changed to "as". I trust you will find the changes acceptable. Sincerely, M~. tO.t~'B a gl~ey,~ector Industrial Development & Real Estate MOB/kp Enclosures Ph: (904) 826-2269. Fax: (904) 826-2322 One Malaga Street. RO, Box 1048 · St. Augustine, FL · 32085-1048 Requested City Commission Meeting Dates [] March 20, 2001 [] av, a 3,2001 [] April 17, 2001 [] May 1,2001 V .CONSENT AGENDA CITY OF BOYNTON BEAC} ITEM C.3 AGENDA ITEM REQUEST FO1 Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 5, 2001 [] June 5,2001 [] June 19, 2001 [] July 3, 2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: AuthOrizing the Mayor to sign two Street Lighting Agreements with FP&L for.Gateway Blvd - Seacrest Blvd. to US #1. EXPLANATION: Now that the Gateway Blvd. project is nearing its final closeout, the new streetlighting is being turned over to the City. We have two agreements with FP&L that will need to be signed by the Mayor. The first is the agreement for the removal of the existing street lighting, and the second is for the installation of the new replacement street lighting. There are no additional charges for this removal and replacement work. The City, however, will have to pay the energy charge associated with keeping these lights light. The energy charge for these lights will not be billed separately. Instead, the energy charge will be put into the City's city-wide street lighting bill. PROGRAM IMPACT: It will be necessary for the City to sign these two agreements so that FP&L will not only provide energy to the lights, but will also maintain them in the future. S:kBULLETINWORMSLatGENDA ITEM REQUEST FORM.DOC CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM FISCAL IMPACT: bio immediate fiscal impact associated with the signing of this agreement. However, the cost of energy for the lights on Gateway Blvd. will be charged to the City's master account after acceptance of this agreement. ALTERNATIVES: There are no truly applicable alternatives. In order to have streetlights on Gateway Blvd., we need to either contract with FP&L or provide them ourselves. We do not want to select the alternative of providing the streetlights ourselves. Department Head'~ignature Engineering Department Name ' ~]'t~, Manager's Signature City Attorney / Finance / Human Resources S:XBULLETINWORMSVtGENDA ITEM REQUEST FORM.DOC RESOLUTION R 01- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE TWO STREET LIGHT AGREEMENTS BETWEEN THE CITY OF BOYNTON BEACH AND FLORIDA POWER AND LIGHT, FOR THE PRO]ECT KNOWN AS GATEWAY BOULEVARD; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the project known as Gateway Boulevard is nearing its ~inal closeout, and the new streel~ lighting is being turned over to the City; and WHEREAS, the first agreement will allow the removal of the existing street lighting, the second agreement is for the installation of the new replacement street lighting; and NOW, THEREFORE, BE TI' RESOLVED BY THE CTrY COMHISSXON OF THE Cl'TY OF BOYNTON BEACH, FLOR/DA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida does hereby authorize and direct the Mayor and City Clerk to execute two Agreements with Florida Power and Light; copies of said Agreements being attached hereto as composite Exhibit "A". Section 2. This Resolution will become effective immediately upon passage. PASSED AND ADOPTED this City Clerk (Corporate Seal) c a'u-cso~a~r~,~n~s~P&L $~rc~tlighting day of May, 2001 C~I'Y OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner 2 FPL Account Number;. 77462-10231 FPL Work Order Numbe~. 7247-04-4t6 STREET LIGHTING AGREEMENT In accordance with the following terms and conditions, CITY OF BOYNTON BEACH (hereinafter called the Customer), requests on this 01 day of 0_~1, 2001, from FLORIDA POWER & LIGHT COMPANY (hereinafter called FPL), a corporation organized and existing under the laws of the Slate of Florida, Ihe following inslallation or modification of slmet lighting fadlities at (general boundarles)WlO US1 & GATEWAY BLVD located in BOYNTON BEACH, FIodda. (dry/county) (a) Inslallation and/or removal of FPL-owned fadlities described as follows: Lights Inslalled Lights Removed Fixture Rating Rxtum Type # Installed Fixture Rating Fudum Type # Removed (in Lumens) (in Lumens) " 22000 HPSV 4 Poles Installed Poles Removed Pole Type # Installed Pole Type # Removed 30'/6 5 (b) Modification to existing fadlities other lhan described above (explain fully): Conductom Installed Feet not Under Paving Feet Under Paving Conductors Removed 576' Feet not Under Paving Feet Under Paving That, for and in consideration of the covenants set forlh herein, the parties hereto covenant and agree as follows: FPL AGREES: 1. To install or modify the street lighting fadlilies desoibed and identffied above (hereir~Ler called the Street Lighting System), fumish to the Customer the elect/ic energy _nece~___~3_~/for the operation of the Street Lighting System, and furnish such other services as are spedfied in this Agreement, all in a~ with lhe terms of FPL's currently effective street lighting rate schedule on file at the Florida Public Sen/ice ~ (FPSC) or any s~__ _,cce~____~ve street lighting rate schedule approved by the FPSC. THE CUSTOMER AGREES: 2. To pay a contribution in the amount of $0.00 prior to FPL's initiating the requested installation or modification. 3. To purchase from FPL all of lhe electric energy used for the operation of the Street Lighting System. To be responsible for paying, when due, all bills rendered by FPL pursuant to FPL's currently effective street lighting rote schedule on file at the FPSC or any successive street lighting rote schedule approved by the FPSC, for facilities and service provided in accordance with this agreement. To provide access, final grading and, when requested, good and sL/ficient easements, suilable construction drawings showing the location of existing and proposed stnJctures, identification of all non-FPL underground facilities within or near pole or trench locations, and appropriate plats necessary for planning the design and completing the construction of FPL facilities associated with the Street Lighting System. To perform any deadng, compacting, removal of stumps or other obstructions that conflict with construction, and drainage of rights-of-way or easements required by FPL to accommodate the street lighting fadlities. IT IS MUTUALLY AGREED THAT: 7. Modifications to the facilities provided by FPL under this agreement, other than for maintenance, may only be made through the execution of, an additional street lighting agreement delineating the modifications to be accomplished. Modification of FPL street lighting facilities is defined'. as the following: a. the addition of street lighting facilities: b. the removal of street lighting facilities; and c. the removal of street lighting facilities and the replacement of such facilities with new fadlities and/or additional facilities. Modifications will be subject to the costs identified in FPL's currently effective street .lighting rate schedule on file at the FPSC, or any successive schedule approved by the FPSC. 8. FPL will, at the request of the Customer, relocate the street lighting facilities covered by this agreement, if provided sufficient right-of-ways or easements to do so. The Customer shall be responsible for the payment of all costs associated with any such Customer- requested relocation of FPL street lighting facilities. Payment shall be made by the Customer in advance of any relocation. 9. FPL may, at any time, substitute for any luminaireJlamp installed hereunder another luminaire/lamp which shall be of at least equal illuminating capacity and efficiency. 10. This Agreement shall be for a term of ten (10) years from the date of initiation of service, and, except as provided below, shall extend thereafter for further successive pedods of five (5) years from the expiration of the initial ten (10) year term or from the expiration of any extension thereof. T. he date of initiation of service shall be defined as the date the first lights are energized and billing begins, not the date of this Agreement. This Agreement shall be extended automatically beyond the initial the (10) year term or any extension thereof, unless either party shall have given written notice to the other of its desire to terminate this Agreement. The written notice shall be by certified mail and shall be given not less than ninety (90) days before the expiration of the initial ten (10) year term, or any extension thereof. 11. In the event street lighting facilities covered by his agreement are removed,_ either at the request of the Customer or through termination or breach of this Agreement, the Customer shall be responsible for paying to FPL an amount equal to the odginal installed cost of the facilities provided by FPL under this agreement less any salvage value and any depreciation (based on current depreciation rates as approved by the FPSC) plus removal cost. ' 12. Should the Customer fail to pay any bills due and rendered pursuant to this agreement of otherwise fail to perform the obligations contained in this Agreement, said obligations being material and going to the essence of this Agreement, FPL may cease to supply electric energy or service until the Customer has paid the bills due and rendered or has fully cured such other breach of this AgreemenL Any failure of FPL to~-- exercise its dghts hereunder shall not be a waiver of its dghts. It is understood, however, that such discontinuance of the supplying of electh energy or service shall not constitute a breach of this Agreement by FPL, nor shall it relieve the Customer of the obligation to perform any of the-~ terms and conditions of this AgreamenL 13. The obligation to furnish or purchase service shall be excused at any time that either party is prevented from comping with this Agreement by strikes, lockouts, fires, dots, acts of God, the public enemy, or by cause or causes not under the control of the party thus prevented from compliance and FPL shall not have the obligation to fumish service if it is prevented from complying with this Agreement by reason of any partial, temporary or entire shut-~3wn of service which, in the sole opinion of FPL, is reasonably necessary for ~ purpose of repairing or making more effident all or any part of its generating or other electrical equipment. 14. This Agreement supersedes all previous Agreements or representations, either written, oral or othen~ise between the Customer and FPL, with respect to the facilities referenced herein and constitutes the entire Agreement between the parties. This Agreement does not create any rights or provide any remedies to third parties or create any additional duty, obligation or undertakings by FPL to third parties. 15. This Agreement shall inure to the benefit of, and he binding upon the successors and assigns of the Customer and FPL. 16. This Agreement is subject to FPL's Electric Tadff, including, but not limited to, the General Rules and Regulations for Electric Service and the Rules of the FPSC, es they are written, or as they may he hereafter revisect, amended or supplemented. In the event of any conflict between the terms of this Agreement and the provisions of the FPL Electdc Tadff or the FPSC Rules, the provisions of the Electric Tariff and FP$C Rules shall control, es they are now written, or as they may be hereafter revised, amended or supplemented. IN WITNESS WI.IEREOF, the pa~es hereby caused this Agreement to be executed in triplicate by their duly authorized representatives to be effective as of the day and year first written above. Charges and Temps Accepted: Customer (Print or type name of Organization) By: Signature (Authorized Representative) (Print or type name) Title: FLORIDA POWER & UGHT COMPANY By: · -~ t. / ~ [ ~ignature) ALEX ZAMBRANO (Pdnt or type name) Title: Construction Services Representative Ii ~sn AYJ~HOIH -~,~raaaa-~ FPL Account Number. 77462-10231 FPL Work Order Number. 8210-02-41 STREET LIGHTING AGREEMENT In accordance with the following terms and conditions, CITY OF BOYNTON BEACH (hereinafter called the Customer), requests on this day of , , from FLORIDA POWER & LIGHT COMPANY (hereinafter called FPL), a corporation organized and existing under the laws of the State of Flodda, the following installation or modification of street lighting facilities at (general boundaries) GATEWAY BLVD. FROM SEACREST BLVD. TO US~I , located in BOYNTON BEACH, Flodda. (city/county) (a) Installation and/or removal of FPL-owned facilities described as follows: Lights Installed Fixture Rating Fixture Type # Installed lin Lumens) 16,000 TRADITIONAL 93 Fixture Rating (in Lumens) Ughts Removed Fixture Type # Removed (b) Poles Installed Poles Removed Pole Type # Installed Pole Type # Removed FG 93 Conductors Installed 6950 Feet not Under Paving Feet Under Paving Conductors Removed Feet not Under Paving Feet Under Paving Modificetion to existing facilities other than described above (explain fully): City of Boynton Beach to install or have installed FPL provided handholes and conduit. A credit of $13,867.00 for installation of handholes and conduit will be given to the city. That, for and in consideration of the covenants set forth herein, the parties hereto covenant and agree as follows: FPL AGREES: To install or modify the street ligh'dng facili~es described and identified above (hereinafter celled the Street Lighting System), fumish to the Customer the electric energy necessary for the operation of the Street Lighting System, and furnish such other services as are specified in this ,~4]reement, all in accordance ~ the terms of FPL's currently effective street lighting rate schedule on file at the Flodda Public Service Commission (FPSC) or any successive street lighting rate sqh. edule approved by the FPSC. THE CUSTOMER AGREES: To pay a contribution in the amount of $ N/A pdor to FPL's initiating the requested installation or modification. To purchase from FPL all of the elec~c energy used for the operation of the Street Lighting System. To be responsible for paying, when due, all bills rendered by FPL pursuant to FPL's currently effective street lighting rate schedule on file at the FPSC or any successive street lighting rate schedule approved by the FPSC, for facilities and service provided in accordance with this agreement. To provide access, final grading and, when requested, good and sufficient easements, suitable construction drawings showing the location of existing and proposed structures, identification of all non-FPL underground facilities within or near pole or trench locations, and appropriate plats necessa~/for planning the design and completing the construction of FPL facilities associated with the Street Lighting System. ~ To perform any cleedng, compacting, removal of stumps or other obstructions that conflict with construction, and drainage ot~ rights-of-way or easements required by FPL to accommodate the street lighting facilities. IT IS MUTUALLY AGREED THAT: 10.! 11. 12. 13. 14. 15. 16. Modifications to the facilities provided by FPL under this agreement, other than for maintenance, may only be made through the execution of an additional street lighting agreement delineating the modifications to be accomplished. Modification of FPL street lighting facilities is defined as the following: a. the addition of street lighting facilities: b. the removal of street lighting facilities; and c. the removal of street lighting facilities and the replacement of such facilities with new facilities and/or additional facilities. Modifications will be subject to the costs identified in FPL's currently effective street lighting rate schedule on file at the FPSC, or any successive schedule approved by the FPSC. FPL will, at the request of the Customer, relocate the street lighting facilities covered by this agreement, if provided sufficient right-of-ways or easements to do so. The Customer shall be responsible for the payment of all costs associated with any such Customer- requested relocation of FPL street lighting facilities. Payment shall be made by the Customer in advance of any relocation. FPL may, at any time, substitute for any luminaire/lamp installed hereunder another luminaire/lamp which shall be of at least ,equal illuminating capacity and efficiency. This Agreement shall be for a term of ten (10) years from the date of initiation of service, and, except as provided below, shall extend thereafter for further successive pedods of five (5) years from the expiration of the initial ten (10) year term or from the expiration of any extension thereof. The date of initiation of service shall be defined as the date the first lights ara energized and billing begins, not the date of this Agreement. This Agreement shall be extended automatically beyond the initial the (10) year term or any extension thereof, unless either party shall have given written notice to the other of its desire to terminate this Agreement. The wdtten notice shall be by certified mail and shall be given not less than ninety (90) days before the expiration of the initial ten (10) year term, or any extension thereof. In the event street lighting facilities covered by this agreement are removed, either at the request of the Customer or through termination or breach of this Agreement, the Customer shall be responsible for paying to FPL an amount equal to the odginal installed cost of the facilities provided by FPL under this agreement less any selvage value and any depreciation (based on current depreciation rates as approved by the FPSC) plus removal cost. Should the Customer fail to pay any bills due and rendered pursuant to this agreement of otherwise fail to perform the obligations contained in this Agreement, seid obligations being matedal and going to the essence of this Agreement, FPL may cease to supply elec~c ene.rgy or service until the Customer has paid the bills due and rendered or has fully cured such other breach of this Agreement. Any failure of FPL to exercise its rights hereunder shall not be a waiver of its dghts. It is understood, however, that such discontinuance of the supplying of electric energy or service shall not constitute a breach of this Agreement by FPL, nor shall it relieve the Customer of the obligation to perform any of the terms and conditions of this Agreement. The obligation to furnish or purchase service shall be excused at any time that either party is prevented from complying with this Agreement by stdkes, lockouts, fires, riots, acts of God, the public enemy, or by cause or causes not under the control of the party thus prevented from compliance and FPL shall not have the obligation to furnish service if it is prevented from complying with this Agreement by reason of any partial, temporary or entire shut-down of service which, in the sole opinion of FPL, is reasonably necessary for the purpose of repairing or making more efficient all or any part of its generating or other electrical equipment. This Agreement supersedes all previous Agreements or representations, either written, oral or otherwise between the Customer and FPL, with respect to the facilities referenced herein and constitutes the entire Agreement between the parties. This Agreement does not create any rights or provide any remedies to third parties or create any additional duty, obligation or undertakings by FPL to third parties. This Agreement shall inure to the benefit of, and be binding upon the successors and assigns of the Customer and FPL. This Agreement is subject to FPL's Electric Tariff, including, but not limited to, the General Rules and Regulations for Electdc Service and the Rules of the FPSC, as they are written, or as they may be hereafter revised, amended or supplemented. In the event of any conflict between the terms of this Agreement and the provisions of the FPL Electric Tariff or the FPSC Rules, the provisions of the Electric Tariff and FPSC Rules shall control, as they are now written, or as they may be hereafter revised, amended or supplemented. INWlTNE$$ WHEREOF, the parties hereby caused this Agreement to be executed in triplicate by their duly authorized representatives to be effective as of the day and year first wdtten above. Charges and Terms Accepted: FLORIDA POWER & LIGHT COMPANY Customer (Pdnt or type name of Organization) By: Signature (Authorized Representative) (Print or type name) Title: By:. (Signature) (Print or type name) Title: Construction Services Representative NE 4fh $~ -' NE'~ Cf NE Srd St NE 4th Ct ,/ SEE DRAWING AO6UL5 CITY OF BOYNTON BEACH ITEM C.4. I ' ll AGENDA ITEM RE. UES..n w FOI ............ Requested Ci~ Commission Date Final Fo~ Must be Turned Requested Ci~ Commission Date Fin~ Fo~ Must be Turned ] Meeting Dates in to CiW Clerk's O~ce Meeting Dates in to CiW Clerk's O~ce ~ch 20, 2001 M~ch 7, 2001 (5:00 p.m.) ~ May 15, 2001 May 2, 2001 (5:00 p.m.) ~pril 3, 2001 M~ch 21,2001 (5:00 p.m.) ~ June 5, 2001 May 16, 2001 (5:00 p.m.) 5pril 17, 2001 April 4, 2001 (5:00 p.m.) ~ June 19, 2001 June 6, 2001 (5:00 p.m) ~ay 1, 2001 April 18, 2001 (5:00 p.m.) ~ July 3, 2001 June 20, 2001 (5:00 p.m.) [] Administrative [] Development Plans NATURE OF [] Consent Agenda [] New Business AG ~F_~DA ITEM [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation i [] City Manager's Report REC Beac by Pa EXP] the C incen amor resid, PRO, FISC )MMENDATION: Motion to approve and authorize signing of the Agreement between the City of Boynton and Palm Beach County providing for the satisfaction of the City's connection fees and capital facilities charges Im Beach County on behalf of those residents of Tucks Road so electing. ,ANATION: The County is planning to install water and wastewater lines along Tucks Road, which lies within ty's utility service area, in order to provide water and wastewater service to its residents in that area. As an :ive for residents to utilize these improvements, the County is willing to pay the required fees to the City, and :ize the costs to the residents over a 20-year period. A water service agreement will be required from all of the nts wishing to connect. ;RAM IMPACT: None. Tucks Road is already within the City's utility service area. ~,L IMPACT: Approval of this agreement will expedite payment of the required fees to the City. ALTE~ RNATI~: Reject the agreement, and require each resident to ~~x~, pay t e City directly. ignature ' City Manager s~ignature Utilities Department Name City Attorney / Finance / Human Resources XC: Peter Mazzella (w/one copy of agreement) City Attorney " File " S:~BULLETINWORMSkAGENDA ITEM REQUEST FORM.DOC RESOLUTION R 01- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE THE AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH AND PALM BEACH COUNTY, PROVIDING FOR THE SATISFACTION OF THE CITY'S CONNECTION FEES AND CAPITAL FACILITIES CHARGES BY PALM BEACH COUNTY ON BEHALF OF THE RESIDENTS OF TUCKS ROAD SO ELECTING; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Palm Beach County is planning to install water and wastewater lines along Tucks Road, which lies within the City's utility service area, in order to provide water and wastewater service to its residents; and WHEREAS, as an incentive for residents to utilize these improvements, the County is willing to pay the required fees to the City and amortize the costs to the residents over a twenty-year p. eriod; and WHEREAS, approval of this Agreement will expedite payment of the required fees to the City. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida does hereby authorize and direct the Mayor and City-Clerk to execute the Agreement with Palm Beach County; copy of said Agreement being attached hereto as composite Exhibit "A". Section 2. This Resolution will become effective immediately upon passage. PASSED AND ADOPTED this day of May, 2001 CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner Commissioner ~TTEST: City Clerk (Corporate Seal) ca~te~o'~ag~-tnents~"P&L St~-tligh~8 AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH AND PALM BEACH COUNTY, FLORIDA PROVIDING FOR THE SATISFACTION OF THE CITY'S CONNECTION FEES AND CAPITAL FACILITIES CHARGES BY PALM BEACH COUNTY ON BEHALF OF THOSE RESIDENTS OF TUCKS ROAD SO ELECTING THIS AGREEMENT, made and entered into this day o~f , 200!~ by and between the COUNTY OF PALM BEACH, a political subdivision of the State of Florida, hereinafter called and referred to as the "COUNTY" and the CITY OF BOYNTON BEACH, a municipality in the State of Florida, hereinafter called a~d referred to as the "CITY"~ WI TNE S SETH WHEREAS, the CITY and the COUNTY are authorized to enter this agreement pursuant to Section 163.01, Florida Statutes, as amended, which permits local governmental units to make the mo efficient use of their powers by enabling them to cooperate wi other localities on a basis of mutual advantage; and WHEREAS, the COUNTY has caused to be constructed water sewer facilities on Tucks Road which is in the Boynton Be Utilities service area; and WHEREAS, upon completion of construction, the water and sew facilities will become the property of, and will be operated maintained by the "CITY"; and WHEREAS, the "CITY" collects connection fees and a capi facilities charge to cover the cost of existing or additional wa and sewer treatment facilities from residents as they connect the water and sewer facilities; and WHEREAS, the "CITY" requires that each resident enter int~ Water Service Agreement with the "CITY"; and WHEREAS, said connecsl~n fees and capital facilities charges can impose a hardship and remove any incentive 5o voluntarily connect to the water and sewer facilities; and WHEREAS, the "COUNTY" is willing 5o satisfy the connection fees and capital facilities charges for those residents of Tucks Road who so desire, and allow them to pay the "COUNTY" back over a twenty year period through the assessment process. NOW, THEREFORE, AND IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE PARTIES TO THIS AGREEMENT AGREE AS FOLLOWS: 1. The recitals set forth above are hereby adopted and incorporated in this Agreement. 2. The "COUNTY" agrees to: A. Upon completion of the water and sewer facilities, notify the residents of Tucks Road that they have a limited time period in which they can enuer into a wauer service agreement with the "CITY" in order to take advantage of the "COUNTY" paying their connection fees and capital facility charges. B.Provide the "CITY" with a list of property owners on Tucks Road. C. Upon receipt of a list from the "CITY" showing the name, address, and individual connection fees and capital facility charges for each property owner on Tucks Road who have taken advantage of this arrangement along with an invoice for the total charges, pay to the "CITY" the full amount shown on the invoice. The "CITY" agrees to: A. Allow those property owners on Tucks Road electing to have the "COUNTY" pay their connection fees and facilities charges to execune a Water Service Agreement and immediately connect to the water and sewer system. B. Prepare a list of those property owners on Tucks Road taking advantage of this Agreement and forward it along with an znvoice for the total fees and charges to the "COUNTY". This Agreement shall be executed in triplicate and the "COUNTY" shall retain two (2) and the "CITY" shall retain one (1) copy. Ail shall be considered an original. Any and all notice required or permitted to be gzven hE under shall be deemed received five (5) days after same ~ deposited in U.S. Mail sent vza certified mail, return rece~ requested. All notices to the "CITY" shall be sent to: The City of Boynton Beach 124 S.E. 15th Avenue Boynton Beach, Florida 33435 ATTENTION: John A. Guidry, Director of Utilities Ail notices to the "COUNTY" shall be sent George T. Webb, P.E., County Engineer Engineerzng and Public Works Department P.O. Box 21229 West Palm Beach, FL 33416 ATTENTION: Engineering Services Division 6. ENTIRE AGREEMENT. This agreement constitutes the entire contract between the parties hereuo and supersedes all prior understandings, if any. There are no other oral or wrluten promises, conditions, representatives, understandings or terms of any kind as conditions of inducement to the execution hereof and none have been relied upon by either party. Any subsequent conditions, representatives, warranties or agreements shall not be valid and binding upon the parties unless they are in writing and signed by both parties and executed in the same manner as this Agreement. 7. SEVERABILITY: In the event any term or provision of this Agreement shall be held invalid, such invalid term or provision hereof and all such other terms and provisions hereof shall be enforceable to the fullest extent permitted by law as if such invalid term or provision had never been a part of this Agreement. 8. EFFECTIVE DATE: This Agreement shall become effective upon its execution by the '"COUNTY" and the "CITY". 9. This Agreement may be executed in two or more counterparns, each of which shall be deemed, an original, but all of whick together shall constitute one and the same instrument. 10. This Agreement shall be recorded in the public records of Palm Beach County pursuant to Section 163.01, Florida Statutes. IN WITNESS WHEREOF, the County of Palm Beach, Florida, has caused this Agreement to be signed by the Chairman of the Board of County Commissioners and the seal of said Board to be affixed hereto and attested by the Clerk of said Board, pursuant to authority granted by said Board, and the "CITY" has caused this Agreement to be signed in its name by its Mayor and its seal to be affixed hereto, attested by its Clerk, the date and year first above written. CITY OF BOYNTON BEACH MAYOR PALM BEACH COUNTY, FLORIDA, CHAIRMAN, BOARD OF COUNTY COMMISSIONERS By: By: ATTEST: ATTEST: , CITY CLERK DOROTHY H. WILKEN, CLERK By: APPROVED AS FOR FORM AND LEGAL SUFFICIENCY: By: APPROVED AS TO FORM AND LE_~ SUFFICIENCY: By: By: CITY ATTORNEY COUNTY ATTORNEY Requested City Commission Meeting Dates [] March 20, 2001 [] April 3, 2001 [] April 17, 2001 [] May 1,2001 CITY OF BOYNTON BEA AGENDA ITEM REQUEST Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 15, 2001 [] June 5,2001 [] June 19, 2001 [] July 3, 2001 V-CONSENT AGENDA ITEM C.5 OIAPR26 PH2:25 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unf'mishedBusiness [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Motion to approve a reduction in surety for the project known as Sterling Records Management, frOm $85,030 down to $4,250, and return the amount of $80,780 to the project's developer. EXPLANATION: Surety was posted to guarantee completion and acceptance of the water and sanitary sewer systems serving this project, and allow those systems to be placed into operation prior to full completion of the project. The systems have now been fully completed, inspected, and transferred to the City for operation and maintenance. 5% of the original surety will continue to be held for the balance of the one-year warranty period. PROGRAM IMPACT: None FISCAL IMPACT: None weALTERNATIVES:therefore s~thisThe City's code allOWSpartialfOrreduction.SUrety reduction, and retenti~oTf 5% during the warranty period. ' Depar~ent Hea6's Signature - Ci~ Manager's Signature UTILITIES Department Name City Attorney 7~anceT'Human Resources XC: Peter Mazzella (w/attachment) Finance Dept. " ' City Attorney " Development Dept. " File " SSBULLETINWORMS~GENDA ITEM REQUEST FORM.DOC RESOLUTION NO. R 01- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING A REDUCTION IN THE SURETY FOR STERLING REAL ESTATE, LLC, (FOR THE PROJECT KNOWN AS STERLING RECORDS MANAGEMENT), FROM $85,030.00 TO $4,250.00; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the developer of this parcel, previously submitted cash surety in the mount of $85,030.00 to guarantee completion of water and sewer systems serving this site; and WltEREAS, a final inspection has been conducted on this project and the system 'appears to be functioning properly without any defects; NOW., THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida, based upon the recommendation of staff, hereby approves a reduction of surety from $85,030.00 to $4,250.00. Section 2. That this Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this day of May, 2001. CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner ATTEST: City Clerk (Corporate Seal) S/cab'es\letters of CreditXSterling Records Management Commissioner DIRECT PAYMENT REQUISITION Please issue a check in the amount of $ 80,780.00 To: Sterling Real Estate, LLC 128 Litchfield Drive New Milford, CT 06776 VR# For: Surety reductions for Sterling Records Management C.ommission approved 5-12:'-01 Requested by Pete Mazzella, Asst. to the Director DateApril 25, 2001 Approvals: Dept. Head Finance Dept. City Manager 401 0000 220 99 00 80,780.0(: $80,780.00 0 Requested City Commission Meeting Dates [] March 20, 2001 [] ^~13, 2001 [] April 17, 2001 [] May 1, 2001 V-CONSENT AGENDA CITY OF BOYNTON BEA( ITEM C.6. AGENDA ITEM REQUEST Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21., 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Oi APR 2~+ PH 2:22 Requested City Commission Date Final Form Must be Turned Meeting Dates in to City Clerk's Office [] May 15, 2001 May 2, 2001 (5:00 p.m.) [] June5,2001 May 16,2001 (5:00p. m.) [] June 19, 2001 June 6, 2001 (5:00 p.m.) [] July 3, 2001 June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids ["-] Unfinished Business [] Announceraeat [~ l~seatation. [] City Manager's Report RECOMMENDATION:: Approve resolution releasing the remaining surety on the Hills of Lake Eden subdivision ($19,350.00), the approval of the subdivision, the acceptance of the dedications and the maintenance responsibilities of those impro~,ements dedicated to the City. EXPI.ANATION: The project is complete and the City has received the Engineer of Record's certification and required Utility and Engineering Department approvals. PRO(;RAM IMPACT: N/A FISC~ ALTI~ ~L IMPACT: N/A R_N~T~S: N/A :~}uinms lLe~reehe', De~:elopment Dil%,ctor Department of Development Department Name City Manager's Signature City Attorney / Finance / Human Resources S:\BULLETIN~ORMS~kGENDA ITEM REQUEST FORM.DOC RESOLUTION NO. R 01 - A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING A FULL RELEASE OF THE SURETY (LETTER OF CREDIT SPL35743) FOR HILLS OF LAKE EDEN SUBDIVISION IN THE AMOUNT OF $19,350; APPROVAL OF THE SUBDIVISION, ACCEPTANCE OF THE DEDICATIONS, AND THE MAINTENANCE RESPONSIBILITIES OF THOSE IMPROVEMENTS DEDICATED TO THE CITY OF BOYNTON BEACH; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the project is complete and the City has received the Engineer of certification, and Utility Department approval for Hills of Lake Eden Subdivision; City. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida, based the recommendation of staff, hereby approves a full release of the surety for Hills of Eden, in the mount of $19,350.00, approves the Subdivision, and accepts the and the maintenance responsibilities of those improvements dedicated to the Section 2_ . That this Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this day of May, 2001. CITY OF BOYNTON BEACH, FLORIDA Mayor ' Vice Mayor Commissioner Clerk Seal) of Lake Ed~ Full Commissioner Commissioner Requested City Commission Meeting Dates [] March 20, 2001 [] April 3, 2001 [] April 17, 2001 [] May 1,2001 V-CONSENT AGENDA CITY OF BOYNTON BEAC ITEM C.7. AGENDA ITEM REQUEST FGi ,. Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 15,200l [] June 5, 2001 [] June t9, 2001 [] July 3,2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Approve Department of Community Affairs grant award contract. EXPLANATION: This contract is necessary to receive the DCA Emergency Management Preparedness and Assistance Grant award for the purchase of an emergency AM radio system. The grant is in the amount of $19,995.00 and will provide 100% funding for the purchase of this radio system. The radio system will provide emergency notification and information to all citizens and visitors of the city. Critical information such as evacuation notices and routes~ emergency shelter information as well as information concerning food distribution centers will be readily available to anyone with a AM radio. PROGRAM IMPACT: Critical emergency information will now be available to greater numbers of citizens and visitor~. FISCAL IMPACT: None ALTERNATIVES: P~ehase the system with City of Boynton Beach funds ol not have the system installed. / ~' Department Head's Signature Ci~r Manager's Signature Department Name I City Attome30~ Finance / Human Resources S:x~BULLETIN~FORMS~AGENDA ITEM REQUEST FORM.DOC RESOLUTION R 01- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, PALM BEACH COUNTY, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A STATE FUNDED EMERGENCY MANAGEMENT PREPAREDNESS AND ASSISTANCE GRANT AGREEMENT FOR THE PURCHASE OF AN EMERGENCY AM RADIO SYSTEM, BETWEEN THE STATE OF FLORIDA, DEPARTMENT OF COMMUNITY AFFAIRS AND THE CITY OF BOYNTON BEACH IN THE AMOUNT OF $19,995.00; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Boynton Beach was approved for a grant in the amount of $19,995 for the purchase of an emergency AM radio system to provide emergency notification and information to all citizens and visitors to the City, such as evacuation notices md mutes, emergency shelter information as well as information concerning food tistfibution centers; and WHEREAS, The City Commission of the City of Boynton Beach upon recommendation of staff, deems it to be in the best interest of the citizens of the City of Boynton Beach to accept the DCA Emergency Management Preparedness and Assistance Grant award in the amount of $19,995 Grant and authorizes the Mayor and City Clerk to execute the Grant Agreement; NOW, THEREFORE BE IT RESOLVED BY THE CITY COMMISSION OF [HE CITY OF BOYNTON BEACH OF PALM BEACH COUNTY, FLORIDA, Section 1: The City Commission of the City of Boynton Beach, Florida hereby accepts the State of Florida Department of Community Affairs Emergency Management Preparedness and Assistance Grant in the amount of $19,995, for the purchase of an emergency AM radio system. . Section 2: This Resolution shall take effect immediately upon adoption. PASSED AND ADOPTED THIS DAY OF MAY, 2001. CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner ATTEST: Commissioner City Clerk S:ca/resoGrants/Grant- DCA-AM Radio050701 Commissioner Memo To:' Bill Bingham Fire Chief From: Janet M. Prainito City Clerk CC: City Manager Date: 04/30/01 Award of Competitive Grant from the Emergency Management Preparedness and Assistance Trust Fund Attached is a copy of a letter from the Department of Community Affairs dated Apdl 26~ notifying us that we have been awarded a competitive grant from the Emergency Management Preparedness and Assistance Trust Fund. Paragraph 2 of the letter provides details regarding advance payment requests. A copy of the agreement is also attached, I believe you would need to review these documents and provide a recommendation for approval by the City Commission on May 15~. Please note Paraqraph 3 with respect to the deadline for retumincj these agreements. Please be advised that the odginal letter and agreements are in my possession in the City Clerk's Office. Attachments j:Xshrdata~cc\wpXgeneral info~emos~:hicf bingham - dca corroetitive grant - emerg, mgmt ~css.doc D JEB BUSH Governor E PA STATE OF FLORIDA RTMFNT OF COMMUNITY c..L- / AFFAIRS "Dedicated to making Florida a better place to call home" STEVEN M. SEIBERT Secretary Mayor Gerald Broening City of Boynton Beach 100 E. Boynton Beach Blvd Boynton Beach, FL 33425 Dear Mayor Broening, April 26, 2001 The Department of Community Affairs is pleased to forward to you an agreement for you recently awarded competitive grant funded from the Emergency Management Preparedness and Assistance Trust Fund. Enclosed are an original and three (3) copies to be executed by the proper official for an amount not to exceed $19,995 Twenty five (25) percent of the award may be advanced. Please indicate on Attachment F, Funding/Consideration, section C., 1 or 2, whether or not an advance payment will be requested. All such requests must be accompanied by a detailed justification as to the need for advancing the funds. Payment of reimbursable expenditures may be requested thereafter, at the end of each quarter. After your review, please have the appropriate official sign and return all four documents tO this Department within thirty (30) days of the date of this letter for final execution. A fully executed copy will be returned for your records. Congratulations on your award; we look forward to working with you on this program which was specifically designed to further emergency management capabilities in the State of Florida. If you have any questions, please contact me (850) 413-9894 or Sonya Odom at (850) 413-9939. EWG/so Sincerely, Edgar W. Gonesh, Manager Emergency Management Preparedness and Assistance Grants Program Enclosures 2555 SHUMARD OAK BOULEVARD eTALLAHASSEE, FLORIDA 32399-2100 Phone: (850) 488-8466/Suncom 278-8466 FAX: (850) 921-0781/Suncom 291-0781 Internet address: http://www.dca.state.fl.us critiCaL STATE CONCERN FIELD OFFICE COMMUNITY PLANNING EMERGENCY/VlANAGEMENT HOUSING & COMMUNITY DEVELOPMENT 2796 Overseas Highway, Suite 212 2555 Shurnard Oak Boulevard 2555 Shurnard Oak Boulevard 2555 Shumard Oak Boulevard Marathon FL 33050-2227 Tallahassee, FL 32399-2100 Tallahassee, FL 32399-2100 Tallahassee, FL 32399-2100 (305) 289-2402 (850) 488-2356 (§50) 413-9969 (850) 488-7956 Agreement Number: 01CP-04-10-60-02-202 STATE FUNDED GRANT AGREEMENT THIS AGREEMENT is entered into by and between the State of Florida, Department of Community Affairs, with headquarters in Tallahassee, Florida (hereinafter referred to as the "Department"), and the City of Boynton Beach, (hereinafter referred to as the "Recipient"). THIS AGREEMENT IS ENTERED INTO BASED ON THE FOLLOWING FACTS: WHEREAS, the Department is authorized, pursuant to Section 252.373, Florida Statutes, and Rule Chapter 9G-19, Florida Administrative Code, to disburse funds for emergency management grants to eligible recipients; and WHEREAS, the Recipient has been awarded funds under the above-referenced authorities after completion of the competitive awards process; and WHEREAS, Recipient agrees to comply with ail the requirements applicable to said award, as supplemented by the terms and conditions in this Agreement. NOW, THEREFORE, the Department and the Recipient do mutuaily agree as follows: SCOPE OF WORK AND FUNDING The Recipient shail undertake and fully perform the scope of work identified in its application for the competitive grant award, in accordance with the Scope of Work included as Attachment A of this Agreement. Funding up to $19,995 shail be provided on a reimbursement basis, in accordance with the budget to be submitted by Recipient pursuant to the requirement in Attachment A. For any advance payment, refer to Attachment F for additional terms and conditions. All terms and conditions set forth in Attachment F are incorporated as if set out fully herein. II. INCORPORATION OF LAWS, RULES, REGULATIONS AND POLICIES Both the Recipient and the Department shall be governed by applicable State and Federal laws, rules and regulations, including, but not limited to, those identified in Attachment B of this Agreement. III. PERIOD OF AGREEMENT This Agreement shall begin on the date of the fund offering letter and shall end June 30, 2002, unless terminated earlier in accordance with the provisions of Paragraphs VII. or IX. or XIV. of this Agreement. Final requests for reimbursement shall be submitted no later than thirty (30) days after the termination date of the Agreement. Any requests received after August 15, 2002, may, in the discretion of the Department, not be reimbursed from this Agreement. Reimbursement requests shall not be submitted by facsimile transmission. IV. MODIFICATION OF AGREEMENT; REPAYMENTS Either party may request modification of the provisions of this Agreement. Changes which are mutually agreed upon shall be valid only when reduced to writing, duly signed by each of the parties hereto, and attached to the original of this Agreement. All refunds or repayments to be made to the department under this Agreement are to be made payable to the order of "Department of Community Affairs", and mailed directly to the department at the following address: Department of Community Affairs Cashier Finance and Accounting 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 V. MONITORING The Recipient shall constantly monitor its performance under this Agreement to ensure that time schedules are being met, the Budget and Scope of Work are being accomplished within specified time periods, and other performance goals are being achieved. Such review shall be made for each function, or activity set forth in Attachment A tO this Agreement, and shall be reported in accordance with the reporting requirements of Attachment D. VI. LIABILITY mo Except as otherwise provided in subparagraph (B) below, the Recipient shall, be solely responsible to parties with whom it shall deal in carrying out the terms of this Agreement, and shall save the Department harmless against all claims of whatever nature by third parties arising out of the performance of work under this VII. Agreement. For purposes of this Agreement, Recipient agrees that it is not an employee or agent of the Department, but is an independent contractor. Bo Any Recipient who is a state agency or subdivision, as defined in Section 768.28, Florida Statutes, agrees to be fully responsible for its negligent acts or omissions or tortious acts which result in claims or suits against the Department, and agrees to be liable for any damages proximately caused by said acts or omissions. Nothing herein is intended to serve as a waiver of sovereign immunity by any Recipient to which sovereign immunity applies. Nothing herein shall be construed as consent by a state agency or subdivision of the State of Florida to be sued by third parties in any matter arising out of any contract. NONCOMPLIANCE, DEFAULT, REMEDIES, AND TERMINATION If the Recipient fails to comply with any term applicable to an award under Rule Chapter 9G-19 F.A.C., or this Agreement, the Department may take one or more of the following actions, as indicated by the attendant circumstances: temporarily withhold cash payments, pending correction of the deficiency, or withhold the final 10 percent of the grant award until the final work product is completed, submitted and determined to be acceptable by the Department; 2. disallow all or part of the cost of the activity or action not in compliance; 3. suspend or terminate the award; disallow future participation in the program or funding provided under this rule. chapter; 5. recover all funds provided under the current award. Costs of the Recipient resulting from obligations incurred by the Recipient during suspension or after termination of an award are not allowable unless the Department expressly authorizes them in the notice of suspension or termination, or subsequently authorizes them in writing. Other Recipient costs during suspension or after termination which are necessary and not reasonably avoidable may be allowable if: the costs result from obligations which were properly incurred by the Recipient before the effective date of the suspension or termination, are not in anticipation of the suspension or termination, and, in the case of termination, are not cancelable, and Co Eo the costs would be allowable if the award were not suspended or expired normally at the end of the period in which the termination occurs. Recipient of terminated grants shall remain obligated to provide all required closeout information. If the necessary funds are not available to fund this Agreement as a result of action by Congress, the state Legislature, the Office of the Comptroller or the Office of Management and Budgeting, or if any of the following events occur ("Events of Default"), all obligations on the part of ihe Department to make any further payment of funds hereunder shall, if the Department so elects, terminate and the Department may, at its option, exercise any of its remedies set forth herein, but the Department may make any payments or parts of payments after the happening of any Events of Default without thereby waiving the right to exercise such remedies, and without becoming liable to make any further payment: If any warranty or representation made by the Recipient in this Agreement or any previous Agreement with the Department shall at any time be false or misleading in any respect, or if the Recipient shall fail to keep, observe or perform any of the terms or covenants contained in this Agreement or any previous Agreement with the Department and has not cured such in timely fashion, or is unable or unwilling to meet its obligations thereunder; o If any material adverse change shall occur in the financial condition of the Recipient at any time during the term of this Agreement from the financial condition revealed in any reports filed or to be filed with the Department, and the Recipient fails to cure said material adverse change within thirty (30) days from the time the date written notice is sent by the Department. o If any reports required by this Agreement have not been submitted to the Department or have been submitted with incorrect, incomplete or insufficient information; ° If the Recipient has failed to perform and complete in timely fashion any of the services required under the Budget and Scope of Work attached hereto as Attachment A. Upon the happening of an Event of Default, then the Department may, at its option, upon written notice to the Recipient and upon the Recipient's failure to timely cure, exercise any one or more of the following remedies, either concurrently or consecutively, and the pursuit of any one of the following remedies shall not preclude the Department from pursuing any other remedies contained herein or otherwise provided at law or in equity: Terminate this Agreement, provided that the Recipient is given at least thirty (30) days prior written notice of such ,termination. The notice shall be effective when placed in the United States mail, first class mail, postage prepaid, by registered or certified mail-return receipt requested, to the address set forth in paragraph (10) herein; Commence an appropriate legal or equitable action to enforce performance of this Agreement; 3. Withhold or suspend payment of all or any part of a request for payment; Exercise any corrective or remedial actions, to include but not be limited to, requesting additional information from the Recipient to determine the reasons for or the extent of non-compliance or lack of performance, issuing a written warning to advise that more serious measures may be taken if the situation is not corrected, advising the Recipient to suspend, discontinue or refrain from incurring costs for any activities in question or requiring the Recipient to reimburse the Department for the amount of costs incurred for any items determined to be ineligible; o Exercise any other rights or remedies which may be otherwise available under law; The Department may terminate this Agreement for cause upon such written notice as is reasonable under the circumstances. Cause shall include, but not be limited to, misuse of funds; fraud; lack of compliance with applicable rules, laws and regulations; failure to perform in a timely manner; and' refusal by the Recipient to permit public access to any document, paper, letter, or other material subject to disclosure under Chapter 119, Fla. Stat., as amended. Ho Suspension or termination constitutes final agency action under Chapter 120, Fla. Stat., as amended. Notification of suspension or termination shall include notice of administrative hearing rights and time frames. The Recipient shall remm funds to the Department if found in non-compliance with laws, rules, regulations governing the use of the funds or this Agreement. I. This Agreement may be terminated by the written mutual consent of the parties. Jo Notwithstanding the above, the Recipient shall not be relieved of liability to the Department by virtue of any breach of Agreement by the Recipient. The Department may, to the extent authorized by law, withhold any payments to the Recipient for purpose of set-off until such time as the exact amount of damages due the Department from the Recipient is determined. s VIII. NOTICE AND CONTACT All notices provided under or pursuant to this Agreement shall be in writing, either by hand delivery, or first class, certified mail, return receipt requested, to the representative identified below at the address set forth below and said notification attached to the original of this Agreement. The Department designates Edgar Gonesh, Manager, Emergency Management Preparedness and Assistance Program, Division of Emergency Management, as the Department's Contract Manager. All communications, written or oral, relating to this Agreement shall be directed to him at the following address: Department of Community Affairs Division of Emergency Management 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 For the Recipient, all communications, written or oral, relating to this Agreement shall be directed to the following: Recipient's Contract Manager's Name and Address: IX. Co In the event that different representatives are designated by either party after execution of this Agreement, notice of the name, title and address of the new representative will be rendered as provided in Paragraph VIII. A.and B above. OTHER PROVISIONS The validity of this Agreement is subject to the troth and accuracy of all the information, representations, and materials submitted or provided by the Recipient, in this Agreement, in any subsequent submission or response to Department request, or in any submission or response to fulfill the requirements of this Agreement, and such information, representations, and materials are incorporated by reference. The lack of accuracy thereof or any material changes shall, at the option of the Department and with thirty (30) days written notice to the Recipient, cause the termination of this Agreement and the release of the Department from all its obligations to the Recipient. The Recipient agrees to comply with the Americans With Disabilities Act (Public Law 101-336, 42 U.S.C. Section 12101 et seq.), if applicable, which prohibits discrimination by public and private entities on the basis of disability in the areas of employment, public accommodations, transportation, State and local government services, and in telecommunications Co This Agreement shall be construed under the laws of the State of Florida, and venue for any .actions arising out of this Agreement shall lie in Leon County. If any provision hereof is in conflict with any applicable statute or rule, or is otherwise unenforceable, then such provision shall be deemed null and void to the extent of such conflict or unenforceability, and shall be deemed severable, but shall not invalidate any other provision of this Agreement. With respect to any Recipient which is not a local government or state agency, and which receives funds under this Agreement from the federal government, the Recipient certifies, to the best of its knowledge and belief, that it and its principals: are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by a federal department or agency; have not, within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; are not presently indicted or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any offenses enumerated in paragraph 11 (g)2. of this certification; and have not within a three-year period preceding this Agreement had one or more public transactions (federal, state or local) terminated for cause or default. Where the Recipient is unable to certify to any of the statements in this certification, such Recipient shall attach an explanation to this Agreement. No waiver by the Department of any right or remedy granted hereunder or failure to insist on strict performance by the Recipient shall affect or extend or act as a waiver of any other right or remedy of the Department hereunder, or affect the subsequent exercise of the same right or remedy by the Department for any further or subsequent default by the Recipient. Any power of approval or disapproval granted to the Department under the terms of this Agreement shall survive the terms and life of this Agreement as a whole. More than one copy of this Agreement may be executed. Any copy with original signatures may be considered an original. X. AUDIT REQUIREMENTS The Recipient agrees to maintain financial procedures and support documents, in accordance with generally accepted accounting principles, to account for the receipt and expenditure of funds under this Agreement. Bo These records shall be available at all reasonable times for inspection, review, or audit by state personnel and other personnel duly authorized by the Department. "Reasonable" shall be construed according to circumstances, but ordinarily shall mean normal business hours of 8:00 a.m. to 5:00 p.m., local time, Monday ~trough Friday. The Recipient shall also provide the Department with the records, reports or financial statements upon request for the purposes of auditing and monitoring the funds awarded under this Agreement. In the event that the Recipient expends State awards (i.e., State of Florida financial assistance provided to Recipient to carry out a State project) from all state government sources equal to or in excess of $300,000 in total in any fiscal year of such Recipient, the Recipient must have a State single or project-specific audit for such fiscal year in accordance with Section 216.3491, Florida Statutes and with applicable rules of the Executive Office of the Governor and the Comptroller, and Chapter 10.600, Rules of the Auditor General. Specific instructions relating to the information needed, format and organization, timelines and/or deadlines, will be provided to the Recipient by the Department following receipt of further guidance from the Office of the Auditor General. See Attachment G for further anticipated audit requirements. 8 XI. SUBCONTRACTS AND PROCUREMENT mo If the Recipient subcontracts any or all of the work required under this Agreement, the Recipient agrees to include in the subcontract that the subcontractor is bound by the terms and conditions of this Agreement with the Department. The Recipient agrees to include in the Subcontract that the subcontractor shall hold the Department and Recipient harmless against all claims of whatever nature arising out of the subcontractor's performance of work under this Agreement, to the extent allowed and required by law. See Attachment E for any additional terms and conditions pertaining to subcontracts. XII. TERMS AND CONDITIONS XIII. The Agreement contains all the terms and conditions agreed Upon by the parties. ATTACHMENTS A. All attac?maents to this Agreement are incorporated as if set out fully herein. Bo. In the event of any inconsistencies or conflict between the language of this Agreement and the attachments hereto, the language of such attachments shall be controlling, but only to the extent of such conflict or inconsistency. STANDARD CONDITIONS The Recipient agrees to be bound by the following standard conditions: The State of Florida's performance and obligation to pay under this Agreement is contingent upon aa annual appropriation by the Legislature, and subject to any modification in accordance with Chapter 216, Florida Statutes. Bo If otherwise allowed under this Agreement, extension of an Agreement for contractual services shall be in writing for a period not to exceed six (6) months and shall be subject to the same terms and conditions set forth in the initial Agreement. There shall be only one extension of the Agreement unless the failure to meet the criteria set forth in the Agreement for completion of the Agreement is due to events beyond the control of the Recipient. Co All bills for fees or other compensation for services or expenses shall be submitted in detail sufficient for a proper preaudit and postaudit thereof. If otherwise allowed under this Agreement, all bills for any travel expenses shall be submitted in accordance with s. 112.061, Florida Statutes. Eo The Department reserves the right to unilaterally cancel this Agreement for refusal by the Recipient to allow public access to all documents, papers, letters or other material subject to the provisions of Chapter 119, Florida Statutes, and made or received by the Recipient in conjunction with the Agreement. The State of Florida will not intentionally award publicly-funded contracts to any contractor who knowingly employs unauthorized alien workers, constituting a violation of the employment provisions contained in 8 U.S.C. Section 1324a(e) [Section 274A(e) of the Immigration and Nationality Act ("INA")]. The Department shall consider the employment by any contractor of unauthorized aliens a violation of Section 274A(e) of the INA. Such violation by the Recipient of the employment provisions contained in Section 274A(e) of the INA shall be grounds for unilateral cancellation of this Agreement by the Department. Go A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or a Public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with a public entity, and may not transact business with any public entity in excess of Category Two for a period of 36 months from the date of being placed on the convicted vendor list. XV. STATE LOBBYING PROHIBITION No funds or other resources received from the Department in connection with this Agreement may be used directly or indirectly to influence legislation or any other official action by the Florida Legislature or any state Department. XVI. LEGAL AUTHORIZATION The Recipient certifies with respect to this Agreement that it possesses the legal authority to receive the funds to be provided under this Agreement and that, if applicable, its governing body has authorized, by resolution or otherwise, the execution and acceptance of this Agreement with all covenants and assurances contained herein. The Recipient also certifies that the undersigned possesses the authority to legally execute and bind Recipient to the terms of this Agreement. 10 XVII. EQUIPMENT AND PROPERTY MANAGEMENT If the Scope of Work comemplates the acquisition of equipment, then Recipient agrees to use said equipment for emergency management purposes only, and to properly maintain and repair said equipment. Recipient shall establish adequate maintenance procedures to keep the equipment in proper working condition. Recipient shall establish a control system to insure adequate safeguards to prevent loss, damage or theft of the equipment. Recipient shall promptly advise the Department of any loss, damage or theft affecting said equipment. Recipient shall make this equipment available to the Local Emergency Management Agency established pursuant to Section 252.38, Florida Statutes, and to the State of Florida, upon request, in the event said equipment is needed for emergency management purposes. Recipient shall not sell, lease, rent, lend, encumber or dispose of said equipment without the written permission of the Department. XVIII. COPYRIGHT, PATENT AND TRADEMARK If the Recipient brings to the performance of this Agreement a pre-existing patent or copyright, the Recipient shall retain all rights and entitlements to that pre-existing patent or copyright unless the Agreement provides otherwise. If any discovery or invention arises or is developed in the course of or as a result of work or services performed under this Agreement, or in any way connected herewith, the Recipient shall refer the discovery or invention to the Department for a determination whether patent protection will be sought in the name of the State of Florida. Any and all patent rights accruing under or in connection with the performance of this Agreement are hereby reserved to the State of Florida. In the event that any books, manuals, films, or other copyrightable material are produced, the Recipient shall notify the Department. Any and all copyrights accruing under or in connection with the performance under this Agreement are hereby reserved to the State of Florida. Co Within thirty (30) days of execution of this Agreement, the Recipient shall disclose all intellectual properties relevant to the performance of this Agreement which he or she knows or should know could give rise to a patent or copyright. The Recipient shall retain all rights and entitlements to any pre-existing intellectual property which is so disclosed. Failure to disclose will indicate that no such property exists. The Department shall then, under Paragraph B., have the right to all patents and copyrights which occur during performance of the Agreement. Recipient shall be granted a royalty-free nonexclusive license to use patented or copyrighted material for research or educational purposes. XIX. PUBLICATIONS AND PUBLICITY Recipient shall, in publicizing, advertising, or describing the project, state: "Sponsored by the State of Florida, Division of Emergency Management." If the project is displayed or referenced in written material, the words "State of Florida, Division of Emergency Management" shall appear in the same size letters or type as the name of the Recipient. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be execti~i5 ' by their undersigned officials as duly authorized. RECIPIENT: CITY OF BOYNTON BEACH BY: Name and Title: Date: Federal Employer I.D. STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS BY: Name and Title: Joseph F. Myers, Director Date: 12 Attachment A SCOPE OF WORK The information and representations contained in the grant application submitted to the Department by the Recipient and evaluated pursuant to Rule Chapter 9G-19, Florida Administrative Code, are hereby incorporated by reference into this Agreement. Within thirty days of the date of execution of this Agreement, Recipient will supply a document which includes an activities timeline, a list of deliverables, and a revised budget, for the approval of the Department. This document will address, with particularity and appropriate discussion, each task necessary to complete the project identified in Recipient's application for grant funding. The revised budget portion of this document must be consistent in format with the budget proposed in the original project application. It must not consist of new line item expenditures, but will indicate whether the cost of the line items detailed in the original budget have increased or decreased from the original information. Any proposed deviations from the original budget may not exceed 5% (increase or decrease) of the originally approved amounts in the expenditure categories affected. The total amount of grant money budgeted may not exceed the amount authorized in the Agreement. Failure to supply the above-referenced document, or disapproval of this document by the Department, will result in the denial of funding. If the Recipient succeeds in acquiring products or services for less than the budgeted amount, then it must notify the Department and request authorization to apply the unexpended funds to the project, identifying the proposed use for the unexpended funds. If the unexpended funds can be applied to enhance the project through acquisition of additional equipment or services which will provide the same benefit as the approved project, then the Department may approve the use of the unexpended funds. The Recipient will purchase radio equipment as listed in the grant application. The purchasing process shall be in accordance with County, State and if applicable, Federal purchasing requirements, rules and regulations. All equipment purchased by grant funding that is capable of emitting radio frequency energy shall be properly licensed by the Federal Communications Commission and shall be in compliance and accordance with the communications plans of the Division of Wireless Technology (formerly the Division of Communications) of the Florida Department of Management Services. All wiring, cabling and interfacing of equipment to be purchased, whether purchased under the grant or existing, will be in Compliance with applicable building codes and good engineering practice. 13 Motor vehicles purchased or used in carrying the equipment will be properly authorized and licensed by the State of Florida and will be operated by personnel having the appropriate authorization. Contractors performing work in accordance with the grant application will be properly licensed, bonded, certified and permitted in accordance with Federal, State, County and/or local requirement and all work performed will be done in a professional, workmanlike manner. All electrical and electronic equipment purchased using grant funds will be Underwriters Laboratory approved. All communications devices and equipment will be compatible with similar systems operated by the Palm Beach County Emergency Operations Center and with the State of Florida Emergency OPerations Center. The Recipient will prOvide to the Division of Emergency Management the following, prior to or Mth the final progress report: l) Standard Operating Procedures for the operation of the equipment and services obtained under the terms of this grant including but not limited to extent of use, responsible parties and procedures for operating and using the system during routine and disaster conditions; 2) A training schedule for the operators of the equipment and system. 3) A list of the equipment purchased, showing installed location, manufacturer and model and serial numbers. 4) A diagram of the finished system, showing the "as-built" configuration. 5) A list of all results of tests and acceptance trials of the' equipment, a copy of the syllabus used for the training and the attendance lists by name and title of the applicant's staff or employees attending the training. A comprehensive test of the system will be held prior to the submission of the final progress report and request for payment. The test will include exercising the system to its capacity, testing the procedures and instructions for operation, defining the areas of coverage and the preparation of a test result, which shall be included in the final progress report. The Recipient will provide an in-kind match valued at $2,500 or 12.5% of the total project cost. 2. 3. 4. 5. Attachment B PROGRAM STATUTES AND REGULATIONS Chapter 252, Florida Statutes Rule Chapter 9G-19, Florida Administrative Code Chapter 287, Florida Statutes Chapter 119, Florida Statutes Chapter 60A-1, Florida Administrative Code (The bottom portion of this page intentionally left blank.) Attachment C Ao RECORD KEEPING All original records pertinent to this Agreement shall be retained by the Recipient for three years following the date of termination of this Agreement or of submission of the final close-out report, whichever is later, with the following exceptions: If any litigation, claim or audit is started before the expiration of the three year period and extends beyond the three year period, the recordS will be maintained until all litigation, claims or audit findings involving the records have been resolved. Records for the disposition of non-expendable personal property valued at $1,000 or more at the time of acquisition shall be retained for three years after fmal disposition. o Records relating to real property acquisition shall be retained for three years after closing of title. All records, including supporting documentation of all program costs, shall be sufficient to determine compliance with the requirements and objectives of the Scope of Work, Attachment A, and all other applicable laws and regulations. The Recipient, its employees or agents, including all subcontractors or consultants to be paid from funds provided under this Agreement, shall allow access to its records at reasonable times to the Department, its employees, and agents. "Reasonable" shall be construed according to the circumstances but ordinarily shall mean during normal business hours of 8:00 a.m. to 5:00 p.m., local time, on Monday through Friday. "Agents" shall include, but not be'limited to, auditors retained by the Department. (The bottomportion of this page intentionally left blank.) Attachment D ~-- REPORTS At a minimum, the Recipient shall provide the Department with quarterly Financial Report/Reimbursement Requests, quarterly Summary Project Progress Reports and final Close-out Reports. The Recipient shall utilize the report formats provided by the Department. Quarterly reports are due to be received by the Department no later than fifteen (15) days after the end of each quarter and shall continue to be submitted each quarter until submission of the administrative close-out report. The ending dates for each quarter and the report due dates are as follows: Quarter Ending Date Reports Due 1 September 30, 2000 October 15, 2000 2 December 31, 2000 January 15, 2001 3 March 31, 2001 April 15, 2001 4 June 30, 2001 July 15, 2001 The final close-out report is due forty-five (45) days after termination of this Agreement or upon completion of the activities contained in this Agreement. Pursuant to role 9G-19.010(7), the Recipient shall identify the applicable procurement rules, regulations and standards to be used in the first progress report to the Division following the notice of award. If all required reports and copies prescribed above are not sent to the Department or are not completed in a manner acceptable to the Department, the Department may withhold further payments until they are completed or may take such other action as set forth in Paragraphs VII. and IX. The Department may take action for non-compliance consistent with Rule 9G-19.014, F.A.C. if reports are not timely received. "Acceptable to the Department" means that the work product was completed in accordance with generally accepted principles and applicable law, and is consistent with the Scope of Work, as determined by the Department in its sole discretion. Upon reasonable notice, the Recipient shall provide such additional program updates or information as may be requested by the Department. The Department shall be permitted to inspect and monitor the records and facilities of funded projects and award recipients. Such inspections may occur without notice at any reasonable time, which shall be presumed to be normal business hours on Monday through Friday. 17 Attachment E PROCUREMENT, SUBCONTRACTS AND SUBGRANTS Ao Subcontracts entered into by a Recipient in connection with any portion of the proposed project shall contain all terms of the Recipient's Agreement with the Department. Bo The Recipient shall send a copy of any subcontracts entered into in connection with implementing the proposed project to the Department within 30 days after their effective date. Co Recipient shall not award subgrants using funds awarded pursuant to this role chapter. Do Recipient shall comply with all applicable procurement roles and regulations in securing goods and services to implement a proposed project. Wherever required by law or otherwise permitted, Recipient shall utilize competitive procurement practices. (The bottom portion of this page intentionally left blank.) 18 Attachment F ~- FUNDING/CONSIDERATION Ao Co Do This is a cost-reimbursement Agreement. The Recipient shall be reimbursed for costs incurred in the satisfactory performance of work hereunder in an amount not to exceed $19,995 subject to the availability of funds. The amount of funds available pursuant to this rule chapter may be adjusted proportionally when necessary to meet any matching requirements imposed as a condition of receiving federal disaster relief assistance or planning funds. Funds received from the Emergency Management, Preparedness and Assistance Trust Fund may not be used to supplant existing funds. The Recipient shall establish a .separate account code in an interest beating account for tracking all deposits, expenditures and interest pertaining to an award. A separate account code shall be established for each award received. The interest earned on said account (s) shall be remitted promptly to the Department, but no later than ninety days after the completion of the Agreement. Any advance payment under this Agreement is subject to s. 216.181(14), Florida Statutes. Twenty-five (25) percent of an award may be advanced. Payment of reimbursable expenditures may be requested thereafter, at the end of each quarter. If an advance payment is requested, the budget data on which the request is based and a justification letter shall be submitted. The letter will specify the amount of advance payment needed and provide an explanation of the necessity for and proposed use of these funds. The Recipient shall mark the appropriate place below indicating whether or not an advance payment is requested, if an advance payment is requested enter the amount of the request. No advance payment is requested; payment will be made solely on a reimbursement basis. An advance payment of $ is requested; balanCe of payments will be made on a reimbursement basis. (Justification letter must be provided.) After the initial advance, if any, quarterly payments may be made for all reimbursable expenses incurred as of the end of each quarter. The Recipient agrees to expend funds in. accordance with the Scope of Woik, Attachment A of this Agreement. 19 mo Recipient agrees to perform the project identified in said application utilizing the funds provided under this Agreement, supplemented by any funds represented in said application as matching funds. Recipient shall not expend more than five percent (5%) of the total funds awarded for administrative expenses. "Administrative expenses" means the direct costs of staff managing the project and other direct costs for managing the project, as well as the applicant's indirect rate, if any, applied to those direct costs of management. The sum total of direct and indirect costs identified shall not exceed five percent (5%) of the total ftmds awarded from the trust fund for the project. Fo Funds disbursed to the Recipient by the Department that are not expended in implementing the project shall be returned to the Department, along with interest earned on the funds, within ninety (90) days of the expiration of the award Agreement. (The bottom portion of this page intentionally left blank.) 20 Attachment G ANTICIPATED AUDIT REQUIREMENTS mo In the event that the Recipient expends State awards (i.e., State of Florida financial assistance provided to Recipient to carry out a State project) from all state government sources equal to or in excess of $300,000 in total in any fiscal year of such Recipient, the Recipient must have a State single or project-specific audit for such fiscal year in accordance with Section 216.3491, Florida Statutes and with applicable rules of the Executive Office of the Governor and the Comptroller, and Chapter 10.600, Rules of the Auditor General. o The annual financial audit report shall include all management letters and the Recipient's response to all f'mdings, including corrective actions to be taken. The annual financial audit report shall include a schedule of financial assistance specifically identifying all Agreement and other revenue by sponsoring agency and Agreement number. The complete financial audit report, including all items specified in (A) 1 and 2 above, shall be sent directly to: Department of Community Affairs Office of Inspector General 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 and State of Florida Auditor General Attn: Ted J. Sauerbeck Room 574, Claude Pepper Building 111 West Madison Street Tallahassee, Florida 32302-1450 In determining the State funds awarded in its fiscal year, the Recipient shall consider all sources of State awards, including State funds received from the Department, except that State awards 21 Do received by a nonstate entity for Federal program matching requirements shall be excluded from consideration. The funding for this Agreement was received by the Department as a Grant and Aid appropriation. In connection with the audit requirements addressed in (A) above, the Recipient shall ensure that the audit complies with the requirements of Section 216.3491 (7), Florida Statutes. This includes submission of a reporting package as defined by Section 216.3491(2)(d), Florida Statutes, and Chapter 10.600, Rules of the Auditor General. o If the Recipient expends less than $300,000 in State awards in its fiscal year, an audit conducted in accordance with the provisions of Section 216.3491, Florida Statutes, is not required. In the event that the Recipient expends less than $300,000 in State awards in its fiscal year and elects to have an audit conducted in accordance with the provisions of Section 216.3491, Florida Statutes, the cost of the audit must be paid from non-State funds (i.e., the cost of such an audit must be paid from recipient funds obtained from other than State entities). In the event the audit shows that the entire funds disbursed hereunder, or any portion thereof, were not spent in accordance with the conditions of this Agreement, the Recipient shall be held liable for reimbursement to the Department of all funds not spent in accordance with these applicable regulations and Agreement provisions within thirty (30) days after the Department has notified the Recipient of such non-compliance. The Recipient shall retain all financial records, supporting documents, statistical records, and any other documents pertinent to this contract for a period of three years after the date of submission of the final expenditures report. However, if litigation or an audit has been initiated prior to the expiration of the thre'e-year period, the records shall be retained until the litigation or audit findings have been resolved. The Recipient shall have all audits completed in accordance with 216.3491, Fla. Stat. by an independent certified public accountant (IPA) who shall either be a certified public accountant or a public accountant licensed under Chapter 473, Fla. Stat. The IPA shall state that the audit complied with the applicable provisions noted above. 22 ANTICIPATED FORMAT STATE FUNDS AWARDED AS MATCHING FUNDS FOR FEDERAL PROGRAMS: Federal Program 1 (list Federal agency, Catalog of Federal Domestic Assistance title and number) - $ Federal Program 2 (list Federal agency, Catalog of Federal Domestic Assistance title and number) - $ [Continue Listing if Needed] TOTAL STATE FUNDS AWARDED FOR FEDERAL MATCH STATE FUNDS AWARDED PURSUANT TO SECTION 216.3491, FLORIDA STATUTES: State Program 1 (list State agency, Catalog of State Financial Assistance title and number) - State Program 2 (list State agency, Catalog of State Financial Assistance title and number) - [Continue Listing if Needed] TOTAL STATE FUNDS AWARDED PURSUANT TO SECTION 216.3491, FLORIDA STATUTES $ TOTAL STATE FUNDS AWARDED 23 CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM NAT1 AGE] equested City Commission Date Final Form Must be Turned Requested City Commission Meeting Dates in to City Clerk's Office Meeting Dates arch 20, 2001 March 7, 2001 (5:00 p.m.) [] May 15, 2001 ~ril 3, 2001 March 21,2001 (5:00 p.m.) [] June 5, 2001 }ril 17, 2001 April 4, 2001 (5:00 p.m.) [] June 19, 2001 ~' 1, 2001 April 18, 2001 (5:00 p.m.) [] July 3,200l [DA ITEM REC( MMENDATION: Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Heating [] Legal [] Bids [] Un£mished Business [] Announcement [] Presentation [] City Manager's Report Please place this request on the May 15, 2001 City Commission Agenda under Consent Agent appro furthe: EXPI PRO~ AGE~ OWN] LOC~ DESC PRO( FISC~ ALT£ ~. The Community Redevelopment Agency Board with a 4 to 3 vote recommended that the subject request be 7ed subject to the condition that business operation be limited to the hours between 7:00 a.m. and 7:00 p.m. For details pertaining to this request see attached Department of Development Memorandum No. PZ 01-076. ~ANATION: .CT NAME: Y: ;R: lION: HPTION: ZUHAIR MAROUF VARIANCE N/A Zuhair Marouf A portion of Lots 4 & 5 of Sam Brown Jr.'s Subdivision Request for a relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 6, C.3. requiring minimum lot area of 15,000 square feet, to allow development of a 9,908 square foot lot, to build a one-bay car wash facility on a parcel zoned C-3, and to allow a 5,092 square foot variance. RAM IMPACT: N/A L IMPACT: N/A ?,NATIVES: N/A I Depa~efit oflDevelopment Director \\ChndV[ CC Age AN~S HRDATAXPI anning\S HARED\WPXProj ects da Request 5-15-01 Zuhair MaroufVariance.dot City Manager's Signature City Attorney / Finance / Human Resources S:\BUL] ETINLFORMSkAGENDA ITEM REQUEST FORM.DOC EXHIBIT "C" Conditions of Approval Project name: Zuhair Marouf's Variance File number: ZNCV 01-008 (lot area) Reference: Zoning Code Variance Application dated March 28, 2001 I DEPARTMENTS I INCLUDE REJECT PUBLIC WORKS Comments: NONE X UTILITIES Comments: NONE X FIRE Comments: NONE X POLICE Comments: NONE X ENGINE~ERING DIVISION Comments: NONE X BUILDING DIVISION X Comments: NONE PARKS AND RECREATION Comments: NONE X FORESTER/ENVIRONMENTALIST Comments: NONE X PLANNING AND ZONING Comments: NONE X ADDITIONAL COMMUNITY REDEVELOPMENT BOARD CONDITIONS Comments: Business operation be limited to the hours between 7:00 a.m. and X 7:00 p.m.. ADDITIONAL CITY COMMISSION CONDITIONS Comments: To be determined. X MWR/arw S:\PLANNING',SHARED\WP\PROJECTS~UNAIR MAROUF VARIANC~CONDITIONS OF APPROVAL ZONING CODE VARIANCE.DOC PR( APP DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA JECT NAME: Zuhair Marouf's Variance .ICANT'S AGENT: Zuhair Marouf APPLICANT'S ADDRESS: 2360 North Federal Highway, Boynton Beach, FL 33435 DA OF CITY COMMISSION PUBLIC HEARING: May 15, 2001 TYPE OF RELIEF SOUGHT: Lot area. LOC DR4 appE findil as f¢ OR Bea( reliel staff DATI S:\PLAN ~,TION OF PROPERTY: Part of Lots 4 & 5, Sam Brown Jr's Subdivision, ¥1NG(S): SEE EXHIBIT "A", "B" and "C" ATTACHED HERETO. X THIS MATTER came before the City Commission of the City of Boynton Beach, Florida aring on the Consent Agenda on the date above. The City Commission hereby adopts the gs and recommendation of the Community Redevelopment Agency Board, which Board found lows: THIS MATTER came on to be heard before the City Commission of the City of Boynton h, Florida on the date of hearing stated above, The City Commission having considered the sought by the applicant and heard testimony from the applicant, members of city administrative ~nd the public finds as follows: Application for the relief sought was made by the Applicant in a manner consistent with the requirements of the City's Land Development Regulations. 2. The Applicant X HAS HAS NOT established by substantial competent evidence a basis for the relief requested. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit "E" with notation "Included". The Applicant's application for relief is hereby X GRANTED subject to the conditions referenced in paragraph 3 hereof. DENIED 5. This Order shall take effect immediately upon issuance by the City Clerk. 6, All further development on the property shall be made in accordance with the terms and conditions of this order. 7. Other D: ING\SHARED\WP~PROJECTS~ZUHAIR MAROUF VARIANCE~DEVELOPMENT ORDER, DOC DEVELOPMENT SERVICES DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM ~f431-076 Staff Re port Community Redevelopment Agency Board and City Commission Meeting Date: May 8, 2001 File No: ZNCV 01-008 - Lot area. Location: Part of Lots 4 & 5, Sam Brown Jr's Subdivision Owner: Zuhair Marouf Project: Building a one-bay car wash facility on a parcel zoned C-3. Variance Request: Request for a relief from the City of Boynton Beach Land Development Regulations, Chapter 2, Zoning, Section 6, C.3. requiring minimum lot area of 15,000 square feet, to allow development of a 9,908 square foot lot, to build a one-bay car wash facility on a parcel zoned C-3, and to allow a 5,092 square foot variance. BACKGROUND The subject vacant property is currently zoned C-3, Community Commercial zoning district. (see Exhibit "A" - location map). City records show that the property was rezoned from C-1 to C-3 in 1975. The Sam Brown Jr's Subdivision was platted in 1924 with typical lot sizes varying between five (5) acres to ten (10) acres (see Exhibit "B" -Sam Brown Jr's Subdivision Plat). Subsequent to platting, some of the original parcels had been subdivided to create smaller parcels, some of which are substandard by current zoning requirements. That activity created small parcels on Lots 4 and 5 of the above-referenced subdivision. The owner of one of those small parcels (Mr. Marouf) is requesting relief from the regulations to allow a substandard lot to be developed for a commercial car wash facility (see Exhibit "C" - survey). Palm Beach County records indicate that the subject property had been subdivided by. 1975. Although it cannot be confirmed what minimum lot standards were in effect at that time, based 'on the current minimum lot size requirement for the C-1 Zoning District, 9,000 square feet, the subject lot was created in conformance with zoning regulations in effect at that time'. The parcel then became non-conforming by virtue of the rezoning to C-3, which staff understands was city-initiated. The applicant, Mr. Marouf, acquired the subject property in 1999. The owner of the subject property also owns the Texaco gas station to the west. In the past, Mr. Marouf has expressed his intention to re-assemble the parcels and add a car wash service to the gas station. Staff has been required to respond that to assemble the two properties and expand the existing gas station with a car wash would represent the unlawful expansion of a legal non-conforming use. The gas station is a non-conforming use as it does not meet current location requirements of the City's Land Development Regulaticns. The adjacent parcel would therefore have to be developed separate from the non-conforming gas station. age 2 larouf variance ile No. ZNCV 01-008 '~e following is a description of the zoning districts and land uses of surrounding properties: I~ orth: A multi-family residential property zoned C-3; ~ :)uth: Las Palmas road right-of-way, and farther south a restaurant parking lot zoned C-3; East: A single-family residential dwelling part of Las Palmas development zoned R-l-AA; and V ~est: A Texaco gas station zoned C-3. S :afl visited the area and observed that the access road to the subject property is a standard b, 'o-way road that also is the access road for Las Palmas residential development to the east. C ty records show that relief from frontage and.distance requirements was granted in 1981 for a p operty located approximately 600 feet to the north of the subject property, zoned C-3 and u~ ,ed for a gasoline station (currently inactive). No other variance has been approved for a c(J~mmercial property in the area. I ANALYSIS T e c(~de states that the zoning code variance can not be approved unless the board finds the ~orrowing: That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures or buildings in the same zoning district. That the special conditions and circumstances do not result from the actions of the applicant. That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, 'buildings, or structures in the same zoning district. That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the ordinance and would work unnecessary and undue hardship on the applicant. ' ~ That the variance granted is the minimum variance that will make possible the reasonable use of the land, building, or structure. That the grant of the variance will be in harmony with the general intent and purpose of this chapter [ordinance] and that such variance will not be injurious to the area involved or otherwise detrimental to the public we/fare. St~ reviewed the requested variance focusing on the applicant's response to the above criteda as included in Exhibit "D". Staff concurs with the applicant's response to cdtedon "a" above, wh indicates that there exists special conditions peculiar to the subject parcel, namely size and shape. Staff acknowledges that the City has likely caused the non-conformity by virtue of rezoning action, therefore satisfying criterion "b" above. Furthermore, regardless wh use is ultimately proposed for the subject property, the subject vadance would be required as he minimum variance needed "to make possible the reasonable use of the land". Page 3 Marouf vadance File No. ZNCV 01-008 With respect to impacts on the area, and satisfying criterion "f" above, due to parcel size, and its close proximity to single family homes, impacts upon residential parcels are possible. However, issues related to use and site design are more appropriately addressed at the site plan stage, through proper site layout, buffering, and operational limits. Although full compliance with criterion "f" would only be confirmed at the design stage, it is the position of staff that the hardship has been established by virtue of the fact that the lot was once conforming, and converted to a non-conforming parcel by actions of the City to rezone the property to a zoning district with more stringent lot requirements. It should be noted that two nearby residents have contacted staff to convey their opposition. Although this analysis excludes from consideration the potential consistency/inconsistency of the proposed variance with the Federal Highway Corridor Redevelopment Plan, staff should indicate that the Plan recommends changes in approved uses for the corridor, including the removal of uses that are typically automobile-related/dependant. Furthermore, it is also noteworthy that the property owner would not likely be proposing a car wash if it were not for the existence of the adjacent gas station, which is a legal-nonconforming use. CONCLUSIONS/RECOMMENDATION Based on the facts related specifically to the subject property and variance request, that provides justification for a hardship, staff recommends that this request be granted. This request would allow a reduction in the minimum required lot area from 15,000 square feet to 9,908 square feet, a reduction of 5,092 square feet, to allow development on a non-conforming lot in the C-3, Community Commercial zoning district. No conditions of approval are recommended; however, any conditions of approval added by the Community Redevelopment Agency Board or City Commission will be placed in Exhibit "E". MR/dim S:\Planning~$HARED\WP~ROJECT$~Zuhair Marouf Variance\STAFF REPORT lot size,doc LOCATION MAP Zuhair Marouf Proposed Car Wash EXHIBIT "A" MILES~~.. EXHIBIT "B" ~¥PO LUXO SUBDIVISION N ~. 6,',,/~._~.. ~ °.t' ..q~C IG ,z::~4,D~ CO FL A /' - -~¢.,g ,< z ..... _':.j 'EXHIBIT "0,". ' '-" !t , '}iiiii! ~ I I ' "' ~q~l! ~' I liliPl~ lI ~l j llJ lljjI Il?.: I1 ,,,I:~ 1,,:, i lli I ~ .I~!!i~ i :"!~ I~l, il !: ~:'it EXHIBIT' "D" ' .......... .~ .............. A ffART OF LOTS 4 & 5 SAM BRO~,~, ,tN' .,R. s[,rI~DIVIS[ON LOT ADJACEN~I' TO GATEWAY TEXACO STATiON ,,~ 2360 N. FEDERAL HIGHWAY A Special conditions and ckcumstances exist peculiar to the !~_nd that are not applicable to the other lands in the same zoning district that restrict this parcel of land for the uses intended in the C-3 Zoning District. Namely the size and shape, The Zoning Code does not allow this lot to be used with the Texaco filling station adjacent to the west side The proposed use is a one bay' CARWASH. B Special conditions and circumstances do exist and are not from the results of the actions of the applicant- the zoning requirements were changed and made more s .tringent long a~er this property was xoned C-3 C Granting the yin'ire'ace request will not confer on Me applicant any special priviledge denied by this ordinance to other lands in the same zoning district. By denying the applicant the use of this land is unconstimtionaI- or in plain english The govermment requires taxes from the app!icam without a viable use of.his own !and. ,~ t,,e,4 int~r~tation oft.he nm-,;~qmnq ~c.u:. chapter a · ............. ~ .......... u~ u~ uepnve the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the ordinance and work unnecessary and undue hardship on the applicant for the same reasons listed in para.apb. C. ~' The issumace ,~,f hhe variance will -'- _ ..... "~' ,. ~ ma~.e pnqsib, lo [he reasor:able use o~ the land for the applicant. F By ~aming the variance for the applicant the !and use wi!! be harmoniom with the general intent and purposes of this chapter, and such variari~ Will not be injurious to the area involved or other~vise detrimental to the public welfare as say a neighborhood store that is allowed in this zoning that stays open late at night and sells beer. The canvash vdll only operate during daylight hours. Thank you for your consideration in. this ma~er, Sincerely Requested City Commission Meeting Dates [] torch 20, 2001 [] ^Vril 3,200~ [] April 17,2001 [] May ~, ~-001 CITY OF BOYNTON BEACI AGENDA ITEM REQUEST FO Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.rm) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 15,2001 [] June 5, 2001 [] June 19, 2001 [] July 3, 2001 V-CONSENT AGENDA ITEIq F. Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Approve purchase of ten (10) Automatic External Defibrillators (AED) from Medtronic Physi0Control in the amount of $17,500.00. Funding for purchase derived from an American Heart Association Grant. EXPLANATION: These emergency medical devices are being purchased through a grant award from the American Heart Association. AEDs will be distributed throughout the city and in a number of police cruisers. The grant pays for 100% funding. PROGRAM IMPACT: These devices will greatly reduce the time to defibrillation. It is our department's goal to have a defibrillator available no more than 3 minutes away from any cardiac arrest victim in the city. FISCAL IMPACT: None ALTERNATIVES: Lack of approval will require us to return the grant monies to the American Heart Association and keep 10 AEDs off the str0~t unavailable to our citizens and visitors. ~- Department Head s Signature Fire Rescue Department Department Name ¥ ~fi{~ l[,i~t~ager s Signature City Attorney / Finance / Human Resources S:~BULLETIN~ORMSLatGENDA ITEM REQUEST FORM.DOC To: From: Date: Re: Fire Department Memorandum 01-035 Chief Bingham April 24, 2001 Agenda Request - 10 Automatic External Defibrillators Attached is a copy of a quote for 10 AEDs from the Medtronic PhysioControl Corp in the amount of $17,500.00. Also attached is a copy of the agenda request for commission approval. These devices are sole source due the need to maintain standardization of all our city's AEDs (21 AEDs already purchased to date). These devices will be distributed to a number of city facilities as well as several police cruisers. It is our intention to continue applying for additional funding that will allow for the expansion of this valuable program to additional city facilities and additional police vehicles. Attachments 05/17/2001,~ 18:55 F,~ 800 732 0956 !{EDTRONIC_PHYSI0-CONTROL ~003 PHYSIO-CONTROL Medtronic Physio-Control Corp, ~11 Willow?, Rc~qd NE Hed~Ol~(l, WA ~U73-~fT3 USA 800,442,1 F~; 425.86Z4146 Internee: ~w.ph~foconbol.com Inmmet: ~w.me~romc.~m To: Chief Jim Ness Boynton Beach F'tre Rescue 100 Bast Boynton Beach Bird Boynton Beach, FL 33425 PHONE: 561-375-6333 FAX: 561-742-6334 ,Sal, 1. 3011790.B 2. 3005380 3. 3005343 This quote is firm m Descrintlon LIFEPAK®$00 automated external defib ~LL V~YSlO-CONT~OL FRODUClS O1~ ABOVE QU( 2000 COMPIJANT: PCr~C~AS~D ~ ~s ~ (o~oN~ ~ODU~ ~QUI~). Bip~sic wavcfo~. ' SP~ AT ~ O~ 0~). ~ o~ ~fl ot~r ae~sofies must ~ ~er~ s~p~ef~ ~c~om inelud~ with ~h o~. Lithium battery pak ~ ~ ~~ble lithium ~a~ p~, For ~, M~ thc ~ 5~ : Complete carrying ~se : TOTAL TInS QUOTE DiscountS: Contlnutd next page,,, NOTE: TERMS CONTAINED ON THE REVERSE SIDE OF ~ilS i)OCUMENI~ AND ARE INCORPOFIA¥1ED HEREIN. Spec f cailnn~ and pnce,.~ .~ub eof fO Gh n w I Quotation #: Page #: Quote Date: Representative: FOB: Shipping: Terms: 4/20/2001 llator 10 rSNOT batteries of setup DAW1343711-A t 3/8/2001 Debbi Stanfield 800442- l 142 x2305 Redmond, WA 15-30 Net 30 Days {Jnit ~ ~ Total $3,605.00 $1,855.00 $17,500.00 10 $210.00 $210.00 No Charge I0 $113.00 $113.00 No Charge $17,500.00 DF THIS SAI. ES AGREEMENT DAW 05/17/2001 15:$5 FA~ 800 732 PHYSIO-CONTROL To: Chief Jim Ness BoYnton Beach PRe Rescue 100 East Boynton Beach Bird Boynton Beach, FL 33425 PHONE: 561-375-6333 FAX:561-742-6334 Par~ # 0 9 ~ 6 }IEDTRON I C_PHYS I 0- C 0NTROL Mecttronic Phyaio-Contro~ Corp. 1 R~'rJO~OOO, WA 98073-9723 U~ i F~: d26.867.4146 lnt~ez: ~.p~ieCuntroLcnm '~[ ' ' Sale~ Quotation #: Continued... Dq$¢ount DAW1343711-A 004 Page #: 2 Quote Date: 3/8/2001 Representative: Debbi Starrfield 800-4d2-1142 x2305 FOB: Redmond, WA Shipping: 15-30 Terms: Net 30 Days This quote i~~ Ud~il. 4/20/2001 Notes: ,,,. :1,,!, ~, ~l ABOVE PRICING REIa_.Ecrs THE PALM BEACH COUIgTY BID AWARD S4X10721-254/D/A ~ i ' ,: Unit Price Discount Total $21,780.00 NOTF_~ TERM8 co,trAineD OH TEe R~e SIDE OF ~18 00¢UM~N1 ~pli~la lre,gl~t ~a sacs ~ w[ll ~ ad~O to the quo~ pu~ha~ P8~, I~IE EXPRESSLY MADE PART OF THIS SALES AGREEMENT DAW V-CONSENT AGENDA CITY OF BOYNTON BEAC ITEM G. AGENDA ITEM REQUEST FC.,.,, Requested City Commission Meeting Dates. Date Final Form Must be Turned in to City Clerk's Office Requested City Commission Meetina Dates Date Final Form MUst be Turned in to City Clerk's Office [] March20,2001 March7,'2001 (5:00p.m.) [] May15,2001 [] APril 3, 2001 March 21, 2001 (5:00 p.m.) [] June 5, 2001 [] April 17, 2001 April 4, 2001 (5:00 p.m.) [] June 19, 2001 [] May 1, 2001 April 18, 2001 (5:00 p.m.) [] July 3, 2001 May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report RECCMMENDATION: Staff recommends the approval of the providing $80,000.00 in assistance to Robust Development Company for the purpose of site development of the Eastridge Parcel located at N.E. 4th Street. EXPLANATION: This parcel of land was Previously approved be developed as Planned Unit Development with 33 single-family homes on 5.054 acres. The initial developer had some problems that did not allow the necessary funding to take place. A new developer has now been able to receive loans in the amount of $956,518.00. PROGRAM IMPACT: The property in question lies within the CRA area, undeveloped and quite an eyesore. The rede~ FlSC,~ patio $1,50( ALTEI to con capab evelopment of this parcel will eliminate blight and promises to be a positive contribution to other ~lopment activities in this area. ,L IMPACT: The development of 31 three (3) bedroom, two (2) bath single family homes with both a ~nd one (1) car garage, which will sell for $99,900.00, will add to the tax base at a rate of approximately 1.00 annually per home, less homestead tax exemption. an un(leterminable amount of time. ! u~partt~en~[' ~leae's ~ignatul~e ~,NATIVES: The incentive requested will enable the developer to secure the necessary funds required ~plete this transaction. The sale of this parcel has been on going for years, until someone with the required lities and vision came along. Without this, there is a distinct possibility that this land will go undeveloped for ' Ci~WManag'er's Signature r Department of Development Division of community Redevelopment Department Name City Attorney / Finance / Human Resources ZO ~0 298 INLET CLUB RD R0 HARBOR CONDO Subject Property N E~ '"' 2 2 nd NORTH SIDI CONDO nd -0-3.4 2LAS PALMAS JR'S N(I- 03-0-I 03-0-II.3 OAK ST SUB AGO VILLA~ CONDO KEVlN E. HOLLER LANDSCAPE ARCHITECTURE LAO(R)0743 P,O. B~x 1015 Boca Retort, Florida 3,342~-10~ 5 (561) 3sr2-2685 May 1, 2001 EAST RIDGE - Estimate of Probable Landscape Construction Cost Trees and shrubs: St. Augustine 'Flomtam' sod: irrigation, well.and pump: Entrance features $ 41,700 26,00O 37,500 ,ooo TOTAL: $111,200 Note: pdces shown are for estimating purposes only and reflect proposed landscape upgrades, mitigation, and revisions. 'IRY-1-2~! TUE ll:03RN [D=Keuin O'Riordan PRGE:2 ,Compnunity Financing Onsortium, Inc. Bank or.J~ri~ Bank~ Trusl F~ori& ~ Mail,tan Pmi~ Bank, ~gi~ F~nl Bank ~nd Fire Un~n ~at~nal ~nk Melbn ~ni~ Nl~o~[ Bank SunT~st ~nk South ~. ~cho~ia BanL ~hingm Mural Bank April 26, 2001 APR 2 7' zooi COMMUNITY REDEVELOPMENT Mr. Kevin O'Riordan RobUst Development Company 7667 Sample Road, Suite 230 Coral Springs, FL 33065 Acquisition and Construction Loans and Revolving Loan for East Ridge, Boynton Beach, Florida (the "Project") Dear Mr. O'Riordan: The Community Financing Consortium, Inc. ("CFC") is pleased to advise that your request for a term loan in the amounts of $350,000.00 and for a revolving loan in an amount.not to exceed $606,518.00 for construction of thirty-one (31) single family houses (the "Project Loans") has been approved, subject to the following terms and conditions: A. TERMS OF THE PROJECT LOANS 1. Borrower: Proceeds of the Project Loans shall be made available to Robust Development Company, a Florida corporation (the "Borrower") which shall be responsible for the repayment of the advances. 2. Guarantor: The Project Loans shall be jointly and severally guaranteed as to repayment and performance by Arthur Bond and Deborah Bond, Jarold W. Reiger and spouse, Kevin O'Riordan and Cynthia O'Riordan and John W. Poffenbarger and Jill Poffenbarger (the "G~tarantors"). 3. Amount of Pro_iect Loans: The maximum amount outstanding under each Project Loan shall be as follows: $100,000.00 $ 250,000.00 $ 606.518.00 $ 956,518.00 Term Loan (Loan # 1) Term Loan (Loan #2) Revolving Construction Loan for 31 Single Family Homes (the "Construction Loan") TOTAL 4. Security_: The Project Loans shall be secured by a first lien on the real property (the "Land") described in Exhibit "A" attached hereto and all improvements to be constructed on the Land, appurtenances, fixtures and all personal property located thereon, a general collateral assignment of all leases, income, rents, and profits from or conceming 1016 North Dixie Highway West Palm Beach, FL 33401 561-833-8503 Fax: 561-655-4075 E-mail: comfincon(~ aoLcom the project (the "Project"), a general collateral assignment of the construction contracts, architect's contract, Plans and Specifications, purchase and sale agreements, development rights, and all other contracts and documents conceming or affecting the Project. The assignment shall incorporate consents thereto by all parties to the contracts (including, without limitation, the City of Boynton Beach) as well as undertaking by the general contractor, engineer and architect to continue performance on CFC's behalf without additional costs if Borrower defaults. Borrower shall grant CFC a prior perfected first security interest in all business and personal property, both tangible and intangible (including replacements, substitutions, and after-acquired property), located or to be located in or upon the Land or used or intended to be used in the operation thereof for which Project Loans proceeds have been advanced, or which is owned by Borrower or in which Borrower has an interest (all of the above collectively referred to as the "Collateral"). 5. Purpose: The proceeds of Loan #1 and Loan #2 shall be used by the Borrower to to acquire and develop the Land as provided in final budgets approved by CFC. The proceeds of the Construction Loan shall be used to pay closing costs and to build thirty- one (31) single family homes (the "Homes") in accordance with final budgets for each Home to be approved by Lender. Attached hereto as Exhibit "C" is a preliminary budget covering the use of the Project Loans. Borrower represents and wan'ants that the sale of completed units to families and individuals will meet the income limitation and number of units sold according to income limitation as set forth on Exhibit 'D." Failure to meet the income limits shall be deemed an event of default. 6. Term of the Project Loans: Project Loan shall have a term of eighteen months. 7. Interest Rate: The Project Loans shall bear interest as follows: A. Loan #1 shall bear interest at a fixed rate of four percent (4%) per annum; B. Loan #2 shall bear interest at a per annum fixed rate equal to the Citibank Prime Rate in effect on the Loan Closing Date (as defined below); and C. The Construction Loan shall bear interest at a per annum fixed rate equal to the Citibank Prime Rate in effect on the Loan Closing Date, plus seventy-five (75) basis points. D. Interest shall be calculated based on a 360-day year divided by the actual number of days elapsed. 8. Repayment: On each Project Loan, interest only shall be payable monthly commencing on the fa-st day of the month following the month in which the first advance is made and on the first day of each month thereafter until eighteen months from the date Page -2- the Project Loans close (the "Loan Closing Date"), when the entire unpaid balance of principal and unpaid accrued interest shall become due and payable (the Principal, accrued interest and all other charges shall be due and payable upon prepayment ora Project Loan or the Maturity Date of the Project Loan or upon the sale of each Home as set forth in paragraph 10 below. 9. Availabili _ty of Funds: The Project Loans will be made available in multiple advances based on written request of the Borrower. Requests for advances to pay construction costs will be pursuant to an AIA Draw Schedule, Certified by appropriate architects/engineers approved by CFC. The Borrower will furnish to the CFC prior to closing a letter of authorization for advances which will contain the names, position in the business and sample signature of all persons authorized to request advances under the Project Loans. 10. Partial Releases: During. the term of the Project Loans, and provided that the Borrower is not in default under any of the Project Loans, Borrower may obtain Partial Releases of Lien from CFC for each completed Home in exchange for a principal payment equivalent to those amounts set forth on Exhibit "E" attached hereto. 11. Interest Reserve: At closing, Borrower shall fund an Interest Reserve in the amount of $45,000.00 with a financial institution selected by CFC and in an amount to be determined by CFC in its sole discretion. In the event the Interest Reserve is exhausted, then Borrower shall be obligated to make monthly interest only payments directly to CFC. 12. New Communities Loan P001: CFC shall have no obligation to close on the Project Loans or to provide funds for the Project Loans until and unless it receives advances from its lenders under the New Cormnunities Loan Pool ("NCLP"). CFC shall exercise good faith and diligently proceed with requesting advances from its lenders under the NCLP. CFC shall provide Borrower with as much advance notice as CFC may reasonably provide if CFC is advised that no further advances will be available under the NCLP. 13. End ~: Borrower grants CFC an exclusive fight to provide the permanent financing for the acquisition of completed Homes for all qualified homebuyers. CFC acknowledges that this right does not apply to Homebuyers Who have secured third-party firm commitments of their own accord and without assistance or influence from Borrower or any of its agents, and it does not apply to Homebuyers who meet the income limitation but do not qualify for permanent financing under CFC's Single Family Loan Program. Borrower will use good faith efforts to promote CFC as the permanent lender to finance the acquisition of Homes by the Home purchasers. In this regard, Borrower will advise its sales agents to endeavor to direct purchasers to CFC for their end loans, will permit CFC to ha'ce signs and other marketing materials promoting CFC's end loan products and Page -3- will provide CFC employees access to the Project and to the Home purchasers to market CFC's end loan products. 14. Commitment Fee: In consideration of CFC holding itself ready and able to make the Project Loans, the Borrower shall pay a non-refundable commitment fee of $14,348.00 which is equal to one and one-half percent (1.50%) of the Project Loans and one-half of the commitment fee ($7,173.88) shall be due upon execution of this Commitment Letter and the balance shall be due upon closing. The commitment fee shall have been earned upon issuance and acceptance of this letter and shall be retained by CFC as liquidated damages in the event Borrower is unwilling or unable to close the Project Loans in accordance with this commitment. The commitment fee shall be in addition to interest payable under the Project Loans. In the event the Project Loans do not close, one- half of the Commitment Fee shall be waived by CFC. B. REQUIREMENTS AND CONDITIONS OF THE LOAN 1. Closing And Funding Conditions: As a condition precedent to CFC's obligation to close and fund the Project Loans, CFC shall receive at Borrower's expense, such items as CFC--nnay deem necessary or appropriate in order to show feasibility of repayment of the Project Loans, and in order to provide security for the Project Loans, including without limitation, the following items, all satisfactory in form and content to the CFC and its counsel: A. Appraisal. An appraisal, satisfactory in amount, form, scope, and content to the CFC, rendered by an appraiser satisfactory to the CFC, showing that the Project, inclusive of the Collateral, when completed, will have an estimated fair market value acceptable to the CFC. The appraisal must support a loan to value of no more than 80%. B. Engineering; Architectural. etc. A construction contract, subcontract, surveys, sealed plans and specifications for the Project, soil tests, cost breakdowns, certificate of architects and engineers, and such other documentation as CFC may require in order to provide evidence of the feasibility of construction of the Project. C. Utilities. Zoning. Permits. etc. Written evidence: (i) of the unconditional availability of sewer, water and all other required utilities and municipal services to the Project; (ii) that the Project is properly zoned for its proposed development in accordance with the approved plans and specifications; and (iii) that all required licenses and permits of governmental authorities for the construction and development of the Project, including, without limitation, building permits and environmental permits, have been unconditionally and validly issued. D. Survey. A current survey of the Project, prepared by a registered surveyor, reflecting no conditions unsatisfactory to CFC or counsel for CFC and otherwise Page -4- satisfactory to CFC in all respects. SuCh Survey shall show the legal description and location of the Project, and any adjoining streets (including their widths), all improvements, easements (including the pertinent recording information with respect to all recorded instruments), fences, zoning or restriction setback lines, rights-of-way, utility lines to the points of connection, and any encroachments, which survey must be certified (in form and content satisfactory to CFC) to the Borrower, CFC and the title company insuring CFC's interest in the Project. Such survey shall also set forth the average elevation of the Project in relation to surrounding properties; highways, access roads and easements, and shall locate all means of ingress and egress, certify the amount of acreage, and indicate the address (if any) of the Project, and also contain a location sketch of the same. E. Notice of Commencements. A separate NOtice of Commencement for each Home shall be filed by the Borrower prior to commencing construction of such Home and subsequent to the recording of the Mortgage. CFC shall be listed on the Notice of Commencement as a party to receive notices. Further, Borrower shall post a certified copy of the Notice of Commencement on the project site in a conspicuous location. ~F. Loan Documents. Loan documents (collectively, the "Loan Documents") which evidence and secure repayment of the Project Loans including: (i) a note evidencing each of the Project Loans, (ii) an unconditional guaranty of repayment of the Project Loans and the performance of Borrower's obligations under the Loan Documents, (iii) a first mortgage and security agreement encumbering the Land, (iv) collateral assignment of all present and future contracts to sell all or any portion of the Land and security deposits paid in connection therewith; (v) collateral assignment of Borrower's interest in all contracts related to the construction, development, sale and operation of the Land; (vi) a security agreement covering all tangible and intangible personal property now or hereafter owned by Borrower and used in connection with the Project, and (vii) UCC financing statements covering the Collateral to be filed in Palm Beach County and the Florida Secretary of State. The Guarantors will execute and deliver to CFC unconditional guaranties of performance and repayment. G. Title Insurance. A standard ALTA mortgagee title policy in the full amount of the Project Loans from a company approved by CFC insuring that the mortgage is a first mortgage upon the Land. Further, only title exceptions permitted and approved by CFC shall encumber the Land. H. Flood Insurance. Evidences to Whether the Land is located within an area identified as having special flood hazardous pursuant to the Flood Disaster Protection Act of 1973. I, Environmental Assessment. An environmental site assessment of the Land by an engineer or other environmental consultant satisfactory to CFC, at Borrower's Page-5- expense. CFC acknowledges that four of the lots have been impacted by a sinkhole and acknowledges the recommendations made by the engineer. Borrower shall submit a plan and scope of work as to when the remediation action will be taken. J. Insurance. The following insurance coverages: (i) an "all risk", non- reporting, completed value builder's risk insurance policy which shall be from a company satisfactory to CFC; shall be in an amount satisfactory to CFC; and shall designate CFC as mortgagee and loss payee; (ii) "Broad Form Comprehensive General Liability" insurance coverage for both Borrower and the general contractor. The issuer, coverage types and amounts shall be satisfactory to CFC. Both policies shall name CFC as "Additional Insured" and shall grant CFC at least thirty (30) days written notice of intended policy cancellation, non-renewal or material modification; and (iii) CFC reserves the right to require worker's compensation insurance and wind damage insurance, as applicable. Borrower shall submit satisfactory evidence that all insurance premiums have been paid. Coinsurance is not acceptable to CFC with respect to any insurance policy. K. Other Items. Such other matters or items as CFC shall reasonably require. -.Li Purchase Am'eements. will purchase the land. Copies of the contracts by which the Borrowers M. C0st/Plan Review. Prior to closing, CFC shall require a Cost/Plan Review to be performed by an architect or engineer selected by CFC in its sole discretion. The cost of this review shall be paid by Borrower and/or the Guarantors. N. Homeowner's Association. Prior.to closing, Borrower shall submit a plan and budget for operation of the Homeowner's Association which plan shall specify the common areas and other maintenance issues for which the association shall have responsibility. Borrower shall also provide CFC with copies of the Charter Documents, including the Declaration of Covenants and Restrictions for the Homeowner's Association. O. Americans With Disabilities Act. Borrower shall establish whether the community park must comply with the Americans With Disabilities Act and if so, the cost associated therewith. P. Development. As a condition of closing, Borrower shall receive an assignment of all development rights from the seller with respect to this Project. CFC shall requires a first priority security interest in the development rights. Q. Subsidy: Borrower shall provide satisfactory evidence that it shall receive the assistance described in Exhibit "C" from the City of Boynton Beach. Page -6- 2. Conditions 4o Funding Development and Construction Cos,ts: Receipt and review of the following items by CFC at least ten (10) days before a draw is requested to pay development and/or construction costs, in form and content acceptable to CFC and its counsel, will be a condition precedent to funding the Project Loans to pay development and/or construction costs: A. Two sets of sealed plans and specifications coveting the development or construction work for which funding :is sought, approved in writing by Borrower, CFC's construCtion inspector and the general contractor. B. Copies of all plat and site plan approvals coveting the development or construction work for which funding is sought; copies of all easements on the portion of the Land to be improved. C. Copy of all permits and authorizations for the development or construction work for which funding is requested. D. Copies of soil tests involving the land to be improved. E. A copy of the contract executed by the Borrower and the general contractor and copies of all other executed contracts that may be required by CFC which cover or relate to the development or construction work for which funding is requested. All contractors shall confirm in writing that any construction lien tights they have arising under their contracts are subordinate to the lien of the Loan Documents. F. An executed notice of commencement complying w/th Chapter 713, Florida Statutes. The notice of commencement shall be recorded subsequent to the recording of the Loan Documents and must be posted by the Borrower as required by law. G. Consents fi.om the general contractor and Borrower's architect or engineer to Borrower's assignments to CFC of its interest in the contract with each of them and in the plans and specifications. H. A budget approved by CFC and its construction inspector covering the development or construction work for which funding is requested. I. With respect to an advance to construct a Home, an Acceptable Sales Contract (as that term is defined below) covering the Homes. J. Plans/cost review coveting the development or construction work for which funding is sought performed by an architect/inspector selected by CFC, the cost of which will be paid by the Borrower. If there is a shortfall in financing, Borrower shall contribute additional funds to cover the shortfall in financing. Page -7- K. Such other matters or items as CFC shall reasonably require. 3. Modelsl Phases: Borrower will not commence construction of a Home until Borrower has an Acceptable Sales Contract covering such Home. Notwithstanding the foregoing, Borrower may complete construction of the partially completed structure to serve as a model and Borrower may commence construction and completion of the site work, subject to such conditions stated herein. Thereafter, Borrower may construct a Home (up to 8 simultaneously), upon presentation to CFC of Acceptable Sales Contract ibr each Home. If Borrower shall elect to sell and leaseback the Model, then after deducting the Release Prices for Term Loans #1 and #2, one-half of the net proceeds shall be used for working capital and the balance shall be either funded into an Interest Reserve or used to reduce the principal balance on the Term Loan #2 at the election of CFC. A "Model" is a Home which is not subject to an Acceptable Sales Contract. An "Acceptable ~tract" shall mean a written agreement executed by the Borrower and a Retail Purchaser (as hereinafter defined) to sell to the Retail Purchaser a Home at a sales price not less than those set forth on Exhibit "F" hereto with a minimum deposit of $1,000.00 in escrow. A "Retail Purchaser" shall mean a third party unrelated to the Borrower or any of its officers or shareholders who shall have a commitment from an institutional lender for a permanent loan covering no more than 95% of the purchase price for the Home. 4. Loan,Disbursements: Disbursements of the Project Loans proceeds will be made by CFC at regular intervals during the course of construction in accordance with CFC's Construction Loan Agreement and the other Loan Documents. CFC shall be furnished w~ith a proposed disbursement schedule in form satisfactory to CFC. Disbursements shall be made under procedures and title safeguards acceptable to CFC. The Construction Loan Agreement shall provide, among other things, that: A. Disbursements shall be made within ten (10) days at~er the filth (5t~) and (25th) day of each month during which construction has occurred and shall be made in accordance with a draw schedule approved by CFC. B. Disbursement shall be no more frequently than twice monthly. C. Bills or statements for all expenses for which a disbursement is requested shall, at the option of CFC, be presented to CFC along with a certification fi'om Bon'ower, the general contractor, and construction inspector that all labor and material for which funds are requested have gone into the Project according to approved plans and specifications and that the remaining nondisbursed portion of the Project Loans allocated to construction is adequate to complete the construction of the improvements. Borrower shall furnish CFC such affidavits, waivers of liens and proof of payment as CFC shall require. Page -8- D. There shall be disbursements for materials stored on site but no disbursements for materials stored off site. E. Prior to any disbursement, the Project Loans must be current in all respects unless otherwise approved by CFC. F. At no time shall CFC be obligated to disburse funds in excess of that recommended by construction inspector. G. In order to receive funding for site development costs, Borrower must provide invoices for Work done. Payments shall be made based on the worked completed as of the inspection date. H, Borrower will deliver to CFC a certified foundation survey promptly upon completion of the foundation for a Home. 5. Final Disbursements: Final disbursement to pay development or construction costs slmI1 be subject to CFC's having received and approved the following: (i) Final Certificate of Occupancy covering the construction or development work; (ii) Certification from construction inspector that construction has been satisfactorily completed in accordance with final approved plans and specifications. (iii) Contractor's affidavit satisfactory to CFC's counsel. (iv) Lien waivers from the contractor, subcontractors and any other parties entitled to file construction liens. (v) Final Survey. (vi) An "all-risk" permanent hazard insurance policy covering the complete improvements. (vii) Such other items as the CFC shall require. C. MISCELLANEOUS 1. Hazard Insurance: The Borrower will maintain hazard "extended risk" insurance for the replacement cost of the Project Improvements and all business assets which serve Page -9- as security for the Project Loans, naming CFC as loss payee (Community Financing ConsOrtium, Inc., itS successors and/or assigns ATIMA) and will fumish evidence of said coverage to CFC. The insurance company is subject to approval by CFC. 2. Monthly Reportlt: Borrower shall also furnish to CFC within fifteen (15) days after the end of each calendar month a complete sales report listing an inventory of Homes sold (closed), summaries of new contracts for Home sales, and any other information CFC would deem appropriate with regard to the Collateral. All monthly reports shall be certified by the Chief Financial Officer of the Borrower as being true and accurate. 3. Annual Reports: A. Borrower Annual Reports. The Borrower shall furnish to CFC within one hundred twenty (120) days after the end of each party's fiscal year a profit and loss statement and reconciliation of surplus statement of the Borrower for such year, and a balance sheet as of the end of ~uch year, compiled by independent certified public accountants of recognized standing selected by the Borrower and satisfactory to the CFC. Reports shall be prepared in accordance with generally accepted accounting principles and certified by the Chief Financial Officer of the Borrower as being true and accurate. B. Guarantor Annual Financial Statement. The Guarantors shall further to CFC on or before February 15 of each year, a then-current personal financial statement in form acceptable to CFC certified by the subject of such financial statement to be tree, correct, accurate and complete. 4. Tax Returns: The Borrower and Guarantors shall furnish to CFC complete copies of annual tax returns. The returns are to be delivered to CFC within ten 10) days of filing same with the Internal Revenue Service. 5. Closing Costs and Expenses: The Borrower shall pay the CFC's loan closing costs, including the attorney's fees of CFC's counsel, all state stamps and intangible taxes levied upon the Notes and all recording fees, the Title Insurance premium for the policy to be issued pursuant to the commitment, appraisal fees, surveys, and any other costs and expenses incurred in the processing and closing of the Project Loans. Borrower agrees to pay CFC the costs and expenses actually incurred as set forth in this paragraph whether or not the Project Loans close. 5. P,_l:9.i~$lg~: While any portion of the Project is encumbered by the Mortgage, CFC may erect at Borrower's expense one or more signs on or about the Project indicating that CFC is furnishing the acquisition and construction financing and is offering permanent construction financing for home purchasers. Page -10- 6. Transfer of Tifle/C0mposition of Bl}rrowcr: No transfer of the project nor any part thereof nor any transfer of any interest in the Borrower shall be permitted without the prior written approval of CFC, except for sales of Homes in the ordinary course of the Borrower's business provided the release prices set forth in paragraph A. I 0. hereof are paid to CFC. 7. Pending Litigation: The Borrower and Guarantors certify to CFC that no litigation proceedings are pending or threatened which might adversely affect the Borrower's or any Guarantor's ability to perform under this Commitment or the Project Loans, Borrower's agreements with subcontractors, trade suppliers, factors, etc., Borrower's obligations under leases or Purchase and Sales Contracts or the viability of the Project, that are not fully Covered by insurance. 8. Inspection and Appraisal of Properly. Books and Records: The CFC shall have the right to enter upon and inspect the Project at all reasonable times or to designate an agent, including, without limitation, an inspecting architect/engineer, to perform such inspection, which inspections shall be at the Borrower's expense. Such right of inspection shall extend not only to the Project but also to the books and records of the Borrower and Guarantors. The Project Loans may, from time to time, at the sole discretion of CFC require a new Real Property Appraisal by a CFC Approved Appraiser. The Borrower agrees to immediately reimburse CFC for the cost of any and all such appraisals. 9. Insurance: Borrower agrees to continually maintain insurance against loss by fire, hazards included in the term "extended coverage" and such other hazards as the CFC may require from time to time by such companies as may be deemed acceptable by the CFC, upon all properties securing the Project Loan(s) made pursuant to this Agreement, and shall pay all premiums therefor when due. All such insurance policies shall contain a long form loss payee clause in favor of the Community Financing Consortium, Inc., its successors and/or assigns, ATIMA and shall provide that no such policy may be canceled without thirty (30) days prior written notice to the CFC. 10. Taxes: The Mortgage shall provide that CFC shall have the fight to the escrow of taxes during the term of the Project Loans but CFC agrees that it will not exercise such right unless the Borrower is in default under any of the Project Loans. 11. Environmental Audit: At the CFC's option, prior to or at any time during the term of the Project Loans, the Borrower at Borrower's expense maybe required to furnish an environmental audit of the project which could impact the Borrower's or any Guarantor's financial performance or standing, certified and in a form satisfactory to CFC, and performed by a firm approved by CFC. Prior to closing, Borrower shall provide an environmental audit from and scope satisfactory to CFC, the cost of which shall be borne by Borrower. Page - 11- 12. Broker's Commission: The Borrower represents and warrants to CFC that it has dealt with no broker, finder or similar entity in connection with obtaining the Project Loans. The Borrower agrees to indemnify, defend and hold the CFC harmless from claims made by any other person(s) or entity, claiming through or as a result of dealings with the Borrower relative to this transaction, including without limitation attorney's fees. This provision shall survive the Loan Closing or the termination of this Commitment. 13. Secondary_ Financing: The Borrower may not obtain secondary financing without the prior written consent of CFC, which consent the CFC will not be obligated or required to give. 14. Late Charges: The Borrower will pay a late payment of five percent (5%) of the amount of any payment not made within ten (10) days after the date such payment is due. 15. Third Party Beneficiary Rights: No person who is not a .party to this Commitment shall have or enjoy any rights under this Commitment. Also, all third-party beneficiary rights are expressly negated. Without limiting the generality of the foregoing, no one other than the Borrower shall have any fights to obtain or compel a disbursement of the proceeds of the Project Loans under this Commitment. 16. Transfer of the Commitment: The Borrower shall not assign this Commitment without the express written consent of CFC, which consent CFC shall not be obligated or required to give. This Commitment is freely assignable by CFC. 17. Entire Agreement: This Commitment (which consists of this letter, including any exhibits and/or attachments) contains the entire agreement of the Borrower and CFC with respect to the matters referred to herein. No change in the provisions of this Commitment Letter shall be binding unless in writing and executed by the Borrower, the Guarantors and CFC. 18. Governing Law: This Commitment shall be governed by' and construed in accordance with the laws of the State of Florida, except if federal law would allow for the payment of interest at a higher rate than would applicable Florida law, federal law shall apply to the determination of the highest applicable lawful rate of interest. 19. Depository Accounts: Borrower's primary depository accounts for Interest Reserve will be maintained with a f'mancial institution selected by CFC. 21. Termination of Commitment: The issuance of this Commitment is based upon the accuracy of your representations and statements, any loan application and all additional information, representations, exhibits and other matters submitted to CFC for its consideration. In addition to any other remedies available to CFC under applicable law, CFC shall have the option to terminate this Commitment if (a) there shall have been any Page - 12- material misrepresentation or misstatement or any material error in any information or materials concerning the Borrower, any of the Guarantors or the Project submitted to CFC, (b) there shall have been a material adverse change in the state of facts submitted to CFC or in the financial condition of Borrower or any Guarantor, (c) Borrower or any Guarantor shall become insolvent, bankrupt, incapacitated or shall die; or (d) Borrower or any Guarantor shall fail or refuse to timely perform any of the obligations imposed upon it by this Commitment. 22. WAIVER OF JURY TRIAL: THE BORROWER, EACH GUARANTOR AND CFC HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS COMMITMENT OR THE PROJECT LOANS EXTENDED BY CFC TO THE BORROWER PURSUANT HERETO, OR ANY STATEMENT OR REPRESENTATIONS (WHETHER WRITTEN OR ORAL), COURSE OF CONDUCT, OR COURSE OF DEALING BETWEEN ANY OF SAID PARTIES, OR THE ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR CFC ISSUING THIS COMMITMENT LETTIgR~ AND AGREEING TO EXTEND THE LOAN TO THE BORROWER ON THE TERMS SET FORTH HEREIN. 23. Survival: This Commitment and all of its terms and provisions shall survive the closing of this Project Loans and shall become a part of the Project Loans documents. 24. Acceptance of the Commitment and Closing Date: You must inform us of your acceptance of the foregoing terms and conditions of this Commitment by executing and returning this Commitment Letter on or before April 30, 2001, together with one-half of the commitment fee for the Project Loans. The Project Loans contemplated must close by May 30, 2001; otherwise this Commitment will become null and void on said date, unless extended by CFC in writing. 25. Cross Default. A default under any other obligation owed to CFC or under the letter of credit or any obligation owed to a participating lender (Fidelity Federal, Southtrust and Community Savings) shall be deemed a default under the Project Loans. Community Financing Consortium, Inc. would like to express our appreciation for the opportunity you have given us to be of service, and look forward to an ongoing mutually satisfactory relationship. Page - 13- ~cing ConsCm, Inc. A:\ROBUSTDE.WPD(¢bg) BORROWER'S ACCEPTANCE OF COMMITMENT LETTER The above Loan Commitment is hereby accepted on the terms and conditions outlined therein. BORROWER: Robust Development Company, a Florida corporation By: Date: Kevin O'Riordan, President GUARANTORS: Kevin O'Riordan Cynthia O'Riordan Arthur Bond Deborah Bond John Poffenbarger Jill Poffenbarger Date: Date: Date: Date: Date: Date: Page - 14- Jarold W. Reiger Reiger Date: Date: A:\ROBUSTDE.WPD~ebg) Page - 15- Contract for Sale and Purchase PARTIES: .- · .-.... (Se]leO. Fort_h..SLreet, Bq.y_nto.a....E~__a.c~_, F..k~.'da, and "" .';.. .:: ~.:i~-/'-' (Buyer).. ".. :." - ..... (Phone) .. ,'.? :.,.* · hereby agree tl~at Seller Shall sell and' Buyer shall Ixpy. the ~ollowing described real property CProperty'3 pursuant to the terms and conditions of this Contract for Sale and Pumhase and any riders and addenda ~'Contmct'): t. DESCRIPTION: (a) Legal DescdpUon of the Real Property located In Palm Beach County, Florida PARCEL I A parcel of land in Section 15, Township 45 Soulh; Range 43 East, Palm Beach Courtly, Florida, more particularly desc~'ibed as follov~s: Beginning at the Nodheast corner of LOt 27 of SAM BROWN JR'S SUBDIVISION, according to the Plat thereof recorded In Plat Book 1, page 81, Public Records of Palm Beach C~'unty, Thence Westerly along the North line of said Lot 27, a distance of 34.90 feet; thence Southerly, at right angles to the North line of said Lot 27, a distance of 75 feet; thence Easterly, parallel to the Nodh line of said Lot 27, a distance of 25 feet to a point in the East line of said Lot 27; thence Northerly, along the East line of said Lot 27, a distance of 75.65 feet to Ihe point of beginning. AND Beginning at the Southeast comer of Lot 27 of SAM BROWN JR'S SUBDIVISION, mn West along the South line, of said Lot 27, a distance of 229.35 feel to a point; thence Northerly, a distance of 201.4 feet more or less to a point in the North line of said Lot 27 which lies 261.16 feet West of, measured algmg said North line the Northeast comer of Lot 27; thence East along the North line of Lot 27, a distance of 226.26 feet to a point 34.90 feet West of Northeast comer of Lot 27; thence South at right angles to the North line of LOt 27, a distance of 75 feet to a point; thence East parallel to the North line of Lot 27; a distance of 25 feet to a point in the East line of Lot 27, thence Southerly along the East line of Lot 27 to a point of beginning. PARCEL 2 Lot 28 of SAM BROWN JR'$ SUBDIVISION, according to the Plat thereof recorded in Plat Book 1, page 81, Public. Records of PaJm Beach County. PARCEL 3 Lot 29 of SAM BROWN JR's SUBDIVISION, according to the Plat thereof recorded in Plat Book 1, poge 81, Public Rec~ds of Palm Beach County. EXHIBIT "B" INTENTIONALLY OMITTED Page - 17- EXHIBIT "C" PRELIMINARY BUDGET FOR PROJECT LOANS Page. 18- ~C) r-- ~ O ~ Coq i ;0 Z ITl (.n z CZ ITl O m z 'o O C3 co 03 -' 8' rn r- CiO (~0 I~1 O O O O O O O O O O O O ~00 O, -a. --~ CO O O O O O O O 4:~, 1'~3 Cr~ O~ C:O !'~ 0 0 0 0 0 C> C~ CD O0 0 CD 0 o:, co 0 °°8 8 m -r' m C: ITl EXHIBIT "D" INCOME LIMITS 100% of the Homes must be sold to families or individuals whose income does not exceed 120% of median income of Palm Beach County, as adjusted for family size. Page - 19- EXHIBIT "E" RELEASE PROVISIONS LOAN RELEASE AMOUNT A & D $100,000.00 $ 3,870.98 A & D $250,000.00 $ 9,677.42 Vertical $606,518.00 $75,815.00 In the event Borrower decides to sale and leaseback the model, the CFC shall receive fifty percent (50%) of the net proceeds from the sale plus the two release prices stated above on the A & D segments of the Project Loans. CFC net proceeds shall be used to reduce the outstanding principal on Term Loan #1 and Term Loan #2. The release prices for Term Loan # 1 and Term Loan #2 shall not be adjusted. Both parties acknowledge that the Term Loans shall be satisfied sooner in the event of the principal reduction payment from the net proceeds of the sale. Borrower shall receive fifty percent (50%) of the proceeds which shall be used for working capital and operating expenses related to this project. Borrower shall provide a copy of the closing statement and Purchase and Sales Agreement on the model. Upon receipt of the funds, subject to clearance, CFC shall execute a partial release of lien, the cost of preparation and recording of which shall be bome by Borrower. Page -20- MINIMUM SALES PRICES $99,900.00 Page -21- Requested City Commission Meeting Dates [] March 20, 2001 [] April 3, 2001 [] April 1~, 2oo~ [] May 1, 2001 VI-CITY MANAGER'S REPORT CITY OF BOYNTON BEAI ITEM A. AGENDA ITEM REQUEST F~_ __ Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 15,2001 [] June 5, 2001 [] June 19, 2001 [] July 3, 2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM RECO~VIMENDATION: [] Administrative [] Consent Agenda [] Public Hearing [] Bids [] Announcement [] City Manager's Report [] Development Plans [] New Business [] Legal [] Unfmished Business [] Presentation Complete annual performance review of City Manager PRO(; FISC/ ALTE kNATION: The City Manager has completed one year of service to the City of Boynton Beach effective April 10, 2001. An annual performance review is an integral part of the Manager's employment agreement with the City. The City Manager is preparing a review document for the consideration of the City Commission. RAM IMPACT: None IMPACT: See above RNATIVES: See above Department Head's Signature Manager's Signature Department Name City Attorney / Finance / Human Resources S:'~BULLETIIC, FORMSX~AGENDA ITEM REQUEST FORM.DOC Requested City Commission Meeting Date~ [] March 20,2001 ~pril 3,2001 [] ~pril 17,2001 May 1, 2001 VI-CITY MANAGER'S REPORT ITEM B. CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FOR v Date Final Form Must be Turned in to City Clerk's Offiq¢ March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m,) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meetim, Dates [] May15,2001 [] June 5,2001 [] June 19, 2001 [] July 3, 2001 Date Final Form Must be Turned in to City Clerk's Offic~ May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) i [] Administrative [] Development Plan~ NATURE OF [~ Consent Agenda [] New Business AGENDA ITEM [] Public Hearing [] Legal i [] Bids [] Unfinished Business i [] Announcement [] Presentation i [g] City Manager's Report RECOMMENDATION:~: A motion to approve the demolition of the Mangrove Park School (Old High School) at 125 East Qcean Avenue and the creation of up to 50 temporary parking spaces on site at a cost not to exceed $250,000. EXpIJANATION:~ Pursuant to a public hearing at its meeting on May 8, 2001 the Community Redevelopment Agency Board! voted 6 to 1 to accept a staff recommendatiOn to demolish the Old Mangrove Park High School. PRO~3R~bl IblPAl~T: Demolition of the Old High School will remove a rat and flea infested building that has been declar ~d unsafe by the City's Fire Marshall. It will also enable the historic 1913 Schoolhouse Children's Museum to become visibh openh FISCi ALT~ millio: from SeaCrest Avenue and allow for the creation of additional temporary parking spaces required for the planned tg of the Museum in September, 2001 and the proposed expansion of the library. ~L IMPACT: N/A rRNATIVES: The building could remain unused and continue to deteriorate or the City could commit three to five dollars to rehabilitate the structure for future use. Quintus ~opment ~" Ci~ Manager's Signature Department of Development Department Name City Attorney / Finance / Human Resources S:\BULLETINLVORMS'~AGENDA ITEM REQUEST FORM.DOC DEPARTMENT OF DEVELOPMENT Memorandum DD 01-018 TO: FROM: DATE: RE: Board of Directors, Community Redevelopm.e.,~t, Agency Quintus Greene, DevelOpment Director ~ May 3, 2001 Mangrove Park High School (Old High School) Attached is a report dated April 4, 2001 outlining the work items and costs associated with attempting to refurbish the old .Mangrove Park High School vs. those associated with demolishing the building and creating approximately 50 temporary parking spaces on the site. Staff recognizes and appreciates that, for reasons of nostalgia, there are some who wish to see the school building preserved. Similarly, we understand the well meaning desire of those who wish to see the building reused, either as a school or for some other use. However, since the last time that this was a high profile issue in 1993, the building has continued to deteriorate and none of the proposals brought forward for its preservation have included a realistic plan for financing the needed renovations. Thus far, all proposals for saving the building have been based on the premise that the City of Boynton Beach would provide most, if not all, of the funding to cover the estimated three to five million dollars necessary to refurbish it. ~'his is the case, even if the building were to somehow qualify as an historic structure. The maximum funding available for restoration from either state or federal sources as well as from the National Trust for Historic Preservation is less than $250,000 and is generally tied to stringent conditions. It should also be noted that, while the Old High School is itself of questionable architectural character, it nevertheless obscures the view of the 1913 School House Children's Museum, one of the city's truly historic architectural jewels. Given the present deteriorated condition of the building, the high cost of repairs, the absence of any realistic private financing for its renovation, and the number of other high pdority capital needs facing the city, we find it hard to support any commitment of city funds for this project. Moreover, the redevelopment plan currently being prepared for the school site and the surrounding area will, for the first time in its history, provide the City of Boynton Beach with a true "Town Square." Accordingly, staff recommends the demolition of the Mangrove Park School. S:\DEVELOPMENT\ADMINISTRATION\MEMORANDUMS~01-018 CRA - MANGROVE PARK SCHOOL.DOC DEPARTMENT OF DEVELOPMENT Memorandum DD 01-011 TO: FROM: DATE: RE: Kurt Bressner, City Manager Quintus L. Greene, Director of Development 04/04/01 Mangrove Park School (Old High School); 125 East Ocean Avenue INTRODUCTION This memorandum provides a brief overview of the existing condition of Mangrove Park School, along with cost estimates for both rehabilitation and demolition. Information has been compiled from Fire Rescue, Engineering, Building, Facilities Management and Risk Management departments. BUILDING STATISTICS AND CURRENT CONDITION Constructed in 1926, the Mangrove Park School has a gross square footage, 37,104 (30,326 as reported on School Board documents.) It is a two-story building with an exterior of hollow tile and brick covered by stucco. There is a bow truss asp"~alt shingle roof over the gymnasium/auditorium, which contains a wood intedor frame, stairs, and gymnasium floor. The balance of the roof is fiat with tar and gravel covering. Wood joists support the second floor structure. East and west stairwells have concrete steps. First floor is split between concrete and wood joist, with wood interior frame. The extedor southeast comer of the building was damaged by a lightening. Intedor paint is peeling; a portion of the ceiling on the second floor has collapsed; termite and "4ent damage are evident in several locations. The Fire R.~scue Department reports the current conditions as too hazardous for occupation, fhere is no active fire protecti(~n system or adequate life safety features in the building. It was determined to be 'infested with rats, fleas, and other "critters". Asbestos is suspected in ceiling and floor tiles, as well as a strong possibility of lead- based paint on the walls, but neither of these items has been confirmed. A recent re-inspection by the Building division confirms the reports of flea infestation, presence of rodent droppings, and high probability of termites. Bird nests and droppings on the inside of the building appear to be the result of broken windows and exterior wall breaches. Building recommends that a licensed structural engineer evaluate the structural integrity of this building prior to any consideration of rehabilitation. REHABILITATION AND DEMOLITION OPTIONS Option 1 - Rehabilitate building up to current code standards. Minimal improvements would require the following upgrades: · American Disability Act compliance, including an elevator. · Fire Alarm System (detection and notification) · Emergency and Exit Iighting systems · Extensive electrical upgrade including panel and interior wiring · Cost estimate: $3-$SMillion (depending on use/occupancy) Termite damage assessment and repair ~- Tent extermination of entire building to eliminate flea, rodent and terminate infestations Asbestos and lead paint assessment and removal/containment if found · Repair roof membrane; possible replacement roof required DO Memorandum 01-011 Mangrove Park School Assessment 04/04/01 Pg. 2 of 2 · Replace termite and water damaged extedor doors · Enclose stairwells · Remove wire mesh over windows; replace broken windows and skylights · Fire sprinkler system and extinguishers 'n all areas · Removal of underground fuel storage tank · Repaidreconstruct all breached fire walls · Repair of second floor ceiling · Plumbing must be made fully operational and/or capped [o prevent flooding and gas release into the structure · Replace pump house wall sheathing · Boiler room is inoperable and needs to be made operational · Address/repair building and electrical comments documented by the Building Official in building memorandum 01-060 Option 2 - Demolition and installation of temporary surface parking. Cost estimate: $250,000 · Approximately 50 additional temporary surface parking spaces would be added · Code Compliance would remain in its current temporary location · 1913 School Museum HVAC would be relocated to rear of Museum building fence/landscape s~teening added. with appropriate ',\CH\MAIN\SHRDATA'~DEVELOPMENT\ADMINISTRATION\MEMORANOUMS\01-011 BRESSNER - MANGROVE PARK HIGH SCHOOL.DOC CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM VII-PUBLIC HEARING ITEM A R4quested City Commission Meeting Dates [] M~rch 20,2001 [] April 3, 2001 [] Al:~il 17, 2001 [] Ma~y 1,2001 Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21,2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 15, 2001 [] June 5, 2001 [] June 19,2001 [] July 3,2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) lune 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATUIIE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfmished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Please place this request on the May 15, 2001 City Commission Agenda under Public Hearing. The Planning and Development Board with a 7-0 vote recommended that the subject request be approved subject to staff] comments. For further details pertaining to this request see attached Department of Development Memorandum No~ PZ 01-~78. EXPLANATION: PROYI~CT NAME: AGEN~r: OWNER: LOCAtiON: DESCRIPTION: BOYNTON MASONIC LODGE DAYCARE/PRESCHOOL Jason Litterick/Gentile, Holloway, O'Mahoney & Associates, Inc. Boynton Lodge #236, Free & Accepted Masons 2701 Quantum Boulevard Request Conditional Use Approval for Lots 22 and 22-A Plat of Quantum Park, at Boynton Beach P.I.D., Plat No. 3 for use as a Daycare/Preschool. PROGRAM IMPACT: N/A FISC~L IMPACT: N/A ALTERNATIVES: N/A ~~~~ignamre City Attorney / Finance / Human Resources \\CHXMAIN~HRDATAXPIanmng\SHARED\WP~PROJECTSXBOYNTON MASONIC LODGE - USAP\CC Agenda Request 5-15-01Boynton Masonic.dot S:\BULI~ETIN~ORMS\AGENDA ITEM REQUEST FORM.DOC EXHIBIT "C" Conditions of Approval Project name: Boynton Masonic Lodge Daycare/Preschool File number: COUS 01-001 Reference: 1S~review plans identified as Conditional Use. and Zoning Department date stamp marking. File # COUS 01-001 with a May 1, 2001 Planning DEPARTMENTS INCLUDE REJECT PUBLIC WORKS - General Comments: NONE X PUBLIC WORKS - Traffic Comments: NONE X UTILITIES Comments: NONE X FIRE 1. Review NFPA 101 Life Safety Code Chapter 30, 1997 Edition, and Boynton Beach Fire Code 9-6. X POLICE Comments: NONE X ENGINEERING DIVISION Comments: NONE X BUILDING DIVISION 2. At time of permit review, submit signed and sealed working drawings of the proposed construction. X 3. Add to the submittal a partial elevation view drawing of the proposed perimeter fence. Identify the type of the fence material that supports the fence, including the typical distance between supports. Also, provide a typical section view of the fence that includes the depth that the fence supports are below finish grade and the height that the fence is above finish grade. The location and height of the fence shall comply with the fence regulations specified in the Zoning Code. X PARKS AND RECREATION Comments: NONE X Condi 05/10/ 2 ions of Approval.doc 01 ARTMENTS INCLUDE REJECT X ZONING ents: I cc Staff recommends removing the wheel stops on the former six (6) parking spaces located within the interior of the proposed outside child play area. ITIONAL CITY COMMISSION CONDITIONS tmments: To be determined. X \\C H~VIA IMW~~PHaRtDATA~PIa n n in g\S HARE D\WF~P ROJ ECTS\ BOYN TON MASONIC LODGE - USAP\Boynton Masonic Lodge Daycare-Preschool~Condifions of Approval.doc DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA PROJECT NAME: Boynton Masonic Lodge Daycare/Preschool APPLICANT'S AGENT: Gentile, Holloway, O'Mahoney & Associates, Inc. APPLICANT'S ADDRESS: 2701 Quantum Blvd., Boynton Beach, Florida 33425 'DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: May 15, 2001 TYPE OF RELIEF SOUGHT: Request Conditional Use approval for Lots 22 and 22-A Plat of Quantum Park, at Boynton Beach P.I.D. Plat No. 3 for operation of a daycare / preschool. LOCATION OF PROPERTY: 2701 Quantum Boulevard DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO. THIS MATTER came before the City Commission of the City of Boynton Beach, Florida appearing on the Consent Agenda on the date above. The City Commission hereby adopts the findings and recommendation of the Planning and Development Board, which Board found as follows: OR x THIS MATTER came on to be heard before the City Commission of the City of Boynton Beach, Florida on the date of hearing stated above. The City Commission having considered the relief sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: Application for the relief sought was made by the Applicant in a manner consistent with the requirements of the City's Land Development Regulations. The Applicant HAS HAS NOT established by substantial competent evidence a basis for the relief requested. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit "C" with notation "Included". The Applicant's application for relief is hereby GRANTED subject to the conditions referenced in paragraph 3 hereof. DENIED This Order shall take effect immediately upon issuance by the City Clerk. All further development on the property shall be made in accordance with the terms and conditions of this order. 7. Other DATED: City Clerk J:\SHRDATA\Planning\SHARED\WP\PROJECTS\BOYNTON MASONIC LODGE - USAP\Boynton Masonic Lodge Daycare-Preschool\Develop Order.doc TO: FROM: DATE: SUBJE( Contaim of the e: The twc Bouleva Commis applican prescho{ outside permitte Applicm Project General Property T: DEPARTMENT OF DEVELOPMENT MEMORANDUM NO. PZ 01- 078 Chairman and Members Planning and Development Board Lusia Galav, AI4~//'~ eA~n~i~il, ~ 10a0n0n ~ Boymon Masonic Lodge - COUS 01-001 Conditional Use Approval -Accessory Daycare / Preschool PROPOSAL SUMMARY d herein is a description of the subject project. The proposed daycare / preschool will be operated out isting Boynton Masonic Lodge building located on Lot 22 and Lot 22A in the Quantum Park P.I.D. lots comprise a 1.91-acre triangular-shaped parcel and are located on the north side of Quantum 'd, just east of the L.W.D.D. E-4 Canal at 2701 Quantum Boulevard. On October 5, 1999, the City ;ion approved this triangular-shaped lot for a 6,829 square-foot office / meeting facility. The now is seeking conditional use approval to also use the building for a 55-child capacity daycare / . operation when the lodge is not in session. In addition, the site plan proposes 4,125 square feet of ,laying area that is required under State regulations. The Quantum Park of Commerce list of l uses allows nursery schools and daycare centers if approved as a Conditional Use. t/Agent: Boynton Masonic Lodge / Gentile, Holloway, O'Mahoney & Associates, Inc. am e: Boynton Masonic Lodge (The Little Blue Academy) tescription: Conditional use / minor site plan modification approval for an accessory daycare / preschool use in conjunction with its required outside child play area. size: Lot 22: Lot 22A: Land us~. Current Zoning: Total: 53,526.64 square feet (1.23 acres) 29,516.31 square feet (0.68 acres) 83,042.95 square feet (1.91 acres) Office (O) DR_[ Master Plan land use Planned Industrial Development (PID) Locatior Buildin Existin Outside Quantum Boulevard and the L.W.D.D. E-4 Canal (Quantum Park) area: (See Exhibit "B" - Proposed Site Plan): Boynton Masonic Lodge building - 6,829 square feet ~laying area - 4,125 square feet Boynton Masonic Lodge (Little Blue Academy - COUS 01-001 Page 2 Memorandum No. PZ 01 - 078 Surrounding land uses/zoning: North- Vacant Lot 23 designated Office (O) DRI land use and zoned Planned Industrial District (PID), farther northwest developed residential (Dos Lagos PUD) with Low Density Residential (LDR) land use; East- Right-of-way of Quantum Boulevard, farther east developed United Way Rotunda Foundation complex, designated Office (O) DRI land use and zoned Planned Industrial Development (PID); South- Right-of-way of Quantum Boulevard, farther southeast developed United Way Rotunda Foundation complex, designated Office (O) DRI-land use and zoned Planned Industrial Development (PID); and West- Right-of-way of Lake Worth Drainage District E-4 Canal, farther west vacant Lot 3 designated Industrial (I) DRI land use and zoned Planned Industrial Development (PID). STANDARDS FOR EVALUATING CONDITIONAL USES AND ANALYSIS Section 11.2.D of the Land Development Regulations contains the following standards to which conditional uses are required to conform. Following each of these standards is the Planning and Zoning Division's evaluation of the application as it pertains to standards. The Planning and Development Board and City Commission shall consider only such conditional uses.as are authorized under the terms of these zoning regulations and, in connection therewith, may grant conditional uses absolutely or conditioned upon the conditions including, but not limited to, the dedication of property for streets, alleys, recreation space and sidewalks, as shall be determined necessary for the protection of the surrounding area and the citizens' general welfare, or deny conditional uses when not in harmony with the intent and purpose of this section. In evaluating an application for conditional use approval, the Board and Commission shall consider the effect of the proposed use on the general health, safety and welfare of the community and make written findings certifying that satisfactory provisions have been made concerning the following standards, where applicable: Ingress and egress to the subject property hnd proposed structures thereon, with particular reference to automobile and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe. The subject property has two points of ingress~egress at Quantum Boulevard. The northern access is a 27-foot wide opening providing right turn in, right turn out only. The southern driveway, also at 27 feet wide, provides right~left turn in and right~left turn out. Located in front of the building, a 19-foot wide existing porte-cochere with l 6 feet of clearance will function as the child drop-off area. This porte-cochere provides unobstructed ingress and egress to the building. The site's on-site traffic circulation system consist of two (2), two-way drive aisles 27- feet wide that run along the parcel's front and west property lines. The two drive aisles provide access to the proposed use and its respective parking areas. The sidewalk is located on the opposite side of Quantum Boulevard. A traffic statement was submitted and sent to the Palm Beach County Traffic Division for their review and approval. The Palm Beach County Traffic Division determined the project met the Traffic Performance Standards of Palm Beach County. Boynton Page 3 Memora o Masonic Lodge (Little Blue Academy - COUS 01-001 dum No. PZ 01 - 078 3fi-street parking and loading areas where required, with particular attention to the items in subsection above, and the economic, glare, noise, and odor effects the conditional use will have on adjacent and iearby properties, and the city as a whole. ~The required parking for the site had originally been tabulated for the office / meeting place uses. The katios were based on one space for each 100 square feet of meeting area (4,500 square feet) and one pace for each 300 square feet of office area (2,329 square feeO. When approved in 1999, the site was equired to have at least fifty-three (53) parking spaces. In providing overflow parking, the developer uppliedtwelve (12) excess parking spaces for a total of sixty-five (65) parking In order to spaces. ~reduce the amount of pervious surface, the lodge was permitted to provide stabilized sod parldng in Ih ieu of asphalt / concrete parking. The lodge delineated thirty-two (32) spaces as grass parking. Of e total number of spaces, three (3) concrete spaces were allocated as handicapped accessible. ?roe parking required for the proposed daycare will be based on one space for each 300 square feet of ss floor area. As stated in the above paragraph, the plan provided an excess of twelve (12)parking ~paces. However, with the creation of the outside child play area required for the daycare, the plan proposes to eliminate six (6) of the overflow parking spaces situated along the east side of the building. The proposed daycare inherently requires less parking than the lodge, therefore, the site still ontains enough parking to accommodate the outside play area in place of six (6) parking spaces. In onclusion, the site still requires fifty-three (53)parking spaces because of the Lodge, which it does, ~ut the amount of excess or overflow parking has ultimately been reduced from twelve (12) parking }paces to six (6) parking spaces. ~Vith regards to Quantum Park's economic expansion, the proposed daycare ~preschool use will have ~n overall positive effect on the immediate area beca, use the Little Blue Academy will be the first of ~uch facility within Quantum Park and the Academy s curriculum will emphasize language, math & science, art, and music. Refuse and service areas, with particular reference to the items in subsection 1 and 2 above. ~he dumpster enclosure is located at the northwest corner of the site. The loading zone is located in ~he rear of the building along the north property line. Both the dumpster and loading zone share the ~ame access aisle. Both are located in an area that is unobtrusive to pedestrian and vehicular traffic ~nd are unnoticeable from Quantum Boulevard. tilities, with reference to locations, availability, and compatibility. Consistent with Comprehensive Plan policies and city regulations, all utilities, including potable water ~nd sanitary sewer are in place via construction of the original permitted lodge facility. Screening, buffering and landscaping with reference to type, dimensions, and character. [ With the completion of the Boynton Masonic Fraternal Lodge, the project perimeters include a 7-foot ~ide landscape buffer'strip along the front property line on Quantum Boulevard and a 5-foot wide 3erimeter landscape buffer strip along the northern and western property lines. The front landscape ~uffer consists of Live Oak trees, Simpson Stopper hedges, Crinum Lily plants, Florida Gama Grass, ~nd Dwarf Yaupon Holly shrubs. Boynton Masonic Lodge (Little Blue Academy - COUS 01-001 Page 4 Memorandum No. PZ 01 - 078 The side perimeter landscape buffers contain Live Oak trees, Myrsine, and Sabal Palm trees. The interior and parking areas contain a wide variety of plants, shrubs, and trees, most of which are drought tolerant. The existing landscaping adjacent to the six (6) parking spaces will be relocated to an appropriate area along the building foundation. o Signs, and proposed exterior lighting, with reference to glare, traffic safety, economic effect, and compatibility and harmony with adjacent and nearby properties. The approved Quantum Park signage plan allows one monument sign, per parcel, with a maximum sign dimension of seven (7)feet high and fourteen (14)feet wide, for a sign face total of sixty-four (64) square feet. The site contains one free standing monument sign, 3. S feet high and 12feet wide, with 28.5 square feet of sign face. The Masonic Lodge emblem is located on the front building faqade visible to Quantum Boulevard. In the future, the onus is on the Boynton Masonic Lodge or The Little Blue Academy ro formally request a modification consistent with the current Quantum Park sign program should they avail themselves the opportunity ro increase the number of signs on-site or propose a new wall or monument sign. 7. Required setbacks and other open spaces. The building meets or exceeds all setback requirements required of the PID zoning district. The site contains 22% or 18,481 square feet (22°_4) of pervious area. The outside child area will encompass only a small portion of the total pervious area. The property is buffered to the west in part by the L.W.D.D. E-4 Canal. 8. General compatibility with adjacent property and other property in the zoning district. In general, the proposed project is compatible with the existing office/meeting facility use. There will be minimal on-site impact and no adverse effects will occur because the proposed daycare use will be disconnected from the lodge use and the hours of operation for each function will be staggered. There will be little or no impact to the adjacent properties or to the general area. Height of building and structures, with reference to compatibility and harmony to adjacent and nearby properties, and the city as a whole. The Boynton Masonic Lodge was originally designed as a one-story building with blue standing metal roofing. The maximum allowable height in the Planned Industrial District is.four (4) stories or forty- five (45)feet. The existing building is approximately 27feet in height at the peak of the roof The building height will not change as a result of the proposed the daycare. The current building height is compatible with neighboring properties. The existing building facade, as viewed from Quantum Boulevard, has been designed to be architecturally compatible to this predominately industrial use area. The new structure has received surface treatments and colors of off-white painted stucco walls accented with white moldings. 10. Economic effects on adjacent and nearby properties, and the city as a whole. As stated in the Section 2 above, the daycare / preschool use will. be the first such facility within the Boyntor Page 5 Memora 11. 12. RECO] Based with th conditil MR/eli /:~HRDATA~ Masonic Lodge (Little Blue Academy - COUS 01-001 ~dum No. PZ 01 - 078 ~uantum Park PID. The proposed use will constitute additional convenience and choice for the ~embers of the Lodge, patrons of Quantum Park, and residents of the neighboring residential ~ubdivisions. It is anticipated that Quantum Park will continue to develop and intensify and a daycare '~se in conjunction with the lodge would be appropriate uses for this site. 2onformance to the standards and requirements which apply to site plans, as set forth in Chapter 19, ~rticle II of the City of Boynton Beach Code of Ordinances. (Part III Chapter 4 Site Plan Review). With incorporation of staff comments, the proposed project will comply with all requirements of ~pplicable sections of city code. 2ompliance with, and abatement of nuisances and hazards in accordance with the performance ;tandards within Section 4 of the zoning regulations; also, conformance to the City of Boynton Beach ~loise Control Ordinance. With.incorporation of all conditions and staff recommendations contained herein, the proposed taycare /preschool use would operate in a manner that is in compliance with the above-referenced :odes and ordinances of the City of Boynton Beach. In particular, the applicant will have to apply for znd obtain all necessary approvals and licenses from all applicable governing bodies, including but wt limited to the Palm Beach County Health Department and Florida State Department of Health, vhich are required for the daycare /preschool operation. ~ENDATION the discussions contained herein, compliance with development regulations, and the consistency Comprehensive Plan, staff recommends that this request be approved subject to satisfying all as of approval as contained in Exhibit "C'. 'Ianning~HARED\WP~PROJECT$\BOYNTON MASONIC LODGE - USAP\Boynton Masonic Lodge Daycare-Preschocl\COU$ staff report, doc LOCATION MAP Boynton Masonic Lodge EXHIBIT "A" ,/ \ \ ~Y ~- OF= GoMME I' ~ U ANT !-I IVI ~,MOTO F::IO L.~,~ __ EXHIBIT"B" 22-~ L.LU.~.~. E-4 C~N~L ,, / ......... L / ........... zz~ ....... ~_:~ ~~-.~ ' i~',~~i~- - '?~'j' ',~ MASONIC LODGE M: \CADOI-O000\,O~-0302 80YNTON MASONIC LODGE (COND. USE) \CAOO2146-NEW,dwg Fri Aur 27 09: 08:03 2001 JML EXHIBIT"B" Lot 22-A [: BOYNTON MASONIC LODC~E EXHIBIT "B" ,.roland e. borglund EXHIBIT "B" ~ ~ ~ I BOYNTON MASONIC LODGE equested Ci~ Commission Meeting Dates [] ~arch 20, 2001 [] 4p l 3.2001 [] Mayl,2001 VII-PUBLIC HEA ITEM B CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM Date Final Form Must be Turned ~n m City Clerk's Office March 7, 2001 (5:00 p.m.) March 21,2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May15,2001 [] June 5, 2001 [] June 19, 2001 [] July 3, 2001 Date Final Form Must be Turned In to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NAT~JRE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Pubhc Hearing [] Legal [] Bids [] Unfinished Business [] Announcemem [] Presentation [] City Manager's Report RECOMMENDATION: Please place this request on the May 15, 2001 City Commission Agenda under Publi6 Hearing. The Commtmity Redevelopment Agency Board with a 5 to 2 vote recommended that the subject request be denied. For further details pertaining to this request see attached Department of Development Memorandum No. PE 01-080. EX.PEA_NATION: PROJ~ECT NAME: AGE/~T: OWNER: LOC6TION: DESGRIPTION: [ A PINK PRINCESS Bradley Miller, AICP, Miller Land Planning Consultants, Inc. George E. Uhazie & Marion R. Uhazie 1120 South Federal Highway To reclassify the subject property from Office Commercial (OC) to Local Retail Commercial (LRC), and rezone from Office Professional (C-I) to Neighborhood Commercial (C-2). PROGRAM IMPACT: FISCAL IMPACT: ALTERNATIVES: N/A N/A N/A epar~nfqf I~, el-o~p~entXt;qrector City Manager's Signature City Attorney / Finance / Human Resources J:~SHRDATA~Planning\SHARED\WP~PROJECTS~ Pink Princess\CC Agenda Request Form 5-15-01 Pink Princess.dot S:~BUI~LET1N~FORMSXAGENDA ITEM REQUEST FORM.DOC DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA PROJECT NAME: APPLICANT'S AGENT: APPLICANT'S ADDRESS: A PINK PRINCESS Bradley Miller, AICP, Miller Land Planning Consultants, Inc. 3201 S. Ocean Blvd., PH-4 DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: TYPE OF RELIEF SOUGHT: Land Use Amendment/Rezoning LOCATION OF PROPERTY: 1120 S. Federal Highway DRAWING(S): SEE EXHIBIT "B" ATTACHED HERETO. May 15, 2001 THIS MATTER came before the City Commission of the City of Boynton Beach, Florida appearing on the Consent Agenda on the date above. The City Commission hereby adopts the findings and recommendation of the Planning and Development Board, which Board found as follows: OR X THIS MATTER came on to be heard before the City Commission of the City of Boynton Beach, Florida on the date of headng stated above. The City Commission having considered the relief sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: Application for the relief sought was made by the Applicant in a manner consistent with the requirements of the City's Land Development Regulations. The Applicant HAS HAS NOT established by substantial corn petent evidence a basis for the relie[.requested. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial 'competent evidence are as set forth on Exhibit "C" with notation "Included". The Applicant's application for relief is hereby GRANTED subject to the conditions referenced in paragraph 3 hereof. DENIED 5. This Order shall take effect immediately upon issuance by the City Clerk. All further development on the property shall be made in accordance with the terms and conditions of this order, 7. Other DATED: City Clerk j:\SHRDATA\Planning\SHARED\WP~OROJECTS~, Pink Princess\Develop. Order-Pink Princess CC 5-15-01.doc T ): FROM: T~ROUGH: C: DEVELOPMENT DEPARTMENT PLANNING AND ZONING DMSION MEMORANDUM NO. PZ 01-080 Chairman and Members Community Redevelopment Agency Board /'~.~ Dick Hudson, Senior Planner Michael W. Rump~'~' Director of Planning and Zoning DATE: April 27, 2001 Project/Applicant: A~ent:. PROJECT DESCRIPTION A Pink Princess/Janet Kysia Bradley Miller, AICP Miller Land Planning Com~ltants, Inc Owner: fion: F~e No: l~operty Description. George E Uhazie & Marion R. Uhazie 1120 South Federal Highway Land Use Amendment/Rezonlng (LUAR 01-001) Developed property located one-half mile north of Woolbright Road consisting of 0.73 acres classified Office Commercial (OC) land use and zoned Office Professional (C-l). The property is divided by SE 117 Avenue. ,The larger, southern portion of the property (26,029 square feet) contains the office building, and parking; the northern portion (5,784 square fee0 is vacant. The building, constructed ca. 1935 and included in the City of Boynton Beach Hiswric Sites Survey as the Lee Manor Inn, has recently housed a real estate ..... office, and prior to that, a bank with a drive-thru facility..:l ..;~: ~.. Pttoposed change/use: To reclassify the subject property from Office Commercial (OC) to Local Retail ' Commercial (LRC), and rezone from Office Professional (C-l) to Neighborhood Commercial (C-2). Adjacent Land Uses and Zoning: N6rth: S~hth: E st: Developed property classified as Office (OC) land use and zoned Office Professional (C-l), containing two single-story office complexes, further north is the Boynton Woman's Club, one of the few properties in the city currently listed on the National Register of Historic Places. Developed property classified as Office (OC) land use and zoned Office Professional (C-l), containing a combination of single- and two-story condominitun office complex. Further south is property containing a sit-down restaurant (IHOP) also classified as Office (OC) land use and zoned Office Professional (C-l). Parking and access for the property to the south onto SE 11' Avenue, separating the subject property from uses located farther east. Then, developed property classified as Low Density Residential (LDR) and zoned Single Family Residential with a maximum density of 5.40 dwelling ~nits per acre (R-lA.A) containing single-family homes (Boynton Isles). ~. File Number: LUAR 01-001 A Pink Princess Federal Highway right-of-way, then developed property classified as Local Retail Commercial (LRC) and zoned Community Commercial (C-3) containing, on the north side of SE 12~ AvenUe, a gas station (currently closed), and on the south side, a convenience store (Kwik Stop), then a fast food establishment (Dunkin' Donuts). PROJECT ANALYSIS Chapter 163, Florida Statutes requires that ia order for an amendment to the Future Land Use Map to qualify as a "small-scale" amendment, the property must be less than 10 acres ia size. A "small-scale" amendment can be adopted prior to forwarding to the Florida Department of Community Affairs and is not reviewed for compliance with the state, regional and local comprehensive plans. The subject property contains 0.73 acres, and therefore qualifies as a "small-scale" amendment. The criteria used to review Comprehensive Plan amendments and rezonings are listed ia Article 2, Section 9, Adrru'nistration and Enforcement, Item C. Comprehensive Plan Amendments: Rezonings. These criteria are required to be pan of a staff analysis when the proposed change includes an amendment to the Comprehensive Plan Future Land Use Map. Whether the proposed rezoning would be consistent with applicable comprehensive p.lan policies including but not limited to, a prohibition against any increase in dwelling unit density exceeding 50 in the hurricane evacuation zone without written approval of the Palm Beach County Emergency Planning Division and the City's risk manager. The planning department shall also recommend limitations or requirements, which would have to be imposed on subsequent development of the property, in order to comply with policies contained in the comprehensive plan.' According to the Comprehensive Plan Future Land Use Support Document, under the "Discussion of Supply and Demand for Commercial Land" the following is recommended: "The Future Land Use Plan which is proposed for the City and area to be annexed by the City will accommodate all of the anticipated demand for commercial land through build-out. Therefore, the City should not change the land use to commercial categories, beyondthat which is shown on the proposed Future Land Use Plan, except for minor boundary adjustments, small infill parcels, or commercial uses of a highly specialized nature, Which have special location or site requirements, smi therefore cannot, be easily accommodated on ah~ady designated commercial a~as", and Policy 1.19.6 of the Land Use Element reiaforc~ the recommendation and reads: "The City shall not allow commercial acreage which is greater 'than the demand which has been projected, unless it can be demonstrated that the additional commercial acreage would not require the proportion of commercial acreage on the City's Future Land Use Map to exceed the proportion of commercial acreage on the Palm Beach County Future Land Use Map. The City shall not allow commercial unless a particular property is unsuitable for other uses, or a geographic need exists which cannot be fulfilled by existing commercially-zoned property, and the commercial use would comply with all other applicable comprehensive plan policies.' The property for which the amendment is requested is within the city,s hurricane evacuation zone, however, the requested change involves commercial development and will not increase residential density. With reference to the recommendation and policy regarding the increase of commerciil 4 C'. tile Number: LUAR 01-001 Pink Princess f. Whether the property is physically and economically developable under the existing zoning. property is developed and could be utilized in its present condition for a broad range of uses ermitted under the existing zoning. g. Whether the proposed rezoning is of a scale which is reasonably related to the needs of the neighborhood and the city as a whole. 'I~he subject rezoning and subsequent use of the property would represent a positive contribution to both e neighborhood and the city. I h. Whether there are adequate sites elsewhere in the city for the proposed use, in districts where such use is already allowed. There ~re other properties along Federal Highway that have land use and zoning designations that p~rmit this type of use. The applicant states that "no other (properties) have the atmosphere of this p~rticular property.' U t~ p~ H al ac F, Ol A CONCLUSIONS/RECOMMENDATIONS ader normal circumstances, staff would oppose this proposed reclassification, since it bears many of characteristics of spot zoning. In this case however, staff supports the rezoning given that the oposed use and intensity change is generally consistent with the recommendations of the Federal ghway Corridor Community Redevelopment Plan, and since plan implementation will result in the insolidation of zoning districts and/or elimination of inconsistent districts and uses. This request is ~o consistent with the intent of the Comprehensive Plan; will not create additional impacts on .:rastructure that have not been anticipated in the Comprehensive Plan. It will be compatible with acent land uses and will contribute to the overall economic development and redevelopment of the leral Highway Corridor and the City in general. Therefore, staff recommends that the subject tuest be approved. If conditions are recommended by the Community Redevelopment Agency Board the City Commission, they will be included as Exhibit 'B~. ?rACHMENTS Pink _ .i _-' - nllon.doc Page 3 C File Number: LUAR 01-001 A Pink Princess acreage, the property is already classified among the "COmmercial~ land use categories. The requested change is for an increase in intensity of use from C- I to C-2, rather than a change in use. bo Whether the proposed rezoning wouM be contrary to the established land use pattern, or wouM create an isolated district unrelated to adjacent and nearby districts, or would constitute a grant of special privilege to an individual property owner as contrasted with the protection of the public welfare. The proposed rezoning does introduce a new use, C-2, to the area; however, rather than creating an isolated district, it may be viewed as a transition between the existing C-1 commercial uses on both the north and south and the existing C-3 uses to the west across Federal Highway. The proposed use of the site is compatible with surrounding uses and is not inconsistent with other uses in the Federal Highway corridor. · c. Whether changed or changing conditions male the proposed rezoning desirable. The recent development of the F_~_eral Highway Corridor Commtmity Redevelopment Plan may be viewed as changing conditions, since that plan recommends amendments to the current developmeat regulations to encourage neighborhood-serving retail, particularly in this portion of the corridor that serves as the southern 'gateway" to the downtown. The property is a part of a 'node of commercial development" at the intersection of SE 12'~ Avenue and Federal Highway. SE 12'~ Avenue is one of the few roadways crossing the FEC railway and connecting Federal Highway with Seacrest Boulevard. d. Whether the proposed use would be compatible with utility systems, roadways, and other public facilities. The applicant has stated that the approval of this application will not serve to increase .demands on either the potable water or sanitary sewer levels of se~ice or systems. -Palm Beach County has reviewed the traffic study for this project and has determined that the inc~ in daily trips by an average of 379 trips meets the Traffic Performaa~e Standards of the County. With respect to solid waste, the Solid Waste Authority has stated, within a letter dated January 8, 2001, that adequate capacity exists to accommodate the county's municipalities throughout the 10-year planning period. Lastly,"drainage infrastructure is already in place and no change is anticipated for the project. e. Whether the proposed rezoning would be compatible with the current and future use of adjacent and nearby properties, or would affect the property values of adjacent or nearby properties. The applicant pr~ to use the existing structure to house a girls' boutique, 'selling clothes, dolls and gift items. The structure is listed in the city's Historic Sites Survey as a property with potential for National Register non~ination, as indicated in the survey. Its continued use and maintenance will help to preserve this 'fmc example of the development of the city during the DepreSSion/New Deal Era.' The statements of impacts to the infrastructure provided by the applicant indicate that the proposed use will only minimally increase traffic and will not increase demands for other city-provided utility services. It should be noted, however, that a range of commercial uses are permitted 'by-right' under the C-2 Neighborhood Commercial zoning. The uses include small retail stores containing up to 5,000 square feet and selling merchandise that ranges from furniture and antiques to automobile parts and marine hardware.. LOCATION MAP U i 1::13 EXHIBIT."A" Requested City Commission Meeting Dates [] Mdrch 20 2001 [] Api'il 3, 2001 [] April 17, 2001 [] M~y 1, 2001 CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 15, 2001 [] June 5, 2001 [] June 19, 2001 [] July3,2001 X-NEW BUSINESS ITEM A Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Un£mished Business [] Announcement [] Presentation [] 'City Manager's Report RECOMMENDATION: Approval of this Ordinance on First Reading, which will amend the City Charter and Code to reflect a change in the date of Municipal Elections from March to November to coincide with county, state and federal electiofls. EXPLANATION: Florida Statute 100.3605(2) authorizes the governing body of municipalities to change, by Ordinance, the dates for qualifying and for the election of members of the municipal governing body and to provide for an orderly transitiOn of office resulting from such change. In drafting the Ordinance the City Attorney took the liberty of providing that sitting elected officials will continue to serve until their seat is filled in the November election which follows the end of their current term. This avoids cutting short the term to which the official was elected. The change to a November election to coincide with county, state and federal elections, would result in a greater voter participation, as well as reducing any costs associated with elections. PROGI~.AM IMPACT: n/a FISCAL IMPACT: n/a ALTERNATIVES: Keep the municipal election in March. // Deparm~ H~d's Signature Department Name City Manager's Signature City Atiorr~-/15~ance Human Resources S:XBULI .ETIN'ff:oRMSX, AGENDA ITEM REQUEST FORM.DOC TO: CC: FROM: RE: DATE: MEMORANDUM Mayor and City Commissioners Kurt Bressner, City Manager James A. Cherof, City Attorney Change of Date of Municipal Election April 3, 2001 Commissioner Bruce Black has posed substantially the following question: May the City amend its Charter by ordinance to move the date of the municipal election from March to November, or must such change be submitted to the electors by referendum? SHORT ANSWER: The date of the municipal election may be moved by ordinance. AUTHORITY: Section 100.3605, Florida Statutes ANALYSIS: The procedure for changing the date ora municipal election was recently addressed by the Attorney General in response to a question posed by the City Attorney for the City of Mulberry, Florida. The Attomey General reviewed a potential conflict between section 100.3605 Florida Statutes, which authorizes amendment of election dates by ordinance, and 166.031 Florida Statutes, which requires charter amendments to be approved by referendum. The Attorney General concluded that section 100.3605 controls and that: ... the City may by ordinance amend its city charter to move the dates of the city election from April to November .... and to extend the terms of the sitting commissioners to November. I will await the direction of the Commission before drafting an ordinance to change the date of the municipal election and extending the term of sitting Commissioners to coincide with the new election date. A copy of Attorney General's opinion 2000-61 is attached. J:\SHRDATA\CA\COMIVlXmotions to reconsider.doc I Page 1 Citation Search Result AGO 2000-61 (u~te as: 2000 WL 1508666 (Fla.A.G.)) Rank 1 of 1 Database FL-AG Office of the Attorney General State of Florida *1 AGO 2000-61 October 6, 2000 RE: MUNICIiPALITIES--CHARTERS--REFERENDUM--change in date of election of municipal elections iand resulting change in terms of sitting officers may be accomplished by ordinance without a referendum, ss. 100.3605 and 166.021, Fla. Stat. Mr. Frank iComparetto, Jr. Mulberry City Attorney Citrus & ~hemical Bank Building 114 North iTennessee Avenue, Suite 204 Lakeland, !Florida 33801-4659 Dear Mr. Comparetto: You ask isubstantially the following question: ~ay the City of Mulberry, pursuant to section 100 3605 Florida Statutes, amend ~ city ~harter by ordinance to move the dates of city elections from April to November rio coincide with federal, state, and county elections, and to extend the terms of the sitting commissioners to November? In sum: ~ Pursuan~ to section 100.3605, Florida Statutes, the City of Mulberry may by ordinance lamend its city charter to move the dates of city elections from April to Novembgr to coincide with federal, state, and county elections and to extend the terms of the sitting commissioners to November. In Attorney General Opinion 94-31, this office stated that under the then existing ~tatutes, the city commission of the City of Tallahassee could not amend its charter by ordinance to provide for a change in the date on which municipal elections will occur and extend the terms of the sitting officers affected by the change. T?is conclusion was based on the language of section 166.021 Florida Statutes 1993). Subsections (4) and (5) of the statute sought to implement the broad grar~.t of home rule powers by repealing or converting into ordinances limitatior's on municipal powers contained in a municipal charter or special act adopted p~ior to July 1, 1973. Subsection (4) of section 166.021, however, provided ~hat nothing in Chapter 166, Florida Statutes, the Municipal Home Rule Powers Ac~, was to be construed as permitting any changes in a special law or municipal icharter that affect certain subject matters set forth therein, including "the terms of elected officers," Without referendum approval as provided in section 166.031, Florida Statutes. 'lrlng ~he 1995 legislative session, legislation was introduced to amend s~tion 166.021, Florida Statutes. Section 1 of Chapter 95-178, Laws of Florida, Copr. © West 2001 No Claim to Orig. U.S. Govt. Works Fla. AGO 2000-61 (Cite as: 2000 WL 1508666, *1 (Fla.A.G.)) amended section 166.021(4) to read in pertinent part: 'However, nothing in this act shall be construed to permit any changes in a Page special law or municipal charter which affect the terms of elected officers and the manner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, without approval by referendum of the electors as provided in s. 166.031 .... " (e.s.) Section 2 of Chapter 95-178, supra, created section 100.3605, Florida Statutes, relating to the conduct of municipal elections. [FN1] Subsection (2) of section 100.3605 provides: *2 '(2) The governing body of a municipality may, by ordinance, change the dates for qualifying and for the election of members of the governing body of the municipality and provide for the orderly transition of office resulting from such date changes." An examination of the legislative history of the 1995 legislation indicates an intent that municipalities would be authorized to amend their charters to change the election dates and. qualifying periods for candidates, including any changes in terms of office necessitated by such amendment, without a referendum. [FN2] Moreover, the title for Chapter 95-178, Laws of Florida, states in pertinent part: 'An act relating to municipal elections; amending s. 166.021, F.S.; authorizing amendment of a special law or municipal charter for the purpose of changing election dates and qualifying periods for candidates, including any changes in'il 3 terms of office necessitated thereby, without referendum; creating s. 100.3605, F.S.; providing for change of qualifying periods and election dates by ordinance and for the orderly transition of office; providing an effective date." While the title to a statute cannot enlarge the operation or effect of an enactment, it may be used as an aid in the statute's interpretation. [FN3] The title reflects an intent o~ the Legislature to permit municipalities to amend their charter to change the election dates and qualifying periods for candidates, including any changes in terms of office necessitated thereby, without referendum. Accordingly, I am of the opinion that pursuant to section 100.3605, Florida Statutes, the City of Mulberry may by ordinance amend its city charter to move the dates of city elections from April to November to coincide with federal, state, and county elections, and to extend the terms of the sitting commissioners to November. Sincerely, Robert A. Butterworth Attorney General [FN1] . Chapter 95-178, Laws of Florida, became effective January 1, 1996. See, s. 3, Ch, 95-178, supra. / ~. Copr. © West 2001 No Claim to Orig~ U.S. Govt. Works Fla. AGO 2000-61 (Cite as: 2000 WL 1508666, *2 (Fla.A.G.)) Page 3 [FN2] . See, House of Representatives Committee on Ethics and Elections Final Bill Analysis & Economic Impact Statement on HB 2209 (passed by the Legislature as Ch. 95-178, Laws of Florida), dated May 10, 1995, stating: HB 220i9 authorizes amendment of a municipal charter or special act without referendu~ for the purpose of changing municipal election dates and qualifying period fo~ candidates and for the adjustment of terms of office necessitated by such date ichanges .... [FN3]. See, e.g., Parker v. State, 406 So. 2d 1089 (Fla. 1981) (one indicator of legislature's intent is the title of the law enacting the statute); Carlile v. Game and Fresh Water Commission, 354 So. 2d 362, 365 (Fla. 1977) (reference to the title iof a legislative act is appropriate in determining legislative intent); Long v. S~ate, 622 So. 2d 536 (Fla. 1st DCA 1993); State, Department of Environmehtal Regulation v. SCM Glidco Organics Corporation, 606 So. 2d 722 (Fla. 1st DCA 1~92) (to determine legislative intent, court must consider act as whole, i.e., evilI to be corrected, language of act, including its title, history of its enactment,i and state of law already in existence). Fla. AGO 2i000-61, 2000 WL 1508666 (Fla.A.G.) END OF DOdUMENT Copr. © West 2001 No Claim to Orig. U.S. Govt. Works *END*END*END*END* END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END* 1885068 - IGWE,NICHOLAS Date and Time Printing Started: Date and Time Printing Ended: Offiine Transmission Time: Number of Requests in Group: Number of Lines Charged: 04/24/01 04/24/01 1 122 09:16:26 am (Central) 09:16:26 am (Central) 00:00:00 *END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END*END* ORDINANCE NO. O1 - AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA CHANGING THE DATE OF MUNICIPAL ELECTIONS FROM THE SECOND TUESDAY IN MARCH TO THE FIRST TUESDAY IN NOVEMBER; PROVIDING FOR A TRANSITION PERIOD FOR ELECTED OFFICIALS WHO ARE SERVING A TERM OF OFFICE AT TIME OF ADOPTION OF THIS ORDINANCE; PROVIDING FOR AMENDED QUALIFYING PERIODS; AMENDING CONFLICTING PROVISION OF THE CITY CHARTER (SECTIONS 15, 51, 138, 141), PROVIDING FOR CONFLICTS, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. WHEREAS, the City Commission has considered the public benefits of municipal elections that coincide with county, state and federal elections; and WHEREAS, the City Commission has determined that moving municipal elections from the second Tuesday in March, as currently provided for in the Code and Charter, to the first Tuesday in November to coincide with county, state and federal elections would result in a greater voter participation in municipal elections and would reduce costs associated with elections when only municipal candidates are on the ballot; and WHEREAS, Florida Statute 100.3605(2) authorizes the governing body of municipalities to change, by Ordinance, the dates for qualifying and for the election of of the municipal governing body and to provide for an orderly transition of office resulting from such change; WHEREAS, The City Commission has considered and is guided by the Florida Attorney General's opinion (AGO 2000-61, issued October 6, 2000) that a municipality may by ordinance amend its city charter to move the dates of city elections from April to to coincide with federal, state, and county elections, and to extend the terms of the sitting commissioners to November. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing Whereas clauses are true and correct and ~ncorporated herein by this reference. Section 2. Effective immediately upon adoption of this Ordinance municipal elections shall be held on the first Tuesday in November in years when elections are required to maintain staggered terms as provided for in the City Charter. The next municipal election following the adoption of this Ordinance will be the first Tuesday in November, 2002. Section 3. To provide for the orderly transition of office and to avoid shorting the term of office for which current elected officials were elected, each elected official who holds office on the date of enactment of this Ordinance shall continue to serve in office until their seat is filled in the November election which follows the expiration of their current elected term. Section 4. All references to "March" in the City Code or Charter, when used in the context of elections shall be construed to mean "November", following the :nactment of this ordinance. Section 5. All references to "January" in the City Code or Charter, when used in the context of elections or qualifying for elections shall be construed to mean 'September", following the enactment of this ordinance. Section 6. All references to "February" in the City Code or Charter, when used in the context of elections or qualifying for elections shall be construed to mean "October", following the enactment of this ordinance, Section 7. Sections 15, 51,138 and 141 of the City Charter are amended by adding the words and figures in underlined type and by deleting the words and figures in struck through type, as follows: Sec. 15. office. When Commission Members and Mayor to assume The Commission Members and Mayor who are elected in elections held in March November of any year, shall assume office on the first regular or special city commission meeting following their election. Once all newly elected officials have taken office the Commission shall organize in accordance with the provisions of section 53 of this Charter and shall then proceed to select the officers and employees, designated in section 49 of this Charter. Sec. 51. Filling vacancy on City Commission. In the event of a vacancy occurring in the members of the City Commission, except at the close of a regular term, ... In no event shall an appointment or election alter the term of the district seat. Municipal election shall mean the election held on the second- first Tuesday in ~,~.arc.". November of the calendar year .... Sec. 138. Call by Mayor, publication of proclamation; qualification of candidates, filing by candidates with City Clerk; notification of Supervisor of Elections. All general and special elections, unless otherwise provided in this Act .... Candidates for City Council shall file such papers and pay such fees as may be required by law with the City Clerk no earlier than noon on the last Tuesday in J~nua:'y September, nor later than noon on the second Tuesday in ~ctober of the calendar year in which the election is to be held... Sec. 141. Regular municipal election, date; qualification of electors for Councilmen; method of holding elections, special elections. Regular municipal elections shall be held on the szc~c,n~ first Tuesday in 1V.a.-:.u. Novembercvz.9r 2/car, ~zgir. ning in 19~~. in an election year.. In the event a mn-off election is required as specified in section 139 hereof, said election shall be held on the fourth Tuesday of l~la,-c,u. November. The City Council shall prescribe, by ordinance, the method and manner of holding all elections in said City, and shall provide when and how special elections shall be called and held, which are not provided by the terms of this Charter, and all elections shall be conducted substantially on the principle adopted for state election insofar as there are no conflicts with the terms of this Charter. Section 8. In the event of a conflict between the provisions of this ordinance and any other provision of the City Code, City Charter, ordinance or resolution, this ~rdinance shall control. Section 9. Authority is hereby given to codify this Ordinance with specific authority granted to add notations to conflicting provisions of the City Code or Charter. Section 10. This Ordinance shall become effective immediately upon passage FIRST READING this ~ day of May 2001. SECOND, FINAL READING AND PASSAGE this ~ day of May, 2001. CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner ~.TTEST: Commissioner City Clerk :ca\oral. ate of Mun Ele~io~ XI-LEGAL CITY OF BOYNTON BEACH ITEM A.1 AGENDA ITEM REQUEST FOR vl NAT1 AGE1~ REC~3 agenda Redew Conma stores ~ for strr contex' Severa and th, EXPL CRA 1~ O) gui, is aime consist, conforfi establi., PROG approx govem. can be City an deadlin adopte( Regnla plan an FISCA ~quested City Commission Meeting Dates ~rch 20, 2001 ril 3, 2001 ril 17, 2001 ? 1, 2001 Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Datos [] May 15,2001 [] June 5, 2001 [] June 19,2001 [] July3,2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) ~E OF DA ITEM [] Administrative [] [] Consent Agenda [] [] Public Hearing [] [] Bids [] [] Announcement [] [] City Manager's Report 5VIMENDATION: Please place the attached ordinance for Second Reading, on under Legal. The Federal Highway Corridor Redevelopment Plan represents an lopment Plan, and therefore must be adopted by ordinance per state law. Three ~sion are to be made to the document. These are as follows: Page 85, 8t~ bullet [zed between 15,000 and 30,000 square feet"; Page 87, Recommendation 9 revi :tures, signage and street furniture that includes the implementation ora color p of the downtown and gateway communities."; and Page 99, last paragraph title~ ,ility is to be deleted. Staff recommends that the plan be adopted, subject to inc comments described above. d~ATION: The Federal Highway Corridor Redevelopment Plan constitutes a 1 :development Plan. The Plan reviews land uses and development standards for e public and private investment within the corridor and in adjacent neighborho{ at improving the business potential within the corridor, and (3) ensure that futq at with the intent of the "Vision 20/20 Redevelopment Plan" while meeting the Is to the provisions of Chapter 163.362 of the Florida Statutes regarding Comn acs the basis for Comprehensive Plan amendments, Code revisions and rezonin AM IMPACT: Staffis prepared to immediately begin the implementation Development Plans' New Business Legal Unfinished Business Presentation the May 15, 2001 City Commission amendment to the City's Community revisions recommended by the City , revise to r;e,.ad, "Grocery or food se to read, ' Develop a design program alate and architectural themes in the l Providing for a Time Certain ,rporation of all required map exhibits mrfial update of the existing 1983 he U.S. 1 corridor and is intended to: ~ds, (2) ensure that future development we development in the corridor is needs of the community. This Plan tunity Redevelopment Plans and :s in the Federal Highway Corridor. ~this plan, which is estimated to take .mtely six (6) months. The amendments are comprehensive; however, the tim_ix Lg, and time required is principally d by Florida Statures and the Florida Department of Community Affairs (DCA). Comprehensive Plan Amendments ~rocessed and forwarded to the state no more than twice per calendar year. The two application deadlines set by the April 1st and October 1st. Staff has timed the implementation of the recomn~endations with the earliest possible of - st · · . ~. April 1 . As indicated by the attached flow chart, the proposed amendment~ would be sent to DCA m July, and m December. The other recommendations will include amendments to the zoning map and Land Development tons. These amendments can be ratified and adopted but would not become effective until after the corresponding endments are approved by DCA. IMPACT: N/A S:\Devel{ :nentXAdministration\CC Agenda Items\CC Consent Agenda federal hwy corridor plan amendments 5.15.01 .doc CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM FISCAL IMPACT: N/A ALTERNATIVES: N/A Quint~. ~ee~. Di~ecto[[ of Development City Manager's Signature Mike Rumpf, Director of Plano~g~ind Zoning City Attorney / Finance / Human Resources Document2 DEPARTMENT OF DEVELOPMENT Memorandum DD 01-019 TO: FROM: DATE: RE: CC: Attache Redeve questior of outd, establis~ It shoul( Any rev recomm Develop recomrr .Tn the~ .atego~. part of tt uses an next ste Amendn City Commission Quintus L. Greene, Director of Development May 9, 2001 Federal Highway corridor Redevelopment Plan Changes. Kurt Bressner, City Manager is a response from Michele Mellgren regarding chang/es to the Federal Highway Corridor )pment Plan required by the City Commission. In addition, Ms. Mellgren has elaborated on s raised by the commission during the initial public hearing concerning the appropriateness tor storage and display as well as hotels, motels, timeshares and bed and breakfast ~ments in the downtown core be noted that outdoor storage and display is not currently allowed in the downtown area. sion to this existing prohibition would be part of the review of the development regulations .~nded by the plan. Similarly, hotels and motels are currently defined in the city's Land ~ent Regulations and these definitions will be updated as part of the code revisions .~nded in the plan. ther hand, timeshares refer to a particular type of property ownership rather than a land use These and other uses, such as bed and breakfast establishments, are more appropriately city's land development regulations, rather than the plan itself. Redefining these and other establishing the regulations governing their location, as recommended in the plan, is the in the process. Many of these changes are independent of the Comprehensive Plan ent process and can be implemented in the next few months. J:\SHRDATA\ )EVELOPMENT'~ADMINISTRATtON\MEMORANDUMS\01.019 COMMISSION - FED HWY CORRIDOR PLAN CHANGES,DOC 05/04/01 15:04 FAX 9547829122 INC. 1~[ glMORAN DIJ M DATE: May 4, 2001 TO: Quintus L. Greene, AICP FROM: M,~h¢,e C. Mellgren. AIC~'~.~~~ RE: Federal H{ghw~y Corridor Redevelopment Plan I have made the fotlowin~ changes to the r~fer~ced document in response to the CRA and City Commi~ion comments: On pose 85, the ¢ishth bulle~d ;rcm has been changed to read: Grocery or food stores s~ed between 15,000 square f~-~ and 30,000 square feet On page 87, recommendation nine has been rcv;sed to read: Develop a design program for sinecure, signag~ and strcx't furniture that includes tl~ implementation of a color plate and architectural tlgmes in the context of the dow~town and gateway communities. On page 99, the final parab.~aph entitled "Providing for a Time Certain Severability" ha, been deleted entirely in response m legal counsel's comments. 1 h~ve ~lso reviewad thc additional q~stions that were raised conc~'ning recommendalions contai~d m~ pages 83 through 85. The suggestions contained in gtis section are recommendations for consideration by the Community Redevelopment Agency (CRA). As a re, sult, adoption of the Redevelopment Plan will not glopt these prohibitions. Rather, adoption of the plan will adopt a recommcrtdation that the CRA consider th~se lis~d TI~ uses th~ ar~ list~l for specific consideration by the CRA ace those us~ ~a~ ~ ~i~lly vcNc~ m ~oroug~e ofien~. ~e vehicle or ~oroughf~c o~enmfion m~t be e~mMated if ~ c~e do~m~ is ~ ~vclop ~ a ~on ~a. ~ · r~g ~e plan ~comm~ ~t ~e C~ ~der el~g ~v~ ~u~ facilifi~, motels ~d outdo~ storag~ ~ di~l~y of goods. DHvc-thm f~ilifi~ ~ moteh ~ ~ v~icle off.ted. No~ ~t ho~ls, bcd ~d b~ts, t~sh~ and o~ ~es of Iodine ~ co~ decagon uses ~t wouM be gcepmblc. A~ifion~ly, ouldoor storage ~d outdoor di~lay am ofi~ ~ cap~ ~e~y ~affic ~ ~emfore, arc n~ ~g~cn ~es cf ~ or scfi~m. A~on ho~ ~d wholes~e ~ ~ ~ veMcle ofi~t~ ~ ~ a rc~lg arc ~so r~ended for comide~fion by ~e ~, ~ol~c us~ ~ ~ ~ed ~ ~e Co~ of O~ccs ~d ~c recordation ~n~ in the Rcdevelopm~ PI~ w~ fo~ula~d ~ ~e c~t of~e ~g de.flea. I have made ~e ~dditional minor corrections necessary to complete the "housekeeping", and look forward ~ fumliziag the documcnt. If you hav~ any questions or concerns, plca*e contact me at your earliest convenience. I will take this opportunity to t~an~ you on behS-!f of the City for allowing mc to prepare th~ Federal Highway Corridor Redevelopment Plan. [ believe that Plan implementation will bo very exciting and r~warding for the City of Boynton Beach. 300 S.W. ~'" Sa'~t ' Suite 3 '~ Fo~ L~ude. tdale, FL 33312 ' 954-~67-2322 ~' Fax: 9S4-467-2321 "www.mma~l,m',{,,$ ~ ORDINANCE NO. O01- ~O AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA ADOPTING THE FEDERAL HIGHWAY CORRDOR COMMUNITY REDEVELOPMENT PLAN; PROVIDING FOR CONFLICTS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the Federal Highway Corridor Redevelopment Plan constitutes a partial update of the existing 1983 CRA Redevelopment Plan; and WHEREAS, the Plan reviews land uses and development standards for the U.S. 1 corridor and is intended to: (1) guide public and private investment within the corridor and in adjacent neighborhoods, (2) ensure that future development is aimed at improving the business potential within the corridor, and (3) ensure that future development in the corridor is consistent with the intent of the "Vision 20/20 Redevelopment Plan" while meeting the needs of the community; and WHEREAS, this Plan conforms to the provisions of Chapter 163.362 of the Florida Statues regarding Community Redevelopment Plans and establishes the basis for Comprehensive Plan amendments, Code revisions and rezonings in the Federal Highway Corridor; NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City CommisSion of the City of Boynton Beach, Florida, hereby adopts thc Federal Highway Corridor Community Redevelopment Plan, prepared by Michclc Mcllgren & Associates, Inc., dated April 3, 2001. Section 2. That the Federal Highway Corridor Community Redevelopment \\CHhMAIN~SHRDATA\CA\ORD~Fedcral Highway Plan Ord.doc040601 Plan constitutes a partial update of the existing 1983 CRA Redevelopment Plan. Section 3. All laws and ordinances in conflict with any provisions of this ordinance are hereby repealed. Section 4. Should any section or provision of this Ordinance or any portion thereof be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the remainder of this Ordinance. Section 5. This Ordinance shall become effective immediately upon passage. FIRST READING this IT day of April, 2001. SECOND, FINAL READING AND PASSAGE this day of May, 2001-. CITY OFz~B( ,Y~T~ON/~EACH, FLORIDA Mayor Commissioner Commissioner ATTEST: City Clerk \\CI-BMAiN~SHRDATA\CA\ORDXFederal Highway Plan Ord.doc040601 AGENDA ITEM REQUEST FORM ......... Of -2 ?P, h: 21 ~e uesmd Ci~ Co~ssio~ D~te ~inM Fo~ ~st be ~umcd ~equested Ci~ Co~issio~ Date Final Fo~ ~ust be ~umed Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office [] Mar~h 20, 2001 March7,2001 (5:00p.m.) [] May 15,2001 May2,2001 (5:00p.m.) [] Ap~l 3, 2001 March 21, 2001 (5:00 p.m.) [] June 5, 2001 May 16, 2001 (5:00 p.m.) [] Apqt 17, 2001 April 4, 2001 (5:00 p.m.) [] June 19, 2001 June 6, 2001 (5:00 p.m.) [] Mai 1,2001 April 18,2001 (5:00p.m.) [] luiy3,2001 June20,2001 (5:00p.m.) NATUP~ OF AGENI~A ITEM [] Administrative [] Development Plans' [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report RECOI~VIENDATION: Please place the request below on the May 15, 2001 City Commission Agenda under Legal - First ReadingI. Ti? request is pursuant to an obligation of the original interlocal agreement with Palm Beach County. The Planning and Development Board with a unanimous vote, recommended that the subject request be approved, and strongly recommends ~at the City Commission direct staff to prepare an amendment to the Comprehensive Plan that establishes a ",Cons.er~ation ' land use classification for preservation sites.' For further details pertaining to this request see attached Department of Development Memorandum No. PZ 01-068. EXPLANATION: PROJECT NAME: AGE1WI]: OWNEI~: LOCATION: DESCR~TION: SEACREST SCRUB PRESERVE Staff Generated Palm Beach County South Seacrest Boulevard approximately ¼ mile north of the intersection of Gulfstream Boulevard Request to rezone a +_ 53.69-acre scrub preserve from "Single Family Residential" (R-1AA) and "Duplex Residential" (R-2) to "Recreation" (REC) pursuant to a condition of an inter-local agreement with Palm Beach County. PROGRAM IMPACT: N/A FISCA~ IM~PACT: N/A ALTERNATIVES: N/A f Dkectorogf~g and Zoning JAS HRDATA~PlanninB\SHARED\WP~PROJECTS~SC RUB REZN~SF~CREST~5-1-01 CC Agenda Request 1 st reading 5-15- 01~,dot City Manager's Signature City Attorney / Finance / Human Resources S:XBULLETIN~ORMSkAGENDA ITEM REQUEST FORM.DOC ORDINANCE NO. O1 - AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, BY AMENDING ORDINANCE NO. 91-70 OF THE CITY OF BOYNTON BEACH, REZONING THE SEACREST SCRUB FROM SINGLE FAMILY RESIDENTIAL AND DUPLEX RESIDENTIAL TO RECREATION; PROVIDING FOR CONFLICTS, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Boynton Beach, Florida has adopted Ordinance No. 91-70, in which a Revised Zoning Map was adopted for said City; and WHEREAS, in 1993, the City of Boynton Beach and Palm Beach County entered into an interlocal agreement for the acquisition and management of the Seacrest Scrub Ecosite; and WItEREAS, the pursuant to that Agreement, the City was required to amend the land use and zoning to designate the property for use as a "conservation" area; and WI-IEREAS, the land use for this parcel was a part of the EAR-based Comprehensive Plan amendments and was adopted by Ordinance No. 00-27, adopted on June 20, 2000; and WI-IEREAS, pursuant to Section 9 of Appendix A-Zoning, of the Code of Ordinances, City of Boynton Beach, Florida, the rezoning of this tract of land, more particularly described hereinafter, from Single-Family Residential (R-1AA) and Duplex Residential CR-2) to Recreation (REC) completes the required process; and WItEREAS, the City Commission deems it in the best interests of the inhabitants of said City to amend the aforesaid Revised Zoning Map as hereinafter set forth. NOW, TI-IEREFORE, BE IT ORDAINED BY TI-IE CITY COMMISSION OF TI-IE CITY OF BOYNTON BEACI-I, FLORIDA, TI-IAT: Section 1: The following described land, located in the City of Boynton Beach, Florida as set forth as follows: See Attached Exhibit "A" ,e and the same is, hereby rezoned from Single-Family Residential and Duplex .~esidential to Recreation. A location map is attached hereto as Exhibit "B" and made a ,art of this Ordinance by reference. Section 2: That the aforesaid Revised Zoning Map of the City shall be amended ¢cordingly. Section 3: All ordinances or pans of ordinances in conflict herewith are hereby 'epealed. Section 4: Should any section or provision of this Ordinance or any portion hereof be declared by a court of competent jurisdiction to be invalid, such decision shall mt affect the remainder of this Ordinance. Section 5: This ordinance shall become effective immediately upon passage. FIRST READING this day of May, 2001. SECOND, FINAL READING and PASSAGE this __ day of June, 2001. CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner Commissioner ATTEST: City Clerk (Corporate Seal) s:ca\Ord\ Seacrest Scrub Rezoning050701 Commissioner EXHIBIT "A" +That part of the Southwest quarter of Government Lot 2 lying West of the Florida East Coast Railway right-of-way, together with the South half of Government Lot 3, the Southeast quarter of Government Lot 4, that part of the North quarter of the Southwest quarter of the Northeast quarter of Section 4, lying west of the Florida East Coast Railway right-of-way; and the North quarter of the Southeast quarter of the Northwest quarter of Section 4, all lying in Section 4, Township 46 South, Range 43 East, Palm Beach County, Florida; EXCEPTING THEREFROM that part of Government Lot 4 lying within an 80-foot road right-of-way as conveyed to the County of Palm Beach in Deed Book 901, Page 234; together with the improvements, if any, now situated thereon and the reversiOnary interest, if any, of Sellers in and to the roads and streets, if any, and other areas and/or places, if any, dedicated to the use of the public, contiguous to and/or within the boundaries thereof. Containing 53.69 acres more or less. (Property I.D. No. 08-43-46-04-00-002-0010) LOCATION MAP SEACREST SCRUB EXHIBIT '.~" I! i::i3 DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. 01-068 TO: Chairman and Members Planning and Development Board THRU: Michael W. Rumpf Planning and Zoning Director FROM: Dick Hudson Senior Planner DATE: April 12, 2001 S U BJ ECT: Seaerest Scrub (REZN 01-001) Rezone to from Single Family Residential and Duplex Residential to Recreation LOCATION: South Seacrest Boulevard approximately % mile north of the intersection of Gulfstream Boulevard INTRODUCTION In 1993, the City of Boynton Beach and Palm Beach County entered into an interlocal agreement for the acquisition and management of the Seacrest Scrub Ecosite. Under terms of that agreement, the City is required to amend the land use and zoning to designate the property for use as a "CONSERVATION" area. The City's "RECREATIONAL" land use classification and "RECREATION" zoning designation are appropriate to this end since the definition of the "RECREATION" zoning designation specifies under I.l.d.of the Zoning Code, "Preservation or conservation: uses intended to maintain the general openness or vegetation of the land for environmental, educational, archaeological or open space reasons." The land use amendment for this property was a part of the EAR-based Comprehensive Plan amendments and was adopted by Ordinance 00-27 on June 20, 2000. At that time the land use map was amended to classify the subject property to "RECREATIONAL." Current zoning on the property is a combination of Single-family Residential (R-1AA) with a maximum density of 5.40 dwelling units per acre and Duplex Residential (R-2) with a maximum density of 9.68 du/ac, as shown on Exhibit "A"-Site Location. The rezoning to "Recreation", as pro. posed herein, completes the required process. Pa ge 2 acrest Scrub File No. REZN 01-001 PROCEDURE Pursuant to the City of Boynton Beach Land Development Regulations, Chapter 2, Section 9 (Administration and Enforcement), when a rezoning request does not require an amendment to the future land use map, staff analysis is not required to include an evaluation of the project using the eight criteria under Section 9.C.7. Since this request is only for rezoning, the above-described analysis is not required. Additionally, the proposed rezoning is merely a "housekeeping" matter that is necessary to ensure the consistency between the land use designation for the property and the zoning as required by Florida Statutes. ADJACENT LAND USES AND ZONING Th~ land uses and zoning in the surrounding area vary and are presented in the table that follows: North (Northwest) Developed single-family homes designated Low Density Residential (LDR) with a maximum density of 4.84 du/ac and zoned R1AA (single-family residential at a density of 5.40 du/ac. (Northeast) Developed residential uses designated Medium Density Residential (MeDR) with a maximum density of 9.68 du/ac, and zoned R-2 (Duplex residential) with a maximum density of 9.68 du/ac. EaSt Rights-of-way of the Florida East Coast Railroad and Old Dixie Highway. Then General Commercial development, those properties lying within the City of Boynton Beach have C-4 (General Commercial) zoning, and those properties lying within the unincorporated area of Palm Beach County have similar zoning. South Single family homes developed with land use and zoning similar to that lying north of the property. (Northwest) Developed single-family residential designated Low Density Residential (LDR) with a maximum density of 4.84 du/ac and zoned R1AA (single-family residential at a density of 5.40 du/ac. (Northeast) Developed residential designated Medium Density Residential (MeDR) with a maximum density of 9.68 du/ac, and zoned R-2 (Duplex residential) with a maximum density of 9.68 du/ac. West Right-of-way of Seacrest Boulevard. Then single family homes. PROPOSED USE OF THE PROPERTY The property will permanently remain a preserved, intact native Florida ecosystem, available to the public for passive, natural resource-based outdoor recreation and education. A management plan for the property is in place and the County has Page 3 Seacrest Scrub File No. REZN 01-001 developed a parking and interpretive area on the site, which permits public access and use of the natural area. CONCLUSION$/RECOMMEN DATIONS Based on the analysis and discussions contained herein, staff has determined this request is consistent with the Comprehensive Plan and the Land Development Regulations and is compatible with current and future uses of surrounding properties. Staff, therefore, recommends approval of the request for rezoning from Single-family residential (R-1AA) and Duplex Residential (R-2) to RECREATION (REC). Again, this rezoning is pursuant to an obligation of the original interlocal agreement with Palm Beach County. ATTACHMENTS j:~ H RO^T^'~olAo n in g~S HA R£1~\WP~P ROI EC']'~S CRU [g REZN~SEACREST~taifteport.doc LOCATION MAP SEACREST SCRUB EXHIBIT "A" :~5.0 A g~ I/8 N,IILES[ 400.'800 FEET i Commission Meeting Dates [] M~ :h20, 2001 [] A 3, 2001 [] A 17, 2001 [] M 1, 2001 NATU .t.E OF AGEi~ DA ITEM RECO Legal - The PI strongl establi~ attache EXPL NATION: PROJF ET NAME: AGEN ?: OWN~ R: LOCA' 'ION: DESC] IPTION: PROG RAM IMPACT: FISCAL IMPACT: ALTE \\CH~ UB RE2 REZN 0 S:~BULI CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM CITY OF CtTY t XI-LEGAL ITEM B.2 HAY -2 PHh:21 Date Final Form Must be Turned ~n to Cit'¢ Clerk's Office March 7, 2001 (5:00 p.m.) March 2l, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18,200l (5:00 p.m.) Reques~d City Commission Meeting Dates [] May l5,2001 [] June 5, 2001 [] June 19, 2001 [] July 3, 2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report VIMENDATION: Please place the request below on the May 15, 2001 City Commission Agenda under First Reading. This request is pursuant to an obligation of the original interlocal agreement with Palm Beach County. tuning and Development Board with a unanimous vote, recommended that the subject request be approved and recommends that the City Commission direct staff to prepare an amendment to the Comprehensive Plan that res a "Conservation" land use classification for preservation sites. For further details pertaining to this request see Deparanent of Development Memorandum No. PZ 01-002. ROSEMARY SCRUB PRESERVE Staff Generated Palm Beach County Northwest comer of the intersection of North Seacrest Boulevard and Miner Road Request to rezone a + 13.59-acre scrub preserve from "Single Family Residential" (R-l) to "Recreation" (REC) pursuant to a condtion of an inter-local agreement with Palm Beach County. N/A N/A LNATIVES: N/A ~,qCtrecior'~f Deve~p~m ~H~ATA~lanningXS~DX~ROJECTS~CR ~OSEM~-15-01 CC Agenda ~quest 1st reading -002.dot ~T~O~S~GENDA ITEM ~QUEST FO~.DOC ~C~ty Ma~nager's Signature t City Attorney, Finance / Human Resources ORDINANCE NO. O1 - AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, BY AMENDING ORDINANCE NO. 91-70 OF THE CITY OF BOYNTON BEACH, REZONING THE ROSEMARY SCRUB FROM SINGLE FAMILY RESIDENTIAL TO RECREATION; PROVIDING FOR CONFLICTS, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Boynton Beach, Florida has adopted Ordinance No. 91-70, in which a Revised Zoning Map was adopted for said City; and WHEREAS, in 1995, the City of Boynton Beach and Palm Beach County entered into an interlocal agreement for the acquisition and management of the Rosemary Scrub Ecosite; and WHEREAS, the pursuant to that Agreement, the City was required to amend the land use and zoning to designate the property for use as a "conservation" area; and WHEREAS, the land use for this parcel was a part of the EAR-based Comprehensive Plan amendments and was adopted by Ordinance No. 00-28, adopted on June 20, 2000; and WHEREAS, pursuant to Section 9 of Appendix A-Zoning, of the Code of Ordinances, City of Boynton Beach, Florida, the rezoning of this tract of land, more particularly described hereinafter, from Single-Family Residential (R-l) to Recreation (REC) completes the required process; and WHEREAS, the City Commission deems it in the best interests of the inhabitants of said City to amend the aforesaid Revised Zoning Map as hereinafter set forth. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1: The following described land, located in the City of Boynton Beach, Florida as set forth as follows: See Attached Exhibit "A" ~e and the same is, hereby rezoned from Single-Family Residential to Recreation. A ocation map is attached hereto as Exhibit "B" and made a pan of this Ordinance by 'eference. Section 2: That the aforesaid Revised Zoning Map of the City shall be amended tccordingly. Section 3: All ordinances or pans of ordinances in conflict herewith are hereby 'epealed. Section 4: Should any section or provision of this Ordinance or any portion hereof be declared by a court of competent jurisdiction to be invalid, such decision shall mt affect the remainder of this Ordinance. Section 5: This ordinance shall become effective immediately upon passage. FIRST READING this day of May, 2001. SECOND, FINAL READING and PASSAGE this day of June, 2001. CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Commissioner ATTEST: City Clerk (Corporate Seal) S:¢a\Ord\ Seacrest Scrub Rezoning050701 Commissioner Commissioner EXHIBIT "A" A parcel of land lying in Sections 9 and 16, Township 45 South, Range 43 East, Palm Beach County, Florida, being more particularly described as follows: From the Southeast corner of the Southwest Quarter (SW 1/,) of said Section 9 run North 90° 00' 00" West along the South line of said Section 9 a distance of 40.00 feet to the Point of Beginning of the herein described parcel of land; continue thence North 90° 00' 00" West a distance of 68.59 feet; thence due South a distance of 40.00 feet; thence due East a distance of 45.88 feet to the point of curvature of a curve concave to the Southwest having a radius of 25.00 feet, thence Southeasterly along the arc of said curve through a central angle of 87° 57' 15" a distance of 38.38 feet to a point on the Westedy Right-of-Way line of Seacrest Boulevard, and point of tangency of said curve; thence South 02° 02' 45" East along said Westedy Right-of-Way line a distanced of 75.88 feet; thence South 87° 57' 15" West along the South line of Lot 10, Block 20, of Rolling Green Ridge, 1st Addition, as recorded in Plat Book 24, at Page 223, of the Public Records of Palm Beach County, Florida, a distance of 73.62 feet; thence along the North line of said Plat of Rolling Green Ridge, South 52° 20' 15" West a distance of 75.79 feet; thence North 50° 50' 05" West a distance of 77.39 feet; thence North 90° 00' 00' West a distance of 130.42 feet; thence leaving said North line North 02° 02' 45" West along a line parallel to Seacrest Boulevard a distance of 140.08 feet to a point on the South line of said Section 9; thence North 01 ° 32' 45" East along a line parallel to Seacrest Boulevard a distance of 658.72 feet to a point on the North line of the South half (S ¼) of the Southeast Quarter (SE ¼) of the Southwest Quarter (SW ¼) of said Section 9; thence along said North line South 89° 58' 45" East a distance of 324.05 feet to a point on the Westedy Right-of-Way line of Seacrest Boulevard, an 80.00 foot wide road Right-of-Way; thence South 01 ° 32' 45" West along said Westedy Right-of-Way line a distance of 658.62 feet to the Point of Beginning. LESS AND EXCEPT THEREFROM THE FOLLOWING DESCRIBED PROPERTY: ^ parcel of land lying in Section 9, Township 45 South, Range 43 East, Palm Beach County, Flodda, being more particularly described as follows: From the Southeast comer of the Southwest Quarter (SW ¼) of said Section 9; thence due West along the South line of said Section 9, a distance of 40.01 feet to a point of intersections with a line parallel with and 40.00 feet at right angles to the East line of the Southwest Quarter (SW %) of said Section 9; thence North 01 ° 32' 45" East along said parallel line a distance of 40.01 feet to a point of intersection with a line parallel with and 40.00 feet at dght angles to the South line of the Southwest Quarter (SW ¼) of said Section 9 and the Point of Beginning of the herein described parcel; thence continue North 01 ° 32' 45" East along the West Right-of-Way line of Seacrest Boulevard, as now laid out and in use, a distance of 250.00 feet; thence due West a distance of 175.00 feet; thence South 01 ° 32' 45" West a distance of 250.00 feet; thence due East a distance of 175.00 feet to the Point of Beginning. (F O' arcel I. D. Nos. 08-43-45-09-00-000-7080; 08-43-45-09-00-000-7090; 08-43-45-16- -020-0100; 08-43-45-16-00-000-3100; and 08-43-45-16-00-000-3110.) LOCATION MAP ROSEMARY SCRUB EXHIBIT '~" i. RIAA ~ Rll STAT! I/8 400. 800 MILES FEET DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. 01-067 T4 TI F! L( In pr ad Si~ Ti" PiJ an ev is ): IRU: OM: Chairman and Members Planning and Development Board Michael W. Rumpf Planning and Zoning Director Dick Hudson Senior Planner ~.TE: IBJECT: ICATION: April 12, 2001 Rosemary (REZN 01-002) Rezone from Single Family Residential to Recreation Northwest corner of the intersection of N. Seacrest Boulevard and Miner Road INTRODUCTION 1995, the City of Boynton Beach and Palm Beach County entered into an interlocal 'eement for the acquisition and management of the Rosemary Scrub Ecosite. Under ms of that agreement, the City is required to amend the land use and zoning to ~ign~te the property for use as a "CONSERVATION" area. The City's ECREATIONAL" land use classification and "RECREATION" zoning designation are ~ropriate to this end since the definition of the "RECREATION" zoning designation ~cifies under I.l.d.of the'Zoning Code, "Preservation or conservation uses intended maintain the general openness or vegetation of the land for environmental, Jcational, archaeological or open space reasons." The land use amendment for this ~perty was a part of the EAR-based Comprehensive Plan amendments and was ~pted by Ordinance 00-28 on June 20, 2000. Current zoning on the property is gle-family Residential (R-l) with an assigned density of 7.26 dwelling units per acre. proposed rezoning to the "Recreation" district completes the required process. PROCEDURE 'suant to the City of Boynton Beach Land Development Regulations, Chapter 2, :tion 9 (Administration and Enforcement), when a rezoning request does not require amendment to the future land use map, staff analysis is not required to include an duation of the project using the eight criteria under Section 9.C.7. Since this request ~nly for rezoning, the above-described analysis is not required. Additionally, the Page 2 Rosemary Scrub File No. REZN 01-002 proposed rezoning is merely a "housekeeping" matter that is necessary to ensure the consistency between the land use designation for the property and the zoning as required by Florida Statutes. ADJACENT LAND USES AND ZONING The sub,iect property surrounds, on three sides (north, west and south), a parcel of land designated Local Retail Commercial land use and zoned Neighborhood Commercial (C- 2) that is developed with a convenience store. The land uses and zoning on other adjacent properties vary and are presented in the table that follows: North Developed Single-family homes designated Moderate Density Residential (LDR) with a maximum density of 7.26 du/ac and zoned R-1 (single-family residential at a density of 7.26 du/ac). East Right-of-way of Seacrest Boulevard then developed single-family housing designated Moderate Density Residential with a maximum density of Z.26 du/ac and zoned R-1 (single-family residential at a density of 7.26 du/ac). South Single-family homes designated Moderate Density Residential (LDR) with a maximum density of 7.26 du/ac and zoned R-1 (single-family residential at a density of 7.26 du/ac). West Right of way of 1-95. Further west, developed property in the High Ridge Commerce Park PID designated Industrial (!) and zoned Planned Industrial Development (Pi D) PROPOSED USE OF THE PROPERTY The property will permanently remain a preserved, intact native Florida ecosystem, available to the public for passive, natural resource-based outdoor recreation and education. A management plan for the property is in place' and the County has developed a parking and interpretive area on the site, which permits public access and use of the natural area. CONCLUSIONS/RECOMMENDATIONS Based on the analysis and discussions contained herein, staff has determined this request is consistent with the Comprehensive Plan and the Land Development Regulations, and is compatible with current and future uses of surrounding properties. LOCATION MAP ROSEMARY SCRUB EXHIBIT "A" !::13 /8 MILES 800 FEET Page 3 Rosemary Scrub File No. REZN 01-002 Staff, therefore, recommends approval of the request for rezoning from Single-family Residential (R-l) to RECREATION (REC). Again, the rezoning is pursuant to an obligation of the original interlocal agreement with Palm Beach County. ATTACHMENTS J:~H RO^TA\PIan nlng~SHARED\WFAPROJEC'I'S'~SCRU B REZN\RO$ EMARY~la(h'eport. doc CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM XI-LEGAL ZTEM B.3 NAT1 AGE] REC( recons equested City Commission Meeting Dates ~rch 20, 2001 ~ril 3, 2001 ,ril 17, 2001 ty 1, 2001 RE OF [DA ITEM Date Final Form Must be Turned in to City Clerk's Office March 7, 2001 (5:00 p.m.) March 21, 2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April t8,200l (5:00 p.m.) Requested City Commission Meeting Dates [] May 15, 2001 [] June 5,2001 [] June 19, 2001 [] July 3,2001 Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report MMENDATION: Approval of this Ordinance on First Reading, which will provide clarification of the deration process as it relates to quas~-judicial boards. EXPI. NATION: The Commission may wish to consider a broader reconsideration role to cover all matters disposed by mo~ion in light of the current restrictions imposed by Resolution R95-50, which restricts a Commissioner's right to br~nfg matterl back which have been considered and not approved. The proposed Ordinance attached should clarify this process. PRO~RAM IMPACT: n/a FISCL IMPACT: n/a & ~~rlAat.~ALTE~ATIVES. ~ Departnqetat Head's Signature James Cherof Department Name S:x, BULI ~TIN~ORMS'~AGENDA ITEM REQUEST FORM.DOC City Manager's Signature City Atiom&~ Y Finance / Human Resources ORDINANCE NO. 0 01- AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AMENDING CHAPTER 2. ADMINISTRATION ARTICLE I. SECTION 2-20 OF THE CODE OF ORDINANCES OF THE CITY OF BOYNTON BEACH, FLORIDA TO CLARIFY THE RECONSIDERATION PROCESS AS IT RELATES IT QUASI-.1UDICIAL BOARDS; PROVIDING FOR CONFLICTS, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. WHEREAS, the City Commission has deemed it to be necessary to clarify the reconsideration process as set out in Section 2-20 of the Code of Ordinances as it relates to quasi-judicial boards; and NOW THEREFORE, BE IT ORDAINED BY THE CTTY COt4t4I$$ION OF THE CITY OF BOYNTON BEACH, THAT: Section 1. That Chapter 2. Administration Article I. Section 2-20 of the Code of Ordinances of the City of Boynton Beach, Florida, is hereby amended by adding the words and figures in underlined type and by deleting the words and figures in struck-through type, as follows: Sec. 2-20. Quasi-judicial proceeding before city commission or city board; procedure for reconsideration of decision. (a) For the purpose of this section the term "quasi-judicial proceeding" shall mean hearings before the City Commission or Planning and Development Board ' .... -~..-;~-, '-- -- ; -'""~ ......." ~'";~" '";' ........ '~ ' and limited to the following specific types of proceedings. (1) Variances; (c-) (b) The c-C_ity Ceommission may reconsider its decision arising from a quasi-judicial proceeding only upon a motion to reconsider made at the meeting at which the decision was rendered or upon written request of the mayor, the vice- /or, or any single commissioner filed with the c-~_ib/c-~_lerk_provided such written request is made no later than 12:00 noon on the third day following the )n's decision of the quasi-judicial proceeding. No quasi-judicial decision be considered final until the expiration of the three (3) day time period without motion to reconsider being made and the entry of a written order approved by the Attorney and signed by the City Clerk. In the event a request for on is made pursuant to this subsection the applicant or affected party ~hall be notified in writing and such notice shall be hand delivered, sent by facsimile, overnight delivery service. (c) When a motion for reconsideration is made and approved at the ~n meeting at which the decision was rendered, the Commission may mmediately reconsider the matter before them or, the Commission may reconsider matter at a later time certain which shall be announced, at .the meetinq, to the )licant and the public. No additional notice of the matter shall be necessary When a motion for reconsideration is made following the close of thC meeting at which the decision is made, only the motion to reconsider be heard at the next reqular City Commission meetinq. If the motion to :ler is adopted by the Commission, the matter which is the subject of the ~otion to reconsider shall be placed on the next regUlar City Commission meeting enda. The aqenda item shall be noticed in the same manner as the notice when the item was originally considered. (d) Any board may reconsider its decision... Section 2. Each and every other provision of Article 1, Chapter 2. )n of the Code of Ordinances of the City of Boynton Beach not herein y amended shall remain in full force and effect as previously enacted. Section 3. All ordinances or parts of ordinances in conflict herewith be and he same are hereby repealed. Section 4. Should any section or provision of this ordinance or portion iereof, any paragraph, sentence or word be declared by a court of competent on to be invalid, such decision shall not affect the remainder of this irdinance. Section 5. Authority is hereby granted to codify said ordinance. Section6. This ordinance shall become effective immediately upon 2001. FIRST READING this day of May, 2001. SECOND, FINAL READING AND PASSAGE this. day of CTTY OF BOYNTON BEACH, FLORIDA June, Mayor Vice Mayor Commissioner City Clerk CORPORATE SEAL) Commissioner Commissioner CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM XI'-LEGAL ITEM B.4 NAT AGE ,equested City Commission Date Final Form Must be Turned Requested City Commission Meeting Dates in to City Clerk's Office Meeting Dates ~rch 20, 2001 March7,2001 (5:00p.m.) [] May5,2001 }ril3, 2001 March21,2001 (5:00p.m.) [] June5,2001 }ril 17, 2001 April 4, 2001 (5:00 p.m.) [] Juno 19, 2001 ay 1, 2001 April 18, 2001 (5:00 p.m.) [] July 3, 2001 YRE OF ~DA ITEM Date Final Form Must be Turned in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) [] Administrative [] Development Plans [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report REC~)MMENDATION: Ame~nding Section 15-8 of the City Code by exempting the City from the provisions of Section 15-~5 Noise Control- Prohibited Acts in the zoning districts of Commercial and Industrial. EXPVATION: At p~'esent, the City Code prohibits the generation of construction noise during weekdays after 7:00~ pm and on Sundays and legal holidays. This would, of course, include noise created by con{truction projects actually undertaken or contracted for by the City. This proposed ams legs dist~ PRO This only con= worl ~dment to the Code would allow the City (and its contractors) to work on Sundays and on holidays, but only in the Commercial and Industrial zonin.q districts, and not in those cts that are adiacent to any residential property line. ]RAM IMPACT: Code amendment is geared toward areas such as Industrial Avenue (E. Industrial Ave. because W. Industrial Ave. is adjacent to a residential zone). It will allow us to get this ,truction project done quicker and most likely less expensively because the contractor can nights, weekends and holidays,. kL IMPACT: ~roposed, this Code amendment provides the opportunity for the City to save time and ey on projects such as the Industrial Avenue Stormwater project. LETINWORMSL&GENDA ITEM REQUEST FORM.DOC CITY OF BOYNTON BEACH AGENDA ITEM BEQUEST FORM ALTERNATIVES: Not to allow the Code amendment, keeping the current noise/construction restrictions in place. Department Head's qgnature City Manager's Signature Engineering Department Department Name City Attorney / Finance / Human Resources S:'~BULLETINWORMSXAGENDA ITEM REQUEST FORM.DOC .4 a microp time ave used to meter r~ calibrate as speci Institute publicati between baromeu produCe~ logarittm sound px (20) micl level is decibels. which is 3-19-85 Sec. 15-: (a) sections the city Boynton Co) enforcerr engaged complia recomme Boynton Beach Code level meter. An instrument which includes lone, amplifier, RMS detector, integrator or 'ager, output meter and weighing networks neasure sound pressure levels, The output acls sound pressure levels when properly · and the instrument is of Type 2 or better, led in the American National Standards Publication S1.4-1971, or its successor ,d pressure. The instantaneous difference' the actual pressure and the average or c pressure at a given point in space, as by the presence of sound energy. ~d pressure level. Twenty (20) times the to the base ten (10) of the ratio of the RMS ,,, ~ssure to the reference pressure of twenty ! opascals (2 x 10~N/m2). The sound pressure tenoted Lp or SPL and is expressed in :day. Any day Monday through Saturday not a legal holiday. (Ord. No. 85-16, § 2, Ord. No. 86-3, § 1, 34-86) .3. Same-Program administration. The noise control program established by 5-8 through 15-8.8 shall be administered by nanager, or his designee, of the City of ~each, Florida. For the purposes of section 15-8.8 and its ~nt, municipal employees or officials in the measurement of noise, assessing lee with such sections· making ldations for noise abatement, issuing noise violation, citations, or giving evidence regarding noise viblations shall have received formalized training Ion these subjects from institutions or organizations of recognized ability and experience in enviromrlenlal acoustics and noise control. (Ord. No. 85-16, § 2, 3-19-85; Ord. No. 86-3, § 2, 3-4-86; Ord. No. 89-16, § 1, 6-20-89) Not~ -See the editor's note following § 15-8. Sec. 15-8.4. Same-Inspections. Upon presentation of proper credentials, the city manager or his designee, may enter and/or inspect any private property, place, report or records at any time when granted permi.qsion by the owner, or by some other person with apparent authority to act for the owner. When permission is refused or cannot be obtained, a search warrant may be obtained from a court of competent jurisdiction upon showing of probable cause to believe that a violation of sections 15-8 through 15-8.8 may exist. Such inspection may include administration of any necessary tests. (Ord. No. 85-16, § 2, 3-19-85) Note-See the editor's note following § 15-& Sec. 15-8.5. Noise control--Prohibited acts. (a) Noise disturbances prohibited. No person shall unnecessarily make, continue or cause to be made or continued any noise disturbances. Co) Specific prohibitions. The following acts, and the causing or permitting thereof in such a manner as to create a noise disturbance across a residential or commercial real property line, or within a noise sensitive zone, or at any time in violation of the provisions of section 15-8.8, are hereby declared to be a violation: (1) Radios, television sets, and similar devices. Operating, playing or permitting th~' operation or playing of any radio;-- television, or phonograph, which produces or reproduces sound either mechanically or electronically. (2) Loudspeakers. Using or operating for any purpose other than those activities specifically exempted in section 15-8.6(4) below, any loudspeaker, loudspeaker system or similar device, including sound emitting devices which may be physically attached to any motor vehicle. (3) Street sales. Offering for sale, selling or advertising for sale by shouting or outcry, anything within any area of the city. Offenses - Miscellaneous 5 (4) Animals. Owning, possessing or harboring any animal or bird which frequently or for continued duration, howls, barks, meows, squawks or otherwise makes sounds which create a noise disturbance. (5) Loading or unloading. Loading, unloading, opening, closing or other handling of boxes, crates, containers, building materials, garbage cans, or similar objects in such a manner as to cause a noise disturbance. ® Construction. Operating or musing the .operation of any tools or equipment used in construction, drilling, excavation, clearing, repair, alteration or demolition work on weekdays during the times specified in section 15-8.8, or at any time during Sundays or legal holidays. (7) Fixed mechanical equipment. Operating or causing the operation of fixed mechanical equipment located on real property including HVAC equipment, motors, engines, pumps, compressors, fans, tools, machinery, and its component parts, or any other similar stationary mechanical devices and their component parts except as otherwise exempted in section 15-8.6(6). (8) Motorboats. Operating or causing the operation of a motorboat in such a manner as to cause a noise disturbance. (Ord. No. 85-16, § 2, 3-19-85; Ord. No. 86-3, § 3, 3-4-86; Ord. No. 89-23, § 1, 9-19-89; Ord. No. 91-8, § 3, 2-19-91) Note-See the editor's note following § 15-& Sec. 15-8.6. Same-Exemptions. The following acts and the causing or permitting thereof shall be specifically exempted from the prohibitions of section 15-8.5. (1) Motor vehicles. Operating motor vehicle noise enforcement procedures shall be as established in Chapter 316, Florida Statutes, and applicable rules and regulations of the Depatiment of Highway Safety and Motor Vehicles, provided however, that this exemption shall not apply to any sound emitting devices which may be attached to any motor vehicle as prohibited by section 15-8.5(b)(2). (2) Aircraft and interstate railway and locomotives and cars. Noise generated by aircraft and interstate railway locomotives and cars are exempt from these provisions. (3) Emergency activities. Any noise generated as a result of emergency work or for the purpose of alerting the public to the existence of an emergency situation. Public speaking and assembly. Any noise generated by any noncommercial public speaking or public assembly activities conducted pursuant to lawful authority on any public space or right-of-way, including sporting events. (5) Domestic power tools and lawn maintenance equipment. Any noise generated by the operation and use of domestic power tools and lawn maintenance equipment. (6) Fixed mechanical equipment, noise generated by the operation and use of air conditioning units in residential districts. (7) Non_amplified solo musical instrument played by an individual Within a private residence between the hours of 9:00 a.m. and 8:30 p.m. (Ord. No. 85-16, § 2, 3-19-85; Ord. No. 86-3, § 4, 34-86; Ord. No. 89-23, § 2, 9-19-89) Note-See the editor's note following § 15-8. Sec. 15-8.7. Same.Penalty for violation. Any person, firm or corporation convicted in a court of competent jurisdiction of a violation of sections 15-8 through 15-8.8 shall be guilty of a misdemeanor of the second degree, punishable by a fine and/or incarceration as provided by law. The City of Boynton Beach Code Compliance Board shall 1998 $-8 ORDINANCE NO. O 01- AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AMENDING SECTION 15-8.6 EXEMPTIONS. OF THE CODE OF ORDINANCES OF THE CITY OF BOYNTON BEACH, FLORIDA BY CREATING A NEW SUBSECTION 15-8.6 (8) EXEMPTING MUNICIPAL CONSTRUCTION FROM SECTION 15.8-5 NOISE CONTROL-PROHIBITED ACTS; PROVIDING FOR CONFLICTS, SEVERABILITY, CODIFICATION AND AN EFFECTIVE' DATE. WHEREAS, Section 15-8.5 (a) and (b) of the Code of Ordinances entitled Noise control-Prohibited acts prohibit the generation of noise created during weekdays (after 8:00 PM) on Sundays and legal holidays; and WHEREAS, upon the recommendation of staff, the City Commission deems it to be in the best interest of the citizens and residents of the City to allow an exemption of that Section of the Code to the municipality, and NOW THEREFORE, BE Zl' ORDAINED BY THE cTrY COHIqISSION OF THE cTrY OF BOYNTON BEACH, THAT: Section 1. That Chapter 15. Section 15-8.6. is hereby amended by creating a new subsection (8), as follows: (8) 'Construct,- and subparagraph (6) of emergency matters or ma~. welfare of the city in those "~e fore_qoing provisions of Section 15-8.5 (_a), (b) don shall not apply to municipal public works, :ring an effect on the public health, safety and districts of commercial and industrial, and where the noise disturbances across a residential property line would not exceed those sound limits set forth in Section 15-8.8 (b) of this Section. Section 2. Each and every other provision of Chapter 15, of the Code of Ordinances of the City of Boynton Beach not herein specifically amended shall remain in full force and effect as previously enacted. Section 3. All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. Section 4. Should any section or provision of this ordinance or portion hereof, any paragraph, sentence or word be declared by a court of competent urisdiction to be invalid, such decision shall not affect the remainder of this ordinance. Section 5. Authority is hereby granted to codify said ordinance. Section 6. This ordinance shall become effective immediately upon passage. FIRST READ]:NG this day of , 2001. SECOND, F]:NAL READZNG AND PASSAGE this day of__ ., 2001. C1TY OF BOYNTON BEACH, FLOR[DA Hayor Vice Hayor Commissioner City Clerk 'CORPORATE SEAL) Commissioner Commissioner :ca\Ord~d~4D Sec 15-8.6 Noise Exempiie~:)50801 Requested City Commission Meeting Dates [] March 20, 2001 [] April 3, 2001 [] April 17, 2001 [] May 1,2001 CITY OF BOYNTON BEACH AGENDA ITEM REQUEST FORM Date Final Form Must be Turned ~n to Cit~ Clerk's Office March 7. 2001 (5:00 o.m.) March 21,2001 (5:00 p.m.) April 4, 2001 (5:00 p.m.) April 18, 2001 (5:00 p.m.) Requested City Commission Meeting Dates [] May 15, 2001 [] June 5, 2001 [] June 19, 2001 [] July 3, 2001 XI-LEGAL ITEM C.1 Date Final Form Must be Tumed in to City Clerk's Office May 2, 2001 (5:00 p.m.) May 16, 2001 (5:00 p.m.) June 6, 2001 (5:00 p.m.) June 20, 2001 (5:00 p.m.) NATURE OF AGENDA ITEM [] Administrative [] Development Plans. [] Consent Agenda [] New Business [] Public Hearing [] Legal [] Bids [] Unfinished Business [] Announcement [] Presentation [] City Manager's Report RECOMMENDATION: Approve a series resolution providing for the issuance of not exceeding $27,000,000. aggregate principal amount of Utility System Revenue Refunding Bonds, Series 2002; providing a method for fixing and determining the principal amount, interest rates, maturity dates, redemption provisions and other details of said bonds. EXPLANATION: At its meeting on April 17, 2001 the City Commission directed staff to work with Bane of America Securities LLC to prepare for a refunding of the City's Utility System Revenue Bonds, Series 1992. This Resolution implements that directive and authorizes the City Manager to take all steps necessary to complete the financing. FISCAL IMPACT: It is estimated the City will receive approximately $2.5 million due to lower interest rates. ALTERNATIVES: Not go forward with refunding the Series 1992 bonds. Department Head's Signature Finance Department Name Cit~ Manag3r's Signature City Attorney / Finance / Human Resources S:~BULLETIN~ORMS~AGENDA ITEM REQUEST FORM.DOC RESOLUTION NO. R 01- A SERIES RESOLUTION PROVIDING FOR THE ISSUANCE OF NOT EXCEEDING $27,000,000 AGGREGATE PRINCIPAL AMOUNT OF UTILITY SYSTEM REVENUE REFUNDING BONDS, SERIES 2002; PROVIDING A METHOD FOR FIXING AND DETERMINING THE PRINCIPAL AMOUNT, INTEREST RATES, MATURITY DATES, REDEMPTION PROVISIONS AND OTHER DETAILS OF SAID BONDS; AUTHORIZING THE MAYOR TO AWARD THE SALE OF THE BONDS TO BANC OF AMERICA SECURITIES LLC; FINDING NECESSITY FOR A NEGOTIATED SALE OF SUCH BONDS; PROVIDING A METHOD FOR APPROVING THE FORM OF AND AUTHORIZING THE USE OF A PRELIMINARY OFFICIAL STATEMENT AND AUTHORIZING THE PREPARATION, APPROVAL AND EXECUTION OF A FINAL OFFICIAL STATEMENT IN CONNECTION WITH SUCH BONDS; AUTHORIZING THE EXECUTION OF A FORWARD DELIVERY BOND PURCHASE CONTRACT AND A BOND REGISTRAR AGREEMENT; AUTHORIZING THE REDEMPTION OF THE CITY'S UTILITY SYSTEM REVENUE BONDS, SERIES 1992; PROVIDING A METHOD FOR APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF AN ESCROW DEPOSIT AGREEMENT; PROVIDING FOR CERTAIN CONTINUING DISCLOSURE OBLIGATIONS OF THE CITY; PROVIDING FOR THE APPLICATION OF THE PROCEEDS OF SAID BONDS AND CERTAIN OTHER MONEYS; AUTHORIZING THE PURCHASE OF A BOND INSURANCE POLICY AND MAKING CERTAIN COVENANTS IN CONNECTION THEREWITH; DESIGNATING THE BOND REGISTRAR FOR SAID BONDS; CONTAINING CERTAIN AUTHORIZATIONS AND OTHER PROVISIONS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Boynton Beach, Flodda (the "City") is authorized by the Constitution and laws of the State of Florida, including the City's Charter and Chapter 166, Flodda Statutes, to issue revenue bonds of the City payable from Pledged Revenues (as defined in the Bond Resolution hereinafter mentioned) for certain purposes; and · . WHEREAS, pursuant to Resolution No. R 92-96 adopted by the City Commission of the City (the "City Commission") on June 16, 1992, as amended (the "Bond Resolution") obligations of the City may be issued and may be secured by a lien upon and pledge of certain "Pledged Revenues" as defined in and to the extent set forth in the Bond Resolution; and WHEREAS, the City desires to issue Bonds (the "Series 2002 Bonds") under the Bond Resolution to provide funds to pay the cost of various capital expenditures of the City, to provide for the refunding and defeasance of the City Utility System Revenue Bonds, Series 2002, maturing on and after November 1, 2002 (the "Refunded Bonds") and to pay certain costs of issuing such Series 2002 Bonds; and WHEREAS, prior to the issuance of the Series 2002 Bonds the conditions set forth in Section 209 of the Bond Resolution shall be satisfied; and WHEREAS, the City Commission has determined that the sale of such Series 2002 Bonds through negotiation with the Original Purchaser (hereinafter defined) is in the best interest of the City; and WHEREAS, the City Commission has received from Banc of America Securities LLC (the "Original Purchaser") a form of a Forward Delivery Bond Purchase Contract by and between the City and the Original Purchaser whereby the Original Purchaser would agree to purchase the Series 2002 Bonds, and the City Commission has determined that the authorization of the acceptance of such proposal pursuant to the terms set forth in Section 6 hereof is in the best interests of the City and will effect the purposes set forth in the Bond Resolution; and WHEREAS, it is necessary and desirable to approve the form and use of a Preliminary Official Statement and to approve the preparation and execution of a Final Official Statement in connection with the issuance of such Sedes 2002 Bonds; and WHEREAS, it is necessary and desirable to specify a method for determining the dates, the interest rates, matudty dates, and redemption provisions for such Series 2002 Bonds and to appoint The Bank of New York as Bond Registrar for such Series 2002 Bonds; and WHEREAS, the City has received a commitment from to issue its municipal bond insurance policy insuring the payment of the principal of and interest on the Series 2002 Bonds and it is necessary and desirable to accept such commitment; and WHEREAS, the Bond Resolution permits the City to refund and defease the lien of Bonds issued thereunder by setting funds aside in an escrow fund to pay the principal of, interest on, and redemption premium, if any, on such Bonds as the same shall become due, and the City desires to refund and defease the lien of the Utility System Revenue Bonds, Sedes 1992 matudng on and after November 1, 2002 (the "Refunded e Onds") as shall be further set forth in the Escrow Deposit Agreement (hereinafter fined); and WHEREAS, the City desires to approve the form and use of an escrow deposit agreement to provide for payment of the Refunded Bonds. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA: Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the provisions of the Charter of the City of Boynton Beach, Florida, the Constitution of the State of Florida, including, but not limited to, Article VIII, Section 2 thereof, and other applicable provisions of law, including Chapter 166, Florida Statutes, and the Bond Resolution. Section 2. Definitions. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Bond Resolution. The following terms, when used in this Resolution or in the Bond Resolution, as amended hereby, shall have the following meanings: "Business Day" shall mean any day other than a Saturday, Sunday or other day or~ which the Bond Registrar is lawfully and temporarily closed or a day on which the New York Stock Exchange is lawfully and temporarily closed. "Closing Date" shall mean the date on which the Series 2002 Bonds are issued and delivered by the City and paid for by the Original Purchaser. "Interest Payment Date" shall mean May 1 and November 1 of each year, commencing November 1, 2002. "Project" means various capital expenditures of the City as authorized by the City Commission from time to time, including reimbursement to the City of such expenditures incurred on and after May 9, 2001. Section 3. Authorization of Bonds. Bonds are hereby authorized to be issued pursuant to this Resolbtion and Section 209 of the Bond Resolution in the aggregate principal amount of not to exceed $27,000,000. The Bonds hereby authorized shall be known as "Utility System Revenue Refunding Bonds, Series 2002" (the "Series 2002 Bonds"). Prior to the issuance of the Series 2002 Bonds the conditions of Section 209 of the Bond Resolution shall be satisfied. The Series 2002 Bonds are being issued to provide funds to pay the Cost of the Project, to refund and defease the Refunded Bonds and to pay costs of issuing the Series 2002 Bonds. Section 4. Terms of the Series 2002 Bonds. (a) Form of Bonds. The Series 2002 Bonds shall be substantially in the form of the Bonds set forth in the Bond Resolution, with such changes as may be necessary or appropriate to conform to the provisions of this Resolution and the terms of the Series 2002 Bonds set forth herein as may be approved by the officers of the City executing the Series 2002 Bonds, such execution to be conclusive evidence of such approval. (b) Amounts, Maturities, Redemption Provisions and Interest Rates. The Sedes 2002 Bonds will consist of such aggregate principal amount of Current Interest Serial Bonds and such aggregate principal amount of Current Interest Term Bonds as shall be determined by the Mayor as hereinafter provided. The Series 2002 Bonds shall be issued in the denomination of $5,000 and integral multiples thereof, shall be issued in registered form, shall be numbered from R-1 upwards, shall be dated their date of initial issuance and delivery, which shall be August 7, 2002, unless another date shall be agreed upon by the Mayor and the Original Purchaser, and shall bear interest from such date, payable semi-annually on the first day of May and November of each year, commencing November 1,2002. The Series 2002 Bonds shall be issued in the aggregate principal amount, not in excess of $27,000,000, shall bear interest at the rates per annum computed on the basis of a 360-day year consisting of twelve 30-day months, and shall mature on November 1 of the years and shall have such redemption provisions, all as set forth in a certificate executed by the Mayor at or before the issuance of the Series 2002 Bonds, provided however that the arbitrage yield on the Series 2002 Bonds shall not exceed 6.00 percent per annum and the final matudty of the Sedes 2002 Bonds shall not be after November 1, 2020. Principal of the Series 2002 Bonds shall be payable only upon presentation and surrender of such Bonds at the principal office of the Bond Registrar. Interest on the Sedes 2002 Bonds shall be paid by check or draft, or at the option of any registered owner of not less than $1,000,000 in principal amount of the Series 2002 Bonds, ,~xercised in writing delivered to the Bond Registrar prior to the Regular Record Date or pecial Record Date, by wire transfer to an account in the United States designated by such registered owner, mailed or wired by the Bond Registrar to the registered owners of the Sedes 2002 Bonds as shown on the registration books kept by the Bond Registrar on the Regular Record Date or the Special Record Date. (c) Reserve. Account Deposit Requirement. The Reserve Account Requirement for the Series 2002 Bonds shall be an amount equal to the lesser of (i) 10% of the aggregate stated principal amount of the Series 2002 Bonds Outstanding, (ii) the maximum amount of principal and interest scheduled to become due on the Outstanding Sedes 2002 Bonds in the current or any succeeding Bond Year, or (iii) 125% of the average annual debt service on the Series 2002 Bonds (calculated on a Bond Year basis at the time of issuance only). If the Sedes 2002 Bonds have more ean a de- minimis amount of odginal issue discount or premium (as defined in Treas. g. §1.148-1(b)), then the issue price (as defined in said regulation) of the Sedes 2002 Bonds (net of pre-issuance accrued interest) shall be used to measure the aforesaid 10% limitation in lieu of the stated principal amount of the Series 2002 Bonds. The Sedes 2002 Reserve Subaccount, which is hereby ordered created, shall be funded in an amount equal to the Reserve Account Requirement for the Series 2002 Bonds at the me of initial issuance and delivery of the Sedes 2002 Bonds, and in the event any eficiency is created in the Series 2002 Reserve Subaccount, the Reserve Account Deposit Requirement for such Series shall be, in each month, an amount equal to at least one twenty-fourth (1/24) of the amount of such deficiency. 4 Section 5. Amendments to Bond Resolution. The amendments to the Bond Resolution set forth in this Section 5 shall be effective upon, and only upon the issuance of the Series 2002 Bonds. (a) Section 101 of the Bond Resolution ~s amended by the addition thereto of two new definitions as follows: "2002 Bond Insurance Policy" shall mean the municipal bond new issue insurance policy issued by the 2002 Bond Insurer that guarantees payment of principal of and interest on the Series 2002 Bonds. "2002 Bond Insurer" shall mean a or any successor thereto. (b) A new Section 718 is added to the Bond Resolution to provide as follows: "Section 718. Provisions concerning 2002 Bond Insurer. For so long as the 2002 Bond Insurance Policy shall be outstanding: [TO COME] Section 6. Approval of Sale of the Sedes 2002 Bonds. The City hereby determines that a negotiated sale of the Series 2002 Bonds is in the best interest of the City and the citizens and inhabitants of the City by reason of the volatility of the market for tax exempt bonds. Attached hereto as Exhibit "A" is a form of Forward Delivery Purchase Contract (the "Bond Purchase Contract"). The City approves the Bond Purchase Contract together with such changes thereto as are necessary to reflect the terms of the Series 2002 Bonds and to reflect the purchase price thereof, provided, that the underwriter's discount shall not exceed $3.95 per thousand dollars of principal amount of the Series 2002 Bonds, and with such other completions, additions and/or changes as shall be approved by the Mayor, such approval to be conclusively established by such execution, and the Mayor is hereby authorized and directed for and in the name of the City to execute, and the City Clerk is authorized to attest to and affix the seal of the City to and deliver the Bond Purchase Contract to the Original Purchaser. Prior to the execution of the Bond Purchase Contract, the Odginal Purchaser shall file with the City the disclosure statement required by Section 218.385, Florida Statutes, and the competitive bidding for the Series 2002 Bonds is hereby waived pursuant to the authority of Section 218.385(1 ), Florida Statutes. Section 7. Execution and Delivery of the Series 2002 Bonds. The Mayor and the City Clerk are hereby authorized and directed on behalf of the City to execute the Sedes 2002 Bonds as provided in the Bond Resolution and such officials are hereby authorized and directed upon the execution of the Sedes 2002 Bonds in the form and manner set forth herein and in the Bond Resolution to deliver the Series 2002 Bonds in the amount authorized to be issued hereunder to the Bond Registrar for authentication (upon the satisfaction of the conditions of Section 209 of .the Bond Resolution) and delivery to or upon the order of the Odginal Purchaser upon payment of the purchase price set forth herein. Section 8. Application of Proceeds. Proceeds from the sale of the Series 2002 Bonds and any amounts available under the Bond Resolution as a result of the refunding and defeasance of the Refunded Bonds shall be applied for the purposes described herein as provided in a certificate executed by the Mayor at or prior to the issuance of the Series 2002 Bonds. Section 9. Bond Reqistrar. The City hereby appoints The Bank of New York (the "Bank") as Bond Registrar with respect to the Series 2002 Bonds. The form of Bond Registrar Agreement attached hereto as Exhibit "B" is hereby approved and the Mayor is hereby authorized and directed for and in the name of the City to execute, and the City Clerk is authorized to attest and apply the seal of the City to the Bond Registrar Agreement, with such changes, alterations and corrections thereto as shall be approved by the officials executing the same, such execution to constitute conclusive evidence of such approval. Section 10. Official Statement. The City hereby approves the form and content of, and authorizes the use by the Odginal Purchaser in marketing the Series 2002 Bonds, of a Preliminary Official Statement relating to the Series 2002 Bonds in the form of the d~ocument attached hereto as Exhibit "C," together with such other changes, alterations and corrections therein as may be approved by the City Manager, who is hereby authorized to approve the final form of the Preliminary Official Statement, such approval to be conclusively established by the execution by the City Manager of a certificate "deeming final" the Preliminary Official Statement for purposes of Securities and Exchange Commission Rule 15c2-12, which execution is hereby authorized. The preparation of a final Official Statement for the Sedes 2002 Bonds, which shall be in substantially the form of the Preliminary Official Statement, changed to reflect the terms 0f the Series 2002 Bonds and with such other changes, alterations and corrections therein as may be approved by the Mayor and City Manager, such approval to be tC~aenClusively established by such execution, is hereby authorized, and upon preparation reof the Mayor and the City Manager are authorized and directed for and in the me of the City to execute and deliver the Official Statement. Section 11. Authorization for Bond Insurance. The Mayor, the Finance Director and the City Manager, or any of them, are authorized to arrange for municipal bond insurance on the Sedes 2002 Bonds to be provided by the 2002 Bond Insurer, to pay or sCauuUSe to be paid the premium with respect thereto, and to take all actions and execute ch documents as may be required in connection therewith. Section 12. Book Entry System. The City is authorized and directed to execute a Blanket Issuer Letter of Representations in the form attached hereto as Exhibit "D," and to comply with the provisions thereof. Section 13. Compliance with Tax Requirements. The City hereby covenants and agrees, for the benefit of the Bondholders from time to time of the Series 2002 Bonds, to comply with the requirements applicable to it contained in Section 103 and Part IV of Subchapter B of Chapter I of the Internal Revenue Code of 1986, as amended (the "Code") to the extent necessary to preserve the exclusion of interest on the Series 2002 Bonds from gross income for federal income tax purposes. Specifically, without intending to limit in any way the generality of the foregoing, the City covenants and agrees: (1) to pay to the United States of America from, to the extent legally available, the funds and sources of revenues pledged to the payment of the Series 2002 Bonds, and from any other legally available funds, at the times and to the extent required pursuant to Section 148(f) of the Code, the excess of the amount earned on all non- purpose investments (as defined in Section 148(f)(6) of the Code) (other than investments attributed to an excess described in this sentence) over the amount which would have been earned if such non-purpose investments were invested at a rate equal to the yield on the Series 2002 Bonds, plus any income attributable to such excess (the "Rebate Amount"); (2) to maintain and retain all records pertaining to and to be responsible for making or causihg to be made all determinations and calculations of the Rebate Amount and required payments of the Rebate Amount as shall be necessary to comply with the Code; (3) to refrain from using proceeds from the Series 2002 Bonds in a manner that would cause the Bonds or any of them, to be classified as' private activity bonds under Section 141 (a) of the Code; and (4) to take or refrain from taking any action that would cause the Series 2002 Bonds, or any of them, to become arbitrage bonds under Section 103(b) and Section 148 of the Code. The City understands that the foregoing covenants impose continuing obligations on the City to.comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the Code so long as such requirements are applicable. Unless otherwise specified in the Certificate as to Arbitrage and Other Tax Matters delivered in connection with the issuance of the Series 2002 Bonds, the City shall designate a certified public accountant, Bond Counsel, or other professional consultant having the skill and expertise necessary (the "Rebate Analyst") to make any and all calculations required pursuant to this Section regarding the Rebate Amount. Such calculation shall be made in the manner and at such times as specified in the Code. The City shall engage and shall be responsible for paying the fees and expenses of the Rebate Analyst. Section 14. The Refunded Bonds and the Escrow Deposit A.qreement. The redemption of the Refunded Bonds as shall be described in the executed Escrow Deposit Agreement is authorized and directed. The Escrow Deposit Agreement in the form attached hereto as Exhibit "E" is hereby approved, subject to such changes, insertions, omissions, and filling in of blanks therein as may be approved by the Mayor, such approval to be conclusively evidenced by the execution of the Escrow Deposit Agreement by the Mayor. The Mayor and the City Clerk are hereby authorized to execute and deliver the Escrow Deposit Agreement on behalf of the City. The Escrow Agent under the Escrow Deposit Agreement shall be The Bank of New York. The Mayor, Finance Director, City Manager and Escrow Agent, or any of them, are hereby authorized to subscribe for the purchase of any United State Treasury Obligations -- State and Local Government Series to be purchased pursuant to the Escrow Deposit Agreement. Section 15. Continuinq Disclosure. (a) Disclosure of Annual Information. The City agrees, in accordance with the provisions of Rule 15c2-12 in effect from time to time and applicable to the Series 2002 Bonds (the "Rule"), promulgated by the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, to provide, either directly or indirectly through a designated agent, to each nationally recognized municipal securities information repository ("NRMSIR") as designated and approved by the Commission and to the appropriate State of Florida information depository ("SID"), if any, operated or designated by the State, respectively, in accordance with the Rule, (i) within 180 days following the end of each Fiscal Year of the City, commencing with the Fiscal Year ending September 30, 2002 annual financial information and operating data conceming - the Utility System, of the type included in the Official Statement, including operating revenues, debt service coverage by Net Revenues, rates and charges of the Utility System, summary of any capital improvements plan, and information regarding permitted capacities and actual usage of capacities of the Utility System and financial statements (audited, or, if not available during such time period, unaudited) of the City and, (ii) if not submitted as part of such financial information and operating data, then, when available, audited financial statements for the City prepared in accordance with generally accepted accounting principles applicable to governmental entities from time to time. A copy of such annual financial information and operating data will be provided by the City to the Original Purchaser, the 2002 Bond Insurer and to the Bond Registrar for the Series 2002 Bonds as designated by the City from time to time. (The information required to be disclosed in this paragraph shall be hereinafter referred to as the "Annual Report.") (b) Disclosure of Material Events. The City agrees to provide either directly or indirectly through a designated agent, in a timely manner, to (i) each NRMSIR or to the Municipal Securities Rulemaking Board ("MSRB") and (ii) the SID, if any, notice of the occurrence of any of the following events with respect to the Sedes 2002 Bonds, if such event is material: (i) principal and interest payment delinquencies; (ii) non-payment related defaults; (iii) unscheduled draws on debt service reserves, if any, reflecting financial difficulties; (iv) unscheduled draws on credit enhancements, if any, reflecting financial difficulties; (v) substitution of credit or liquidity providers, if any, or their failure to perform; (vi) adverse tax opinions or events affecting the tax-exempt status of the Series 2002 Bonds; (vii) modifications to rights of the holders of the Sedes 2002 Bonds; (viii) bond calls of the Sedes 2002 Bonds (other than scheduled mandatory redemption) or any acceleration of the maturity thereof; (ix) defeasances (in whole or in part) of Sedes 2002 Bonds; (x) release, substitution, or sale of property securing repayment of the Series 2002 Bonds; (xi) rating changes; and (xii) any changes in the City's Fiscal Year. (c) Notice of Failure. The City agrees to provide or cause to be provided, in a timely manner, to (i) each NRMSIR or the MSRB and (ii) the SID, if any, notice of a failure by the City to provide the Annual Report described in subsection (a) above on or prior to the date set forth therein. (d) Termination. The City reserves the right to terminate its obligation to provide the Annual Report and notices of material events, as set forth 'above, if and when the City no longer remains an obligated person with respect to the Sedes 2002 Bonds (within the meaning of the Rule). If the City believes such condition exists, the City will provide notice of such termination to the NRMSIR's, the MSRB and the SID. (e) Undertakin.q for Benefit of Holders and Beneficial Owners. The City agrees that its undertaking pursuant to the Rule described herein is intended to be for the benefit of the holders and beneficial owners of the Series 2002 Bonds and shall be enforceable by any holder or beneficial owner; provided that the right to enforce the provisions of this undertaking shall be limited to a right to obtain specific enforcement of the City's obligations hereunder and any failure by the City to comply with the provisions of this undertaking shall not be an event of default with respect to the Series 2002 Bonds under the Resolution. (f) Voluntary Disclosure Shall Not Bind City. Any voluntary inclusion by the City of information in its Annual Report of supplemental information that is not required by the Rule shall not expand the obligations of the City under the Rule and the City shall have no obligation to update such supplemental information or include it in any subsequent report. (g) Third Parties. The covenants described herein are solely for the benefit of the holders and beneficial owners of the Series 2002 Bonds and shall not create any rights in any other parties. (h) Amendment; Waiver. Notwithstanding any other provision of this Resolution, the City may amend the provisions of this Section and any such provision may be waived, provided that the following conditions are satisfied: (1) If the amendment or waiver relates to the provisions of paragraphs (a), (b), or (c) above, it may only be made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature or status of the City or the type of business conducted by the City; (2) The undertaking, as amended or taking into account such waiver, would, in the opinion of nationally recognized bond counsel, have complied with the requirements of the Rule at the time of the odginal issuance of the Sedes 2002 Bonds, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances; and (3) The amendment or waiver does not materially impair the interests of holders and beneficial owners as determined either by parties unaffiliated with the City or an obligated person, or by an approving vote of the holders of at least a majority in aggregate principal amount of the then outstanding Series 2002 Bonds pursuant to the terms of the Bond Resolution. Ir S a O S' f( i.~ accounting ~ the event of any such amendment or waiver of a provision described above, ~e City shall descdbe such amendment or waiver in the next Annual Report, and ~all include, as applicable, a narrative explanation of the reason for the ~endment or waiver and its impact on the type (or, in the case of a change of :counting principles, on the presentation) of annual financial information or 3erating data being presented by the City. In addition, if the amendment or aiver relates to the accounting principles to be followed in preparing financial :atements, (i) notice of such change shall be given in the same manner as set ~rth in subsection (b) and (ii) the Annual Report for the year in which the change made must present a comparison (in narrative form and also, if feasible, in uantitative form) between the financial statements as prepared on the basis of ~e new accounting principles and those prepared on the basis of the former principles. Section 16. This Resolution constitutes a declaration of official intent under 'Freasury Regulation Section 1.150-2. The City reasonablY expects to incur expenditures for various municipal capital improvements, and reasonably 10 expects to reimburse such original expenditures with proceeds of the Series 2002 Bonds issued in the maximum principal amount set forth elsewhere herein. Section 17. Authorizations. The Mayor, the City Clerk, the Finance Director, and the City Manager are hereby jointly and severally authorized to do all acts and things required of them by this Resolution, the Bond Resolution or the Bond Purchase Contract, or desirable or consistent with the requirements hereof or thereof, for the full, punctual and complete performance of all terms, covenants and agreements contained in the Sedes 2002 Bonds, the Bond Resolution, this Resolution, and the Bond Purchase Contract, and to make any elections necessary or desirable in connection with the arbitrage provisions of Section 148 of the Code. Section 18. Holidays. In any case where the date of maturity of interest on or principal of the Sedes 2002 Bonds or the date fixed for redemption of any Sedes 2002 Bonds is not a Business Day, then payment of principal, premium, if any, or interest need not be made on such date but may be made on the next succeeding Business Day, with the same force and effect as if made on the date of maturity or the date fixed for redemption. Section 19. Resolution to Constitute a Contract. In consideration of the purchase and acceptance of the Series 2002 Bonds authorized to be issued hereunder by those who shall be the holders thereof from time to time, this Resolution shall constitute a contract between the City and such holders, and all covenants and agreements herein and in the Bond Resolution set forth to be performed by the City shall be for the equal benefit and secudty of all of the holders. Section 20. No Implied Beneficiary. With the exception of any dghts herein expressly conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Sedes 2002 Bonds is intended or shall be construed to give any person other than the City, the Odginai Purchaser, the 2002 Bond Insurer and the Owners, any legal or equitable dght, remedy or claim under or with respect to this Resolution or the Bond Resolution or any covenants, conditions, and provisions herein contained; this Resolution and the Bond Resolution and all of the covenants, conditions and provisions hereof and thereof being intended to be and being, for the sole and exclusive benefit of the City, the Odginal Purchaser, the 2002 Bond Insurer and the Owners. Section 21. Severability. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not effect any other provision herein or render any other provision (or such provision in any other context) invalid, inoperative or unenforceable to any extent whatsoever. Section 22. Repealer. All Resolutions or parts thereof of the City in conflict with -the provisions herein contained or, to the extent of any such conflict, hereby superseded and repealed. Section 23. Effective Date. This Resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED THIS 15th DAY OF MAY, 2001. (SEAL) ATTEST: CITY OF BOYNTON BEACH, FLORIDA By: By: City Clerk Mayor Vice-Mayor Commissioner Commissioner Commissioner APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: City Attorney BEI~NARD PRESTON THOMAS [1918-1994] Bernard Thomas x~ms bom in Sheridan, Wyoming to a large homestead family and utilized his upbringing, along with a natural artistic ability, to bring to others the colorful history of the west. He attended Woodbury University in Los _Angeles where he received a B.S. degree in Art and was the recipient of the Leo Yotmgsworth _A_ward as the Outstanding Art Student. Thomas then served in the army in Europe during World War II and was recognized for his artwork by General George Paton, who encouraged him to continue his art studies at the Ecole de Beaux Arts in Paris where he studied under Jon Dupas. While known primarily as a painter of Western scenes he gained national recognition as a muralist and became a member of the prestigious National Society of Mural Painters. Examples of his murals are found in Sheridan, Wyoming, at the Dahl Fine Arts C_.enrer in Rapid City, South Dakota and in several locations in Florida. His individual paintings are in numerous Corporate, Museum and Private collections through the United States. T'nomas, while living in Wyoming, had spent hours watching Gollings, the well known and noted Sheridan _artist and they both shared a love and deep interest in painting the west as they bad known it in their youth. Many of the scenes that Thomas painted were of Native dkmedcans, Cowboys and of historical events that had taken place in the late 19m century. in 1953 T'nomas and his family moved to Florida to undertake a commision of a large mural. hie fell Lq love with Florida's natural beauty and subsequently made it his home, while continuing to remm to Sheridan each summer. While in Florida he was commissioned by the Department of ~e interior to paint a large mural at the Everglades National Park that illustrated the ecology of ~ne Everglades, which was subsequently' destroyed by hurricane .Andrew. His art was a prcduct of bis narm-al artistic ability, his formal training and, above 'ali, his unique mnderstxndi.qg of ~e natural beauty.., of the West and those Nadve ,americans and early Settlers ,.v:_'-.c chose rc c~l it ho.me. Sheridan Artist. commissioned Paint" Flo:rida urals,Fo James eltOn Bernard Thomas, S h e r i d a n artist, has been commissioned by james blelton,"~amed tenor, to ~alnt-a mural of western scenes fol' the singer's museum, located about 10 miles from West Palm Beach, Fla. l~[elton a/so has asked the artist to paint his p~rtrait on completion [of the mural. Thomas plans to i leave i~[onday, to beg~u ~?rk.o~n the taSsi~a-ment'~ · '-. . - ' [ The mural, which will ~ used to decbrate a portion of a wing on th9 mUseum dedicated to the West, wiI] depict Indian life, the pioneers, and\kistor~c~ incidents of the welt [in general. Thomas also will help [supply 5felton with\Indian artifacts [for the hust~t~ion which he pri- [marily is setting up for educat~ona.I '~'"~[ purposes. The museum also houses [ ~he ~enor's unique collection of old automobiles, maid tO be one o~ ~he most outstanding in the world. ~felton iL-mt, became interested in t. he Sheridan'artist's work whe~ he saw the western' mural Thoma4 painted for the YellOWStone tional Bank in Laurel, l~on~., ih 195L It convinced him, he' told' Thomas Thursday in a telephon~ conversa~on, that ~ was the type of thing he would like to have ih his owen museUm.- Thomas ha~ painted a number c~ murals, among them, the' one in the BanI~ of Com. merce complete~l when th~' building' Was .remodeled two years ago. He is'a native of th~ Sheridan community and'a grad~.' uate of WoodbUry College' ar~ - school in Los AngeI~s with a bach~' ' Ior of. science in commercial~ art,- He aL~o won the Leo Youngsworth award as the outstanding senior a.rt student at the school.. .' ...- As an infantr~'s~rgeant in th~ European theater.. f r o rn. 1943 through 1945,' h.~. g.aine_d national.. recognition .for h~§ pain. t~ug, "For Thou Art With Me," for the cha~ lain division. His sketchbook, "The .Old Country . and Its People,"· brought him, f~ough Gen. GeorK~e Patron's headquarters, "an: schoIarship in the E. cole de BeaU~ Arts in:. Paris'~ where he 'studied' under some o~ the best moder~i masters. Since returning to Sherl- dan/he l~s had commissions to several oils. on ~v~steSn historic 1/~e which have gone· 'to'other .state~. N[elton, who commands' th~ num- ber ode spot in Corhmunity Conce .~. at.actions, was 'in Sheridan 15 years ago as one of the first artis~ - signed by the newly or=amz~d con- eert amsoeiation of thi~ communitY. Thursdc~y, November ]9, ]964 '~,0~£4~N'S CLUB OFFICiaLS P~OUD of ~he m~r~i- receu:ly paLu~ed by Boyn~u's famous a~t~,' Bernazd , ~I'homaz~ oa ~he +v~i of Cue '~ornmn's Club. P~mo¢o Bf ST,~.N SHEETS "TILE SCtlOOL provided file mater- ials nnd 3Ir. Thomas provided the paintings. It wa~ r~ good bar:gain," said Fore.~t Park Eleme,larv- School principal "Buck" Weaver, right who was well satisfied with five murals donated to il,: school by local artis/:. IIerm~r:l I'. Thonms. The valnlings depict Florida's hlslorie nm[ nntural evolution and range in size from tour hy four feet, such as the one shown hero, to relic bi' seve~ feel. School Murals Depict Early Stale' History BOYN'I'ON BZACH ~ Forest. paintl;~gs he haz used a nme'from Wyoming. He stud!ed att Fa~-k ,Elementary School has /ecimi(tne a,d Pie"moats v.'hic[! m~rb, r .rat! Dut~a..q at tls 5dcnie five murals depic'tiz~g the state's'make the picture.( appear tlan.:tte .Pie:mx Arts,'ln ParN. nattt~-a[ histoc.-, thanks to Eec. slucent. tIis paintings ar~ currently n~d P. ~omaa. ~ He has painted toucan fac 1.1 si~n,.~, at six different ga[Icc ~oma~, wei! known painter. ',different stato~, andls presently ineiuding Nassau. "i hope even-~ has a studio on Hypoluxo Road, 'negotiating for a government:tualbd t~ have one of my pain-, but lives a~ 3140 East AtJantlc~contract for more Florida mu-;tin~ tn each of Drive Boy:tree Beach. He came~ra[s. 2~omas ot[zinnily cmr es'~'~ ,~i~" said Thrones. to tht~ area ii years ago to~ .......... ~ ' " paint the Cyclocama Mural iht the otd Aulor'ama Museum. U.S; 1. Lnntana. and haa stayed' here ever since. ~e scenes he has painted the elementary soho[ audito., Num, ranging from four feet by; seven foot thcougl; two-and.a- half feet hs' throe feet. depict scenes .t glnrida fram bueea-' Staff photos/NICHOLAS FL VON STADEN Bernard Thomas' painting of the Last Supper is historically accurate. Thomas died six weeks ago after an illness. 'Last Supper' honors parishioner,.' Paintin inspired'" Palm Sdnday Play By KEN SWART Religion Writer Each year for the past 12 years, mem- bers of FirSt United Methodist Church of Boynton Beach have performed a play on Palm Sunday based on a parishioner's his- torically adcurate re-painting of the Last Supper. After the Last Supper has always been meaningful for the east and the audience. But tonight!s drama will be the most dra- matic of all. It comes just six weeks after the artist who painted the picture and inspired the play, Bernard Thomas of Boynton Beach, died after a long illness. He was 75. "Before, it was to honor his work. Now, it's to honor his memory," said Bob Mraz of Boynton Beach, who plays Matthew, the part that Thomas used to play. During an earlier rehearsal, the cast members s~id they stiil could feel Thom- as' presence. "! think it's in the forefront of all our minds," Mraz said. EspecialW those of longtime cast mem- bers, like Nicholas Zito of Boynton Beach. "I still can'g believe he's gone," said Zito, who pIays the part of Simeon. "He was like a brother to me." In turn, the play has become "a family thing," said Fred Wyckoff of Boynton Beach, who plays the part of Nathaniet. For example Thomas' son-in-taw. IRon Bollenbacher of Boynton Beach, plays the part of Jesus. Meanwhile, Kurt Bergener of West Palm Beach plays the part of Ju- Ron Bollenbacher. left, plays Jesus in the play at the First United Method- des. His mother, Grace Bergener of Lan- lane, directs the drama. She took the job at Thomas' request. "He wanted me to do it, and I wanted to do it because of him," she said. "I think he would have wanted it to continue." Thomas' daughter and Bollenbacher's wife, Sarah, knows so. "He wanted it to go on." she' said. "But he knew his health wasn't good, so he delegated it to someone who was close to him." During After the Last Supper, each of the 12 disciples leaves the familiar scene, takes center stage and shares how it felt to follow Jesus. ist Church in Boynton Beach. x3,~s Morris plays Peter. The Rev. Logan Whalen, who was pas- tor of St. John's Methodist Church in Bovnton Beach before it closed, wrote the sc~!pt with his wife, Shirley, after they saw Thomas' painting. "This is an experience, to have your. own ~ainting reproduced on stage, Them'as said during last year's presenta- tion. "[ enjoy seeing it come alive." Thomas tried to depict the historic even~ in accurate detail. The painting i_ se~ at night, in a simple home in Jerusa lea. during Passove:. "I guess now he's finding out if he wa . right." Wyckoff said. ~o accomplish a research task that went back into 3000 years of middle east history, muralist Bernard Thomas, not only traveled to the natural sites, but always followed closely th? Old Testament, I Kings, chapters 5, 6, ~nd 7 for reference. This Masonic mural portrays in the foreground what is referred to as "Men of the Craft". On thc left, in the Cedars of Lebanon section, there are hewers of wood, the stages of transporting th~ wood, the sawing, shaping and finishing of the wood products. The large figures are Hiram, Kiag of Tyre, and some of his superintendents. "The BrOnze Works", located in the southern end of the Jordan Valley on the banks of the Jordan River, depicts the 'Men of the Craft" fashioning unbelievably large castings of bronze fro m the clay soil. There are the great Temple pillars, the huge water bowl -- The Molten Sea --'which sat upon twelve bronze bulls. King Hiram's men, clad in purple, contributed the skills wHch accomplished these tasks for Solomon. King Solomon's quarries provide the carefully hewed stone for all you see in the original w;~lled City of Jerusalem. Those who were fortunate to visit the Lake Worth Scottish Rite tvlasonic Temple while mural artist Bernard P. Thomas worked his marvelous talent on the composition of the 65 foot mural, saw a tall westerner, always in his rou§hed-up cowboy boots topped by western pants and shirt. Around his waist was the hand-tooled leather belt fastened by a unique silver buckle, featurinfl his distinctive si~nature in raised §old. If you looked around, you would have seen the "cowboy" hat han~ing nearby. Don't let the we.st foot you. True, he is a real native of the west, born in Sheridan, Wyoming. But, behind the friendly smile and soft voice, you soon realize that there is a great artistic talent which goes far beyond the ordinary talent. His creative mind never seems to rest; His ~rip to Lhe ~iddle East was part of his zest for research. He wanted to uncover att the dusty pages of the past. Before your eyes, the history comes to life from the colors on his palette. Here you see the "Men of the Craft" as they labor to move the numbered stones to the Temple site. As the mason chisels the stone to the exact measure required by Hiram Abiff, Solomon's chief architect, both men are seen discussing the construction project. Pure whke limestone. for use in the Temple on~y, was quarried from the underground cavarns below the cave entrancel Sotomon's Temple was erected as a Hoqse of the'LOrd. In the holy of holy chamber was placed the Ark of the Covenant which cont~ncd God's Ten Commandments given to/'!oses Solomon's f~her, King David~ had his palace to the far upper left in what was known ~s thc City of David. For 400 years the city of Jerusalem stood, but in 256 B.C. it was completely burned and leveled to the ground by Nebuchadnezzan tn 33 centuries of history, Jerusalem has suffered at the hands of man and ofF nature, it has been rocked by earthquakes and sacked by man. The City has endured over 20 sieges and blockades, 18 reconstructions, and two periods of complete desolation. Thc City has passed from One religion ~o another six times. The valleys around Jerusalem have been fii~ed, the hills have been leveled, the streels and the buildings destroyed, and the peep~e $~ain ~nd exiled. His studies in 2cademic art at the the Ecole de Beau× Arts in Paris, following World War 11, gave him a sound foundation for the. art he has created since. It iS very apparent, as you see sweat), male figures struggling to move large stones, that he knows the human form. Bernard Thomas's big physical size has been beneficial in his mural work. He is mentally and physicalfy strong. His hours on the scaffolding have been long and tiring. Yet, his great love to create has kept him going. His credits in the mural field are too numerous to list. However, his huge cyctorama mural of the na- tion's 200 year history, housed in the Dahl Fine Arts Center in Rapid City, South Dakota. was a bicenten- nial masterpiece. Thousands of visitors each year are given a new insight on the ecology of the Everglades at the nation's southernmost National Park at the Visitors' Center of Everglade~ National Pa~k. Here, muralist Thomas blended the element of nature for public understanding. The Department of the Interior, which commissioned the mural, has been well-pleased with the public response. The versatility of Thomas is evident from his western canvases, his portraits, seascapes, and his animal paintings. Thomas is a member of the National Society of Mural Painters. He has served two terms as presi- dent of the Boynton !geach Art League. He is a tong time member of the Rotary Club. In 1985, he and his wife, Betty, were honored by the City of Boynton Beach when they were appointed as Grand Marshalls of the Annual Christmas Parade. Thomas is also a member of the Boynton Beach Masonic Lodge, the Lake Worth Scottish Rite Temple, 33q member of Amara Shrine. and is the director of the 7th Degree. Bernard Thomas leads a busy and an active life. Bernard P. Thomas This is the entrance foyer to the Temple, which has the warmth and comfort of your own home, with comfortable furnishings which include the walls being decorated with canvas and oil reproductions of the Masters. The Lake Worth Scottish Rite Bodies were founded August 5, 1918 by fourteen Scottish Rite Brothers, five of whom had only progressed to the 14°. Since that meager beginning, these Bodies have survived a national depression, World War Il, the Korean conflict and vier Nam, each of which has taken its toll on our E~rothers of the Rite. The present Temple was begun in 1967 and Phase II1 or the Final Phase was completed in 1983. The building has 37,000 square feet under roof and now serves as the home of over 4,500 Scottish Rite Masons. The LOdge Room contains 600 plus comfortable theater type seats and was designed to have the best acoustics possible, as well as having a modern sound control system to operate the many microphones to assure that all can both see and hear the Degree Work. Also, we have a modern kitchen facility, which is manned by dedicated Brothers, with outstanding culinary abilities. Our dining room is capable of seating up to 500 persons comfortably and has a sound system that has been d. eSi.qned and installed by professionls. The Temple contains a beautiful Blue Lodge Room, which is available to Blue Lodges that might require its use, and ts currently being utilized by Lantana Lodge to conduct their meetings. We have a special area set aside as a Class room which will ~ccomod~e 200 c~ndid~t~s d~rini3 r~t~nion.s. We have a wardrobe room, in which all of the robes and paraphernalia for the Degress are distributed to members of the casts, as well as a makeup department to assure that the character in the Degrees portray the work both verbally and in appearance, We also have our staging area where a dedicated group of Brothers attend to the preparation of the floor work with all of the necessary paraphernalia. We also have one of the most outstanding and beautiful Libraries you will find anywhere, with many old and rare books, Masonic and otherwise for your reading and .studying needs. The Scottish Rite meetings are held the 4th Wednesday of each month, two reunions are held each year where the Degrees are conferred in the Spring and the Fall. 2000 North D. Street · Lake Worth, Florida $3460 o (407) 582-679zt FRATERNAL ORDER OF POLICE Boynfon Beach, Fla. sponsoring A comrnunlty project ~upporring your Fc~.mily YMCA of Greater Baynron Beach. A non-profit' orgran!zarion to raise funds ta bring a 2ermanen~ site and facilities to the rommun[ty. O 0 ePlJOl:l "qoea8 uolu~o8 Jelea,~9 JO o ,.,,al Z ~ Your contribution is tax deductible Contributc~r ~ddres$ I City Phone State Zip o 0 ....... Dlst, by Everglade, Natural Ht,tor~ As,oclallon ........ ~ About the Boynton Woman's Club .... . stero ices :~ Side view of building from Federal Highway XI-LEGAL �Yntro ITEM C.1 -��_.L./;ti CITY OF BOYNTON BEACH o '� " m AGENDA ITEM REQUEST FORM Requested City Commission Date Final Form Must be Turned Requested City Commission Date Final Form Must be Turned Meeting Dates in to City Clerk's Office Meeting Dates in to City Clerk's Office ❑ March 20,2001 March 7,2001 (5:00 p.m.) ® May 15,2001 May 2,2001 (5:00 p.m.) ❑ April 3,2001 March 21,2001 (5:00 p.m.) ❑ June 5,2001 May 16,2001 (5:00 p.m.) ❑ April 17,2001 April 4,2001 (5:00 p.m.) ❑ June 19,2001 June 6,2001 (5:00 p.m.) ❑ May 1,2001 April 18,2001 (5:00 p.m.) ❑ July 3,2001 June 20,2001 (5:00 p.m.) ❑ Administrative ❑ Development Plans NATURE OF ® Consent Agenda ❑ New Business AGENDA ITEM ❑ Public Hearing ❑ Legal ❑ Bids LI Unfinished Business ❑ Announcement ❑ Presentation ❑ City Manager's Report RECOMMENDATION: Approve a series resolution providing for the issuance of not exceeding$27,000,000. aggregate principal amount of Utility System Revenue Refunding Bonds,Series 2002; providing a method for fixing and determining the principal amount,interest rates,maturity dates,redemption provisions and other details of said bonds. EXPLANATION: At its meeting on April 17,2001 the City Commission directed staff to work with Banc of America Securities LLC to prepare for a refunding of the City's Utility System Revenue Bonds,Series 1992. This Resolution implements that directive and authorizes the City Manager to take all steps necessary to complete the financing. FISCAL IMPACT: It is estimated the City will receive approximately$2.5 million due to lower interest rat ALTERNATIVES: Notgo forward with refundingthe Series 1992 bonds. aF �, to �� ® z QRS 'r;- e . jii A - ) .,,,, Department Head's Signature City Manager's Signature Finance 08.44-At.L. Department Name City Attorney/Finance/Human Resources S:\BULLETIN\FORMS\AGENDA ITEM REQUEST FORM.DOC MOYLE, FLANIGAN, KATZ, RAYMOND & SHEEHAN, P.A. ATTORNEYS AT LAW 625 North Flagler Drive-9th Floor West Palm Beach,Florida 33401-4025 P.O.Box 3888 West Palm Beach,Florida 33402-3888 Telephone: (561) 659-7500 Facsimile: (561) 659-1789 • MARK E.RAYMOND Direct Line: (561) 822-0380 Tallahassee Office E-mail:mraymond@moylelaw.com (850) 681-3828 May 15, 2001 Janet Prainito City Clerk City of Boynton Beach, Florida 100 East Boynton Beach Boulevard Boynton Beach, Florida 33435 Re: Utility System Revenue Refunding Bonds, Series 2002 Dear Janet: Enclosed please find one execution copy of the Resolution together with all exhibits. I have also enclosed 19 copies of the Resolution without exhibits. Additionally, I have enclosed a copy of a letter addressed to the City Commission concerning the Resolution. Please consult with Mr. Bressner and determine whether he wishes to distribute my letter to the Commission this evening. Should you have any questions, please don't hesitate to call. Very truly yours, Mark E. Raymond MER/ams Enc. • G:\02345\31\5-15-01 prainito.wpd ' MOYLE, FLANIGAN, KATZ, RAYMOND & SHEEHAN, P.A. ATTORNEYS AT LAW 625 North Flagler Drive-9th Floor West Palm Beach,Florida 33401-4025 P.O.Box 3888 West Palm Beach,Florida 33402-3888 Telephone: (561) 659-7500 Facsimile: (561) 659-1789 MARK E.RAYMOND Direct Line: (561) 822-0380 Tallahassee Office E-mail:mraymond@moylelaw.com (850) 681-3828 May 15, 2001 The Honorable Mayor and Members of the City Commission City of Boynton Beach, Florida Re: Utility System Revenue Refunding Bonds, Series 2002 Dear Mr. Mayor and Members of the City Commission: I have previously prepared and circulated in your agenda packages a resolution authorizing the Utility System Revenue Refunding Bonds, Series 2002. This evening you are being asked to consider adopting the final version of that resolution. Only two changes have been made to the resolution since it was distributed to you. One change reflects the recommended selection of Financial Guaranty Insurance Company as the provider of bond insurance. Bids were solicited from all four of the principal bond insurers, and yesterday Financial Guaranty submitted the lowest bid. Financial Guaranty insures the existing utility bonds and has required no covenants of the City other than those included for the existing bonds. Additionally, the resolution has been modified to provide that the underwriter must complete the sale of the bonds by August 31, 2001. This means that the bonds must have been marketed by that date, although the actual delivery of the bonds will not occur until August, 2002. In the event the underwriter is unsuccessful in marketing the bonds by August 31, 2001, the authorizations contained in this resolution will expire unless extended by the City Commission by subsequent resolution. The underwriter has informed me that the savings available under current market conditions do not warrant the sale of the bonds at this time, although a relatively small movement in the market would make the desired savings achievable. Assuming that the resolution is adopted this evening, the underwriter, staff and I will continue to monitor market conditions and at the appropriate time we will move to market the bond issue. The Honorable Mayor and Members of the City Commission City of Boynton Beach, Florida May 15, 2001 Page 2 I have prepared the enclosed resolution for your consideration. It complies with all applicable legal requirements. Thank you for the opportunity to be of service. Very truly yours, /722 / Mark E. Raymond MER/ams cc: Kurt Bressner James Cherof, Esq. RESOLUTION NO. R O1- 1q A SERIES RESOLUTION PROVIDING FOR THE ISSUANCE OF NOT EXCEEDING $27,000,000 AGGREGATE PRINCIPAL AMOUNT OF UTILITY SYSTEM REVENUE REFUNDING BONDS, SERIES 2002; PROVIDING A METHOD FOR FIXING AND DETERMINING THE PRINCIPAL AMOUNT, INTEREST RATES, MATURITY DATES, REDEMPTION PROVISIONS AND OTHER DETAILS OF SAID BONDS; AUTHORIZING THE MAYOR TO AWARD THE SALE OF THE BONDS TO BANC OF AMERICA SECURITIES LLC; FINDING NECESSITY FOR A NEGOTIATED SALE OF SUCH BONDS; PROVIDING A METHOD FOR APPROVING THE FORM OF AND AUTHORIZING THE USE OF A PRELIMINARY OFFICIAL STATEMENT AND AUTHORIZING THE PREPARATION, APPROVAL AND EXECUTION OF A FINAL OFFICIAL STATEMENT IN CONNECTION WITH SUCH BONDS; AUTHORIZING THE EXECUTION OF A FORWARD DELIVERY BOND PURCHASE CONTRACT AND A BOND REGISTRAR AGREEMENT; AUTHORIZING THE REDEMPTION OF THE CITY'S UTILITY SYSTEM REVENUE BONDS, SERIES 1992; PROVIDING A METHOD FOR APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF AN ESCROW DEPOSIT AGREEMENT; PROVIDING FOR CERTAIN CONTINUING DISCLOSURE OBLIGATIONS OF THE CITY; PROVIDING FOR THE APPLICATION OF THE PROCEEDS OF SAID BONDS AND CERTAIN OTHER MONEYS; AUTHORIZING THE PURCHASE OF A BOND INSURANCE POLICY AND MAKING CERTAIN COVENANTS IN CONNECTION THEREWITH; DESIGNATING THE BOND REGISTRAR FOR SAID BONDS; CONTAINING CERTAIN AUTHORIZATIONS AND OTHER PROVISIONS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Boynton Beach, Florida (the "City") is authorized by the Constitution and laws of the State of Florida, including the City's Charter and Chapter 166, Florida Statutes, to issue revenue bonds of the City payable from Pledged Revenues (as defined in the Bond Resolution hereinafter mentioned) for certain purposes; and WHEREAS, pursuant to Resolution No. R 92-96 adopted by the City Commission of the City (the "City Commission") on June 16, 1992, as amended (the "Bond Resolution") obligations of the City may be issued and may be secured by a lien upon and pledge of certain "Pledged Revenues" as defined in and to the extent set forth in the Bond Resolution; and WHEREAS, the City desires to issue Bonds (the "Series 2002 Bonds") under the Bond Resolution to provide funds to pay the cost of various capital expenditures of the City, to provide for the refunding and defeasance of the City Utility System Revenue Bonds, Series 2002, maturing on and after November 1, 2002 (the "Refunded Bonds") and to pay certain costs of issuing such Series 2002 Bonds; and WHEREAS, prior to the issuance of the Series 2002 Bonds the conditions set forth in Section 209 of the Bond Resolution shall be satisfied; and WHEREAS, the City Commission has determined that the sale of such Series 2002 Bonds through negotiation with the Original Purchaser (hereinafter defined) is in the best interest of the City; and WHEREAS, the City Commission has received from Banc of America Securities LLC (the "Original Purchaser") a form of a Forward Delivery Bond Purchase Contract by and between the City and the Original Purchaser whereby the Original Purchaser would agree to purchase the Series 2002 Bonds, and the City Commission has determined that the authorization of the acceptance of such proposal pursuant to the terms set forth in Section 6 hereof is in the best interests of the City and will effect the purposes set forth in the Bond Resolution; and WHEREAS, it is necessary and desirable to approve the form and use of a Preliminary • Official Statement and to approve the preparation and execution of a Final Official Statement in connection with the issuance of such Series 2002 Bonds; and WHEREAS, it is necessary and desirable to specify a method for determining the dates, the interest rates, maturity dates, and redemption provisions for such Series 2002 Bonds and to appoint The Bank of New York as Bond Registrar for such Series 2002 Bonds; and WHEREAS, the City has received a commitment from Financial Guaranty Insurance Company to issue its municipal bond insurance policy insuring the payment of the principal of and interest on the Series 2002 Bonds and it is necessary and desirable to accept such commitment; and WHEREAS, the Bond Resolution permits the City to refund and defease the lien of Bonds issued thereunder by setting funds aside in an escrow fund to pay the principal of, interest on, and redemption premium, if any, on such Bonds as the same shall become due, and the City desires to refund and defease the lien of the Utility System Revenue Bonds, Series 1992 maturing on and after November 1, 2002 (the "Refunded Bonds") as shall be further set forth in the Escrow Deposit Agreement (hereinafter defined); and WHEREAS, the City desires to approve the form and use of an escrow deposit agreement to provide for payment of the Refunded Bonds. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA: Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the provisions of the Charter of the City of Boynton Beach, Florida, the Constitution of the State of 2 Florida, including, but not limited to, Article VIII, Section 2 thereof, and other applicable provisions of law, including Chapter 166, Florida Statutes, and the Bond Resolution. Section 2. Defmitions. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Bond Resolution. The following terms, when used in this Resolution or in the Bond Resolution, as amended hereby, shall have the following meanings: "Business Day" shall mean any day other than a Saturday, Sunday or other day on which the Bond Registrar is lawfully and temporarily closed or a day on which the New York Stock Exchange is lawfully and temporarily closed. "Closing Date" shall mean the date on which the Series 2002 Bonds are issued and delivered by the City and paid for by the Original Purchaser. "Interest Payment Date" shall mean May 1 and November 1 of each year, commencing November 1, 2002. "Project" means various capital expenditures of the City as authorized by the City Commission from time to time, including reimbursement to the City of such expenditures incurred on and after May 9, 2001. Section 3. Authorization of Bonds. Bonds are hereby authorized to be issued pursuant to this Resolution and Section 209 of the Bond Resolution in the aggregate principal amount of not to exceed $27,000,000. The Bonds hereby authorized shall be known as "Utility System Revenue Refunding Bonds, Series 2002" (the "Series 2002 Bonds"). Prior to the issuance of the Series 2002 Bonds the conditions of Section 209 of the Bond Resolution shall be satisfied. The Series 2002 Bonds are being issued to provide funds to pay the Cost of the Project, to refund and defease the Refunded Bonds and to pay costs of issuing the Series 2002 Bonds. Section 4. Terms of the Series 2002 Bonds. (a) Form of Bonds. The Series 2002 Bonds shall be substantially in the form of the Bonds set forth in the Bond Resolution, with such changes as may be necessary or appropriate to conform to the provisions of this Resolution and the terms of the Series 2002 Bonds set forth herein as may be approved by the officers of the City executing the Series 2002 Bonds, such execution to be conclusive evidence of such approval. (b) Amounts. Maturities. Redemption Provisions and Interest Rates. The Series 2002 Bonds will consist of such aggregate principal amount of Current Interest Serial Bonds and such aggregate principal amount of Current Interest Term Bonds as shall be determined by the Mayor as hereinafter provided. The Series 2002 Bonds shall be issued in the denomination of$5,000 and integral multiples thereof, shall be issued in registered form, shall be numbered from R-1 upwards, shall be dated 3 their date of initial issuance and delivery, which shall be August 6, 2002, unless another date shall be agreed upon by the Mayor and the Original Purchaser, and shall bear interest from such date, payable semi-annually on the first day of May and November of each year, commencing November 1, 2002. The Series 2002 Bonds shall be issued in the aggregate principal amount, not in excess of$27,000,000, shall bear interest at the rates per annum computed on the basis of a 360-day year consisting of twelve 30-day months, and shall mature on November 1 of the years and shall have such redemption provisions, all as set forth in a certificate executed by the Mayor at or before the issuance of the Series 2002 Bonds, provided however that the arbitrage yield on the Series 2002 Bonds shall not exceed 6.00 percent per annum and the final maturity of the Series 2002 Bonds shall not be after November 1, 2020. Principal of the Series 2002 Bonds shall be payable only upon presentation and surrender of such Bonds at the principal office of the Bond Registrar. Interest on the Series 2002 Bonds shall be paid by check or draft, or at the option of any registered owner of not less than $1,000,000 in principal amount of the Series 2002 Bonds, exercised in writing delivered to the Bond Registrar prior to the Regular Record Date or Special Record Date, by wire transfer to an account in the United States designated by such registered owner, mailed or wired by the Bond Registrar to the registered owners of the Series 2002 Bonds as shown on the registration books kept by the Bond Registrar on the Regular Record Date or the Special Record Date. (c) Reserve Account Deposit Requirement. The Reserve Account Requirement for the Series 2002 Bonds shall be an amount equal to the lesser of (i) 10% of the aggregate stated principal amount of the Series 2002 Bonds Outstanding, (ii) the maximum amount of principal and interest scheduled to become due on the Outstanding Series 2002 Bonds in the current or any succeeding Bond Year, or (iii) 125% of the average annual debt service on the Series 2002 Bonds (calculated on a Bond Year basis at the time of issuance only). If the Series 2002 Bonds have more than a de-minimis amount of original issue discount or premium (as defined in Treas. Reg. §1.148-1(b)), then the issue price (as defined in said regulation) of the Series 2002 Bonds (net of pre-issuance accrued interest) shall be used to measure the aforesaid 10% limitation in lieu of the stated principal amount of the Series 2002 Bonds. The Series 2002 Reserve Subaccount, which is hereby ordered created, shall be funded in an amount equal to the Reserve Account Requirement for the Series 2002 Bonds at the time of initial issuance and delivery of the Series 2002 Bonds, and in the event any deficiency is created in the Series 2002 Reserve Subaccount, the Reserve Account Deposit Requirement for such Series shall be, in each month, an amount equal to at least one twenty-fourth (1/24) of the amount of such deficiency. Section 5. Amendments to Bond Resolution. The amendments to the Bond Resolution set forth in this Section 5 shall be effective upon, and only upon the issuance of the Series 2002 Bonds. (a) Section 101 of the Bond Resolution is amended by the addition thereto of two new definitions as follows: 4 "2002 Bond Insurance Policy" shall mean the municipal bond new issue insurance policy issued by the 2002 Bond Insurer that guarantees payment of principal of and interest on the Series 2002 Bonds. "2002 Bond Insurer" shall mean Financial Guaranty Insurance Company, a New York stock insurance company, or any successor thereto. (b) A new Section 718 is added to the Bond Resolution to provide as follows: "Section 718. Provisions concerning 2002 Bond Insurer. For so long as the 2002 Bond Insurance Policy shall be outstanding: (a) in determining whether payment of the principal of and interest on the Bonds shall have been timely made, no effect shall be given to payments made under the 2002 Bond Insurance Policy, (b) the City and the Bond Registrar shall notify the 2002 Bond Insurer immediately of any payment default on the Bonds, and the City shall notify the 2002 Bond Insurer of any other default hereunder known to the City within thirty (30) days after the City acquires knowledge of such default, (c) for all purposes of Article VIII hereof governing events of default and remedies, except the giving of notice of default to Bondholders, the 2002 Bond Insurer shall be deemed to be the sole holder of the Series 2002 Bonds for so long as it has not failed to comply with its payment obligations under the 2002 Bond Insurance Policy, and the 2002 Bond Insurer shall be entitled to notify the City of the occurrence of an event of default, which notice the City shall be required to accept, (d) in determining whether the rights of Bondholders are adversely affected by actions taken pursuant to the terms and provisions hereof, no effect shall be given to payments made under the 2002 Bond Insurance Policy, (e) no amendment or supplement to the Resolution shall be effective without the prior written consent of the 2002 Bond Insurer, and each rating agency maintaining a rating on the Bonds shall be provided a copy of each proposed supplemental resolution at least 15 days in advance of its adoption, and the 2002 Bond Insurer shall be provided with a full transcript of all proceedings relating to the execution of any supplemental resolution. (f) (i) If, at the close of business on the Business Day preceding any Interest Payment Date for the Series 2002 Bonds, there is not on deposit with the Bond Registrar sufficient monies available to pay all principal of and interest on the Series 2002 Bonds due on such date, the City and the Bond Registrar shall immediately notify the 2002 Bond Insurer and State Street Bank and Trust Company, N.A., New York, New York or its successor as its Fiscal Agent (the "Fiscal Agent") of the amount of such deficiency. If, by said Interest Payment Date, the City has not provided the amount of such deficiency, the 5 Bond Registrar shall simultaneously make available to the 2002 Bond Insurer and to the Fiscal Agent the registration books for the Series 2002 Bonds maintained by the Bond Registrar. In addition: (A) The Bond Registrar shall provide the 2002 Bond Insurer with a list of the Bondholders entitled to receive principal or interest payments from the 2002 Bond Insurer under the terms of the 2002 Bond Insurance Policy and shall make arrangements for the 2002 Bond Insurer and its Fiscal Agent (1) to mail checks or drafts to Bondholders entitled to receive full or partial.. interest payments from the 2002 Bond Insurer and (2) to pay principal of the Bonds surrendered to the Fiscal Agent by the Bondholders entitled to receive full or partial principal payments from the 2002 Bond Insurer; and (B) The Bond Registrar shall, at the time it makes the registration books available to the 2002 Bond Insurer pursuant to (A) above, notify Bondholders entitled to receive the payment of principal of or interest on the Bonds from the 2002 Bond Insurer (1) as to the fact of such entitlement, (2) that the 2002 Bond Insurer will remit to them all or part of the interest payments coming due subject to the terms of the 2002 Bond Insurance Policy, (3)that, except as provided in paragraph(ii)below, in the event that any Bondholder is entitled to receive full payment of principal from the 2002 Bond Insurer, such Bondholder must tender his Series 2002 Bond with the instrument of transfer in the form providedon the Series 2002 Bond executed in the name of the 2002 Bond Insurer, and (4) that, except as provided in paragraph (ii) below, in the event that such Bondholder is entitled to receive partial payment of principal from the 2002 Bond Insurer, such Bondholder must tender his Series 2002 Bond for payment first to the Bond Registrar, which shall note on such Series 2002 Bond the portion of principal paid by the Bond Registrar, and then, with an acceptable form of assignment executed in the name of the 2002 Bond Insurer, to the Fiscal Agent, which will then pay the unpaid portion of principal to the Bondholder subject to the terms of the 2002 Bond Insurance Policy. (ii) In the event that the Bond Registrar has notice that any payment of principal of or interest on a Series 2002 Bond has been recovered from a Bondholder pursuant to the United States Bankruptcy Code by a trustee in bankruptcy in accordance with the final, nonappealable order of a court having competent jurisdiction, the Bond Registrar shall, at the time it provides notice to the 2002 Bond Insurer, notify all Bondholders that in the event that any Bondholder's payment is so recovered, such Bondholder will be entitled to payment from the 2002 Bond Insurer to the extent of such recovery, and the Bond Registrar shall furnish to the 2002 Bond Insurer its records evidencing the payments of principal of and interest on the Series 2002 Bonds which have 6 been made by the Bond Registrar and subsequently recovered from Bondholders, and the dates on which such payments were made. (iii) The 2002 Bond Insurer shall, to the extent it makes payment of principal of or interest on the Series 2002 Bonds, become subrogated to the rights of the recipients of such payments in accordance with the terms of the 2002 Bond Insurance Policy and, to evidence such subrogation, (1) in the case of subrogation as to claims for past due interest, the Bond Registrar shall note the 2002 Bond Insurer's rights as subrogee on the registration books maintained by the Bond Registrar upon receipt from the 2002 Bond Insurer of proof of the payment of interest thereon to the Bondholders of such Bonds and (2) in the case of subrogation as to claims for past due principal, the Bond Registrar shall note the 2002 Bond Insurer's rights as subrogee on the registration books for the Series 2002 Bonds maintained by the Bond Registrar upon receipt of proof of the payment of principal thereof to the Bondholders of such Series 2002 Bonds. Notwithstanding • anything in this Resolution or the Series 2002 Bonds to the contrary, the Bond Registrar shall make payment of such past due interest and past due principal directly to the 2002 Bond Insurer to the extent that the 2002 Bond Insurer is a subrogee with respect thereto." (g) The notice addresses for the 2002 Bond Insurer and the Fiscal Agent shall be as follows: 115 Broadway New York, New York, 10006 Attention: General Counsel State Street Bank and Trust Company, N.A. 61 Broadway New York, New York 10006 Attention: Corporate Trust Department (h) The 2002 Bond Insurer shall be provided with the following information: (i) Within 120 days after the end of each of the City's Fiscal Years, the annual audited financial statements, a statement of the amount on deposit in the Reserve Account as of the last valuation, a copy of the budget for the current Fiscal Year, and, if not presented in the audited fmancial statements, a statement of the Net Revenues pledged to payment of Bonds in such previous Fiscal Year; (ii) a copy of the official statement or other disclosure, if any, prepared in connection with the issuance of additional debt, whether or not it is on a parity with the insured issue, within 30 days after the sale thereof; (iii) a notice of any draw upon or deficiency due to market fluctuation in the amount, if any, on deposit in the Reserve Account; 7 (iv) a notice of the redemption, other than mandatory sinking fund redemption, of any of the Bonds, including the principal amount, maturities and CUSIP numbers thereof; (v) Simultaneously with the delivery of the annual audited financial statements: (A) The number of system users as of the end of the Fiscal Year; (B) Notification of the withdrawal of any system user comprising 4% or more of system sales measured in terms of revenue dollars since the last reporting date; and (C) Any significant plant retirements or expansions planned or undertaken since the last report date; and (vi) Such additional information as the 2002 Bond Insurer may reasonably request from time to time. (i)The following requirements shall be fulfilled to the satisfaction of the 2002 Bond Insurer (including incorporation of relevant conditions herein) in the event the Reserve Account Requirement is fulfilled by a deposit of credit instrument (other than a credit instrument issued by the 2002 Bond Insurer) in lieu of cash: 1. A surety bond or insurance policy issued to the Bond Registrar (the "Fiduciary"), as agent of the Bondholders, by a company licensed to issue an insurance policy guaranteeing the timely payment of debt service on the Bonds (a "municipal bond insurer") may be deposited in the Reserve Account to meet the Reserve Account Requirement if the claims paying ability of the issuer thereof shall be rated "AAA" or "Aaa" by S&P or Moody's, respectively. 2. A surety bond or insurance policy issued to the Fiduciary, as agent of the Bondholders, by an entity other than a municipal bond insurer may be deposited in the Reserve Account to meet the Reserve Account Requirement if the form and substance of such instrument and the issuer thereof shall be approved by the 2002 Bond Insurer. 3. An unconditional irrevocable letter of credit issued to the Fiduciary, as agent of the Bondholders, by a bank may be deposited in the Reserve Account to meet the Reserve Account Requirement if the issuer thereof is rated at least "AA" by S&P. The letter of credit shall be payable in one or more draws upon presentation by the beneficiary of a sight draft accompanied by its certificate that it then holds insufficient funds to make a required payment of principal or interest on bonds. The draws shall be payable within two days of presentation of the sight draft. The letter of credit shall be for a term of not less than three years. The issuer of the 8 letter of credit shall be required to notify the Issuer and the Fiduciary, not later than 30 months prior to the stated expiration date of the letter of credit, as to whether such expiration date shall be extended, and if so, shall indicate the new expiration date. If such notice indicates that the expiration date shall not be extended, the City shall deposit in the Reserve Account an amount sufficient to cause the cash or Investment Obligations on deposit in the Reserve Account together with any other qualifying credit instruments, to equal the Reserve Account Requirement on all outstanding Bonds, such deposit to be paid in equal installments on at least a semi-annual basis over the remaining term of the letter of credit, unless the Reserve Account credit instrument is replaced by a Reserve Account credit instrument meeting the requirements in either of clauses 1 or 2 above or this clause 3. The letter of credit shall permit a draw in full not less than two weeks prior to the expiration or termination of such letter of credit if the letter of credit has • not been replaced or renewed. The Resolution shall direct the Fiduciary to draw upon the letter of credit prior to its expiration or termination unless an acceptable replacement is in place or the Reserve Account is fully funded in its required amount. 4. The use of any Reserve Account credit instrument pursuant to this clause (i) shall be subject to receipt of an opinion of counsel acceptable to the 2002 Bond Insurer and in form and substance satisfactory to the 2002 Bond Insurer as to the due authorization, execution, delivery and enforceability of such instrument in accordance with its terms, subject to applicable laws affecting creditors' rights generally, and, in the event the issuer of such credit instrument is not a domestic entity, an opinion of foreign counsel in form and substance satisfactory to the 2002 Bond Insurer. In addition, the use of an irrevocable letter of credit shall be subject to receipt of an opinion of counsel acceptable to the 2002 Bond Insurer and in form and substance satisfactory to the 2002 Bond Insurer to the effect that requirements under such letter of credit would not constitute avoidable preferences under Section 547 of the U.S. Bankruptcy Code or similar state laws with avoidable preference provisions in the event of the filing of a petition for relief under the U.S. Bankruptcy Code or similar state laws by or against the issuer of the bonds (or any other account party under the letter or credit). 5. The obligation to reimburse the issuer of a Reserve Account credit instrument for any fees, expenses, claims or draws upon such Reserve Account credit instrument shall be subordinate to the payment of debt service on the bonds. The right of the issuer of a Reserve Account credit instrument to payment or reimbursement of its fees and expenses shall be subordinated to cash replenishment of the Reserve Account, and, subject to the second succeeding sentence, its right to reimbursement for claims or draws shall be on a parity with the cash replenishment of the Reserve 9 Account. The Reserve Account credit instrument shall provide for a revolving feature under which the amount available thereunder will be reinstated to the extent of any reimbursement of draws or claims paid. If the revolving feature is suspended or terminated for any reason, the right of the issuer of the Reserve Account credit instrument to reimbursement will be further subordinated to cash replenishment of the Reserve Account to an amount equal to the difference between the full original amount available under the Reserve Account credit instrument and the amount then available for further draws or claims. If(a) the issuer of a Reserve Account credit instrument becomes insolvent or (b) the issuer of a Reserve Account credit instrument defaults in its payment obligations thereunder or (c) the claims-paying ability of the issuer of the insurance policy or surety bond falls below a S&P "AAA" or a Moody's "Aaa" or (d) the rating of the issuer of the letter of credit falls below a S&P "AA", the obligation to reimburse the issuer of the Reserve Account credit instrument shall be subordinate to the cash replenishment of the Reserve Account. 6. If (a) the revolving reinstatement feature described in the preceding paragraph is suspended or terminated or (b) the rating of the claims paying ability of the issuer of the surety bond or insurance policy falls below a S&P "AAA" or a Moody's "Aaa" or (c) the rating of the issuer of the letter of credit falls below a S&P "AA", the City shall either (i) deposit into the Reserve Account an amount sufficient to cause the cash or permitted investments on deposit in the Reserve Account to equal the Reserve Account Requirement on all outstanding Bonds, such amount to be paid over the ensuing five years in equal installments deposited at least semi-annually or (ii) replace such instrument with a surety bond, insurance policy or letter of credit meeting the requirements in any of 1-3 above within six months of such occurrence. In the event (a) the rating of the claims-paying ability of the issuer of the surety bond or insurance policy falls below "A" or (b) the rating of the issuer of the letter of credit falls below "A" or (c) the issuer of the Reserve Account credit instrument defaults in its payment obligations or (d) the issuer of the Reserve Account credit instrument becomes insolvent, the Issuer shall either (i) deposit into the Reserve Account an amount sufficient to cause the cash or permitted investments on deposit in the Reserve Account to equal to Reserve Account Requirement on all outstanding Bonds, such amount to be paid over the ensuing year in equal installments on at least a monthly basis or (ii) replace such instrument with a surety bond, insurance policy or letter or credit meeting the requirements in any of 1-3 above within six months of such occurrence. 7. Where applicable, the amount available for draws or claims under the Reserve Account credit instrument may be reduced by the amount of cash 10 of permitted investments deposited in the Reserve Account pursuant to clause (i) of the preceding subparagraph 6. 8. If the City chooses the above described alternatives to a cash-funded Reserve Account, any amounts owed by the City to the issuer of such credit instrument as a result of a draw thereon or a claim thereunder, as appropriate, shall be included in any calculation of debt service requirements required to be made pursuant to this Resolution for any purpose, e.g., rate covenant or additional bonds test. 9. The Resolution shall require the Fiduciary to ascertain the necessity for a claim or draw upon the Reserve Account credit instrument and to provide notice to the issuer of the Reserve Account credit instrument in accordance with its terms not later than three days (or such longer period as may be necessary depending on the permitted time period for honoring a draw under the Reserve Account credit instrument)prior to each interest payment date. 10. Cash on deposit in the Reserve Account shall be used (or investments purchased with such cash shall be liquidated and the proceeds applied as required) prior to any drawing on any Reserve Account credit instrument. If an to the extent that more than one Reserve Account, drawings thereunder and repayments of costs associated therewith shall be made on a pro rata basis, calculated by reference to the maximum amounts available thereunder. Section 6. Approval of Sale of the Series 2002 Bonds. The City hereby determines that a negotiated sale of the Series 2002 Bonds is in the best interest of the City and the citizens and inhabitants of the City by reason of the volatility of the market for tax exempt bonds. Attached hereto as Exhibit "A" is a form of Forward Delivery Purchase Contract (the "Bond Purchase Contract"). The City approves the Bond Purchase Contract together with such changes thereto as are necessary to reflect the terms of the Series 2002 Bonds and to reflect the purchase price thereof, provided, that the underwriter's discount shall not exceed $3.95 per thousand dollars of principal amount of the Series 2002 Bonds, and with such other completions, additions and/or changes as shall be approved by the Mayor, such approval to be conclusively established by such execution, and the Mayor is hereby authorized and directed for and in the name of the City to execute, and the City Clerk is authorized to attest to and affix the seal of the City to and deliver the Bond Purchase Contract to the Original Purchaser. Prior to the execution of the Bond Purchase Contract, the Original Purchaser shall file with the City the disclosure statement required by Section 218.385, Florida Statutes, and the competitive bidding for the Series 2002 Bonds is hereby waived pursuant to the authority of Section 218.385(1), Florida Statutes. Notwithstanding any other provision hereof, the Delayed Delivery Pre-Closing Date, as defined in the Bond Purchase Contract, shall be on or before August 31, 2001 unless the City Commission shall by subsequent resolution authorize a later date. 11 Section 7. Execution and Delivery of the Series 2002 Bonds. The Mayor and the City Clerk are hereby authorized and directed on behalf of the City to execute the Series 2002 Bonds as provided in the Bond Resolution and such officials are hereby authorized and directed upon the execution of the Series 2002 Bonds in the form and manner set forth herein and in the Bond Resolution to deliver the Series 2002 Bonds in the amount authorized to be issued hereunder to the Bond Registrar for authentication(upon the satisfaction of the conditions of Section 209 of the Bond Resolution) and delivery to or upon the order of the Original Purchaser upon payment of the purchase price set forth herein. Section 8. Application of Proceeds. Proceeds from the sale of the Series 2002 Bonds and any amounts available under the Bond Resolution as a result of the refunding and defeasance of the Refunded Bonds shall be applied for the purposes described herein as provided in a certificate executed by the Mayor at or prior to the issuance of the Series 2002 Bonds. Section 9. Bond Registrar. The City hereby appoints The Bank of New York(the "Bank") as Bond Registrar with respect to the Series 2002 Bonds. The form of Bond Registrar Agreement attached hereto as Exhibit "B" is hereby approved and the Mayor is hereby authorized and directed for and in the name of the City to execute, and the City Clerk is authorized to attest and apply the seal of the City to the Bond Registrar Agreement, with such changes, alterations and corrections thereto as shall be approved by the officials executing the same, such execution to constitute conclusive evidence of such approval. Section 10. Official Statement. The City hereby approves the form and content of, and authorizes the use by the Original Purchaser in marketing the Series 2002 Bonds, of a Preliminary Official Statement relating to the Series 2002 Bonds in the form of the document attached hereto as Exhibit "C," together with such other changes, alterations and corrections therein as may be approved by the City Manager, who is hereby authorized to approve the final form of the Preliminary Official Statement, such approval to be conclusively established by the execution by the City Manager of a certificate "deeming final" the Preliminary Official Statement for purposes of Securities and Exchange Commission Rule 15c2-12, which execution is hereby authorized. The preparation of a final Official Statement for the Series 2002 Bonds, which shall be in substantially the form of the Preliminary Official Statement, changed to reflect the terms of the Series 2002 Bonds and with such other changes, alterations and corrections therein as may be approved by the Mayor and City Manager, such approval to be conclusively established by such execution, is hereby authorized, and upon preparation thereof the Mayor and the City Manager are authorized and directed for and in the name of the City to execute and deliver the Official Statement. Section 11. Authorization for Bond Insurance. The Mayor, the Finance Director and the City Manager, or any of them, are authorized to arrange for municipal bond insurance on the Series 2002 Bonds to be provided by the 2002 Bond Insurer, to pay or cause to be paid the premium with respect thereto, and to take all actions and execute such documents as may be required in connection therewith. 12 Section 12. Book Entry System. The City is authorized and directed to execute a Blanket Issuer Letter of Representations in the form attached hereto as Exhibit "D," and to comply with the provisions thereof. _ Section 13. Compliance with Tax Requirements. The City hereby covenants and agrees, for the benefit of the Bondholders from time to time of the Series 2002 Bonds, to comply with the requirements applicable to it contained in Section 103 and Part IV of Subchapter B of Chapter 1 of the Internal Revenue Code of 1986, as amended (the "Code")to the extent necessary to preserve the exclusion of interest on the Series 2002 Bonds from gross income for federal income tax purposes. Specifically, without intending to limit in any way the generality of the foregoing, the City covenants and agrees: (1) to pay to the United States of America from, to the extent legally available, the funds and sources of revenues pledged to the payment of the Series 2002 Bonds, and from any other legally available funds, at the times and to the extent required pursuant to Section 148(f) of the Code, the excess of the amount earned on all non- purpose investments (as defmed in Section 148(f)(6) of the Code) (other than investments attributed to an excess described in this sentence) over the amount which would have been earned if such non-purpose investments were invested at a rate equal to the yield on the Series 2002 Bonds, plus any income attributable to such excess (the "Rebate Amount"); (2) to maintain and retain all records pertaining to and to be responsible for making or causing to be made all determinations and calculations of the Rebate Amount and required payments of the Rebate Amount as shall be necessary to comply with the Code; (3) to refrain from using proceeds from the Series 2002 Bonds in a manner that would cause the Bonds or any of them, to be classified as private activity bonds under Section 141(a) of the Code; and (4) to take or refrain from taking any action that would cause the Series 2002 Bonds, or any of them, to become arbitrage bonds under Section 103(b) and Section 148 of the Code. The City understands that the foregoing covenants impose continuing obligations on the City to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the Code so long as such requirements are applicable. Unless otherwise specified in the Certificate as to Arbitrage and Other Tax Matters delivered in connection with the issuance of the Series 2002 Bonds, the City shall designate a certified public accountant, Bond Counsel, or other professional consultant having the skill and expertise necessary (the "Rebate Analyst") to make any and all calculations required pursuant to this Section regarding the Rebate Amount. Such calculation shall be made in the manner and at such times as specified in the Code. The City shall engage and shall be responsible for paying the fees and expenses of the Rebate Analyst. 13 Section 14. The Refunded Bonds and the Escrow Deposit Agreement. The redemption of the Refunded Bonds as shall be described in the executed Escrow Deposit Agreement is authorized and directed. The Escrow Deposit Agreement in the form attached hereto as Exhibit "E" is hereby approved, subject to such changes, insertions, omissions, and filling in of blanks therein as may be approved by the Mayor, such approval to be conclusively evidenced by the execution of the Escrow Deposit Agreement by the Mayor. The Mayor and the City Clerk are hereby authorized to execute and deliver the Escrow Deposit Agreement on behalf of the City. The Escrow Agent under the Escrow Deposit Agreement shall be The Bank of New York. The Mayor, Finance Director, City Manager and Escrow Agent, or any of them, are hereby authorized to subscribe for the purchase of any United State Treasury Obligations -- State and Local Government Series to be purchased pursuant to the Escrow Deposit Agreement. Section 15. Continuing Disclosure. (a) Disclosure of Annual Information. The City agrees, in accordance with the provisions of Rule 15c2-12 in effect from time to time and applicable to the Series 2002 Bonds (the "Rule"), promulgated by the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, to provide, either directly or indirectly through a designated agent, to each nationally recognized municipal securities information repository ("NRMSIR") as designated and approved by the Commission and to the appropriate State of Florida information depository ("SID"), if any, operated or designated by the State, respectively, in accordance with the Rule, (i) within 180 days following the end of each Fiscal Year of the City, commencing with the Fiscal Year ending September 30, 2002 annual financial information and operating data concerning the Utility System, of the type included in the Official Statement, including operating revenues, debt service coverage by Net Revenues, rates and charges of the Utility System, summary of any capital improvements plan, and information regarding permitted capacities and actual usage of capacities of the Utility System and financial statements (audited, or, if not available during such time period, unaudited) of the City and, (ii) if not submitted as part of such financial information and operating data, then, when available, audited financial statements for the City prepared in accordance with generally accepted accounting principles applicable to governmental entities from time to time. A copy of such annual financial information and operating data will be provided by the City to the Original Purchaser, the 2002 Bond Insurer and to the Bond Registrar for the Series 2002 Bonds as designated by the City from time to time. (The information required to be disclosed in this paragraph shall be hereinafter referred to as the "Annual Report.") (b) Disclosure of Material Events. The City agrees to provide either directly or indirectly through a designated agent, in a timely manner, to (i) each NRMSIR or to the Municipal Securities Rulemaking Board ("MSRB") and (ii) the SID, if any, notice of the occurrence of any of the following events with respect to the Series 2002 Bonds, if such event is material: (i) principal and interest payment delinquencies; (ii) non-payment related defaults; 14 (iii) unscheduled draws on debt service reserves, if any, reflecting financial difficulties; (iv) unscheduled draws on credit enhancements, if any, reflecting financial difficulties; (v) substitution of credit or liquidity providers, if any, or their failure to perform; (vi) adverse tax opinions or events affecting the tax-exempt status of the Series 2002 Bonds; (vii) modifications to rights of the holders of the Series 2002 Bonds; (viii) bond calls of the Series. 2002 Bonds (other than scheduled mandatory redemption) or any acceleration of the maturity thereof; (ix) defeasances (in whole or in part) of Series 2002 Bonds; (x) release, substitution,.or sale of property securing repayment of the Series 2002 Bonds; (xi) rating changes; and (xii) any changes in the City's Fiscal Year. (c) Notice of Failure. The City agrees to provide or cause to be provided, in a timely manner, to (i) each NRMSIR or the MSRB and (ii) the SID, if any, notice of a failure by the City to provide the Annual Report described in subsection (a) above on or prior to the date set forth therein. (d) Termination. The City reserves the right to terminate its obligation to provide the Annual Report and notices of material events, as set forth above, if and when the City no longer remains an obligated person with respect to the Series 2002 Bonds (within the meaning of the Rule). If the City believes such condition exists, the City will provide notice of such termination to the NRMSIR's, the MSRB and the SID. (e) Undertaking for Benefit of Holders and Beneficial Owners. The City agrees that its undertaking pursuant to the Rule described herein is intended to be for the benefit of the holders and beneficial owners of the Series 2002 Bonds and shall be enforceable by any holder or beneficial owner; provided that the right to enforce the provisions of this undertaking shall be limited to a right to obtain specific enforcement of the City's obligations hereunder and any failure by the City to comply with the provisions of this undertaking shall not be an event of default with respect to the Series 2002 Bonds under the Resolution. 15 (f) Voluntary Disclosure Shall Not Bind City. Any voluntary inclusion by the City of information in its Annual Report of supplemental information that is not required by the Rule shall not expand the obligations of the City under the Rule and the City shall have no obligation to update such supplemental information or include it in any subsequent report. (g) Third Parties. The covenants described herein are solely for the benefit of the holders and beneficial owners of the Series 2002 Bonds and shall not create any rights in any other parties. (h) Amendment; Waiver. Notwithstanding any other provision of this Resolution, the City may amend the provisions of this Section and any such provision may be waived, provided that the following conditions are satisfied: (1) If the amendment or waiver relates to the provisions of paragraphs (a), (b), or (c) above, it may only be made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature or status of the City or the type of business conducted by the City; (2) The undertaking, as amended or taking into account such waiver, would, in the opinion of nationally recognized bond counsel, have complied with the requirements of the Rule at the time of the original issuance of the Series 2002 Bonds, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances; and (3) The amendment or waiver does not materially impair the interests of holders and beneficial owners as determined either by parties unaffiliated with the City or an obligated person, or by an approving vote of the holders of at least a majority in aggregate principal amount of the then outstanding Series 2002 Bonds pursuant to the terms of the Bond Resolution. In the event of any such amendment or waiver of a provision described above, the City shall describe such amendment or waiver in the next Annual Report, and shall include, as applicable, a narrative explanation of the reason for the amendment or waiver and its impact on the type (or, in the case of a change of accounting principles, on the presentation) of annual financial information or operating data being presented by the City. In addition, if the amendment or waiver relates to the accounting principles to be followed in preparing financial statements, (i) notice of such change shall be given in the same manner as set forth in subsection (b) and (ii) the Annual Report for the year in which the change is made must present a comparison (in narrative form and also, if feasible, in quantitative form) between the financial statements as prepared on the basis of the new accounting principles and those prepared on the basis of the former accounting principles. Section 16. This Resolution constitutes a declaration of official intent under Treasury Regulation Section 1.150-2. The City reasonably expects to incur expenditures for various 16 municipal capital improvements, and reasonably expects to reimburse such original expenditures with proceeds of the Series 2002 Bonds issued in the maximum principal amount set forth elsewhere herein. Section 17. Authorizations. The Mayor, the City Clerk, the Finance Director, and the City Manager are hereby jointly and severally authorized to do all acts and things required of them by this Resolution, the Bond Resolution or the Bond Purchase Contract, or desirable or consistent with the requirements hereof or thereof, for the full, punctual and complete performance of all terms, covenants and agreements contained in the Series 2002 Bonds, the Bond Resolution, this Resolution, and the Bond Purchase Contract, and to make any elections necessary or desirable in connection with the arbitrage provisions of Section 148 of the Code. Section 18. Holidays. In any case where the date of maturity of interest on or principal of the Series 2002 Bonds or the date fixed for redemption of any Series 2002 Bonds is not a Business Day, then payment of principal, premium, if any, or interest need not be made on such date but may be made on the next succeeding Business Day, with the same force and effect as if made on the date of maturity or the date fixed for redemption. Section 19. Resolution to Constitute a Contract. In consideration of the purchase and acceptance of the Series 2002 Bonds authorized to be issued hereunder by those who shall be the holders thereof from time to time, this Resolution shall constitute a contract between the City and such holders, and all covenants and agreements herein and in the Bond Resolution set forth to be performed by the City shall be for the equal benefit and security of all of the holders. Section 20. No Implied Beneficiary. With the exception of any rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Series 2002 Bonds is intended or shall be construed to give any person other than the City, the Original Purchaser, the 2002 Bond Insurer and the Owners, any legal or equitable right, remedy or claim under or with respect to this Resolution or the Bond Resolution or any covenants, conditions, and provisions herein contained; this Resolution and the Bond Resolution and all of the covenants, conditions and provisions hereof and thereof being intended to be and being for the sole and exclusive benefit of the City, the Original Purchaser, the 2002 Bond Insurer and the Owners. Section 21. Severability. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not effect any other provision herein or render any other provision (or such provision in any other context) invalid, inoperative or unenforceable to any extent whatsoever. Section 22. Repealer. All Resolutions or parts thereof of the City in conflict with the provisions herein contained or, to the extent of any such conflict, hereby superseded and repealed. 17 Section 23. Effective Date. This Resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED THIS 15th DAY OF MAY, 2001. (SEAL) ATTEST: CITY OF BOYNTON BEACH, FLORIDA By: By: City Clerk Mayor Vice-Mayor Commissioner Commissioner Commissioner APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: City Attorney 18. MAY. 15. 2001 11 :52AM NO. 0587 P. 2/3 MOYLE,FLANIGAN, KATZ, RAYMOND & SHEEHAN, P.A. ATTORNEYS AT LAW 625 North Flagler Drive-9°i Floor West Palm Beach,Florida 33401-4025 • P.O.Box 3888 West Palm Beach,Florida 33402-3888 • Telephone:(561)659-7500 Facsimile:(561)659-1789 MARK E.RAYMOND Direct Line: (561)822-0380 Tallahassee Office E-mail:mraymond@moylelaw_com (850)681-3828 May 15, 2001 -4A, The Honorable Mayor and 27. Members of the City Commission c City of Boynton Beach, Florida rn Re: Utility System Revenue Refunding Bonds, Series 2002 " nn Dear Mr. Mayor and Members of the City Conunission: I have previously prepared and circulated in your agenda packages a resolution authorizing the Utility System Revenue Refunding Bonds, Series 2002. This evening you are being asked to consider adopting the final version of that resolution. Only two changes have been made to the resolution since it was distributed to you. One change reflects the recommended selection of Financial Guaranty Insurance Company as the provider of bond insurance. Bids were solicited From all four of the principal bond insurers, and yesterday Financial Guaranty submitted the lowest bid, Financial Guaranty insures the existing utility bonds and has required no covenants of the City other than those included for the existing bonds. Additionally, the resolution has been modified to provide that the underwriter must complete the sale of the bonds by August 31, 2001. This means that the bonds must have been marketed by that date, although the actual delivery of the bonds will not occur until August, 2002. In. the event the underwriter is unsuccessful in marketing the bonds by August 31, 2001, the authorizations contained in this resolution will expire unless extended by the City Commission by subsequent resolution. The underwriter. has informed me that the savings available under current market conditions do not warrant the sale of the bonds at this time, although a relatively small movement in the market would make the desired savings achievable. Assuming that the resolution is adopted this evening, the underwriter, staff and I will continue to monitor market conditions and at the appropriate time we will move to market the bond issue. MAY. 15. 2001 11 : 53AM NO. 0587 F. 3/3 The Honorable Mayor and Members of the City Commission City of Boynton Beach, Florida May 15, 2001 Page 2 I have prepared the enclosed resolution for your consideration. It complies with all applicable legal requirements. Thank you for the opportunity to be of service. • Very truly yours, l 6 . Mark E. Raymond MER/ams cc: Kurt Bressner James Cherof, Esq. BONDED COURIERS, INC. P.O. BOX 1127,WEST PALM BEACH, FL 33402-1127 0® 0 9 7 0 (561)832-3388 We're Fast•We're Good•We're Ready In Florida(800)226-FAST(3278) For Billing Inquiries Refer To this Waybill Ar mb r PICKUP/ E,LtVERY ��J {, r ,,r FIRM: �,•( V � 6,,. l��•� 6 1 Ch CONTACT PERSON/SENDER: _ if LI/ Irl/0 ADDRESS /Ci'i/ 6----, + ti/f'y/0'1 I PC. I? L.`(7,-i SUITE# l-'tl�I`� --C 7 / CITY: 5 -/ S.----C / PHONE:( ) EXT. TIME: DATE: FROM:FIRM NAME AND ADDRESS SPECIAL INSTRUCTIONS M �n 1-- a SENDER NAME PH.EXT. 0u Of U r. BILLING INFORMATI — LY s' d 1 te N b REFERENCE# REFERENCE NAME DELIVERY CHARGE $ RUSH El $ • co SAME DAY ID $ X / RecgrVed in Good Cond ion � t` N OVERNIGHT E $ TIME RECEIVED DATE RECEIVED TOTAL $ COURIER SIGN. White-Billing Yellow-File Pink-Receiver Gold-Sender VII t f/ Liability Limited to$100.00 Per Delivery Unless Otherwise Agreed ftf r P TIME AND PLACE OF CLOSING The closing was held on September 15, 2000 (the "Closing Date"). Although certain of 'the below-described Closing Documents were executed and/or filed in advance of the Closing Date, no Closing Document was deemed to have been delivered until all Closing Documents were delivered. LIST OF CLOSING DOCUMENTS 1. Certified copy of Resolution No. R 00-124 adopted by the City Commission. 2. Escrow Deposit Agreement. 3. Notice of Sale sent to Division of Bond Finance. 4. General Certificate of the Issuer. 5. Written Direction and Certification of Finance Director. 6. Receipt for Note. 7. State of Florida Division of Bond Finance Forms BF-2003/2004-B and Letter of Transmittal. 8. ' Certificate as to Arbitrage and Other Tax Matters. 9. Form 8038-G and Transmittal Letter. 10. Disclosure Statement of Bank. 11. Opinion of City Attorney. 12. Opinion of Bond Counsel. Transcripts. Eight (8) complete transcripts are to be prepared for distribution as follows: 2- City of Boynton Beach, Florida 2 - Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. 1 - Holland & Knight LLP 2 - Bank of America, N.A. 1 - Josias, Goren, Cherof, Doody & Ezrol, P.A. G:\02345\30\alI closing docs(2).wpd CERTIFICATE OF TRUE COPY I, the undersigned City Clerk of the City of Boynton Beach, Florida, DO HEREBY CERTIFY that attached hereto is a true and correct copy of Resolution No. R 00-124 duly adopted September 6, 2000 and that such resolution remains in force on the date hereof and has not been amended or supplemented. IN WITNESS WHEREOF, I have hereunto set my hand as of the 15th day September, 2000. ��1111c11urn///f/���� � 444e4ezel-feaz-- .`\ By: v l o w �� e`��s City Clerk 1,L, i0 /18/111111111‘10' G:\02345\30\all closing docs(2).wpd ESCROW DEPOSIT AGREEMENT THIS ESCROW DEPOSIT AGREEMENT (the "Agreement"), is made and dated as of September 15, 2000, and is by and between CITY OF BOYNTON BEACH, FLORIDA (the ".Issuer") and FIRST UNION NATIONAL BANK (the "Escrow Agent"), Miami, Florida, a national banking association, as Escrow Agent and as Paying Agent(in such capacity, the "Paying Agent") for the hereinafter described Refunded Bonds. WITNESSETH: WHEREAS, the Issuer has heretofore issued its $10,075,000 General Obligation Refunding Bonds, Series 1992, of which$5,695,000 are currently outstanding(the "1992 Bonds"); and WHEREAS, the Issuer has determined to provide for the payment of all of the 1992 Bonds maturing on and after November 1, 2000, (the "Refunded Bonds"), and to obtain a portion of the funds necessary for such payment by issuing $4,986,434.06 in aggregate principal amount of its Promissory Note (the "Note"); and - WHEREAS, a portion of the proceeds derived from the sale of the Note, together with other moneys made available by the Issuer for such purpose, will be applied to the purchase of certain direct obligations of the United States of America ("Government Obligations"), the principal of which, together with investment earnings thereon and an initial cash balance, will be sufficient to pay when due the principal, redemption premium, and interest on the Refunded Bonds to and including November 1, 2000, on which date the Refunded Bonds will be discharged; and WHEREAS, in order to provide for the proper and timely application of the moneys deposited in the trust created,herein to the payment of the Refunded Bonds, it is necessary for the Issuer to enter into this Escrow Deposit Agreement with the Escrow Agent on behalf of the owners from time to time of the Refunded Bonds; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein set forth and in order to secure the payment of the principal of, premium, and interest on the Refunded Bonds, according to their tenor and effect, the Issuer does by these presents hereby deliver to and give, grant, assign and pledge to the Escrow Agent and to its successors in the trust hereby created, and to it and its assigns forever, all and singular the property hereinafter described, to wit:. CLAUSE I. All right, title, and interest of the Issuer in and to $5,871,274.06 deposited by or on behalf of the Issuer with the Escrow Agent hereunder. CLAUSE II. All right, title, and interest of the Issuer in and to the Government Obligations purchased from the moneys described in Clause I above. CLAUSE III. All right, title, and interest of the Issuer in and to all cash balances held from time to time hereunder and all income and earnings derived from or accruing to the Government Obligations described in Clause II above. CLAUSE IV. All (i)property which by the express provisions of this Agreement is required to be subject to the pledge hereof and (ii) additional property of every kind and nature that may, from time to time hereafter, by delivery or by writing of any kind, be conveyed, pledged, assigned, or transferred as and for additional security hereunder or to be subject to the pledge hereof, by the Issuer or by anyone in its behalf, and the Escrow Agent is hereby authorized to receive the same at any time as additional security hereunder, provided that no property described in (ii) shall be accepted by the Escrow Agent unless the Escrow Agent shall receive an opinion of nationally recognized bond counsel to the effect that such acceptance will not cause the interest on the Refunded Bonds and Note to be included in the gross income of the owners thereof for federal income tax purposes. TO HAVE AND TO HOLD, all and the same, forever; in trust nevertheless, upon the terms and trusts herein set forth, for the equal and proportionate benefit, security and protection, as herein described, of the owners from time to time of the Refunded Bonds in the manner herein provided; but if the Refunded Bonds shall be fully and promptly paid when due or redeemed in accordance with the terms thereof and hereof, then this Agreement shall be and become void and of no further force and effect, otherwise the same shall remain in full force and effect, and upon the trusts and subject to the covenants and conditions hereinafter set forth. ARTICLE I DEFINITIONS Section 1.01. Definitions. In addition to words and terms elsewhere defined in this Agreement, as used herein, unless some other meaning is plainly intended, the following terms and phrases shall have the following meanings: "Escrow Deposit Trust Fund" means the fund so designated and established under Section 2.01 of this Agreement. 2 "Government Obligations" means direct obligations of the United States of America that are not callable or subject to redemption or prepayment prior to maturity by the obligor thereon. Section 1.02. Uses of Phrases. 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, words importing the singular number shall include the plural number and vice-versa. ARTICLE II ESTABLISHMENT OF-FUNDS: FLOW OF FUNDS Section 2.01. Creation of Escrow Deposit Trust Fund. There is hereby created and established with the Escrow Agent a special and irrevocable trust fund designated the "Escrow Deposit Trust Fund" to be held in the custody of the Escrow Agent separate and apart from other funds of the Issuer or the Escrow Agent. Section 2.02. Deposit to Escrow Deposit Trust Fund. Concurrently with the execution of this Agreement the Issuer has deposited or,caused to be deposited with the Escrow Agent and the Escrow Agent acknowledges receipt of immediately available moneys in the amount of $5,871,655.31, for deposit in the Escrow Deposit Trust Fund. The funds deposited in the Escrow Deposit Trust Fund pursuant to the preceding sentence shall, except for a cash balance of$381.25, be immediately invested by the Escrow Agent in the Government Obligations described in Exhibit A attached hereto, and retained in the Escrow Deposit Trust Fund until applied as hereinafter authorized. Section 2.03. Application of Escrow Deposit Trust Fund. The Escrow Agent shall apply the Government Obligations and other moneys or additional property deposited in the Escrow Deposit Trust Fund, together with all income and earnings thereon, in accordance with the provisions hereof. The Escrow Agent shall not invest any moneys or additional property held hereunder or make substitutions of the Government Obligations hereunder or sell, transfer, or otherwise dispose of the Government Obligations or moneys held hereunder except as provided in this Agreement. Section 2.04. Irrevocable Trust Created. Except as expressly provided herein, the deposit of (or purchase for deposit of) the Government Obligations and moneys in the Escrow Deposit Trust Fund shall constitute an irrevocable deposit for the benefit of the owners of the Refunded Bonds and the owners of the Refunded Bonds shall have an express lien on the principal of and earnings on the Government Obligations, other moneys and any additional property held in the Escrow Deposit Trust Fund hereunder until applied in accordance with this Agreement. The Government Obligations, earnings thereon, other moneys and any additional property shall be held in trust by the Escrow Agent and used only for the purposes and in the manner provided in this Agreement. 3 Section 2.05. Redemption of Refunded Bonds. The Issuer has irrevocably called the Refunded Bonds maturing on and after November 1, 2001, for redemption on November 1, 2000 and hereby irrevocably instructs the Escrow Agent, and the Escrow Agent hereby agrees, to at least thirty (30) days, but not more than sixty (60) days, before November 1, 2000, mail a notice of redemption substantially in the form attached hereto as Exhibit B to all registered owners of such Refunded Bonds to be redeemed at their addresses as they appear on the registration books for the Refunded Bonds. Section 2.06. Use of Moneys in Escrow Deposit Trust Fund. On each date on which principal, premium, and/or interest on any of the Refunded Bonds shall become payable, the Escrow Agent shall use funds in the Escrow Deposit Trust Fund to pay the interest, principal and/or redemption price of the Refunded Bonds coming due on such dates, as shown on Exhibit C. Section 2.07. Investment of Trust Funds. Subject to the requirements of this Section 2.07, the Issuer may direct in writing the Escrow Agent to invest and reinvest any moneys remaining from time to time in the Escrow Deposit Trust Fund until such time as they are needed, and the Escrow Agent shall comply with such request, otherwise the Escrow Agent shall hold such moneys uninvested (except as otherwise provided herein). Such moneys may be invested and reinvested only in Government Obligations bearing interest at such rate or rates and maturing on such date or dates and in such amounts as directed in writing by the Issuer. The Issuer shall give no such instruction to the Escrow Agent unless the Issuer and the Escrow Agent shall have received in writing an opinion of nationally recognized bond counsel to the effect that such investment of such moneys will not adversely affect the tax-exempt status of the interest on the Refunded Bonds and the Note for federal income tax purposes. Provided further, that no such investment instruction shall be given unless the Issuer and the Escrow Agent shall have received verification from a firm of independent certified public accountants to the effect that, taking into account such investment, the amounts held hereunder will be sufficient to pay the principal, premium, and interest on the Refunded Bonds in full as the same shall become due. Section 2.08. Transfer of Funds After All Payments Required by the Agreement Are Made. After all the principal of, interest on, and redemption premium, if any, with respect to the Refunded Bonds has been paid in full, all remaining moneys and Government Obligations, together with any income and interest thereon, in the Escrow Deposit Trust Fund shall, upon written direction of the Issuer, be transferred to the Issuer by the Escrow Agent and shall be used by the Issuer in the following order of priority (i) if the Note shall be outstanding, to pay principal or interest on the Note, and (ii) otherwise, for any lawful purpose of the Issuer authorized by a written opinion of nationally recognized bond counsel. The Escrow Agent shall have no responsibility for the application of amounts transferred by it to the Issuer as provided above. Section 2.09. Deficiencies. If at any time it shall appear to the Escrow Agent that the available proceeds in the Escrow Deposit Trust Fund will not be sufficient to make any payment when due to the owners of any of the Refunded Bonds, the Escrow Agent shall notify the Issuer as promptly as possible prior to such payment date and the Issuer agrees that it will make available to the Escrow Agent, from legally available funds, if any, amounts sufficient to eliminate the anticipated deficit so that the Escrow Agent will have sufficient funds to make such payment on 4 the Refunded Bonds. The Escrow Agent shall in no manner be responsible for the Issuer's failure to make such deposits. Section 2.10. Escrow Agent Fees. The Issuer hereby agrees to provide for the payment, from lawfully available funds of the Issuer, of the compensation due and owing the Escrow Agent which compensation shall be paid at such times and in such amounts shown on Exhibit D. In no event shall the Escrow Agent have any lien, security interest or right of set-off whatsoever upon any of the moneys or investments in the Escrow Deposit Trust Fund for the payment of such compensation, or for the payment or reimbursement of any expenses incurred by the Escrow Agent in connection with this Agreement. ARTICLE III CONCERNING THE ESCROW AGENT Section 3.01. Appointment of Escrow Agent. The Issuer hereby appoints First Union National Bank, Miami, Florida as Escrow Agent under this Agreement. Section 3.02. Acceptance by Escrow Agent. By execution of this Agreement, the Escrow Agent accepts its duties and obligations hereunder. Section 3.03. Liability of Escrow Agent. The Escrow Agent shall not be liable in connection with the performance of its duties hereunder except for its own negligence, malfeasance or willful misconduct. The Escrow Agent shall not be liable for any loss or any taxability of interest on the Refunded Bonds or Note resulting from any investment made pursuant to the terms and provisions of this Agreement. The Escrow Agent shall not be liable for the accuracy of the,calculations as to the sufficiency of moneys and of the principal amount of the Government Obligations and the earnings thereon to pay the Refunded Bonds. So long as the Escrow Agent applies all moneys, additional property and the Government Obligations and the interest earnings therefrom to pay the Refunded Bonds as provided herein, and complies fully with the terms of this Agreement, it shall not be liable for any deficiencies in the amounts necessary to pay the Refunded Bonds caused by such calculations. The Escrow Agent shall keep such books and records as shall be consistent with prudent industry practice and shall make such books and records available for inspection by the Issuer at all reasonable times. In the event of the Escrow Agent's failure to account for any of the Government Obligations, additional property or moneys received by it, said Government Obligations, additional property or moneys shall be and remain the property of the Issuer in trust for the owners of the Refunded Bonds, as herein provided, and if for any reason such Government Obligations or moneys are not properly applied by the Escrow Agent as herein provided, the Escrow Agent shall be liable to the owners of the Refunded Bonds for the amount thereof until the required application shall be made. 5 The duties and obligations of the Escrow Agent shall be determined by the express provisions of this Agreement. The Escrow Agent may consult with counsel with respect to any matter relevant to this Agreement, who may or may not be counsel to the Issuer, and be entitled to receive from the Issuer reimbursement of the reasonable fees and expenses of such counsel, and in reliance upon the opinion of such counsel have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the Issuer, and the Escrow Agent may in good faith conclusively rely upon such certificate. Section 3.04. Permitted Acts. The Escrow Agent and its affiliates may become the owner of or may deal in any obligations of the Issuer described herein as fully and with the same rights as if it were not the Escrow Agent. Section 3.05. Resignation of Escrow Agent. The Escrow Agent at the time acting hereunder may at any time resign by giving not less than sixty (60) days' written notice to the Issuer, but no such resignation shall take effect unless a successor Escrow Agent shall have been appointed by the owners of the Refunded Bonds or by the Issuer as hereinafter provided and such successor Escrow Agent shall have accepted such appointment, in which event such resignation shall take effect immediately upon the appointment and acceptance of a successor Escrow Agent and the transfer to such successor Escrow Agent of the funds and accounts held by the Escrow Agent hereunder. Section 3.06. Removal of Escrow Agent. (a) The Escrow Agent may be removed at any time if the owners of a majority in aggregate principal amount of the Refunded Bonds then outstanding file a request for removal in writing with the Issuer, but the Escrow Agent shall remain in office until the appointment and taking office of a successor Escrow Agent in accordance with the provisions of this Agreement. A copy of any such bondowners' request shall be delivered by the Issuer to the Escrow Agent. (b) The Escrow Agent may also be removed at any time for any breach of trust or for any violation of this Agreement by a court of competent jurisdiction upon the application of the Issuer or the owners of not less than fifty percent (50%) in aggregate principal amount of the Refunded Bonds then outstanding. (c) The Escrow Agent shall be deemed to have been removed if it is dissolved, becomes incapable of exercising the powers of Escrow Agent hereunder or is taken over by any governmental action. (d) Prior to the removal of the Escrow Agent, all fees and expenses of the Escrow Agent, including, without limitation, if such removal is without reasonable cause, reasonable attorney's fees and expenses, shall have been paid to the Escrow Agent. 6 Section 3.07. Successor Escrow Agent. (a) When the position of the Escrow Agent becomes or is about to become vacant, the Issuer shall appoint a successor Escrow Agent to fill such vacancy. (b) If no appointment of a successor Escrow Agent shall be made pursuant to the foregoing provisions of this Section, the owner of any Refunded!Bond then outstanding may, or any Escrow Agent retiring or being removed from such position shall, apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Upon the deposit by the retiring or removed Escrow Agent of all funds and securities held by it under the provisions hereof into the registry of such court, such retiring or removed Escrow Agent shall be relieved of all future duties hereunder. 4 1 (c) Any corporation or association into with the Escrow Agent may be converted or merged, or with which it may sell its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer shall be and become successor Escrow Agent hereunder without the necessity of any further act. Section 3.08. Limitation on Resignation or Removal. The Escrow Agent may not resign or be removed hereunder unless it also resigns or is removed as!Paying Agent forrthe Refunded Bonds. • ARTICLE IV MISCELLANEOUS Section 4.01. Amendments to this Agreement. This Agreement is made for the benefit of the Issuer and the owners from time to time of the Refunded Bands and it shall not be repealed, revoked, altered or amended without the written consent all such owners, the Escrow Agent and the Issuer; provided, however, that the Issuer and the Escrow Agent, may, without the consent of, or notice to, such owners, enter into such agreements supplemental to this Agreement as shall not adversely affect the exclusion from gross income for federal income tax purposes of the interest on the Refunded Bonds and the Note and the rights of such owners and as shall not be inconsistent with the terms and provisions of this Agreement, for any one or more of the following purposes: (a) to cure any ambiguity or defect or omission in this Agreement; (b) to grant to, or confer upon, the Escrow Agent for the benefit of the owners of the Note, any additional rights, remedies, powers or authority that may lawfully be granted to, or conferred upon, such owners or the Escrow Agent; and . i (c) to subject to this Agreement additional funds, securities or properties. 7 The Escrow Agent shall be entitled to rely exclusively upon an unqualified opinion of Moyle, Flanigan, Katz, Kolins, Raymond & Sheehan, P.A. or other nationally recognized bond counsel with respect to compliance with this Section, including the extent, if any, to which any change, modification, addition or elimination affects the rights of the owners of the Refunded Bonds, or that any instrument executed hereunder complies with the conditions and provisions of this Section. Section 4.02. Substitution of Securities. Notwithstanding the foregoing or any other provision of this Agreement, at the written direction of the Issuer and upon compliance with the conditions hereinafter stated, the Escrow Agent shall in simultaneous transactions, sell, transfer, otherwise dispose of or request the redemption of the Government Obligations held hereunder and to substitute therefor other Government Obligations, subject to the condition that such moneys or securities together with the interest or income thereof, shall be sufficient to pay, when due, the principal of, interest on and redemption premiums, if any, with respect to the Refunded Bonds. The Escrow Agent shall upon the written direction of the Issuer purchase such substituted securities with the proceeds derived from the sale, transfer, disposition or redemption of the Government Obligations held hereunder or from other moneys available. The transactions may be effected only if there shall have been obtained: (1) an opinion from Moyle, Flanigan, Katz, , Kolins, Raymond & Sheehan, P.A. or other nationally recognized bond counsel to the Issuer and the Escrow Agent to the effect that the disposition and substitution or purchase of such securities will not adversely affect the tax-exempt status of the interest on the Refunded Bonds and Note for federal income tax purposes; and (2) new cash flow schedules showing (i) the cash and Government Obligations to be on deposit in the Escrow Account upon making such substitution, (ii) the dates and amounts of maturing principal and interest to be received-by the Escrow Agent from such Government Obligations, and (iii) that the cash on hand in the Escrow Account plus cash to be derived from the maturing principal and interest of such Government Obligations shall be sufficient to pay when due all remaining debt service payments on the Refunded Bonds. If securities are substituted pursuant to this Section 4.02, any surplus moneys resulting from the sale, transfer, other disposition or redemption of the Government Obligations held hereunder and the substitutions therefor of Government Obligations, as shown in the verification referred to in (1) above shall be released from the Trust Estate created hereunder and shall be transferred to the Issuer, and shall be used by the Issuer in the following order of priority (i) if the Note shall be outstanding, to pay principal and/or interest on the Note, and (ii) otherwise, for any lawful purpose of the Issuer approved in writing by nationally recognized bond counsel. Section 4.03. Severability. If any one or more of the covenants or agreements provided in this Agreement should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed to be separate and shall in no way affect the validity of the remaining provisions of this Agreement. Section 4.04. Agreement Binding. All the covenants, promises and agreements in this Agreement contained by or on behalf of the Issuer or by or on behalf of the Escrow Agent shall bind and inure to the benefit of their respective successors and assigns, and to the benefit of the owners of the Refunded Bonds, whether so expressed or not. 8 Section 4.05. Termination. This Agreement shall terminate when all transfers and payments required to be made by the Escrow Agent under the provisions hereof shall have been made. Section 4.06. Governing Law. This Agreement shall be`governed by the applicable laws of the State of Florida. Section 4.07. Execution by Counterparts. This Agreement may be executed in several counterparts, each of which shall be regarded for all purposes as an original, and all of which, together, shall constitute and be but one and the same instrument. Section 4.08. Notices. Any notice, demand, direction, request or other instrument authorized or required by this Agreement to be given shall be deemed sufficiently given on the day sent by registered mail, return receipt requested, addressed as follows or to such other address furnished in writing by any of the following to all of the following: If to the Issuer: Finance Director City of Boynton Beach, Florida 100 East Boynton Beach Boulevard Boynton Beach, Florida 33425 If to the Escrow Agent: First Union National Bank Corporate Trust Department FL6065 First Union Financial Center 200 South Biscayne Boulevard 14th Floor Miami, Florida 3313,1 IN WITNESV„ ; tEOF, the Issuer and the Escrow?Agent have duly executed this Agreement dated,O�f-cSept ioq 15, 2000. Attest: ® CITY OF BOYNTON BEACH, FLORIDA sem ° c By /1 /�./�'�',TV; v•.��__ By: . / Clerk Mayo FIRST UNION NATIONAL BANK, as Escrow Agent By: Vice-President r i 9 EXHIBIT A GOVERNMENT OBLIGATIONS TO BE DEPOSITED INTO ESCROW DEPOSIT TRUST FUND Maturity Date Coupon Principal Type CUSIP 10/31/2000 4.00% $5,797,000 1 912827 4T6 Type: =U.S. Treasury Note EXHIBIT B REDEMPTION NOTICE CITY OF BOYNTON BEACH, FLORIDA GENERAL OBLIGATION REFUNDING BONDS, SERIES 1992 Maturity CUSIP Nos.* (November 1) • 2001 103565 DF1 2002 103565 DG9 2003 103565 DH7 2004 103565 DJ3 2009 103565 DL8 Notice is hereby given that the bonds of the above issue maturing on and after November 1, 2001 are called for payment and redemption on November 1, 2000 (the "Redemption Date") at a redemption price of 101% of the principal amount thereof plus accrued interest thereon to the Redemption Date. The Bonds so called for redemption should be presented for payment and redemption at the office of the Paying Agent set forth below, on or after November 1, 2000, and will cease to bear or accrue interest after that date, whether or not so presented. First Union National Bank First Union Customer Information Center Corporate Trust Operations 1525 West W.T. Harris Boulevard, 3C3 Charlotte, N.C. 28262-1153 1-800-665-9343 Withholding of 31% of gross redemption proceeds of any payment made within the United States of America may be required by the Interest and Dividend Tax Compliance Act of 1983 unless the Paying Agent has the correct taxpayer identification number(social security or employer identification number) or exemption certificate of the payee. Please furnish a properly completed IRS Form W-9 or exemption certificate or equivalent when presenting your securities for redemption. DATED this _ day of , 2000. FIRST UNION NATIONAL BANK * CUSIP numbers are included solely for the convenience of the owners, and no representation is made as to the correctness of the CUSIP numbers indicated in this Redemption Notice. B-1 EXHIBIT C REFUNDED BONDS DEBT SERVICE SCHEDULE Called Premium Date Principal Principal 1% Interest Total 11/01/00 $ 735,000.00 $4,960,000.00 $ 49,600.00 $168,721.25 $5,913,321.25 C-1 EXHIBIT D ESCROW AGENT FEES AND EXPENSES (i) In consideration of the services rendered by the Escrow Agent, the Issuer agrees to pay the Escrow Agent a one-time fee of$1000.00 to be paid at closing and not from the escrow fund for all services to be incurred as Escrow Agent in connection with such services, including the cost of giving the notice of redemption. (ii) The Issuer shall also reimburse the Escrow Agent for any extraordinary expenses incurred by it in connection herewith. The term "extraordinary expenses" includes (a) expenses arising out of the assertion of any third party to any interest in the Escrow Deposit Trust Fund or any challenge to the validity hereof, including reasonable attorneys' fees, (b) expenses relating to any substitution under Section 4.02 hereof, and (c) expenses (other than ordinary expenses)not occasioned by the Escrow Holder's misconduct or negligence. (iii) The fees and expenses payable by the Issuer under Sections (i) or(ii) shall not be paid from the Escrow Deposit Trust Fund, but shall be paid by the Issuer from legally available funds of the Issuer. G:\02345\30\Escrow draft 2.wpd D-1 MOYLE, FLANIGAN, KATZ, KOLINS, RAYMOND & SHEEHAN, P.A. ATTORNEYS AT LAW 625 North Flagler Drive-9th Floor West Palm Beach,Florida 33401-4025 P.O.Box 3888 West Palm Beach,Florida 33402-3888 Telephone:(561)659-7500 • Facsimile:(561)659-1789 • Other Offices: Tallahassee,FL MARK E.RAYMOND (850)681-3828 Direct Line: (561)822-0380 Palm Beach Gardens,FL E-mail:mraymond@moylelaw.com (561)625-6480 September 1, 2000 CERTIFIED MAIL. RETURN RECEIPT REQUESTED Division of Bond Finance State Board of Administration P.O. Drawer 13300 Tallahassee, Florida 32317-3300 Re: City of Boynton Beach $5,200,000 Promissory Note Ladies and Gentlemen: Notice is hereby given of the impending issuance by City of Boynton Beach, Florida (the "Issuer") of the above-referenced Note (the "Note") in the estimated principal amount set forth above. The Issuer expects to deliver the Note on or about September 15, 2000. Sincerely, . MOYLE, FLANIGAN, KATZ, KOLINS, RAYMOND &SHEEHAN, P.A. Mark E. Raymond . MER/ams G:\01345\30\all closing docs(1).wpd $4,986,434.06 CITY OF BOYNTON BEACH, FLORIDA PROMISSORY NOTE GENERAL CERTIFICATE OF THE ISSUER We,the undersigned Mayor(the "Mayor"), City Manager("City Manager") and Clerk(the "Clerk") of the City,of Boynton Beach, Florida (the "Issuer"), DO HEREBY CERTIFY as follows: 1. We are the qualified and acting Mayor, City Manager and Clerk of the Issuer. 2. The following is a correct listing of the names of the members of the City Commission(the("Governing Body") of the Issuer, and the dates of expiration of their respective terms of office: Expiration Name of Term (March) Gerald Broening, Mayor 2001 Ronald Weiland, Vice-Mayor 2001 William A. Sherman, Mayor pro tem 2001 Bruce Black / 2002 Charlie Fisher 2002 3. All of the above members of the Governing Body have duly filed their oaths of office and such of them as are required by law to file bonds or undertakings have duly filed such bonds or undertakings in the amount and manner required by law. 4. James A. Cherof, Esq. is the duly appointed Attorney for the Issuer and accordingly is entitled to sign opinions and other documents pertaining to the Governing Body, the Issuer, and the Issuer's $4,986,434.06 Promissory Note, dated September 15, 2000 (the "Note"). The law firm of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., is bond counsel for the Issuer, and accordingly is entitled to sign opinions and other documents as bond counsel. 5. The Mayor has signed the Note by his manual signature, and the manual signature appearing on the Note and the manual signature at the end of this certificate are each the true and lawful signature of the Mayor. 6. The seal of the Issuer was impressed upon the Note, and attested by the manual signature of the Clerk. Such seal and signature appearing on the Note and the manual signature of the Clerk and the impression of the seal of the Issuer at the end of this certificate constitute the true and lawful seal of the Issuer and the signature of the Clerk, respectively. G:\02345\30\all closing docs(2).wpd 7. Resolution No. R 00-124 (hereinafter referred to as the "Resolution"), as certified by the Clerk as of the date hereof, has not been modified, amended, altered or repealed in any way after its date of adoption, and is now in full force and effect. 8. The Note, as executed and delivered,'is in substantially the form approved by the Governing Body in the Resolution. 9. The Issuer has authorized by all necessary action the adoption and due performance of the Resolution and the execution, delivery and due performance of the' Escrow Deposit Agreement and Note and, to the best of our knowledge, any and all such other agreements and documents as may be required to be executed, delivered and received by the Issuer to carry out, give effect to and consummate the transactions contemplated by the Resolution. 10. ' No litigation is pending or, to our knowledge, threatened, in or before any agency, court or tribunal, state or federal (i) to restrain or enjoin the issuance, delivery or validity of the Escrow Deposit Agreement or Note or (ii) in any way contesting or affecting the validity of Escrow Deposit Agreement or the Note or the Resolution or the application of the proceeds of the Note or the levy or collection or distribution of the ad valorem taxes pledged to repayment of the Note, or the pledge thereof as security for the Note, or (iii) contesting the power of the Issuer or its authority for the issuance of the Note or the adoption of the Resolution or the approval, execution, validity, or enforceability of any agreements, including the Escrow Deposit Agreement (as defined in the Resolution), with respect thereto or (iv) contesting the tax-exempt status of interest on the Note. 11. No litigation is pending or, to our knowledge, threatened, (i) against the Issuer or involving any of the property, assets or operations under the control of the Issuer which involves the possibility that a judgment or liability, not fully covered by insurance or adequate established reserves,,may be entered or imposed against the Issuer or which may result in any material adverse change in the business, properties or assets or in the condition, financial or otherwise, of the Issuer, and (ii) which would reasonably be anticipated to have a material and adverse effect upon the security provided for the Note pursuant to the Resolution. 12. No litigation is pending or, to our knowledge, threatened to contest the creation, organization, existence or corporate powers of the Issuer, or of the Governing Body, or the title to office of its present members, or the members at any time material to the issuance of the Note, or of any other officer of the Issuer. 13. The execution, delivery, receipt and due performance of the Escrow Deposit Agreement and Note and the other agreements contemplated by the Resolution, under the circumstances contemplated thereby and the Issuer's compliance with the provisions thereof(i) to the best of our knowledge will not conflict with or constitute on the Issuer's part a material breach of or a default under any existing State of Florida constitutional provision, law, court or administrative regulation, decree or order and (ii) will not conflict with or constitute on the Issuer's part a material breach of or a default under any agreement, indenture, bond, note, lease or other instrument to which the Issuer is subject or by which the Issuer is or may be bound, and G:\02345\30\all closing docs(2).wpd -2- to the best of our knowledge no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument, nor will such execution, delivery, adoption, or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the Issuer except as provided by the Note and the Resolution. 14. Attached hereto as Exhibit A is a copy of the Note, in registered form, which specimen is identical in all respects to the Note this date delivered to the Original Purchaser (as defined in the Resolution). 15. To the best knowledge of the undersigned no members of the Governing Body have, while meeting together with any other member or members of the Governing Body other than at public meetings of the Governing Body, reached any conclusion as to the actions taken by the Governing Body with respect to the Note, the security therefor, or the application of the proceeds therefrom, or any other material matters with respect to the Note. 16. The undersigned do not, and to the best of their knowledge and belief no member of the Governing Body does, have or hold any employment or contractual relationship with any business entity which is purchasing the Notes from the Issuer except as fully and fairly disclosed in compliance with the provisions of Section 112.3143, Florida Statutes. 17. The interest rate on the Note does not exceed the rate permitted by Section 215.84, Florida Statutes. 18. The Note bears a lower net average interest cost rate than the 1992 Bonds (as defined in the Resolution) and the Issuer will realize present value debt service savings as a result of the refunding of the 1992 Bonds, calculated in accordance with Section 132.35(2)(a), Florida Statutes. The principal amount of the Note does not exceed an amount sufficient to pay the sum of the principal amount of the 1992 Bonds outstanding on the date hereof, the aggregate of unmatured interest and premium payable on the 1992 Bonds to and including November 1, 2000, on which date the 1992 Bonds will be discharged, and the costs and expenses incidental to the issuance of the Note, all in accordance with Section 132.35, Florida Statutes. The sum of the present value of the total payments of both principal and interest to become due on the Note is less than the present value of the principal and interest payments scheduled to have become due on the 1992 Bonds. G:\02345130\all closing docs(2).wpd -3 IN WITNESS WHEREOF, we have hereunto set our hands and the official seal of the Issuer, and have indicated our respective official titles, all as of the 15th day of September, 2000. Signature Official Title i Mayor Gerald :r nin 1)"42- 1 City Manager Kurt Bressner � .!.:;��_: I _ City Clerk Suzy{ a Kruse `®�0�11111 R I I I 11B/s (y Bic tf eal'}F\10 I "Z1811119100' G:\02345\30\all closing docs(2).wpd -4 September 15, 2000 $4,986,434.06 CITY OF BOYNTON BEACH, FLORIDA PROMISSORY NOTE KNOW ALL MEN BY THESE PRESENTS that the City of Boynton Beach, Florida (the "City"), a municipal corporation and political subdivision of the State of Florida created and existing pursuant to the Constitution and the laws of the State of Florida, for value received, promises to pay to the order of Bank of America, N.A. or registered assigns (hereinafter, the "Owner"), the principal sum of $4,986,434.06 together with interest on the principal balance outstanding at the rate per annum of 5.10% (subject to adjustment as hereinafter provided) based upon a year of 360 days consisting of twelve 30-day months. Principal of and interest on this Note are payable in lawful money of the United States of America at such place as the Owner may designate to the City in writing, in the following manner: Interest shall be payable on the outstanding principal amount of this Note on the first day of each May and November, commencing May 1, 2001. Installments of principal shall be due hereon on the first day of each May and November, commencing May 1, 2001, in accordance with the table set forth below: Principal Installment Installment Due Date Payable 5/1/01 $318,763.51 11/1/01 318,763.57 5/1/02 430,689.16 11/1/02 430,689.15 5/1/03 454,173.73 11/1/03 454,173.73 5/1/04 482,026.72 11/1/04 482,026.71 5/1/05 407,763.22 11/1/05 407,763.22 5/1/06 92,350.13 11/1/06 92,350.12 5/1/07 99,178.29 11/1/07 99,178.29 5/1/08 100,819.82 11/1/08 100,819.81 5/1/09 107,452.44 11/1/09 107,452.44 The entire unpaid principal balance, together with all accrued and unpaid interest thereon, shall be due and payable in full on November 1, 2009. All payments by the City pursuant to this Note shall apply first to accrued interest, then to other charges, due the Owner, and the balance thereof shall apply to the principal sum due. The principal of this Note may not be prepaid at the option of the City prior to maturity. If any payment hereunder is not made when due, the same shall constitute a default, and if such payment is not made within ten Business Days after written demand therefor by the Owner, the Owner may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such default and acceleration, the City shall also be obligated to pay, from lawfully available funds, all costs of collection and enforcement hereof, including such fees as may be incurred on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes, and proceedings seeking adequate protection or relief from the automatic stay. To the extent permitted by law, interest at the lesser of 12% per annum or the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of a default described in the preceding paragraph, irrespective of a declaration of acceleration of maturity. The City, to the extent permitted by law, hereby waives presentment, demand, protest and notice of dishonor. The City, to the extent permitted by law, and the Owner, by acceptance hereof, hereby waive trial by jury in any litigation commenced by either in respect hereof or_of the Resolution (hereinafter defined). The full faith, credit and taxing power of the City are irrevocably pledged to the prompt payment of the principal of and interest on this Note. The City has covenanted in the Resolution (hereinafter defined) that while this Note is outstanding there shall be assessed, levied and collected a tax, on all taxable property within the corporate limits of the City (excluding exemptions as required by applicable law), sufficient in amount to pay the principal of and interest on this Note as the same shall become due. This Note is issued pursuant to Resolution No. R00-124 duly adopted by the City on September 6, 2000, as from time to time amended and supplemented (herein referred to as the "Resolution"), and is subject to all the terms and conditions of the Resolution. All terms, conditions and provisions of the Resolution are by this reference thereto incorporated herein as a part of this Note. . This Note may be exchanged or transferred: by the Owner hereof but only upon the registration books maintained by the City and in the manner provided in the Resolution. It is hereby certified, recited and 'declared that all acts, conditions and prerequisites required to exist, happen and be performed precedent to and in the execution, the delivery and the issuance of this Note do exist, have happened and have been performed in due time, form and 2 manner as required by law, and that the issuance of this Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. IN WITNESS WHEREOF, City of Boynton Beach, Florida has caused this Note to be executed in its name by the manual signature of its Mayor and attested by the manual signature of its Clerk, and its seal to be impressed hereon, all this 15th day of September, 2000. CITY OF BOYNTON BEACH, FLORIDA [SEAL] By: Mayor Attest: City Clerk G:\02345\30\Promissory Note(2).wpd 3 DIRECTION AND CERTIFICATION OF FINANCE DIRECTOR I, Diane Reese, Finance Director of Boynton Beach, Florida(the "Issuer"), do hereby certify and direct, in connection with the issuance by the Issuer of its $4,986,434.06 Promissory Note dated September 15, 2000 (the "Note"), as follows: ' (1) I am the Chief Financial Officer of the Issuer, and I am qualified and authorized to give this Certificate on behalf of the Issuer pursuant to Section 132.39, Florida Statutes. (2) The Issuer has issued the Note to provide for the refunding of (i) $4,960,000 principal amount of the Issuer's General Obligation Refunding Bonds, Series 1992 maturing in the years 2001 through 2009, inclusive (the "Refunded Bonds"). (3) The terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in Sections 132.33-132.47, Florida Statutes, the "Advance Refunding Law." (4) (i) The Present Value of the total payments of both principal and interest to become due on the Note, is less than (ii) the Present Value of the principal and interest.payments to become due at their stated maturities, or earlier mandatory redemption dates, on the principal amount of Refunded Bonds which are outstanding as of the date hereof. (5) The Net Average Interest Cost Rate on the Bonds is 5.10%. The Net Average Interest Cost Rate on the Refunded Bonds is 5.7716%. Thus, the Note is being issued at a lower Net Average Interest Cost Rate than the Refunded Bonds. (6) Attached hereto are schedules demonstrating the accuracy of the statements of paragraphs (4) and (5) hereof. (7) " I hereby direct Bank of America, N.A. to fund the purchase price of the Note, $4,986,434.06 by making the transfers described on the attached Exhibit A on September 15, 2000. I will cause the Issuer to make the transfer described on Exhibit B on September 15, 2000. DATED this 15th day of September, 2000. Diane Reese Finance Director G:\02345\30\all closing docs(2).wpd SEP 07 2000 11:00 FR h11:1TIQNSERNK 813 224 3704 TO 915616591789 P.02/09 • - SOURCES AND USES OF FUNDS City of Boynton Beach,Florida • :: 'a • Bank of America,NA.Ler 'Refunding ofGeneral Obligation Refundin?,Bonds.Series 1992 Sources: 33ond Proceeds: = . par pniqunt' 4,986,434.06 ' . " ' Other Sources of Funds: =- Debt Service Funds • 903,721.25 5.890,155.31 Uses: Refunding Escrow Deposits; Cash Deposit 381.25 ()peas Ivicrket I'urcheseS 5.871,274.06 • 71,655,31 Delivery Date Expenses: • Cos;of'issuance 18.500.00 5,890,155.31 • • • • • • _ i ., e Sep 7,2000 1035 am Prepared by Banc of America Securities ' - (Finance 4.311 Boynton Beach:00-2000,2000) Page 1 SF,.P 07 2000 11000 FR NPTTON5131:NK 813 224 37p4 TO 915616591789 (?,03/09 9. .1 vi $i NY OF REFUND1NG RESULTS City of'Boynton Beach,Florida • Bank of America,N.A.Loan :. ;I°funding of 9iencra}Obligation Refundinf Bonds,Series 1992• Dated Date ' 09/15/2000 Delivery Dare 09/15/2000 • Arbitrage yield ` 5.09690601° Escrow yield - 5.611508% Bond Par Amount: 4,986,434.06 True Interest Cost ' ' 5.096906% , Net Interest Cost 1 5.100000010'. Average Coupon-i- • 5.100000% Average Life _ 3.701 Par amount of refunded bonds' 5,695,000.00 Average coupon of rgfvnded bonds f 6.081401% Average life of reft44cd bonds'; 3.382 PV of prior debt to 09/15/2000 0 5.096906% ` 5.984,506.49 Net PV Savings • ' a :° 94,351.18 Percentage savings of refunded bonds 1.656737% Percentage savings of refunding bonds 1.892157% . , i • Sep 7,2000 10:35 am Prepared by Bu nc of America Securities . (Finance 4311 Boynton Beach:GO.2000,2000) Page 2 SEP.07 2000 pi. FR NRTION,SpRic 8132243704 TO 9156165911789 P,04/09 :.t-_ } S _ • ; St�vINGS • City of Boynton Beach;Florida pw k of America,N.A.Loge gelainding o'ceneral 4bliedon Refunding Bonds,Series 1992 Present Value.' prior' Refunding : to09/15/2000 , , 0a4 i=; ",. A4'bi+ervifc pot Scrvic f Savings @ 5.0969061% 11/01/2000 + 903,721.25 903,721.25• 897,927.97 11/01/2001 1076,650.00 916,201.68 160,448.32 ' 143,646.74 11/01/2002 ; 1,072,190.00 ;-: 1,071189.99 - 0.01 (9,513.25) • 11/01/2003 1,074'630.00 1{074,629.99 0.01 . (9,597.12) 11/01/2004 : 1,083,300.00 = 1,083,299.99 0.01 (9,754.52) 11/01/2005 ,_. .c 887500.00'. 887,499.99 0.01 (7,878.95) . 11/0I/2006 223,125.00 11; 223,124.99 0.01 (1,660.14) 11/01/2007 a 227,187.50 227,187.49 0.01 (1,713.72) 11/01/2008 .` 220,312.50 220.312.49 0.01 (1,672,28) 11/01/2009 : j: 223,125.00 : 223,124.99 0.01 (1,712.29) 6,991,741.25 5,927,571.61 V 1,064,169.64 ' 998.072.43 i; Savings Summary • PV of savings from cash flow 998,072.43 Less:Prior funds On hand (903,72I.25) Savings 94,351.18 • • • • ; :, Sep 7,2000 10:3S ani,Prepared by Banc cif. r,rica 8e. rites (Finance 4.311.Boynton Beach:G0-2000,2000) Page 3 EXHIBIT A TRANSFERS TO BE MADE BY BANK OF AMERICA, N.A. ON SEPTEMBER 15, 2000 1. Wire to: First Union National Bank $4,968,934.06* Charlotte, NC ABA# 053000219 D/500000001649 *$1,000.00 is the Escrow Agent Further credit: fee and the balance is deposited A/C No. 4072002441 to the Escrow Deposit Trust Fund A/C City of Boynton Beach, Florida Attention: CT #BR40850 2. Wire to: Bank of America, N.A. 5519 West Idlewild Avenue Tampa, FL 33614 ABA (R/T#) 063100277 Credit Account: Moyle, Flanigan, Katz, Kolins, Raymond & Sheehan, P.A., Firm Account Account Number: 1600160212 $10,000.00 3. Wire to: First Union National Bank Jacksonville, Florida ABA#063000021 For credit to the account of Holland & Knight LLP Account#2090002390441 Please reference Client No. 18260-Boynton Beach $ 2,500.00 4. Send check to: Banc of America" ecurities LLC Attn: Scott B. Harris 2nd Floor 400 North Ashley Drive, FL1-010-02-08 Tampa, FL 33602 $ 2,500.00 5. Wire to: Northern Trust Bank of Florida 2601 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Acct: 1310000582 Account Name: Josias, Goren, Cherof, Doody & Ezrol Trust Account ABA# 066-0096-50 $ 2,500.00 Total: $4,986,434.06 G:\02345\30\exhibit a.wpd EXHIBIT B Wires by Boynton Beach, Florida $ 903,721.25 Wire to: First Union National Bank Charlotte, NC ABA # 053000219 D/500000001649 Further credit: A/C No. 4072002441 A/C City of Boynton Beach, Florida Attention: CT # BR40850 G:\02345\30\exhibit b.wpd $4,986,434.06 CITY OF BOYNTON BEACH, FLORIDA PROMISSORY NOTE RECEIPT FOR NOTE Bank of America, N.A. DOES HEREBY ACKNOWLEDGE receipt from City of Boynton Beach, Florida of the City's Promissory Note, dated September 15, 2000, in the aggregate principal amount of$4,986,434.06. DATED the 15th day of September, 2000. BANK OF AMERICA, N.A. By: / Authorized Representative G:\02345\30\all closing docs(2).wpd MOYLE, FLANIGAN, KATZ, RAYIVIONI) & SHEEHAN, P.A. ATTORNEYS AT LAW 625 North Flagler Drive-9th Floor West Palm Beach,Florida 33401-4025 P.O.Box 3888 West Palm Beach,Florida 33402-3888 Telephone:(561)659-7500 Facsimile:(561)659-1789 MARK E.RAYMOND Direct Line: (561)822-0380 Tallahassee Office E-mail:mraymond@moylelaw.com (850)681-3828 September 15, 2000 CERTIFIED MAI . Division of Bond Finance RETURN RECEIPT REQUESTED State Board of Administration P.O. Drawer 13300 Tallahassee, Florida 32323-3300 RE: City of Boynton Beach, Florida $4,986,434.06 Promissory Note Ladies and Gentlemen: Enclosed herewith please find Form BF-2003/2004-B for the above-referenced financing. No disclosure document was prepared for this financing. If you would like any further information in regard to this matter, please do not hesitate to call. Very truly yours, Mark E. Raymond MER/ams G:\02345\30\all closing docs(2).wpd STATE OF FLORIDA DIVISION OF BOND FINANCE LOCAL BOND MONITORING SECTION This form represents an update and compilation of the BF2003, BF2004-A and BF2004-B forms. * Bond Information forms , (BF2003) are required to be completed by local governments pursuant to Chapter 19A-1.003, Florida Administrative Code (F.A.C.) . * Bond Disclosure forms BF2004-A (Competitive Sale) or BF2004-B (Negotiated Sale) as required to be filed with the Division within 120 days of the delivery of the issue pursuant to Sections 218.38 (1) (b) 1 and 218.38 (1) (c) l, Florida Statutes (F.S.) , respectively. * Final Official Statements, if prepared, are required to be submitted pursuant to Section 218.38 (1) , F.S. * Please complete all items applicable to the issuer as provided by the Florida Statutes. * PURSUANT TO SECTION 218.369, F.S. , ISSUERS OF BOND ANTICIPATION NOTES ARE EXEMPT FROM THESE FILING REQUIREMENTS. BF2003 BOND INFORMATION FORM PART I. ISSUER INFORMATION 1. NAME OF GOVERNMENTAL UNIT: City of Boynton Beach, Florida 2. MAILING ADDRESS OF GOVERNMENTAL UNIT OR ITS MANAGER: 100 East Boynton Beach Boulevard, Boynton Beach, Florida 33425 3. COUNTY(IES) IN WHICH GOVERNMENTAL UNIT HAS JURISDICTION: Palm Beach 4. TYPE OF ISSUER: COUNTY X CITY _ AUTHORITY INDEPENDENT SPECIAL DISTRICT _ DEPENDENT SPECIAL DISTRICT SPECIFY OTHER PART II. BOND ISSUE INFORMATION 1. NAME OF BOND ISSUE: Promissory Note 2. AMOUNT ISSUED: $ 4, 986,434.06 3 . AMOUNT AUTHORIZED:$ 4_ 986,434.06 4. DATED DATE: 9/15/00 5. SALE DATE: 9/15/00 6. DELIVERY DATE: 9115/00 7. LEGAL AUTHORITY FOR ISSUANCE: FLORIDA STATUTES Ch. 166; Ch. 132 SPECIAL ACTS OTHER 8. TYPE OF ISSUE: X GENERAL OBLIGATION SPECIAL ASSESSMENT SPECIAL OBLIGATION _REVENUE _COP(CERTIFICATE OF PARTICIPATION) LEASE-PURCHASE _BANK LOAN/LINE OF CREDIT 9. A. IS THIS A PRIVATE ACTIVITY BOND (PAB) ? YES X NO B. 1. IF YES, DID THIS ISSUE RECEIVE A PAB ALLOCATION? YES NO 2. IF YES, AMOUNT OF ALLOCATION: $ G:\02345\30\all closing docs(2).wpd 10. SPECIFIC REVENUE(S) PLEDGED: (1) PRIMARY Ad Valorem Taxes (2) SECONDARY (3) OTHER(S) 11. A. PURPOSE(S) OF THE ISSUE: (1) PRIMARY Refunding (2) SECONDARY (3) OTHER(S) B. IF PURPOSE IS REFUNDING, COMPLETE THE FOLLOWING: (1) FOR EACH ISSUE REFUNDED LIST: NAME OF ISSUE, DATED DATE, ORIGINAL PAR VALUE (PRINCIPAL AMOUNT) OF ISSUE, AND AMOUNT OF PAR VALUE (PRINCIPAL AMOUNT REFUNDED. General Obligation Refunding Bonds, Series 1992; 1/1/92; 10, 075,000; 5,695,000 (2) REFUNDED DEBT"HAS BEEN: _RETIRED OR X DEFEASED (3) A. DID THE REFUNDING ISSUE CONTAIN NEW MONEY? YES X NO B. IF YES, APPROXIMATELY WHAT PERCENT OF PROCEEDS IS NEW MONEY? % 12. TYPE OF SALE: _COMPETITIVE BID NEGOTIATED X NEGOTIATED PRIVATE PLACEMENT 13. BASIS OF INTEREST RATE CALCULATION, I.E. , INTEREST RATE USED TO STRUCTURE THE BOND ISSUE: NET INTEREST COST RATE (NIC) 5.10 % TRUE INTEREST COST RATE (TIC) CANADIAN INTEREST COST RATE (CIC) % ARBITRAGE YIELD (ARBI) SPECIFY OTHER: 14. INSURANCE/ENHANCEMENTS: _AGIC AMBAC _CLIC _CLIC _FGIC _FSA HUD MBIA NGM _LOC(LETTER OF CREDIT) SPECIFY OTHER X NOT INSURED 15. RATING(S) : MOODY'S S&P FITCH _DUFF&PHELPS SPECIFY OTHER X NOT RATED 16. DEBT SERVICE SCHEDULE: ATTACH COMPLETE COPY OF SCHEDULE PROVIDING THE FOLLOWING INFORMATION: MATURITY DATES (MO/DAY/YR) COUPON/INTEREST RATES ANNUAL INTEREST PAYMENTS PRINCIPAL (PAR VALUE) PAYMENTS MANDATORY TERM AMORTIZATION - 17. LIST OR ATTACH OPTIONAL REDEMPTION PROVISIONS: May not be prepaid 18. PROVIDE THE NAME AND ADDRESS OF THE SENIOR MANAGING UNDERWRITER OR SOLE PURCHASER. Bank of America, N.A. 625 North Flagler Drive; 9th Floor West Palm Beach, FL 33401 G:\02345\30\all closing docs(2).wpd 2 19. PROVIDE THE NAME(S) AND ADDRESS (ES) OF ANY ATTORNEY OR FINANCIAL CONSULTANT WHO ADVISED THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE. NO BOND COUNSEL X NO FINANCIAL ADVISOR NO OTHER PROFESSIONALS BOND COUNSEL(S) : Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. 625 North Flagler Drive, 9th Floor West Palm Beach, FL 33401 • FINANCIAL ADVISOR(S) /CONSULTANT(S) : OTHER PROFESSIONALS: James A. Cherof, Esq. City Attorney 3099 East Commercial Blvd. Suite 200 Ft. Lauderdale, FL 33308 20. PAYING AGENT X NO PAYING AGENT 21. REGISTRAR X NO REGISTRAR 22. COMMENTS: None PART III. RESPONDENT INFORMATION FOR ADDITIONAL INFORMATION, THE DIVISION SHOULD CONTACT: Name and Title Mark E. Raymond, Bond Counsel Phone 561-822-03.8. 0 Company Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. INFORMATION RELATING TO PARTY COMPLETING THIS FORM (If different from above) : Name and Title Phone Company Date Report Submitted 9/15/00 BF2004-A and BF2004-B Note: THE FOLLOWING ITEMS ARE REQUIRED TO BE COMPLETED IN FULL FOR ALL BOND ISSUES EXCEPT THOSE SOLD PURSUANT TO SECTION 154 PART III; SECTIONS 159 PARTS II, III OR V; OR SECTION 243 PART II, FLORIDA STATUTES. 23. ANY FEE, BONUS, OR GRATUITY PAID BY ANY UNDERWRITER OR FINANCIAL CONSULTANT, IN CONNECTION WITH THE BOND ISSUE, TO ANY PERSON NOT REGULARLY EMPLOYED OR ENGAGED BY SUCH UNDERWRITER OR CONSULTANT: X NO FEE, BONUS OR GRATUITY PAID BY UNDERWRITER OR FINANCIAL CONSULTANT (1) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: (2) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: G:\02345\30\all closing docs(2).wpd 3 • (3) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: (4) COMPANY NAME FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED: 24. ANY OTHER FEES PAID BY THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE, INCLUDING ANY FEE PAID TO ATTORNEYS OR FINANCIAL CONSULTANTS: NO FEES PAID BY ISSUER (1) COMPANY NAME Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. FEE PAID: $10,000.00 SERVICE PROVIDED or FUNCTION SERVED: Bond Counsel (2) COMPANY NAME James A. Cherof, Esq. FEE PAID:$ 2,500.00 SERVICE PROVIDED or FUNCTION SERVED: Issuer Counsel (3) COMPANY NAME Banc of America Securities LLC' FEE PAID:$2,500.00 SERVICE PROVIDED or FUNCTION SERVED: Analytical Services (4) COMPANY NAME Holland & Knight LLP FEE PAID: $2,500.00 SERVICE PROVIDED or FUNCTION SERVED: Bank Counsel PLEASE PROVIDE THE SIGNATURE OF EITHER THE CHIEF EXECUTIVE OFFICER OF THE GOVERNING BODY OF THE UNIT OF LOCAL GOVERNMENT OR THE GOVERNMENTAL OFFICER PRIMARILY RESPONSIBLE FOR COORDINATING THE ISSUANCE OF THE BONDS: /��/1 NAME (Typed/Printed:) : Diane Reese SIGNATURE: X�('vnl�. U�aasL, TITLE: Finance Director DATE: 9/15/00 BF2004-B ITEMS 25 AND 26 MUST BE COMPLETED FOR ALL BONDS SOLD BY NEGOTIATED SALE 25. MANAGEMENT FEE CHARGED BY UNDERWRITER: $ PER THOUSAND PAR VALUE. OR PRIVATE PLACEMENT FEE: $ X NO MANAGEMENT FEE OR PRIVATE PLACEMENT FEE 26. UNDERWRITER'S EXPECTED GROSS SPREAD: $ PER THOUSAND PAR VALUE. X NO GROSS SPREAD PART IV. RETURN THIS FORM AND THE FINAL OFFICIAL STATEMENT, IF ONE WAS PREPARED TO: Courier Deliveries: Mailing Address: Division of Bond Finance Division of Bond Finance State Board of Administration State Board of Administration 1801 Hermitage Blvd: , Suite 200 P.O. Drawer 13300 Tallahassee, FL 32308 Tallahassee, FL 32323-3300 Phone: 904/488-4782 FAX: 904/413-1315 REVISED Feb. 1998/bf0304/ G:\02345\30\all closing docs(2).wpd 4 • SEP 07 2000.1.1;01 FR NAT I ONSBANK ?i ? ?' 813 224 3704 TO' 915616591789 P.05/09 . _ • w 1 ) A="11,--• 1 1 •• 1 : . BQND'DEBT SLRVICE' ' i , j `. city of Boynton Beach.Flprida" ' Bank of America,N.A.Loan Refunding of Gencral OblUga ion Refunding Bonds,Series 1992 1'criod =;".r Annual Ending Principal ' Coupon interest• Debt ServiceDebt Service 11/01/2000 ;. I, .;: ; 05/01/2001 318,763:51 ``5:100% 15%64940 478,412.51 11/01/2001 ' . 318,763.57 : 5.100% 119,025.60 ' 437,789.17 916,20148 05/01/2002 430,689.16 5.100% 110,897.13 541,586.29 11/01/2002 ; '.430,68915' i 5:100% • 99,914.55 530403.70 1,072,I89.99 05/01/2003 454,173.73 5:100% 88,931,98 ' 543,105.71 11/01/2003 ' 454,173.73 5.100% 77,350.55 531.524.28• 1,074,629.99 05/01/2004 • , _ ;482,026.72 5.100% 65,769.12 547,795.84 " 11101/2004 482,026.71 `:'5,100% 53,477.44 535,504.15 1,083,299.99 05/01/2005 ' , 407,763:22 5.100% 41,185.76.. 448,948.98 . • 11/0I/2005 407,763.22 5.100% 30,787,80 438.55(02 887,499.99 05/01/2006 92,350.13 : •5.100% 20,389.83 1I2,739.96 11/01/2006 92,350.12 5.100% 18,034,91 110,385.03 223,124.99 05/01/2007 99,178.29 5.100% 15,679.98 114,858.27 11/01/2007 99,178.29 5.100% 13,150,93 112,329.22 227,187.49 " 05/01/2008 ' r 100,819.82 I 5.100% 10,621,89 111,441.71 5 11/01/2008 100,819,81 ' 5.100% 8,050.98 ' 108,870.79 220,312.49 05/01/2009 '107,452.44 ` 5.100% 5,480,07' 112,932.51 11/01/2009 107,452,44 5.100% 2.740.04 110,192.48 223,124.99 , 4,986,434.06 941,137,55 5,927.571.61 5,927,571.61 • 1; • • • y • : • • : 7 i s1 t } r.4i 1 t • Sep 7,2000 10;35 am,Prepared by Banc 9f America Securities (Finance 4.311 Boynton Beach:GO-2000,2000) Page 4 CERTIFICATE AS TO ARBITRAGE AND OTHER TAX MATTERS CITY OF BOYNTON BEACH, FLORIDA $4,986,434.06 PROMISSORY NOTE The undersigned, Diane Reese, Finance Director of the City of Boynton Beach, Florida (the "Issuer") an officer of the Issuer responsible for the issuance of the above-referenced Note (the "Note") makes the following certification as to the Issuer's expectations in connection with the issuance of the Note for purposes of Section 148 of the Internal Revenue Code of 1986 (the "Code") and the Treasury Regulations promulgated thereunder. The Note is being issued on September 15, 2000. The Note is payable from ad valorem taxes levied by the Issuer. Except for such taxes, no amounts are directly or indirectly pledged to pay principal or interest on the Bond, nor are there any other revenues that will be available to pay principal or interest on the Note even if the Issuer encounters financial difficulties. Amounts that the Issuer reasonably expects to be used to pay debt service on the Note constitute a fund used primarily to achieve a proper matching of revenues with principal and interest payments on the Note in each year, and such amounts will be depleted at least once each _ year. Amounts that the Issuer expects to use to pay principal and interest on the Note may be invested without regard to any yield limitation. Proceeds received by the Issuer from the issuance of the Note will be used on the date hereof to pay costs of issuance of the Note and the balance of such proceeds, together with other monies of the Issuer available for such purpose, will be placed in an escrow fund, invested, and used to pay the principal of, premium and interest on the Issuer's General Obligation Refunding Bonds, Series 1992 (the "Refunded Bonds") on November 1, 2000, on which date all of such proceeds will be expended. Other than amounts to be used to pay the principal, premium and interest on the Refunded Bonds, there are no unspent proceeds of the Refunded Bonds. Amounts that are to be used to pay principal, premium and interest on the Refunded Bonds may be invested without regard to any yield limitation. All proceeds of the Note will be spent within six months after the date hereof and the Note is exempt from the arbitrage rebate provisions of Section 148 of the Code. G:\02345\30\all closing docs(2).wpd Based upon the foregoing, it is not expected that the Note will be an "arbitrage bond" within the meaning of Section 148 of the Code and the Treasury Regulations promulgated thereunder. Dated this 15th day of September, 2000. CITY OF BOYNTON BEACH, FLORIDA By: I ,c,a.„,_e_, Diane Reese, Finance Director G:\02345\30\all closing docs(2).wpd 2 MOYLE, FLANIGAN, KATZ, RAYMOND & SHEEHAN, P.A. ATTORNEYS AT LAW 625 North Flagler Drive-9th Floor West Palm Beach,Florida 33401-4025. P.O.Box 3888 West Palm Beach,Florida 33402-3888 Telephone:(561)659-7500 Facsimile:(561)659-1789 MARK E.RAYMOND Direct Line: (561)822-0380 Tallahassee Office E-mail:mraymond@moylelaw.com (850) 681-3828 September 15, 2000 CERTIFIED MAIL RETURN RECEIPT REQUESTED Internal Revenue Service Center Ogden, Utah 84201 Re: $4,986,434.06 City of Boynton Beach, Florida, Promissory Note Dear Sir/Madam: Enclosed please find Form 8038-G which relates to the above-referenced bond. Please acknowledge your receipt of the enclosed by stamping the copy of the form included herewith, and return the stamped copy to us in the enclosed envelope. MOYLE, FLANIGAN, KATZ, RAYMOND & SHEEHAN, P.A. By: 0/ MER/ams Mark E. Raymond Enclosure G:\02345\30\all closing docs(2).wpd Form 8038-G Information Return for Tax-Exempt Governmental Obligations - Under Internal Revenue Code section 149(e) OMB No.1545-0720 (Rev. May 1999) ► See separate Instructions. Department the Treasuryviceprice Revenue Service Caution: Use Form 8038-GC if the issue is under$700,000. Gan Reporting Authority If Amended Return, check here ) - ❑ 1 Issuer's name 2 Issuer's employer identification number City of Boynton* Beach, Florida 59 6000282 3 Number and street(or P.O. box if mail is not delivered to street address) Room/suite 4 Report number 100 East Boynton Beach:Boulevard G2000- 1 5 City, town, or post office, state, and ZIP code • 6 Date of issue Boynton Beach, Florida 33425 9/15/00 7 Name of issue 8 CUSIP number Promissory Note None 9 Name and title of officer or legal representative whom the IRS may call for more information 10 Telephone number of officer or legal representative Diane Reese, Finance Director ( 561 ) 375-6000. MIEjj Type of Issue (check applicable box(es) and enter the issue price) See instructions and attach schedule 11 ❑ Education 11 12 ❑ Health and hospital 12 13 ❑ Transportation 13 14 0 Public safety 14 15 0 Environment(including sewage bonds) 151fi 16 ❑ Housing • 17 ❑ Utilities 17 18 ® Other. Describe - General Ob]igat-i on Refuncli ng 18 4,986,434 19 If obligations are TANs or RANs, check box - ❑ If obligations are BANs, check box ► El 20 If obligations are in the form of a lease or installment sale, check box ► El • . 'Pailten Description of Obligations. (Complete for the entire issue for which this form is being filed.) (a)Final maturitydate (c)Stated redemption (d)Weighted a Yield (b)Issue price price at maturity average maturity ( ) 21 11/1/2009 $ 4,986,434 $4,986,434 3.701 years 5.1 % Walt". Uses of Proceeds of Bond Issue (including underwriters' discount) 22 Proceeds used for accrued interest 22 23 Issue price of entire issue (enter amount from line 21, column (b)) 23 4,986,434 24 Proceeds used for bond issuance costs (including underwriters' discount) . 24 • 18,500 25 Proceeds used for credit enhancement 25 26 Proceeds allocated to reasonably required reserve or replacement fund 26 27 Proceeds used to currently refund prior issues 27 4,967,934 28 Proceeds used to advance refund prior issues 28 :•,:-: 29 Total (add lines 24 through 28) 29 4,986,434 30 Nonrefunding proceeds of the issue (subtract line 29 from line 23 and enter amount here). . 30 0 ;PaintV. Descristion of Refunded Bonds (Corn glete this •art onl for refunding bonds.) 31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ► 3.382 years 32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . 10. years 33 Enter the last date on which the refunded bonds will be called . 11/1/00 34 Enter the date(s) the refunded bonds were issued - 1/30/92 ' Miscellaneous 35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . . . 35 36a- Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract(see instructions) 36a b Enter the final maturity date of the guaranteed investment contract '- 37 Pooled financings:. a Proceeds of this issue that are to be used to make loans to other governmental units 37a b If this issue is a loan made from the proceeds of another tax-exempt issue, check box - ❑ and enter the name of the issuer and the date of the issue I. 38 If the issuer has designated the issue under section 265(b)(3)(B)(i)(III) (small issuer exception), check box . . . ti- IN 39 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box ❑ 40 If the issuer has identified a hedge, check box ® ❑ Under penalties of perjury.I declare that I have examined this return and accompanying schedules and statements,and to the best of my knowledge and belief,they are true,correct, and complete. Please Sign Here oat.. .4.`.e.- 9/15/00 Diane Reese, Finance Director Signature of issuer's authorized representative Date rType or print name and title For Paperwork Reduction Act Notice, see page 2 of the Instructions. cat. No. 637735 Form 8038-G (Rev. 5-99) $4,986,434.06 ' City of Boynton Beach, Florida Promissory Note DISCLOSURE STATEMENT OF BANK OF AMERICA, N.A. September 15, 2000 City of Boynton Beach, Florida Boynton Beach, FL Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. West Palm Beach, FL Ladies and Gentlemen: Pursuant to the provisions of Section 218.385, Florida Statutes, as amended, the undersigned (the "Original Purchaser") is providing the following information with respect to the arrangements made for the purchase of the above-referenced bond (the "Bond"). We represent to you as follows: (a) The nature and estimated amounts of expenses to be incurred by the Original Purchaser in connection with the issuance and sale of the Note is $-0-. (b) There were no "finders," as defined in Section 218.386, Florida Statutes, as amended, in connection with the issuance of the Note. (c) No discount or fee is expected to be realized by the Original Purchaser. (d) No management fee will be charged by the Original Purchaser. (e) No fee, bonus or other compensation will be paid by the Original Purchaser in connection with the issuance of the Note to any person not regularly employed or retained by the Original Purchaser. (f) The name and address of the Original Purchaser is: Bank of America, N.A. 625 North Flagler Drive 10th Floor West Palm Beach, FL 33401 G:\02345\30\all closing docs(2).wpd (g) The Issuer is proposing to issue $4,986,434.06 of debt for the purpose of refunding the Issuer's General Obligation Refunding Bonds, Series 1992. This debt is expected to be repaid over a period of approximately 10 years. At an interest rate of 5.10%, total interest paid over the life of the debt will be approximately $941,137.55. The source of repayment or security for the Note is ad valorem taxes of the Issuer levied specifically for such purpose. Authorizing this debt will result in no revenues of the Issuer not being available for other purposes of the Issuer. Very truly yours, BANK OF AMERICA, N.A. By: Authorized Officer G:\02345130\all closing docs(2).wpd 2 CITY OF BOYNTON BEACH,FLORIDA $24,400,000 UTILITY SYSTEM REVENUE REFUNDING BONDS SERIES 2002 FORWARD DELIVERY PURCHASE CONTRACT June 19, 2001 City of Boynton Beach, Florida Dear Ladies and Gentlemen: The undersigned,Banc of America Securities LLC(the"Underwriter"),offers to enter into this Forward Delivery Bond Purchase Contract(the"Purchase Contract")with the City of Boynton Beach, Florida(the"City"),which,upon acceptance ofthis offer by the City,will be binding upon the City and upon the Underwriter. This offer is made subject to written acceptance hereof by the City at or before 11:59 p.m.,Eastern Daylight Savings Time on the date hereof and,if not so accepted,will be subject to withdrawal by the Underwriter upon notice delivered to the City at any time prior to the acceptance hereof by the City. 1. Purchase and Sale. Upon the terms and conditions and in reliance on the representations, warranties,covenants and agreements set forth herein,the Underwriter hereby agrees to purchase from the City,and the City hereby agrees to sell and deliver to the Underwriter,all(but not less than all)of the $24,400,000 aggregate principal amount City of Boynton Beach,Florida Utility System Revenue Refunding Bonds,Series 2002(the "Bonds"). The Bonds shall be dated the Delayed Delivery Closing Date(as hereinafter defined). The purchase price for the Bonds shall be$24,903,165.40(the par amount ofthe Bonds less an Underwriter's discount of$96,380.00 and plus original issue premium of$599,545.40). The Bonds shall be as described in, and shall be issued and secured under the provisions of Resolution No.R92-96 ofthe City Commission,as amended and supplemented,particularly as amended and supplemented by Resolution No. R01-193 adopted by the City Commission on May 15, 2001 (collectively,the"Resolution"). The Bonds shall mature at the times and in the amounts and shall bear interest at the rates set forth in Appendix I hereto. The redemption provisions for the Bonds are set forth in Appendix I hereto. The information required by Sections 218.385(2),(3)and(6),Florida Statutes,to be provided to the City by the Underwriter is set forth in Appendix II hereto. 2. Delivery of Official Statements and Other Documents. (a)Prior to the date hereof,the City shall have provided to the Underwriter for its review the Preliminary Official Statement dated June 11, 2001 (the"Preliminary Official Statement")that the City deemed final as of its date,except for certain omissions in connection with the pricing of the Bonds as permitted by Rule 15c2-12 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the "Rule"). The Underwriter has reviewed such Preliminary Official Statement prior to the execution of this Purchase Contract. H (b) With its acceptance hereof,the City will deliver,at its expense,to the Underwriter within seven(7)business days of the date hereof(or within such shorter period as may be requested by the Underwriter in order to accompany any confirmation that requests payment from any customer to comply with Rule G-32 of the Municipal Securities Rulemaking Board)copies ofthe Final Official Statement(in such amount as may be mutually agreed upon),dated the date hereof,together with all supplements and amendments thereto,substantially in the form ofthe Prel. ' ary Official Statement,with only such changes therein as shall have been accepted by the Underwriter signed on behalf ofthe City by the City Manager. It is understood that in undertaking to deliver the Final Official Statement pursuant to this paragraph,the City is not taking any responsibility for the accuracy or c I mpleteness ofthe information in the Final Official Statement concerning Financial Guaranty Insurance ompany(the"Insurer")or The Depository Trust Company and its book-entry only system of registr tion of the Bonds. (c) The Underwriter shall give notice to the City on the date after which no participating underwriter,as such term is defined in the Rule,remains obligated to deliver Final Official Statements pursuant to paragraph (b)(4) of the Rule. (d) At Closing,the City shall deliver or cause to be delivered to the Underwriter copies ofthe Resolution, certified to by the City Clerk, all substi ntially in the form heretofore delivered to the Underwriter, with only such changes therein as agreed upon by the Underwriter. 3. Representation of the Underwriter as to Authority. (a) Banc of America Securities LLC is authorized to execute this Purchase Contract. (b) The Underwriter hereby represents tilt neither it nor any"person"or"affiliate"has been on the"convicted vendor list"during the past 36 months as all such terms are defined in Section 287.133, Florida Statutes. 4. Public Offering. The Underwriter agrees to make an offering of all the Bonds at not in excess of the initial public offering prices or lower than the yields set forth in Appendix I attached hereto. The Underwriter reserves the right to make concessions to dealers and to change such initial public offering prices or yields as the Underwriter reasonably deems necessary in connection with the marketing of the Bonds. The City hereby authorizes the Underwriter to u's.e the Final Official Statement and the information contained therein in connection with the offering antIi sale of the Bonds and ratifies and confirms its authorization ofthe use by the Underwriter prior to the date hereof of the Preliminary Official Statement in connection with such offering and sale. 5. Liquidated Damages. In the event that the Underwriter fails(other than for a reason permitted hereunder)to accept and pay for the Bond on the Delayed Delivery Closing Date as herein provided, the Underwriter shall pay the City on the Delayed Delivery Closing Date $1,500,000.00 (representing the approximate savings to the City on a p lesent value basis from the refunding plan described in the Final Official Statement)as and for full liquidated damages for such failure and for any defaults hereunder on the part of the Underwriter,and such payment shall constitute a full release and discharge of all claims by the City against the Underwriter arisinIg out of the transactions contemplated hereby. 2 6. City's Representations.Warranties and Agreements. By its acceptance hereof,the City represents and warrants to and agrees with the Underwriter that, as of the date hereof: (a) The City is duly and validly existing as a municipal corporation. (b) The City has full legal right, power and authority to issue and sell the Bonds as contemplated by the Resolution and the Final Official Statement. (c) The City has full legal right,power and authority to enter into this Purchase Contract and the Escrow Deposit Agreement(the"Escrow Agreement")between the City and The Bank of New York, as escrow agent(the"Escrow Agent")and to sell and deliver the Bonds to the Underwriter as provided herein; by official action of the City taken prior to or concurrently with the acceptance hereof, the Resolution has been duly adopted in accordance with the Constitution and the laws of the State of Florida, including the charter of the City(collectively the"Act");the Resolution is in full force and has not been rescinded;this Purchase Contract and the Escrow Agreement when executed by the City will be duly authorized and delivered and will constitute the legal,valid and binding obligations ofthe City enforceable in accordance with their terms, except as the enforcement thereof may be affected by bankruptcy, insolvency,or other laws or the application by a court of equitable principles generally affecting creditors' rights and except further as the enforcement of indemnification provisions ofthe Purchase Contract and the Escrow Agreement may each be limited by federal or state securities laws or public policy considerations; and the City has duly authorized and approved the consummation by it of all other transactions contemplated by the Resolution,the Final Official Statement,the Escrow Agreement and this Purchase Contract to have been performed or consummated at or prior to the Delayed Delivery Pre-Closing Date, as defined in Paragraph 7 of this Purchase Contract or the Delayed Delivery Closing Date. (d) The execution and delivery of the Bonds, this Purchase Contract and the Escrow Agreement and the adoption and implementation ofthe Resolution,and compliance with the obligations on the City's part contained herein and therein,will not conflict with or constitute a material breach of or material default under the Act or any federal or Florida constitutional provision,law,administrative regulation,judgment,decree,loan agreement,indenture,bond,note,resolution,agreement or other instrument to which the City is a party or to which the City or any of its properties or other assets is otherwise subject,nor will any such execution,delivery,adoption,implementation or compliance result in the creation or imposition of any material lien,charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or other assets of the City under the terms of any such provision,law,regulation,document or instrument,except as provided or permitted by the Bonds and the Resolution. (e) All approvals,consents and orders of any governmental authority,legislative body,board, agency or commission having jurisdiction which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by the City of its obligations under this Purchase Contract,the Escrow Agreement,the Resolution and the Bonds have been, or prior to the Delayed Delivery Closing Date will have been,duly obtained;provided,however,that this representation and warranty does not apply to such approvals,consents and orders as may be required under the Blue 3 Sky or securities laws of any state in connection with the offering and sale ofthe Bonds,or to such official action by the City which the Resolution contemplates is to be taken from time to time after the Closing. The Bonds when issued,registered and delivered in accordance with the Resolution and sold to the Underwriter as provided herein and in accordance with the provisions ofthe Resolution,will be valid and legally enforceable obligations ofthe City in accordance with their terms and the terms of the Resolution,except as the enforcement thereof may be limited by bankruptcy,insolvency,reorganization or other laws or the application by a court of equitable principles;and the Resolution will provide,for the benefit of the holders from time to time ofthe Bonds,a legally valid and irrevocable lien upon and pledge of the Pledged Revenues,as defined and set forth in the Resolution,on a parity with the City's Utility System Revenue Bonds, Series 1996. (g) The information contained in the Preliminary Official Statement(as of its dated date)and, as of its date,the Final Official Statement pertaining to the City was and is true and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact which is necessary to make the statements therein,in the light ofthe circumstances under which they were made, not misleading. (h) The City has not been in default at any time on or after December 31, 1975,as to principal or interest with respect to any obligation issued or guaranteed by the City. Except as described in the Preliminary Official Statement or the Final Official Statement, there is no action,suit,proceeding,inquiry or investigation,at law or in equity before or by any court, governmental agency or public board or body,pending or,to the best knowledge ofthe City,threatened: (1) Which may affect the existence of the City or the titles of its officers to their respective offices; (2) Which may affect or which seeks to prohibit,restrain or enjoin the sale,issuance or delivery of the Bonds,or the collection or disbursement ofthe Pledged Revenues to pay the principal of,premium, if any, and interest on the Bonds, and to make other payments under the Resolution; (3) Which in any way contests or affects the validity or enforceability of the Bonds,the Resolution,this Purchase Contract or any of them; (4) Which would cause the interest on the Bonds to be included in the federal gross income of the holders of the Bonds; or (5) Which contests in any way the completeness or accuracy of the Preliminary Official Statement or the Final Official Statement or which contests the powers of the City or any authority or proceedings for the issuance,sale or delivery of the Bonds,or the due adoption of the Resolution or the execution and delivery of this Purchase Contract or any of them;nor,to the best knowledge of the City, is there any basis therefor,wherein an unfavorable decision,ruling or finding would materially adversely 4 affect the validity or enforceability of the Bonds,the Resolution,the Escrow Agreement or any of them. (j) The City will furnish such information,execute such instruments and take such other action not inconsistent with law in cooperation with the Underwriter as the Underwriter may reasonably request in order(i)to qualify the Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions ofthe United States as the Underwriter may designate,and (ii)to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions,and will use its best efforts to continue such qualifications in effect so long as required for the distribution ofthe Bonds;provided that the City shall not be obligated to qualify to do business or to take any action that would subject it to general service of process in any state where it is not now so subject. (k) If between the date of this Purchase Contract and the date which is the earlier of(i)90 days from the end of the"underwriting period",as determined in the Rule,(an event the Underwriter is required to notify the City about pursuant to paragraph 2(c)above),or(ii)the time when the Final Official Statement is available to any person from a nationally recognized municipal securities information repository,but in no case less than 25 days following the end ofthe underwriting period,any event shall occur which would or might cause the information contained in the Final Official Statement,as then supplemented or amended, to contain any untrue statement of a material fact orto omit to state a material fact required to be stated therein or necessary to make the statements therein,in the light ofthe circumstances under which they were made,not misleading,the City shall notify the Underwriter thereof,and if in the reasonable opinion of the Underwriter such event requires the preparation and publication of a supplement or amendment to the Final Official Statement,the City shall cooperate with the Underwriter in supplementing or amending the Final Official Statement,the printing of which will be at the City's expense,in such form and manner and at such time or times as may be reasonably called for by the Underwriter. (1) The City covenants to comply with the requirements ofthe Internal Revenue Code of 1986, as amended(the"Code")in order to maintain the exclusion from gross income ofthe interest on the Bonds for purposes of federal income taxation. These requirements include,but are not limited to,provisions which prescribe yield and other limits within which the proceeds ofthe Bonds and other amounts are to be invested and require that certain investment earnings on the foregoing must be rebated on.a periodic basis to the Treasury Department of the United States. (m) The City has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that it is a bond issuer whose arbitrage certifications may not be relied upon. (n) Except as disclosed in the Official Statement,the City has not been in default at any time as to principal or interest with respect to any obligations issued or guaranteed by the City. (o) The City has not failed to comply with any prior undertakings to provide continuing disclosure pursuant to Rule 15c2-12(b)(5) under the Securities Exchange Act of 1934, as amended. 7. Delayed Delivery Pre-Closing. At 10:00 a.m.,Eastern Daylight Savings Time,July 6, 2001,(such date herein called the"Delayed Delivery Pre-Closing Date"),or at such later time or on such 5 later date as may be mutually agreed upon by the City and the Underwriter,the City shall,subject to the terms and conditions hereof,deliver the documents hereinafter mentioned(the"Delayed Delivery Pre- Closing"). The Delayed Delivery Pre-Closing shall occur at City Hall,Boynton Beach,Florida,or such other place as shall have been mutually agreed upon by the City and the Underwriter. If the Delayed Delivery Pre-Closing is completed in accordance with the provisions of this Purchase Contract,the Underwriter shall be obligated to purchase the Bonds and pay the purchase price therefor and the City shall be obligated to issue and deliver such Bonds subject to the Delayed Delivery Closing Conditions and Termination Provisions set forth in Paragraphs 10 and 11(a),respectively, of this Purchase Contract. 8. Delayed Delivery Pre-Closing Conditions. The Underwriter is entering into this Purchase Contract in reliance upon the representations,warranties and agreements ofthe City contained herein,and in reliance upon the representations,warranties and agreements to be contained in the documents and instruments to be delivered at the Delayed Delivery Pre-Closing, and upon the performance of the covenants and agreements herein,as of the date hereof and as of the Delayed Delivery Pre-Closing. Accordingly,the Underwriter's obligations under this Purchase Contract shall be conditioned upon the performance ofthe covenants and agreements to be performed hereunder and under such other documents and instruments to be delivered at or prior to the Delayed Delivery Pre-Closing Date,and shall also be subject to the following additional conditions: (a) The representations and warranties ofthe City contained herein shall be true,complete and correct on the date hereof and on and as of the Delayed Delivery Pre-Closing Date,as if made on the Delayed Delivery Pre-Closing Date. (b) At the date of execution hereof and at the Delayed Delivery Pre-Closing,the Resolution shall have been duly approved and adopted by the City,shall be in full force and effect,and shall not have been amended,modified or supplemented,except to the extent to which the Underwriter shall have given its prior written consent and there shall have been taken in connection therewith all such action as,in the opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., Bond Counsel to the City, shall be necessary and appropriate in connection with the transactions contemplated hereby. (c) At the Delayed Delivery Pre-Closing there will be no pending or threatened litigation or proceeding of any nature seeking to restrain or enjoin the issuance,sale or delivery of the Bonds,or the pledge or application ofthe Pledged Revenues(other than as disclosed in the Preliminary Official Statement and the Final Official Statement)to pay the principal of and interest on the Bonds or in any way contesting or affecting the validity or enforceability of the Bonds,the Resolution,the Escrow Agreement and this Purchase Contract or contesting in any way the proceedings of the City taken with respect thereto,or contesting in any way the due existence or powers of the City or the title of any of the members ofthe City Commission or officials ofthe City to their respective offices,or if such litigation does exist,the Underwriter will receive an opinion of Josias,Goren,Cherof,Doody&Ezrol,P.A. City Attorneys,that any such litigation is without merit. (d) Except as described in the Preliminary Official Statement or the Final Official Statement, there shall have been no material adverse change in the fmancial condition of the City since September 30, 6 2000. (e) At the Delayed Delivery Pre-Closing, the Underwriter shall receive the following documents, each dated as of the Delayed Delivery Pre-Closing Date: (i) The opinion of Moyle,Flanigan,Katz,Raymond&Sheehan,P.A.,Bond Counsel,dated the Delayed Delivery Pre-Closing Date and addressed to the Underwriter, to the effect that (i) the information contained in the Final Official Statement under the headings"Introduction,""Purpose ofthe 2002 Bonds," "Description of the 2002 Bonds," "Security for the 2002 Bonds" and "Covenants Concerning Ongoing Disclosure,"(other than any information thereunder relating to The Depository Trust Company and its book-entry system of registration and apart from any engineering,financial and statistical data contained therein as to which no opinion or belief needs to be expressed),insofar as such information purports to be the descriptions or summaries of the Resolution and the Bonds,constitutes fair and accurate statements ofthe matters set forth in such documents,and(iii)the information contained in the Final Official Statement under the heading "Tax Exemption" is correct in all material respects. (ii) An opinion, dated the Delayed Delivery Pre-Closing Date and addressed to the Underwriter, of Josias, Goren, Cherof,Doody&Ezrol,P.A. City Attorneys to the effect that(i)this Purchase Contract has been duly authorized,executed and delivered by the City and constitutes a legal, valid, and binding agreement of the City in accordance with its terms except to the extent that the enforceability ofthe rights and remedies set forth therein may be limited by bankruptcy,insolvency or other laws or the application by a court of equitable principles; (ii)the City has authorized, executed and delivered the Final Official Statement;(iii)the information in the Final Official Statement as to legal matters relating to the City,the Bonds,the Escrow Agreement and the Resolution is correct in all material respects and does not omit any statement which,in their opinion,should be included or referred to therein and,in addition,such counsel shall state that,based upon their participation in the preparation ofthe Final Official Statement as City Attorneys and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Final Official Statement(except to the extent expressly set forth in this Subparagraph(iii)),as ofthe Delayed Delivery Pre-Closing Date nothing has come to their attention causing them to believe that(A)the Final Official Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein,in the light of the circumstances under which they were made, not misleading(except for the financial and statistical information contained in the Final Official Statement as to all of which no view shall be expressed),or(B)the Final Official Statement(as supplemented or amended pursuant to paragraph(k)of Section 6 hereof,if applicable)as of the Delayed Delivery Pre- Closing Date contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein,in the light ofthe circumstances under which they were made,not misleading(except as aforesaid),(it is understood that in undertaking to deliver the Final Official Statement pursuant to this paragraph,the City is not taking any responsibility for the accuracy or completeness ofthe information in the Final Official Statement concerning the Insurer or The Depository Trust Company and its book-entry only system of registration of the Bonds); (iv)to the best of their knowledge the City is not in material breach of or material default under any applicable constitutional provision,law or administrative regulation of the State or the United States or any applicable judgment or 7 decree or any loan agreement,indenture,bond,note,material resolution,material agreement or other material instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject,and no event has occurred and is continuing that with the passage oftime or the giving of notice, or both,would constitute a default or event of default under any such instrument; and the execution and delivery of this Purchase Contract,and the adoption ofthe Resolution and compliance with the provisions on the City's part contained therein,will not conflict with or constitute a material breach of or default under,any constitutional provision,law,administrative regulation,judgment,decree,loan agreement,indenture,bond,note,resolution,agreement or other instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject,and any such execution,delivery, adoption or compliance will not result in the creation or imposition of any lien,charge or other security interest or encumbrance of any nature whatsoever upon any ofthe property or assets ofthe City under the terms of any such law, regulation or instrument, except as expressly provided by the Bonds or the Resolution;(v)the City has the right and power under the Act to adopt the Resolution and the Resolution has been duly and lawfully adopted by the City,is in full force and effect and constitutes the legal,valid and binding obligation ofthe City,enforceable in accordance with its terms,subject to applicable bankruptcy, insolvency and similar laws affecting creditors'rights generally and subject,as to enforceability,to general principles of equity(regardless of whether enforcement is sought in a proceeding in equity or at law),and no other authorization is required for the City to adopt the Resolution;(vi)to the best of their knowledge, there is no action,suit,proceeding,inquiry or investigation at law or in equity before or by any court, government agency,public board or body,pending or threatened against or affecting the City,nor is there any basis for any such action,suit,proceeding,inquiry or investigation,wherein an unfavorable decision, ruling or finding would have a materially adverse effect upon the transactions contemplated by the Final Official Statement or the validity of the Bonds,the Resolution,the Escrow Agreement or this Purchase Contract, except as described in the Final Official Statement; and(vii)all authorizations, consents, approvals and reviews of governmental bodies or regulatory authorities then required for the City's adoption,execution or performance ofthe Bonds,the Resolution,the Escrow Agreement and this Purchase Contract have been obtained or effected and,to the best of their knowledge,said firm has no reason to believe that the City will be unable to obtain or effect any such additional authorization,consent,approval or review that may be required in the future for performance of any of them by the City. (iii) A certificate,dated the Delayed Delivery Pre-Closing Date,signed by the City Manager, to the effect that,to the best of his knowledge: (i)the representations ofthe City herein are true and correct in all material respects as of the Delayed Delivery Pre-Closing Date; (ii)the City.has performed all obligations to be performed hereunder as of the Delayed Delivery Pre-Closing Date; (iii) except as disclosed in the Final Official Statement,there is no litigation pending or threatened(A)to restrain or enjoin the issuance or delivery of any of the Bonds,(B)in any way contesting or affecting any authority for the issuance ofthe Bonds or the validity ofthe Bonds,the Resolution,the Escrow Agreement or this Purchase Contract,(C)in any way contesting the corporate existence or powers ofthe City,(D)to restrain or enjoin the collection ofrevenues pledged or to be pledged to pay the principal of,premium,if any,and interest on the Bonds,(E)which may result in any material adverse change in the business,properties,assets and the financial condition of the City taken as a whole,or(F)asserting that the Final Official Statement contains any untrue statement of a material fact or omits any material fact necessary to make the statements therein,in light ofthe circumstances under which they were made,not misleading;(iv)since September 30, 8 2000,no material adverse change has occurred in the financial position or results of operations of the City except as set forth in or contemplated by the Preliminary Official Statement or the Final Official Statement; (v)the City has not,since September 30,2000,incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Final Official Statement;(vi)the information contained in the Final Official Statement pertaining to the City(except for the Insurer or The Depository Trust Company book-entry only system for which no opinion need be expressed)did not as of its date, and does not as of the Delayed Delivery Pre-Closing Date contain any untrue statement of a material fact or omit to state a material fact required to be included therein or necessary in order to make the statements contained therein,in light ofthe circumstances in which they were made,not misleading;and(vii)that the City has not been in default at any time on or after December 31, 1975,as to principal or interest with respect to any obligation issued or guaranteed by the City. (iv) An opinion, dated the Date of Closing and addressed to the Underwriter, of Moyle, Flanigan,Katz,Raymond&Sheehan,P.A.,West Palm Beach,Florida,Disclosure Counsel for the City, to the effect that based upon their preparation of the Final Official Statement as Disclosure Counsel for the City and without having undertaken to determine independently the accuracy,completeness or fairness of the statements contained in the Final Official Statement,as of the Delayed Delivery Pre-Closing Date nothing has come to the attention of such counsel causing them to believe that(A)the Final Official Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein,in the light of the circumstances under which they were made,not misleading(except for the financial and statistical information contained in the Final Official Statement as to which no view need be expressed),or(B)the Final Official Statement (as supplemented or amended pursuant to paragraph(k) of Section 6 hereof, if applicable) as of the Delayed Delivery Pre-Closing Date contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein,in the light of the circumstances under which they were made, not misleading (except as aforesaid). (v) An opinion, dated the Delayed Delivery Pre-Closing Date and addressed to the Underwriter,of Moyle,Flanigan,Katz,Raymond&Sheehan,P.A.,West Palm Beach,Florida,Disclosure Counsel for the City,to the effect that the continuing disclosure undertaking of the City contained in the Resolution pursuant to which the City has agreed to provide the information required by Rule 15c2- 12(b)(5)issued by the Securities and Exchange Commission under the Securities Exchange Act of 1934, provides a suitable basis for the Underwriter in connection with the Offering(as defined in Rule 15c2-12), to make a reasonable determination as required by paragraph (b)(5) of said Rule. (vi) A Rule 15c2-12 Certificate with respect to the Preliminary Official Statement signed by the City Manager. (vii) The verification report of Causey,Demgen&Moore as described under the section entitled "Verification of Mathematical Computations" in the Final Official Statement. (viii) A copy of the executed Escrow Deposit Agreement. 9 (ix) Such additional legal opinions, certificates, instruments and other documents as the Underwriter may reasonably request to evidence the truth and accuracy,as of the date hereof and as of the Delayed Delivery Pre-Closing Date,of the City's representations and warranties contained herein and of the statements and information contained in the Final Official Statement and the due performance or satisfaction by the City on or prior to the Delayed Delivery Pre-Closing Date of all the agreements then to be performed and conditions then to be satisfied by it. (f) The Insurer shall have issued its confirmation of its commitment to insure the Bonds on the Delayed Delivery Pre-Closing Date. All of the evidence,opinions,letters,certificates,instruments and other documents,mentioned above or elsewhere in this Purchase Contract shall be deemed to be in compliance with the provisions hereof if, but only if, they are in form and substance satisfactory to the Underwriter and the City. Ifthe conditions to the obligations of the Underwriter under this Purchase Contract are not satisfied as of the Delayed Delivery Pre-Closing Date,this Purchase Contract shall terminate and neither the Underwriter nor the City shall be under any further obligation hereunder, except that the respective obligations ofthe City and the Underwriter set forth in paragraph 12 hereof shall continue in full force and effect . 9. Delayed Delivery Closing. At 10:00 a.m.,prevailing time in the City,on August 6,2002 (such date herein called the"Delayed Delivery Closing Date"),or at such later time or on such later date as may be mutually agreed upon by the City and the Underwriter,the City shall,subject to the terms and conditions hereof,deliver the Bonds,bearing proper CUSIP numbers,in the definitive form of one fully registered typewritten Bond for each stated maturity of the Bonds,duly executed and authenticated. In addition,at such time,on the Delayed Delivery Closing Date,the City shall also deliver,to the Underwriter, subject to the terms and conditions hereof,the other documents hereinafter mentioned. Subject to the terms and conditions hereof,the Underwriter shall accept delivery of the Bonds and pay the purchase price of the Bonds as set forth in paragraph 1 hereof in Federal Funds to the order of the City(such delivery of and payment for the Bonds herein called the"Delayed Delivery Closing"). The Delayed Delivery Closing shall occur at City Hall or such other place as shall have been mutually agreed upon by the City and the Underwriter. The Bonds shall be registered in the name of Cede& Co., or such other name as the Underwriter shall request,and will be made available for inspection and checking by representatives of the Underwriter at such place as shall be mutually agreed upon,not later than the business day prior to the Delayed Delivery Closing Date. 10. Delayed Delivery Closing Conditions. The Underwriter is entering into this Purchase Contract in reliance upon the representations,warranties and agreements of the City contained herein,and in reliance upon the representations,warranties and agreements to be contained in the documents and instruments to be delivered at the Delayed Delivery Closing,and upon the performance of the covenants and agreements herein,as of the date hereof and as of the Delayed Delivery Closing Date. Accordingly, the Underwriter's obligations under this Purchase Contract to purchase,to accept delivery of and to pay for the Bonds shall be conditioned upon the performance ofthe covenants and agreements to be performed 10 hereunder and under such other documents and instruments to be delivered at or prior to the Delayed Delivery Closing Date, and shall also be subject to the following additional conditions: (a) The representations and warranties ofthe City contained herein shall be true,complete and correct on the date hereof and on and as ofthe Delayed Delivery Closing Date,as if made on the Delayed Delivery Closing Date. (b) At the date of execution hereof and at the Delayed Delivery Closing Date,the Resolution shall have been duly approved and adopted by the City,shall be in full force and effect,and shall not have been amended,modified or supplemented,except in connection with the issuance of Additional Bonds in compliance therewith and except to the extent to which the Underwriter shall have given its prior written consent,and there shall have been taken in connection therewith and in connection with the issuance of the Bonds all such action as,in the opinion of Moyle,Flanigan,Katz,Raymond&Sheehan,P.A.,Bond Counsel and Disclosure Counsel for the City,shall be necessary and appropriate in connection with the transactions contemplated hereby. (c) At the Delayed Delivery Closing there will be no pending or threatened litigation or proceeding of any nature seeking to restrain or enjoin the issuance,sale or delivery of the Bonds,or the pledge or application ofthe Pledged Revenues(other than as disclosed in the Final Official Statement as supplemented for the Delayed Delivery Closing,the"Supplemented Final Official Statement",which Supplemented Final Official Statement,in final form,the City shall have provided to the Underwriter no later than eleven(11)days prior to the Delayed Delivery Closing Date and in draft form for review by the Underwriter no later than twenty(20)days prior to the Delayed Delivery Closing Date)to pay the principal of and interest on the Bonds or in any way contesting or affecting the validity or enforceability ofthe Bonds, the Resolution,the Escrow Agreement and this Purchase Contract or contesting in any way the proceedings of the City taken with respect thereto,or contesting in any way the due existence or powers of the City or the title of any ofthe members ofthe City Commission or officials of the City to their respective offices,or if such litigation does exist,the Underwriter will receive an opinion ofJosias,Goren,Cherof,Doody& Ezrol, P.A. City Attorneys, that any such litigation is without merit. (d) Except as described in the Supplemented Final Official Statement,there shall have been no material adverse change in the financial condition of the City since September 30, 2000. (e) At the Closing,the Underwriter shall receive the following documents,each dated as of the Delayed Delivery Closing Date: (i) The opinion of Moyle,Flanigan,Katz,Raymond&Sheehan,P.A.,Bond Counsel,dated the Delayed Delivery Closing Date,in substantially the form attached to the Supplemented Final Official Statement as Appendix D as well as(x)an opinion to the effect that the Bonds are"Additional Bonds"on a parity with the City's other outstanding Bonds and(y)that the Refunded Bonds(as defined in the Supplemented Final Official Statement) have been legally defeased.; (ii) An opinion of Bond Counsel, addressed to the Underwriter, to the effect that (i) the 11 Underwriter may rely upon the opinion referred to in paragraph(i)above as though addressed to it,(ii)the information contained in the Supplemented Final Official Statement under the headings"Introduction," "Purpose of the 2002 Bonds,""Description of the 2002 Bonds," "Security for the 2002 Bonds" and "Covenants Concerning Ongoing Disclosure,"(other than any information thereunder relating to The Depository Trust Company and its book-entry system of registration and apart from any engineering, financial and statistical data contained therein as to which no opinion or belief needs to be expressed), insofar as such information purports to be the descriptions or summaries of the Resolution and the Bonds, constitutes fair and accurate statements of the matters set forth in such documents,and(iii)the information contained in the Final Official Statement under the heading"Tax Exemption"is correct in all material respects. (iii) An opinion,dated the Delayed Delivery Closing Date and addressed to the Underwriter, ofJosias,Goren,Cherof,Doody&Ezrol,P.A.City Attorneys to the effect that(i)this Purchase Contract and the Escrow Agreement have each been duly authorized,executed and delivered by the City and each constitutes a legal,valid,and binding agreement of the City in accordance with their terms except to the extent that the enforceability ofthe rights and remedies set forth therein may be limited by bankruptcy, insolvency or other laws or the application by a court of equitable principles and except further as the enforcement of indemnification provisions of this Purchase Contract may be limited by federal or state securities laws or public policy considerations;(ii)the City has authorized,executed and delivered the Supplemented Final Official Statement;(iii)the information in the Supplemented Final Official Statement as to legal matters relating to the City,the Bonds,the Escrow Agreement and the Resolution is correct in all material respects and does not omit any statement which,in their opinion,should be included or referred to therein and,in addition,such counsel shall state that,based upon their participation in the preparation of the Supplemented Final Official Statement as City Attorneys and without having undertaken to determine independently the accuracy,completeness or fairness of the statements contained in the Supplemented Final Official Statement(except to the extent expressly set forth in this Subparagraph(iii)),as of the Delayed Delivery Closing nothing has come to their attention causing them to believe that(A)the Supplemented Final Official Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein,in the light of the circumstances under which they were made, not misleading (except for the financial and statistical information contained in the Supplemented Final Official Statement as to all of which no view shall be expressed),or(B)the Supplemented Final Official Statement as of the Delayed Delivery Date Closing contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein,in the light of the circumstances under which they were made, not misleading(except as aforesaid),(it is understood that in undertaking to deliver the Supplemented Final Official Statement pursuant to this paragraph,the City is not taking any responsibility for the accuracy or completeness of the information in the Supplemented Final Official Statement concerning the Insurer or The Depository Trust Company and its book-entry only system of registration of the Bonds);(iv)to the best of their knowledge the City is not in material breach of or material default under any applicable constitutional provision,law or administrative regulation of the State or the United States or any applicable judgment or decree or any loan agreement,indenture,bond,note,material resolution,material agreement or other material instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject,and no event has occurred and is continuing that with the passage of time or the giving 12 of notice, or both,would constitute a default or event of default under any such instrument; and the execution and delivery ofthe Bonds,the Escrow Agreement,this Purchase Contract,and the adoption of the Resolution and compliance with the provisions on the City's part contained therein,will not conflict with or constitute a material breach of or default under, any constitutional provision,law, administrative regulation,judgment,decree,loan agreement,indenture,bond,note,resolution,agreement or other instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject, and any such execution, delivery, adoption or compliance will not result in the creation or imposition of any lien,charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the City under the terms of any such law,regulation or instrument,except as expressly provided by the Bonds or the Resolution;(v)the City has the right and power under the Act to adopt the Resolution and the Resolution has been duly and lawfully adopted by the City,is in full force and effect and constitutes the legal,valid and binding obligation of the City,enforceable in accordance with its terms,subject to applicable bankruptcy,insolvency and similar laws affecting creditors'rights generally and subject,as to enforceability,to general principles of equity(regardless of whether enforcement is sought in a proceeding in equity or at law), and no other authorization is required for the City to adopt the Resolution;(vi)to the best of their knowledge,there is no action,suit,proceeding,inquiry or investigation at law or in equity before or by any court,government agency,public board or body,pending or threatened against or affecting the City, nor is there any basis for any such action, suit,proceeding, inquiry or investigation,wherein an unfavorable decision,ruling or finding would have a materially adverse effect upon the transactions contemplated by the Supplemented Final Official Statement or the validity ofthe Bonds, the Resolution,the Escrow Agreement or this Purchase Contract,except as described in the Supplemented Final Official Statement;and(vii)all authorizations,consents,approvals and reviews of governmental bodies or regulatory authorities then required for the City''s adoption,execution or performance of the Bonds,the Resolution,the Escrow Agreement and this Purchase Contract have been obtained or effected and,to the best of their knowledge,they have no reason to believe that the City will be unable to obtain or effect any such additional authorization,consent,approval or review that may be required in the future for performance of any of them by the City. (iv) A certificate,dated the Delayed Delivery Closing Date,signed by the City Manager to the effect that to the best of his knowledge: (i)the representations of the City herein are true and correct in all material respects as of the Delayed Delivery Closing Date;(ii)the City has performed all obligations to be performed hereunder as of the Delayed Delivery Closing Date ; (iii) except as disclosed in the Supplemented Final Official Statement,there is no litigation pending or threatened(A)to restrain or enjoin the issuance or delivery of any of the Bonds,(B)in any way contesting or affecting any authority for the issuance of the Bonds or the validity ofthe Bonds,the Resolution,the Escrow Agreement or this Purchase Contract,(C)in any way contesting the corporate existence or powers ofthe City,(D)to restrain or enjoin the collection of revenues pledged or to be pledged to pay the principal of,premium,if any,and interest on the Bonds,(E)which may result in any material adverse change in the business,properties,assets and the financial condition of the City taken as a whole,or(F)asserting that the Supplemented Final Official Statement contains any untrue statement of a material fact or omits any material fact necessary to make the statements therein,in light of the circumstances under which they were made,not misleading;(iv)since September 30, 2000,no material adverse change has occurred in the financial position or results of operations of the City except as set forth in or contemplated by the Supplemented Final Official Statement; 13 (v)the City has not,since September 30,2000,incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Supplemented Final Official Statement;(vi)the information contained in the Supplemented Final Official Statement pertaining to the City(except for the Insurer or The Depository Trust Company book-entry only system for which no opinion need be expressed)did not as of its date,and does not as of the Delayed Delivery Closing Date contain any untrue statement of a material fact or omit to state a material fact required to be included therein or necessary in order to make the statements contained therein,in light ofthe circumstances in which they were made,not misleading;and(vii)that the City has not been in default at any time on or after December 31, 1975,as to principal or interest with respect to any obligation issued or guaranteed by the City. (v) An opinion,dated the Delayed Delivery Closing Date and addressed to the Moyle,Flanigan, Katz,Raymond&Sheehan,P.A.,West Palm Beach,Florida,Disclosure Counsel for the City,to the effect that (i) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended,and the Resolution is exempt from qualification pursuant to the Trust Indenture Act of 1939,as amended;and(ii)based upon their participation and their review of the Supplemented Final Official Statement as Disclosure Counsel and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Supplemented Final Official Statement,as of the Delayed Delivery Closing Date nothing has come to the attention of such counsel causing them to believe that(A)the Supplemented Final Official Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein,in the light of the circumstances under which they were made,not misleading(except for the financial and statistical information contained in the Supplemented Final Official Statement as to which no view need be expressed),or(B)the Supplemented Final Official Statement as of the Delayed Delivery Closing Date contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein,in the light ofthe circumstances under which they were made, not misleading (except as aforesaid). (vi) An opinion,dated the Delayed Delivery Closing Date and addressed to the Underwriter, of Moyle,Flanigan,Katz,Raymond&Sheehan,P.A.,West Palm Beach,Florida,Disclosure Counsel for the City,to the effect that the continuing disclosure undertaking ofthe City contained in the Resolution, pursuant to which the City has agreed to provide the information required by Rule 15c2-12(b)(5)issued by the Securities and Exchange Commission under the Securities Exchange Act of 1934,provides a suitable basis for the Underwriter in connection with the Offering(as defined in Rule 15c2-12),to make a reasonable determination as required by paragraph (b)(5) of said Rule; (vii) An opinion,dated the Delayed Delivery Closing Date,and addressed to the Underwriter, from counsel for the Insurer,(or ifthe Insurer is replaced pursuant to subparagraph(f)below,counsel for that insurance company to the same effect)to the effect that: (i) the Insurer is a stock insurance company validly existing and in good standing under the laws ofthe State ofNew York and qualified to do business therein and is licensed and authorized to issue its financial guaranty insurance policies under the laws ofthe State of Florida;(ii)the Bond Insurance Policy is valid and binding upon the Insurer and enforceable in accordance with its terms,subject to applicable laws affecting creditors'rights;(iii) the Insurer,as an insurance company,is not eligible for relief under the Federal Bankruptcy Laws(any proceedings for the 14 liquidation,conservation or rehabilitation of the Insurer would be governed by the provisions of the Insurance Law of the State ofNew York);and(iv)the statements described in the Supplemented Final Official Statement relating to the Insurer and the Bond Insurance Policy accurately and fairly present the summary information set forth therein and do not omit any material fact with respect to the description of the Insurer relative to the material terms ofthe Bond Insurance Policy or the ability to the Insurer to meet its obligations under the Bond Insurance Policy. (viii) Such additional legal opinions, certificates, instruments and other documents as the Underwriter may reasonably request to evidence the truth and accuracy,as of the date hereof and as of the Delayed Delivery Closing Date,of the City's representations and warranties contained herein and of the statements and information contained in the Supplemented Final Official Statement and the due performance or satisfaction by the City on or prior to the Delayed Delivery Closing Date of all the agreements then to be performed and conditions then to be satisfied by it. (f) The Insurer shall have issued its Bond Insurance Policy(the"Policy")insuring the Bonds. In the event that the Insurer is unable to issue the Policy,the City,with the concurrence ofthe Underwriter, can substitute the Insurer's bond insurance with bond insurance from another bond insurer with ratings of "AAA," "AAA" and "Aaa" by Fitch, Standard & Poor's and Moody's Investors Service, respectively. All of the evidence,opinions,letters,certificates,instruments and other documents,mentioned above or elsewhere in this Purchase Contract shall be deemed to be in compliance with the provisions hereof if, but only if, they are in form and substance satisfactory to the Underwriter and the City. If the conditions to the obligations of the Underwriter to purchase,to accept delivery of and to pay for the Bonds contained in this Purchase Contract are not satisfied,or if the obligations ofthe Underwriter to purchase,to accept delivery of and to pay for the Bonds shall be terminated for any reason permitted by this Purchase Contract,this Purchase Contract shall terminate and neither the Underwriter nor the City shall be under any further obligation hereunder,except that the respective obligations of the City and the Underwriter set forth in paragraph 12 hereof shall continue in full force and effect . 11. Termination. (a) The Underwriter may terminate its obligation to purchase at any time before the Delayed Delivery Pre-Closing Date if any of the following should occur: (i) (1) Legislation(including any amendment thereto)shall have been introduced in or adopted by either House of the Congress of the United States, or recommended to the Congress for passage by the President of the United States or favorably reported for passage to either House of the Congress by any Committee of such House; or (2) A decision shall have been rendered by a court established under Article III of the Constitution of the United States or by the United States Tax Court; or 15 (3) A release or official statement shall have been issued by the President of the United States, by the Treasury Department of the United States or by the Internal Revenue Service;the effect of which, in any such case described in clauses(1),(2)or(3)herein,would be to impose,directly or indirectly, federal income taxation upon interest received on obligations of the general character of the Bonds other than as imposed on the Bonds and income therefrom under the federal tax laws in effect on the date hereof, in such a manner as in the judgment of the Underwriter would materially impair the marketability or materially reduce the market price of obligations of the general character of the Bonds; or (ii) Any action shall have been taken by the Securities and Exchange Commission or by a court which would require registration of any security under the Securities Act of 1933, as amended, or qualification of any indenture under the Trust Indenture Act of 1939,as amended,in connection with the public offering of the Bonds,or any action shall have been taken by any court or by any governmental authority suspending the use of the Final Official Statement or any amendment or supplement thereto,or any proceeding for that purpose shall have been initiated or threatened in any such court or by any such authority; or (iii) (1)The Constitution of the State of Florida shall be amended or an amendment shall be proposed,(2)legislation shall be enacted,(3)a decision shall have been rendered as to matters of Florida law,or(4)any order,ruling or regulation shall have been issued or proposed by or on behalf of the State of Florida by an official,agency or department thereof,affecting the status of City,its property or income, its bonds(including the Bonds)or the interest thereon which in the judgment of the Underwriter would materially adversely affect the market price of the Bonds; or (iv) (1)A general suspension of trading in securities shall have occurred on the New York Stock Exchange,or(2)the United States becomes engaged in any outbreak of armed hostilities(whether or not foreseeable at the time of execution hereof)or hostilities previously commenced shall escalate,the effect of which in either case described in clauses(1)and(2),is,in the judgment of the Underwriter,so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery ofthe Bonds on the terms and in the manner contemplated in this Purchase Contract and the Final Official Statement, including without limitation any material adverse effect on the market price of the Bonds; or (v) An event occurs which,in the reasonable opinion ofthe Underwriter,requires a supplement or amendment to the Final Official Statement and the information set forth in such supplement or amendment adversely effects,in the reasonable opinion ofthe Underwriter,the marketability ofthe Bonds; or (vi) A general banking moratorium shall have been declared by authorities of the United States, the State of New York or the State of Florida. (b) The Underwriter may terminate its remaining obligations under this Purchase Contract without liability therefor by notification to the City,if at any time on or after the Delayed Delivery Pre- Closing Date and on or prior to the Delayed Delivery Closing there is a Change in Law. A"Change in Law" means(i) any change in or addition to applicable federal or state law, whether statutory or as 16 interpreted by the courts,including any changes in or new rules,regulations or other pronouncements or interpretations by federal or state agencies;(ii)any legislation enacted by the Congress ofthe United States or introduced therein or recommended for passage by the President of the United States(if such enacted, introduced or recommended legislation has a proposed effective date which is on or before the Delayed Delivery Closing Date);(iii)any law,rule or regulation proposed or enacted by any governmental body, department or agency(if such proposed or enacted law,rule or regulation has a proposed effective date which is on or before the Delayed Delivery Closing Date);(iv)any judgment,ruling or order issued by any court or administrative body,which in any such case,would(A)as to the Underwriter,legally prohibit(or have the retroactive effect of prohibiting,if enacted,adopted,passed or finalized)the Underwriter from(1) accepting delivery of and paying for the Bonds in accordance with the provisions of this Purchase Contract or(2)selling the Bonds or beneficial ownership interests therein to bona fide purchasers,or,(B)as to the City,would(1)make the sale or issuance and delivery ofthe Bonds illegal(or have the retroactive effect of making such sale,issuance,or delivery illegal,if enacted,adopted,passed or finalized),(2)eliminate the exclusion from gross income of interest on the Bonds(or have the retroactive effect of eliminating such exclusion if enacted,adopted,passed, or finalized); (3)require the Bonds to be registered under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended or the Resolution to be qualified under the Trust Indenture Act of 1939,as amended(or have the retroactive effect of requiring such registration or qualification if enacted,passed,finalized,or adopted);provided, however,that such change in or addition to law,legislation,rule or regulation,or judgment,ruling or order shall have become effective,been enacted,introduced or recommended,or been proposed or been issued, as the case may be,subsequent to the date of execution of the Purchase Contract;or(v)a stop order, ruling, regulation, or official statement by the Securities and Exchange Commission or any other governmental agency having jurisdiction ofthe subject matter shall have been issued or made or any other event occurs,the effect of which is that the issuance,offering,or sale ofthe Bonds,or the delivery ofthe, Resolution is or would be in violation of any provision ofthe federal securities laws,including the Securities Act of 1933,as amended,the Securities Exchange Act of 1934,as amended,or the Trust Indenture Act of 1939,as amended. If the Change of Law involves the enactment of legislation which only diminishes the value of,as opposed to eliminating the exclusion from gross income for federal income tax purposes, interest payable on"state or local bonds,"the City may,nonetheless,be able to satisfy the requirements for the delivery of the Bonds. In such event,the Underwriter would be required to accept delivery of the Bonds. 12. Expenses. (a) Whether or not the Bonds are sold by the City to the Underwriter(unless such sale be prevented at Closing by the Underwriter's default),the City shall be obligated,to pay the following expenses: (i)the cost ofpreparing and printing or other reproduction of the Resolution;(ii)the cost of preparing and printing the Bonds,the Preliminary Official Statement and the Final Official Statements;(iii) the fees and disbursements of Moyle,Flanigan,Katz,Raymond&Sheehan,P.A.,incurred in its capacity as Bond Counsel;(iv)the fees and disbursements of Moyle,Flanigan,Katz,Raymond&Sheehan,P.A., incurred in their capacity as Disclosure Counsel for the City;(v)the fees and disbursements of the Escrow Agent,Paying Agent and the Bond Registrar;(vi)the fees and expenses of Causey,Demgen&Moore for the verification report;and(vii)the fees and disbursements of any other experts,accountants,consultants 17 or advisors retained by the City. (b) Whether or not the Bonds are sold by the City to the Underwriter(unless such sale be prevented at Delayed Delivery Closing by the City's default),the Underwriter shall be obligated to pay the following expenses and shall be permitted to pay such expenses from their discount: (i)all advertising expenses in connection with the public offering of the Bonds and(ii)all other expenses incurred by it in connection with the public offering of the Bonds. 13. Notices.Any notice or other communication to be given to the City under this Purchase Contract may be given by delivering the same in writing to the address set forth above and any notice or other communications to be given to the Underwriter under this Purchase Contract may be given by delivering the same in writing to Banc of America Securities LLC, 1640 Gulf-to-Bay Boulevard, Clearwater, Florida 33755. 14. Parties in Interest. (a) This Purchase Contract is made solely for the benefit of the City and the Underwriter (including the successors or assigns of the Underwriter)and no other person shall acquire or have any right hereunder or by virtue hereof All of the representations,warranties and agreements of the City contained in this Purchase Contract shall remain operative and in full force and effect(but shall not be deemed to be continuing representations and warranties of the City),regardless of:(i)any investigations made by or on behalf of the Underwriter;(ii)delivery of and payment for the Bonds pursuant to this Purchase Contract; or(iii)any termination of this Purchase Contract,but only to the extent provided by the last paragraph of Section 8 hereof (b) No covenant,stipulation,obligation or agreement contained in this Purchase Contract shall be deemed to be a covenant,stipulation,obligation or agreement of any member,agent or employee of the City Commission in his individual capacity and neither the members of the City Commission nor any official executing this Purchase Contract shall be liable personally under this Purchase Contract or be subject to any personal liability or accountability by reason of the execution hereof. 15. Effectiveness. This Purchase Contract shall become effective upon the execution of the acceptance hereof on behalf of the City by the City Manager,all in accordance with the requirements set forth in the City Charter, and shall be valid and enforceable at the time of such acceptance. 16. Counterparts. This Purchase Contract may be executed in several counterparts,which together shall constitute one and the same instrument. 17. Florida Law Governs. The validity, interpretation and perfoiniance of this Purchase Contract shall be governed by the laws of the State of Florida. 18. Entire Agreement. This Purchase Contract when accepted by the City in writing as heretofore specified shall constitute the entire agreement between us. 18 19. 1-Ieadings. The headings of the'paragraphs of this Purchase Contract are inserted for convenience only and shall not be deemed to be part hereof. Very truly yours, • • BANC OF AMERICA S' ' TIES LLC By: 4A ! J• ame: John P.Generalli Title: vice President Accepted as of the date hereof: CITY OF BOYNTON BEACH,FLORIDA ��` IIIiIIi',', ®� °oPP6R71T°°4° _� %** herald Broening,Mayor [SEAL] ►® °I r- 1. %'°•••••.••°°°°;., '1920/ Attest: %i ,°°° P °°° By: City Clerk • • • G;\02345\31\forward delivery purchase conrraa(3),wpd 19 APPENDIX I CERTIFICATE ESTABLISHING BOND TERMS The undersigned Mayor of the City of Boynton Beach, Florida, pursuant to the authority of Resolution No.R01-193(the'Resolution")adopted by the City Commission of the City on May 15,2001, hereby establishes the following terms for the Series 2002 Bonds (as defined in the Resolution): Amounts,Maturities and Interest Rates. The Series 2002 Bonds will consist of$23,280,000 of Current Interest Serial Bonds and$1,120,000 principal amount of Current Interest Term Bonds. The Series 2002 Bonds shall be dated as provided in the Resolution and shall bear interest at the rates,shall mature on November 1 of the years and in the amounts and shall have the yields as set forth in the following table: Amount Maturity Interest Rate Yield $1,120,000 2012 5.00% 5.00% $2,400,000 2013 5.375 5.02 $2,535,000 2014 5.375 5.06 $2,665,000 2015 5.375 5.14 $2,810,000 2016 5.5 5.18 $2,965,000 2017 5.5 5.23 $3,125,000 2018 5.5 5.27 $3,300,000 2019 5.5 5.30 $3,400,000 2020 5.5 5.32 Mandatory Redemption. The Series 2002 Bonds maturing on November 1,2012 will be subject to mandatory redemption in part prior to their maturity date at a redemption price equal to the principal amount thereof,without premium,plus accrued interest to the redemption date,on November 1,2003 and on each November 1 thereafter in the years and principal amounts set forth below(except for the final installment due at maturity, which shall not be a redemption): Year Amount 2003 $ 85,000.00 2004 90,000.00 2005 100,000.00 2006 105,000.00 2007 110,000.00 2008 115,000.00 2009 120,000.00 2010 125,000.00 2011 130,000.00 2012* 140,000.00 * Maturity. Optional Redemption. The Series 2002 Bonds will not be subject to optional redemption prior to their stated maturities. CITY OF BOYNTON BEACH, FLORIDA By: .,.,a.,4,./ Its Mayor Date: June 19, 2001 G:\02345\3I\Certificate.wpd 2 • APPENDIX II DISCLOSURE STATEMENT June 19, 2001 City of Boynton Beach, Florida Re: $24,400,000 City of Boynton Beach,Florida Utility System Revenue Refunding Bonds, Series 2002 Ladies and Gentlemen: In connection with the proposed issuance by the City of Boynton Beach,Florida(the"Issuer")of its$24,400,000 aggregate principal amount of Utility System Revenue Refunding Bonds,Series 2002(the "Bonds"),Banc of America Securities LLC(the"Underwriter")is underwriting a public offering ofthe Bonds. The purpose of the following paragraphs of this letter is to furnish,pursuant to the provisions of Section 218.3 85,Florida Statutes,certain information in respect of the arrangements contemplated for the purchase and sale of the Bonds, as follows: (a) There are no expenses to be incurred by the Underwriter in connection with the purchase and re-offering of the Bonds. (b) There are no"finders,"as defined in Section 218.3 86,Florida Statutes,connected with the sale and purchase of the Bonds. (c) The underwriting discount will be $96,380.00 (d) As part of the underwriting discount set for the in paragraph(c)above,the Underwriter will charge a management fee component of$4,880.00. (e) No other fee,bonus or other compensation is estimated to be paid by the Underwriter in connection with the issuance of the Bonds to any person not regularly employed or retained by the Underwriter(including any"finder"as defined in Section 218.3 86,Florida Statutes),except as specifically enumerated as expenses to be incurred by the Underwriter, as set forth in paragraph (a) above. (f) The name and address of the Underwriter is: Banc of America Securities LLC 1640 Gulf-to-Bay Boulevard Clearwater, Florida 33755 ..... .....______ _ The foregoing is provided for information purposes only and shall not affect or control the actual terms and conditions of the Bonds. Very truly yours, TRIT t BANC OF AMERII IES LLC ice President • • • GA02345\31\undorwriter disc.wpd 2 • ** TOTAL PAGE.03 ** MOYLE, FLANIGAN, KATZ, RAYMOND & SHEEHAN, P.A. ATTORNEYS AT LAW 625 North Flagler Drive-9th Floor West Palm Beach,Florida 33401-4025 P.O.Box 3886 West Palm Beach,Florida 33402-3888 Telephone:(561)659-7500 Facsimile: (561)659-1789 MARK E.RAYMOND Direct Line: (561)822-0380 Tallahassee Office E-mail:mraymond@moylelaw.com (850)681-3828 June 19,2001 Honorable Mayor and Members of the City Commission City of Boynton Beach,Florida RE: Utility System Revenue Refunding Bonds, Series 2002 Dear Mr.Mayor and Members of the City Commission: On May 15, 2001,the City Commission authorized City staff and consultants to proceed with a refunding of all of the City's outstanding Utility System Revenue Bonds, Series 1992. I am pleased to report that this afternoon your underwriter,Bank of America Securities LLC, completed the offering of the City's Utility System Revenue Refunding Bonds, Series 2002,with the following results: • Issuance of the Series 2002 Bonds will result in a cash payment to the City on August 6, 2002 in the amount of$2,458,161.77. This figure is net of all costs associated with the bond issue. - • In addition, on or about November 1, 2002, the City will receive an additional payment which we are presently estimating at between $195,000 and 5200,000, bringing the total payments to the City to approximately$2,654,000. • Debt service on the Series 2002 Bonds is slightly less than the debt service would have been on the 1992 Bonds. The remaining tasks to complete the bond issue simply involve the completion of various paperwork. I am quite pleased to have had the opportunity to work on this financing and appreciate the opportunity to be of continuing service to the City. Should any of you have any questions concerning this or any other public finance matters,please do not hesitate to contact me. Very truly yours, Mark E.Raymond MER/ct cc: Kurt Bressner G;102343131\O4.I8-01 Lu a Maa.•pd net From: Mark Raymond [MRaymond@moylelaw.com] Sent: Friday, June 22, 2001 12:06 PM To: Conboy, Barb; David Thornton (E-mail); Debora Randall (E-mail); Reese, Diane; James Cherof(E-mail); James Rapadas (E-mail); Prainito, Janet; Cherof, James; John Guidry (E-mail); Joseph Ponisi (E-mail); Peter Dame(E-mail); Mazzella, Pete; Raquel Suarez(E-mail); Robert Shoback(E-mail); Shani Risinger(E-mail) Subject: Boynton Beach Attached is a list of delayed delivery pre-closing documents together with a Certificate of the City Clerk, a Certificate of the City Manager and the forms of the City Attorney opinion and our opinion. The delayed delivery pre-closing will occur on July 6 at 10:30 a.m. at city hall. It is not necessary for anyone to attend other than the City Clerk and City Manager. Jim, could you please arrange to have six originals of your opinion either delivered to me ahead of time or available at the City on July 6. Please provide me with your questions or comments at your convenience. <<all closing docs.doc>> Mark Raymond Moyle, Flanigan, et al. 625 North Flagler Drive 9th Floor West Palm Beach, FL 33401 561-822-0380 561-659-1789 (fax) mraymond .moylelaw.com lr all closing docs.doc $24,400,000 CITY OF BOYNTON BEACH,FLORIDA UTILITY SYSTEM REVENUE REFUNDING BONDS SERIES 2002 List of Delayed Delivery Pre-Closing Documents July 6, 2002 1. Certified copy of: (a) Resolution No. 92-96, adopted on June 16, 1992; (b) Resolution No. 92-102, adopted on June 29, 1992; (c) Resolution No. R92-0114, adopted on July 16, 1992; (d) Resolution No. R96-88, adopted on June 18, 1996; (e) Resolution No. R01-193, adopted on May 15, 2001. 2. Preliminary Official Statement dated June 11, 2001. 3. Final Official Statement dated June 19, 2001. 4. Forward Delivery Purchase Contract dated June 19, 2001. 5. Certificate of the City Manager required by Section 8(e)(iii) of the Forward Delivery Purchase Contract. 6. Verification Report of Causey, Demgen&Moore. 7. Insurance Commitment from Financial Guaranty Insurance Company. 8. Notice of Sale to the Division of Bond Finance. 9. Opinion of Goren, Cherof,Doody&Ezrol,P.A. required by Section 8(e)(ii)of the Forward Delivery Purchase Contract. 10. Opinion of Moyle, Flanigan, Katz, Raymond& Sheehan, P.A. required by Section 8(e)(i) (iv) and(v) of the Forward Delivery Purchase Contract. CERTIFICATE OF TRUE COPY I, the undersigned City Clerk of the City of Boynton Beach, Florida, do hereby certify that attached hereto are true and correct copies of the following Resolutions of the City Commission, and that such Resolutions remain in force on the date hereof and have not been amended or supplemented except as indicated therein: Resolution No. 92-96, adopted June 19, 1992; Resolution No. 92-102, adopted June 29, 1992; Resolution No. 92-114, adopted June 16, 1992; Resolution No. R96-88, adopted June 18, 1996; Resolution No. R01-193, adopted May 15, 2001. IN WITNESS WHEREOF, I have hereunto set my hand as of the 6th day of July, 2001. By: City Clerk $24,400,000 CITY OF BOYNTON BEACH, FLORIDA UTILITY SYSTEM REVENUE REFUNDING BONDS SERIES 2002 CERTIFICATE OF THE CITY MANAGER The undersigned, Kurt Bressner, City Manager of the City of Boynton Beach, Florida, in connection with the issuance by the City of the above-referenced bonds (the "Bonds") and the purchase thereof by Banc of America Securities LLC (the "Underwriter") pursuant to a Forward Delivery Purchase Contract(the"Purchase Contract") (terms used herein in capitalized from and not otherwise defined herein having the meanings ascribed thereto in the Purchase Contract)dated June 19, 2001,between the City and the Underwriter,hereby certifies,that,to the best of his knowledge: (i) the representations of the City in the Purchase Contract are true and correct in all material respects as of the Delayed Delivery Pre-Closing Date; (ii) the City has performed all obligations to be performed under the Purchase Contract as of the Delayed Delivery Pre-Closing Date; (iii) except as disclosed in the Final Official Statement, there is no litigation pending or threatened (A) to restrain or enjoin the issuance or delivery of any of the Bonds, (B) in any way contesting or affecting any authority for the issuance of the Bonds or the validity of the Bonds, the Resolution or the Purchase Contract, (C) in any way contesting the corporate existence or powers of the City, (D) to restrain or enjoin the collection of revenues pledged or to be pledged to pay the principal of, premium, if any, and interest on the Bonds, (E) which may result in any material adverse change in the business, properties, assets and the financial condition of the City taken as a whole, or (F) asserting that the Final Official Statement contains any untrue statement of a material fact or omits any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (iv) since September 30, 2000, no material adverse change has occurred in the financial position or results of operations of the City except as set forth in or contemplated by the Preliminary Official Statement or the Final Official Statement; (v) the City has not, since September 30, 2000, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Final Official Statement; (vi) the information contained in the Final Official Statement pertaining to the City (except for the Insurer or The Depository Trust Company book-entry only system for which no opinion need be expressed) did not as of its date, and does not as of the Delayed Delivery Pre-Closing Date contain any untrue statement of a material fact or omit to state a material fact required to be included therein or necessary in order to make the statements contained therein, in light of the circumstances in which they were made, not misleading; and (vii) the City has not been in default at any time on or after December 31, 1975, as to principal or interest with respect to any obligation issued or guaranteed by the City. Dated this 6th day of July, 2001. CITY OF BOYNTON BEACH, FLORIDA By: City Manager [TO BE TYPED ON CITY ATTORNEY LETTERHEAD] July 6, 2001 Banc of America Securities LLC City of Boynton Beach, Florida Re: $24,400,000 City of Boynton Beach, Florida Utility System Revenue Refunding Bonds, Series 2002 Ladies and Gentlemen: As City Attorneys for the City of Boynton Beach,Florida(the "City"),we have participated in various proceedings in connection with the pending issuance by the City of its$24,400,000 Utility System Revenue Refunding Bonds, Series 1992,to be dated August 6, 2002 (the "Bonds"). Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Forward Delivery Purchase Contract (the "Contract") dated June 19, 2001,between the City and Banc of America Securities LLC. For purposes of rendering this opinion,we have examined the Constitution and laws of the State of Florida, various proceedings of the City relating to the authorization and issuance of the Bonds, and such other proceedings and records of the City and have made such inquiry of such officials of the City as we have deemed necessary in order to render the opinions set forth below. The opinions set forth herein are expressly limited to and we opine only with respect to the laws of the State of Florida. Based upon our participation, we are of the opinion, as of the date hereof, as follows: (i) the Purchase Contract has been duly authorized, executed and delivered by the City and constitutes a legal, valid, and binding agreement of the City in accordance with its terms except to the extent that the enforceability of the rights and remedies set forth therein may be limited by bankruptcy, insolvency or other laws or the application by a court of equitable principles; (ii) the City has authorized, executed and delivered the Final Official Statement; (iii) the information in the Final Official Statement as to legal matters relating to the City, the Bonds, the Escrow Agreement and the Resolution is correct in all material respects and does not omit any statement which, in our opinion, should be included or referred to therein and, in addition, based upon our review of the Final Official Statement as City Attorneys and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Final Official Statement (except to the extent expressly set forth in this Subparagraph (iii)), as of the Delayed Delivery Pre- Closing Date nothing has come to our attention causing us to believe that (A) the Final Official Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except for the financial and statistical information contained in the Final Official Statement as to all of which no view is expressed), or (B) the Final Official Statement as of the Delayed Delivery Pre-Closing Date contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except as aforesaid); (iv) to the best of our knowledge the City is not in material breach of or material default under any applicable constitutional provision, law or administrative regulation of the State or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, material resolution, material agreement or other material instrument to which the City is a party or to which the City or any of its property or assets is 'otherwise subject, and no event has occurred and is continuing that with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument; and the execution and delivery of this Purchase Contract, and the adoption of the Resolution and compliance with the provisions on the City's part contained therein, will not conflict with or constitute a material breach of or default under, any constitutional provision, law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject, and any such execution, delivery, adoption or compliance will not result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the City under the terms of any such law, regulation or instrument, except as expressly provided by the Bonds or the Resolution; (v) the City has the right and power under the Act to adopt the Resolution and the Resolution has been duly and lawfully adopted by the City, is 2 in full force and effect and constitutes the legal, valid and binding obligation of the City, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and no other authorization is required for the City to adopt the Resolution; (vi) to the best of our knowledge, there is no action, suit, proceeding, inquiry or investigation at law or in equity before or by any court, government agency, public board or body, pending or threatened against or affecting the City, nor is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would have a materially adverse effect upon the transactions contemplated by the Final Official Statement or the validity of the Bonds, the Resolution or this Purchase Contract, except as described in the Final Official Statement; and (vii) all authorizations, consents, approvals and reviews of governmental bodies or regulatory authorities then required for the City's adoption, execution or performance of the Bonds, the Resolution and this Purchase Contract have been obtained or effected and, to the best of our knowledge, we have no reason to believe that the City will be unable to obtain or effect any such additional authorization, consent, approval or review that may be required in the future for performance of any of them by the City. We are attorneys admitted to practice law only in the State of Florida and express no opinion as to federal laws or the laws of any other state. The foregoing opinions are subject to the effect of and restrictions and limitations imposed by or resulting from bankruptcy, insolvency, debt adjustment,moratorium,reorganization or other similar laws affecting creditors'rights and judicial discretion and the valid exercise of the sovereign police powers of the State of Florida and constitution power of the United States of America. Respectfully submitted, Goren, Cherof, Doody&Ezrol, P.A. 3 July 6, 2001 City of Boynton Beach, Florida Banc of America Securities,LLC Re: $24,400,000 City of Boynton Beach,Florida Utility System Revenue Refunding Bonds, Series 2002 Ladies and Gentlemen: We have acted as bond counsel and disclosure counsel to the City of Boynton Beach,Florida (the "City") in connection with the proceedings relating to the sale and issuance of the above- referenced Bonds(the"Bonds"). All terms used herein in capitalized form and not otherwise defined herein shall have meanings ascribed thereto pursuant to the Forward Delivery Purchase Contract, dated July 6, 2002, between the City and Banc of America Securities LLC (the "Underwriter"). In rendering the opinions set forth herein, we have examined certified copies of the Resolution and are relying on the representations, covenants and agreements of the City contained therein. As to questions of fact material to our opinions,we have relied upon representations of the City contained in the Resolution and upon other certifications, agreements, documents and opinions of public officials and other officers and representatives of the various parties participating in this transaction, furnished to us,without undertaking to verify the same by independent investigation. We have assumed the genuineness of all signatures on all documents and instruments, the authenticity of documents submitted as originals and the conformity to originals submitted as copies. The opinions set forth below are expressly limited to, and we opine only with respect to,the laws of the State of Florida and the laws of the United States of America. Based upon and subject to the foregoing,we are of the opinion as of the date hereof as under existing law, as follows: (i) the information contained in the Final Official Statement under the headings "Introduction," "Purpose of the 2002 Bonds," "Description of the 2002 Bonds," "Security for the 2002 Bonds" and "Covenants Concerning Ongoing Disclosure," (other than any information thereunder relating to The Depository Trust Company and its book-entry system of registration and apart from any engineering, financial and statistical data contained therein as to which no opinion or belief is expressed), insofar as such information purports to be the descriptions or summaries of the Resolution and the Bonds, constitutes fair and accurate statements of the matters set forth in such documents; (ii) the information contained in the Final Official Statement under the heading "Tax Exemption" is correct in all material respects; (iii) Based upon our preparation of the Final Official Statement as Disclosure Counsel for the City and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Final Official Statement, as of the Delayed Delivery Pre-Closing Date nothing has come to our attention causing us to believe that (A) the Final Official Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except for the financial and statistical information contained in the Final Official Statement as to which no view is be expressed), or (B) the Final Official Statement as of the Delayed Delivery Pre-Closing Date contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except as aforesaid); and (iv) The continuing disclosure undertaking of the City contained in the Resolution pursuant to which the City has agreed to provide the information required by Rule 15c2-12(b)(5) issued by the Securities and Exchange Commission under the Securities Exchange Act of 1934, provides a suitable basis for the Underwriter in connection with the Offering (as defined in Rule 15c2-12), to make a reasonable determination as required by paragraph (b)(5) of said Rule. Our opinions expressed herein are predicated upon present laws and interpretations thereof. We assume no affirmative obligation with respect to any change in circumstance or law that may adversely the matters addressed herein after the date hereof. Very truly yours, C:\WINDOWS\TEMP\ALL CLOSING DOCS.DOC TRANSCRIPT OF PROCEEDINGS $4,986,434.06 CITY OF BOYNTON BEACH, FLORIDA PROMISSORY NOTE DATED SEPTEMBER 15, 2000 MOYLE, FLANIGAN, KATZ, RAYMOND & SHEEHAN, P.A. BOND COUNSEL G:\02345\30\all closing docs(2).wpd DISTRIBUTION LIST BANK OF AMERICA,N.A. LOAN TO CITY OF BOYNTON BEACH, FLORIDA om. City of Boynton Beach,Florida 100 East Boynton Beach Boulevard Boynton Beach,Florida 33425 Kurt Bressner Tel: 561-375-6010 City Manager Fax: 561-375-6011 E-mail: Bressnerk@ci.boynton-beach.fl.us Wilfred Hawkins Tel: 561-375-6010 Assistant City Manager Fax: 561-375-6011 E-mail: Hawkinsw@ci.boynton-beach.fl.us Diane Reese Tel: 561-375-6310 Finance Director Fax: 561-375-6316 E-mail: Reesed@ci.boynton-beach.fl.us Susan Kruse Tel: 561-375-6060 City Clerk Fax: 561-375-6090 E-mail: Kruses@ci.boynton-beach.fl.us City Attorney James A. Cherof,Esq. Tel: 954-771-4500 Josias,Goren, Cherof,Doody&Ezrol,P.A. Fax: 954-771-4923 3099 East Commercial Boulevard E-mail:jcherof@cityatty.com Suite 200 Fort Lauderdale,Florida 33308 Bank Bank of America,N.A. 625 North Flagler Drive 10th Floor West Palm Beach,Florida 33401 Kevin Williams Tel: 561-838-2381 Fax: 838-2325 E-mail: kevin.o.williams@bankofamerica.com • Depending upon from where the telephone call is being placed, calls to the City may have to use the prefix "742" instead of"375." DISTRIBUTION LIST BANK OF AMERICA,N.A. LOAN TO CITY OF BOYNTON BEACH, FLORIDA Vanessa Civalero Tel: 561-838-2252 Fax: 561-838-2325 E-mail: vanessa.civalero@bankofamerica.com Bank Counsel Ed Vogel Telephone: 863-499-5356 Holland&Knight LLP Facsimile: 863-499-5391 92 Lake Wire Drive E-mail: evogel@hklaw.com Lakeland,Florida 33801 Bond Counsel Mark Raymond Tel: (561) 822-0380 Moyle,Flanigan,Katz,Kolins, Fax: (561)659-1789 Raymond& Sheehan,P.A. E-mail: mraymond@moylelaw.com 625 North Flagler Drive, 9th fl. West Palm Beach,FL 33401 Structuring Agent Christine Manza Tel: 813-224-5478 Banc of America Securities LLC Fax: 813-224-3704 400 North Ashley Street, 2nd fl. E-mail:christine.m.manza@bankofamerica.com Tampa,Florida 33602 Escrow Agent Ken Rothschild Tel: 305-789-4686 First Union National Bank Fax: 305-789-4678 Corporate Trust Department E-mail: kenneth.rothschild@firstunion.com FL-6065 200 South Biscyne Boulevard Miami,Florida 33131 G:\02345\30\distribution list.wpd 2 / / �, / ESCROW DEPOSIT AGREEMENT i THIS ESCROW DEPOSIT AGREEMENT (the "Agreement"), i made and dated as of September 15,2000,and is by and between CITY OF BOYNTON BEACH FLORIDA(the"Issuer") and FIRST UNION NATIONAL BANK(the"Escrow Agent"),Miami/Florida, a national banking association, as Escrow Agent and as Paying Agent (in such capacity the "Paying Agent") for the hereinafter described Refunded Bonds. WITNESSETH: WHEREAS,the Issuer has heretofore issued its$i10,075,000 General Obligation Refunding Bonds, Series 1992, of which$5,695,000 are currently/Outstanding (the "1992 Bonds"); and WHEREAS,the Issuer has determined to provide for the payment of all of the 1992 Bonds maturing on and after November 1, 2000, (the "Itefunded Bonds"), and to obtain a portion of the funds necessary for such payment by issuing$ in aggregate principal amount of its Promissory Note(the "Note"); and WHEREAS, a portion of the pro/eeds derived from the sale of the Note,together with other moneys made available by the Issuer for such purpose, will be applied to the purchase of certain direct obligations of the United States of America ("Government Obligations"), the principal of which, together with investment earnings thereon and an initial cash balance, will be sufficient to pay when due the principal, redemption premium, and interest on the Refunded Bonds to and including November 1, 2000, o/which date the 1992 Bonds will be discharged; and WHEREAS, in order to provide for the proper and timely application of the moneys _ deposited in the trust created herein to the payment of the Refunded Bonds, it is necessary for the Issuer to enter into this Escrow Deposit Agreement with the Escrow Agent on behalf of the owners from time to time of the Refunded Bonds; NOW,THEREFORE, in consideration of the foregoing and the mutual covenants herein set forth and in irder to secure the payment of the principal of, premium, and interest on the Refunded Bond/sr, to their tenor and effect,the Issuer does by these presents hereby deliver to and give, grant, assign and pledge to the Escrow Agent and to its successors in the trust hereby created, and to it and its assigns forever, all and singular the property hereinafter described,to wit: CLAUSE I. All right,title, and interest of the Issuer in and to $ deposited by or on behalf of the Issuer with the Escrow Agent hereunder. CLAUSE H. All right, title, and interest of the Issuer in and to the Government Obligations purchased from the moneys described in Clause I above. / CLAUSE Is / II. All right, title, and interest of the Issuer in and to all cash balances held from timeto time hereunder and all income and earnings derived from or accruing to the Government/ described in Clause II above. CLAUSE IV. 7 All(i)property which by the express provisions of this Agreement is��fequired to be subject to the pledge hereof and(ii)additional property of every kind and nature thatmay, from time to time hereafter,by delivery or by writing of any kind,be conveyed,pledged,assigned,or transferred as and for additional security hereunder or to be subject to the pledge hereof,by the Issuer or by anyone in its behalf, and the Escrow Agent is hereby authorized to receive thsame at any time as additional security hereunder,provided that no property described in(ii)shape accepted by the Escrow Agent unless the Escrow Agent shall receive an opinion of nationally recognized bond counsel to the effect that such acceptance will not cause the interest on the Refunded Bonds and Note to be included in the gross income of the owners thereof for federal income tax purposes. TO HAVE AND TO HOLD,all and the same,forever;in trust nevertheless,upon the terms and trusts herein set forth, for the equal and proportionate benefit, security and protection, as herein described, of the owners from time to time of the Refunded Bonds in the manner herein provided; but if the Refunded Bonds shall be fully and proiptly paid when due or redeemed in accordance with the terms thereof and hereof, then this A Bement shall be and become void and of no further force and effect, otherwise the same shall regain in full force and effect, and upon the trusts and subject to the covenants and conditions hereinafter set forth. ARTICLE I �' DEFINITIONS 1 Section 1.01. Definitions. In addition to words and terms elsewhere defined in this Agreement,as used herein,enless some other meaning is plainly intended,the following terms and phrases shall have the,lowing meanings: "Escrow Deposit Trust Fund" means the fund so designated and established under Section 2.01 of this Agreerhent. / "Government Obligations"means direct obligations of the United States of America that are not callable/or subject to redemption or prepayment prior to maturity by the obligor thereon. Section 1.02. Uses of Phrases. 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, words importing the singular number shall include the plural number and vic f versa. 2 � : ARTICLE II „/ ESTABLISHMENT OF FUNDS; FLOW OF FUNDS / Section 2.01. Creation of Escrow Deposit Trust Fund. There is hereby created and established with the Escrow Agent a special and irrevocable trust fund designated the "Escrow Deposit Trust Fund" to be held in the custody of the Escrow Agent separate and apart from other funds of the Issuer or the Escrow Agent. Section 2.02. Deposit to Escrow Deposit Trust Fund. Concurrently with the execution of this Agreement the Issuer has deposited or caused to be deposited with the Escrow Agent and the Escrow Agent acknowledges receipt of immediately availalle moneys in the amount of $ , for deposit in the Escrow Deposit Trust Fund„,.../The funds deposited in the Escrow Deposit Trust Fund pursuant to the preceding sentence shall, except for a cash balance of $ , be immediately invested by the Escrow Agent in:the Government Obligations described in Exhibit A attached hereto, and retained in the Escrow Deposit Trust Fund until applied as hereinafter authorized. . Section 2.03. Application of Escrow Deposit Trust Fund. The Escrow Agent shall apply the Government Obligations and other moneys or additional property deposited in the Escrow Deposit Trust Fund,together with all incomefaand earnings thereon,in accordance with the provisions hereof. The Escrow Agent shall not inv st any moneys or additional property held hereunder or make substitutions of the Government O ligations hereunder or sell,transfer, or otherwise dispose of the Government Obligations or moneys held hereunder except as provided in this Agreement. Section 2.04. Irrevocab a Trust Created. Except as expressly provided herein,the deposit p p Y P of(or purchase for deposit of)t/e Government Obligations and moneys in the Escrow Deposit Trust Fund shall constitute an irrev cable deposit for the benefit of the owners of the Refunded Bonds and the owners of the Refunded/Bonds shall have an express lien on the principal of and earnings on the Government Obligations�,other moneys and any additional property held in the Escrow Deposit Trust Fund hereunder until pplied in accordance with this Agreement. The Government Obligations, earnings thereon, other moneys and any additional property shall be held in trust by the Escrow Agent and used onljfor the purposes and in the manner provided in this Agreement. Section 2.05. Redemption of Refunded Bonds. The Issuer has irrevocably called the Refunded Bonds maturing on and after November 1,2001,for redemption on November 1,2000 and hereby irrevocably instructs the Escrow Agent,and the Escrow Agent hereby agrees,to at least thirty (30)days,but not more than sixty(60)days,before November 1,2000,mail a notice of redemption substantially in the form attached hereto as Exhibit B to all registered owners of such Refunded Bonds to/be redeemed at their addresses as they appear on the registration books for the Refunded Bonds./ /% Section 2.06. Use of Moneys in Escrow Deposit Trust Fund. On each date-on which principal,premium,and/or interest on any of the Refunded Bonds shall become payable,the Escrow Agent shall use funds in the Escrow Deposit Trust Fund to pay the interest, principal and/or f redemption price of the Refunded Bonds coming due on such dates, as shown on Exhibit C. 3 Section 2.07. Investment of Trust Funds. Subject to the requirements of this Section 2.07, the Issuer may direct in writing the Escrow Agent to invest and reinvest any moneys remaining from time to time in the Escrow Deposit Trust Fund until such time as they are needed, and the Escrow Agent shall comply with such request, otherwise the Escrow Agent shall hold such moneys uninvested(except as otherwise provided herein). Such moneys may be invested and reinvested only in Government Obligations bearing interest at such rate or rates and maturing on such date or dates and in such amounts as directed in writing by the Issuer. The Issuer shall give no such instruction to the Escrow Agent unless the Issuer and the Escrow Agent shall have received in writing an opinion of nationally recognized bond counsel to the effect that such investment of such moneys will not adversely affect the tax-exempt status of the interest on the Refunded Bonds and the Note for federal income tax purposes. Provided further, that no such investment instruction shall be given unless the Issuer and the Escrow Agent shall have received verification from a firm of independent certified public accountants to the effect that,taking into account such investment, the amounts held hereunder will be sufficient to pay the principal,premium, and interest on the Refunded Bonds in full as the same shall become due. Section 2.08. Transfer of Funds After All Payments Required by the Agreement Are Made. After all the principal of, interest on, and redemption premium, if any, with respect to the Refunded Bonds has been paid in full, all remaining moneys and Government Obligations,together with any income and interest thereon,in the Escrow Deposit Trust Fund shall,upon written direction of the Issuer,be transferred to the Issuer by the Escrow Agent and shall be used by the Issuer in the following order of priority(i) if the Note shall be outstanding, to pay principal or interest on the Note, and (ii) otherwise, for any lawful purpose of the Issuer authorized by a written opinion of nationally recognized bond counsel. The Escrow Agent shall have no responsibility for the application of amounts transferred by it to the Issuer as provided above. Section 2.09. Deficiencies. If at any time it shall appear to the.Escrow Agent that the available proceeds in the Escrow Deposit Trust Fund will not be sufficient to make any payment when due to the owners of any of the Refunded Bonds,the Escrow Agent shall notify the Issuer as promptly as possible prior to such payment date and the Issuer agrees that it will make available to the Escrow Agent, from legally available funds, if any, amounts sufficient to eliminate the anticipated deficit so that the Escrow Agent will have sufficient funds to make such payment on the Refunded Bonds. The Escrow Agent shall in no manner be responsible for the Issuer's failure to make such deposits. Section 2.10. Escrow Agent Fees. The Issuer hereby agrees to provide for the payment, from lawfully available funds of the Issuer, of the compensation due and owing the Escrow Agent which compensation shall be paid at such times and in such amounts shown on Exhibit D. In no event shall the Escrow Agent have any lien, security interest or right of set-off whatsoever upon any of the moneys or investments in the Escrow Deposit Trust Fund for the payment of such compensation,or for the payment or reimbursement of any expenses incurred by the Escrow Agent in connection with this Agreement. 4 ARTICLE III F CONCERNING THE ESCROW AGENT Section 3.01. Appointment of Escrow Agent. The Issuer hereby appoints First Union National Bank, Miami, Florida as Escrow Agent under this Agreemeit Section 3.02. Acceptance by Escrow Agent. By execution of this Agreement,the Escrow Agent accepts its duties and obligations hereunder. Section 3.03. Liability of Escrow Agent. The Escrow Agent shall not be liable in connection with the performance of its duties hereunder except for its own negligence,malfeasance or willful misconduct. The Escrow Agent shall not be/liable for any loss or any taxability of interest on the Refunded Bonds or Note resulting from aninvestment made pursuant to the terms and provisions of this Agreement. The Escrow Agent shall not be liable for the accuracy of the calculations as to the sufficiency of moneys and of the principal amount of the'bovernment Obligations and the earnings thereon to pay the Refunded Bonds. So long as the Escrow Agent applies all moneys, additional property and the Government Obligations and the interest earnings therefrom to pay the Refunded Bonds as provided herein, and complies fully with the terms of this Agreement, it shall not be liable for any deficiencies in the amounts necessary to pay the Refunded Bonds caused by such calculations. The Escrow Agent shall keep such books and records as shall be consistent with prudent g � p industry practice and shall make/such books and records available for inspection by the Issuer at all reasonable times. In the event of the Escrow Agent's failure to account for any of the Government Obligations,additional prop�efty or moneys received by it, said Government Obligations, additional property or moneys shall )e and remain the property of the Issuer in trust for the owners of the Refunded Bonds, as herein provided, and if for any reason such Government Obligations or moneys are not properly applied/by the Escrow Agent as herein provided, the Escrow Agent shall be liable to the owners of the Refunded Bonds for the amount thereof until the required application shall be made. The duties and obligations of the Escrow Agent shall be determined by the express provisions of this Agreement. The Escrow Agent may consult with counselwith respect to any matter relevant to this Agreement,who may or may not be counsel to the Issuer,and be entitled to receive from the Issuer reimbursement of the reasonable fees and expenses of such counsel, and in reliance upon the opinion of'such counsel have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the Issuer, and the.Escrow Agent may inigood faith conclusively rely upon such certificate. 5 • 0 Section 3.04. Permitted Acts. The Escrow Agent and its affiliates may become the owner of or may deal in any obligations of the Issuer described herein as fully and with,the same rights as if it were not the Escrow Agent. t Section 3.05. Resignation of Escrow Agent. The Escrow Agent at the time acting hereunder may at any time resign by giving not less than sixty(60)days',:"written notice to the Issuer, but no such resignation shall take effect unless a successor Escrow Agent shall have been appointed by the owners of the Refunded Bonds or by the Issuer as hereinafter provided and such successor Escrow Agent shall have accepted such appointment, in whichAe ent such resignation shall take ,�. effect immediately upon the appointment and acceptance ofa successor Escrow Agent and the transfer to such successor Escrow Agent of the funds and/accounts held by the Escrow Agent hereunder. Section 3.06. Removal of Escrow Agent. (a) The Escrow Agent may be removed at any time if the owners of a majority in aggregate principal amount of the Refunded Bonds then outstanding file a request for removal in writing with the Issuer,but the Escrow Agent shall remain in office until the appointment and taking office of a successor Escrow Agent in accordance with the provisions of this Agreement. A copy de of any such bondowners'request shall be livered by the Issuer to the Escrow Agent. (b) The Escrow Agent may a"lso be removed at any time for any breach of trust or for any violation of this Agreement by a court of competent jurisdiction upon the application of the Issuer or the owners of not less than fifty percent (50%) in aggregate principal amount of the Refunded Bonds then outstanding. (c) The Escrow Agent shall be deemed to have been removed if it is dissolved,becomes incapable of exercising the powers of Escrow Agent hereunder or is taken over by any governmental action. (d) Prior to)he removal of the Escrow Agent,all fees and expenses of the Escrow Agent, including,without limitation,if such removal is without reasonable cause,reasonable attorney's fees and expenses, shall have been paid to the Escrow Agent. Section 307. Successor Escrow Agent. (a) When the position of the Escrow Agent becomes or is about to become vacant, the Issuer shall ippoint a successor Escrow Agent to fill such vacancy. (b) If no appointment of a successor Escrow Agent shall be made pursuant to the foregoing provisions of this Section,the owner of any Refunded Bond then outstanding may, or any Escrow Agent retiring or being removed from such position shall, apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Upon the deposit by the retiring or removed Escrow Agent of all funds and securities held by it under the provisions hereof into the registry of such court, such retiring or removed Escrow Agent shall be relieved of all future duties hereunder. (‘ 6 . ,7 " rr (c) Any corporation or association into with the Escrow Agent maye converted or merged, or with which it may sell its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer shall be and become successor Escrow Agenihereunder without the necessity of any further act. Section 3.08. Limitation on Resignation or Removal. The Escrow Agent may not resign or be removed hereunder unless it also resigns or is removed as Paying Agent for the Refunded Bonds. / ARTICLE IV MISCELLANEOUS Section 4.01. Amendments to this Agreement. This Agreement is made for the benefit of the Issuer and the owners from time to time of the Refunded Bonds and it shall not be repealed, revoked, altered or amended without the written consent all such owners,the Escrow Agent and the Issuer; provided, however, that the Issu,and the Escrow Agent, may, without the consent of, or notice to, such owners, enter into such agreements supplemental to this Agreement as shall not adversely affect the exclusion from gross income for federal income tax purposes of the interest on the Refunded Bonds and the Note an'(d the rights of such owners and as shall not be inconsistent with the terms and provisions of this Agreement, for any one or more of the following purposes: (a) to cure=�an ambiguity or defect or omission in this Agreement; Y �tY . b) to 'ant to, or confer upon,the Escrow Agent for the benefit of the owners of the Note, any adllitional rights,remedies,powers or authority that may lawfully be granted to, or conferred upon, such owners or the Escrow Agent; and - (c) to subject to this Agreement additional funds, securities or properties. The Esc ow Agent shall be entitled to rely exclusively upon an unqualified opinion of Moyle, Flanigan,Katz Kolins,Raymond&Sheehan,P.A. or other nationally recognized bond counsel with respect to compliance with this Section, including the, extent, if any, to which any change, modification, addition or elimination affects the rights of the owners of the Refunded Bonds, or that any instrument executed hereunder complies with the conditions and provisions of this Section. /Section 4.02. Substitution of Securities. Notwithstanding the foregoing or any other provision of this Agreement, at the written direction of the Issuer and upon compliance with the conditions hereinafter stated, the Escrow Agent shall in simultaneous transactions, sell, transfer, otherwise dispose of or request the redemption of the Government Obligations held hereunder and to substitute therefor other Government Obligations, subject to the condition that such moneys or °securities together with the interest or income thereof, shall be sufficient to pay, when due, the i principal of, interest on and redemption premiums,if any,with respect to the Refunded Bonds. The Escrow Agent shall upon the written direction of the Issuer purchase such substituted securities with 7 the proceeds derived from the sale, transfer, disposition or redemption of the Government Obligations held hereunder or from other moneys available. The transactions may be effected only if there shall have been obtained: (1) an opinion from Moyle,Flanigan,Katz,Kolins,.:Raymond& Sheehan,P.A. or other nationally recognized bond counsel to the Issuer and the Escrow Agent to the effect that the disposition and substitution or purchase of such securities will not adversely affect the tax-exempt status of the interest on the Refunded Bonds and Note for federal income tax purposes; and(2)new cash flow schedules showing(i)the cash and Government Obligations to be on deposit in the Escrow Account upon making such substitution, (ii) the dates and amounts of maturing principal and interest to be received by the Escrow Agent from such Government Obligations, and (iii)that the cash on hand in the Escrow Account plus cash to be derivedfrom the maturing principal and interest of such Government Obligations shall be sufficient to pay when due all remaining debt service payments on the Refunded Bonds. If securities are substituted pursuant to this Section 4.02, any surplus moneys resulting from the sale,transfer,other disposition or redemption of the Government Obligations held hereunder and the substitutions therefor of Government Obligations, as shown in the verification referred to in(1) above shall be released from the Trust Estate created hereunder and shall be transferred to the Issuer, and shall be used by the Issuer in the following order Of priority(i) if the Note shall be outstanding, to pay principal and/or interest on the Note, and(ii)/otherwise, for any lawful purpose of the Issuer approved in writing by nationally recognized bond counsel. Section 4.03. Severability. If any one or more of the covenants or agreements provided in this Agreement should be determined by a court of competent jurisdiction to be contrary to law,such covenant or agreement shall be deemed to be separate and shall in no way affect the validity of the remaining provisions of this Agreement. Section 4.04. Agreement All the covenants, promises and agreements in this Agreement contained by or on behalf of the Issuer or by or on behalf of the Escrow Agent shall bind and inure to the benefit of their respective successors and assigns, and to the benefit of the owners of the Refunded Bonds,whether so expressed or not. Section 4.05. Termination. This Agreement shall terminate when all transfers and payments required to be made by the Escrow Agent under the provisions hereof shall have been made. Section 4.06. Governing Law. This Agreement shall be governed by the applicable laws of the State of Florida. Section 4.07. Execution by Counterparts. This Agreement may be executed in several counterparts, each of which shall be regarded for all purposes as an original, and all of which, together/shall constitute and be but one and the same instrument. Section 4.08. Notices. Any notice, demand, direction, request or other instrument authorized or required by this Agreement to be given shall be deemed sufficiently given on the day sent by registered mail, return receipt requested, addressed as follows or to such other address furnished in writing by any of the following to all of the following: " 8 If to the Issuer: Finance Director City of Boynton Beach, Florida 100 East Boynton Beach Boulevard Boynton Beach, Florida 33425 If to the Escrow Agent: First Union National Bank . Corporate Trust Department FL6065 First Union Financial Center 200 South Biscayne Boulevard 14th Floor ,1 Miami,Florida 33131 IN WITNESS WHEREOF, the Issuer and the Escrow Agent have duly executed this Agreement dated as of September 15, 2000. Attest: CITY OF BOYNTON BEACH, FLORIDA r By: By: City Clerk .� Mayor • FIRST UNION NATIONAL BANK, as Escrow Agent 1 By: Vice-President 9 EXHIBIT A ..• GOVERNMENT OBLIGATIONS TO BE DEPOSITED/ INTO ESCROW DEPOSIT TRUST FUND / Maturity • Date Coupon Principal Type Type: =U.S. Treasury • • • • „' EXHIBIT B REDEMPTION NOTICE CITY OF BOYNTON BEACH, FLORIDA r GENERAL OBLIGATION REFUNDING BONDS, SERIES 1992 .: Maturity CUSIP Nos.* / (November 1) / r 2001 103565 DF1// 2002 103565 DG9 2003 103565 DH7 2004 103565�DJ3 2009 103565 DL8 Notice is hereby given that the bonds of the above issue maturing on and after November 1, 2001 are called for payment and redemption on November 1, 2000 (the "Redemption Date") at a redemption price of 101% of the principal amount thereof plus accrued interest thereon to the Redemption Date. The Bonds so called for redemption,should be presented for payment and redemption at the office of the Paying Agent set forth below;/on or after November 1, 2000, and will cease to bear or accrue interest after that date,whether/or not so presented. First Union National Bank FirstUnion Customer Information Center Corporate Trust Operations 1/25 West W.T. Harris Boulevard, 3C3 ,`Charlotte,N.C. 28262-1153 1-800-665-9343 i Withholding of.31% of gross redemption proceeds of any payment made within the United States of America may be required by the Interest and Dividend Tax Compliance Act of 1983 unless the Paying Agent/has the correct taxpayer identification number (social security or employer identification number) or exemption certificate of the payee. Please furnish a properly completed IRS Form W-9 or exemption. certificate or equivalent when presenting your securities for redemption. DATED this_day of , 2000. FIRST UNION NATIONAL BANK * / / CUSIP numbers are included solely for the convenience of the owners,and no representation / is made as to the correctness of the CUSIP numbers indicated in this Redemption Notice. B-1 / EXHIBIT C / • REFUNDED BONDS -DEBT SERVICE SCHEDULE f Y . Called Premium 09 Date Principal Principal 1% Interest Total 11/01/00 $ 735,000.00 $4,960,000.00 $ 49,600.00 $168,721.25 $5,913,321.25 / • C=1 EXHIBIT D • ESCROW AGENT FEES AND EXPENSES /r (i) In consideration of the services rendered by the Escrow Agent, the Issuer agrees to pay the Escrow Agent a one-time fee of$1000.00 to be paid at closing/and not from the escrow fund for all services to be incurred as Escrow Agent in connection with such services, including the cost of giving the notice of redemption. (ii) The Issuer shall also reimburse the Escrow Agentifor any extraordinary expenses incurred by it in connection herewith. The term "extraordinary expenses" includes (a) expenses arising out of the assertion of any third party to`aany interest in the Escrow Deposit Trust Fund or any challenge to the validity hereof, including reasonable attorneys' fees, (b) expenses relating to any substitution under Section 4.02 hereof, and(c) expenses (other than ordinary expenses)not occasioned by the Escrow Holder's misconduct or negligence. (iii) The fees and expenses payable by the Issuer under Sections (i) or(ii) shall not be paid from the Escrow Deposit Trust Fund,but shall be paid by the Issuer from legally available funds of the Issuer. ' A • / I f G:\02345130\Escrow draft 1.wpd D-1 September , 2000 $ CITY OF BOYNTON BEACH,FLORIDA PROMISSORY NOTE KNOW ALL MEN BY THESE PRESENTS that the City of Boynteach, Florida(the "City"),a municipal corporation and political subdivision of the State of Flonda created and existing pursuant to the Constitution and the laws of the State of Florida, for value received,promises to pay to the order of Bank of America,N.A. or registered assigns(hereinafter,the "Owner"), the principal sum of$ together with interest on the principal balance outstanding at the rate per annum of %(subject to adjustment as hereinafter provided)based/upon a year of 360 days consisting of twelve 30-day months. Principal of and interest on this Note are payab a in lawful money of the United States of America at such place as the Owner may designate toihe City in writing, in the following manner: Interest shall be payable on the outstandi g principal amount of this Note on the first day of each May and November,commencing May/2001. Installments of principal shall be due hereon on the first day of each May and Novembercommencing May 1,2000,in accordance with the table set forth below: Principal Installment Installment ,Due Date Payable 5/1/01 11/1/01 5/1/02 11/1/02 5/1/03 11/1/03 5/1/04 _ 11/1/04 5/1/05 11/1/05 5/1/06 11/1/06 / 5/1/07 11/1/07 11/1/08 5/1/09 11/1/09 The entire unpaid principal balance, together with all accrued and unpaid interest thereon, shall be due and payable in full on November 1,2009. All payments by the Citypursuant to this Note shall apply first to accrued interest, then to other charges, due the Owner, and the balance thereof shall apply tothe principal sum due. / The principal of this Note may not be prepaid at the option of the City prior to maturity. 6 If any payment hereunder is not made when due,then if such payment is notmade within ten Business Days after written demand therefor by the Owner, the Owner may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in ally such default and .9� acceleration, the City shall also be obligated to pay, from lawfully available funds, all costs of collection and enforcement hereof,including such fees as may be incurred on appeal_or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes, and proceedings seeking adequate protection or relief from the automatic stay. ' To the extent permitted by law, interest at the lesser of 12% per annum or the maximum lawful rate per annum shall be payable on the entire pri cipal balance owing hereunder from and after the occurrence of and during the continuation of aadefault described in the preceding paragraph, irrespective of a declaration of acceleration of maturity. / The City, to the extent permitted by law hereby waives presentment, demand,protest and notice of dishonor. The City, to the extent permitted by law, and the Owner,by acceptance hereof, hereby waive trial by jury in any litigation commenced by either in respect hereof or of the / Resolution. f The full faith, credit and taxing power of the City are irrevocably pledgedto the prompt payment of the principal of and interest on this Note. The City has covenanted in the Resolution (hereinafter defined)that while this Note is outstanding there shall be assessed,levied and collected a tax, on all taxable property within the corporate limits of the City (excluding exemptions as required by applicable law) sufficient in amount to pay the principal of and interest on this Note as the same shall become due. / This Note is issued pursuant to Resolution No. R00- duly adopted by the City on September 5, 2000, as from time to time amended and supplemented (herein referred to as the "Resolution"),and�is subject to all the terms and conditions of the Resolution. All terms,conditions and provisions of the Resolution are by this reference thereto incorporated herein as a part of this Note. This Note may be exchanged or transferred by the Owner hereof but only upon the registrat'on books maintained by the City and in the manner provided in the Resolution. "I It is hereby certified,recited and declared that all acts,conditions and prerequisites required to exist,happen and be performed precedent to and in the execution, the delivery and the issuance of this Note do exist, have happened and have been performed in due time, form and manner as . 2 required by law, and that the issuance of this Note is in full compliance with and does not'exceed .. or violate any constitutional or statutory limitation. IN WITNESS WHEREOF, City of Boynton Beach, Florida has caused this Note to be executed in its name by the manual signature of its Mayorand attested by the,Manual signature of its Clerk, and its seal to be impressed hereon, all this 15th day of September;2000. CITY OF BOYNTON BEACH,FLORIDA [SEAL] By: / Mayor Attest: City Clerk /J G\02345\30\Promissory Note(1).wpd 3 • . RESOLUTION NO. R 01- 193 • A SERIES RESOLUTION PROVIDING FOR THE ISSUANCE OF NOT EXCEEDING $27,000,000 AGGREGATE PRINCIPAL AMOUNT QF UTILITY SYSTEM REVENUE REFUNDING BONDS, SERIES 2002; PROVIDING A METHOD FOR FIXING AND DETERMINING THE PRINCIPAL AMOUNT, INTEREST RATES, MATURITY DATES, REDEMPTION PROVISIONS AND OTHER DETAILS OF SAID BONDS; AUTHORIZING THE MAYOR TO AWARD THE SALE OF THE BONDS TO BANC OF AMERICA SECURITIES LLC; FINDING NECESSITY FOR A NEGOTIATED SALE OF SUCH BONDS; PROVIDING A METHOD FOR APPROVING THE FORM OF AND AUTHORIZING THE USE OF A PRELIMINARY OFFICIAL STATEMENT AND AUTHORIZING THE PREPARATION, APPROVAL AND EXECUTION OF A FINAL OFFICIAL STATEMENT IN CONNECTION WITH SUCH BONDS; AUTHORIZING THE EXECUTION OF A FORWARD DELIVERY BOND PURCHASE CONTRACT AND A BOND REGISTRAR AGREEMENT; AUTHORIZING THE REDEMPTION OF THE CITY'S UTILITY SYSTEM REVENUE BONDS, SERIES 1992; PROVIDING A METHOD FOR APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF AN ESCROW DEPOSIT AGREEMENT; PROVIDING FOR CERTAIN CONTINUING DISCLOSURE OBLIGATIONS OF THE CITY; PROVIDING FOR THE APPLICATION OF THE PROCEEDS OF SAID BONDS AND CERTAIN OTHER MONEYS; AUTHORIZING THE PURCHASE OF A BOND INSURANCE POLICY AND MAKING CERTAIN COVENANTS IN CONNECTION THEREWITH; DESIGNATING THE BOND REGISTRAR FOR SAID BONDS; CONTAINING CERTAIN AUTHORIZATIONS AND OTHER PROVISIONS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Boynton Beach, Florida (the "City") is authorized by the Constitution and laws of the State of Florida, including the City's Charter and Chapter 166, • Florida Statutes, to issue revenue bonds of the City payable from Pledged Revenues (as defined in the Bond Resolution hereinafter mentioned) for certain purposes; and WHEREAS, pursuant to Resolution No. R 92-96 adopted by the City Commission of the City (the "City Commission") on June 16, 1992, as amended (the "Bond Resolution") obligations of the City may be issued and may be secured by a lien upon and pledge of certain "Pledged Revenues" as defined in and to the extent set forth in the Bond Resolution; and WHEREAS, the City desires to issue Bonds (the "Series 2002 Bonds") under the Bond Resolution to provide funds to pay the cost of various capital expenditures of the City, to provide for the refunding and defeasance of the City Utility System Revenue Bonds, Series 2002, maturing on and after November 1, 2002 (the "Refunded Bonds") and to pay certain costs of issuing such Series 2002 Bonds; and WHEREAS, prior to the issuance of the Series 2002 Bonds the conditions set forth in Section 209 of the Bond Resolution shall be satisfied; and WHEREAS, the City Commission has determined that the sale of such Series 2002 Bonds through negotiation with the Original Purchaser (hereinafter defined) is in the best interest of the City; and WHEREAS, the City Commission has received from Banc of America Securities LLC (the "Original Purchaser") a form of a Forward Delivery Bond Purchase Contract by and between the City and the Original Purchaser whereby the Original Purchaser would agree to purchase the Series 2002 Bonds, and the City Commission has determined that the authorization of the acceptance of such proposal pursuant to the terms set forth in Section 6 hereof is in the best interests of the City and will effect the purposes set forth in the Bond Resolution; and WHEREAS, it is necessary and desirable to approve the form and use of a Preliminary Official Statement and to approve the preparation and execution of a Final Official Statement in connection with the issuance of such Series 2002 Bonds; and WHEREAS, it is necessary and desirable to specify a method for determining the dates, the interest rates, maturity dates, and redemption provisions for such Series 2002 Bonds and to appoint The Bank of New York as Bond Registrar for such Series 2002 Bonds; and WHEREAS, the City has received a commitment from Financial Guaranty Insurance Company to issue its municipal bond insurance policy insuring the payment of the principal of and interest on the Series 2002 Bonds and it is necessary and desirable to accept such commitment; and WHEREAS, the Bond Resolution permits the City to refund and defease the lien of Bonds issued thereunder by setting funds aside in an escrow fund to pay the principal of, interest on, and redemption premium, if any, on such Bonds as the same shall become due, and the City desires to refund and defease the lien of the Utility System Revenue Bonds, Series 1992 maturing on and after November 1, 2002(the "Refunded Bonds") as shall be further set forth in the Escrow Deposit Agreement (hereinafter defined); and WHEREAS, the City desires to approve the form and use of an escrow deposit agreement to provide for payment of the Refunded Bonds. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA: Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the provisions of the Charter of the City of Boynton Beach, Florida, the Constitution of the State of 2 Florida, including, but not limited to, Article VIII, Section 2 thereof, and other applicable provisions of law, including Chapter 166, Florida Statutes, and the Bond Resolution. Section 2. Definitions. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Bond Resolution. The following terms, when used in this Resolution or in the Bond Resolution, as amended hereby, shall have the following meanings: "Business Day" shall mean any day other than a Saturday, Sunday or other day on which the Bond Registrar is lawfully and temporarily closed or a day on which the New York Stock Exchange is lawfully and temporarily closed. "Closing Date" shall mean the date on which the Series 2002 Bonds are issued and delivered by the City and paid for by the Original Purchaser. "Interest Payment Date" shall mean May 1 and November 1 of each year, commencing November 1, 2002. "Project" means various capital expenditures of the City as authorized by the City Commission from time to time, including reimbursement to the City of such expenditures incurred on and after May 9, 2001. Section 3. Authorization of Bonds. Bonds are hereby authorized to be issued pursuant to this Resolution and Section 209 of the Bond Resolution in the aggregate principal amount of not to exceed $27,000,000. The Bonds hereby authorized shall be known as "Utility System Revenue Refunding Bonds, Series 2002" (the "Series 2002 Bonds"). Prior to the issuance of the Series 2002 Bonds the conditions of Section 209 of the Bond Resolution shall be satisfied. The Series 2002 Bonds are being issued to provide funds to pay the Cost of the Project, to refund and defease the Refunded Bonds and to pay costs of issuing the Series 2002 Bonds. Section 4. Terms of the Series 2002 Bonds. (a) Form of Bonds. The.Series 2002 Bonds shall be substantially in the form of the Bonds set forth in the Bond Resolution, with such changes as may be necessary or appropriate to conform to the provisions of this Resolution and the terms of the Series 2002 Bonds set forth herein as may be approved by the officers of the City executing the Series 2002 Bonds, such execution to be conclusive evidence of such approval. (b) Amounts. Maturities. Redemption Provisions and Interest Rates. The Series 2002 Bonds will consist of such aggregate principal amount of Current Interest Serial Bonds and such aggregate principal amount of Current Interest Term Bonds as shall be determined by the Mayor as hereinafter provided. The Series 2002 Bonds shall be issued in the denomination of$5,000 and integral multiples thereof, shall be issued in registered form, shall be numbered from R-1 upwards, shall be dated 3 their date of initial issuance and delivery, which shall be August 6, 2002, unless another date shall be agreed upon by the Mayor and the Original Purchaser, and shall bear interest from such date, payable semi-annually on the first day of May and November of each year, commencing November 1, 2002. The Series 2002 Bonds shall be issued in the aggregate principal amount, not in excess of$27,000,000, shall bear interest at the rates per annum computed on the basis of a 360-day year consisting of twelve 30-day months, and shall mature on November 1 of the years and shall have such redemption provisions, all as set forth in a certificate executed by the Mayor at or before the issuance of the Series 2002 Bonds, provided however that the arbitrage yield on the Series 2002 Bonds shall not exceed 6.00 percent per annum and the fmal maturity of the Series 2002 Bonds shall not be after November 1, 2020. Principal of the Series 2002 Bonds shall be payable only upon presentation and surrender of such Bonds at the principal office of the Bond Registrar. Interest on the Series 2002 Bonds shall be paid by check or draft, or at the option of any registered owner of not less than $1,000,000 in principal amount of the Series 2002 Bonds, exercised in writing delivered to the Bond Registrar prior to the Regular Record Date or Special Record Date, by wire transfer to an account in the United States designated by such registered owner, mailed or wired by the Bond Registrar to the registered owners of the Series 2002 Bonds as shown on the registration books kept by the Bond Registrar on the Regular Record Date or the Special Record Date. (c) Reserve Account Deposit Requirement. The Reserve Account Requirement for the Series 2002 Bonds shall be an amount equal to the lesser of (i) 10% of the aggregate stated principal amount of the Series 2002 Bonds Outstanding, (ii)the maximum amount of principal and interest scheduled to become due on the Outstanding Series 2002 Bonds in the current or any succeeding Bond Year, or (iii) 125% of the average annual debt service on the Series 2002 Bonds (calculated on a Bond Year basis at the time of issuance only). If the Series 2002 Bonds have more than a de- minimis amount of original issue discount or premium (as defined in Treas. Reg. §1.148-1(b)), then the issue price (as defined in said regulation) of the Series 2002 Bonds (net of pre-issuance accrued interest) shall be used to measure the aforesaid 10% limitation in lieu of the stated principal amount of the Series 2002 Bonds. The Series 2002 Reserve Subaccount, which is hereby ordered created, shall be funded in an amount equal to the Reserve Account Requirement for the Series 2002 Bonds at the time of initial issuance and delivery of the Series 2002 Bonds, and in the event any deficiency is created in the Series 2002 Reserve Subaccount, the Reserve Account Deposit Requirement for such Series shall be, in each month, an amount equal to at least one twenty-fourth (1/24) of the amount of such deficiency. Section 5. Amendments to Bond Resolution. The amendments to the Bond Resolution set forth in this Section 5 shall be effective upon, and only upon the issuance of the Series 2002 Bonds. (a) Section 101 of the Bond Resolution is amended by the addition thereto of two new definitions as follows: 4 "2002 Bond Insurance Policy" shall mean the municipal bond new issue insurance policy issued by the 2002 Bond Insurer that guarantees payment of principal of and interest on the Series 2002 Bonds. "2002 Bond Insurer" shall mean Financial Guaranty Insurance Company, a New York stock insurance company, or any successor thereto. (b) A new Section 718 is added to the Bond Resolution to provide as follows: "Section 718. Provisions concerning 2002 Bond Insurer. For so long as the 2002 Bond Insurance Policy shall be outstanding: (a) in determining whether payment of the principal of and interest on the Bonds shall have been timely made, no effect shall be given to payments made under the 2002 Bond Insurance Policy, (b)the City and the Bond Registrar shall notify the 2002 Bond Insurer immediately of any payment default on the Bonds, and the City shall notify the 2002 Bond Insurer of any other default hereunder known to the City within thirty (30) days after the City acquires knowledge of such default, (c) for all purposes of Article VIII hereof governing events of default and remedies, except the giving of notice of default to Bondholders, the 2002 Bond Insurer shall be deemed to be the sole holder of the Series 2002 Bonds for so long as it has not failed to comply with its payment obligations under the 2002 Bond Insurance Policy, and the 2002 _ Bond Insurer shall be entitled to notify the City of the occurrence of an event of default, which notice the City shall be required to accept, (d) in determining whether the rights of Bondholders are adversely affected by actions taken pursuant to the terms and provisions hereof, no effect shall be given to payments made under the 2002 Bond Insurance Policy, (e) no amendment or supplement to the Resolution shall be effective without the prior written consent of the 2002 Bond Insurer, and each rating agency maintaining a rating on the Bonds shall be provided a copy of each proposed supplemental resolution at least 15 days in advance of its adoption, and the 2002 Bond Insurer shall be provided with a full transcript of all proceedings relating to the execution of any supplemental resolution. (f) (i) If, at the close of business on the Business Day preceding any Interest Payment Date for the Series 2002 Bonds, there is not on deposit with the Bond Registrar sufficient monies available to pay all principal of and interest on the Series 2002 Bonds due on such date, the City and the Bond Registrar shall immediately notify the 2002 Bond Insurer and State Street Bank and Trust Company, N.A., New York, New York or its successor as its Fiscal Agent (the "Fiscal Agent") of the amount of such deficiency. If, by said Interest Payment Date, the City has not provided the amount of such deficiency, the 5 Bond Registrar shall simultaneously make available to the 2002 Bond Insurer and to the Fiscal Agent the registration books for the Series 2002 Bonds maintained by the Bond Registrar. In addition: (A) The Bond Registrar shall provide the 2002 Bond Insurer with a list of the Bondholders entitled to receive principal or interest payments from the 2002 Bond Insurer under the terms of the 2002 Bond Insurance Policy and shall make arrangements for the 2002 Bond Insurer and its Fiscal Agent (1) to mail checks or drafts to Bondholders entitled to receive full or partial interest payments from the 2002 Bond Insurer and (2) to pay principal of the Bonds surrendered to the Fiscal Agent by the Bondholders entitled to receive full or partial principal payments from the 2002 Bond Insurer; and (B) The Bond Registrar shall, at the time it makes the registration books available to the 2002 Bond Insurer pursuant to (A) above, notify Bondholders entitled to receive the payment of principal of or interest on the Bonds from the 2002 Bond Insurer(1) as to the fact of such entitlement, (2) that the 2002 Bond Insurer will remit to them all or part of the interest payments coming due subject to the terms of the 2002 Bond Insurance Policy, (3)that, except as provided in paragraph(ii)below, in the event that any Bondholder is entitled to receive full payment of principal from the 2002 Bond Insurer, such Bondholder must tender his Series 2002 Bond with the instrument of transfer in the form provided on the Series 2002 Bond executed in the name of the 2002 Bond Insurer, and (4) that, except as provided in paragraph (ii) below, in the event that such Bondholder is entitled to receive partial payment of principal from the 2002 Bond Insurer, such Bondholder must tender his Series 2002 Bond for payment first to the Bond Registrar, which shall note on such Series 2002 Bond the portion of principal paid by the Bond Registrar, and then, with an acceptable form of assignment executed in the name of the 2002 Bond Insurer, to the Fiscal Agent, which will then pay the unpaid portion of principal to the Bondholder subject to the terms of the 2002 Bond Insurance Policy. (ii) In the event that the Bond Registrar has notice that any payment of principal of or interest on a Series 2002 Bond has been recovered from a Bondholder pursuant to the United States Bankruptcy Code by a trustee in bankruptcy in accordance with the final, nonappealable order of a court having competent jurisdiction, the Bond Registrar shall, at the time it provides notice to the 2002 Bond Insurer, notify all Bondholders that in the event that any Bondholder's payment is so recovered, such Bondholder will be entitled to payment from the 2002 Bond Insurer to the extent of such recovery, and the Bond Registrar shall furnish to the 2002 Bond Insurer its records evidencing the payments of principal of and interest on the Series 2002 Bonds which have 6 been made by the Bond Registrar and subsequently recovered from Bondholders, and the dates on which such payments were made. (iii) The 2002 Bond Insurer shall, to the extent it makes payment of principal of or interest on the Series 2002 Bonds, become subrogated to the rights of the recipients of such payments in accordance with the terms of the 2002 Bond Insurance Policy and, to evidence such subrogation, (1) in the case of subrogation as to claims for past due interest, the Bond Registrar shall note the 2002 Bond Insurer's rights as subrogee on the registration books maintained by the Bond Registrar upon receipt from the 2002 Bond Insurer of proof of the payment of interest thereon to the Bondholders of such Bonds and (2) in the case of subrogation as to claims for past due principal, the Bond Registrar shall note the 2002 Bond Insurer's rights as subrogee on the registration books for the Series 2002 Bonds maintained by the Bond Registrar upon receipt of proof of the payment of principal thereof to the Bondholders of such Series 2002 Bonds. Notwithstanding anything in this Resolution or the Series 2002 Bonds to the contrary, the Bond Registrar shall make payment of such past due interest and past due principal directly to the 2002 Bond Insurer to the extent that the 2002 Bond Insurer is a subrogee with respect thereto." (g) The notice addresses for the 2002 Bond Insurer and the Fiscal Agent shall be as follows: 115 Broadway New York, New York, 10006 Attention: General Counsel State Street Bank and Trust Company, N.A. 61 Broadway New York, New York 10006 Attention: Corporate Trust Department (h) The 2002 Bond Insurer shall be provided with the following information: (i) Within 120 days after the end of each of the City's Fiscal Years, the annual audited fmancial statements, a statement of the amount on deposit in the Reserve Account as of the last valuation, a copy of the budget for the current Fiscal Year, and, if not presented in the audited fmancial statements, a statement of the Net Revenues pledged to payment of Bonds in such previous Fiscal Year; (ii) a copy of the official statement or other disclosure, if any, prepared in connection with the issuance of additional debt, whether or not it is on a parity with the insured issue, within 30 days after the sale thereof; (iii) . a notice of any draw upon or deficiency due to market fluctuation in the amount, if any, on deposit in the Reserve Account; 7 (iv) a notice of the redemption, other than mandatory sinking fund redemption, of any of the Bonds, including the principal amount, maturities and CUSIP numbers thereof; (v) Simultaneously with the delivery of the annual audited financial statements: (A) The number of system users as of the end of the Fiscal Year; (B) Notification of the withdrawal of any system user comprising 4% or more of system sales measured in terms of revenue dollars since the last reporting date; and (C) Any significant plant retirements or expansions planned or undertaken since the last report date; and (vi) Such additional information as the 2002 Bond Insurer may reasonably request from time to time. (i)The following requirements shall be fulfilled to the satisfaction of the 2002 Bond Insurer (including incorporation of relevant conditions herein) in the event the Reserve Account Requirement is fulfilled by a deposit of credit instrument (other than a credit instrument issued by the 2002 Bond Insurer) in lieu of cash: 1. A surety bond or insurance policy issued to the Bond Registrar (the "Fiduciary"), as agent of the Bondholders, by a company licensed to issue an insurance policy guaranteeing the timely payment of debt service on the Bonds (a "municipal bond insurer") may be deposited in the Reserve Account to meet the Reserve Account Requirement if the claims paying ability of the issuer thereof shall be rated "AAA" or "Aaa" by S&P or Moody's, respectively. - 2. A surety bond or insurance policy issued to the Fiduciary, as agent of the Bondholders, by an entity other than a municipal bond insurer may be deposited in the Reserve Account to meet the Reserve Account Requirement if the form and substance of such instrument and the issuer thereof shall be approved by the 2002 Bond Insurer. 3. An unconditional irrevocable letter of credit issued to the Fiduciary, as agent of the Bondholders, by a bank may be deposited in the Reserve Account to meet the Reserve Account Requirement if the issuer thereof is rated at least "AA" by S&P. The letter of credit shall be payable in one or more draws upon presentation by the beneficiary of a sight draft accompanied by its certificate that it then holds insufficient funds to make a required payment of principal or interest on bonds. The draws shall be payable within two days of presentation of the sight draft. The letter of credit shall be for a term of not less than three years. The issuer of the 8 letter of credit shall be required to notify the Issuer and the Fiduciary, not later than 30 months prior to the stated expiration date of the letter of credit, as to whether such expiration date shall be extended, and if so, shall indicate the new expiration date. If such notice indicates that the expiration date shall not be extended, the City shall deposit in the Reserve Account an amount sufficient to cause the cash or Investment Obligations on deposit in the Reserve Account together with any other qualifying credit instruments, to equal the Reserve Account Requirement on all outstanding Bonds, such deposit to be paid in equal installments on at least a semi-annual basis over the remaining term of the letter of credit, unless the Reserve Account credit instrument is replaced by a Reserve Account credit instrument meeting the requirements in either of clauses 1 or 2 above or this clause 3. The letter of credit shall permit a draw in full not less than two weeks prior to the expiration or termination of such letter of credit if the letter of credit has not been replaced or renewed. The Resolution shall direct the Fiduciary to draw upon the letter of credit prior to its expiration or termination unless an acceptable replacement is in place or the Reserve Account is fully funded in its required amount. 4. The use of any Reserve Account credit instrument pursuant to this clause (i) shall be subject to receipt of an opinion of counsel acceptable to the 2002 Bond Insurer and in form and substance satisfactory to the 2002 Bond Insurer as to the due authorization, execution, delivery and enforceability of such instrument in accordance with its terms, subject to applicable laws affecting creditors' rights generally, and, in the event the issuer of such credit instrument is not a domestic entity, an opinion of foreign counsel in form and substance satisfactory to the 2002 Bond Insurer. In addition, the use of an irrevocable letter of credit shall be subject to receipt of an opinion of counsel acceptable to the 2002 Bond Insurer and in form and substance satisfactory to the 2002 Bond Insurer to the effect that requirements under such letter of credit would not constitute avoidable preferences under Section 547 of the U.S. Bankruptcy Code or similar state laws with avoidable preference provisions in the event of the filing of a petition for relief under the U.S. Bankruptcy Code or similar state laws by or against the issuer of the bonds (or any other account party under the letter or credit). - 5. The obligation to reimburse the issuer of a Reserve Account credit instrument for any fees, expenses, claims or draws upon such Reserve Account credit instrument shall be subordinate to the payment of debt service on the bonds. The right of the issuer of a Reserve Account credit instrument to payment or reimbursement of its fees and expenses shall be subordinated to cash replenishment of the Reserve Account, and, subject to the second succeeding sentence, its right to reimbursement for claims or draws shall be on a parity with the cash replenishment of the Reserve 9 Account. The Reserve Account credit instrument shall provide for a revolving feature under which the amount available thereunder will be reinstated to the extent of any reimbursement of draws or claims paid. If the revolving feature is suspended or terminated for any reason, the right of the issuer of the Reserve Account credit instrument to reimbursement will be further subordinated to cash replenishment of the Reserve Account to an amount equal to the difference between the full original amount available under the Reserve Account credit instrument and the amount then available for further draws or claims. If(a)the issuer of a Reserve Account credit instrument becomes insolvent or (b) the issuer of a Reserve Account credit instrument defaults in its payment obligations thereunder or (c) the claims-paying ability of the issuer of the insurance policy or surety bond falls below a S&P "AAA" or a Moody's "Aaa" or (d) the rating of the issuer of the letter of credit falls below a S&P "AA", the obligation to reimburse the issuer of the Reserve Account credit instrument shall be subordinate to the cash replenishment of the Reserve Account. 6. If (a) the revolving reinstatement feature described in the preceding paragraph is suspended or terminated or (b) the rating of the claims paying ability of the issuer of the surety bond or insurance policy falls below a S&P "AAA" or a Moody's "Aaa" or (c) the rating of the issuer of the letter of credit falls below a S&P "AA", the City shall either (i) deposit into the Reserve Account an amount sufficient to cause the cash or permitted investments on deposit in the Reserve Account to equal the Reserve Account Requirement on all outstanding Bonds, such amount to be paid over the ensuing five years in equal installments deposited at least semi-annually or (ii) replace such instrument with a surety bond, insurance policy or letter of credit meeting the requirements in any of 1-3 above within six months of such occurrence. In the event (a) the rating of the claims-paying ability of the issuer of the surety bond or insurance policy falls below "A" or (b) the rating of the issuer of the letter of credit falls below "A" or (c) the issuer of the Reserve Account credit instrument defaults in its payment obligations or (d) the issuer of the Reserve Account credit instrument becomes insolvent, the Issuer shall either (i) deposit into the Reserve.Account an amount sufficient to cause the cash or permitted investments on deposit in the Reserve Account to equal to Reserve Account Requirement on all outstanding Bonds, such amount to be paid over the ensuing year in equal installments on at least a monthly basis or (ii) replace such instrument with a surety bond, insurance policy or letter or credit meeting the requirements in any of 1-3 above within six months of such occurrence. 7. Where applicable, the amount available for draws or claims under the Reserve Account credit instrument may be reduced by the amount of cash • 10 • of permitted investments deposited in the Reserve Account pursuant to clause (i) of the preceding subparagraph 6. 8. If the City chooses the above described alternatives to a cash-funded Reserve Account, any amounts owed by the City to the issuer of such credit instrument as a result of a draw thereon or a claim thereunder, as appropriate, shall be included in any calculation of debt service requirements required to be made pursuant to this Resolution for any purpose, e.g., rate covenant or additional bonds test. 9. The Resolution shall require the Fiduciary to ascertain the necessity for a claim or draw upon the Reserve Account credit instrument and to provide notice to the issuer of the Reserve Account credit instrument in accordance with its terms not later than three days (or such longer period as may be necessary depending on the permitted time period for honoring a draw under the Reserve Account credit instrument)prior to each interest payment date. 10. Cash on deposit in the Reserve Account shall be used (or investments purchased with such cash shall be liquidated and the proceeds applied as required)prior to any drawing on any Reserve Account credit instrument. If an to the extent that more than one Reserve Account, drawings thereunder and repayments of costs associated therewith shall be made on a pro rata basis, calculated by reference to the maximum amounts available thereunder. Section 6. Approval of Sale of the Series 2002 Bonds. The City hereby determines that a negotiated sale of the Series 2002 Bonds is in the best interest of the City and the citizens and inhabitants of the City by reason of the volatility of the market for tax exempt bonds. Attached hereto as Exhibit "A" is a form of Forward Delivery Purchase Contract (the "Bond Purchase Contract"). The City approves the Bond Purchase Contract together with such changes thereto as are necessary to reflect the terms of the Series 2002 Bonds and to reflect the purchase price thereof, provided, that the underwriter's discount shall not exceed $3.95 per thousand dollars of principal amount of the Series 2002 Bonds, and with such other completions, additions and/or changes as shall be approved by the Mayor, such approval to be conclusively established by such execution, and the Mayor is hereby authorized and directed for and in the name of the City to execute, and the City Clerk is authorized to attest to and affix the seal of the City to and deliver the Bond Purchase Contract to the Original Purchaser. Prior to the execution of the Bond Purchase Contract, the Original Purchaser shall file with the City the disclosure statement required by Section 218.385, Florida Statutes, and the competitive bidding for the Series 2002 Bonds is hereby waived pursuant to the authority of Section 218.385(1), Florida Statutes. Notwithstanding any other provision hereof, the Delayed Delivery Pre-Closing Date, as defined in the Bond Purchase Contract, shall be on or before August 31, 2001 unless the City Commission shall by subsequent resolution authorize a later date. 11 Section 7. Execution and Delivery of the Series 2002 Bonds. The Mayor and the City Clerk are hereby authorized and directed on behalf of the City to execute the Series 2002 Bonds as provided in the Bond Resolution and such officials are hereby authorized and directed upon the execution of the Series 2002 Bonds in the form and manner set forth herein and in the Bond Resolution to deliver the Series 2002 Bonds in the amount authorized to be issued hereunder to the Bond Registrar for authentication(upon the satisfaction of the conditions of Section 209 of the Bond Resolution) and delivery to or upon the order of the Original Purchaser upon payment of the purchase price set forth herein. Section 8. Application of Proceeds. Proceeds from the sale of the Series 2002 Bonds and any amounts available under the Bond Resolution as a result of the refunding and defeasance of the Refunded Bonds shall be applied for the purposes described herein as provided in a certificate executed by the Mayor at or prior to the issuance of the Series 2002 Bonds. Section 9. Bond Registrar. The City hereby appoints The Bank of New York(the "Bank") as Bond Registrar with respect to the Series 2002 Bonds. The form of Bond Registrar Agreement attached hereto as Exhibit "B" is hereby approved and the Mayor is hereby authorized and directed for and in the name of the City to execute, and the City Clerk is authorized to attest and apply the seal of the City to the Bond Registrar Agreement, with such changes, alterations and corrections thereto as shall be approved by the officials executing the same, such execution to constitute conclusive evidence of such approval. - Section 10. Official Statement. The City hereby approves the form and content of, and authorizes the use by the Original Purchaser in marketing the Series 2002 Bonds, of a Preliminary Official Statement relating to the Series 2002 Bonds in the form of the document attached hereto as Exhibit "C," together with such other changes, alterations and corrections therein as may be approved by the City Manager, who is hereby authorized to approve the final form of the Preliminary Official Statement, such approval to be conclusively established by the execution by the City Manager of a certificate "deeming fmal" the Preliminary Official Statement for purposes of Securities and Exchange Commission Rule 15c2-12, which execution is hereby authorized. The preparation of a fmal Official Statement for the Series 2002 Bonds, which shall be in substantially the form of the Preliminary Official Statement, changed to reflect the terms of the Series 2002 Bonds and with such other changes, alterations and corrections therein as may be approved by the Mayor and City Manager, such approval to be conclusively established by such execution, is hereby authorized, and upon preparation thereof the Mayor and the City Manager are authorized and directed for and in the name of the City to execute and deliver the Official Statement. Section 11. Authorization for Bond Insurance. The Mayor, the Finance Director and the City Manager, or any of them, are authorized to arrange for municipal bond insurance on the Series 2002 Bonds.to be provided by the 2002 Bond Insurer, to pay or cause to be paid the premium with respect thereto, and to take all actions and execute such documents as may be required in connection therewith. 12 • Section 12. Book Entry System. The City is authorized and directed to execute a Blanket Issuer Letter of Representations in the form attached hereto as Exhibit "D," and to comply with the provisions thereof. Section 13. Compliance with Tax Requirements. The City hereby covenants and agrees, for the benefit of the Bondholders from time to time of the Series 2002 Bonds, to comply with the requirements applicable to it contained in Section 103 and Part IV of Subchapter B of Chapter 1 of the Internal Revenue Code of 1986, as amended (the "Code")to the extent necessary to preserve the exclusion of interest on the Series 2002 Bonds from gross income for federal income tax purposes. Specifically, without intending to limit in any way the generality of the foregoing, the City covenants and agrees: (1) to pay to the United States of America from, to the extent legally available, the funds and sources of revenues pledged to the payment of the Series 2002 Bonds, and from any other legally available funds, at the times and to the extent required pursuant to Section 148(f) of the Code, the excess of the amount earned on all non- purpose investments (as defined in Section 148(f)(6) of the Code) (other than investments attributed to an excess described in this sentence) over the amount which would have been earned if such non-purpose investments were invested at a rate equal to the yield on the Series 2002 Bonds, plus any income attributable to such excess (the "Rebate Amount"); (2) to maintain and retain all records pertaining to and to be responsible for making or causing to be made all determinations and calculations of the Rebate Amount and required payments, of the Rebate Amount as shall be necessary to comply with the Code; (3) to refrain from using proceeds from the Series 2002 Bonds in a manner that would cause the Bonds or any of them, to be classified as private activity bonds under Section 141(a) of the Code; and (4) to take or refrain from taking any action that would cause the Series 2002 Bonds,or any of them, to become arbitrage bonds under Section 103(b) and Section 148 of the Code. The City understands that the foregoing covenants impose continuing obligations on the City to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the Code so long as such requirements are applicable. Unless otherwise specified in the Certificate as to Arbitrage and Other Tax Matters delivered in connection with the issuance of the Series 2002 Bonds, the City shall designate a certified public accountant, Bond Counsel; or other professional consultant having the skill and expertise necessary (the "Rebate Analyst") to make any and all calculations required pursuant to this Section regarding the Rebate Amount. Such calculation shall be made in the manner and at such times as specified in the Code. The City shall engage and shall be responsible for paying the fees and expenses of the Rebate Analyst. 13 Section 14. The Refunded Bonds and the Escrow Deposit Agreement. The redemption of the_Refunded Bonds as shall be described in the executed Escrow Deposit Agreement is authorized and directed. The Escrow Deposit Agreement in the form attached hereto as Exhibit "E" is hereby approved, subject to such changes, insertions, omissions, and filling in of blanks therein as may be approved by the Mayor, such approval to be conclusively evidenced by the.execution of the Escrow Deposit Agreement by the Mayor. The Mayor and the City Clerk are hereby authorized to execute and deliver the Escrow Deposit Agreement on behalf of the City. The Escrow Agent under the Escrow Deposit Agreement shall be The Bank of New York. The Mayor, Finance Director, City Manager and Escrow Agent, or any of them, are hereby authorized to subscribe for the purchase of any United State Treasury Obligations -- State and Local Government Series to be purchased pursuant to the Escrow Deposit Agreement. Section 15. Continuing Disclosure. (a) Disclosure of Annual Information. The City agrees, in accordance with the provisions of Rule 15c2-12 in effect from time to time and applicable to the Series 2002 Bonds (the "Rule"), promulgated by the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, to provide, either directly or indirectly through a designated agent, to each nationally recognized municipal securities information repository ("NRMSIR") as designated and approved by the Commission and to the appropriate State of Florida information depository ("SID"), if any, operated or designated by the State, respectively, in accordance with the Rule, (i) within 180 days following the end of each Fiscal Year of the City, commencing with the Fiscal Year ending September 30, 2002 annual financial information and operating data concerning the Utility System, of the type included in the Official Statement, including operating revenues, debt service coverage by Net Revenues, rates and charges of the Utility System, summary of any capital improvements plan, and information regarding permitted capacities and actual usage of capacities of the Utility System and financial statements (audited, or, if not available during such time period, unaudited) of the City and, (ii) if not submitted as part of such financial information and operating data, then, when available, audited financial statements for the City prepared in accordance with generally accepted accounting principles applicable to governmental entities from time to time. A copy of such annual financial information and operating data will be provided by the City to the Original Purchaser, the 2002 Bond Insurer and to the Bond Registrar for the Series 2002 Bonds as designated by the City from time to time. (The information required to be disclosed in this paragraph shall be hereinafter referred to as the "Annual Report.") (b) Disclosure of Material Events. The City agrees to provide either directly or indirectly through a designated agent, in a timely manner, to (i)each NRMSIR or to the Municipal Securities Rulemaking Board ("MSRB") and (ii) the SID, if any, notice of the occurrence of any of the following events with respect to the Series 2002 Bonds, if such event is material: (i) principal and interest payment delinquencies; (ii) non-payment related defaults; 14 (iii) unscheduled draws on debt service reserves, if any, reflecting financial difficulties; (iv) unscheduled draws on credit enhancements, if any, reflecting financial difficulties; (v) substitution of credit or liquidity providers, if any, or their failure to perform; (vi) adverse tax opinions or events affecting the tax-exempt status of the Series 2002 Bonds; (vii) modifications to rights of the holders of the Series 2002 Bonds; (viii) bond calls of the Series 2002 Bonds (other than scheduled mandatory redemption) or any acceleration of the maturity thereof; (ix) defeasances (in whole or in part) of Series 2002 Bonds; (x) release, substitution, or sale of property securing repayment of the Series 2002 Bonds; (xi) rating changes; and (xii) any changes in the City's Fiscal Year. (c) Notice of Failure. The City agrees to provide or cause to be provided, in a timely manner, to (i) each NRMSIR or the MSRB and (ii) the SID, if-any, notice of a failure by the City to provide the Annual Report described in subsection (a) above on or prior to the date set forth therein. (d) Termination. The City reserves the right to terminate its obligation to provide the Annual Report and notices of material events, as set forth above, if and when the City no longer remains an obligated person with respect to the Series 2002 Bonds (within the meaning of the Rule). If the City believes such condition exists, the City will provide notice of such termination to the NRMSIR's, the MSRB and the SID. (e) Undertaking for Benefit of Holders and Beneficial Owners. The City agrees that its undertaking pursuant to the Rule described herein is intended to be for the benefit of the holders and beneficial owners of the Series 2002 Bonds and shall be enforceable by any holder or beneficial owner; provided that the right to enforce the provisions of this undertaking shall be limited to a right to obtain specific enforcement of the City's obligations hereunder and any failure by the City to comply with the provisions of this undertaking shall not be an event of default with respect to the Series 2002 Bonds under the Resolution. 15 (f) Voluntary Disclosure Shall Not Bind City. Any voluntary inclusion by the City of information in its Annual Report of supplemental information that is not required by the Rule shall not expand the obligations of the City under the Rule and the City shall have no obligation to update such supplemental information or include it in any subsequent report. (g) Third Parties. The covenants described herein are solely for the benefit of the holders and beneficial owners of the Series 2002 Bonds and shall not create any rights in any other parties. (h) Amendment; Waiver. Notwithstanding any other provision of this Resolution, the City may amend the provisions of this Section and any such provision may be waived, provided that the following conditions are satisfied: (1) If the amendment or waiver relates to the provisions of paragraphs (a), (b), or (c) above, it may only be made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature or status of the City or the type of business conducted by the City; (2) The undertaking, as amended or taking into account such waiver, would, in the opinion of nationally recognized bond counsel, have complied with the requirements of the Rule at the time of the original issuance of the Series 2002 Bonds, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances; and (3) The amendment or waiver does not materially impair the interests of holders and beneficial owners as determined either by parties unaffiliated with the City or an obligated person, or by an approving vote.of the holders of at least a majority in aggregate principal amount of the then outstanding Series 2002 Bonds pursuant to the terms of the Bond Resolution. In the event of any such amendment or waiver of a provision described above, the City shall describe such amendment or waiver in the next Annual Report, and shall include, as applicable, a narrative explanation of the reason for the amendment or waiver and its impact on the type (or, in the case of a change of accounting principles, on the presentation) of annual financial information or operating data being presented by the City. In addition, if the amendment or waiver relates to the accounting principles to be followed in preparing financial statements, (i) notice of such change shall be given in the same manner as set forth in subsection (b) and (ii) the Annual Report for the year in which the change is made must present a comparison (in narrative form and also, if feasible, in quantitative form) between the financial statements as prepared on the basis of the new accounting principles and those prepared on the basis of the former accounting. principles. Section 16. This Resolution constitutes a declaration of official intent under Treasury Regulation Section 1.150-2. The City reasonably expects to incur expenditures for various 16 municipal capital improvements, and reasonably expects to reimburse such original expenditures with proceeds of the Series 2002 Bonds issued in the maximum principal amount set forth elsewhere herein. Section 17. Authorizations. The Mayor, the City Clerk, the Finance Director, and the City Manager are hereby jointly and severally authorized to do all acts and things required of them by this Resolution, the Bond Resolution or the Bond Purchase Contract, or desirable or consistent with the requirements hereof or thereof, for the full, punctual and complete performance of all terms, covenants and agreements contained in the Series 2002 Bonds, the Bond Resolution, this Resolution, and the Bond Purchase Contract, and to make any elections necessary or desirable in connection with the arbitrage provisions of Section 148 of the Code. Section 18. Holidays. In any case where the date of maturity of interest on or principal of the Series 2002 Bonds or the date fixed for redemption of any Series 2002 Bonds is not a Business Day, then payment of principal, premium, if any, or interest need not be made on such date but may be made on the next succeeding Business Day, with the same force and effect as if made on the date of maturity or the date fixed for redemption. Section 19. Resolution to Constitute a Contract. In consideration of the purchase and acceptance of the Series 2002 Bonds authorized to be issued hereunder by those who shall be the holders thereof from time to time, this Resolution shall constitute a contract between the City and such holders, and all covenants and agreements herein and in the Bond Resolution set forth to be performed by the City shall be for the equal benefit and security of all of the holders. Section 20. No Implied Beneficiary. With the exception of any rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Series 2002 Bonds is intended or shall be construed to give any person other than the City, the Original Purchaser, the 2002 Bond Insurer and the Owners, any legal or equitable right, remedy or claim under or with respect to this Resolution or the Bond Resolution or any covenants, conditions, and provisions herein contained; this Resolution and the Bond Resolution and all of the covenants, conditions and provisions hereof and thereof being intended to be and being for the sole and exclusive benefit of the City, the Original Purchaser, the 2002 Bond Insurer and the Owners. Section 21. Severability. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not effect any other provision herein or render any other provision (or such provision in any other context) invalid, inoperative or unenforceable to any extent whatsoever. Section 22. Repealer. All Resolutions or parts thereof of the City in conflict with the provisions herein contained or, to the extent of any such conflict, hereby superseded and repealed. 17 Section 23. Effective Date. This Resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED THIS 15th DAY OF MAY, 2001. (SEAL) ATTEST: CITY OF BOYNTON BEACH, FLORIDA A ' • . A a 1 By: By: Oki. , : . II • • LA. ' • • _ —1 C11 kpluilit11/0/ , or ' ix.C H /1,. .z--' 0 AV z:-. %-- lc?' ii- Z :0 Vice-Mayor.S• •: 44 •:•' .7--..---- .,.,, 0 ......... , ki ----Th../-.-A---- 1.) % I 0 0 4 Om 0 ilioVi Commissioner ' ) _ e 7 (-- • • Commissioner Commissioner APPROVEr? A A OFTcORMNcy. L1 AND LE I,L 1"/ . I 7 , By: .4 qty Att. ;y 18 CITY OF BOYNTON BEACH, FLORIDA UTILITY SYSTEM REVENUE REFUNDING BONDS SERIES 2002 FORWARD DELIVERY PURCHASE CONTRACT June , 2001 City of Boynton Beach, Florida Dear Ladies and Gentlemen: The undersigned, Banc of America Securities LLC (the "Underwriter"), offers to enter into this Forward Delivery Bond Purchase Contract(the "Purchase Contract")with the City of Boynton Beach, Florida(the "City"), which, upon acceptance of this offer by the City, will be binding upon the City and upon the Underwriter. This offer is made subject to written acceptance hereof by the City at or before 11:59 p.m., Eastern Daylight Savings Time on the date hereof and, if not so accepted, will be subject to withdrawal by the Underwriter upon notice delivered to the City at any time prior to the acceptance hereof by the City. 1. Purchase and Sale. Upon the terms and conditions and in reliance on the representations, warranties, covenants and agreements set forth herein, the Underwriter hereby agrees to purchase from the City, and the City hereby agrees to sell and deliver to the Underwriter, all (but not less than all) of the $ aggregate principal amount City of Boynton Beach, Florida Utility System Revenue Refunding Bonds, Series 2002 (the "Bonds"). The Bonds shall be dated the Delayed Delivery Closing Date (as hereinafter defined). The purchase price for the Bonds shall be $ (the par amount of the Bonds less an Underwriter's discount of$ less original issue discount of$ and plus original issue premium of$ ). The Bonds shall be as described in, and shall be issued and secured under the provisions of Resolution No. R92-96 of the City Commission, as amended and supplemented, particularly as amended and supplemented by Resolution No. R01- adopted by the City Commission on May 15, 2001 (collectively, the "Resolution"). The Bonds shall mature at the times and in the amounts and shall bear interest at the rates set forth in Appendix I hereto. The redemption provisions for the Bonds are set forth in Appendix I hereto. The information required by Sections 218.385(2),(3) and (6), Florida Statutes, to be provided to the City by the Underwriter is set forth in Appendix II hereto. 2. Delivery of Official Statements and Other Documents. (a) Prior to the date hereof, the City shall have provided to the Underwriter for its review the Preliminary Official Statement dated , 2001 (the "Preliminary Official Statement") that the City deemed final as of l its date, except for certain omissions in connection with the pricing of the Bonds as permitted by Rule 15c2-12 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the "Rule"). The Underwriter has reviewed such Preliminary Official Statement prior to the execution of this Purchase Contract. (b) With its acceptance hereof, the City will deliver, at its expense, to the Underwriter within seven (7) business days of the date hereof (or within such shorter period as may be requested by the Underwriter in order to accompany any confirmation that requests payment from any customer to comply with Rule G-32 of the Municipal Securities Rulemaking Board) copies of the Final Official Statement (in such amount as may be mutually agreed upon), dated the date hereof, together with all supplements and amendments thereto, substantially in the form of the Preliminary Official Statement, with only such changes therein as shall have been accepted by the Underwriter, signed on behalf of the City by the City Manager. It is understood that in undertaking to deliver the Final Official Statement pursuant to this paragraph, the City is not taking any responsibility for the accuracy or completeness of the information in the Final Official Statement concerning Financial Guaranty Insurance Company (the "Insurer") or The Depository Trust Company and its book-entry only system of registration of the Bonds. (c) The Underwriter shall give notice to the City on the date after which no participating underwriter, as such term is defined in the Rule, remains obligated to deliver Final Official Statements pursuant to paragraph (b)(4) of the Rule. (d) At Closing, the City shall deliver or cause to be delivered to the Underwriter copies of the Resolution, certified to by the City Clerk, all substantially in the form heretofore delivered to the Underwriter, with only such changes therein as agreed upon by the Underwriter. 3. Representation of the Underwriter as to Authority. (a) Banc of America Securities LLC is authorized to execute this Purchase Contract. (b) The Underwriter hereby represents that neither it nor any "person" or "affiliate" has been on the "convicted vendor list" during the past 36 months as all such terms are defined in Section 287.133, Florida Statutes. 4. Public Offering. The Underwriter agrees to make an offering of all the Bonds at not in excess of the initial public offering prices or lower than the yields set forth in Appendix I attached hereto. The Underwriter reserves the right to make concessions to dealers and to change such initial public offering prices or yields as the Underwriter reasonably deems necessary in connection with the marketing of the Bonds. The City hereby authorizes the Underwriter to use the Final Official Statement and the information contained therein in connection with the offering and sale of the Bonds and ratifies and confirms its authorization of the use by the Underwriter prior to the date hereof of the Preliminary Official Statement in connection with such offering and sale. 5. Liquidated Damages. In the event that the Underwriter fails (other than for a reason permitted hereunder)to accept and pay for the Bonds on the Delayed Delivery Closing Date 2 as herein provided, the Underwriter shall pay the City on the Delayed Delivery Closing Date $ (representing the savings to the City on a present value basis from the refunding plan described in the Final Official Statement) as and for full liquidated damages for such failure and for any defaults hereunder on the part of the Underwriter, and such payment shall constitute a full release and discharge of all claims by the City against the Underwriter arising out of the transactions contemplated hereby. 6. City's Representations. Warranties and Agreements. By its acceptance hereof, the City represents and warrants to and agrees with the Underwriter that, as of the date hereof: (a) The City is duly and validly existing as a municipal corporation. (b) The City has full legal right, power and authority to issue and sell the Bonds as contemplated by the Resolution and the Final Official Statement. (c) The City has full legal right, power and authority to enter into this Purchase Contract and the Escrow Deposit Agreement(the "Escrow Agreement")between the City and The Bank of New York, as escrow agent(the "Escrow Agent") and to sell and deliver the Bonds to the Underwriter as provided herein; by official action of the City taken prior to or concurrently with the acceptance hereof, the Resolution has been duly adopted in accordance with the Constitution and the laws of the State of Florida, including the charter of the City (collectively the "Act"); the Resolution is in full force and has not been rescinded; this Purchase Contract and the Escrow Agreement when executed by the City will be duly authorized and delivered and will constitute the legal, valid and binding obligations of the City enforceable in accordance with their terms, except as the enforcement thereof may be affected by bankruptcy, insolvency, or other laws or the application by a court of equitable principles generally affecting creditors' rights and except further as the enforcement of indemnification provisions of the Purchase Contract and the Escrow Agreement may each be limited by federal or state securities laws or public policy considerations; and the City has duly authorized and approved the consummation by it of all other transactions contemplated by the Resolution, the Final Official Statement, the Escrow Agreement and this Purchase Contract to have been performed or consummated at or prior to the Delayed Delivery Pre-Closing Date, as defined in Paragraph 7 of this Purchase Contract or the Delayed Delivery Closing Date. (d) The execution and delivery of the Bonds, this Purchase Contract and the Escrow Agreement and the adoption and implementation of the Resolution, and compliance with the obligations on the City's part contained herein and therein, will not conflict with or constitute a material breach of or material default under the Act or any federal or Florida constitutional provision, law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or to which the City or any of its properties or other assets is otherwise subject, nor will any such execution, delivery, adoption, implementation or compliance result in the creation or imposition of any material lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or other assets of the City under the terms of any such provision, law, regulation, document or instrument, except as provided or permitted by the Bonds and the Resolution. 3 (e) All approvals, consents and orders of any governmental authority, legislative body, board, agency or commission having jurisdiction which would constitute a condition precedent to or the absence of which would materially adversely affect the due performance by the City of its obligations under this Purchase Contract, the Escrow Agreement, the Resolution and the Bonds have been, or prior to the Delayed Delivery Closing Date will have been, duly obtained; provided, however, that this representation and warranty does not apply to such approvals, consents and orders as may be required under the Blue Sky or securities laws of any state in connection with the offering and sale of the Bonds, or to such official action by the City which the Resolution contemplates is to be taken from time to time after the Closing. (f) The Bonds when issued, registered and delivered in accordance with the Resolution and sold to the Underwriter as provided herein and in accordance with the provisions of the Resolution, will be valid and legally enforceable obligations of the City in accordance with their terms and the terms of the Resolution, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws or the application by a court of equitable principles; and the Resolution will provide, for the benefit of the holders from time to time of the Bonds, a legally valid and irrevocable lien upon and pledge of the Pledged Revenues, as defined and set forth in the Resolution, on a parity with the City's Utility System Revenue Bonds, Series 1996. (g) The information contained in the Preliminary Official Statement (as of its dated date) and, as of its date, the Final Official Statement pertaining to the City was and is true and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact which is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (h) The City has not been in default at any time on or after December 31, 1975, as to principal or interest with respect to any obligation issued or guaranteed by the City. (i) Except as described in the Preliminary Official Statement or the Final Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity before or by any court, governmental agency or public board or body, pending or, to the best knowledge of the City, threatened: (1) Which may affect the existence of the City or the titles of its officers to their respective offices; (2) Which may affect or which seeks to prohibit, restrain or enjoin the sale, issuance or delivery of the Bonds, or the collection or disbursement of the Pledged Revenues to pay the principal of, premium, if any, and interest on the Bonds, and to make other payments under the Resolution; (3) Which in any way contests or affects the validity or enforceability of the Bonds, the Resolution, this Purchase Contract or any of them; 4 (4) Which would cause the interest on the Bonds to be included in the federal gross income of the holders of the Bonds; or (5) Which contests in any way the completeness or accuracy of the Preliminary Official Statement or the Final Official Statement or which contests the powers of the City or any authority or proceedings for the issuance, sale or delivery of the Bonds, or the due adoption of the Resolution or the execution and delivery of this Purchase Contract or any of them; nor, to the best knowledge of the City, is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Bonds, the Resolution, the Escrow Agreement or any of them. (j) The City will furnish such information, execute such instruments and take such other action not inconsistent with law in cooperation with the Underwriter as the Underwriter may reasonably request in order (i) to qualify the Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate, and (ii) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions, and will use its best efforts to continue such qualifications in effect so long as required for the distribution of the Bonds; provided that the City shall not be obligated to qualify to do business or to take any action that would subject it to general service of process in any state where it is not now so subject. (k) If between the date of this Purchase Contract and the date which is the earlier of (i) 90 days from the end of the "underwriting period", as determined in the Rule, (an event the Underwriter is required to notify the City about pursuant to paragraph 2(c) above), or (ii) the time when the Final Official Statement is available to any person from a nationally recognized municipal securities information repository, but in no case less than 25 days following the end of the underwriting period, any event shall occur which would or might cause the information contained in the Final Official Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the City shall notify the Underwriter thereof, and if in the reasonable opinion of the Underwriter such event requires the preparation and publication of a supplement or amendment to the Final Official Statement, the City shall cooperate with the Underwriter in supplementing or amending the Final Official Statement, the printing of which will be at the City's expense, in such form and manner and at such time or times as may be reasonably called for by the Underwriter. (1) The City covenants to comply with the requirements of the Internal Revenue Code of 1986, as amended (the "Code") in order to maintain the exclusion from gross income of the interest on the Bonds for purposes of federal income taxation. These requirements include, but are not limited to, provisions which prescribe yield and other limits within which the proceeds of the Bonds and other amounts are to be invested and require that certain investment earnings on the foregoing must be rebated on a periodic basis to the Treasury Depailnient of the United States. 5 (m) The City has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that it is a bond issuer whose arbitrage certifications may not be relied upon. (n) Except as disclosed in the Official Statement, the City has not been in default at any time as to principal or interest with respect to any obligations issued or guaranteed by the City. (o) The City has not failed to comply with any prior undertakings to provide continuing disclosure pursuant to Rule 15c2-12(b)(5)under the Securities Exchange Act of 1934, as amended. 7. Delayed Delivery Pre-Closing. At 10:00 a.m., Eastern Daylight Savings Time, June , 2001, (such date herein called the "Delayed Delivery Pre-Closing Date"), or at such later time or on such later date as may be mutually agreed upon by the City and the Underwriter, the City shall, subject to the terms and conditions hereof, deliver the documents hereinafter mentioned (the "Delayed Delivery Pre-Closing"). The Delayed Delivery Pre-Closing shall occur at City Hall, Boynton Beach, Florida, or such other place as shall have been mutually agreed upon by the City and the Underwriter. If the Delayed Delivery Pre-Closing is completed in accordance with the provisions of this Purchase Contract, the Underwriter shall be obligated to purchase the Bonds and pay the purchase price therefor and the City shall be obligated to issue and deliver such Bonds subject to the Delayed Delivery Closing Conditions and Termination Provisions set forth in Paragraphs 10 and 11(a), respectively, of this Purchase Contract. 8. Delayed Delivery Pre-Closing Conditions. The Underwriter is entering into this Purchase Contract in reliance upon the representations, warranties and agreements of the City contained herein, and in reliance upon the representations, warranties and agreements to be contained in the documents and instruments to be delivered at the Delayed Delivery Pre-Closing, and upon the performance of the covenants and agreements herein, as of the date hereof and as of the Delayed Delivery Pre-Closing. Accordingly, the Underwriter's obligations under this Purchase Contract shall be conditioned upon the performance of the covenants and agreements to be performed hereunder and under such other documents and instruments to be delivered at or prior to the Delayed Delivery Pre-Closing Date, and shall also be subject to the following additional conditions: (a) The representations and warranties of the City contained herein shall be true, complete and correct on the date hereof and on and as of the Delayed Delivery Pre- Closing Date, as if made on the Delayed Delivery Pre-Closing Date. (b) At the date of execution hereof and at the Delayed Delivery Pre-Closing, the Resolution shall have been duly approved and adopted by the City, shall be in full force and effect, and shall not have been amended, modified or supplemented, except to the extent to which the Underwriter shall have given its prior written consent and there shall have been taken in connection therewith all such action as, in the opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., Bond Counsel to the City, shall be necessary and appropriate in connection with the transactions contemplated hereby. 6 (c) At the Delayed Delivery Pre-Closing there will be no pending or threatened litigation or proceeding of any nature seeking to restrain or enjoin the issuance, sale or delivery of the Bonds, or the pledge or application of the Pledged Revenues (other than as disclosed in the Preliminary Official Statement and the Final Official Statement)to pay the principal of and interest on the Bonds or in any way contesting or affecting the validity or enforceability of the Bonds, the Resolution, the Escrow Agreement and this Purchase Contract or contesting in any way the proceedings of the City taken with respect thereto, or contesting in any way the due existence or powers of the City or the title of any of the members of the City Commission or officials of the City to their respective offices, or if such litigation does exist, the Underwriter will receive an opinion of Josias, Goren, Cherof, Doody & Ezrol, P.A. City Attorneys, that any such litigation is without merit. (d) Except as described in the Preliminary Official Statement or the Final Official Statement, there shall have been no material adverse change in the fmancial condition of the City since September 30, 2000. (e) At the Delayed Delivery Pre-Closing, the Underwriter shall receive the following documents, each dated as of the Delayed Delivery Pre-Closing Date: (i) The opinion of Moyle, Flanigan, Katz, Raymond&Sheehan, P.A., Bond Counsel, dated the Delayed Delivery Pre-Closing Date and addressed to the Underwriter, to the effect that (i) the information contained in the Final Official Statement under the headings "Introduction," "Purpose of the 2002 Bonds," "Description of the 2002 Bonds," "Security for the 2002 Bonds" and "Covenants Concerning Ongoing Disclosure," (other than any information thereunder relating to The Depository Trust Company and its book-entry system of registration and apart from any engineering, fmancial and statistical data contained.therein as to which no opinion or belief needs to be expressed), insofar as such information purports to be the descriptions or summaries of the Resolution and the Bonds, constitutes fair and accurate statements of the matters set forth in such documents, and (iii) the information contained in the Final Official Statement under the heading "Tax Exemption" is correct in all material respects. (ii) An opinion, dated the Delayed Delivery Pre-Closing Date and addressed to the Underwriter, of Josias, Goren, Cherof, Doody & Ezrol, P.A. City Attorneys to the effect that (i) this Purchase Contract has been duly authorized, executed and delivered by the City and constitutes a legal, valid, and binding agreement of the City in accordance with its terms except to the extent that the enforceability of the rights and remedies set forth therein may be limited by bankruptcy, insolvency or other laws or the application by a court of equitable principles; (ii) the City has authorized, executed and delivered the Final Official Statement; (iii) the information in the Final Official Statement as to legal matters relating to the City, the Bonds, the Escrow Agreement and the Resolution is correct in all material respects and does not omit any statement which, in their opinion, should be included or referred to therein and, in addition, such counsel shall state that, based upon their participation in the preparation of the Final Official Statement as City Attorneys and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Final Official Statement (except to the extent expressly set forth in this Subparagraph (iii)), as of the Delayed Delivery Pre-Closing Date 7 nothing has come to their attention causing them to believe that (A) the Final Official.Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except for the fmancial and statistical information contained in the Final Official Statement as to all of which no view shall be expressed), or(B)the Final Official Statement(as supplemented or amended pursuant to paragraph (k) of Section 6 hereof, if applicable) as of the Delayed Delivery Pre-Closing Date contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except as aforesaid), (it is understood that in undertaking to deliver the Final Official Statement pursuant to this paragraph, the City is not taking any responsibility for the accuracy or completeness of the information in the Final Official Statement concerning the Insurer or The Depository Trust Company and its book-entry only system of registration of the Bonds); (iv) to the best of their knowledge the City is not in material breach of or material default under any applicable constitutional provision, law or administrative regulation of the State or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, material resolution, material agreement or other material instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject, and no event has occurred and is continuing that with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument; and the execution and delivery of this Purchase Contract, and the adoption of the Resolution and compliance with the provisions on the City's part contained therein, will not conflict with or constitute a material breach of or default under, any constitutional provision, law, administrative regulation,judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject, and any such execution, delivery, adoption or compliance will not result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the City under the terms of any such law, regulation or instrument, except as expressly provided by the Bonds or the Resolution; (v) the City has the right and power under the Act to adopt the Resolution and the Resolution has been duly and lawfully adopted by the City, is in full force and effect and constitutes the legal, valid and binding obligation of the City, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and no other authorization is required for the City to adopt the Resolution; (vi) to the best of their knowledge, there is no action, suit, proceeding, inquiry or investigation at law or in equity before or by any court, government agency, public board or body, pending or threatened against or affecting the City, nor is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or fording would have a materially adverse effect upon the transactions contemplated by the Final Official Statement or the validity of the Bonds, the Resolution, the Escrow Agreement or this Purchase Contract, except as described in the Final Official Statement; and (vii) all authorizations, consents, approvals and reviews of governmental bodies or regulatory authorities then required for the City's adoption, execution or performance of the Bonds, the Resolution, the Escrow Agreement and this Purchase Contract have been obtained or effected and, to the best of their knowledge, said firm has no reason to believe 8 that the City will be unable to obtain or effect any such additional authorization, consent, approval or review that may be required in the future for performance of any of them by the City. (iii) A certificate, dated the Delayed Delivery Pre-Closing Date, signed by the City Manager, to the effect that, to the best of his knowledge: (i) the representations of the City herein are true and correct in all material respects as of the Delayed Delivery Pre-Closing Date; (ii) the City has performed all obligations to be performed hereunder as of the Delayed Delivery Pre- Closing Date; (iii) except as disclosed in the Final Official Statement, there is no litigation pending or threatened (A) to restrain or enjoin the issuance or delivery of any of the Bonds, (B) in any way contesting or affecting any authority for the issuance of the Bonds or the validity of the Bonds, the Resolution, the Escrow Agreement or this Purchase Contract, (C) in any way contesting the corporate existence or powers of the City, (D) to restrain or enjoin the collection of revenues pledged or to be pledged to pay the principal of, premium, if any, and interest on the Bonds, (E) which may result in any material adverse change in the business, properties, assets and the financial condition of the City taken as a whole, or (F) asserting that the Final Official Statement contains any untrue statement of a material fact or omits any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (iv) since September 30, 2000, no material adverse change has occurred in the financial position or results of operations of the City except as set forth in or contemplated by the Preliminary Official Statement or the Final Official Statement; (v) the City has not, since September 30, 2000, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Final Official Statement; (vi) the information contained in the Final Official Statement pertaining to the City (except for the Insurer or The Depository Trust Company book- entry only system for which no opinion need be expressed) did not as of its date, and does not as of the Delayed Delivery Pre-Closing Date contain any untrue statement of a material fact or omit to state a material fact required to be included therein or necessary in order to make the statements contained therein, in light of the circumstances in which they were made, not misleading; and (vii) that the City has not been in default at any time on or after December 31, 1975, as to principal or interest with respect to any obligation issued or guaranteed by the City. (iv) An opinion, dated the Date of Closing and addressed to the Underwriter, of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Disclosure Counsel for the City, to the effect that based upon their preparation of the Final Official Statement as Disclosure Counsel for the City and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Final Official Statement, as of the Delayed Delivery Pre-Closing Date nothing has come to the attention of such counsel causing them to believe that (A) the Final Official Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except for the financial and statistical information contained in the Final Official Statement as to which no view need be expressed), or (B) the Final Official Statement (as supplemented or amended pursuant to paragraph (k) of Section 6 hereof, if applicable) as of the Delayed Delivery Pre-Closing Date contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except as aforesaid). 9 (v) An opinion, dated the Delayed Delivery Pre-Closing Date and addressed to the Underwriter, of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Disclosure Counsel for the City, to the effect that the continuing disclosure undertaking of the City contained in the Resolution pursuant to which the City has agreed to provide the information required by Rule 15c2-12(b)(5) issued by the Securities and Exchange Commission under the Securities Exchange Act of 1934, provides a suitable basis for the Underwriter in connection with the Offering (as defined in Rule 15c2-12), to make a reasonable determination as required by paragraph (b)(5) of said Rule. (vi) A Rule 15c2-12 Certificate with respect to the Preliminary Official Statement signed by the City Manager. (vii) The verification report of Causey, Demgen& Moore as described under the section entitled "Verification of Mathematical Computations" in the Final Official Statement. (viii) A copy of the executed Escrow Deposit Agreement. (ix) Such additional legal opinions, certificates, instruments and other documents as the Underwriter may reasonably request to evidence the truth and accuracy, as of the date hereof and as of the Delayed Delivery Pre-Closing Date, of the City's representations and warranties contained herein and of the statements and information contained in the Final Official Statement and the due performance or satisfaction by the City on or prior to the Delayed Delivery Pre- Closing Date of all the agreements then to be performed and conditions then to be satisfied by it. (t) The Insurer shall have issued its confirmation of its commitment to insure the Bonds on the Delayed Delivery Pre-Closing Date. All of the evidence, opinions, letters, certificates, instruments and other documents, mentioned above or elsewhere in this Purchase Contract shall be deemed to be in compliance with the provisions hereof if, but only if, they are in form and substance satisfactory to the Underwriter and the City. If the conditions to the obligations of the Underwriter under this Purchase Contract are not satisfied as of the Delayed Delivery Pre-Closing Date, this Purchase Contract shall terminate and neither the Underwriter nor the City shall be under any further obligation hereunder, except that the respective obligations of the City and the Underwriter set forth in paragraph 12 hereof shall continue in full force and effect . 9. Delayed Delivery Closing. At 10:00 a.m., prevailing time in the City, on August 6, 2002 (such date herein called the "Delayed Delivery Closing Date"), or at such later time or on such later date as may be mutually agreed upon by the City and the Underwriter, the City shall, subject to the terms and conditions hereof, deliver the Bonds, bearing proper CUSIP numbers, in the definitive form of one fully registered typewritten Bond for each stated maturity of the Bonds, duly executed and authenticated. In addition, at such time, on the Delayed Delivery Closing Date, 10 the City shall also deliver, to the Underwriter, subject to the terms and conditions hereof, the other documents hereinafter mentioned. Subject to the terms and conditions hereof, the Underwriter shall accept delivery of the Bonds and pay the purchase price of the Bonds as set forth in paragraph 1 hereof in Federal Funds to the order of the City (such delivery of and payment for the Bonds herein called the "Delayed Delivery Closing"). The Delayed Delivery Closing shall occur at City Hall or such other place as shall have been mutually agreed upon by the City and the Underwriter. The Bonds shall be registered in the name of Cede & Co., or such other name as the Underwriter shall request, and will be made available for inspection and checking by representatives of the Underwriter at such place as shall be mutually agreed upon, not later than the business day prior to the Delayed Delivery Closing Date. 10. Delayed Delivery Closing Conditions. The Underwriter is entering into this Purchase Contract in reliance upon the representations, warranties and agreements of the City contained herein, and in reliance upon the representations, warranties and agreements to be contained in the documents and instruments to be delivered at the Delayed Delivery Closing, and upon the performance of the covenants and agreements herein, as of the date hereof and as of the Delayed Delivery Closing Date. Accordingly, the Underwriter's obligations under this Purchase Contract to purchase, to accept delivery of and to pay for the Bonds shall be conditioned upon the performance of the covenants and agreements to be performed hereunder and under such other documents and instruments to be delivered at or prior to the Delayed Delivery Closing Date, and shall also be subject to the following additional conditions: (a) The representations and warranties of the City contained herein shall be true, complete and correct on the date hereof and on and as of the Delayed Delivery Closing Date, as if made on the Delayed Delivery Closing Date. (b) At the date of execution hereof and at the Delayed Delivery Closing Date, the Resolution shall have been duly approved and adopted by the City, shall be in full force and effect, and shall not have been amended, modified or supplemented, except in connection with the issuance of Additional Bonds in compliance therewith and except to the extent to which the Underwriter shall have given its prior written consent, and there shall have been taken in connection therewith and in connection with the issuance of the Bonds all such action as, in the opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., Bond Counsel and Disclosure Counsel for the City, shall be necessary and appropriate in connection with the transactions contemplated hereby. (c) At the Delayed Delivery Closing there will be no pending or threatened litigation or proceeding of any nature seeking to restrain or enjoin the issuance, sale or delivery of the Bonds, or the pledge or application of the Pledged Revenues (other than as disclosed in the Final Official Statement as supplemented for the Delayed Delivery Closing, the "Supplemented Final Official Statement", which Supplemented Final Official Statement, in final form, the City shall have provided to the Underwriter no later than eleven (11) days prior to the Delayed Delivery Closing Date and in draft form for review by the Underwriter no later than twenty. (20) days prior to the Delayed Delivery Closing Date) to pay the principal of and interest on the Bonds or in any way contesting or affecting the validity or enforceability of the Bonds, the Resolution, the Escrow 11 Agreement and this Purchase Contract or contesting in any way the proceedings of the City taken with respect thereto, or contesting in any way the due existence or powers of the City or the title of any of the members of the City Commission or officials of the City to their respective offices, or if such litigation does exist, the Underwriter will receive an opinion of Josias, Goren, Cherof, Doody & Ezrol, P.A. City Attorneys, that any such litigation is without merit. (d) Except as described in the Supplemented Final Official Statement, there shall have been no material adverse change in the financial condition of the City since September 30, 2000. (e) At the Closing, the Underwriter shall receive the following documents, each dated as of the Delayed Delivery Closing Date: (i) The opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., Bond Counsel, dated the Delayed Delivery Closing Date, in substantially the form attached to the Supplemented Final Official Statement as Appendix D as well as (x) an opinion to the effect that the Bonds are "Additional Bonds" on a parity with the City's other outstanding Bonds and (y) that the Refunded Bonds (as defined in the Supplemented Final Official Statement) have been legally defeased.; (ii) An opinion of Bond Counsel, addressed to the Underwriter, to the effect that(i) the Underwriter may rely upon the opinion referred to in paragraph (i) above as though addressed to it, (ii) the information contained in the Supplemented Final Official Statement under the headings "Introduction," "Purpose of the 2002 Bonds," "Description of the 2002 Bonds," "Security for the 2002 Bonds" and "Covenants Concerning Ongoing Disclosure," (other than any information thereunder relating to The Depository Trust Company and its book-entry system of registration and apart from any engineering, financial and statistical data contained therein as to which no opinion or belief needs to be expressed), insofar as such information purports to be the descriptions or summaries of the Resolution and the Bonds, constitutes fair and accurate statements of the matters set forth in such documents, and (iii) the information contained in the Final Official Statement under the heading "Tax Exemption" is correct in all material respects. (iii) An opinion, dated the Delayed Delivery Closing Date and addressed to the Underwriter, of Josias, Goren, Cherof, Doody &Ezrol, P.A. City Attorneys to the effect that (i) this Purchase Contract and the Escrow Agreement have each been duly authorized, executed and delivered by the City and each constitutes a legal, valid, and binding agreement of the City in accordance with their terms except to the extent that the enforceability of the rights and remedies set forth therein may be limited by bankruptcy, insolvency or other laws or the application by a court of equitable principles and except further as the enforcement of indemnification provisions of this Purchase Contract may be limited by federal or state securities laws or public policy considerations; (ii) the City has authorized, executed and delivered the Supplemented Final Official Statement; (iii) the information in the Supplemented Final Official Statement as to legal matters relating to the City, the Bonds, the Escrow Agreement and the Resolution is correct in all material respects and does not omit any statement which, in their opinion, should be included or referred to therein and, in addition, such counsel shall state that, based upon their participation in the preparation of the Supplemented Final Official Statement as City Attorneys and without having undertaken to determine independently the accuracy, completeness or fairness of the 12 statements contained in the Supplemented Final Official Statement (except to the extent expressly set forth in this Subparagraph (iii)), as of the Delayed Delivery Closing nothing has come to their attention causing them to believe that (A) the Supplemented Final Official Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except for the financial and statistical information contained in the Supplemented Final Official Statement as to all of which no view shall be expressed), or (B) the Supplemented Final Official Statement as of the Delayed Delivery Date Closing contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except as aforesaid), (it is understood that in undertaking to deliver the Supplemented Final Official Statement pursuant to this paragraph, the City is not taking any responsibility for the accuracy or completeness of the information in the Supplemented Final Official Statement concerning the Insurer or The Depository Trust Company and its book-entry only system of registration of the Bonds); (iv) to the best of their knowledge the City is not in material breach of or material default under any applicable constitutional provision, law or administrative regulation of the State or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, material resolution, material agreement or other material instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject, and no event has occurred and is continuing that with the passage of time or the giving of notice, or both, would constitute a default or event of default under any such instrument; and the execution and delivery of the Bonds, the Escrow Agreement, this Purchase Contract, and the adoption of the Resolution and compliance with the provisions on the City's part contained therein, will not conflict with or constitute a material breach of or default under, any constitutional provision, law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject, and any such execution, delivery, adoption or compliance will not result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the City under the terms of any such law, regulation or instrument, except as expressly provided by the Bonds or the Resolution; (v) the City has the right and power under the Act to adopt the Resolution and the Resolution has been duly and lawfully adopted by the City, is in full force and effect and constitutes the legal, valid and binding obligation of the City, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and no other authorization is required for the City to adopt the Resolution; (vi) to the best of their knowledge, there is no action, suit, proceeding, inquiry or investigation at law or in equity before or by'any court, government agency, public board or body, pending or threatened against or affecting the City, nor is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or fmding would have a materially adverse effect upon the transactions contemplated by the Supplemented Final Official Statement or the validity of the Bonds, the Resolution, the Escrow Agreement or this Purchase Contract, except as described in the Supplemented Final Official Statement; and (vii) all authorizations, consents, approvals and reviews of governmental bodies or regulatory authorities then required for the 13 City's adoption, execution or performance of the Bonds, the Resolution, the Escrow Agreement and this Purchase Contract have been obtained or effected and, to the best of their knowledge, they have no reason to believe that the City will be unable to obtain or effect any such additional authorization, consent, approval or review that may be required in the future for performance of any of them by the City. (iv) A certificate, dated the Delayed Delivery Closing Date, signed by the City Manager to the effect that to the best of his knowledge: (i) the representations of the City herein are true and correct in all material respects as of the Delayed Delivery Closing Date; (ii) the City has performed all obligations to be performed hereunder as of the Delayed Delivery Closing Date ; (iii)except as disclosed in the Supplemented Final Official Statement, there is no litigation pending or threatened (A)to restrain or enjoin the issuance or delivery of any of the Bonds, (B) in any way contesting or affecting any authority for the issuance of the Bonds or the validity of the Bonds, the Resolution, the Escrow Agreement or this Purchase Contract, (C) in any way contesting the corporate existence or powers of the City, (D) to restrain or enjoin the collection of revenues pledged or to be pledged to pay the principal of, premium, if any, and interest on the Bonds, (E) which may result in any material adverse change in the business, properties, assets and the financial condition of the City taken as a whole, or (F) asserting that the Supplemented Final Official Statement contains any untrue statement of a material fact or omits any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (iv) since September 30, 2000, no material adverse change has occurred in the fmancial position or results of operations of the City except as set forth in or contemplated by the Supplemented Final Official Statement; (v) the City has not, since September 30, 2000, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Supplemented Final Official Statement; (vi) the information contained in the Supplemented Final Official Statement pertaining to the City (except for the Insurer or The Depository Trust Company book-entry only system for which no opinion need be expressed) did not as of its date, and does not as of the Delayed Delivery Closing Date contain any untrue statement of a material fact or omit to state a material fact required to be included therein or necessary in order to make the statements contained therein, in light of the circumstances in which they were made, not misleading; and (vii) that the City has not been in default at any time on or after December 31, 1975, as to principal or interest with respect to any obligation issued or guaranteed by the City. (v) An opinion, dated the Delayed Delivery Closing Date and addressed to the Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Disclosure Counsel for the City, to the effect that (i) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Resolution is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended; and (ii) based upon their participation and their review of the Supplemented Final Official Statement as Disclosure Counsel and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Supplemented Final Official Statement, as of the Delayed Delivery Closing Date nothing has come to the attention of such counsel causing them to believe that (A) the Supplemented Final Official Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the 14 statements therein, in the light of the circumstances under which they were made, not misleading (except for the financial and statistical information contained in the Supplemented Final Official Statement as to which no view need be expressed), or (B) the Supplemented Final Official Statement as of the Delayed Delivery Closing Date contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except as aforesaid). (vi) An opinion, dated the Delayed Delivery Closing Date and addressed to the Underwriter, of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Disclosure Counsel for the City, to the effect that the continuing disclosure undertaking of the City contained in the Resolution, pursuant to which the City has agreed to provide the information required by Rule 15c2-12(b)(5) issued by the Securities and Exchange Commission under the Securities Exchange Act of 1934, provides a suitable basis for the Underwriter in connection with the Offering (as defined in Rule 15c2-12), to make a reasonable determination as required by paragraph (b)(5) of said Rule; (vii) An.opinion, dated the Delayed Delivery Closing Date, and addressed to the Underwriter, from counsel for the Insurer, (or if the Insurer is replaced pursuant to subparagraph (f)below, counsel for that insurance company to the same effect) to the effect that: (i) the Insurer is a stock insurance company validly existing and in good standing under the laws of the State of New York and qualified to do business therein and is licensed and authorized to issue its financial guaranty insurance policies under the laws of the State of Florida; (ii) the Bond Insurance Policy is valid and binding upon the Insurer and enforceable in accordance with its terms, subject to applicable laws affecting creditors' rights; (iii) the Insurer, as an insurance company, is not eligible for relief under the Federal Bankruptcy Laws (any proceedings for the liquidation, conservation or rehabilitation of the Insurer would be governed by the provisions of the Insurance Law of the State of New York); and (iv) the statements described in the Supplemented Final Official Statement relating to the Insurer and the Bond Insurance Policy accurately and fairly present the summary information set forth therein and do not omit any material fact with respect to the description of the Insurer relative to the material terms of the Bond Insurance Policy or the ability to the Insurer to meet its obligations under the Bond Insurance Policy. (viii) Such additional legal opinions, certificates, instruments and other documents as the Underwriter may reasonably request to evidence the truth and accuracy, as of the date hereof and as of the Delayed Delivery Closing Date, of the City's representations and warranties contained herein and of the statements and information contained in the Supplemented Final Official Statement and the due performance or satisfaction by the City on or prior to the Delayed Delivery Closing Date of all the agreements then to be performed and conditions then to be satisfied by it. (f) The Insurer shall have issued its Bond Insurance Policy (the "Policy") insuring the Bonds. In the event that the Insurer is unable to issue the Policy, the City, with the concurrence of the Underwriter, can substitute the Insurer's bond insurance with bond insurance from another bond insurer with ratings of "AAA," "AAA" and "Aaa" by Fitch, Standard & Poor's and Moody's Investors Service, respectively. 15 All of the evidence, opinions, letters, certificates, instruments and other documents, mentioned above or elsewhere in this Purchase Contract shall be deemed to be in compliance with the provisions hereof if, but only if, they are in form and substance satisfactory to the Underwriter and the City. If the conditions to the obligations of the Underwriter to purchase, to accept delivery of and to pay for the Bonds contained in this Purchase Contract are not satisfied, or if the obligations of the Underwriter to purchase, to accept delivery of and to pay for the Bonds shall be terminated for any reason permitted by this Purchase Contract, this Purchase Contract shall terminate and neither the Underwriter nor the City shall be under any further obligation hereunder, except that the respective obligations of the City and the Underwriter set forth in paragraph 12 hereof shall continue in full force and effect . 11. Termination. (a) The Underwriter may terminate its obligation to purchase at any time before the Delayed Delivery Pre-Closing Date if any of the following should occur: (i) (1) Legislation (including any amendment thereto) shall have been introduced in or adopted by either House of the Congress of the United States, or recommended to the Congress for passage by the President of the United States or favorably reported for passage to either House of the Congress by any Committee of such House; or (2) A decision shall have been rendered by a court established under Article III of the Constitution of the United States or by the United States Tax Court; or (3) A release or official statement shall have been issued by the President of the United States, by the Treasury Department of the United States or by the Internal Revenue Service; the effect of which, in any such case described in clauses (1), (2) or (3) herein, would be to impose, directly or indirectly, federal income taxation upon interest received on obligations of the general character of the Bonds other than as imposed on the Bonds and income therefrom under the federal tax laws in effect on the date hereof, in such a manner as in the judgment of the Underwriter would materially impair the marketability or materially reduce the market price of obligations of the general character of the Bonds; or (ii) Any action shall have been taken by the Securities and Exchange Commission or by a court which would require registration of any security under the Securities Act of 1933, as amended, or qualification of any indenture under the Trust Indenture Act of 1939, as amended, in connection with the public offering of the Bonds, or any action shall have been taken by any court or by any governmental authority suspending the use of the Final Official Statement or any amendment or supplement thereto, or any proceeding for that purpose shall have been initiated or threatened in any such court or by any such authority; or (iii) (1) The Constitution of the State of Florida shall be amended or an amendment shall be proposed, (2) legislation shall be enacted, (3) a decision shall have been rendered as to matters 16 J of Florida law, or (4) any order, ruling or regulation shall have been issued or proposed by or on behalf of the State of Florida by an official, agency or department thereof, affecting the status of City, its property or income, its bonds (including the Bonds) or the interest thereon which in the judgment of the Underwriter would materially adversely affect the market price of the Bonds; or (iv) (1) A general suspension of trading in securities shall have occurred on the New York Stock Exchange, or (2) the United States becomes engaged in any outbreak of armed hostilities (whether or not foreseeable at the time of execution hereof) or hostilities previously commenced shall escalate, the effect of which in either case described in clauses (1) and (2), is, in the judgment of the Underwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated in this Purchase Contract and the Final Official Statement, including without limitation any material adverse effect on the market price of the Bonds; or (v) An event occurs which, in the reasonable opinion of the Underwriter, requires a supplement or amendment to the Final Official Statement and the information set forth in such supplement or amendment adversely effects, in the reasonable opinion of the Underwriter, the marketability of the Bonds; or (vi) A general banking moratorium shall have been declared by authorities of the United States, the State of New York or the State of Florida. (b) The Underwriter may terminate its remaining obligations under this Purchase Contract without liability therefor by notification to the City, if at any time on or after the Delayed Delivery Pre-Closing Date and on or prior to the Delayed Delivery Closing there is a Change in Law. A "Change in Law" means (i) any change in or addition to applicable federal or state law, whether statutory or as interpreted by the courts, including any changes in or new rules, regulations or other pronouncements or interpretations by federal or state agencies; (ii) any legislation enacted by the Congress of the United States or introduced therein or recommended for passage by the President of the United States (if such enacted, introduced or recommended legislation has a proposed effective date which is on or before the Delayed Delivery Closing Date); (iii) any law, rule or regulation proposed or enacted by any governmental body, department or agency (if such proposed or enacted law, rule or regulation has a proposed effective date which is on or before the Delayed Delivery Closing Date); (iv) any judgment, ruling or order issued by any court or administrative body, which in any such case, would(A) as to the Underwriter, legally prohibit (or have the retroactive effect of prohibiting, if enacted, adopted, passed or finalized) the Underwriter from (1) accepting delivery of and paying for the Bonds in accordance with the provisions of this Purchase Contract or (2) selling the Bonds or beneficial ownership interests therein to bona fide purchasers, or, (B) as to the City, would (1) make the sale or issuance and delivery of the Bonds illegal (or have the retroactive effect of making such sale, issuance, or delivery illegal, if enacted, adopted, passed or finalized), (2) eliminate the exclusion from gross income of interest on the Bonds (or have the retroactive effect of eliminating such exclusion if enacted, adopted, passed, or finalized); (3) require the Bonds to be registered under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended or the Resolution to be qualified under the Trust Indenture Act of 1939, as amended (or have the retroactive effect 17 of requiring such registration or qualification if enacted, passed, finalized, or adopted); provided, however, that such change in or addition to law, legislation, rule or regulation, or judgment, ruling or order shall have become effective, been enacted, introduced or recommended, or been proposed or been issued, as the case may be, subsequent to the date of execution of the Purchase Contract; or (v) a stop order, ruling, regulation, or official statement by the Securities and Exchange Commission or any other governmental agency having jurisdiction of the subject matter shall have been issued or made or any other event occurs, the effect of which is that the issuance, offering, or sale of the Bonds, or the delivery of the Resolution is or would be in violation of any provision of the federal securities laws, including the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or the Trust Indenture Act of 1939, as amended. If the Change of Law involves the enactment of legislation which only diminishes the value of, as opposed to eliminating the exclusion from gross income for federal income tax purposes, interest payable on "state or local bonds," the City may, nonetheless, be able to satisfy the requirements for the delivery of the Bonds. In such event, the Underwriter would be required to accept delivery of the Bonds. 12. Expenses. _ (a) Whether or not the Bonds are sold by the City to the Underwriter (unless such sale be prevented at Closing by the Underwriter's default), the City shall be obligated to pay the following expenses: (i)the cost of preparing and printing or other reproduction of the Resolution; (ii) the cost of preparing and printing the Bonds, the Preliminary Official Statement and the Final Official Statements; (iii) the fees and disbursements of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., incurred in its capacity as Bond Counsel; (iv) the fees and disbursements of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., incurred in their capacity as Disclosure Counsel for the City; (v) the fees and disbursements of the Escrow Agent, Paying Agent and the Bond Registrar; (vi) the fees and expenses of Causey, Demgen & Moore for the verification report; and (vii) the fees and disbursements of any other experts, accountants, consultants or advisors retained by the City. (b) Whether or not the Bonds are sold by the City to the Underwriter (unless such sale be prevented at Delayed Delivery Closing by the City's default), the Underwriter shall be obligated to pay the following expenses and shall be permitted to pay such expenses from their discount: (i) all advertising expenses in connection with the public offering of the Bonds and (ii) all other expenses incurred by it in connection with the public offering of the Bonds. 13. Notices. Any notice or other communication to be given to the City under this Purchase Contract may be given by delivering the same in writing to the address set forth above and any notice or other communications to be given to the Underwriter under this Purchase Contract may be given by delivering the same in writing to Banc of America Securities LLC, 1640 Gulf-to-Bay Boulevard, Clearwater, Florida 33755. 18 14. Parties in Interest. (a) This Purchase Contract is made solely for the benefit of the City and the Underwriter (including the successors or assigns of the Underwriter) and no other person shall acquire or have any right hereunder or by virtue hereof. All of the representations, warranties and agreements of the City contained in this Purchase Contract shall remain operative and in full force and effect (but shall not be deemed to be continuing representations and warranties of the City), regardless of: (i) any investigations made by or on behalf of the Underwriter; (ii) delivery of and payment for the Bonds pursuant to this Purchase Contract; or (iii) any termination of this Purchase Contract, but only to the extent provided by the last paragraph of Section 8 hereof. (b) No covenant, stipulation, obligation or agreement contained in this Purchase Contract shall be deemed to be a covenant, stipulation, obligation or agreement of any member, agent or employee of the City Commission in his individual capacity and neither the members of the City Commission nor any official executing this Purchase Contract shall be liable personally under this Purchase Contract or be subject to any personal liability or accountability by reason of the execution hereof. 15. Effectiveness. This Purchase Contract shall become effective upon the execution of the acceptance hereof on behalf of the City by the City Manager, all in accordance with the requirements set forth in the City Charter, and shall be valid and enforceable at the time of such acceptance. 16. Counterparts. This Purchase Contract may be executed in several counterparts, which together shall constitute one and the same instrument. 17. Florida Law Governs. The validity, interpretation and performance of this Purchase Contract shall be governed by the laws of the State of Florida. 18. Entire Agreement. This Purchase Contract when accepted by the City in writing as heretofore specified shall constitute the entire agreement between us. 19. Headings. The headings of the paragraphs of this Purchase Contract are inserted for convenience only and shall not be deemed to be part hereof. Very truly yours, BANC OF AMERICA SECURITIES LLC By: Name: David R. Thornton Title: Principal 19 Accepted as of the date hereof: CITY OF BOYNTON BEACH, FLORIDA By: Kurt Bressner, City Manager G:\02345\31\forward delivery purchase contract(2).wpd 20 BOND REGISTRAR AGREEMENT THIS BOND REGISTRAR AGREEMENT is made and entered into as of 2002, by and between the City of Boynton Beach, Florida (the "Issuer") and The Bank of New York (the "Bank"). WHEREAS, the Issuer by the Resolution (as hereinafter defined), designated the Bank as Bond Registrar (as defined in the Resolution) for its Utility System Revenue Bonds, Series 1992 and its Utility System Revenue Refunding Bonds, Series 2002 (the "Bonds"); and WHEREAS, the Issuer and the Bank desire to set forth the Bank's duties as Bond Registrar and the compensation to be paid the Bank for its services. NOW., THEREFORE, it is agreed by the parties hereto as follows: 1. The Bank agrees to serve as Bond Registrar for the Bonds and to perform the duties of Bond Registrar under Resolution No. 92-96 adopted by the City Commission of the Issuer on June 16, 1992, as amended and supplemented, with respect to the Bonds (the "Resolution"). 2. The Issuer shall timely deposit with the Bank sufficient funds from the accounts: established for the payment of the Bonds under the Resolution to pay when due and payable the principal of, premium, if any, and interest on the Bonds. 3. The Bank shall use the funds received from the Issuer pursuant to paragraph 2 hereof(and only such funds) to pay the principal of, premium, if any, and interest on the Bonds in accordance with the Resolution. The Bank shall cremate cancelled Bonds and transmit to the Issuer a certificate of destruction therefor. 4. The Bank shall be obligated to act only in accordance with the Resolution and any written instructions received in accordance therewith, and is authorized hereby to comply with any orders,judgments, or decrees of any court and shall not be liable as a result of its compliance with the same. 5. The Bank may rely absolutely upon the genuineness and authorization of the signature and purported signature of any party upon any instruction, notice, release, request, affidavit, certificate, opinion or other document delivered to it pursuant to the Resolution. 6. To the extent allowed by Florida law, the Issuer hereby agrees to indemnify the Bank and its agents and hold it harmless from any and all claims, liabilities, losses, actions, suits, or proceedings at law or in equity, or any other expenses, fees (including attorneys' fees and expenses), or charges of any character or nature, which it may incur or with which it may be threatened by reason of its acting as Bond Registrar under the Resolution, unless caused by the Bank's willful misconduct or gross negligence; and in connection therewith, to indemnify the Bank against any and all expenses, including attorneys' fees and the costs of defending any action, suit, or proceeding, or resisting any claim. This Section shall survive termination of this Agreement. 7. The Bank may consult with counsel of its own choice and shall have sole and complete authorization and protection for any action taken or suffered by it under the Resolution in good faith and in accordance with the opinion of such counsel. The Bank shall otherwise not be liable for any mistakes of fact or errors of judgment, or for any acts or omissions of any kind unless caused by the Bank's willful misconduct or gross negligence. 8. In consideration of the services rendered by the Bank as Bond Registrar, the Issuer agrees to and shall pay to the Bank a fee in accordance with Exhibit A hereto during the term of this Agreement, payable annually in advance, and all expenses, charges, attorneys' fees and expenses, and other disbursements incurred by it or its attorneys, agents, and employees in and about the acceptance and performance of its powers and duties as Bond Registrar. In the event the system for immobilization of bond certificates (the book-entry only system) is terminated, the fee of the Bank would be revised based upon the then current fee schedule of the Bank. This Section shall survive termination of this Agreement. 9. The Bank shall, at all times, when requested to do so by the Issuer, furnish full and complete information pertaining to its functions as the Bond Registrar with regard to the Bonds, and shall without further authorization, execute all necessary and proper deposit slips, checks, certificates and other documents with reference thereto. 10. Either of the parties hereto, at its option, may cancel this Agreement after giving thirty (30) days written notice to the other party of its intention to cancel, and this Agreement may be cancelled at any time by mutual consent of the parties hereto. This Agreement shall terminate without further action upon final payment of the Bonds and the interest appertaining thereto. 11. In the event of a cancellation of this Agreement, the Issuer shall deliver any proper and necessary releases to the Bank upon demand and the Bank shall, after payment of all amounts owing to it hereunder, upon demand pay over the funds on deposit in connection with the Bonds and surrender all registration books and related records, and the Issuer may.appoint and name a successor to act as Bond Registrar for the Bonds. The Issuer shall, in such event, notify all holders of the Bonds of the appointment and name of the successor, by providing notice in the manner required by the Resolution for the redemption of the Bonds. 12. This Agreement shall not be assigned by either party without written consent of the other party. . 13. No modification of this Agreement shall be valid unless made by a written agreement, executed and approved by the parties hereto.. 14. Should any section or part of any section of this Agreement be declared void, invalid, or unenforceable by any court of law for any reason, such determination shall not render void, invalid, or unenforceable any other section orother part of any section of this Agreement. 15. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida. 16. (a) The Issuer hereby instructs the Bank to pay the principal of and interest on the Bonds at the dates specified in the Resolution. 2 (b) The Bank shall be under no liability for interest on any money received by it hereunder. (c) Any money deposited with the Bank for the payment of the principal, redemption premium, if any, or interest on any Bond and remaining unclaimed for three years after final maturity of the Bond has become due and payable will be paid by the Bank to the Issuer, and the owner of such Bond shall thereafter look only to the Issuer for payment thereof, and all liability of the Bank with respect to such monies shall thereupon cease,. 17. The Issuer and the Bank agree that the Bank may seek adjudication of any adverse claim, demand, or controversy over its persons as well as funds on deposit, waive personal service of any process, and agree that service of process by certified or registered mail, return receipt requested, to the address set forth below, or such other address as designated in writing sent by one party hereto to the other, shall constitute adequate service. The Issuer and the Bank further agree that the Bank has the right to file a Bill of Interpleader in any court of competent jurisdiction to determine the rights of any person claiming any interest herein. As to the Issuer: City Manager City of Boynton Beach 100 East Boynton Beach Boulevard Boynton Beach, Florida 33425 As to the Bank: The Bank of New York 10161 Centurion Parkway 2nd Floor Jacksonville, Florida 32256 18. Reference is hereby made to Sections 205, 206, 214 and 306 of the Resolution, which relate, respectively, to the exchange of Bonds, the negotiability, registration and transfer of Bonds, mutilated, destroyed or lost Bonds and cancellation of Bonds. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. CITY OF BOYNTON BEACH, FLORIDA By: City Manager THE BANK OF NEW YORK, as Bond Registrar By: Its Agent G:\02345\31\bond registrar agreement.wpd 3 THE BANK .OF NEW YORK Schedule of Fees To Provide Escrow Agent and Paying Agent Services City of Boynton Beach, Florida Utility System Revenue Bonds Series 2001 - Approximately $23,000,000 ACCEPTANCE FEE: WAIVED Covers review of documents, establishment of account, set-up of procedures and controls, and liaison with underwriter,issuer and attorneys. Payable at closing. ONE-TIME ESCROW ADMINISTRATION FEE: $500.00 Covers normal escrow agent duties and responsibilities related to account administration. Payable in advance. ANNUAL PAYING AGENT/REGISTRAR FEE: $400.00 Payable annually in advance assuming book entry bonds. If bonds are issued in certificated format there will be an additional charge of$500 per annum. OUT-OF-POCKET EXPENSES: AT COST Including,but not limited to telephone,facsimile,courier,wire transfer,postage,publication and supply expenses. MISCELLANEOUS SERVICES: The charges for performing services not contemplated at the time of the execution of the Agreement or not specifically covered elsewhere in this schedule will be determined by appraisal in amounts commensurate with the service to be provided. In addition, initial and/or ongoing fees and expenses of our counsel, if any, shall be reimbursable at cost. Please note that this applies to forward purchase contracts and/or similar investment vehicles. The Bank of New York's fmal account acceptance is subject to the full review of all documentation related hereto, and standard conflict procedures. Should this transaction terminate prior to closing, all out-of-pocket expenses incurred, including legal fees,will be billed at cost. DATE: April 17,2001 NEW ISSUE-BOOK-ENTRY ONLY RATINGS: Fitch:" " DELAYED DELIVERY S&P:" " See"RATINGS"herein In the opinion of Bond Counsel,under existing law and assuming continuing compliance by the City with certain covenants,interest on the 2002 Bonds will be excluded from gross income for federal income tax purposes and interest on the 2002 Bonds will not be an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations. See,however,the information under the heading"TAX EXEMPTION"herein for a description of certain taxes on corporations and for a discussion of certain other tax consequences to holders of the 2002 Bonds. Bond Counsel is also of the opinion that the 2002 Bonds will be exempt from all present intangible personal property taxes imposed by the State of Florida. See"TAX EXEMPTION"herein. $25,000,000* City of Boynton Beach, Florida Utility System Revenue Refunding Bonds Series 2002 Dated:Date of Delivery Due:November 1,as shown below Delayed Delivery:August 6,2002 The City of Boynton Beach,Florida Utility System Revenue Refunding Bonds,Series 2002(the"2002 Bonds")are being issued by the City of Boynton Beach, Florida(the"City")as fully registered bonds and will be initially issued and registered to Cede&Co.,as nominee of The Depository Trust Company,New York,New York("DTC"),which will act as securities depository for the 2002 Bonds. Purchases of beneficial interests in the 2002 Bonds will be made in book-entry form only and the purchasers will not receive physical delivery of the 2002 Bonds or any certificate representing their beneficial ownership interest in the 2002 Bonds. The 2002 Bonds will be available to purchasers in principal denominations of$5,000 and integral multiples thereof under the book-entry system maintained by DTC through brokers and dealers who are,or who act through,DTC Participants. For so long as DTC or its nominee,Cede&Co.,is the registered owner of the 2002 Bonds, payments of principal and interest will be made directly to Cede&Co. Disbursement of payments of principal and interest to individual purchasers is described under the heading"DESCRIPTION OF THE 2002 BONDS-Book-Entry-Only System"herein. Interest on the 2002 Bonds will be payable on November 1,2002 and semi- annually thereafter on each May 1 and November 1.The 2002 Bonds will be subject to redemption prior to maturity as more fully described herein. This cover page contains certain information for quick reference only. It is not a summary of the issue. Investors must read the entire Official Statement to obtain information essential to the making of an informed investment decision. The 2002 Bonds are being issued for the purposes of(i)refunding the City's outstanding Utility System Revenue Bonds,Series 1992,(is)paying all or a portion of the costs of certain capital projects of the City and(iii)paying certain costs of issuing the 2002 Bonds. The 2002 Bonds will be limited obligations of the City payable solely from the Net Revenues derived by the City from the operation of its water, sewer and stormwater utility system(the"System"),certain Impact Fees and moneys and investments held in certain funds and accounts created by the Resolution (collectively, the"Pledged Revenues"). The lien of the 2002 Bonds on the Pledged Revenues will be on a parity with the lien of the City's outstanding Utility System Revenue Bonds,Series 1996 and any Additional Bonds(herein defined). The 2002 Bonds will not constitute a general obligation, debt or liability of the City or of the State of Florida or any political subdivision,agency or instrumentality of the City or the State of Florida within the meaning of any constitutional,statutory,or charter provisions or limitations and neither the full faith and credit nor the taxing power of the State of Florida or the City are pledged as security for the payment of the principal of,premium,if any,or interest on the 2002 Bonds. Financial Guaranty Insurance Company has issued its commitment to issue a municipal bond insurance policy insuring the payment of the principal of and interest on the 2002 Bonds simultaneously with the delayed delivery of the 2002 Bonds. See"Delayed Delivery of 2002 Bonds-Conditions to Delayed Delivery-Issuance of Municipal Bond Insurance Policy." [Insert Logo] AMOUNTS,MATURITIES,INTEREST RATES AND PRICES OR YIELDS $ Serial Bonds Interest Price or Interest Price or Amount Maturity Rate Yield Amount Maturity Rate Yield $ % % $ 0/0 $ %Term Bonds due November 1, -Price %-Yield % (Accrued interest to be added) The 2002 Bonds are offered when,as and if issued at Delayed Delivery,subject to the satisfaction of certain conditions and subject to the unqualified approval of legality and tax-exempt status of Moyle,Flanigan,Katz,Raymond&Sheehan,P.A.,West Palm Beach,Florida,Bond Counsel and Disclosure Counsel to the City. Certain legal matters will be passed upon for the City by its City Attorney,Josias,Goren,Cherof,Doody&Ezrol,P.A.,Fort Lauderdale,Florida. IT IS EXPECTED THAT THE 2002 BONDS WILL BE DELIVERED THROUGH THE FACILITIES OF THE DEPOSITORY TRUST COMPANY IN NEW YORK,NEW YORK,ON OR ABOUT AUGUST 6,2002. SEE"DELAY DELIVERY RISKS"HEREIN. BANC OF AMERICA SECURITIES LLC The date of this Official Statement is: ,2001 Preliminary,subject to change. CITY OF BOYNTON BEACH, FLORIDA 100 East Boynton Beach Boulevard Boynton Beach, Florida 33425 Telephone: 561-375-6000 CITY COMMISSION Gerald Broening, Mayor Ronald Weiland, Vice Mayor Mike Ferguson, Commissioner Charlie Fisher, Commissioner , Commissioner CITY OFFICIALS Kurt Bressner, City Manager John A. Guidry, Utilities Director Diane Reese, Finance Director Janet Prainito, City Clerk CITY ATTORNEY James Cherof Josias, Goren, Cherof, Doody&Ezrol,P.A. Fort Lauderdale, Florida BOND AND DISCLOSURE COUNSEL Moyle,Flanigan, Katz, Raymond &Sheehan, P.A. West Palm Beach,Florida CONSULTING ENGINEERS Camp Dresser and McKee, Inc. CH2M Hill,Inc. West Palm Beach,Florida Deerfield Beach, Florida Hartman and Associates, Inc. Metcalf and Eddy,Inc. Orlando,Florida West Palm Beach, Florida No dealer, broker, salesman or other person has been authorized to make any representations, other than as contained in this Official Statement, and if given or made, such other information or representations must not be relied upon. This Official Statement does not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of the 2002 Bonds by any person in any jurisdiction in which it is unlawful for such person to make such offer, solicitation or sale. The information contained in this Official Statement has been obtained from public documents, records and other sources considered to be reliable and, while not guaranteed as to completeness or accuracy, is believed to be correct. The Underwriter has reviewed the information in this Official Statement in accordance with and as part of its responsibilities to investors under federal securities laws as applied to the facts and circumstances of this transaction, but the Underwriter does not guaranty the accuracy or completeness of such information. Any statements in this Official Statement involving estimates, assumptions and matters of opinion whether or not so expressly stated, are intended as such and not as representations of fact, and the City expressly makes no representations that such estimates, assumptions and opinions will be realized or fulfilled. No information, estimates, assumptions and matters of opinion contained in this Official Statement, or any sale made hereunder shall under any circumstances create any implication that there has been no change in the affairs of the City since the date hereof. THE 2002 BONDS HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR HAS THE BOND RESOLUTION BEEN QUALIFIED UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, IN RELIANCE UPON EXEMPTIONS CONTAINED IN SUCH ACTS. THE REGISTRATION OR QUALIFICATION OF THE 2002 BONDS IN ACCORDANCE WITH APPLICABLE PROVISIONS OF THE SECURITIES LAWS OF THE STATES,IF ANY,IN WHICH THE 2002 BONDS HAVE BEEN REGISTERED OR QUALIFIED AND THE EXEMPTION FROM REGISTRATION OR QUALIFICATION IN CERTAIN OTHER STATES CANNOT BE REGARDED AS A RECOMMENDATION THEREOF. NEITHER THESE STATES NOR ANY OF THEIR AGENCIES HAVE PASSED UPON THE MERITS OF THE 2002 BONDS OR THE ACCURACY OR COMPLETENESS OF THIS OFFICIAL STATEMENT. ANY REPRESENTATION TO THE CONTRARY MAY BE A CRIMINAL OFFENSE. THIS PRELIMINARY OFFICIAL STATEMENT HAS BEEN "DEEMED FINAL" BY THE CITY, EXCEPT FOR PERMITTED OMISSIONS, FOR PURPOSES OF SECURITIES AND EXCHANGE COMMISSION RULE 15c2-12. TABLE OF CONTENTS Page INTRODUCTION 1 PURPOSE OF THE 2002 BONDS 2 DELAYED DELIVERY OF 2002 BONDS 2 Forward Delivery Bond Purchase Contract Signing and Delayed Delivery Pre-Closing 2 Delayed Delivery Closing 3 Conditions to Delayed Delivery Closing 3 Delayed Delivery Contract with Prospective Bondholders 5 DELAYED DELIVERY RISKS 5 DESCRIPTION OF THE 2002 BONDS 7 General 7 Redemption Provisions for the 2002 Bonds 7 Selection of 2002 Bonds for Redemption 8 Notice of Redemption 8 Effect of Redemption 8 Book-Entry Only System 9 SECURITY FOR THE 2002 BONDS 10 General 10 Definitions 11 Rate Covenant 12 Reserve Account 13 Flow of Funds 13 General Reserve Account 15 2002 Project Construction Account 15 Issuance of Additional Bonds 15 MUNICIPAL BOND INSURANCE 17 ESTIMATED SOURCES AND USES OF FUNDS 19 DEBT SERVICE REQUIREMENTS 20 THE SYSTEM 21 General 21 Service Area 21 Condition of the System and System Performance 21 Administration 21 Water System 21 Wastewater System 24 Description of Rate Structure 25 Stormwater Fees 26 Rates and Customer Base 26 Historical Revenues 26 Impact Fees 26 System Customers 27 Consolidation of Separate Systems into System 27 THE CITY 27 VERIFICATION OF MATHEMATICAL COMPUTATIONS 27 TAX EXEMPTION 28 LITIGATION 29 COVENANTS CONCERNING ONGOING DISCLOSURE 29 UNDERWRITING 31 RATINGS 32 LEGALITY 32 EXCERPTS FROM COMPREHENSIVE ANNUAL REPORT 32 MISCELLANEOUS 32 AUTHORIZATION OF OFFICIAL STATEMENT 33 APPENDIX A General Information Concerning the City of Boynton Beach, Florida APPENDIX B Excerpts from Comprehensive Annual Financial Report of the City for the Fiscal Year Ended September 30,2000 APPENDIX C Summary of Certain Provisions of the Resolution APPENDIX D Proposed Form of Opinion of Bond Counsel APPENDIX E Specimen Municipal Bond Insurance Policy APPENDIX F Letters of Consulting Engineers APPENDIX G Form of Delayed Delivery Contract OFFICIAL STATEMENT $25,000,000 City of Boynton Beach, Florida Utility System Revenue Refunding Bonds, Series 2002 INTRODUCTION The purpose of this Official Statement, including the cover page and appendices, is to set forth certain information concerning the sale by the City of Boynton Beach,Florida (the "City") of its Utility System Revenue Refunding Bonds,Series 2002,in the aggregate principal amount of$25,000,000" (the "2002 Bonds"). The 2002 Bonds will be issued under and secured pursuant to Resolution No. 92-96 adopted by the City Commission of the City (the "City Commission") on June 16, 1992,as amended and supplemented, in particular by Resolution No.R2001- , adopted by the City Commission on May 15,2001 (collectively, the"Resolution") and the Constitution and laws of the State of Florida,particularly Chapter 166,Florida Statutes and the Charter of the City. Copies of the Resolution are on file with the City at the office of the City Clerk, and reference thereto is hereby made for a complete understanding of the terms of and security for the 2002 Bonds, the custody and application of the proceeds of the 2002 Bonds,the rights and remedies of the holders of the 2002 Bonds and the rights, duties and obligations of the City. The 2002 Bonds will be issued on a parity with the City's outstanding Utility System Revenue Bonds,Series 1996 (the "1996 Bonds") and any additional parity bonds issued pursuant to the Resolution (the "Additional Bonds"). The 1996 Bonds, the 2002 Bonds and any Additional Bonds are herein collectively referred to as the "Bonds." The 2002 Bonds are being purchased by the Underwriter pursuant to a Forward Delivery Bond Purchase Contract between the City and the Underwriter (the "Bond Purchase Contract"). Under the terms of the Bond Purchase Contract,subject to the satisfaction of the conditions contained therein,the 2002 Bonds will be issued and delivered to,and paid for by,the Underwriter on or about August 6,2002 (the "Delayed Delivery Closing Date"). A purchaser of the 2002 Bonds may be obligated to pay for and take delivery of such 2002 Bonds notwithstanding a material adverse change in the affairs of the City or the Insurer (as hereinafter defined) between the date hereof and the Delayed Delivery Closing Date. In addition a purchaser's ability to re-sell such 2002 Bonds prior to the Delayed Delivery Closing Date is limited,and such purchaser will still be liable for the purchase price on the date of Delayed Delivery Closing notwithstanding a subsequent sale. For a description of the conditions to the delivery of the 2002 Bonds,and the requirement that a purchaser of 2002 Bonds from the Underwriter execute and deliver and Delayed Delivery Contract in the form attached hereto as Appendix G (See "Delayed Delivery of 2002 Bonds" and"Delayed Delivery Risks" herein). The 2002 Bonds will be limited obligations of the City and will be secured and payable solely from the Net Revenues (as hereinafter defined) derived by the City from the operation of its water, sewer and stormwater utility system (the "System"), certain Impact Fees (as hereinafter defined), and moneys and investments held in certain funds and accounts created by the Resolution (collectively, the "Pledged Revenues"). Neither the faith and credit nor the taxing power of the City, the State of Florida or any political subdivision thereof will be pledged to the payment of the principal of or interest on the 2002 Bonds. See "SECURITY FOR THE 2002 BONDS" herein. Preliminary,subject to change. Financial Guaranty Insurance Company has issued its commitment to issue a municipal bond insurance policy insuring the payment of the principal of and interest on the 2002 Bonds simultaneously with the delayed delivery of the 2002 Bonds. See "Delayed Delivery of 2002 Bonds-Conditions to Delayed Delivery-Issuance of Municipal Bond Insurance Policy." All capitalized terms in this Official Statement not otherwise defined herein shall have the meanings set forth in Appendix C hereto, unless the context clearly indicates otherwise. PURPOSE OF THE 2002 BONDS The 2002 Bonds are being issued by the City for the purpose of providing funds to (i) refund and defease the City's outstanding Utility System Revenue Bonds, Series 1992 maturing in the years 2002 through 2020 (the "Refunded Bonds") (ii)pay or reimburse the City for all or a portion of the costs of various capital projects of the City (the "2002 Project"), and (iii)pay certain costs incidental to the issuance of the 2002 Bonds. A portion of the proceeds derived from the issuance of the 2002 Bonds will be used for purpose of refunding and defeasing the Refunded Bonds. The City plans to call the Refunded Bonds for redemption on November 1, 2002 at a redemption price equal to 102% of the principal amount to be redeemed plus accrued interest to the redemption date. A portion of the proceeds derived from the sale of the 2002 Bonds will be deposited into an irrevocable Escrow Deposit Trust Fund(the"Escrow Deposit Trust Fund")with The Bank of New York(the"Escrow Agent") pursuant to an Escrow Deposit Agreement (the "Escrow Agreement") between the City and the Escrow Agent, in an amount sufficient, together with investment income thereon, to pay principal of, redemption premium and interest on the Refunded Bonds. Pending disbursement to pay the Refunded Bonds,amounts in the Escrow Deposit Trust Fund will either be held uninvested or will be invested in direct, noncallable United States Treasury Obligations. Upon the funding and, if applicable, investment, of the Escrow Deposit Trust Fund, in the opinion of Bond Counsel,rendered in reliance upon the verification report of Causey,Demgen &Moore Inc.,independent certified public accountants, the lien of the Refunded Bonds on the Pledged Revenues will have been defeased and the Refunded Bonds will no longer be considered to be outstanding for purposes of the Resolution. DELAYED DELIVERY OF 2002 BONDS The following is a summary description of certain provisions of the Bond Purchase Contract and the conditions therein. This description is not to be considered a full statement of the terms of the Bond Purchase Contract and accordingly is qualified by reference thereto and is subject to the full text thereof. Forward Delivery Bond Purchase Contract Signing and Delayed Delivery Pre-Closing Pursuant to the Bond Purchase Contract, the Underwriter will agree to purchase the 2002 Bonds on the Delayed Delivery Closing Date defined below.A delayed delivery pre-closing will be held with respect to the 2002 Bonds on or about June_, 2001 (the "Delayed Delivery Pre-Closing Date"). At that time,the conditions for the issuance and delayed delivery of the 2002 Bonds and payment therefor by the Underwriter will be met, except for the confirmation of certain facts and delivery of certain certificates and opinions, including an opinion of Bond Counsel substantially in the form set forth in Appendix D hereto (collectively, the "Delayed Delivery Date Closing Conditions"),which are to be delivered on the date the 2002 Bonds are issued (receipt thereof is a condition to the issuance of the 2002 Bonds).Upon consummation of the Delayed Delivery Pre-Closing, subject to compliance with the Delayed Delivery Closing Conditions, described below and in the Bond Purchase Contract, the City will be obligated to issue the 2002 Bonds, and the Underwriter will be obligated to take delivery of and pay for the 2002 2 Bonds on the Delayed Delivery Closing Date. However, there will be no delivery of the 2002 Bonds nor any payment therefor on the Delayed Delivery Pre-Closing Date. Delayed Delivery Closing On August 6,2002 or at such other time or on such other date as will have been mutually agreed upon by the City and the Underwriter (the "Delayed Delivery Closing Date"), the City will, subject to the terms and conditions of the Bond Purchase Contract,deliver the 2002 Bonds to DTC on behalf of the Underwriter and deliver or cause to be delivered to the Underwriter the other documents, opinions,certificates and instruments required by the Bond Purchase Contract to be delivered, as more fully discussed below (the "Delayed Delivery Closing Documents"). Subject to the terms and conditions of the Bond Purchase Contract, the Underwriter will be obligated to accept such delivery and pay the purchase price for the 2002 Bonds. All of the foregoing described transactions are referred to herein as the "Delayed Delivery Closing." Conditions to Delayed Delivery Closing General. The City's obligation to issue and deliver the 2002 Bonds to the Underwriter, and the Underwriter's obligation to accept delivery of and pay for,the 2002 Bonds,on the Delayed Delivery Closing Date, are subject to certain conditions precedent, as set forth in the Bond Purchase Contract; these conditions include, in particular, the following: (1) there shall have been no "Change in Law," as hereinafter described; (2) Financial Guaranty Insurance Company shall deliver the Municipal Bond Insurance Policy; and (3) Bond Counsel shall render its approving opinion in substantially the form attached hereto as Appendix D. It is also a condition of the City's obligation to sell and deliver the 2002 Bonds to the Underwriter that the entire authorized principal amount thereof be accepted and paid for by the Underwriter at the Delayed Delivery Closing.It is a condition to the Underwriter's obligation to accept delivery of and to pay for the 2002 Bonds that the entire authorized principal amount thereof be issued and delivered by the City at the Delayed Delivery Closing. Although the City is not aware, as of the date of this Official Statement, of any information that would lead it to believe that it will be unable to satisfy its obligations under the Bond Purchase Contract on the Delayed Delivery Closing Date,no assurances can be made that,as of the Delayed Delivery Closing Date: (i)there will have been no Change in Law,as hereinafter defined; (ii)the facts and circumstances that are material to one or more of the required legal opinions will not differ from the facts and circumstances as of the Delayed Delivery Pre-Closing Date, or (iii) that all necessary certifications and representations can or will be delivered and made in connection with the proposed issuance and delivery of the 2002 Bonds.As a consequence of any of the foregoing, one or more of the foregoing legal opinions may not be rendered,with the possible result that the Delayed Delivery Closing will not occur. THE BOND PURCHASE CONTRACT REQUIRES THE UNDERWRITER TO ACCEPT DELIVERY OF AND PAY FOR THE SERIES 2002 BONDS ON THE DELAYED DELIVERY DATE NOTWITHSTANDING ANY SUBSEQUENT ADVERSE CHANGE IN THE BUSINESS OR AFFAIRS OF THE CITY. FAILURE TO SATISFY THE REQUIREMENTS OF THE DELAYED DELIVERY CLOSING, INCLUDING FAILURE OF ANY PARTY TO DELIVER ANY OF THE DELAYED DELIVERY CLOSING DOCUMENTS IN THE FORM AND SUBSTANCE PROVIDED FOR IN THE BOND PURCHASE CONTRACT(UNLESS SUCH FAILURE IS WAIVED BY THE UNDERWRITER),WILL MEAN THAT THE 3 SERIES 2002 BONDS WILL NOT BE ISSUED AND DELIVERED. THE UNDERWRITER HAS THE RIGHT, BUT IS UNDER NO OBLIGATION, TO WAIVE ANY SUCH FAILURE. Change in Law. The Underwriter may terminate the Bond Purchase Contract, without liability, by notification to the City if,on the Delayed Delivery Closing Date, as a result of a Change in Law,the Underwriter is or would be prohibited either from lawfully accepting delivery of and paying for the 2002 Bonds in accordance with the provisions of the Bond Purchase Contract or from lawfully selling and/or delivering the 2002 Bonds to bona fide purchasers. A"Change in Law" means (i)any change in or addition to applicable federal or state law,whether statutory or as interpreted by the courts, including any changes in or new rules, regulations or other pronouncements or interpretations by federal or state agencies; (ii) any legislation enacted by the Congress of the United.States or introduced therein or recommended for passage by the President of the United States (if such enacted, introduced or recommended legislation has a proposed effective date which is on or before the Bond Delivery Closing Date); (iii) any law, rule or regulation proposed or enacted by any governmental body, department or agency (if such proposed or enacted law,rule or regulation has a proposed effective date which is on or before the Bond Delivery Closing Date); or(iv) any judgment, ruling or order issued by any court or administrative body,which in any such case, would (A) as to the Underwriter, legally prohibit (or have the retroactive effect of prohibiting, if enacted, adopted, passed or finalized) the Underwriter from (1) accepting delivery of and paying for the 2002 Bonds in accordance with the provisions of the Bond Purchase Contract or(2)selling the 2002 Bonds or beneficial ownership interests therein to bona fide purchasers, or, (B)as to the City,would (1) make the sale or issuance and delivery of the 2002 Bonds illegal (or have the retroactive effect of making such sale, issuance, or delivery illegal, if enacted, adopted,passed or finalized), (2) eliminate the exclusion from gross income of interest on the 2002 Bonds (or have the retroactive effect of eliminating such exclusion if enacted, adopted, passed, or finalized);(3) require the 2002 Bonds to be registered under the Securities Act of 1933,as amended, or under the Securities Exchange Act of 1934, as amended, or require the Resolution to be qualified under the Trust Indenture Act of 1939,as amended (or have the retroactive effect of requiring such registration or qualification if enacted, passed, finalized or adopted); provided, however, that such change in or addition to law,legislation, rule or regulation, or judgment, ruling or order shall have become effective, been enacted, introduced or recommended, or been proposed or been issued, as the case may be, subsequent to the date of execution of the Bond Purchase Contract; or (4) a stop order, ruling, regulation, or official statement by the Securities and Exchange Commission or any other governmental agency having jurisdiction of the subject matter shall have been issued or made or any other event occurs, the effect of which is that the issuance, offering, or sale of the 2002 Bonds, or the delivery of the Resolution is or would.be in violation of any provision of the federal securities laws, including the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or the Trust Indenture Act of 1939,as amended. If the Change of Law involves the enactment of legislation which only diminishes the value of, as opposed to eliminating the exclusion from gross income for federal income tax purposes, interest payable on "state or local bonds," the City may,nonetheless,be able to satisfy the requirements for the delivery of the 2002 Bonds. In such event, the purchasers would be required to accept delivery of the 2002 Bonds. Issuance of Municipal Bond Insurance Policy. It is a condition to the Delayed Delivery Closing that a municipal bond insurance policy, in substantially the form attached as Appendix E hereto (the "Bond Insurance Policy"), with respect to the 2002 Bonds be issued by Financial Guaranty Insurance Company ("Financial Guaranty" or the "Insurer") on the Delayed Delivery Closing Date. The City has received from the Insurer its "Commitment for Municipal Bond Insurance" (the "Commitment"), pursuant to which the Insurer agrees, upon the terms and conditions set forth therein (including the payment by the City on the Delayed Delivery Closing Date of the premium for the Bond Insurance Policy),to issue the Bond Insurance Policy on the Delayed Delivery Closing Date. The Commitment is subject to certain terms and conditions, including, but not limited to: (i) the issuance of an approving opinion of Bond Counsel in substantially the form attached hereto as Appendix D; 4 (ii) that all terms and conditions contained in the Bond Purchase Contract shall have been satisfied before the Delayed Delivery Closing Date and the 2002 Bonds issued on or before such Date; (iii) the receipt of the verification report as set forth in "VERIFICATION OF MATHEMATICAL COMPUTATIONS" herein; and (iv) the issuance of an opinion of Bond Counsel to the effect that the Refunded Bonds have been legally defeased. The City is not aware of any reason why the conditions to issuance of the Bond Insurance Policy contained in the Commitment may not be satisfied on or prior to the Delayed Delivery Closing Date. Assuming that the Insurer delivers its Bond Insurance Policy on the Delayed Delivery Closing Date, there is no assurance that the ratings assigned to the 2002 Bonds will not be different from those currently expected for bond issues insured by the Insurer. However, in the event of the failure of the Insurer to issue its Bond Insurance Policy,the City,with the concurrence of the Underwriter, could substitute the Insurer's Bond Insurance Policy with another municipal bond insurance policy insuring the 2002 Bonds by another insurer with assigned municipal bond ratings in the three principal rating agencies' highest rating categories. For a discussion regarding the Bond Insurance Policy and the Insurer, see "MUNICIPAL BOND INSURANCE" and"RATINGS" herein. Issuance of Legal Opinions. It is a condition to the issuance of the 2002 Bonds on the Delayed Delivery Closing Date that Bond Counsel deliver its final approving opinion in substantially the form attached hereto as Appendix D. The ability of Bond Counsel to deliver such an opinion on the Delayed Delivery Closing Date is subject to its review and analysis as of the Delayed Delivery Closing Date of certain matters, including, among others, pertinent provisions of statutes, regulations, rulings and court decisions, including, but not necessarily limited to, Florida law and federal income tax law then in effect or proposed to be in effect. Bond Counsel has advised the City and the Underwriter that,subject to such review and analysis and certain assumptions,it expects to be able to issue on the Delayed Delivery Closing Date an opinion substantially in the form attached hereto as Appendix D. Issuance of the 2002 Bonds on the Delayed Delivery Closing Date is further conditioned upon the receipt of the other opinions of Bond Counsel, of Disclosure Counsel and of the City Attorney as to the continued accuracy of their opinions as to certain additional legal matters, and relating to the continued accuracy or adequacy of the Official Statement,initially addressed in the respective opinions delivered by such counsel in connection with the Delayed Delivery Pre-Closing. Delayed Delivery Contract with Prospective Bondholders Each person placing an order for the 2002 Bonds which is accepted by the Underwriter will be required to execute a document (a"Delayed Delivery Contract"), in substantially the form set forth in Appendix G hereto, in which such person acknowledges and agrees that it has reviewed this Official Statement in its entirety and has placed such an order with full knowledge and understanding of the Delayed Delivery Closing Conditions and risks and that it is obligated to purchase the 2002 Bonds which are the subject of such order, so long as the conditions of the Bond Purchase Contract for the Delayed Delivery Closing of the 2002 Bonds are satisfied. DELAYED DELIVERY RISKS The City anticipates that the 2002 Bonds will be issued and delivered on or about August 6,2002. Delivery of the 2002 Bonds is contingent upon delivery of the Bond Insurance Policy by the Insurer and the delivery of certain certificates, reports, documents and legal opinions and the satisfaction of certain other conditions as of the Delayed Delivery Closing Date, as provided in the Bond Purchase Contract and described under the heading "DELAYED DELIVERY OF SERIES 2002 BONDS" above. 5 During the period of time between the date hereof and the Delayed Delivery Closing Date (the "Delayed Delivery Period"), certain information contained in this Official Statement could change in one or more material respects. The City has agreed to provide to purchasers of the 2002 Bonds an updated form of this Official Statement at least 10 days prior to the Delayed Delivery Closing Date. Purchasers of the 2002 Bonds will be subject to this and other risks,some of which are described below,and which will not constitute grounds for purchasers to refuse to accept delivery of and pay for the 2002 Bonds. Rating Risk.Although no ratings have been applied for or assigned to the 2002 Bonds,bond issues insured by the Insurer would be expected, as of the date hereof, based on such insurance, to be rated "AAA" and"AAA," respectively by Fitch,Inc.and Standard&Poor's Ratings Services, a Division of the McGraw Hill Companies. See "DELAYED DELIVERY OF SERIES 2002 BONDS-Conditions to Delayed Delivery Closing-Issuance of Bond Insurance Policy" and"RATINGS" herein. The City has received a Commitment from the Insurer for the delivery of the Bond Insurance Policy on the Delayed Delivery Closing Date. The 2002 Bonds are expected to be rated at the time of delivery based upon such insurance. No assurance can be given, however, that the ratings assigned to the 2002 Bonds will not be different from those currently expected for bond issues insured by the Insurer. The assignment of a particular rating to the 2002 Bonds is not a condition of the obligation of the Underwriter to accept delivery of and pay for the 2002 Bonds. Secondary Market Risk. While the Underwriter may make a secondary market in the 2002 Bonds during the Delayed Delivery Period,there can be no guarantee that the Underwriter will be successful in establishing such a secondary market, or,if a secondary market is established, that it will be maintained or that the 2002 Bonds can be sold for any particular price.Prospective purchasers of the 2002 Bonds should assume that the 2002 Bonds will be illiquid throughout the Delayed Delivery Period. Market Value Risk.The market value of the 2002 Bonds as of the delivery date thereof may be affected by a variety of factors including, without limitation; general market conditions, the ratings on the 2002 Bonds,the financial condition and business operations of the City, the financial condition and business operations of the Insurer,and federal and state income tax and other laws. The market value of the 2002 Bonds on the Delayed Delivery Closing Date, therefore, could be greater or less than the purchase price agreed to be paid by the initial purchasers thereof, and the difference could be substantial. The purchasers will, nevertheless, be obligated to take delivery of and pay for the 2002 Bonds if the Conditions to Delayed Delivery Closing described above are satisfied.Neither the City nor the Underwriter make any representation as to the market price of the 2002 Bonds as of the delivery date thereof. Federal Tax Proposals. The Bond Purchase Contract obligates the City to deliver and the Underwriter to purchase the 2002 Bonds if the City receives an opinion of Bond Counsel substantially in the form set forth in Appendix D to the effect that the interest on the 2002 Bonds is not included in the gross income of the holders thereof for federal income tax purposes as of the Delayed Delivery Closing Date. Certain legislation may be introduced in the U.S.Congress that,if adopted,would reform the system of federal taxation generally or the tax consequences of ownership and/or transfer of obligations of the character of the 2002 Bonds.That legislation could either(a) eliminate the exclusion from gross income for federal income tax purposes of interest payable on"state or local bonds," such as the 2002 Bonds,or(b)diminish the value of such exclusion.If legislation is enacted which eliminates the exclusion for federal income tax purposes of interest payable on "state and local bonds" such as the 2002 Bonds, it is expected that Bond Counsel will not deliver their approving opinion in the form attached hereto as Appendix D and, therefore, that the 2002 Bonds will not be issued and delivered to the Underwriter and will not be available for delivery to the purchasers. If the enactment of legislation only diminishes the value, as opposed to eliminating the exclusion from gross income for federal income tax purposes of interest payable on "state or local bonds," the City may, nonetheless, be able to satisfy the requirements for the delivery of.the 2002 Bonds.In such event,the purchasers would be required to accept delivery of the 2002 Bonds.Prospective purchasers are encouraged to consult their tax advisors regarding the 6 likelihood that legislation affecting the treatment of interest on the 2002 Bonds may be enacted and the consequences of such enactment for the purchasers. DESCRIPTION OF THE 2002 BONDS General The 2002 Bonds will be issued in the aggregate principal amounts shown on the cover page hereof. The 2002 Bonds will be issued in fully registered form without coupons in principal denominations of$5,000 each or any integral multiple thereof, as described below under"Book-Entry-Only System." The 2002 Bonds will be dated the date of delivery, which is anticipated to be August 6,2002,will bear interest at the rates per annum set forth on the cover page hereof, computed on the basis of a 360-day year consisting of twelve thirty-day months, and will mature on the dates and in the amounts set forth on the cover page hereof. Interest on the 2002 Bonds will be payable on November 1, 2002, and semi-annually thereafter on May 1 and November 1 of each year. The Bank of New York,will act as paying agent and Bond Registrar for the 2002 Bonds. Redemption Provisions for the 2002 Bonds Optional Redemption. The 2002 Bonds maturing on or before November 1, will not be subject to optional redemption prior to their stated maturities. The 2002 Bonds maturing on or after November 1, will be subject to redemption prior to their respective maturities, at the option of the City,as a whole or in part on any date on or after November 1, , in any order of maturities selected by the Finance Director of the City, at the following redemption prices (expressed as percentages of the principal amount of the 2002 Bonds to be redeemed), together with accrued interest to the date of redemption, as follows: Redemption Period (Both Dates Inclusive) Redemption Price November 1, through October 31, November 1, through October 31, November 1, and thereafter 100 7 Mandatory Redemption. The 2002 Bonds maturing on November 1, will be subject to mandatory redemption in part prior to their maturity date at a redemption price equal to the principal amount thereof, without premium, plus accrued interest to the redemption date, on November 1, and on each November 1 thereafter in the years and principal amounts set forth below(except for the final installment due at maturity,which shall not be a redemption): Year Amount Maturity. Selection of 2002 Bonds for Redemption The City shall select the 2002 Bonds or portions thereof to be purchased or redeemed by lot. The City shall promptly notify the Bond Registrar in writing of the numbers of the 2002 Bonds so selected for redemption and in making such selection, each 2002 Bond shall be treated as representing that number of 2002 Bonds of the lowest authorized denomination of 2002 Bonds as is obtained by dividing the principal amount of such 2002 Bond by such denomination. Notice of Redemption At least thirty (30) and not more than sixty (60) days prior to the redemption date, a notice of such redemption: (i)shall be filed with the Bond Registrar and(ii)shall be mailed postage prepaid,to all registered owners of the 2002 Bonds to be redeemed at their addresses as they appear on the registration books maintained by the Bond Registrar, but failure of any bondholder to receive any such notice shall not affect the validity of the proceedings for such redemption, and any defect in the giving of such notice of redemption of any 2002 Bond shall not affect the validity of the redemption of any other 2002 Bond. Effect of Redemption On the date so designated for redemption,notice having been given in the manner and under the conditions provided in the Resolution,the 2002 Bonds so called for redemption shall become and be due and payable at the redemption price provided for redemption of such 2002 Bonds on such date, and, moneys for payment of the redemption price being held in separate accounts by the Finance Director or by the Bond Registrar in trust for the Holders of the 2002 Bonds to be redeemed, interest on the 2002 Bonds so called for redemption shall cease to accrue, such 2002 Bonds shall cease to be entitled to any lien,benefit or security under the Resolution, and the Holders or registered owners of such 2002 Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof and accrued interest thereon. 8 Book-Entry Only System Unless the book-entry system described herein is terminated, as hereinafter described, The Depository Trust Company ("DTC"), New York,New York, will act as securities depository for the 2002 Bonds. The 2002 Bonds will be issued as fully registered securities registered in the name of Cede & Co. (DTC's partnership nominee). One fully registered 2002 Bond certificate will be issued for each maturity of the 2002 Bonds, in the aggregate principal amount of such maturity, and will be deposited with DTC or with the Trustee on behalf of DTC. DTC is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934.DTC holds securities that its participants ("Direct Participants") deposit with DTC. DTC also facilitates the settlement among Direct Participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in Direct Participant's accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC is owned by a number of its Direct Participants and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc., and the National Association of Securities Dealers,Inc.Access to the DTC system is also available to others such as securities brokers and dealers, banks, and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). The rules applicable to DTC and its participants are on file with the Securities and Exchange Commission. Purchases of the 2002 Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the 2002 Bonds on DTC's records. The ownership interest of each actual purchaser of each 2002 Bond(a"Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings,from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the 2002 Bonds are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in the 2002 Bonds,except in the event that use of the book-entry system for the 2002 Bonds is discontinued. To facilitate subsequent transfers, all 2002 Bonds deposited by Participants with DTC are registered in the name of DTC's partnership nominee, Cede &Co. The deposit of 2002 Bonds with DTC and their registration in the name of Cede&Co. effect no change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the 2002 Bonds;DTC's records reflect only the identity of the Direct Participants to whose accounts such 2002 Bonds are credited,which may or may not be the Beneficial Owners.The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Beneficial Owners of the 2002 Bonds may wish to take certain steps to augment the transmission to them of notices of significant events with respect to the 2002 Bonds, such as redemptions, defaults and proposed amendments to Series 2001 Bond documents. Beneficial Owners of the 2002 Bonds may wish to ascertain that the nominee holding the 2002 Bonds for their benefit has agreed to obtain and transmit notices to Beneficial Owners, 9 or in the alternative, Beneficial Owners may wish to provide their names and addresses to the City and/or the Bond Registrar and request that copies of notices be provided directly to them. Redemption notices shall be sent to Cede&Co.for so long as it is the registered owner of the 2002 Bonds. If less than all of the 2002 Bonds of a maturity are being redeemed, DTC's practice is to determine by lot the amount of the interest of each Direct Participant in such issue to be redeemed. Neither DTC nor Cede & Co. will consent or vote with respect to the 2002 Bonds. Under its usual procedures, DTC mails an Omnibus Proxy to the Bond Registrar as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the 2002 Bonds are credited on the record date (identified in a listing attached to the Omnibus Proxy). Principal and interest payments on the 2002 Bonds will be made to DTC.DTC's practice is to credit Direct Participants' accounts on the payable date in accordance with their respective holdings shown on DTC's records, unless DTC has reason to believe that it will not receive payment on the payable date. Payments by Direct or Indirect Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in "street name" and will be the responsibility of such Participant and not of DTC,the Bond Registrar,the Paying Agent or the City,subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal,premium, if any,and interest to DTC is the responsibility of the City,the Paying Agent or the Bond Registrar, disbursement of such payments to Direct Participants shall be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners shall be the responsibility of Direct and Indirect Participants. NONE OF THE CITY, THE BOND REGISTRAR, THE PAYING AGENT OR THE UNDERWRITER WILL HAVE ANY RESPONSIBILITY OR OBLIGATION TO THE DTC PARTICIPANTS OR THE PERSON FOR WHOM THEY ACT AS NOMINEES WITH RESPECT TO THE PAYMENTS TO OR THE PROVIDING OF NOTICE FOR THE DTC PARTICIPANTS,THE INDIRECT PARTICIPANTS OR THE BENEFICIAL OWNERS OF THE SERIES 2001 BONDS. NONE OF THE CITY, THE BOND REGISTRAR, THE PAYING AGENT OR THE UNDERWRITER GIVE ANY ASSURANCES THAT DTC, DIRECT PARTICIPANTS OR OTHERS WILL DISTRIBUTE PAYMENTS OF PRINCIPAL OF OR INTEREST ON THE SERIES 2001 BONDS PAID TO DTC OR ITS NOMINEE, AS THE REGISTERED OWNER, OR ANY NOTICES TO THE BENEFICIAL OWNERS OR THAT THEY WILL DO SO ON A TIMELY BASIS, OR THAT DTC WILL ACT IN THE MANNER DESCRIBED IN THIS OFFICIAL STATEMENT. Portions of the foregoing concerning DTC and DTC's book-entry system are based on information furnished by DTC to the City. No representation is made herein by the City or the Underwriter as to the accuracy or completeness of such information. In the event the system of book-entry ownership of the 2002 Bonds is discontinued,transfers and exchanges of the 2002 Bonds will be accomplished as described in Appendix C "Summary of Certain Provisions of the Resolution" hereto. SECURITY FOR THE 2002 BONDS General The principal of,premium, if any,and interest on the 2002 Bonds will be payable solely from and secured by a pledge of the Pledged Revenues, which include (i)Net Revenues of the System, (ii)to the extent hereinafter described, certain Impact Fees, and (iii)subject to the application thereof as provided in the Resolution, amounts 10 in certain funds and accounts established under the Resolution. The lien of the 2002 Bonds on the Pledged Revenues will be on a parity with the 1996 Bonds and any Additional Bonds issued under the Resolution. Provided that the City satisfies the requirements for the issuance of Additional Bonds contained in the Resolution and described herein, the City may issue Additional Bonds prior to the Delayed Delivery Closing Date. As further described herein under"The System-Water System-Capital Improvements" the City contemplates issuing Additional Bonds mid-year in 2002. The precise amount of such Additional Bonds cannot be estimated with certainty but is expected to be in the range of$25,000,000. THE BONDS DO NOT AND WILL NOT CONSTITUTE A GENERAL OBLIGATION,DEBT OR LIABILITY OF THE CITY OR THE STA 1'E OF FLORIDA OR ANY POLITICAL SUBDIVISION,AGENCY OR INSTRUMENTALITY OF THE CITY OR THE STATE OF FLORIDA WITHIN THE MEANING OF THE FLORIDA CONSTITUTION, AND NEITHER THE FULL FAITH AND CREDIT NOR THE TAXING POWER OF THE CITY, THE STATE OF FLORIDA, OR ANY POLITICAL SUBDIVISION THEREOF, IS OR WILL BE PLEDGED OR OBLIGATED AS SECURITY FOR THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON ANY BONDS. THE BONDS ARE AND WILL BE LIMITED OBLIGATIONS OF THE CITY AND THE HOLDERS OF THE BONDS SHALL HAVE NO RIGHT TO REQUIRE THE IMPOSITION OF ANY TAX OR THE ESTABLISHMENT OF ANY RATE OF TAXATION FOR THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON ANY BONDS. Definitions "Pledged Revenues" means (i) Net Revenues, (ii) to the extent provided in the Resolution,Impact Fees and (iii) to the extent provided in the Resolution, other amounts in certain funds and accounts created by the Resolution. "Net Revenues"means for any particular period the amount of excess of the Revenues for such period over the Current Expenses payable from the Revenue Account for such period, provided that for purposes of determining whether or not the City can meet debt service coverage requirements with respect to the issuance of Additional Bonds or determining whether or not the City has met its rate covenant,the term "Net Revenues" shall not include Revenues deposited in the Rate Stabilization Account. "Revenues" means all moneys received by the City in connection with or as a result of its ownership or operation of the System, including any income derived from the sale of water produced, treated or distributed by the System,or the collection, transmission, treatment or disposal of sewage or stormwater runoff by the System, any proceeds of use and occupancy insurance on the System or any part thereof,payments made to the City under Interest Rate Swaps,income from investment of money held under the Resolution and amounts transferred from the Rate Stabilization Account to the Revenue Account pursuant to the Resolution and any Assessments; but excluding (i) Impact Fees, (ii) special assessments other than any Assessments, (iii) grants, contributions or donations, (iv) income from the investment of moneys in the Construction Fund and the Impact Fee Account, (v)proceeds of insurance (except use and occupancy insurance) and condemnation awards, (vi) money held in any Arbitrage Rebate Fund, (vii) proceeds of sales of property constituting a part of the System or (viii)the proceeds of Bonds or other Utility Debt. "Current Expenses" means the City's reasonable and necessary current expenses of maintenance, repair and operation of the System, (a) including all ordinary and usual expenses of maintenance and repair, which may include expenses not annually recurring, all reasonable City administrative expenses allocated to the System pursuant to the Annual Budget, any reasonable payments to pension or retirement funds properly chargeable to the System, insurance premiums, engineering expenses relating to maintenance, repair and operation, expenses, including engineering expenses incurred in connection with the research and development of improvements or planned or possible improvements to the System, fees and expenses of the Bond Registrar, legal and accounting expenses, any fees, fines, or penalties lawfully imposed on the System, any taxes which may be lawfully imposed 11 on the System or its income or operations and reserves for such taxes or payments in lieu of such taxes as the Commission shall determine to pay,premiums for bond insurance, interest rate insurance or insurance assuring availability of the amounts required to be on deposit in the Reserve Account,fees for Credit Facilities or Liquidity Facilities, initial fees paid by the City to a party in consideration of the execution of an Interest Rate Swap (as opposed to payments made by the City based upon the notional amount pursuant to the Interest Rate Swap) and any other expenses required to be paid by the City under the provisions of the Resolution or by law,including any amounts required from time to time to fund the Arbitrage Rebate Fund, (b) but Current Expenses shall not include any reserves for extraordinary maintenance or repair, or any allowance for depreciation or amortization, or any deposits or transfers to the credit of the Sinking Fund Account, the Reserve Account, the Rate Stabilization Account, the Subordinated Indebtedness Account, the Renewal, Replacement and Improvement Account, the General Reserve Account or the Impact Fee Account, and shall not include,for purposes of determining whether or not the City has met its rate covenant, or determining whether or not the City can meet the debt service coverage requirement with respect to the issuance of Additional Bonds,any City administrative expenses allocated to the System. "Impact Fees" means all non-refundable (except at the option of the City) capital recovery charges, pollution control fees, capacity charges and other similar fees and charges separately imposed by the City as a nonuser capacity charge for the proportionate share of the cost of expanding, oversizing, separating or constructing Improvements to the System and any investment earnings from the investment of funds on deposit in the Impact Fee Account, but excluding those charges imposed by the City on persons connecting to the System for the cost of physically connecting thereto, including but not limited to the costs of excavation, plumbing, installation of meters and landscaping. Rate Covenant The City has covenanted under the Resolution to fix, charge and collect reasonable rates and charges for the use of the services and facilities furnished by the System and that from time to time, and as often as it shall appear necessary, to adjust such rates and charges by increasing or decreasing the same or any selected categories of rates and charges so that the Net Revenues will be sufficient to provide an amount in each Fiscal Year at least equal to one hundred ten per centum (110%) of the Principal and Interest Requirements for such Fiscal Year on account of the Bonds then Outstanding and one hundred per centum(100%)of all amounts required to be deposited to the Reserve Account and the Renewal, Replacement and Improvement Account. The City has further covenanted under the Resolution that if in any Fiscal Year the Net Revenues shall be less than the amount required under the preceding paragraph, within 30 days of the receipt of the audit report for such Fiscal Year, the City shall employ a Rate Consultant to review and analyze the financial status of the System,to inspect the System and to submit,within 60 days thereafter, a written report to the City recommending revisions of the rates, fees and charges of the System and the methods of operation of the System that will result in producing the amount so required in the following Fiscal Year. Promptly upon its receipt of such recommendations, the City shall transmit copies thereof to the City Manager and shall revise its rates, fees and charges, or alter its methods of operation and take such other action as shall conform with such recommendations. If the City shall fail to comply with the recommendations of the Rate Consultant,the registered owners of not less than ten per centum (10%) in principal amount of all Bonds then Outstanding may institute and prosecute an action or proceeding in any court or before any board or commission having jurisdiction to compel the City to comply with the recommendations and the requirements of the Rate Consultant. If the City shall comply with all recommendations of the Rate Consultant in respect to its rates, fees, charges and methods of operation,the failure of Net Revenues to meet the above described requirements shall not constitute an Event of Default so long as the Revenues, together with available moneys in the funds and accounts under the Resolution, are sufficient to pay in cash the Current Expenses and to pay the Principal and Interest 12 Requirements on all Outstanding Bonds and other Utility Debt, except any Subordinated Indebtedness, for such Fiscal Year. Reserve Account The Resolution provides for the establishment and maintenance of a Reserve Account, and separate subaccounts within the Reserve Account for each Series of Bonds issued pursuant to the Resolution, in an amount (i)with respect to the 2002 Bonds,equal to the lesser of(a) 10%of the aggregate stated principal amount of the 2002 Bonds Outstanding, (b)the maximum amount of principal and interest scheduled to become due on the 2002 Bonds in the current or any succeeding Bond Year, or(c) 125%of the average annual debt service on the Outstanding 2002 Bonds (calculated on a Bond Year basis at the time of issuance only) and(ii)with respect to any Series of Additional Bonds,such funding requirement for the Reserve Account, if any, as shall be established in the Series Resolution for such Series of Additional Bonds (the "Reserve Account Requirement"). Moneys held for the credit of each subaccount in the Reserve Account shall be used for the payment of the interest on, the principal of and the Amortization Requirements for the Bonds for which such subaccount was established whenever and to the extent that moneys held for the credit of the Bond Service Subaccount or the Redemption Subaccount in respect of such Bonds shall be insufficient for such purpose. If at any time the moneys held for the credit of any such subaccount in the Reserve Account shall exceed the Reserve Account Requirement for the Series for which such subaccount in the Reserve Account was established,such excess shall be withdrawn and deposited to the credit of the Revenue Account. The Series 2002 Reserve Subaccount in the Reserve Account shall be funded in an amount equal to the Reserve Account Requirement upon the issuance of the 2002 Bonds. In lieu of the required deposit into the Series 2002 Reserve Subaccount,the City may,with the consent of any applicable issuer of a Credit Facility or Liquidity Facility then in effect, cause to be deposited into the Series 2002 Reserve Subaccount a Reserve Account Insurance Policy or Reserve Account Letter of Credit for the benefit of the Holders of the 2002 Bonds either in substitution for the full amount then on deposit therein, or in an amount equal to the difference between the amount required to be deposited in the Series 2002 Reserve Subaccount and the sum, if any,then on deposit in the Series 2002 Reserve Subaccount, which Reserve Account Insurance Policy or Reserve Account Letter of Credit shall be payable (upon the giving of notice as required thereunder) on any interest payment date on which a deficiency exists for the 2002 Bonds,which cannot be cured by moneys in any other fund or account held pursuant to the Resolution and available for such purpose. To the extent required by the issuer of a Reserve Account Insurance Policy or Reserve Account Letter of Credit,the City may enter into an agreement or agreements with a Depositary for the purpose of depositing such Reserve Account Insurance Policy or Reserve Account Letter of Credit with such Depositary and providing for utilization of proceeds of the Reserve Account Insurance Policy or Reserve Account Letter of Credit as provided in the Resolution. If any such Reserve Account Insurance Policy or Reserve Account Letter of Credit is substituted for moneys on deposit in the Series 2002 Reserve Subaccount, the excess moneys in the Series 1996 Reserve Subaccount shall be applied to satisfy any such deficiency in any of the funds or accounts under the Resolution, and any remaining balance shall be deposited in the General Reserve Account. Flow of Funds Revenues will be collected by the City and deposited as received with a Depositary or Depositaries to the credit of the Revenue Account. All moneys in the Revenue Account shall be held by the City in trust and applied as follows: On or before the 20th day of each month,except as provided hereafter, the City shall withdraw an amount equal to the balance remaining in the Revenue Account, less an amount (to be held for the payment of Current Expenses) equal to the amount shown by the Annual Budget to be necessary for Current Expenses during the next two (2) ensuing months, and deposit the sum so withdrawn in the following order: 13 (a) to the credit of the Bond Service Subaccount of the Sinking Fund Account, an amount,together with any amount concurrently deposited therein from the Impact Fee Account, equal to one-sixth (1/6th) of the amount of interest payable on the Bonds of each Series on the next succeeding Interest Payment Date and equal to one-twelfth (1/12th) or, if principal is payable semi-annually, one-sixth (1/6th), of the next maturing installment of principal on all Serial Bonds then outstanding;provided, however, that in each month intervening between the date of delivery of the 2002 Bonds, any Additional Bonds or any Refunding Bonds (beginning with the month following the month in which such delivery takes place) and the next succeeding Interest Payment Date and the next succeeding principal payment date,respectively,the amount specified in this subparagraph shall be that amount which when multiplied by the number of deposits to the credit of the Bond Service Subaccount required to be made during such respective periods as provided above will equal the amounts required (in addition to any amounts received as accrued interest or capitalized interest from the proceeds of such Bonds)for such next succeeding interest payment and next maturing installment of principal, respectively; and provided further that on or before the 15th day of the month preceding any Interest Payment Date or maturity date of Bonds,the required deposit to the Bond Service Subaccount shall be the amount necessary, together with other amounts on deposit in such Subaccount, to provide for the interest and principal coming due on such Interest Payment Date or maturity date; (b) to the credit of the Redemption Subaccount of the Sinking Fund Account, an amount,together with any amount concurrently deposited therein from the Impact Fee Account, equal to one-twelfth (1/12th) or,if any Bonds are required to be retired semi-annually in satisfaction of the Amortization Requirements therefor, one-sixth (1/6th),of the principal amount of Term Bonds of each Series then outstanding required to be retired, in satisfaction of the Amortization Requirements, if any, for such Fiscal Year; provided that on or before the 20th day of the month preceding the due date of any Amortization Requirement, the required deposit to the Redemption Subaccount shall be the amount necessary, together with other amounts on deposit therein, to provide for such Amortization Requirement; (c) to the credit of the Reserve Account and the subaccounts therein, such amount, if any, of any balance remaining after making the deposit described in clauses (a) and (b) above (or the entire balance if less than the required amount)which will be required to make the amount deposited to the credit of the Reserve Account and the subaccounts therein in such month equal to the Reserve Account Deposit Requirement for all Bonds for such month. In the event the amount available to be deposited in the Reserve Account at any time is less than the Reserve Account Deposit Requirement for all Bonds at such time,the amount available shall be allocated among the various subaccounts having a Reserve Account Deposit Requirement pro rata, based upon the proportion that the Reserve Account Deposit Requirement for each subaccount bears to the total Reserve Account Deposit Requirements for all subaccounts; (d) to the credit of the Renewal, Replacement and Improvement Account, such amount, if any, of any balance remaining after making the deposits described in clauses (a), (b) and (c) above (or the entire balance if less than the required amount) as may be required to make the amount deposited in such month to the credit of the Renewal,Replacement and Improvement Account equal to one-twelfth(1/12th)of the difference between any lesser amount on deposit therein and the Renewal,Replacement and Improvement Account Requirement for such Fiscal Year; (e) to the credit of the Rate Stabilization Account,such amounts as shall be determined from time to time by the Commission for crediting thereto; (f) to the credit of any Arbitrage Rebate Fund,such amount as shall be determined from time to time by the Commission for crediting thereto; (g) to the credit of the Subordinated Indebtedness Account, an amount, if any, of any balance remaining after making the deposits under clauses (a)through (f)above (or the entire balance if less than the required amount) equal to the sum of one-twelfth (1/12th) of the principal of,redemption premium, if any, and interest coming due 14 on any Subordinated Indebtedness during the next succeeding twelve month period and the amount,if any,required to be deposited in any special reserve subaccount established within the Subordinated Indebtedness Account as provided in the Resolution; and (h) to the credit of the General Reserve Account,the balance, if any,remaining after making the deposits described in clauses (a) through (g) above. If the amount deposited in any month to the credit of any of the Accounts mentioned in (a) through (h), inclusive, above shall be less than the amount required to be deposited therein under the Resolution, the requirement therefor shall nevertheless be cumulative and the amount of any deficiency in any month shall be added to the amount otherwise required to be deposited in each month thereafter until such time as all such deficiencies have been made up. General Reserve Account The General Reserve shall be disbursed as follows: (a) to pay the Cost of Improvements; (b) to purchase or redeem Bonds; (c) to make up deficiencies in any of the accounts and funds created by the Resolution; (d) to pay the Cost of any item qualifying as an authorized expenditure from the Renewal, Replacement and Improvement Account; (e) to make payments required under Interest Rate Swap agreements; and (f) for any lawful use of the City as directed by the City Commission. 2002 Project Construction Account Moneys in the Series 2002 Construction Account in the Construction Fund are required to be held in trust and applied to the payment of a portion of the Cost of the 2002 Project and, pending such application, shall be subject to a lien and charge in favor of the Holders of the 2002 Bonds. To the extent there are no other funds available under the Resolution for such purpose,moneys in the Series 2002 Construction Account shall be used to pay principal and interest on the 2002 Bonds to the extent necessary to prevent a payment default on the 2002 Bonds. Amounts remaining in the Series 2002 Construction Account upon completion of the 2002 Project which are not reserved by the City for the payment of any part of the 2002 Project shall be transferred by the Finance Director, in the discretion of the Commission, to the credit of the Renewal, Replacement and Improvement Account,to the credit of the Sinking Fund Account for the payment of the principal of the 2002 Bonds or retained in the Series 2002 Construction Account for the payment of the costs of a different Improvement or Improvements which have been approved by the Commission. Issuance of Additional Bonds The City may issue Additional Bonds under and secured by the Resolution, on a parity as to the pledge of the Pledged Revenues with any other Bonds then Outstanding, provided that there shall be filed with the City a written statement or report,with respect to such Additional Bonds being issued to provide funds to pay the Cost 15 of a Project, described in either (i) or(ii) below,or,with respect to Additional Bonds issued to pay debt service on Utility Debt, described in (ii) below: (i) prepared by the Consulting Engineers and demonstrating that the percentage derived by dividing the Net Revenues projected for the System, based upon assumptions approved in writing by each issuer of a Credit Facility after an opportunity to review and comment on such statement or report, for the Fiscal Year following the Fiscal Year in which the Completion Date of the Improvements to be financed by the Additional Bonds then to be delivered is expected to occur, as such Completion Date is established by the Consulting Engineers, adjusted as provided below,by the Maximum Principal and Interest Requirements, including the Principal and Interest Requirements with respect to the Additional Bonds then to be delivered, for any future Fiscal Year is not less than one hundred ten per centum (110%) or (ii)prepared by the Consulting Engineers, the Finance Director, the Accountant or the Rate Consultant and demonstrating that the percentage derived by dividing the Net Revenues for any period of twelve consecutive months selected by the City out of the twenty four months preceding the delivery of such written statement or report, by the Maximum Principal and Interest Requirements, including the Principal and Interest Requirements with respect to the Additional Bonds then to be delivered, for any future Fiscal Year is not less than one hundred ten per centum (110%),provided,that for purposes of this clause (ii), Net Revenues consisting of Impact Fees and amounts transferred from the Rate Stabilization Account shall not account for more than 10%of the total Net Revenues. The period during which Net Revenues are determined is referred to as the "Measurement Period". In calculating Net Revenues for purposes of the preceding paragraph, the following adjustments to Net Revenues may be made: (1) If the City,prior to the issuance of the proposed Additional Bonds,shall have increased the rates, fees, rentals or other charges for the services of the System, the Net Revenues for the Measurement Period may be adjusted to show the Net Revenues which would have been derived from the System in such Measurement Period as if such increased rates, fees, rentals or other charges for the services of the System had been in effect during all of such Measurement Period. (2) If the City shall have acquired or has contracted to acquire any privately or publicly owned existing water system, sewer system or stormwater system, then the Net Revenues derived from the System during the Measurement Period may be increased by addition to the Net Revenues for the Measurement Period of the Net Revenues which would have been derived from said existing water system, sewer system or stormwater system if such existing water system, sewer system or stormwater system had been a part of the System during the Measurement Period. For the purposes of this paragraph, the Net Revenues derived from said existing water system,sewer system or stormwater system during the Measurement Period shall be adjusted by deducting the cost of operation and maintenance of said existing water system, sewer system or stormwater system from the gross revenues of said existing water system, sewer system or stormwater system in the same manner provided in the Resolution for the determination of Net Revenues, and adjusted in each case to reflect municipal ownership of such system. (3) If the City, in connection with the issuance of Additional Bonds, shall enter into a contract (with a duration not less than the final maturity of such Additional Bonds)with any public or private entity whereby the City agrees to furnish services in connection with any water system, sewer system or stormwater system,then the Net Revenues of the System during the Measurement Period may be increased by the least amount which said public or private entity shall guarantee to pay in any one year for the furnishing of said services by the City,after deducting therefrom the proportion of operating expenses and repair, renewal and replacement cost attributable in such year to such services. Such payments shall be deemed to be Net Revenues of the System and pledged for the Bonds in the same manner as other Net Revenues of the System. (4) If the City covenants to levy Assessments or Impact Fees against property to be benefitted by the Improvements (which levy will be done in accordance with State law),the cost of which shall be paid from the proceeds of the proposed Additional Bonds and if in the case of Impact Fees, such Impact Fees are legally available 16 for application with respect to such Additional Bonds as permitted under the Resolution, then the Net Revenues during the Measurement Period may be increased by an amount equal to one hundred per centum (100%) of the amount which the Consulting Engineer estimates will be received in each year from the levy of said Assessments or Impact Fees, as the case may be,within three years of the date of the sale of such Additional Bonds,said amount to be the total received from the installment payments on the Assessments or Impact Fees, as the case may be,plus, in the case of Assessments, any interest paid on the unpaid portion of the Assessments. In the case of Assessments, the estimate of the Consulting Engineer shall be based upon the preliminary assessment roll filed with the City prior to the construction of such Improvements. (5) Should the City be constructing or acquiring additions, extensions or Improvements to the System from the proceeds of such Additional Bonds and if the City shall have established rates,fees,rentals or other charges to be charged and collected from users of such facilities when service is rendered, the Net Revenues for the Measurement Period may be adjusted to show the Net Revenues estimated by the Consulting Engineers or the Rate Consultant to be received from the users of the facilities to be financed, during the first full Fiscal Year of operation after completion of the construction or acquisition of said additions,extensions and improvements as if such rates, fees, rentals or other charges for such services had been in effect during all of such Fiscal Year. MUNICIPAL BOND INSURANCE Financial Guaranty Insurance Company has issued its Company commitment to issue a municipal bond insurance policy insuring the payment of the principal of and interest on the 2002 Bonds simultaneously with the delayed delivery of the 2002 Bonds. See "Delayed Delivery of 2002 Bonds-Conditions to Delayed Delivery-Issuance of Municipal Bond Insurance Policy." The following information has been furnished by Financial Guaranty Insurance Company ("Financial Guaranty" or the "Insurer") for use in this Official Statement. Reference is made to Appendix E for a specimen of the Insurer's policy. Concurrently with the issuance of the 2002 Bonds,Financial Guaranty will issue its Municipal Bond New Issue Insurance Policy for the 2002 Bonds (the "Policy"). The Policy unconditionally guarantees the payment of that portion of the principal of and interest on the 2002 Bonds which has become due for payment, but shall be unpaid by reason of nonpayment by the City. Financial Guaranty will make such payments to State Street Bank and Trust Company,N.A.,or its successor as its agent (the "Fiscal Agent"), on the later of the date on which such principal and interest is due or on the business day next following the day on which Financial Guaranty shall have received telephonic or telegraphic notice, subsequently confirmed in writing, or written notice by registered or certified mail,from an owner of 2002 Bonds or the Bond Registrar of the nonpayment of such amount by the City. The Fiscal Agent will disburse such amount due on any 1996 Bond to its owner upon receipt by the Fiscal Agent of evidence satisfactory to the Fiscal Agent of the owner's right to receive payment of the principal and interest due for payment and evidence, including any appropriate instruments of assignment, that all of such owner's rights to payment of such principal and interest shall be vested in Financial Guaranty. The term "nonpayment" in respect of a 1996 Bond includes any payment of principal or interest made to an owner of a 1996 Bond which has been recovered from such owner pursuant to the United States Bankruptcy Code by a trustee in bankruptcy in accordance with a final, nonappealable order of a court having competent jurisdiction. The Policy is non-cancellable and the premium will be fully paid at the time of delivery of the 2002 Bonds. The Policy covers failure to pay principal of the 2002 Bonds on their respective stated maturity date or dates on which the same shall have been duly called for mandatory sinking fund redemption, and not on any other date on which the 2002 Bonds may have been otherwise called for redemption, accelerated or advanced in maturity, and covers the failure to pay an installment of interest on the stated date for its payment. 17 Generally, in connection with its insurance of an issue of municipal securities,Financial Guaranty requires, among other things, (i) that it be granted the power to exercise any rights granted to the holders of such securities upon the occurrence of an event of default, without the consent of such holders, and that such holders may not exercise such rights without Financial Guaranty's consent,in each case so long as Financial Guaranty has not failed to comply with its payment obligations under its insurance policy; and (ii) that any amendment or supplement to or other modification of the principal legal documents be subject to Financial Guaranty's consent. The specific rights, if any,granted to Financial Guaranty in connection with its insurance of the 2002 Bonds are set forth in the description of the principal legal documents appearing elsewhere in this Official Statement. Reference should be made as well to such description for a discussion of the circumstances, if any,under which the City is required to provide additional or substitute credit enhancement, and related matters. This Official Statement contains a section regarding credit ratings with respect to Financial Guaranty insured issues and the 2002 Bonds and references should be made to such section for a discussion of such ratings and the basis for their assignment to the 2002 Bonds. Reference should be made to the description of the City for a discussion of the ratings, if any, assigned to such entity's outstanding parity debt that is not secured by credit enhancement. This policy is not covered by the Property/Casualty Insurance Security Fund specified in Article 76 of the New York Insurance Law. Financial Guaranty is a wholly-owned subsidiary of FGIC Corporation (the "Corporation"), a Delaware holding company. The Corporation is a subsidiary of General Electric Capital Corporation ("GE Capital"). Neither the Corporation nor GE Capital is obligated to pay the debts of or the claims against Financial Guaranty. Financial Guaranty is a monoline financial guaranty insurer domiciled in the State of New York and subject to regulation by the State of New York Insurance Department. As of December 31,2000 the total capital and surplus of Financial Guaranty was approximately$1.089 billion. Financial Guaranty prepares financial statements on the basis of both statutory accounting principles and generally accepted accounting principles. Copies of such financial statements may be obtained by writing to Financial Guaranty at 115 Broadway, New York, New York 10006, Attention: Communications Department (telephone number (212) 312-3000) or to the New York State Insurance Department at 25 Beaver Street, New York, New York 10004-2319, Attention: Financial Condition Property/Casualty Bureau (telephone number (212) 602-0389). 18 ESTIMATED SOURCES AND USES OF FUNDS SOURCES OF FUNDS: Principal Amount of 2002 Bonds $ Less: Original Issue Discount Accrued Interest Available City Funds(1) TOTAL SOURCES: $ USES OF FUNDS: Deposit to Escrow Deposit Trust Fund $ Deposit to 2002 Construction Account Deposit to 2002 Reserve Subaccount Deposit to Interest Account Costs of Issuance0 TOTAL USES: $ (1) Consists of amounts transferred from 1992 Reserve Subaccount and Bond Service Subaccount under the Resolution. (2) Includes, among other things, underwriter's discount, counsel fees, registrar fees and municipal bond insurance premium. 19 DEBT SERVICE REQUIREMENTS The following table sets forth the debt service requirements for the outstanding 1996 Bonds and the 2002 Bonds: Total Net Revenues Annual for Total Debt Service Fiscal Year Bond Year Debt Service on 1996 ended Debt ending on Outstanding 2002 Bonds 2002 Bonds Bonds and September 30, Service November 1, 1996 Bonds Principal Interest 2002 Bonds 2000 Coverage(2) 2002 $2,412,332.50 $ $ (1) $ $16,295,232.00 2003 2,417,877.50 16,295,232.00 2004 2,664,037.50 16,295,232.00 2005 2,668,677.50 16,295,232.00 2006 2,672,427.50 16,295,232.00 2007 2,664,862.50 16,295,232.00 2008 2,666,062.50 16,295,232.00 2009 2,668,562.50 16,295,232.00 2010 2,660,150.00 16,295,232.00 2011 2,663,325.00 16,295,232.00 2012 2,669,625.00 16,295,232.00 2013 168,500.00 16,295,232.00 2014 162,312.50 16,295,232.00 2015 161,125.00 16,295,232.00 2016 164,656.25 16,295,232.00 2017 167,625.00 16,295,232.00 2018 165,031.25 16,295,232.00 2019 162,156.25 16,295,232.00 2020 169,000.00 16,295,232.00 TOTAL $32,556,568.75 $ $ $ (1) Includes Accrued Interest. (2) Based on Net Revenues for Fiscal Year ended September 30,2000. 20 THE SYSTEM General The City provides water and wastewater services to a geographic area within Palm Beach County about twice the size of the City itself. The City's water system includes facilities for raw water supply,water treatment and water distribution. The City's wastewater system includes sewage collection and transmission. The City also provides stormwater services within the City limits for all City-owned roadways, facilities and canals. Service Area The System serves the City,the Town of Briny Breezes, a portion of the Town of Hypoluxo and several unincorporated areas of Palm Beach County. The Town of Ocean Ridge,which is geographically within the City's service area is also served by the City's water system, but has no sanitary sewers and relies on a combination of septic tanks and small neighborhood package plants for wastewater treatment. The City also provides wastewater collection service to the Village of Golf,but provides no water service. The City may extend its boundaries in the future through annexation of unincorporated areas of Palm Beach County, which primarily lie to the west of existing City limits. Because most of the areas that may be annexed are already encompassed by the water and wastewater service areas and connected to the water and wastewater systems, annexation is not expected to have a significant effect on water and wastewater service demands,even though the 25%rate surcharge currently imposed by the City with respect to service provided outside the City limits would no longer apply to areas annexed by the City. Stormwater services is limited strictly to the area within the City limits. Condition of the System and System Performance The City believes that the production,transmission, distribution,treatment and collection facilities of the System are in good condition, well operated and maintained in accordance with usual utility practice and can reasonably be expected to provide adequate and reliable service to meet the existing requirements of the System. In addition,the City believes that plant staffing is at a reasonable level and that staff is receiving adequate training for operation of the System. The Consulting Engineers have conducted an independent review of the condition and maintenance practices of the System. See Appendix F "Letters of Consulting Engineers" hereto. Administration The City's Water and Sewer Utilities Department is divided administratively into ten divisions, consisting of an administrative division and nine operating divisions. Total staff for the department is currently 110,including 24 certified water treatment plant operators and 19 certified field technicians. This staff is responsible for the operation and maintenance of the water supply,treatment, distribution and storage facilities,wastewater collection, pumping and transmission and stormwater system operations. Wastewater treatment facilities are operated and maintained under the South Central Regional Wastewater Treatment and Disposal Board. The utility has an ongoing safety training program for its staff. In addition, the Department operates its own billing system, with revenue collections handled by the City's Finance Department. Water System The water system operated by the City consists of groundwater withdrawal, treatment, transmission, storage, distribution,administration, and operations. The average and maximum daily demands for the Fiscal Year 2000 were 14.6 million gallons per day (MGD) and 18.3 MGD, respectively. 21 Treatment Plants and Well Fields. The City has one water treatment plant known as the East Water Treatment Plant (the"East WTP") which is permitted to operate at a maximum daily rate of 19.24 MGD. The East WTP uses lime softening, filtration, ammoniation and chlorination to treat the surficial groundwater withdrawn from the East Well Field. The plant's facilities are capable of treating 20.5 MGD, but the plant's rating is limited to 19.24 MGD because of limited raw water supply. The City's water system uses groundwater withdrawn from the surficial aquifer to supply water to its treatment system. Currently, only the East Well Field, which comprises 20 active production wells, is used to supply water to the East WTP. The City began operation of the West Water Treatment Plant (the "West WTP") in the western portion of the service area in January, 1994. The West WTP provides 8.0 MGD of finished water through the use of a nannofiltration membrane process, with up to 1.6 MGD additional available by blending filtered water with the finished nannofiltration product. The plant uses low-pressure membrane softening to remove organics and hardness from the groundwater and then employs degasification to remove hydrogen sulfide. It is the City's opinion that the finished water quality produced at the West WTP is very high,meets all current regulations and will meet anticipated future water regulations. In addition to membrane softening and degasification, an odor control system neutralizes hydrogen sulfide from the off-gas of the degasification unit. Other treatment processes include chemical storage and feed systems, standby emergency power for the plant and well field, high service pumping,a 3.0 million gallon (MG) storage tank,a plant operations and laboratory facility, a deep injection well to dispose of the concentrate byproduct produced during the membrane softening process, and an emergency concentrate water disposal system to the City's wastewater collection system. A data acquisition and control system ("DACS") is in place which allows the East WTP to monitor all operations within the West WTP and transfer information to and from the East WTP. The City has also begun design for an expansion of the West WTP to increase capacity to approximately 23.5 MGD. As part of this expansion, equipment for three new raw water wells will be added as well as additional membrane treatment capacity and high service pumping. This expansion is anticipated to commence mid-year 2002 and to be refinanced with a portion of the proceeds of Additional Bonds anticipated to be issued in the amount of approximately $25,000,000. Water supply for the West WTP comes from the West Well Field immediately west of the West WTP. The City has completed drilling and developing the ten wells that make up the West Well Field and has completed the raw water system piping that connects each well to the new West WTP. Each well has also been outfitted with a well head and discharge piping. The surficial aquifer is the water source for these wells,which supplies raw water to the new West WTP. Only seven of the wells are utilized for the 8 MGD capacity of the West WTP. These wells are installed with pumps,controls,and electrical equipment,and each well is capable of providing 1.5 MGD of flow. As the West WTP expands beyond its current capacity to 23.5 MGD by buildout,the remainder of the wells in the West Well Field will be utilized. Additional raw water may be obtained from new Floridan Acquifer well(s) as required. Water Distribution and Storage. The water distribution system covers the entire water service area. Approximately 280 miles of piping comprise the system, ranging in size from 2 inches to 42 inches in diameter. The storage capacity within the system includes one 1.5-MG elevated storage tank, a 1.4-MG clear well at the East WTP,a 1.0-MG and two 3.0-MG ground storage tanks. The 1.5 MG elevated storage tank is located immediately south of the East WTP. Regulatory Framework and Compliance. The City operates the water system in such a manner that all local,state and federal regulations are met. Standards of utility operation and water quality for the water system have been established by the Environmental Protection Agency ("EPA") under the 1974 Safe Drinking Water Act ("SDWA") and the 1986 SDWA Amendments. This Act, in addition to regulations established by the Florida Department of Environmental Regulation ("FDER") and the Palm Beach County Public Health Unit's ("PBCPHU") Environmental Control Rule II("ECR"),set the regulatory framework within which the City's water 22 supply treatment, and distribution system operate. The system is monitored by the PBCPHU operating under the Florida Department of Health and Rehabilitative Services, Division of Health. The groundwater supply is regulated by the South Florida Water Management District ("SFWMD") which regulates the withdrawal of water from the City's well fields. The City currently has a Consumptive Use Permit ("CUP") for an annual average day withdrawal of 14.6 MGD and a peak day withdrawal of 20.66 MGD between the East and West Well Fields. This permit is expected to be re-issued in 2001. Average daily and peak withdrawal during 1999 were 15.1 MGD and 20.1 MGD, respectively and during 2000 were 16.1 MGD and 19.1 MGD. Although the average daily withdraws by the City in 1999 and 2001 exceeded the permitted levels, no action was taken by SFWMD in that regard. The City is in the process of renewing the CUP, and anticipates that a higher withdrawal level will be permitted in the future. At the West WTP, the City meets the additional requirements of the Lake Worth Drainage District ("LWDD") pertaining to the impact of groundwater withdrawals on canal levels under the jurisdiction of the LWDD. New regulations associated with the SDWA that may affect the City include the Disinfectant-Disinfection Byproduct (D-DBP) Rule (Phase VI-A),the Groundwater Disinfection Rule, and Phase VI-B Rules. The D-DBP Rule may limit the concentrations of disinfectants that may be added to the water and may lower the maximum contaminant level for trihalomethanes (THMs) and other byproducts of the reaction between chlorine and natural organics. The City has previously studied the use of ozone and chlorine dioxide to meet the requirements of the new rule. The City believes that the new West WTP is producing high quality water that is improving the overall water quality in the System, and will allow the City to meet all existing and proposed standards. Capital Improvements. The City finished a capital improvement project to the East WTP in 1993 that renovated or replaced facilities which were not working properly or had become outdated. The City continues a maintenance program that keeps existing equipment in proper operating condition and maintains existing capital facilities. See Appendix F "Letters of Consulting Engineers" hereto. Several other capital improvement projects have been completed at the East WTP within the last ten years. These include rehabilitation/uprating of the west filter bank, improving hydraulics from the south softening unit to the filter basins,increasing the chlorine feed capacity, providing a new chlorine scrubber facility for use during chlorine leaks,adding a new emergency diesel generator, improvements to the lime storage and feed system, new chemical feed systems and replacement of two internal softening units. Other improvements at the plant include a new aquifer storage and recovery ("ASR") well which was completed in 1993. This well provides underground storage of finished water to be withdrawn during periods of high demand. A new computer system links the East and West WTPs and shares data between the two plants. The City purchased 7.8 acres immediately south of the existing East WTP site to be used for the new elevated storage tank, equipment storage, parking and for new treatment facilities that may be required to meet future water regulations. A 0.75 acre area at the southern end of the tract has been designated as a preserve of native habitat and will serve as a buffer for neighboring residents. The City currently has several capital expansion or improvement projects planned for the next ensuing five year period. These projects include approximately$25,000,000 of capacity related improvements to the water system, approximately$2,100,000 of non-capacity related water system improvements, approximately $7,000,000 of wastewater improvement projects and approximately $29,000,000 of stormwater improvement projects. The sources of funding for these improvements include existing cash reserve/operating funds and another utility system revenue bond issue in the amount of$25,000,000 anticipated for mid-year of 2002. 23 Wastewater System In 1974,the City entered into an interlocal agreement with the adjacent City of Delray Beach,Florida(the "Interlocal Agreement") for the provision of wastewater treatment, sludge disposal and effluent disposal on a regional level. The Interlocal Agreement creates a legal entity known as the South Central Regional Wastewater Treatment and Disposal Board,composed of the five members of the respective City Commissions of the two cities, who operate the South Central Regional Wastewater Treatment Plant (the "Plant") through an executive director. Pursuant to the Interlocal Agreement, the two cities own the Plant located within the corporate limits of the City of Delray Beach. Current wastewater flows for the City are approximately 8.7 MGD on an annual average daily basis and 9.9 MGD on a maximum month average daily basis. By the year 2005, average daily and maximum month daily flows are projected to be 10.0 MGD and 11.5 MGD, respectively. Wastewater Collection and Transmission. The existing wastewater collection and transmission system consists of approximately 221 miles of gravity sewer, 67 miles of force main, and 147 lift stations. The predominant pipe materials are vitrified clay for gravity sewers and ductile iron for force mains. A hydraulic analysis of the system performed for the master plan in 1989 showed that the wastewater collection and transmission system appears to be sufficiently sized to meet projected future flows in most areas. However, several improvements are needed to maintain the system in good condition. These include replacement of 28 pumps per year throughout the System and rehabilitation of pumps, electrical equipment and wet well coatings, concrete, and surfaces at four master lift stations. A new telemetry system for pump stations was installed in 1993-94. Although most of the City's sewage lift stations are in good condition,several of the older subsystem lift stations are in need of replacement. The City will continue to inspect all stations throughout the system to verify the condition of the wet wells and pumps so that repairs can be made when needed. Equipment and facilities at the City's master lift stations will be rehabilitated and replaced to repair wet well walls damaged by corrosion and to replace pumps and associated equipment. Other slight deficiencies to the City's master pump and lift stations will be upgraded over the next few years as part of the City's renewal and replacement program. The Consulting Engineers have performed an analysis of the condition of the System. See Appendix F "Letters of Consulting Engineers" hereto. Regulatory Framework and Compliance. Standards of utility operation and water quality for the wastewater system have been established by federal and state codes. Wastewater collection and pumping facilities are regulated and permitted by FDER and monitored through the PBCPHU. The City believes that the wastewater system meets all local, state and federal regulations and permitting requirements. The quality of the wastewater entering the collection system is regulated by the General Pretreatment Regulations (40 CFR 403)promulgated by the EPA. These regulations govern industrial discharged into publicly owned treatment works (POTW) and controls non-domestic wastes containing pollutants that may have direct adverse effects on human health or the environment, interfere with sewage treatment plant processes, or pass untreated through the treatment plant to the receiving water. The EPA audits the City annually to determine conformance with the Pretreatment Rule and has determined that the City is in compliance with these regulations. The City continues to staff a program coordinator and two technicians to monitor industrial discharges into the collection system. Stormwater System In 1993 the City formed a Stormwater Utility for the purpose of operating and maintaining the existing stormwater system, and also to make the necessary improvements required by projected water quality discharge standards. It has recently developed a regional stormwater detention facility in the downtown area, and will be 24 expanding or improving stormwater facilities throughout the service area. The system currently comprises 2 stormwater detention ponds, 129 miles of roadside swales,and 20 miles of underground piping,ranging in size from 8-inches to 72-inches in diameter. The City is one of the co-recipients of an NPDES permit from the U.S.Environmental Protection Agency (USEPA) regulating stormwater activities within Palm Beach County. The City also participates with annual monitoring of stormwater discharges, and in the future will be required to meet discharge limits established by the USEPA. To this end, the City is planning to expand and improve its entire stormwater treatment and conveyance system in order to meet the anticipated treatment requirements that will be imposed. Pursuant to the Resolution,in 1996 the stormwater utility,including all of its assets, liabilities and revenues, became a part of the combined water,wastewater and stormwater System. Description of Rate Structure The methods used in developing the City's water, sewer and stormwater utility rates adhere to generally accepted methodologies,policies and procedures and result in a corresponding rate structure that generates sufficient revenues to maintain a self-supporting utility. The rates do not unduly discriminate toward any class of customer. Revenue requirements are often unique to a given utility. In all cases, conformance to bond covenants and regulatory constraints provides one measure of revenue sufficiency. Also,it is the City's goal with respect to the System to avoid operating losses, as measured by cash flow. Excluded from the cash flow test are major capital projects to be funded through debt. Minor capital outlays and renewal and replacement are generally included, reflecting the ongoing nature of some capital outlays. The water, wastewater and stormwater activities, currently commingled within the same fund for budgeting purposes,were treated as three distinct and separate funds for analysis. In so doing, a proper matching of revenues and expenditures was developed for all three activities. The rate structure incorporates an inverted rate mechanism in the volumetric charge. As water use increases, the cost per thousand gallons increases, the intent of which is to encourage conservation. Due to water supply problems in the State of Florida, many municipal utilities are required by permit condition of the water management districts to adopt conservation techniques such as the one enacted by the City. The City Commission has exclusive authority to establish and revise the rates. The water and sewer rates indicated below were enacted pursuant to City Ordinance No.90-35 enacted by the City Commission on September 18, 1990 (the "Original Rate Ordinance"). The Original Rate Ordinance provided for annual rate increases, effective each October 1 through October 1, 1994. The Original Rate Ordinance was amended, however,pursuant to Ordinance No. 94-30, enacted by the City Commission on September 20, 1994,which amendatory Ordinance provided for the deletion from the Original Rate Ordinance of the rate increase scheduled to become effective October 1, 1994. As a result,the rates that became effective on October 1, 1993 are currently in effect and will remain in effect until further action of the City Commission. The City cannot predict what future action, if any,will be taken by the Commission with respect to the current rates or the current rate structure. Although no adjustments to rates are projected at this time, based upon the 2000 Stormwater, Water and Wastewater Rate Study,the following conclusions were recommended: • an adjustment to water and wastewater system rates was not recommended; • the City will continue to monitor the financial performance of the water system to determine the timing and level of future adjustments that may be necessary; • the financial performance of the wastewater system was projected to be very strong over the course of the next five years and no adjustment in the user charge was recommended. 25 Stormwater Fees In August,2000,the City increased its stormwater rate from$1.00 per Equivalent Residential Unit (ERU) to$6.00 per ERU in order to adequately fund the increased cost for stormwater system maintenance, and also fund anticipated capital improvements. Rates and Customer Base The City believes that the rates it charges for the services provided by the System are reasonable and comparable to rates charges by similarly situated municipal utilities located in South Florida. In addition,the City believes that it has a diverse customer base, with no material reliance upon any customer, or small group of customers, for a material amount of the System revenues. Historical Revenues Shown below is a summary of the historical "Revenues," "Current Expenses" and "Net Revenues" of the System, calculated in compliance with the requirements of the Resolution described under "Security for the 2002 Bonds-Rate Covenant" above,for the following fiscal years ended September 30: REVENUES(1) 1998 1999 2000 Water Sales $ 9,661,097 $10,257,505 $10,524,908 Service Charges 156,126 90,161 101,841 Water Connection Charges 165,664 119,622 189,875 Sewer Service 10,304,375 10,322,846 10,539,282 Stormwater Utility Fees 570,458 581,061 1,016,724 Interest Income 4,113,052 2,911,403 4,277,315 Miscellaneous Income° 122,167 182,701 1,488,674 TOTAL REVENUES $25,092,939 $24,465,299 $28,138,619 CURRENT EXPENSES $10,078,011 $10,967,579 $11,843,387 NET REVENUES $15,014,928 $13,497,720 $16,295,232 PROJECTED MAXIMUM ANNUAL DEBT SERVICE OF THE 1996 BONDS AND 2002 BONDS PROFORMA COVERAGE Source: City of Boynton Beach Department of Finance (1) Does not include Impact Fees. See "Impact Fees" below. (2) Miscellaneous Income includes: Interest deposits, Bell South lease, utility tax administrative fee and discounts. Impact Fees Impact Fees are one time payments made by new customers at the time a unit is connected to the System. The Impact Fee rates are designed to ensure that each new customer connecting to the System will pay a fair share 26 of the costs incurred by the City in constructing the facilities needed to serve such new customers. The amount of the Impact Fee per equivalent connection or dwelling unit paid by the new customer will be the one that is in effect at the time of connection to the System. Judicial rulings in the State of Florida have determined that Impact Fees may be imposed and expended only to cover the expansion of a utility system that is necessary to service new customers. As a result, the City is of the opinion that Impact Fees can be used to pay debt service only to the extent that such payments reflect costs incurred to expand the System to service new customers. The City has determined that approximately 56%of the proceeds of the 1992 Bonds were attributable to the expansion of the System and that, therefore, 56% of the debt service on the portion of the 2002 Bonds attributable to refunding the Refunded Bonds may be paid from Impact Fees,meaning that %of total debt service on the 2002 Bonds may be paid from Impact Fees. For the Fiscal Year ended September 30,2000,the City collected $189,875.00 in Impact Fees. System Customers As of March 31, 2001, the System provided water service to 30,422 accounts, sewer service to 28,839 accounts, and stormwater service to 20,805 accounts. Consolidation of Separate Systems into System Pursuant to the Resolution,the City may establish Separate Systems, as defined in the Resolution,which may be consolidated into the System upon demonstration of compliance with paragraph (d) of Section 209 of the Resolution.For a description of the conditions that must be satisfied prior to the consolidation of a Separate System into the System, see Appendix C "Summary of Certain Provisions of the Resolution" hereto. THE CITY The City is a municipal corporation with an estimated population of approximately 53,300,organized and existing under the laws of the State of Florida. The City is located in Palm Beach County approximately 13 miles south of West Palm Beach and 30 miles north of Fort Lauderdale and covers approximately 15 square miles. The City is governed by a Commission-Manager form of government and employs both a full-time city manager and a full-time director of finance, who has responsibility for all internal auditing and financial record keeping operations of the City. The major segments of the economy of the area are retail and wholesale trade, real estate, finance,tourism, agriculture,professional services and light manufacturing. Several light industries are located in the City of Boynton Beach, with manufactured products ranging from paper processing machinery to electrical switches. For additional information regarding the City, see "Appendix A—General Information Concerning the City of Boynton Beach." VERIFICATION OF MATHEMATICAL COMPUTATIONS The accuracy of(i) the mathematical computation of the adequacy of the maturing principal amount of and interest on the investments and cash, if any,to be held by the Escrow Agent to pay,when due,the principal of,premium and interest on the Refunded Bonds to the dates of their maturities or earlier redemption and(ii) the mathematical computation of yields on the 2002 Bonds and the proceeds thereof will be verified by Causey, Demgen&Moore Inc.,independent certified public accountants,whose report with respect thereto will be available upon delivery of the 2002 Bonds. 27 TAX EXEMPTION The Internal Revenue Code of 1986,as amended (the "Code"), provides that the interest on state and local governmental bonds will not be included in the gross income for federal income tax purposes of the owner thereof only if certain requirements are met,some of which must be met on a continuing basis, subsequent to the issuance and delivery of the 2002 Bonds. Although the City has covenanted to comply with such requirements,. noncompliance with such requirements could cause the interest on the 2002 Bonds to be included in gross income for federal income tax purposes retroactive to the date of issue of the 2002 Bonds regardless of the date on which such noncompliance occurs or is ascertained. Those requirements include, but are not limited to,provisions which prescribe yield and other limits within which the proceeds of the 2002 Bonds and other amounts are to be invested and which require that certain investment earnings on the foregoing be rebated on a periodical basis to the Treasury Department of the United States. The ability of Bond Counsel to deliver its final approving opinion in substantially the form attached hereto. as Appendix D on the Delayed Delivery Closing Date is subject to its review and analysis as of the Delayed Delivery Closing Date of certain matters, including,among others,pertinent provisions of statutes, regulations, rulings and court decisions, including, but not necessarily limited to, Florida law and federal income tax then in effect or proposed to be in effect. Bond Counsel has advised the City and the Underwriter that, subject to its review and analysis of certain assumptions, its expects to be able to issue on the Delayed Delivery Closing Datean opinion substantially in the form attached hereto as Appendix D. In the opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., West Palm Beach, Florida, Bond Counsel, under existing law,and assuming continuing compliance with the aforementioned covenants, interest on the 2002 Bonds is excluded from gross income of the owners thereof for federal income tax purposes and is not an item of tax preference for purposes of the Federal alternative minimum tax imposed on individuals and corporations. [The 2002 Bonds maturing are being offered and sold in the initial public offering at an original issue discount ("OID"). OID is the difference between the stated redemption price at maturity (generally the face amount of the 2002 Bonds) and the "issue price" of such 2002 Bonds. The "issue price" of the 2002 Bonds is the respective initial offering prices to the public at which prices a substantial amount of the 2002 Bonds was sold. OID represents interest which is excluded from gross income for federal income tax purposes and which may result in the collateral federal tax consequences described below. OID will accrue over the term of such 2002 Bonds at a constant interest rate compounded semi-annually. The portion of OID that accrues during the time a Holder owns a 2002 Bond constitutes interest excludable from gross income for federal income tax purposes and will increase such purchaser's adjusted basis in such 2002 Bonds for purposes of determining taxable gain or loss on the sale orother disposition of such 2002 Bonds. The federal income tax consequences of the purchase, ownership and sale or other disposition of 2002 Bonds which are not purchased in the initial offering at the initial offering prices may be determined according to rules which differ from those described above. Holders of 2002 Bonds should consult their own advisors as to the precise federal income tax and state and local tax consequences of owning and disposing of 2002 Bonds.] [The 2002 Bonds maturing on are being offered and sold in the initial public offering at a premium (the"Premium Bonds"). Section 171 of the Code provides rules under which a bond premium may be amortized and a deduction allowed for the amount of the amortizable bond premium for a taxable year. Under Section 171(a)(2) of the Code, however, no deduction is allowable for the amortizable bond premium in the case of the bonds, like the Premium Bonds, the interest on which is excludable from gross income. Under Section 1016(a)(5) of the Code,the purchaser's basis in a Premium Bond will be reduced by the amount of the amortizable bond premium disallowable as a deduction under Section 171(a)(2) of the Code. Proceeds received from the sale, exchange, or other disposition including redemption of a Premium Bond in excess of the owner's adjusted basis (as 28 reduced pursuant to Section 1016(a)(5) of the Code) will be treated as a gain from the sale or exchange of such Premium Bond and not as tax-exempt interest. The basis of an original purchaser of a Premium Bond who holds such Premium Bond to maturity will have a basis equal to the principal amount of the Premium Bond and therefore will have no loss upon receipt of such principal amount.] Except as stated above,Bond Counsel expresses no opinion as to any other tax consequences of acquiring, carrying, owning or disposing of the 2002 Bonds. The law upon which Bond Counsel will base their opinion is subject to change by the Congress and the Department of the Treasury and to subsequent judicial and administrative interpretation. There can be no assurance that such law or the interpretation thereof will not be changed in a manner which would adversely affect the tax treatment of ownership of the 2002 Bonds. Prospective purchasers of the 2002 Bonds should be aware that the ownership of tax-exempt obligations may result in collateral federal income tax consequences to financial institutions,property and casualty insurance companies, individual recipients of Social Security or Railroad Retirement benefits,taxpayers who may be deemed to have incurred or continued indebtedness to purchase or carry tax-exempt obligations,foreign corporations doing business in the United States and S corporations with passive investment income which includes tax exempt income. Prospective purchasers falling within any of these categories should consult their own tax advisors as to the applicability of these consequences. In addition, in the opinion of Bond Counsel, the 2002 Bonds are exempt from all present intangible personal property taxes of the State of Florida. LITIGATION In the opinion of the City Attorney,no legal proceedings are pending or threatened which materially affect the City's ability to perform its obligations to the holders of the 2002 Bonds or materially affect the financial condition of the City. There is no litigation or controversy of any nature now pending or threatened: (i)to restrain or enjoin the issuance,sale, execution or delivery of the 2002 Bonds,or(ii) in any way questioning or attesting the validity of the 2002 Bonds,the Resolution, any proceedings of the City taken with respect to the authorization, sale or issuance of said Bonds or the pledge or application of any moneys provided for the payment of the 2002 Bonds. COVENANTS CONCERNING ONGOING DISCLOSURE The City has agreed in the Resolution, in accordance with the provisions of Rule 15c2-12 in effect from time to time and applicable to the 2002 Bonds (the "Rule"), promulgated by the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, to provide or cause to be provided,to each nationally recognized municipal securities information repository ("NRMSIR") and to the State of Florida information depository ("SID"), if any,in each case as designated and approved by the Commission and the State,respectively, in accordance with the Rule, (i) within 180 days following the end of each fiscal year of the City,commencing with the fiscal year ending September 30,2002,annual financial information and operating data concerning the System of the type included in this Official Statement, including operating revenues, debt service coverage by Net Revenues, rates and charges of the System, a summary of any capital improvement plans and information regarding permitted capacities and actual usage of capacities of the System and financial statements (audited or, if not available, unaudited) of the City and (ii) if not submitted as part of such financial information and operating data, then, when available, audited financial statements for the City prepared in accordance with 29 generally accepted accounting principles applicable to governmental entities from time to time. A copy of such annual financial information and operating data will be provided to the Underwriter, the Insurer and the Bond Registrar. (The annual information required to be disclosed hereunder shall be referred to herein as the "Annual Report"). The City has agreed to provide or cause to be provided, in a timely manner, to (i)each NRMSIR or to the Municipal Securities Rulemaking Board ("MSRB") and (ii) the SID, if any, notice of the occurrence of any of the following events with respect to the 2002 Bonds,if such event is material: (i) principal and interest payment delinquencies on the 2002 Bonds; (ii) non-payment related defaults; (iii) unscheduled draws on debt service reserves reflecting financial difficulties; (iv) unscheduled draws on credit enhancements reflecting financial difficulties; (v) substitution of credit or liquidity providers, or their failure to perform; (vi) adverse tax opinions with respect to or events affecting the tax-exempt status of the 2002 Bonds; (vii) modifications to rights of the holders of the 2002 Bonds; (viii) any call of the 2002 Bonds for redemption (other than scheduled mandatory redemption) or any acceleration of the maturity thereof; (ix) defeasance in whole or in part of the 2002 Bonds; (x) release, substitution, or sale of property securing repayment of the 2002 Bonds; (xi) rating changes; and (xii) any changes in the City's fiscal year. The City has agreed to provide or cause to be provided, in a timely manner, to (i) each NRMSIR or the MSRB and(ii)the SID,if any,notice of a failure by the City to provide the Annual Report described in subsection (a) above on or prior to the date set forth therein. The City has reserved the right to terminate its obligation to provide Annual Report and notices of material events, as set forth above,if and when the City no longer remains an obligated person with respect to the 2002 Bonds within the meaning of the Rule. If the City believes such condition exists,the City will provide notice of such termination to the NRMSIR's, the MSRB and the SID. The City has agreed that its undertaking pursuant to the Rule set forth is intended to be for the benefit of the holders and beneficial owners of the 2002 Bonds and shall be enforceable by any holder or beneficial owner; provided that the right to enforce the provisions of such undertaking shall be limited to a right to obtain specific enforcement of the City's obligations hereunder and any failure by the City to comply with the provisions of such undertaking shall not be an event of default with respect to the 2002 Bonds under the Resolution. 30 Any voluntary inclusion by the City of information in its Annual Report of supplemental information that is not required under the Rule shall not expand the obligations of the City thereunder and the City shall have no obligation to update such supplemental information or include it in any subsequent report. The covenants contained in the Resolution are solely for the benefit of the holders and beneficial owners of the 2002 Bonds and shall not create any rights in any other parties. Notwithstanding any other provision of the Resolution, the City may amend the provisions of the Resolution described above and any provision thereof may be waived, provided that the following conditions are satisfied: (1) If the amendment or waiver pertains to the Annual Report or other information to be provided by the City, the amendment or waiver is made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identify, nature or status of the City or the type of business conducted by the City;and (2) The undertaking, as amended or taking into account such waiver would,in the opinion of nationally recognized bond counsel, have complied with the requirements of the Rule at the time of the original issuance of the 2002 Bonds,after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances. (3) The amendment or waiver does not materially impair the interests of holders of and beneficial owners as determined either by parties unaffiliated with the City or an obligated person,or by an approving vote of the holders of at least a majority in aggregate principal amount of the then outstanding 2002 Bonds pursuant to the terms of the Resolution. In the event of any amendment or waiver of a provision of the Resolution described in this section,the City shall describe such amendment or waiver in the next Annual Report, and shall include, as applicable, a narrative explanation of the reason for the amendment or waiver and its impact on the type (or, in the case of a change of accounting principles, on the presentation) of annual financial information or operating data being presented by the City.In addition,if the amendment or waiver relates to the accounting principles to be followed in preparing financial statements (i) notice of such change shall be given in the manner provided in the Resolution and(ii) the Annual Report for the year in which the change is made shall present a comparison (in narrative form and also, if feasible, in quantitative form) between the financial statements as prepared on the basis of the new accounting principles and those prepared on the basis of the former accounting principles. The City has complied with all of its continuing disclosure undertakings in connection with its previous bond issues. UNDERWRITING The Underwriter, Banc of America Securities LLC,has agreed to purchase the 2002 Bonds from the City at an aggregate purchase price of$ (representing the$ aggregate principal amount of the 2002 Bonds less an underwriter's discount of$ and an original issue discount of $ plus accrued interest in the amount of$ ). The Underwriter will be obligated to purchase all the 2002 Bonds if any are purchased. The offering prices shown on the cover of this Official Statement may be changed from time to time by the Underwriter. 31 RATINGS Although no ratings have been applied for or assigned to the 2002 Bonds,bond issues insured by the Insurer would be expected, as of the date hereof, based upon such insurance, to be rated "AAA" and "AAA", respectively, by Fitch, Inc. and Standard &Poor's Ratings Services, a Division of the McGraw Hill Companies, respectively. The City has received a commitment from the Insurer for the delivery of the Bond Insurance Policy on the Delayed Delivery Closing Date. The 2002 Bonds are expected to be rated at the time of delivery based upon such insurance. No assurance can be given, however, that the ratings assigned to the 2002 Bonds will not be different from those currently expected for bond issues insured by the Insurer. The assignment of a particular rating to the 2002 Bonds is not a condition of the obligation of the Underwriter to accept delivery of or to pay for the 2002 Bonds. In the event of a failure of the Insurer to issue its Bond Insurance Policy on the Delayed Delivery Closing Date,the City with the concurrence of the Underwriter could substitute for the Insurer's Bond Insurance Policy another municipal bond insurance policy insuring the 2002 Bonds issued by another insurer with assigned municipal bond ratings in the three principal rating agencies' highest rating categories. LEGALITY Certain legal matters in connection with the issuance of the 2002 Bonds are subject to the approval of Moyle,Flanigan, Katz,Raymond &Sheehan, P.A.,West Palm Beach, Florida, Bond Counsel,whose unqualified approving opinion will be available at the time of delivery of the 2002 Bonds. The proposed form of such opinion of Bond Counsel is attached hereto as Appendix D. Certain legal matters will be passed upon for the City by Josias, Goren, Cherof, Doody&Ezrol, P.A., City Attorneys,Fort Lauderdale, Florida. EXCERPTS FROM COMPREHENSIVE ANNUAL REPORT The audited general purpose financial statements of the City and the combining statements for the City's enterprise fund for the fiscal year ended September 30, 2000 are included in Appendix B attached hereto. Such excerpts from the City's Comprehensive Annual Financial Report, including the auditor's report, have been included in this Official Statement as public documents and consent from the auditors was not requested. MISCELLANEOUS The information in the foregoing pages is presented for the guidance of prospective purchasers of the 2002 Bonds described herein. The information has been compiled from official and other sources and, while not guaranteed as to accuracy by the City,.is believed to be correct. So far as any statements made in this Official Statement and the appendices attached hereto involve matters of opinion or of estimates, whether or not expressly stated, they are set forth as such and not as representations of fact, and no representation is made that any of the estimates will be realized. 32 AUTHORIZATION OF OFFICIAL STATEMENT This Official Statement has been authorized and prepared by the City of Boynton Beach,Florida. CITY OF BOYNTON BEACH, FLORIDA /s/ Mayor /s/ City Clerk G:\02345\31\official statement(2).wpd 33 APPENDIX C SUMMARY OF CERTAIN PROVISIONS OF THE RESOLUTION Certain provisions of the Resolution are summarized below. This summary does not proport to be complete and is subject in all respects to the provisions of, and is qualified in its entirety by reference to, the Resolution, copies of which are available from the City. Definitions. "Accountant" shall mean the independent certified public accountant or firm of independent certified public accountants employed by the City to perform and carry out the duties imposed on the Accountant by the Resolution. "Accreted Value" shall mean, as of any date of computation with respect to any Capital Appreciation Bond, an amount equal to the principal amount of such Bond (the principal amount on the date of original issuance), plus the interest accrued on such Bond from the date of original issuance to the Interest Payment Date next preceding the date of computation or the date of computation if an Interest Payment Date, compounded periodically at the times provided for in the Series Resolution authorizing the issuance of such Bonds, and if such date of computation is not an Interest Payment Date, a portion of the difference between the Accreted Value as of the immediately preceding Interest Payment Date (or the date of original issuance if such date of computation is prior to the first Interest Payment Date) and the Accreted Value as of the immediately succeeding Interest Payment Date, calculated based on the assumption that Accreted Value accrues during any semi-annual period in equal daily amounts on the basis of a year of twelve 30-day months. "Alternative Parity Debt" means indebtedness of the City (including the assumption or guarantee of the debts of others) or borrowed money (including refunding or refinancing of then existing indebtedness and leases capitalized in accordance with generally accepted accounting principles) incurred in accordance with Section 212 of the Resolution. "Amortization Requirements" shall mean the amounts required to be deposited in the Redemption Subaccount for any Series of Bonds for the purpose of redeeming prior to their maturity and paying at their maturity the Term Bonds of any Series issued pursuant to the Resolution, the specific amounts and times of such deposits to be determined by the Commission in a Series Resolution relating to such Series of Bonds. "Annual Budget" shall mean the Annual Budget adopted pursuant to Section 503 of the Resolution. "Appreciated Value" shall mean, (i) as of any date of computation with respect to any Capital Appreciation and Income Bond up to the Interest Commencement Date set forth in the Series Resolution for such Bond or the resolution awarding the same, an amount equal to the principal amount of such Bond (on the date of original issuance) plus the interest accrued on such Bond from the original issue date of such Bond to the Interest Payment Date next preceding the date of computation, or the date of computation if an Interest Payment Date, such increased value to accrue at the stated rate per annum of such Bond compounded on the Interest Payment Dates, plus, if such date of computation shall not be an Interest Payment Date, a portion of the difference between the Appreciated Value as of the immediately preceding Interest Payment Date (or the original issue date if the date of computation is prior to the first Interest Payment Date) and the Appreciated Value as of the immediately succeeding Interest Payment Date, calculated based on the assumption that Appreciated Value accrues during any semi-annual period in equal daily amounts on the basis of a year of twelve 30-day months and (ii) as of any date of computation on and after the Interest Commencement Date, the Appreciated Value on the Interest Commencement Date. "Arbitrage Rebate Fund" shall mean a fund or funds established by the City with a Depositary for the deposit of moneys necessary for payments required to be made to the United States of America in connection with any Series of Bonds subject to arbitrage rebate requirements under the Code. The moneys in such fund or funds shall be applied only for the purposes for which such fund or funds are established and shall not be subject to a lien or charge in favor of Holders of any Bonds and shall not be pledged as security for the payment of any Bonds. "Assessments" shall mean the proceeds to be derived from the City from any non-ad valorem assessments which may be levied from time to time by the City, against certain classifications of lands and properties to be specially benefitted by the construction of any Improvements, including interest on such assessments and any penalties thereon and moneys received upon the foreclosure of the liens of any such assessments and, by reason of such assessments, upon the sale of tax certificates, but only to the extent and in such manner as such assessments are pledged to the payment of the principal of, premium, if any, and interest on the Bonds issued hereunder by resolution or ordinance duly adopted or enacted by the Commission. "Balloon Indebtedness" shall mean indebtedness 25% or more of the principal payments of which are due in a Fiscal Year and which indebtedness is not required to be repaid over its term on a substantially level debt service basis on a Fiscal Year basis, and indebtedness 25% or more of the principal of which may, at the option of the holder or registered owner thereof, be redeemed in a Fiscal Year. "Bond Counsel" shall mean a lawyer or law firm selected by the City of favorable national reputation for skill in matters relating to tax-exempt municipal bonds. "2002 Bond Insurance Policy" shall mean the municipal bond new issue insurance policy issued by the 2002 Bond Insurer that guarantees payment of principal of and interest on the Series 2002 Bonds. "2002 Bond Insurer" shall mean Financial Guaranty Insurance Company, a New York stock insurance company, or any successor thereto. 2 "Bonds" shall mean collectively the Bonds issued under the provisions of Article II of the Resolution. "Bondholders" or "Holders" shall mean the registered owners of the Bonds. "Bond Service Subaccount" shall mean the Bond Service Subaccount, a special subaccount within the Sinking Fund Account created and designated by Section 505 of the Resolution. "Business Day" shall mean any day other than a Saturday or Sunday, a day on which the Bond Registrar is lawfully and temporarily closed or a day on which the New York Stock Exchange is lawfully and temporarily closed. "Capital Appreciation Bond" shall mean any Bond or Bonds of a Series as to which interest is compounded periodically on each of the applicable periodic dates designated for compounding in.the Series Resolution for such Bonds and payable in an amount equal to the then current Accreted Value to the date of maturity or redemption prior to maturity as designated in such Series Resolution. "Capital Appreciation and Income Bonds" shall mean any Bond or Bonds of a Series as to which accruing interest is not payable prior to the Interest Commencement Date specified in the Series Resolution for such Bonds and the Appreciated Value for such Bonds is compounded periodically on certain dates designated in such Series Resolution prior to the Interest Commencement Date for such Capital Appreciation and Income Bonds. "Capital Expenditures" shall mean all expenditures made for extensions, additions, improvements, renewals and replacements (other than ordinary maintenance and repairs)acquired, constructed or installed for the purpose of preserving, extending, increasing or improving the service rendered by the Utility System or for reducing the cost of operation. "Commission" shall mean the City Council of the City or the commission, board or body in which the general legislative power of the City shall be vested. "Completion Date" shall mean the date of completion of the acquisition or construction of the Project or of any Improvements, as the case may be, as such date shall be established pursuant to the requirements of the Resolution. "Construction Fund" shall mean the Utility System Construction Fund, a special fund created and designated by Section 401 of the Resolution. "Consulting Engineers" shall mean one or more licensed professional engineers or firms of professional engineers, of nationally recognized standing, at the time employed by the City to perform and carry out the duties imposed on the Consulting Engineers by the Resolution. 3 "Convertible Bonds" shall mean Bonds which are convertible, at the option of the City, into a form of Bonds which are permitted by the Resolution other than the form of such Bonds at the time they were issued. "Cost" as applied to the Project or any Improvements, shall embrace the costs of acquisition and construction and all obligations and expenses and all items of cost which are set forth in Section 403 of the Resolution. "Credit Facility" shall mean the Bond Insurance Policy and an irrevocable letter of credit, policy of municipal bond insurance, guaranty, purchase agreement, credit agreement, surety bond or similar facility in which the entity providing such facility irrevocably agrees to provide funds to make payment of the principal of and interest on Bonds provided that such entity is at the time of providing such facility of sufficient credit quality to entitle debt backed by its Credit Facility to be rated in one of the two highest long-term rating categories (without regard to any gradations within such categories) by both Standard &Poor's Corporation and Moody's Investors Service, Inc. "Current Interest Bonds" shall mean Bonds the interest on which is payable to the Bondholder on the Interest Payment Dates with respect thereto and not only at the maturity thereof. "Depositary" shall mean any financial institution duly authorized by law to perform the functions required of the Depositary, and designated by the Finance Director as a depositary of moneys under the provisions of the Resolution. "Enterprise Fund" shall mean the Utility System Enterprise Fund, a special fund created and designated by Section 504 of the Resolution. "Expansion Project" means the Project or any portion thereof or any Improvements or any portion thereof to be devoted to the oversizing, separating, expanding or constructing of new additions to the Utility System and which are designed to expand its capacity. "Finance Director" shall mean the Director of Finance of the City or the officer succeeding to his or her principal functions. "Financial Statements" shall mean the audited fmancial statements of the City relating to the Utility System, prepared in accordance with generally accepted accounting principles applicable to water, sewer and stormwater systems owned by municipalities, which in the case of the Utility System may be those provisions of the City's Comprehensive Annual Financial Report relating to the Utility System. "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. 4 "General Reserve Account" shall mean the Utility System General Reserve Account, a special account within the Enterprise Fund created and designated by Section 505 of the Resolution. "Government Obligations" shall mean obligations described in clause (i) of the definition of "Investment Obligations" in the Resolution. "Impact Fee Account" shall mean the Impact Fee Account, a special subaccount within the Enterprise Fund created and designated pursuant to Section 515 of the Resolution. "Impact Fees" shall mean all nonrefundable (except at the option of the City) capital recovery charges, pollution control fees, capacity charges and other similar fees and charges separately imposed by the City as a nonuser capacity charge for the proportionate share of the cost of expanding, oversizing separating or constructing Improvements to the Utility System and any investment earnings from the investment of funds on deposit in the Impact Fee Account, but excluding those charges imposed by the City on persons connecting to the Utility System for the cost of physically connecting thereto, including but not limited to the costs of excavation, plumbing, installation of meters and landscaping. "Improvements" shall mean (i) such improvements, renewals and replacements of the Utility System or any part thereof and such extensions and additions thereto as may be necessary or desirable, in the judgment of the City, to keep the same in proper condition for the safe, efficient and economic operation thereof and to integrate into the Utility System any unit or part thereof, which Improvements may include, without limitation, land, structures and facilities used or useful for the collection, transmission, treatment; disposal and reclamation of sewage and stormwater runoff and for the supply, storage, treatment, transmission and distribution of water all to the extent the same constitute part of the Utility System and (ii) such other expenditures as may be necessary or desirable in the judgment of the City but not related to Utility System, provided, that as used in Section 404 and 702 of the Resolution, the term "Improvements" shall not include the items described in this clause II. "Interest Commencement Date" shall mean, with respect to any Capital Appreciation and Income Bonds, the date specified in the Series Resolution for such Bonds or the resolution awarding the same (which date must be prior to the maturity date of such Bonds) after which interest accruing on such Bonds shall be payable semiannually, with the first such payment date being the applicable Interest Payment Date immediately succeeding such Interest Commencement Date. "Interest Rate Swap" shall mean an agreement in writing by and between the City and another entity (the "Counterparty") pursuant to which (i) the City agrees to pay to the Counterparty an amount, either at one time or periodically, which amount may, but is not required to, be determined by reference to an assumed interest rate payable on an amount (the "notional amount") specified in such agreement in the period specified in such agreement and (ii) the Counterparty agrees to pay to the City an amount, either at one time or periodically, which amount 5 may, but is not required to, be determined by reference to an assumed interest rate payable on the notional amount in the period specified in such agreement. "Interim Bonds or Notes" shall mean bonds or notes issued by the City with a final maturity not longer than 60 months (or longer period if then so permitted by the provisions of State law relating to the issuance of bond anticipation notes by municipalities) in anticipation of the refinancing thereof from all or a portion of the proceeds of a Series of Bonds issued under the Resolution or from all or a portion of the proceeds of Utility Debt. "Investment Obligations" shall mean any of the following, to the extent that the same is legal for the investment of public funds under State law: (i) direct obligations of the United States of America and securities fully and unconditionally guaranteed as to the timely payment of principal and interest by the United States of America, provided, that the full faith and credit of the United States of America must be pledged to any such direct obligation or guarantee; (ii) obligations issued or guaranteed by any instrumentality or agency of the United States of America, whether now existing or hereafter organized; (iii) evidences of ownership of proportionate interests in future interest or principal payments on specified obligations described in clause .(i) of this definition held by a financial institution with trust powers as custodian, under which the owner of the investment is the real party in interest and has the right to proceed directly and individually against the obligor on the underlying obligations described in clause (i) of this definition, and which underlying obligations are not available to satisfy any claim of the custodian or any person claiming through the custodian or to whom the custodian may be obligated; (iv) bankers acceptances, certificates of deposit or time deposits of any bank, trust company or savings and loan association (including any investment in pools of such bankers acceptances, certificates of deposit or time deposits) which to the extent that such obligations are not insured by the Federal Deposit Insurance Corporation, are collateralized at all times in amounts and by obligations as shall be permitted by State law; (v) municipal obligations,the timely payment of the principal of, interest on and redemption premium, if any, on which are irrevocably secured by obligations described in clause (i) of this definition and which obligations have been deposited in an escrow account which is irrevocably pledged to the payment of the principal of, interest on and redemption premium, if any, of such municipal obligations which are rated in the highest rating cateogry (without regard to any gradation within such category) by both Moody's Investors Service, Inc. and Standard &Poor's Corporation; (vi) obligations issued by any state of the United States, which are rated in one of the two highest rating categories (without regard to any gradation within such categories) by both Moody's Investors Service, Inc. and Standard & Poor's Corporation; 6 (vii) obligations issued by any political subdivision of any state of the United States, which are rated in the highest rating category (without regard to any gradation within such category) by both Moody's Investors Service, Inc. and Standard & Poor's Corporation; (viii) any repurchase, reverse repurchase or investment agreement with any bank or trust company organized under the laws of any state of the United States or any national banking association, insurance company, or governmental bond dealer reporting to, trading with, and recognized as a primary dealer by the Federal Reserve Bank of New York and a member of the Security Investors Protection Corporation, which agreement is fully secured by any one or more of the securities described in (i), (ii) or (iii) above provided that the City has a perfected first security interest in the collateral and that such collateral is held free and clear of claims by third parties; (ix) mortgage-backed securities and senior debt obligations issued by any of the following agencies or such other like governmental or government-sponsored agencies which may be hereinafter created (so long as such agencies continue to be governmentally owned or sponsored): (a) the Federal National Mortgage Association; (b) the Government National Mortgage Association; and (c) the Resolution Funding Corporation; and (x) units of participation in the Local Government Surplus Funds Trust Fund administered by the State Board of Administration pursuant to Part IV, Chapter 218, Florida Statutes. "Liquidity Facility" shall mean a letter of credit, policy of municipal bond insurance, guaranty purchase agreement, line of credit or similar facility in which the entity providing such facility agrees to provide funds to pay the purchase price of Optional Tender Bonds upon their tender by the Holders of Optional Tender Bonds provided that such entity is at the time of providing such facility of sufficient credit quality to entitle debt backed by its Liquidity Facility to be rated in the highest short-term rating category (without regard to any gradations within such categories) in which providers of similar facilities are then rated by both Standard & Poor's Corporation and Moody's Investors Service, Inc. "Maximum Principal and Interest Requirements" shall mean the maximum amount of Principal and Interest Requirements for any Fiscal Year. "Mayor" shall mean the Mayor of the City, or in his or her absence, the Vice Mayor of the City or the officer succeeding to his or her principal functions. "Net Revenues" for any particular period shall mean the amount of the excess of the Revenues for such period over the Current Expenses payable from the Revenue Account for such period, provided that for purposes of the rate covenant and Additional Bonds test, "Net Revenues" shall not include Revenues deposited in the Rate Stabilization Account. 7 "Optional Tender Bonds" shall mean the portion of a Series of Bonds a feature of which is an option on the part of the Holders of such Bonds to tender such Bonds to the City, a trustee or other fiduciary for such Holders for payment prior to stated maturity. "Outstanding" shall mean, when used with respect to the Bonds, all Bonds theretofore delivered except: (a) Bonds paid, redeemed or delivered to or acquired by the City and cancelled; and (b) Bonds deemed to have been paid in accordance with the redemption or defeasance provisions of the Resolution. "Pledged Revenues" shall mean(i) the Net Revenues, (ii) to the extent provided in Section 515 of the Resolution, the Impact Fees and (iii) to the extent provided in the Resolution, other amounts in the funds and accounts created by the Resolution. "Principal" or "principal" shall mean, (i) with respect to Current Interest Bonds, the stated principal amount thereof, (ii) with respect to Capital Appreciation Bonds, the Accreted Value thereof, as of any particular date of determination, and (iii) with respect to Capital Appreciation and Income Bonds, the AppreciatedValue thereof, as of any particular date of determination: "Principal and Interest Requirements" shall mean for a Fiscal Year the sum of: (i) the amount of interest on all Bonds then Outstanding which is payable on each Interest Payment Date in such Fiscal Year, and (ii) the amount of Principal of all Serial Bonds then Outstanding which is payable upon the maturity of Serial Bonds in such Fiscal Year, and (iii) the amount of Amortization Requirements for the Term Bonds of such Series for such Fiscal Year. In determining the amount of the Principal and Interest Requirements for any Fiscal Year, the following rules shall apply: (a) with respect to Variable Rate Bonds, the interest rate shall be assumed to be (i) with respect to the rate covenant contained in the Resolution, the higher of the rate of interest on such Variable Rate Bonds on the date of calculation or the average rate of interest for all Variable Rate Bonds for the prior twelve months (or portion thereof); and (ii) with respect to the Additional Bonds test, and for purposes of calculating the Reserve Account Requirement for such Variable Rate Bonds, the highest of the current rate as of the date of calculation, or, if no such debt is outstanding, by outstanding Variable Rate debt ("Comparable Variable Rate Debt") for which the interest rate is computed by reference to an index comparable to that to be utilized in determining the interest rate for 8 the debt proposed to be issued, the average rate of interest for all Variable Rate Bonds or Comparable Variable Rate Debt for the prior twelve months (or portion thereof), or if no such debt is outstanding, 110% of the average of The Bond Buyer 25-Bond Revenue Index over the previous twelve months;" (b) with respect to Interim Bonds or Notes, interest only and not the principal shall be included in Principal and Interest Requirements if the Series of Bonds or the Utility Debt all or a portion of the proceeds of which are expected to be used to refinance such Interim Bonds or Notes have been duly authorized by the City; provided, however, none of the interest or principal on Interim Bonds or Notes shall be included in Principal and Interest Requirements if the Commission shall determine in the resolution authorizing the issuance of such Interim Bonds or Notes that such Interim Bonds or Notes shall be Subordinated Indebtedness; (c) with respect to Optional Tender Bonds, Principal and Interest Requirements shall not include the principal amount of such Optional Tender Bonds payable upon exercise by the Holders thereof of the option to tender such Bonds for purchase to the extent and for so long as a Credit Facility shall be in full force and effect with respect to. such Optional Tender Bonds but shall include the regularly scheduled principal payments on such Optional Tender Bonds, either upon payment at maturity or redemption in satisfaction of the Amortization Requirements for such Optional Tender Bonds; provided, however, that during any period of time after the issuer of a Liquidity Facility or the Credit Facility has advanced funds thereunder and before such amount is repaid, Principal and Interest Requirements shall include the principal amount so advanced and interest thereon, in accordance with the principal repayment schedule and interest rate or rates specified in the Liquidity Facility or the Credit Facility; (d) with respect to Capital Appreciation Bonds, the principal and interest portions of the Accreted Value becoming due at maturity or by virtue of an Amortization Requirement shall be included in the calculations of accrued and unpaid interest and principal requirements; (e) with respect to Capital Appreciation and Income Bonds, the principal and interest portions of the Appreciated Value becoming due at maturity or by virtueof an Amortization Requirement shall be included in the calculations of accrued and unpaid interest and principal requirements; (f) if interest on a Series of Bonds is payable from the proceeds of such Bonds or from other amounts set aside irrevocably for such purpose at the time such Bonds are issued, interest on such Series of Bonds shall be included in Principal and Interest Requirements only in proportion to the amount of interest payable in the then current Fiscal Year from amounts other than amounts so funded to pay such interest; (g) Principal and Interest Requirements shall not include the principal of, redemption premium, if any, and interest on Subordinated Indebtedness; 9 (h) Principal and Interest Requirements shall not include the principal of, redemption premium, if any, and interest on bonds of the City issued for the purpose of financing the acquisition or construction of Separate Systems; and (i) With respect to Balloon Indebtedness, the Principal and Interest Requirements shall be calculated as of any calculation date as including the amount of principal and interest which will be payable in a given period if such Balloon Indebtedness were amortized (i) from the date of such calculation over a period equal to 20 years, if such Balloon Indebtedness matures 20 years or more from the date of such calculation, or (ii) if the period from the date of such calculation to the final maturity of such Balloon Indebtedness is less than 20 years, then the actual number of years to maturity shall be used, on a level annual debt service basis calculated on a Fiscal Year basis, at an interest rate, if such Balloon Indebtedness bears interest at a fixed interest rate for its entire term, equal to the actual interest rate on such Balloon Indebtedness, and if such Balloon Indebtedness does not bear interest at a fixed rate for its entire term, bearing interest at a rate calculated in accordance with the methodology established for Variable Rate Bonds in (a) above. (j) If, in connection with the issuance of a Series of Bonds, the Issuer shall enter into an Interest Rate Swap then, if, to the extent and in the manner so provided in the Series Resolution with respect to such Series of Bonds, Principal and Interest Requirements as to such Series of Bonds shall be calculated as of any calculation date or for anyy period of time as being the amount required to be paid by the City to the Bondholders on such date or during such period as "interest" on such Bonds, plus the amount required to be paid by the City on such date or during such period pursuant to the Interest Rate Swap (prior to any netting of such amount against the amount required to be paid to the City by the Counterparty) and minus the amount required to be paid to the City by the Counterparty on such date or during such period (prior to any netting of such amount against any amount required to be paid by the City to such Counterparty). "Rate Consultant" shall mean a consultant or consulting firm or corporation at the time employed by the City under the provisions of the Resolution to perform and carry out the duties imposed on the Rate Consultant by the Resolution. "Rate Stabilization Account" shall mean the Utility System Revenue Bonds Rate Stabilization Account, a special account within the Enterprise Fund created by the Resolution. "Redemption Subaccount" shall mean the Redemption Subaccount, a special subaccount within the Sinking Fund Account created by the Resolution. "Refunding Bonds" shall mean the Bonds issued at any time under the provisions of Section 210 of the Resolution. "Regular Record Date" shall mean as to the Series 2002 Bonds the 15th day (whether or not a Business Day) of the month preceding any Interest Payment Date. 10 "Renewal, Replacement and Improvement Account" shall mean the Utility System Renewal, Replacement and Improvement Account, a special account within the Enterprise Fund created by the Resolution. "Renewal, Replacement and Improvement Account Requirement" shall mean an amount equal to six percent (6.00%) of the Revenues for the preceding Fiscal Year or such greater or lesser amount as may be annually recommended by the Consulting Engineer. "Reserve Account" shall mean•the Utility System Revenue Bonds Reserve Account, a special account within the Enterprise Fund created and designated by the Resolution,including any subaccounts created therein. - "Reserve Account Deposit Requirement" means the amount, if any, determined in each Series Resolution, required to be deposited monthly to the credit of the Reserve Account on account of such Series; provided, however, (i) the Reserve Account Deposit Requirement for any Series shall not be less than one-sixtieth (1/60th) of the Reserve Account Requirement for such Series in each month until the amount on deposit in the Reserve Account shall be equal to the Reserve Account Requirement for such Series; and (ii) in the event any deficiency is created in the Reserve Account for any Series by a withdrawal or otherwise, the Reserve Account Deposit Requirement for any Series shall be increased, beginning in the month following the month in which such deficiency was created, by an amount at least equal to one twenty-fourth (1/24th) of the amount of such deficiency or, in the case of a deficiency created by a withdrawal under a Reserve Account Insurance Policy or a Reserve Account Letter of Credit, the deficiency may be cured either by an increase in the Reserve Account Deposit Requirement as stated above or by the entity providing such facility restoring the withdrawn amount to the , amount available under such facility. "Reserve Account Insurance Policy" shall mean an insurance policy, surety bond or other acceptable evidence of insurance, if any, maintained by the City in lieu of or in partial substitution for cash or securities on deposit in the Reserve Account, provided that the entity providing such facility is at the time of so providing of sufficient credit quality to entitle debt backed by its facility to be rated in one of the two highest rating categories (without regard to any gradations within such categories) by both Standard & Poor's Corporation and Moody's Investors Service, Inc. "Reserve Account Letter of Credit" shall mean an irrevocable, transferable letter of credit, if any, maintained by the City in lieu of or in partial substitution for cash or securities on deposit in the Reserve Account, provided that the entity providing such letter of credit is at the time of so providing of sufficient credit quality to entitle debt backed by its letter of credit to be rated in one of the two highest rating categories (without regard to any gradations within such categories) by both Standard & Poor's Corporation and Moody's Investors Service, Inc. 11 "Revenue Account" shall mean the Utility System Revenue Account, a special account within the Enterprise Fund created by the Resolution. "Separate System" shall mean water facilities, sewer facilities or water and sewer facilities, which are not, on the date of enactment of the Resolution, a part of the Utility System and which the Commission shall determine by resolution to make a Separate System. "Series" shall mean the Bonds delivered at any one time under the provisions of the Resolution. "Series Resolution" means the resolution of the Commission that is required by the Resolution to be adopted prior to the issuance of any Series of Bonds. "Short-Term Indebtedness" means all indebtedness incurred or assumed by the City with respect to the Utility System for any of the following: (i) Payments of principal and interest with respect to money borrowed for an original term, or renewable at the option of the City for a period from the date originally incurred, of one year or less; (ii) Payments under leases having an original term, or renewable at the option of the lessee for a period from the-date originally incurred, of one year or less; and (iii) Payments under installment purchase contracts having an original term of one year or less. "Sinking Fund Account" shall mean the Utility System Revenue Bonds Sinking Fund Account, a special account within the Enterprise Fund created by Section 505 of the Resolution. "Special Record Date" shall mean a date fixed by the Bond Registrar for the payment of Defaulted Interest pursuant to Section 202 of the Resolution. "State" shall mean the State of Florida. "State Pollution Control Indebtedness" shall mean obligations of the City to the State incurred in connection with bonds issued by the State pursuant to the authority of Article XII, Section 14 of the Constitution of the State, to the extent such obligations are incurred for the purpose of paying all or any part of the Cost of Improvements to the Utility System. "State Revolving Fund" shall mean the state revolving loan fund established by the State of Florida under the Federal Clean Water Act. "State Revolving Fund Indebtedness" shall mean a loan of moneys from the State Revolving Fund to the City for the purpose of paying all or any part of the Cost of constructing 12 or acquiring Improvements permitted to be financed with State Revolving Fund moneys under the. Federal Clean Water Act. "Subordinated Indebtedness" shall mean bonds, notes or other forms of indebtedness, the payment of the principal, premium, and interest of which are payable solely from moneys which may from time to time be on deposit in the Subordinated Indebtedness Account under the Resolution and which is designated as Subordinated Indebtedness by the Commission in the resolution authorizing the issuance of such Indebtedness. "Subordinated Indebtedness Account" shall mean the Subordinated Indebtedness Account, a special account within the Enterprise Fund created by the Resolution. "Utility Debt" shall mean Alternative Parity Debt, Short Term Indebtedness and Subordinated Indebtedness. "Utility System" shall mean, collectively, the existing water supply, treatment and distribution system and the existing sewage collection, transmission, treatment and disposal system owned and operated by the City, together with the Project, any Improvements, including.any improvements consisting of a stormwater runoff collection, transmission, treatment and disposal system as shall be designated by the Commission as being included in the Utility System, and any separate Systems consolidated with the Utility System pursuant to Section 710 of the Resolution.. Exchange 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 such registered owner's 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 the Resolution or the Series Resolution relating to such Bonds and bearing interest at the same rate. The City shall make provision for the exchange of Bonds at the principal corporate trust office of the Bond Registrar. Negotiability. Registration and Transfer of Bonds. The Bond Registrar shall keep books for the registration of and for the registration oftransfer of Bonds as provided in the Resolution.: The transfer of any Bond may be registered only upon the books kept by the Bond Registrar for the registration of Bonds upon surrender thereof to the Bond Registrar together with an assignment duly executed by the registered owner or such registered owner's attorney or legal representative in such form as shall be satisfactory to the Bond Registrar. Upon any such 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 the Series Resolution relating to such Bonds. In all cases in which Bonds shall be exchanged, the City shall execute and the Bond Registrar shall authenticate and deliver at the earliest practicable time Bonds in accordance with the provisions of the Resolution. The City or the Bond Registrar may make a charge for every. such exchange or transfer of Bonds sufficient to reimburse it for any tax or other governmental 13 charge required to be paid with respect to such exchange or registration of transfer, but no other charge shall be made to any owner of Bonds for the privilege of exchanging or registering the transfer of Bonds under the provisions of the Resolution. Neither the City nor the Bond Registrar shall be required to make any such exchange or registration of transfer of Bonds of a Series during the fifteen (15) days immediately preceding the date of mailing of notice of redemption of Bonds of such Series, or to transfer or exchange any Bond or any portion thereof that has been selected for redemption. Refunding Bonds. Refunding Bonds may be issued under and secured by the Resolution, from time to time for the purpose of providing funds for refunding all or any portion of the outstanding Bonds of any one or more Series by payment at maturity or redemption at a selected redemption date or dates or combination of such payment at maturity and redemption, including the payment of any redemption premium thereon and any interest which will accrue on such Bonds to such maturity dates or selected redemption date or dates or combination of maturity and redemption dates and any expensesincurred or to be incurred in connection with such refunding. Such Refunding Bonds shall be on a parity as to the pledge of Pledged Revenues with and shall be entitled to the same benefits and security under the Resolution as all other Bonds issued under the Resolution. Before any Series of Refunding Bonds shall be issued there shall be delivered, among other things: either (i). a certificate of the Finance Director that the issuance of,the Refunding Bonds will not result in an increase in the.average annual Principal and Interest Requirements for all Bonds Outstanding, such average to be calculated by dividing the sum of all ' remaining Principal and Interest Requirements for all Bonds Outstanding by the number of years remaining to the final maturity of the last Outstanding Bond, or (ii) the written statement required by Section 209(c) of the Resolution for the issuance of Additional Bonds. State Indebtedness. To the extent permitted by the laws of the United States and of the State from time to time in effect, the Citymay incur State Revolving Fund Indebtedness:and State Pollution Control Indebtedness without limit as to amount so long as such debt constitutes Additional Bonds or Utility Debt. Other Indebtedness. To the extent permitted by the laws of the State of Florida from time to time in effect, the City may issue Bonds and may incur other forms of indebtednessrelated to the Utility System, as follows: (a) The City may incur Short-Term Indebtedness, payable on a parity as to the pledge of Net Revenues of the Utility System with the Bonds, if immediately after incurrence of such Short-Term Indebtedness the outstanding principal amount of all Short-Term Indebtedness does not exceed ten per centum(10%) of the Net Revenues of the Utility System as shown on the Annual Budget for the current Fiscal Year. (b) The City may incur Subordinated Indebtedness without limit as to amount. (c) The City may issue Convertible Bonds, secured on a parity as to the pledge of Pledged Revenues with Bonds, provided that such Convertible Bonds comply with the tests for 14 the issuance of Additional Bonds based upon the form of such Convertible Bonds at the time of their issuance. (d) The City may issue Optional Tender Bonds, payable on a parity as to the pledge of Pledged Revenues with the Bonds, provided that such Optional Tender Bonds comply with the test for the issuance of Additional Bonds or Refunding Bonds, and so long as (i) such Bonds are the subject of a remarketing agreement between the City or the trustee for such holders and an investment banking firm with experience in marketing securities on a national basis and (ii) there is in effect with respect to such Optional Tender Bonds a Credit Facility, then the provisions with respect to Optional Tender Bonds contained in the definition of Principal and Interest Requirements shall apply to such Optional Tender Bonds. In demonstrating compliance with the test for the issuance of Additional Bonds contained in the Resolution, the principal requirements for Optional Tender Bonds shall include the regularly scheduled principal payments, either upon payment at maturity or redemption in satisfaction of the Amortization Requirements for such Bonds and shall not include the payment of the purchase price of such Bonds upon their tender for purchase. (e) The City may issue Variable Rate Bonds using for the purpose of such issuance the interest rate assumption with respect to Variable Rate Bonds contained in the definition of Principal and Interest Requirements. (f) The City may issue or incur Alternative Parity Debt secured on a parity as to the pledge of the Net Revenues of the Utility System with the Bonds if, but only if: (1) The City satisfies the requirements set forth in the Resolution pertaining to the issuance of Additional Bonds as though such requirements were expressly . applicable to Alternative Parity Debt. (2) The instrument evidencing such Alternative Parity Debt shall include a cross-default provision with the Resolution to the effect that, prior to exercising any remedies upon a default by the City under such instrument, the holders of such Alternative Parity Debt or their representative shall cooperate with.the Holders of Bonds Outstanding under the Resolution or their representative so that the interests of such holders and the Holders of Bonds issued under the Resolution shall be equally and ratably protected. Mutilated, Destroyed or Lost Bonds. Incase any Bonds shall become mutilated or be destroyed or lost, the City may cause to be executed, and the Bond Registrar may deliver, a new Bond of like date, number and tenor in exchange and substitution for and upon the cancellation of such mutilated Bond or in lieu of and in substitution for such Bond destroyed or lost, upon the Holder'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 or lost, upon the Holder's filing with the Bond Registrar evidence satisfactory to the Bond Registrar that such Bond was destroyed or lost, and of his ownership thereof, and furnishing the City and the Bond Registrar with indemnity satisfactory to each of them. 15 Notice of Redemption. No notice of the optional redemption of Bonds, except with respect to Bonds that have been defeased, shall be given unless prior to the date of giving of such notice sufficient funds shall have been deposited with the Bond Registrar to pay the redemption price of the Bonds to be redeemed. Partial Redemption of Bonds. In the event that only part of the principal sum of any Bond shall be called for redemptionor prepaid, payment of the amount to be redeemed or prepaid shall be made only upon surrender of such Bond to the Bond Registrar. Upon surrender of such Bond, the Bond Registrar shall execute and deliver to the registered owner thereof at the principal office of the Bond Registrar, new duly executed Bonds, of authorized principal sums equal in aggregate principal amount to, and of the same maturity and interest rate as, the unredeemed portion of the Bond surrendered. Effect of Calling for Redemption. On the date so designated for redemption, notice having been published and filed in the manner and under the conditions provided in the Resolution, the Bonds so called for redemption shall become and be due and payable at the redemption price provided for redemption of such Bonds on such date, and, moneys for payment,of the redemption price being held in separate accounts by the Finance Director or by the Bond Registrar in trust for the Holders of the Bonds to be redeemed, interest on the Bonds so called for redemption shall cease to accrue, such Bonds shall cease to be entitled to any lien, benefit or security under the Resolution, and the Holders or registered owners of such Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof and accrued interest thereon. Construction Fund. The moneys in the Construction Fund shall be held in trust and applied to the payment of a portion of the Cost of the Project and if Additional Bonds are issued under the Resolution to the Costsof constructing or acquiring Improvements and, pending such application, shall be subject to a lien and charge in favor of the Holders of the Series of Bonds issued under the Resolution the proceeds of which were deposited to the credit of the Construction Fund and for the further security of such Holders until paid out as provided in the Resolution. To the extent there are no other funds available for such purpose held pursuant to the Resolution, monies in the Construction Fund shall be used to pay principal and interest on the Series of Bonds the proceeds of which were deposited to the credit of the Construction Fund to the extent necessary to prevent a payment default on the Bonds. For each Series of Additional Bonds issued pursuant to the Resolution for the purpose of payment of the Cost of Improvements, the City shall create one or more separate special accounts within the Construction Fund, entitled "Series Project Construction Account" to which shall be deposited the amounts provided from such Series of Additional Bonds for construction of Improvements. Disposition of Construction Fund Balance. When the construction of the Project or any Improvements for which a Series of Additional Bonds were issued shall have been completed, the balance in the special account or accounts of the Construction Fund not reserved by the City for the payment of any remaining part of the Cost of the Project or such Improvements shall be transferred by the Finance Director, in the discretion of the Commission, to the credit of the 16 Renewal, Replacement and Improvement Account, to the credit of the Sinking Fund Account for the payment of principal of the Bonds of such Series, retained in the Construction Fund and used to pay the Cost of a different Improvement or Improvements which have been approved by the Commission, or applied to redeem Bonds of such Series in a manner permittedunder the Resolution and the applicable Series Resolution. Annual Budget. The City covenants that not later than forty-five (45) days before the end of each Fiscal Year it will prepare a preliminary budget covering Revenues, Current Expenses, Capital Expenditures and all deposits to funds and accounts required by Section 505 of the Resolution for the ensuing Fiscal Year. Copies of each such preliminary budget shall be filed with the Finance Director. If for any reason the City shall not have adopted the Annual Budget before the first day of any Fiscal Year, the Annual Budget for the preceding Fiscal Year shall, until the adoption of the Annual Budget, be deemed to bein force and shall be treated as the Annual Budget. The City may at any time adopt an amended or supplemental 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. There shall be.no limitation on the nature or amount covered by any such amendment to the Annual Budget. The City further covenants that the amount expended for Current Expenses in any Fiscal Year will not exceed the reasonable and necessary amount therefor, and that it will not expend any amount for maintenance, repair and operation of the Utility System in excess of the total amount provided for Current Expenses in the Annual Budget. • Payment of Current Expenses. The Current Expenses shall be paid from the Revenue Account as the same become due and payable. Application of Moneys in Redemption Subaccount. Moneys held for the credit of the Redemption Subaccount shall be applied to the retirement of the Bonds as provided in the Resolution. Application of Moneys in Rate Stabilization Account. Moneys held for the credit of the Rate Stabilization Account shall be disbursed for transfer to the Revenue Account, at such times and in such amounts as the Finance Director shall determine, and may be used to pay Current Expenses and for the following additional purposes. If at any time the moneys held for the credit of the Bond Service Subaccount, Redemption. Subaccount and the Reserve Account shall be insufficient for the purpose of paying the interest on, the principal of and the Amortization Requirements for the Bonds as the same become due and payable, then the City shall withdraw from any moneys held for the credit of the Rate Stabilization Account and deposit to the credit of the Bond Service Subaccount or Redemption Subaccount an amount sufficient to make up any such deficiency. • 17 Application of Moneys in Subordinated Indebtedness Account. The City shall on the business day immediately preceding the date on which any payment in respect of principal of, redemption premium, if any, or interest on any Subordinated Indebtedness shall become due withdraw from the Subordinated Indebtedness Account and deposit in trust with the paying agent for such Subordinated Indebtedness the amount required to pay such principal, redemption premium or interest becoming due and payable, all as provided in the ordinance, resolution or other instrument pursuant to which such Subordinated Indebtedness has been incurred. Application of Moneys in Renewal. Replacement and Improvement Account. Except as hereinafter provided, or except in case of an emergency caused by some extraordinary occurrence, so characterized in a certificate signed by the Finance Director, and an insufficiency of moneys held for the credit of the Revenue Account to meet such emergency, moneys held for the credit of the Renewal, Replacement and Improvement Account shall be disbursed for the purpose of paying the costs of unusual or extraordinary maintenance or repairs, the cost of renewals and replacements, the cost of acquiring, installing or replacing equipment, the cost of Improvements and engineering expenses related to the foregoing and the cost of providing a local share of moneys required to entitle the City to receive Federal or State grants or to participate in Federal or State assistance programs related to the Utility System. If at any time the moneys held for the credit of the Bond Service Subaccount, Redemption Subaccount, the Reserve Account and Rate Stabilization Account shall be insufficient for the purpose of paying the interest on, the principal of and the Amortization Requirements for the Bonds as the same become due and payable, then the City shall withdraw from any moneys held for the credit of the Renewal, Replacement and Improvement Account anddeposit to the credit of the Bond Service Subaccount or Redemption Subaccount an amount sufficient to make up any such deficiency. Application of Moneys in General Reserve Account. Moneys held for the credit of the General Reserve Account may at the election of the City be applied: (a) to pay the Cost of Improvements, (b) to purchase or redeem Bonds, (c) to make up deficiencies in any of the accounts and funds created by the Resolution, (d) to pay the Cost of any item qualifying as an authorized expenditure from the Renewal, Replacement and Improvement Account, (e) to make payments required under Interest Rate Swap agreements, and (f) for any lawful use of the City as directed by the City Commission. 18 Impact Fee Account. To the extent required by law and imposed by the City, for so long as there are any Bonds Outstanding, there shall be deposited into the Impact Fee Account all Impact Fees, if any, charged and collected by the City. The moneys, if any, on deposit in the Impact Fee Account, together with investment earnings thereon, shall be used by the City, to the extent permitted by State law, in the following manner and order of priority: FIRST, for deposit into the Bond Service Subaccount and the Redemption Subaccount of the Sinking Fund Account, as needed, in order to make payments of principal of, redemption premium, if any, and interest on Bonds issued to finance or refinance the Costs of Improvements in respect of which the Impact Fees have been imposed; and SECOND, to pay the Costs of expanding, oversizing, separating or constructing Improvements in respect of which the Impact Fees have been imposed. Notwithstanding the foregoing, unless the City shall have received an opinion of the City Attorney or of Bond Counsel selected by the City to the effect that a greater amount is permitted by State law, the maximum amount deposited into the Bond Service Subaccount and the Redemption Subaccount of the Sinking Fund Account in any Fiscal Year shall not exceed the total Principal and Interest Requirements in such Fiscal Year multiplied by a fraction, the numerator. of which is the total principal amount of Bonds of all Series of which any Bond or Bonds are then Outstanding without taking into account any repayment of principal of Bonds of any such Series (the "Original Debt Amount") that have been allocated to.Expansion Projects by certificate of the Consulting Engineers at the time of issuance of such Bonds and the denominator of which is the Original Debt Amount for all Bonds of all Series of which any Bond or Bonds are then Outstanding. In the case of any Bonds issued to refund or refinance other Bonds or indebtedness of the City, the principal amount of such Bonds allocated to Expansion Projects shall be that, proportion of the total principal amount of such Bonds which is equal to the proportion of the Bonds or indebtedness refinanced by such Bonds that was allocated to Expansion Projects at the time of issuance or incurrence of such other Bonds or indebtedness. If Impact Fees are applied to the purchase for cancellation or optional redemption of Bonds in any Fiscal Year, the numerator of the fraction described above shall thereafter be reduced by the principal amount of Bonds so retired in advance. Money Held in Trust. All moneys which the City shall have withdrawn from the Sinking Fund Account or shall have received from any other source and deposited with the Bond Registrar, for the purpose of paying any of the Bonds, shall be held in trust for the respective Holders of such Bonds. But any moneys which shall be so set aside or deposited and which shall remain unclaimed by the Holders of such Bonds for the period of six (6) years after the date on which such Bonds or the interest thereon 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 to receive the same, and thereafter the Holders of such Bonds shall look only to the City or to such officer, board or body, as the case may be, for the payment and then only to the extent of the amounts so received without any interest thereon, and the Bond Registrar shall have no responsibility with respect to such moneys. 19 Interest Rate Swaps: Interest. If, in connection with any Series of Bonds, the Issuer shall enter into.an Interest Rate Swap, then, to the extent provided in the Series Resolution applicable to such Series of Bonds, for any or all purposes of the Resolution, as provided in such Series Resolution, (i) the term "interest" with respect to such Bonds may be calculated by taking into account payments required to be made by or anticipated to be received by the City with respect to such Interest Rate Swap and (ii) payments required to be made by the City pursuant to such Interest Rate Swap may be treated as "interest" under the Resolution, entitled to payment from the sources pledged to the payment of the Bonds in the same manner as all other interest on the Bonds. Investment of Moneys. Moneys held for the credit of the Construction Fund, the Enterprise Fund, the Revenue Account, the Sinking Fund Account, the Bond Service Subaccount, the Redemption Subaccount, the Reserve Account, the Rate Stabilization Account, the Renewal, Replacement and Improvement Account, the General Reserve Account and the Impact Fee Account shall, as nearly as may be practicable, be continuously invested and reinvested in Investment Obligations which shall mature, or which shall be subject to redemption by the holder thereofat the option of such holder, not later than the respective dates when moneys held for the credit of said funds, accounts and subaccounts will be required for the purposes intended provided, however, that amounts on deposit in any subaccount in the Reserve Account shall be invested in Investment Obligations which maturenot later than the final maturity date of the Series of Bonds to which such subaccount relates. Investment Obligations so purchased as an investment of moneys in any such fund or account shall be deemed at all times to be part of such fund or account. The interest accruing thereon and any profit realized from such investment shall be credited to such fund or account and any loss resulting fromsuch investment shall be charged to such fund or account. Investment earnings on moneys on deposit to the credit of the following funds and accounts shall be applied as follows: (a) Investment earnings on moneys on deposit to the credit of the Bond Service Subaccount and the Redemption Subaccount may, at the option of the City, be retained in said accounts and to the extent that earnings are so retained, the City shall receive a credit against the amounts required to be deposited to said accounts pursuant to Section 505 of the Resolution or the City may withdraw such earnings and deposit them to the credit of the Revenue Account. (b) Investment earnings on money on deposit in any subaccount in the Reserve Account shall be retained therein at any time that the amounts on deposit in such subaccount are less than the Reserve Account Requirement for the Series of Bonds for which such subaccount was created, or if moneys on deposit therein are sufficient for such purpose, then such earnings shall be withdrawn and deposited to the credit of the Revenue Account. (c) Investment earnings on moneys. on deposit to the credit of the Rate Stabilization Account and the Renewal, Replacement and Improvement Account may, at the option 20 of the City, be retained in said Account or withdrawn and deposited to the credit of the Revenue Account. (d) Investment earnings on moneys on deposit to the credit of the General Reserve Account may, at the option of the City be retained in said Account or withdrawn and deposited to the credit of the Revenue Account; provided, however, any investment earnings on moneys held for the credit of the General Reserve Account for the purpose of payment of the principal of, redemption premium, if any and interest on Subordinated Indebtedness shall be applied in accordance with the documents governing such Subordinated Indebtedness. (e) Investment earnings on moneys on deposit to the credit of the Construction Fund may, at the option of the City, be retained in said Fund or, if deemed to be surplus to the requirements of the Construction Fund, withdrawn and deposited to the credit of the Revenue Account. (f) Investmentearnings on moneys on deposit to the credit of the Impact Fee Account shall be retained therein. Tax Covenants. The City covenants and agrees that so long as any Bonds remain outstanding, it shall comply with the requirements of the Code to the extent necessary to preserve, the exclusion from gross income for Federal income tax purposes of the interest on the Bonds. Construction of Project and Improvements; Operation of Utility System. The City covenants that it will construct the.Project and all Improvements for the construction or acquisition of which Bonds or other Utility Debt shall be issued, or for which moneys repayable from the proceeds of Bonds or other Utility Debtshall have been advanced to the City, in accordance with the plans theretofore approved by the Consulting Engineers and that upon the completionof the Project and such Improvements it will operate and maintain the same as a part of the Utility System. Employment of Consulting Engineers. The City covenants and agrees that so long as any Bonds are Outstanding under the Resolution, it will employ an independent engineer or engineering firm or corporation having a favorable reputation for skill and experience in the construction and operation of systems such as the Utility System. It shall be the duty of the Consulting Engineers to prepare and file with the City on or before the first day of August in each. year a report setting forth such advice and recommendations as they may deem desirable or which the City may request. Insurance. The City covenants that it will at all times carry insurance, in a responsible insurance company or companies authorized and qualified under the laws of the State of Florida to assume the risk thereof, covering such properties belonging to the Utility System as are customarily insured, and against loss or damage from such causes as are customarily insured against by companies engaged in similar business. 21 All such policies shall be for the benefit of the City, shall be made payable to the City and shall be deposited with the city, and the City shall have the sole right to receive the proceeds of such policies and to collection and receipt for claims thereunder. The proceeds of any and all such insurance shall be deposited in the name of the City in a Depositary. The City covenants that, immediately after any loss or damage to any properties of the Utility System resulting from any cause, whether or not such loss or damage shall be covered by insurance, it will cause its engineers to prepare plans and specifications for repairing, replacing or reconstructing (either in accordance with the original or a different design) the damaged or destroyed property, and that it will forthwith commence and diligently prosecute the repair, replacement or reconstruction of the damaged or destroyed property unless it shall determine that the repair, replacement or reconstruction of such property is not essential to the efficient or economic operation of the Utility System.. In the event that the City shall determine that the repair or replacement of such damaged or destroyed property is not essential to the efficient or economic operation of the Utility System, the proceeds of such insurance received by the City, at the option of the City, shall be deposited to the credit of either the Redemption Subaccount or the Renewal, Replacement and Improvement Account. Notwithstanding the foregoing provisions, the City may institute self-insurance programs with regard to such risks as shall be consistent with the practices of municipally owned utilities operating in a manner similar to the Utility System. Use of Revenues and Impact Fees. The City covenants and agrees that, so long as any of the Bonds shall be outstanding, none of the Revenues or Impact Fees will be used for any purpose other than as provided in the Resolution. Records. Accounts and Audits. The City covenants that it will keep the funds and accounts of the Utility System separate from all other funds and accounts of the City or any of its departments, and that it will keep accurate records and accounts of all items of costs and of all expenditures relating to the Utility System and of the Revenues collected and the application of such Revenues, and of the number of users of the Utility System in each classification. The City further covenants that within four months after the close of each Fiscal Year it will cause an audit to be made of its books and accounts pertaining to the Utility System by the Accountant. Separate Systems. The Commission may by resolution determine to own and operate Separate Systems; provided, however, that prior to the adoption of any such resolution designating any facilities as a Separate System, there shall be delivered to the City Manager a certificate of the Finance Director containing his determination that the ownership and operation of such Separate System will not have a material adverse impact on the Net Revenues of the Utility System and stating the basis for such determination. Any such Separate System may be consolidated with the Utility System upon demonstration of compliance with the tests for the incurrence of Additional Bonds contained in the Resolution. In determining compliance with the test mentioned above, the revenues and current expenses of 22 the Utility System and the debt service on any Utility Debt payable from revenues of such Separate Systems shall be included in Principal and Interest Requirements. Sale or Other Disposition of the Utility System. Except as provided below, the City shall not sell or otherwise dispose of all or any part of the Utility System. (a) To the extent permitted by law the City, without restriction, may in any Fiscal Year sell, lease or otherwise dispose of assets forming a part of the Utility System, the aggregate value of which in each such Fiscal Year does not exceed the greater of$1,000,000 or one half of one per centum(1/2 of 1%) of the book value of the net property, plant and equipment of the Utility System as shown on the audited financial statements of the Utility System for the latest Fiscal Year for which such audited statements are available. The proceeds of a sale pursuant to this clause (a) and any rental income received by the City from a lease of such property shall be deposited to the credit of the Revenue Account. (b) To the extent permitted by law the City may in any Fiscal Year sell, lease or otherwise dispose of assets forming a part of the Utility System in excess of the amount set forth in clause (a), if, before any such transfer, there is delivered to the City Manager a report of . the Consulting Engineer or Rate Consultant demonstrating that the sale, lease or other disposition of such property will not have an adverse impact on the Net Revenues and stating the basis for • - : such conclusion. The proceeds of a sale pursuant to this clause (b) and any rental income received.. by the City from a lease of such property shall be deposited to the credit of the Revenue Account. (c) To the extent permitted by law the City may in any Fiscal Year sell, lease or otherwise dispose of any assets forming a part of the Utility System without regard to the limitations and conditions in paragraphs (a)and(b) above if the Commission by resolution declares that such assets are not needed or serve no useful purpose inconnection with the maintenance and .. operation of the Utility System. The proceeds of a sale pursuant to this clause (c) and any rental income received by the City from a lease of such property shall be deposited to the credit of the Revenue Account. (d) To the extent permitted by law, the City may sell, lease or otherwise dispose of the assets of the entire Utility System, if, upon the application of the proceeds of any such sale as hereinafter required, there shall be no Bonds deemed to be Outstanding under the provisions of the Resolution and the City shall have paid or made full provision for the payment of all other obligations of the City payable from the Revenues of the Utility System, including but not limited to, Current Expenses then due and payable or to become due and payable, and all other Utility Debt payable in any way from the Revenues of the Utility System and all fees then due and owing . or to become due in the future with respect to Credit Facilities. Financial Reporting, Notice of Default and Supplemental Notice. For purposes of this Section, and this Section only, the term "Owner".shall include any person or entity that claims in writing delivered to the City to be the Owner of a Bond (or a beneficial owner of a Bond, in the event that all or a part of the Bonds are registered in the name of a depository institution). The annual audit of the books and accounts pertaining to the Utility System shall be mailed to any 23 Owner of a Bond without charge upon written request. In addition, the City will make available to any Owner of a Bond, without charge upon written request, information concerning the outstanding balance of Bonds by maturity, and a history of the redemption of any Bonds, including the respective redemption date, amount, source of funds and allocation of the Bonds redeemed among all Bonds. In the event the City or any Paying Agent has notice that an Event of Default has occurred or that an event has occurred which, with the passage of time or the giving of notice, or both, would constitute an Event of Default, then the City or Paying Agent, as the case may be, will, within thirty (30) days, give written notice thereof by first class mail to the Owners of the Bonds then Outstanding. Any Owner of at least$1,000,000 in aggregate principal amount of Bonds may request the City to send an additional copy of any notice required to be sent hereunder to owners of the Bonds, to a second address simultaneously with and in addition to the regular mailing of such notices to owners of the Bonds at their addresses on the registration books for the Bonds. Insurance Provisions. For so long as the 2002 Bond Insurance Policy shall be outstanding: (a) in determining whether payment of the principal of and interest on the 2002 Bonds shall have been timely made, no effect shall be given to payments made under the 2002 Bond Insurance Policy, (b) for all purposes of Article VIII of the Resolution (concerning events of default and remedies) except the giving of notice of default to Bondholders, the 2002 Bond Insurer shall be deemed to bethe sole holder of the Bonds it has insured for so long as it has not failed to comply with its payment obligations under such bond insurance policy, (c) in determining whether the rights of Bondholders are adversely affected by actions taken pursuant to the terms and provisions of the Resolution, no effect shall be given to payments made under the 2002 Bond Insurance Policy, and (d) no amendment or supplement to the Resolution may be effective without the prior written consent of the 2002 Bond Insurer. Events of Default. Each of the following events is declared an "Event of Default": (a) payment of the principal and of the redemption premium, if any, of any of the Bonds shall not be made when the same shall become 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 shall not be made when the same shall become due and payable; or 24 (c) the City shall for any reason be rendered incapable of fulfilling its obligations under the Resolution; or (d) final judgment for the payment of money shall be rendered against the City as a result of the ownership, control or operation of the Utility System and any such judgment _ shall not be discharged within sixty (60) days from the entry thereof or an appeal shall not 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) 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 creditors or consents to the appointment of receiver or trustees for itself or for the whole or any part of the Utility System or a receiver or trustee for such purpose is appointed without the consent of the City; or (f) the City is adjudged insolvent by a court of competent jurisdiction, or is adjudged a bankrupt on a petition in bankruptcy filed against the City, or an order, judgment or decree is entered by a court of competent jurisdiction appointing, without the consent of the City, a receiver or trustee of the City or of the whole or any part of its property and any of the aforesaid adjudications, 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) the City shall file a petition or answer seeking reorganization or r 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) 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 its property, 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 the 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 the same to be remedied shall have been given to the City by the holders of not less than ten per centum (10%) in aggregate principal amount of the Bonds then outstanding or by the issuer of any Credit Facility; provided, however, if the default specified in this clause (i) shall be of a type which cannot be remedied within thirty (30) days, its shall not constitute an event of default if the City shall begin to remedy such default within such thirty-day period and the issuer of each Credit Facility then outstanding shall have given its written consent to the extension of such thirty-day period. Payment of Defaulted Interest. Unless otherwise provided in the Series Resolution pursuant to which each Series of Bonds is issued, any interest on any Bond which is payable, but 25 is not punctually paid, or for which payment is not duly provided, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to.the Holder on the relevant Regular Record Date solely by virtue of such Holder having been such Holder; and such Defaulted Interest may be paid by the City, at its election in each case, as provided in subsection A or B below: A. The City may elect to make payment of any Defaulted Interest on the Bonds of any Series 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 shall be fixed in the following manner. The City shall notify the Bond Registrar 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 such as will enable the Bond Registrar 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 aggregate 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 subsection provided. Thereupon the Bond Registrar• shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 nor less than 10days prior to the date of the proposed payment andnot 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 of such Special Record Date and, in the nameand 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 postage prepaid, to each Holder at such Holder's address as it appears in the registration books provided for in the Resolution not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall. be paid to the persons in whose names the Bonds of such Series are registered on such Special Record Date and shall no longer be payable pursuant to the following subsection B. The Bond Registrar shall pay such Defaulted Interest which is payable on the Bonds pursuant to this subsection A by check or draft mailed to the persons entitled thereto on the date fixed for the payment of such Defaulted Interest pursuant to this subsection A; provided, however, the Commission pursuant to the Series Resolution for a Series may provide for payment of such Defaulted Interest by the Bond Registrar by wire transfer. B. The City may make payment of any Defaulted Interest on the Bonds of any Series in any other lawful manner, if, after notice given by the City to the Bond Registrar of the proposed payment pursuant to this Subsection, such payment shall be deemed practicable by the Bond Registrar. Acceleration of Maturities. Upon the happening and continuance of any Event of Default specified in clauses (a) through (i) above, then and in every such case the Holders of not less than a majority in aggregate principal amount of the Bonds then Outstanding may, by a notice in writing to the City, declare the principal of all of the Bonds then Outstanding (if not then due and payable) to be due and payable immediately, and upon such declaration the same shall become and be immediately due and payable, anything contained in the Bonds or in the Resolution to the 26 contrary notwithstanding; provided, however, that if at any time after the principal of the Bonds shall have been so declared to be due and payable, and before the entry of final judgment of decree in any suit, action or proceeding instituted on account of such default, or before the completion of the enforcement of any other remedy under the Resolution, moneys shall have accumulatedin the Sinking Fund Account sufficient to pay the principal of all matured Bonds and all arrears of interest, if any, upon all Bonds then Outstanding (except the principal of any Bonds not then due except by virtue of such declaration and the interest accrued on such Bonds since the last Interest Payment Date), and all amounts then payable by the City under the Resolution shall have been paid or a sum sufficient to pay the same 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 in the Resolution (other than a_default in the payment of the principal of such Bonds thendue only because of a declaration under this Section) shall have been remedied, then and in every such case the Holders of not less than a majority in aggregate principal amount of the Bonds 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. Enforcement of Remedies. Upon the happening and continuance of any Event of Default then and in every such case the Holders of not less than ten percentum (10%) in aggregate principal amount of the Bonds then Outstanding may proceed to protect and enforce the rights of the Bondholders under State law., or under the Resolution by such suits, actions or special proceedings in equity or at law, as such Bondholder shall deem most effectual to protect and enforce such rights. The Holder or Holders of Bonds in an aggregate principal amount of more than fifty per centum(50%)of the Bonds then Outstanding may by a duly executed certificate in writing appoint a trustee for Holders of Bonds issued pursuant to the Resolution with authority to represent such Bondholders in any legal proceedings for the enforcement and protection of the rights of such Bondholders. Such certificate shall be executed by such Bondholders or their duly authorized attorneys or representatives, and shall be filed in the office of the City Clerk of the City. Notwithstanding anything in the Resolution to the contrary, so long as the issuer of a Credit Facility shall not be in default in its payment obligations under such Credit Facility, such issuer shall be deemed to be the holder of all Bonds so insured for all purposes of this Article VIII. Pro Rata Application of Funds. Anything in the Resolution to the contrary notwithstanding, if at any time the moneys in the Sinking Fund Account shall not be sufficient to pay the principal of, or the interest on the Bonds as the same become due and payable, such moneys, together with any moneys then available for such purpose, shall be applied as follows: (a) Unless the principal of all the Bonds'shall have become due and payable or shall have been declared due and payable, all such moneys shall be applied: 27 First: to the payment of the persons entitled thereto of all installments of interest then due and payable, 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; Second: to the payment of the persons entitled thereto of the unpaid principal of any of the Bonds which shall]. have become due (other than Bonds called for redemption for the payment of which sufficient moneys are held pursuant to the provisions of the Resolution), in the order of their due dates, with interest upon such Bonds at the respective rates specified therein from the respective datesupon which they became due, and, if the amount available shall not be sufficient to pay in full the principal of Bonds due on any particular date, together with such interest, 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 to any difference in the respective rates of interest specified in the Bonds; and Third: to the payment of the interest on and the principal of the Bonds, to the purchase and retirement of Bonds and to the redemption of Bonds, all in accordance with the provisions of the Resolution. (b) If the principaland the Bonds 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, 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 over any other Bond, 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. (c) If the principal of all the Bonds shall have been declared due and payable and if such declaration shall thereafter have been rescinded and annulled, then, subject to the provisions of paragraph(b) in the event that the principal of all the Bonds 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). Restrictions on Individual Bondholder Actions. No Holder or Holders of any of the Bonds hereby secured shall have any right in any manner whatever by his or their action to affect, disturb or prejudice the security of the Resolution, or to enforce any right thereunder except in the manner therein provided, and all proceedingsat law or in equity shall be instituted, had and maintained for the benefit of all Holders of such Bonds. Bond Insurer Deemed Holder. To the extent provided in a Series Resolution, the issuer of any Credit Facility with respect to any Series of Bonds shall be deemed to be the holder of such Bonds. 28 Supplemental Resolutions Without Bondholders' Consent. The Commission may, from time to time and at any time adopt such Resolutions supplemental to the Resolution as shall not be inconsistent with the terms and provisions thereof (which supplemental Resolution shall thereafter form a part of the Resolution): (a) to cure any ambiguity or formal defect or omission or to correct any inconsistent provisions in the Resolution or in any supplemental Resolution, or (b) to grant to or confer upon the Bondholders any additional rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the Bondholders, or (c) to add to the conditions, limitations and restrictions on the issuance of Bonds under the provisions of the Resolution other conditions, limitations and restrictions thereafter to be observed, or (d) to add to the covenants and agreements of the City in the Resolution other covenants and agreements thereafter to be observed by the City or to surrender any right or power therein reserved to or conferred upon.the City, or (e) . to permit the issuance of Bonds in coupon form, if as a condition precedent to the adoption of such supplemental resolution, there shall be delivered to the City an opinion of Bond Counsel to the effect that the issuance of Bonds in coupon or bearer form are then permitted by law to be issued and that the interest on such Bonds would be exempt from Federal income taxation, or (f) to permit the City to issue Bonds the interest on which is not exempt from Federal income taxation, or (g) to qualify the Bonds or any of them for registration under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or (h) to qualify the Resolution as an "indenture" under the Trust Indenture Act of 1939, as amended, or (i) to permit Bonds to be issued in denominations other than $5,000, or (j) to comply with requirements of entities providing Credit Facilities, Reserve Account Insurance Policies and Reserve Account Letters of Credit. Supplemental Resolutions with Bondholders' Consent. The Holders of not less than a majority in aggregate principal amount of the Bonds then outstanding shall have the right, from time to time, to consent to and approve the adoption of such resolution or resolutions supplemental to the Resolution 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 29 provisions contained in the Resolution or in a supplemental resolution; provided, however, that nothing shall permit without the consent of the Holders of all Bonds affected, (a) an extension of the maturity of the principal of or the interest on any Bond, or (b) a reduction in the principal amount of any Bond or the redemption premium or the rate of interest thereon, or (c) the creation of a lien upon or a pledge of Revenues other than the lien and pledge created by the Resolution, or (d) a preference or priority of any Bond or Bonds over any other Bond or,Bonds, or (e) a reduction in the aggregate principal amount of the Bonds required for consent to such supplemental resolution. Cessation of Interests of Bondholders. If, when the Bonds (a) shall have become due and payable in accordance with their terms or (b) shall have been duly calledfor redemption or (c) irrevocable instructions to call the Bonds for redemption or to pay the Bonds at their respective maturities or combination of such payment and redemption shall have been given by the City, the whole amount of the principal and the interest and premium, if any, so due and payable upon all of the Bonds then Outstanding shall be paid or sufficient moneys, or Government Obligations the principal of and the interest (which with respect to any Variable Rate Bonds shall be assumed to be the maximum interest rate permitted under the documents governing such Variable Rate Bonds) on which when due will providesufficient moneys, shall be held by the Bond Registrar or other c bank, trust company or other appropriate fmancial institution, acting as escrow agent, forsuch purpose under the provisions of the 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 in the Pledged Revenues, funds and accounts mentioned in the Resolution shall thereupon cease, determine and become void, the City shall have no obligation with respect to such Bonds except for the payment of the principal of, redemption premium, if any, and interest thereon solely from the moneys or Government Obligations so deposited, and the Commission in such case, shall repeal and cancel the Resolution and may apply any surplus in any subaccount in the Sinking Fund Account and all balances remaining in any other funds or accounts other than moneys held for the redemption or payment of Bonds or the interest thereon to any lawful purpose of the City as the Commission shall determine; otherwise the 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 the Bond Registrar or other bank, trust company or other appropriate fmancial institution, acting as escrow agent, as hereinabove provided, and in addition to the requirements set forth in Article Ill of the Resolution, the City shall within thirty (30) days after such Government Obligations shall have been deposited with the Bond Registrar orother bank, trust company or other appropriate financial institution, acting as escrow agent, cause a notice to be mailed to the Holders of the Bonds for whose benefit such deposit shall have been made setting forth (a) the date, if any, designated for the redemption of the Bonds or if a portion of the Outstanding Bonds are not being redeemed prior to their maturities or mandatory redemption dates, a statement to the effect that such Bonds are being paid at maturity and any Term Bonds are being redeemed in amounts and at times which will satisfy the Amortization Requirements therefor, (b) a description of the Government Obligations so held by the Bond Registrar or other bank, trust company or other appropriate financial institution, acting as escrow agent, and (c) that the Resolution has been repealed and cancelled in accordance with the provisions of this Section, and in addition such notice shall be given in the same manner and to 30 the same persons entitled to receive a notice of redemption of the Bonds for whose benefits such deposit shall have been made. All moneys and obligations held by the Bond Registrar or other bank, trust company or other appropriate financial institution, acting as escrow agent, pursuant to this section shall be held in trust and the principal of and interest on said obligations when received, and said moneys, applied to the payment, when due, of the principal of, and the interest and the premium, if any, on the Bonds payable therefrom. G:\02345\31\App C.wpd 31 APPENDIX D PROPOSED FORM OF OPINION OF BOND COUNSEL Upon delivery of the 2002 Bonds, Moyle, Flanigan, Katz, Raymond&Sheehan, P.A., West Palm Beach, Florida, Bond Counsel, proposes to deliver its final approving opinion with respect to the 2002 Bonds in substantially the following form, however, the proposed delivery of such opinion assumes: (a) that from the date of this Official Statement to the Delayed Delivery Date (the "Delayed Delivery Period") there is no change in the applicable Florida or federal laws, and no court decision or regulation, ruling, including private letter ruling, procedure, notice, announcement or release by any administrative department or by the Internal Revenue Service or the Department of the Treasury pertaining to the interpretation or administration of such laws, which adversely affects the matters in the opinion below; (b) that during the Delayed Delivery Period there is not any material change in the Resolution (as such term is defined below), adversely affecting the matters set forth in the opinion below, and (c) the receipt of such other documents and certifications making such demonstrations as of the date the 2002 Bonds are delivered, in form and substance satisfactory to Bond Counsel, as Bond Counsel deems necessary for purposes of the opinion below, upon authentication, issuance and delivery of the 2002 Bonds in accordance with the Resolution. August 6, 2002 City of Boynton Beach, Florida RE: $ City of Boynton Beach, Florida Utility System Revenue Refunding Bonds, Series 2002 Ladies and Gentlemen: We have acted as bond counsel in connection with the issuance and sale by City of Boynton Beach, Florida(the "Issuer") of its $ aggregate principal amount Utility System Revenue Refunding Bonds, Series 2001 (the "Bonds"). The Bonds are issued pursuant to the Constitution and Laws of the State of Florida, particularly the Charter of the Issuer, Article VIII, Section 2, Florida Constitution and Chapter 166, Florida Statutes (collectively, the "Act"), and Resolution No. 92-96 adopted by the Issuer on June 16, 1992, as amended and supplemented, particularly as supplemented by Resolution No. RO1- , adopted by the Issuer May 15, 2001 (collectively, the "Resolution"). All terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. In rendering the opinions set forth herein, we have examined a certified copy of the Resolution and are relying on the representations, covenants and agreements of the Issuer contained therein, including, without limitation, the covenant of the Issuer contained in the Resolution to comply with the applicable requirements contained in Section 103 and Part IV of August 6, 2002 Page 2 Subchapter B of Chapter 1 of the Internal Revenue Code of 1986, as amended, and all temporary, proposed or permanent implementing regulations promulgated thereunder or applicable thereto(the "Code") to the extent necessary to preserve the exclusion of interest on the Bonds from gross income for federal income tax purposes. As to questions of fact material to our opinion we have relied upon representations of the Issuer contained in the Resolution and upon other certifications, agreements, documents, and opinions of public officials and other officers and representatives of the various parties participating in this transaction, furnished to us, without undertaking to verify the same by independent investigation. In addition to the foregoing we have examined and relied upon the opinion of Josias, Goren, Cherof, Doody & Ezrol, P.A., attorneys to the Issuer, as to the matters set forth therein. We have assumed the genuineness of all signatures on all documents and instruments, the authenticity of documents submitted as originals and the conformity to originals of documents submitted as copies. This opinion shall not be deemed or treated as an offering circular, prospectusor official statement, and is not intended in any way to be a disclosure document used in connection with the sale or delivery of the Bonds. We have not been engaged to and therefore express no opinion as to the compliance by the Issuer or the underwriter with any federal or state statute, regulation or ruling with respect to the sale or distribution of the Bonds. The opinions set forth below are expressly limited to, and we opine only with respect to, the laws of the State of Florida and the federal income tax laws of the United States of America. Based upon and subject to the foregoing, we are of the opinion as of the date hereof and under existing law, as follows: 1. The Resolution constitutes a valid and binding obligation of the Issuer, enforceable in accordance with its terms. 2. The Bonds have been duly authorized, executed and delivered by the Issuer and are valid and binding special obligations of the Issuer, payable solely from the sources provided therefor in the Resolution. 3. The interest on the Bonds is excluded from gross income of the Bondholders for federal income tax purposes and is not an item of tax preference described in Section 57 of the Code for purposes of the federal alternative minimum tax imposed on individuals and corporations. It is to be noted that with respect to certain corporations such interest may be required to be taken into account in determining adjusted current earnings for purposes of calculating the alternative minimum taxable income of such corporations. The opinions expressed in the first sentence of this paragraph are conditioned upon continuing compliance by the Issuer with various covenants contained in the Resolution, including, without limitation, its covenant to comply with applicable requirements of the Code necessary in order to preserve the exclusion of August 6, 2002 Page 3 interest on the Bonds from gross income for federal income tax purposes. Failure by the Issuer to comply with such requirements could cause the interest on the Bonds to be includable in gross income for federal income tax purposes retroactive to the date of issuance of the Bonds. Other provisions of the Code may give rise to collateral federal income tax consequences (which may be adverse) to particular Bondholders. This opinion is limited to matters expressly addressed above and no opinion is expressed herein regarding other federal tax consequences that may arise due to ownership of the Bonds. 4. The Bonds are exempt from all present intangible personal property taxes imposed by the State of Florida. Our opinions expressed herein are predicated upon present laws and interpretations thereof. We assume no affirmative obligation with respect to any change of circumstances or law (including laws that may result from legislation pending before Congress) that may adversely affect the tax-exempt status of interest on the Bonds after the date hereof. It is to be understood that the rights of the Bondholders and the enforceability of the Bonds and the Resolution may be subject to the provisions of the bankruptcy laws of the United States of America and to other applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights, heretofore or hereinafter enacted, to the extent constitutionally applicable, and that their enforcement may also be subject to equitable principles that may affect remedies or other equitable relief, or to the exercise of judicial discretion in appropriate cases. Very truly yours, G:\02345\31\bond opinion app d(2).wpd Exhibit A Financial Guaranty Insurance FGIC. C Company 115 Broadway New York,NY 10006 (212)312-3000 (800)352-0001 A GE Capital Company Municipal Bond New Issue Insurance Policy Issuer: Policy Number: Control mber: 0010001 . Bonds: Pr : Financial Guaranty Insurance Company ("Fin.• a Gu ah "), a New York stock insurance company, in consideration of thePaymthe premiu of • . . .o the terms of this Policy,hereby unconditionally and irrevocably agrees to pay to State Stre :o a 5 Trust Company, N.A., or its successor, as its agent (the "Fiscal Agent"),for the benefit of Bondhol s; ,that portion of the principal and interest on the above-described debt obligations (the "Bonds") which shall become Due for Payment but shall be unpaid by reason of Nonpayment by the Issuer. Financial Guaranty will make such payments to the Fiscal Agent on the date such principal or interest becomes Due for Payment or on the Business Day next following the day on which Financial Guaranty shall have received Notice of Nonpayment,whichever is later. The Fiscal Agent will disburse to the Bondholder the face amount of principal and interest which is then Due for Payment but is unpaid by reason of Nonpayment by the Issuer but only upon receipt by the Fiscal Agent, in form reasonably satisfactory to it, of(i) evidence of the Bondholder's right to receive payment of the principal or interest Due for Payment and(ii)evidence,including any appropriate instruments of assignment,that all of the Bondholder's rights to payment of such principal or interest Due for Payment shall thereupon vest in Financial Guaranty. Upon such disbursement, Financial Guaranty shall become the owner of the Bond, appurtenant coupon or right to payment of principal or interest on such Bond and shall be fully subrogated to all of the Bondholder's rights thereunder, including the Bondholder's right to payment thereof. This Policy is non-cancellable for any reason. The premium on this Policy is not refundable for any reason, including the payment of the Bonds prior to their maturity. This Policy does not insure against loss of any prepayment premium which may at any time be payable with respect to any Bond. As used herein,the term"Bondholder"means,as to a particular Bond,the person other than the Issuer who, at the time of Nonpayment, is entitled under the terms of such Bond to payment thereof. "Due for Payment" means,when referring to the principal of a Bond, the stated maturity date thereof or the date on which the same shall have been duly called for mandatory sinking fund redemption and does not refer to any earlier date on which payment is due by reason of call for redemption (other than by mandatory sinking fund redemption), acceleration or other advancement of maturity and means,when referring to interest on a Bond, the stated date FGIC is a registered service mark used by Financial Guaranty Insurance Company under license from its parent company,FGIC Corporation. Form 9000(10/93) Page 1 of 2 Financial Guaranty Insurance Company FGIC. 115 Broadway New York,NY 10006 (212)312-3000 (800)352-0001 A GE Capital Company Municipal Bond New Issue Insurance Policy . for payment of interest. "Nonpayment"in respect of a Bond means the failure of the Issuer to have provided sufficient funds to the paying agent for payment in full of all principal d interest Due for Payment on such Bond. "Notice"means telephonic or telegraphic notice, subsequent ed in writing,or written notice by registered or certified mail, from a Bondholder or a paying a or he Bonds to Financial Guaranty. "Business Day"means any day other than a Saturday, Sur3d o on which the Fiscal Agent is authorized by law to remain closed. In Witness Whereof, Financial Guaranty h ! olicy to be affixed with its corporate seal and to be signedbyduly its authorized officer in s e tlfbecome effective and binding upon Financial Guaranty by virtue of the countersignature of its duly aut zed representative. ot2,el-ty-1,0- '924 ,6:1?_,,,,e-il President • Effective Date: Authorized Representative State Street Bank and Trust Company,N.A.,acknowledges that it has agreed to perform the duties of Fiscal Agent under this Policy. 2/1411 °---- Authorized Officer FGIC is a registered service mark used by Financial Guaranty Insurance Company under license from its parent company,FGIC Corporation. Form 9000(10/93) Page 2 of 2 • Financial Guaranty Insurance iiiMi Company FGIC. 115 Broadway New York,NY 10006 (212)312-3000 (800)352-0001 A GE Capital Company Endorsement To Financial Guaranty Insurance Company Insurance Policy . Policy Number: Control mber: 0010001 It is further understood that the term"Nonpayment"in r t i . 1'Sond includes anypayment of principal or es P Ym P P interest made to a Bondholder by or on behalf of th ssue e s ch Bond which has been recovered from such Bondholder pursuant to the United States Ba C de by a trustee in bankruptcy in accordance with a final,nonappealable order of a court havio p e jurisdiction. NOTHING HEREIN SHALL BE CONST�.UE`D TO WAIVE, ALTER,REDUCE OR AMEND COVERAGE IN ANY OTHER SECTION OF THE POLICY. IF FOUND CONTRARY TO THE POLICY LANGUAGE, THE TERMS OF THIS ENDORSEMENT SUPERSEDE THE POLICY LANGUAGE. In Witness Whereof,Financial Guaranty has caused this Endorsement to be affixed with its corporate seal and to be signed by its duly authorized officer in facsimile to become effective and binding upon Financial Guaranty by virtue of the countersignature of its duly authorized representative. ts5.,,e,47-ze_, (92-"( .,,62,4 President Effective Date: Authorized Representative Acknowledged as of the Effective Date written above: 72tel -- Authorized Officer State Street Bank and Trust Company,N.A.,as Fiscal Agent FGIC is a registered service mark used by Financial Guaranty Insurance Company under license from its parent company,FGIC Corporation. Form E-0002(10/93) Page 1 of 1 Financial Guaranty Insurance SEWN Company FGIC. ('�. 115 Broadway lJ l�+ New York,NY 10006 (212)312-3000 (800)352-0001 A GE Capital Company Endorsement To Financial Guaranty Insurance Company Insurance Policy Policy Number: Control Number: 0010001 The insurance provided by this Policy is not covered by the F o d ` r ce Guaranty Association (Florida Insurance Code,Sec.631.50 et seq.). NOTHING HEREIN SHALL BE CONSTRUED CAL, ALTER,REDUCE OR AMEND COVERAGE IN ANY OTHER SECTION OF THE PO CONTRARY TO THE POLICY LANGUAGE, THE TERMS OF THIS ENDORSEME E DE THE POLICY LANGUAGE. In Witness Whereof,Financial Guaranty has caused this Endorsement to be affixed with its corporate seal and to be signed by its duly authorized officer in facsimile to become effective and binding upon Financial Guaranty by virtue of the countersignature of its duly authorized representative. 057,,,--4*-t,itit q< ,Q„,..4<ic President Effective Date: Authorized Representative Acknowledged as of the Effective Date written above: COUNTERSIGNATURE: ...--12,tru..A......._____. Authorized Officer Licensed Resident Agent State Street Bank and Trust Company,N.A.,as Fiscal Agent FGIC is a registered service mark used by Financial Guaranty Insurance Company under license from its parent company,FGIC Corporation. Form E-0032(10/93) Page 1 of 1 APPENDIX G DELAYED DELIVERY CONTRACT Banc of America Securities LLC 1640 Gulf-to-Bay Boulevard Clearwater, FL 33755 June , 2001 Re: City of Boynton Beach, Florida(the "City"),Utility System Revenue Refunding Bonds, Series 2002 (the"Bonds") Dear Sirs: The Purchaser designated below and executing this instrument (the "Purchaser") hereby agrees to purchase from Banc of America Securities LLC(the"Underwriter"), and the Underwriter agrees to sell to the undersigned, Par Amount Interest Rate Purchase Price CUSIP Number Maturity Date $ % $ of the above-referencedBonds offered by the Issuer's Preliminary Official Statement dated June , 2001 and Official Statement dated June , 2001 (the "Official Statement"), receipt of copies of which is hereby acknowledged, at a purchase price, the interest rate(s), amount(s) and maturity date(s) shown above, and on the further terms and conditions set forth in this Delayed Delivery Contract. The Purchaser hereby confirms that it has reviewed the Preliminary Official Statement and the Official Statement(including without limitation the sections entitled"DELAYED DELIVERY OF 2002 BONDS" and "DELAYED DELIVERY RISKS" therein), has considered the risks associated with purchasing the Bonds and is duly authorized to purchase the Bonds. The Purchaser further acknowledges and agrees that the Bonds are being sold on a "forward" basis, and the Purchaser hereby purchases and agrees to accept delivery of such Bonds from the Underwriter on or about August 6, 2002 (the "Delivery Date") as they may be issued pursuant to the Forward Delivery Purchase Contract(the"Bond Purchase Contract")between the City and the Underwriter. Terms used herein in capitalized form and not otherwise defined herein have the same meanings as in the Official Statement. Payment for the Bonds which the undersigned has agreed to purchase on the Delivery Date shall be made to the Underwriter or its order by wire transfer to a bank account specified by the Underwriter, on the Delivery Date upon delivery to the undersigned of the Bonds then to be purchased by the undersigned through the book-entry system of The Depository Trust Company. The obligations of the Purchaser hereunder to take delivery of and pay for the Bonds are unconditional subject to (a) the issuance of the Bonds by the City and purchase thereof by the Underwriter under the Bond Purchase Contract or(b)the termination by the Underwriter of the Bond Purchase Contract because of a Change in Law. A "Change in Law" is defined to mean (i) any change in or addition to applicable federal or state law, whether statutory or as interpreted by the courts,including any changes in or new rules,regulations or other pronouncements or interpretations by federal or state agencies; (ii) any legislation enacted by the Congress of the United States or introduced therein or recommended for passage by the President of the United States (if such enacted,introduced or recommended legislation has an enacted or proposed effective date which is on or before the Delivery Date); (iii) any law, rule or regulation proposed or enacted by any governmental body, department or agency (if such proposed or enacted law, rule or regulation has a proposed or enacted effective date which is on or before the Delivery Date);or (iv)-any judgment, ruling or order issued by any court or administrative body,which in any such case, would(A) as to the Underwriter, legally prohibit(or have the retroactive effect of prohibiting, if enacted, adopted, passed or finalized) the Underwriter from (1) accepting delivery of and paying for the Bonds in accordance with the provisions of the Bond Purchase Contract or(2)selling the Bonds or beneficial ownership interests therein to bona fide purchasers, or, (B) as to the City,would(1)make the sale or issuance and delivery of the Bonds illegal (or have the retroactive effect of making such sale, issuance, or delivery illegal, if enacted, adopted, passed or finalized), (2) eliminate the exclusion from gross income of interest on the Bonds (or have the retroactive effect of eliminating such exclusion if enacted,adopted,passed,or finalized);(3)require the Bonds tobe registered under the Securities Act of 1933; as amended, or the Securities Exchange Act of 1934, as amended,or the Bond Resolution to be qualified under the Trust Indenture Act of 1939, as amended (or have the retroactive effect of requiring such registration or qualification if enacted, passed, finalized or adopted);provided,however,that such change in or addition to law, legislation,rule or regulation, or judgment,ruling or order shall have become effective,been enacted,introduced or recommended, or been proposed or been issued,as the case may be,subsequent to the date of execution of the Bond Purchase Contract;or(4)a stop order,ruling,regulation,or official statement by the Securities and Exchange Commission or any other governmental agency having jurisdiction of the subject matter shall have been issued or made or any other event occurs, the effect of which is that the issuance, offering, or sale of the Bonds, or the delivery of the Resolution is or would be in violation of any provision of the federal securities laws, including the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or the Trust Indenture Act of 1939, as amended. If the Change of Law involves the enactment of legislation which only diminishes the value of, as opposed to eliminating the exclusion from gross income for federal income tax purposes, interest payable on "state or local bonds," the City may, nonetheless, be able to satisfy the requirements for the delivery of the Bonds. In such event,the Purchaser would be required to accept delivery of the Bonds. The City's obligationto issue and deliver the Bonds to the Underwriter on the Delivery Date, and accordingly the Underwriter's ability to redeliver the Bonds to the Purchaser, is conditioned on Financial Guaranty Insurance Company (the "Insurer") issuing a municipal bond insurance policy insuring the Bonds. However,if the Insurer cannot issue a municipal bond insurance policy on the Delivery Date with respect to the Bonds,the City, with the concurrence of the Underwriter, could substitute the Insurer's municipal bond insurance policy insuring the Bonds with a similar policy by 2 another insurer with assigned municipal bond ratings in the three principal rating agencies' highest rating categories. The Purchaser acknowledges and agrees that it will not be able to withdraw its order as described herein,and will not otherwise be excused from performance of its obligations to take up and pay for the Bonds on the Delivery Date because of market or credit changes, including specifically,but not limited to (a) changes in the ratings anticipated to be assigned to the Bonds or in the credit associated with the Bonds generally, or (b) changes in the financial condition, operations, performance, properties or prospects of the City from the date hereof to the Delivery Date of the Bonds (unless such changes give rise to an event of default under the financing documents). The Purchaser further acknowledges that the Underwriter could be liable under the Bond Purchase Contract for damages to the City in the event of a wrongful failure to accept delivery of the Bonds,and that the Underwriter has executed such Bond Purchase Contract in reliance on the Purchaser's commitment set forth herein. Finally,the Purchaser acknowledges and agrees that it will remain obligated to purchase the Bonds in accordance with the terms hereof even if the Purchaser decides to sell such Bonds following the date hereof. The undersigned represents and warrants that, as of the date of this Delayed Delivery. Contract, the undersigned is not prohibited from purchasing the Bonds hereby agreed to be purchased by it under the laws of the jurisdiction to which the undersigned is subject. This Delayed Delivery Contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. This Delayed Delivery Contract may be executed by either of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall constitute one and the same instrument. It is understood that the acceptance by the Underwriters of any Delayed Delivery Contract (including this one) is in Underwriter's sole discretion and that, without limiting the foregoing, acceptances of such contracts need not be on a first-come, first-served basis. If this Delayed Delivery Contract is acceptable to the Underwriter,it is requested that the Underwriter sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Underwriter and the undersigned when such counterpart is so mailed or delivered by the Underwriter. This Delayed Delivery Contract does not constitute a customer confirmation pursuant to Rule G-15 of the Municipal Securities Rulemaking Board. The City shall be deemed a third party beneficiary of this Delayed Delivery Contract. 3 This Delayed Delivery Contract shall be construed and administered under the laws of the State of New York. By: (Signature) Name: Title: Address: Accepted: , 2001 Banc of America Securities LLC By: Name: Title: G:\02345\31\Delayed Deliv Cont.wpd 4 Blanket Issuer Letter of Representations [To be Completed by Issuer] [Name of Issuer] [Date] Underwriting Department—Eligibility The Depository Trust Company 55 Water Street 19th Floor New York, NY 10041-0099 Ladies and Gentlemen: This letter sets forth our understanding with respect to all issues (the "Securities") that Issuer shall request be made eligible for deposit by The Depository Trust Company("DTC"). To induce DTC to accept the Securities as eligible for deposit at DTC, and to act in accordance with DTC's Rules with respect to the Securities, Issuer represents to DTC that Issuer will comply with the requirements stated in DTC's Operational Arrangements, as they may be amended from time to time. Note: Very truly yours, Schedule A contains statements that DTC believes accurately describe DTC,the method of effecting book- entry transfers of securities distributed through DTC,and certain related matters. (Issuer) By: (Authorized Officer's Signature) (Print Name) Received and Accepted: (Street Address) THE DEPOSITORY TRUST COMPANY (City) (State) (Zip Code) By: ( ) (Phone Number) m 0 m N C SCHEDULE A (To Blanket Issuer Letter of Representations), SAMPLE OFFERING DOCUMENT LANGUAGE DESCRIBING BOOK-ENTRY-ONLY ISSUANCE (Prepared by DTC--bracketed material may be applicable only to certain issues) 1. The Depository Trust Company ("DTC"), New York, NY,will act as securities depository for the securities (the "Securities"). The Securities will be issued as fully registered securities registered in the name of Cede & Co. (DTC's partnership nominee) or such other name as may be requested by an authorized representative of DTC. One fully registered Security certificate will be issued for[each issue of] the Securities, [each] in the aggregate principal amount of such issue, and will be deposited with • DTC. [If, however, the aggregate principal amount of[any] issue exceeds $200 million, one certificate will be issued with respect to each$200 million of principal amount and an additional certificate will be issued with respect to any remaining principal amount of such issue.] 2. DTC is a limited purpose trust company organized under the New York Banking Law, a"banking organization"within the meaning of the New York Banking Law, a member of the Federal Reserve System,a"clearing corporation"within the meaning of the New York Uniform Commercial Code,and a "clearing agency"registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds securities that its participants ("Participants") deposit with DTC.DTC also facilitates the settlement among Participants of securities transactions,such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in Participants' accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is owned by a number of its Direct Participants and by the New York Stock Exchange,Inc.,the American Stock Exchange, Inc., and the National Association of Securities Dealers, Inc.Access to the DTC system is also available to others such as securities brokers and dealers,banks, and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly("Indirect Participants"). The Rules applicable to DTC and its Participants are on file with the Securities and Exchange Commission. 3. Purchases of Securities under the DTC system must be made by or through Direct Participants, which will receive a credit for the Securities on DTC's records. The ownership interest of each actual purchaser of each Security ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction.Transfers of ownership interests in the Securities are to be accomplished by entries made on the books of Participants acting on behalf of Beneficial Owners.Beneficial Owners will not receive certificates representing their ownership interests in Securities,except in the event that use of the book-entry system for the Securities is discontinued. 4.To facilitate subsequent transfers,all Securities deposited by Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co. or such other name as requested by an authorized representative of DTC. The deposit of Securities with DTC and their registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Securities;DTC's records reflect only the identity of the Direct Participants to whose accounts such Securities are credited,which may or may not be the Beneficial Owners.The Participants will remain responsible for keeping account of their holdings on behalf of their customers. 5. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. [Beneficial Owners of the Securities may wish to take certain steps to augment the transmission to them of notices of significant events with respect to the Securities, such as redemptions, tenders, defaults, and proposed amendments to the Security documents. Beneficial Owners of Securities may wish to ascertain that the nominee holding the Securities for their benefit has agreed to obtain and transmit notices to Beneficial Owners,or in the alternative,Beneficial Owners may wish to provide their names and addresses to the registrar and request that copies of notices be provided directly to them.] [6.Redemption notices shall be sent to DTC. If less than all of the Securities within an issue are being redeemed,DTC's practice is to determine by lot the amount of the interest of each Direct Participant in such issue to be redeemed.] 7. Neither DTC nor Cede&Co. (nor such other DTC nominee)will consent or vote with respect to Securities. Under its usual procedures,DTC mails an Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts Securities are credited on the record date(identified in a listing attached to the Omnibus Proxy). S. Principal and interest payments on the Securities will be made to Cede &Co. or such other nominee as may be requested by an authorized representative of DTC. DTC's practice is to credit Direct Participants' accounts upon DTC's receipt of funds and corresponding detail information from Issuer or Agent,on payable date in accordance with their respective holdings shown on DTC's records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices,as is the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such Participant and not of DTC (nor its nominee), Agent, or Issuer, subject to any statutory or regulatory requirements as may be in effect from time to time.Payment of principal and interest to Cede&Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of Issuer or Agent, disbursement of such payments to Direct Participants is the responsibility of DTC, and disbursement of such payments to Beneficial Owners is the responsibility of Direct and Indirect Participants. [9.A Beneficial Owner shall give notice to elect to have its Securities purchased or tendered,through its Participant,to[Tender/Remarketing]Agent,and shall effect delivery of such Securities by causing the Direct Participant to transfer the Participant's interest in the Securities, on DTC's records, to [Tender/Remarketing]Agent The requirement for physical delivery of Securities in connection with an optional tender or a mandatory purchase will be deemed satisfied when the ownership rights in the Securities are transferred by Direct Participants on DTC's records and followed by a book-entry credit of tendered securities to[Tender/Remarketing]Agent's DTC account.] 10. DTC may discontinue providing its services as securities depository with respect to the Securities at any time by giving reasonable notice to Issuer or Agent Under such circumstances,in the event that a successor securities depository is not obtained, Security certificates are required to be printed and delivered. 11. Issuer may decide to discontinue use of the system of book-entry transfers through DTC (or a successor securities depository).In that event,Security certificates will be printed and delivered. 12.The information in this section concerning DTC and DTC's book-entry system has been obtained from sources that Issuer believes to be reliable, but Issuer takes no responsibility for the accuracy thereof. ESCROW DEPOSIT AGREEMENT THIS ESCROW DEPOSIT AGREEMENT (this "Agreement"), is dated as of , 2001, and is by and between CITY OF BOYNTON BEACH, FLORIDA, a political subdivision of the State of Florida (the "Issuer") and THE BANK OF NEW YORK, a New York banking corporation(the "Bank"), as escrow agent(the "Escrow Agent") and as Bond Registrar for the Defeased Bonds (herein defined) (the "1992 Bond Registrar"). WITNESSETH: WHEREAS, the Issuer has heretofore issued $60,255,000 in aggregate principal amount of its Utility System Revenue Bonds, Series 1992, dated June 15, 1992, (the "1992 Bonds"); and WHEREAS, the Issuer has determined to provide for the payment of a portion of the 1992 Bonds described on Exhibit A hereto (the "Defeased Bonds") by providing for the deposit of certain moneys with the Escrow Agent hereunder; and WHEREAS, a portion of the moneys deposited with the Escrow Agent for such purpose, may be applied to the purchase of certain direct obligations of the United States of America ("Government Obligations"); and WHEREAS, in order to provide for the proper and timely application of the moneys deposited in the trust created herein to the payment of the Defeased Bonds, it is necessary for the Issuer to enter into this Escrow Deposit Agreement with the Escrow Agent on behalf of the holders from time to time of the Defeased Bonds; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein set forth and in order to secure the payment of the principal of, premium, and interest on the Defeased Bonds, according to their tenor and effect, the Issuer does by these presents hereby deliver to and give, grant, assign and pledge to the Escrow Agent and to its successors in the trust herebycreated, and to it and its assigns forever, all and singular the property hereinafter described, to wit: I. All right, title, and interest of the Issuer in and to $ to be deposited by or on behalf of the Issuer with the Escrow Agent hereunder. II. All right, title, and interest of the Issuer in and to any Government Obligations purchased from the moneys described in Clause I above. III. All right, title, and interest of the Issuer in and to all cash balances held from time to time hereunder and all income and earnings derived from or accruing to any Government Obligations described in Clause II above. IV. All (i)property which is by the express provisions of this Agreement required to be subject to the pledge hereof and (ii) additional property of every kind and nature that may, from time to time hereafter, by delivery or by writing of any kind, be conveyed, pledged, assigned, or transferred as and for additional security hereunder or to be subject to the pledge hereof, by the: Issuer or by anyone in its behalf, and the Escrow Agent is hereby authorized to receive the same: at any time as additional security hereunder, provided that no property described in (ii) shall be accepted by the Escrow Agent unless the Escrow Agent shall receive an opinion of nationally recognized bond counsel selected by the Issuer to the effect that such acceptance will not cause the interest on the Defeased Bonds to be included in the gross income of the holders thereof for federal income tax purposes. TO HAVE AND TO HOLD, all and the same; in trust nevertheless,upon the terms herein set forth, for the equal and proportionate benefit, securityand protection, as herein described, of the holders or owners from time to time of the Defeased Bonds in the manner herein provided; but if the Defeased Bonds shall be fully and promptly paid when due or redeemed on their dates of scheduled maturity or mandatory redemption in accordance with the terms thereof and hereof, then this Agreement shall be and become void and of no further force and effect, otherwise the same shall remain in full force and effect, and subject to the covenants and conditions hereinafter set forth. ARTICLE I DEFINITIONS Section 1.01. Definitions. All terms used in capitalized form herein and not otherwise defined herein shall have the meanings ascribed to them in the Bond Resolution. In addition to words and terms elsewhere defined in this Agreement, as used herein, unless some other meaning is plainly intended, the following terms and phrases shall have the following meanings: "Bond Resolution" means Resolution No. 92-96 of the Issuer adopted June 16, 1992, as amended and supplemented, particularly by Resolution No. 92-102, adopted June 29, 1992 and Resolution No. 92-114 adopted July 16, 1992, authorizing the issuance of the Defeased Bonds. "Delayed Delivery Closing Date" means the date on which the Issuer's $ Utility System Revenue Refunding Bonds, Series 2002 are delivered by the Issuer to the purchaser thereof. 2 "Escrow Deposit Trust Fund" means the fund so designated and established under Section 2.01 of this Agreement. "Government Obligations" means direct obligations of the United States of America that are not callable prior to maturity by the obligor thereon. Section 1.02. Uses of Phrases. 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, words importing the singular number shall include the plural number and vice-versa. ARTICLE II ESTABLISHMENT OF FUNDS: FLOW OF FUNDS Section 2.01. Creation of Escrow Deposit Trust Fund. There is hereby created and established with the Escrow Agent a special and irrevocable trust fund designated the "City of, Boynton Beach, Florida Utility System Revenue Bonds, Series 1992/2002 Escrow Deposit Trust Fund" to be held in the custody of the Escrow Agent separate and apart from other funds of the Issuer or the Escrow Agent. . Section 2.02. Deposit to Escrow Deposit Trust Fund. On the Delayed Delivery Closing Date the Issuer shall deposit or cause to be deposited with the Escrow Agent and the Escrow Agent shall receive immediately available moneys in the amount of$ , for deposit in' the Escrow Deposit Trust Fund. If so directed by the City the funds deposited in the Escrow Deposit Trust Fund pursuant to the preceding sentence shall, except for any remaining cash balance be immediately invested by the Escrow Agent in the Government Obligations described on Exhibit B to be attached hereto prior to or concurrent with such delivery of funds. Section 2.03. Application of Escrow Deposit Trust Fund. The Escrow Agent shall apply the Government Obligations and other moneys deposited in the Escrow,Deposit Trust Fund, together with all income and earnings thereon, in accordance with the provisions hereof. The Escrow Agent shall not invest any moneys held hereunder or make substitutions of the Government Obligations hereunder or sell, transfer, or otherwise dispose of the Government Obligations or moneys held hereunder except as provided in this Agreement. Section 2.04. Irrevocable Trust Created. Except as expressly provided herein, the deposit of(or purchase of for deposit of) the Government Obligations and moneys in the Escrow Deposit Trust Fund shall constitute an irrevocable deposit for the benefit of the holders of the Defeased Bonds and the holders of the Defeased Bonds shall have an express lien on the principal of and earnings on the Government Obligations and other moneys held in the Escrow Deposit Trust Fund hereunder until applied in accordance with this Agreement. The Government Obligations and earnings thereon and other moneys shall be held by the Escrow Agent and used only for the purposes and in the manner provided in this Agreement. 3 Section 2.05. Use of Moneys in Escrow Deposit Trust Fund; Redemption of Defeased Bonds. On November 1, 2002 the Escrow Agent shall transfer from funds in the Escrow Deposit Trust Fund to the 1992 Bond Registrar the amount of interest, principal and/or redemption price of the Defeased Bonds coming due on such date, as shown on Exhibit C. Such amount shall be applied by the 1992 Bond Registrar to the payment of all principal of, interest on, and redemption premium, if any, when due with respect to the Defeased Bonds. Effective upon, and only upon, the Delayed Delivery Closing Date, the Issuer hereby irrevocably elects that the Defeased Bonds then outstanding and maturing after November 1, 2002, shall be called for redemption on November 1, 2002. The Issuer hereby directs that at least 30 days and not more than 60 days before November 1, 2002, a notice of such redemption in the form attached hereto as Exhibit D shall be mailed by the 1992 Bond Registrar, first class mail, postage prepaid, to all registered owners of Defeased Bonds to be redeemed at their addressed they appear on the registration books therefore. In addition, further notice of such redemption shall be given - by the 1992 Bond Registrar as provided in Section 303 of the Bond Resolution. The Issuer agrees to pay the reasonable expenses incurred by the 1992 Bond Registrar in connection with such redemption from lawfully available funds of the Issuer. Section 2.06. Investment and Reinvestment of Trust Funds. After the initial investment of funds, if any, pursuant to Section 2.02 hereof, the Issuer may direct the Escrow Agent in writing to invest and reinvest any moneys remaining fromtime to time in the Escrow Deposit Trust Fund until such time as they are needed, and the Escrow Agent shall comply with such request, otherwise the Escrow Agent shall hold such moneys uninvested. Such moneys may be invested and reinvested only in Government Obligations bearing interest at such rate or rates and maturing on such date or dates and in such amounts as directed in writing by the Issuer. The Issuer shall give no such instruction to the Escrow Agent unless the Issuer shall receive and concurrently deliver to the Escrow Agent an opinion of nationally recognized bond counsel . selected by the Issuer in its sole discretion to the effect that such investment of such moneys'will not adversely affect the exclusion from gross income of the interest on the Defeased Bonds for federal income tax purposes. Provided further, that no such investment instruction shall be given unless the Issuer shall have received and delivered to the Escrow Agent verification from a firm of independent certified public accountants to the effect that, taking into account such investment, the amounts held hereunder will be sufficient to pay the principal, premium, and interest on the Defeased Bonds in full as the same shall become due whether by redemption or otherwise. Section 2.07. Transfer of Funds After All Payments Required by This Agreement Are Made. On November 1, 2002 after the transfer of funds described in Section 2.05 hereof has occurred, and after all fees and expenses of the Escrow Agent (including anyattorneys' fees and expenses) due hereunder have been paid in full, all remaining moneys and Government Obligations, together with any income and interest thereon, in the Escrow Deposit Trust Fund shall be transferred to the Issuer by the Escrow Agent and shall be deposited by the Issuer in the 2002 Project Construction Account under the Bond Resolution. The Escrow Agent shall have no responsibility for the application of amounts transferred by it to the Issuer as provided in the preceding sentence. 4 Section 2.08. Deficiencies. If at any time it shall appear to the Escrow Agent that the available proceeds in the Escrow Deposit Trust Fund will not be sufficient to make any payment when due to the holders of any of the Defeased Bonds, the Escrow Agent shall notify the Issuer not less than fifteen (15) days prior to such payment date and the Issuer agrees that it will make available to the Escrow Agent, from legally available funds, if any, amounts sufficient to eliminate the anticipated deficit so that the Escrow Agent will have sufficient funds to make such payment on the Defeased Bonds. Section 2.09. Escrow Agent and Bond Registrar Fees. The Issuer hereby agrees to provide for the payment, from lawfully available funds of the Issuer, of the compensation due and owing the Escrow Agent and 1992 Bond Registrar, which compensation shall be paid at such times and in such amounts as agreed between the Issuer and the 1992 Bond Registrar and Escrow Agent, respectively. In no event shall the 1992 Bond Registrar or Escrow Agent have any lien, security interest or right of set-off whatsoever upon any of the moneys or investments in the Escrow Deposit Trust Fund for the payment of such compensation, or for the reimbursement of any expenses incurred by the 1992 Bond Registrar or Escrow Agent in connection with this Agreement. Section 2.10. Bond Registrar. The Escrow Agent shall cooperate with the 1992 Bond Registrar, to cause necessary arrangements to be made and thereafter continued whereby funds available from the Escrow Deposit Trust Fund shall be made available by the Escrow Agent to the 1992 Bond Registrar, for the payment of the Defeased Bonds as the same shall be come due and payable. ARTICLE III CONCERNING THE BANK Section 3.01. Appointment of Escrow Agent. The Issuer hereby appoints The Bank of New York as Escrow Agent under this Agreement. Section 3.02. Acceptance by Bank. By execution of this Agreement, the Bank accepts its duties and obligations hereunder. The Bank undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Bank. Section 3.03. Liability of Bank. The Bank shall not be liable in connection with the performance of its duties hereunder except for its own negligence or willful misconduct. The Bank shall not be liable for any loss or any resulting taxability of interest on the Defeased Bonds resulting from any investment made pursuant to the terms and provisions of this Agreement. The Bank shall not be liable for the accuracy of the calculations as to the sufficiency of moneys and of the principal amount of the Government Obligations and the earnings thereon to pay the Defeased Bonds. 5 The Bank shall keep such books and records as shall be consistent with prudent industry practice and shall make such books and records available for inspection by the Issuer at all reasonable times. In the event of the Bank's failure to account for any of the Government Obligations or moneys received by it, said Government Obligations or moneys shall be and remain the property of the Issuer for the benefit of the holders of the Defeased Bonds, as herein provided. Section 3.04. Permitted Acts. The Bank and its affiliates may become the owner of or may deal in any obligations of the Issuer described herein as fully and with the same rights as if it were not the Escrow Agent and 1992 Bond Registrar. Section 3.05. Resignation of Escrow Agent. The Escrow Agent at the time acting hereunder may at any time resign and be discharged from the trusts hereby created by giving not less than sixty (60)days' written notice to the Issuer specifying the date when such resignation will take effect, but no such resignation shall take effect(except as provided by Section 3.07(b)hereof) unless a successor Escrow Agent shall have been appointed by the Issuer as hereinafter provided and such successor Escrow Agent shall have accepted such appointment, in which event such resignation shall take effect immediately upon the appointment and acceptance of a successor Escrow Agent and thetransfer to such successor Escrow Agent of the funds and accounts held.by. the Escrow Agent hereunder. Section 3.06. Removal of Escrow Agent. (a) The Escrow Agent may be removed at any time by the Issuer, but the Escrow Agent shall remain in office (except as provided by Section 3.07(b) hereof) until the appointment and taking office of a successor Escrow Agent in accordance with the provisions of this Agreement. (b) The Escrow Agent shall be deemed to have been removed if it is dissolved, becomes incapable of exercising the powers of Escrow Agent hereunder or is taken over by any governmental action. (c) Notwithstanding the foregoing provisions of this Section 3.06, no removal of the Escrow Agent shall take effect until all fees and expenses of the Escrow Agent to be removed (including attorneys' fees and expenses) due hereunder shall have been paid. Section 3.07. Successor Escrow Agent. (a) When the position of the Escrow Agent becomes or is about to become vacant, the Issuer shall appoint a successor Escrow Agent to fill such vacancy. (b) If no appointment of a successor Escrow Agent shall be made pursuant to the foregoing provisions of this Section, the holder of any Defeased Bond then outstanding may, or any Escrow Agent retiring or being removed from office shall, apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Upon the deposit by the retiring Escrow Agent of all funds and securities held by it under the provisions hereof into the registry of such court, such Escrow Agent shall be relieved of all future duties hereunder. 6 (c) Any corporation into which the Escrow Agent, or any successor to it in the trusts created by this Agreement, may be merged or converted or with which it or any successor to it may be consolidated, or any corporation resulting from any merger, conversion, consolidation or reorganization to which the Escrow Agent or any successor to it shall be a party or any corporation to which all or substantially all of the corporate trust business of the Escrow Agent or any such successor shall be transferred shall be the successor Escrow Agent under this Agreement without the execution or filing of any paper or any other act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. Section 3.08. Receipt of Proceedings. Receipt of true and correct copies of the Bond Resolution is hereby acknowledged by the Escrow Agent. Section 3.09. Indemnification. The Issuer agrees to indemnify and save the Bank,its agents and employees, harmless, to the extent allowed by law, against any liabilities, costs, expenses and disbursementsof whatsoever kind or nature, which it or they may incur in the exercise and performance of its powers and duties hereunder, and which are not due to its negligence or misconduct. Indemnification provided under this Section shall survive the termination of this Agreement. Section 3.10. Miscellaneous Provisions Regarding Escrow Agent. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the Issuer. The Escrow Agent may conclusively rely, as to the correctness of statements, conclusions and opinions therein, upon any certificate, report, opinion or other document furnished to the Escrow Agent pursuant to any provision of this Agreement; the Escrow Agent shall be protected and shall not be liable for acting or proceeding, in good faith, upon such reliance; and the Escrow Agent shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument. The Escrow Agent may consult with counsel, who may be counsel to the Issuer or independent counsel, with regard to legal questions, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith in accordance herewith. Prior to retaining such independent counsel, the Escrow Agent shall notify the Issuer of its intention. ARTICLE IV MISCELLANEOUS Section 4.01. Amendments to this Agreement. This Agreement is made for the benefit of the Issuer, the Bank and the holders from time to time of the Defeased Bonds and it shall not be repealed, revoked, altered or amended without the written consent of all such holders, the Bank and the Issuer; provided, however, that the Issuer and the Bank may, without the consent of, or notice to, such holders, enter into such agreements supplemental to this Agreement as shall not adversely affect the exclusion from gross income for federal income tax purposes of the interest 7 on the Defeased Bonds and the rights of such holders and as shall not be inconsistent with the terms and provisions of this Agreement, for any one or more of the following purposes: (a) to cure any ambiguity or formal defect or omission in this Agreement; (b) to grant to, or confer upon, the Escrow Agent for the benefit of the holders of the Defeased Bonds, any additional rights, remedies, powers or authority that may lawfully be granted to, or conferred upon, such holders or the Escrow Agent; and (c) to subject to this Agreement additional funds, securities or properties. The Bank shall be entitled to rely exclusively upon an unqualified opinion of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. or other nationally recognized bond counsel with respect to compliance with this Section, including the extent, if any, to which any change, modification, addition or elimination affects the rights of the holders of the Defeased Bonds, or that any instrument executed hereunder complies with the conditions and provisions of this Section. Section 4.02. Severability. If any one or more of the covenants or agreements provided in this Agreement should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed to be separate and shall in no way affect the validity of the remaining provisions of this Agreement. Section 4.03. Agreement Binding. All the covenants,.promises and agreements in this Agreement contained by or on behalf of the Issuer or by or on behalf of.the Escrow Agent shall bind and inure to the benefit of their respective successors and assigns, and to the benefit of the holders of the Defeased Bonds, whether so expressed or not. Section 4.04. Termination. This Agreement (other than Section 3.09 hereof) shall terminate when all transfers and payments required to be made by the Escrow Agent under the provisions hereof shall have been made. If the Delayed Delivery Closing Date does not occur on August 7, 2002, this Agreement shall immediately terminate. Section 4.05. Governing Law. This Agreement shall be governed by the applicable laws of the State of Florida. Section 4.06. Execution by Counterparts. This Agreement may be executed in several counterparts, each of which shall be regarded for all purposes as an original, and all of which, together, shall constitute and be but one and the same instrument. Section 4.07. Notices. Any notice, demand, direction, request or other instrument authorized or required by this Agreement to be given shall be deemed sufficiently given on the day sent by registered mail, return receipt requested, addressed as follows or to such other address furnished in writing by any of the following to all of the following: 8 If to the Issuer: City of Boynton Beach, Florida Attn: City Manager 100 East Boynton Beach Boulevard Boynton Beach, Florida 33425 If to the Bank: The Bank of New York 10161 Centurion Parkway 2nd Floor Jacksonville, Florida 32256 IN WITNESS WHEREOF, the Issuer and the Escrow Agent have duly executed this Agreement as of the date first above written. CITY OF BOYNTON BEACH, FLORIDA By: Mayor THE BANK OF NEW YORK, as Escrow Agent and 1992 Bond Registrar By: Its Agent 9 EXHIBIT A DEFEASED BONDS Maturity Date Principal CUSIP# (November) Amount (Prefix is 103580) 2002 $ 5,000 CD6 2003 5,000 CE4 2004 5,000 CF1 2005 5,000 CG9 2006 5,000 CH7 2007* 5,000 2008* 5,000 2009* 5,000 2010* 5,000 2011* 5,000 2012* 5,000 CJ3 2013** 2,260,000 2014** 2,405,000 2015** 2,550,000 2016** 2,710,000 2017** 2,880,000 2018** 3,060,000 2019** 3,255,000 2020** 3,455,000 CKO * Represents a $30,000 portion of the total $14,415,000 principal amount of the term bond maturing November 1, 2012 which portion is being defeased and refunded, and which principal amount being defeased is allocated among and credited to the Amortization Installments otherwise due on November 1 of the years 2007 through 2012. ** Represents a$22,575,000 portion of the total $27,105,000 principal amount of the term bond maturing November 1, 2020 which portion is being defeased and refunded, and which principal amount being defeased is allocated among and credited to the Amortization Installments otherwise due on November 1 of the years 2013 through 2020. 10 EXHIBIT B GOVERNMENT OBLIGATIONS TO BE DEPOSITED INTO ESCROW DEPOSIT TRUST FUND Part I Maturity Interest Date Principal Type Rate 11/01/2002 1 1. U.S. Treasury Obligation - State and Local Gov't. Series 11 EXHIBIT C DEFEASED BONDS DEBT SERVICE SCHEDULES Date Principal Call Premium Interest Total 11/01/2002 $22,630,000 $452,500 12 EXHIBIT D REDEMPTION NOTICE CITY OF BOYNTON BEACH, FLORIDA UTILITY SYSTEM REVENUE BONDS, SERIES 2002 Bond Maturity Interest Rate CUSIP Nos.* Certificate Nos. 2003 5.90% 103580 CD6 2004 6.00 103580 CE4 2005 6.15 103580 CF1 2006 6.20 103580 CG9 2012 6.25 103580 CH7 2017 6.25 103580 CKO Notice is hereby given that pursuant to the terms of the Resolution, adopted June 16, 1992, as amended and supplemented, by the City Commission of the City of Boynton Beach, Florida, the bonds described above, which were issued July 22, 1992, are called for payment and redemption on November 1, 2002 (the "Redemption Date") at a redemption price of 102% of the principal amount thereof plus accrued interest thereon to the Redemption Date. The Bonds so called for redemption should be presented for payment and redemption at the office of the paying agent set forth below, on or after November 1, 2002, and will cease to bear or accrue interest after that date, whether or not so presented. The Bank of New York [insert address and name and telephone number of contact] Withholding of 31% of gross redemption proceeds of any payment made within the United States of America may be required by the Interest and Dividend Tax Compliance Act of 1983 unless the paying agent has the correct taxpayer identification number (social security or employer identification number) or exemption certificate of the payee. Please furnish a properly completed IRS Form W-9 or exemption certificate or equivalent when presenting your securities for redemption. DATED this _day of , 2002. CITY OF BOYNTON BEACH, FLORIDA By: /s/ Diane Reese Finance Director * CUSIP numbers are included solely for the convenience of the owners, and no representation is made as to the correctness of the CUSIP numbers indicated in this Redemption Notice. G:\02345\31\escrow deposit.wpd D-1