R16-158 I'/
1 RESOLUTION NO. R16-158
2
3 A SERIES RESOLUTION PROVIDING FOR THE ISSUANCE OF $23,000,000 OF ITS
4 UTILITY SYSTEM REVENUE BOND, SERIES 2016; PROVIDING A METHOD FOR
5 FIXING AND DETERMINING THE PRINCIPAL AMOUNT, INTEREST RATE,
6 MATURITY DATE, REDEMPTION PROVISIONS AND OTHER DETAILS OF SAID
7 BOND; AUTHORIZING THE SALE OF THE BOND TO RAYMOND JAMES CAPITAL
8 FUNDING, INC.; FINDING NECESSITY FOR A NEGOTIATED SALE OF SUCH BOND;
9 PROVIDING FOR THE APPLICATION OF THE PROCEEDS OF SAID BOND AND
10 CERTAIN OTHER MONEYS; DESIGNATING THE BOND REGISTRAR FOR SAID
11 BOND; CONTAINING CERTAIN AUTHORIZATIONS AND OTHER PROVISIONS; AND
12 PROVIDING AN EFFECTIVE DATE.
13
14
15 WHEREAS, the City of Boynton Beach, Florida (the "City") is authorized by the Constitution
16 and laws of the State of Florida, including the City's Charter and Chapter 166, Florida
17 Statutes, to issue revenue bonds of the City payable from Pledged Revenues (as defined in the
18 Bond Resolution hereinafter defined mentioned) for certain purposes; and
19
20 WHEREAS, pursuant to Resolution No. R 92 96 adopted by the City Commission of the City
21 (the "City Commission") on June 16, 1992, as amended (the "Bond Resolution") obligations
22 of the City may be issued and may be secured by a lien upon and pledge of certain "Pledged
23 Revenues" as defined in and to the extent set forth in the Bond Resolution; and
24
25 WHEREAS, the City desires to issue a Bond (the "Series 2016 Bond") under the Bond
26 Resolution to provide funds, together with available funds of the City, to pay costs of capital
27 improvements to the City's Utility System and to pay certain costs of issuing such Series 2016
28 Bond; and
29
30 WHEREAS, prior to the issuance of the Series 2016 Bond the conditions set forth in Section
31 209 of the Bond Resolution shall be satisfied; and
32
33 WHEREAS, the City Commission has determined that the sale of such Series 2016 Bond
34 through negotiation with the Lender (hereinafter defined) is in the best interest of the City;
35 and
36
37 WHEREAS, the City Commission has received from Raymond James Capital Funding, Inc.
38 (the "Lender") the proposal attached hereto as Exhibit A(the "Proposal") whereby the Lender
39 proposes to make a loan to the City to be evidenced by the Series 2016 Bond, and the City
40 Commission has determined that the authorization of the acceptance of such proposal
41 pursuant to the terms set forth in Section 6 hereof is in the best interests of the City and will
42 effect the purposes set forth in the Bond Resolution; and
43
44 WHEREAS, it is necessary and desirable to specify a method for determining the dates, the
45 interest rates, maturity dates and redemption provisions for such Series 2016 Bond;
46
47 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF
48 BOYNTON BEACH, FLORIDA:
49
50 Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the
51 provisions of the Charter of the City of Boynton Beach, Florida, the Constitution of the State
52 of Florida, including, but not limited to, Article VIII, Section 2 thereof, and other applicable
1 provisions of law, including Chapter 166, Florida Statutes, and the Bond Resolution.
2
3 Section 2. Definitions. Terms used herein in capitalized form and not otherwise
4 defined herein shall have the meanings ascribed thereto in the Bond Resolution. The
5 following terms, when used in this Resolution or in the Bond Resolution, as amended hereby,
6 shall have the following meanings:
7
8 "Authorized Representative" means the Mayor or Vice-Mayor, and in the absence or inability
9 to act of the Mayor or Vice-Mayor, the City Manager or any other City Commissioner (the
10 absence or inability to act of the Mayor of Vice-Mayor as to any particular action being
11 conclusively established by the taking of such action by the City Manager or other City
12 Commissioner).
13
14 "Business Day" shall mean any day other than a Saturday, Sunday or other day on which the
15 Payment Office of the Lender (as defined in the Series 2016 Bond) is lawfully and
16 temporarily closed.
17
18 "Closing Date" shall mean the date on which the Series 2016 Bond are issued and delivered
19 by the City and paid for by the Lender.
20
21 "Interest Payment Date" shall mean May 1 and November 1 of each year, commencing May
22 1, 2017.
23
24 Section 3. Authorization of Bond. A Bond is hereby authorized to be issued pursuant
25 to this Resolution and Section 209 of the Bond Resolution in the principal amount of
26 $23,000,000. The Bond hereby authorized shall be known as "Utility System Revenue Bond,
27 Series 2016" (the "Series 2016 Bond"). Prior to the issuance of the Series 2016 Bond the
28 conditions of Section 209 of the Bond Resolution shall be satisfied. The Series 2016 Bond is
29 being issued for the principal purpose of providing funds to pay for capital improvements to
30 the Utility System.
31
32 Section 4. Terms of the Series 2016 Bond.
33
34 (a) Form of Bond. The Series 2016 Bond shall be substantially in the form attached
35 hereto as Exhibit B, with such changes as may be necessary or appropriate to conform to the
36 provisions of this Resolution and the terms of the Series 2016 Bond set forth herein as may be
37 approved by the officers of the City executing the Series 2016 Bond, such execution to be
38 conclusive evidence of such approval.
39
40 (b) Amounts, Maturities, Redemption Provisions and Interest Rates. The Series 2016 Bond
41 shall be issued as a single bond for the entire principal amount of the Series 2016 Bond, shall
42 be issued in registered form, shall be numbered R-1, shall be dated the date of its initial
43 issuance and delivery, and shall bear interest from such date, payable on the Interest Payments
44 Dates. The Series 2016 Bond shall be issued on such date, in the amount of $23,000,000,
45 shall bear interest at the rate of 2.45% per annum (subject to adjustment as provided in the
46 Series 2016 Bond), computed on the basis of a 360 day year consisting of twelve 30 day
47 months, not in excess of the maximum legal rate, and shall mature on November 1 of the
48 years and shall have such prepayment or redemption provisions, all as set forth in the Series
49 2016 Bond, and as shall be consistent with the Proposal.
50
51 (c) Reserve Account Requirement. The Reserve Account Requirement for the Series
52 2016 Bond shall be zero.
2
1
2 Section 5. Approval of Sale of the Series 2016 Bond. The City hereby determines
3 that a negotiated sale of the Series 2016 Bond to the Lender is in the best interest of the City
4 and the citizens and inhabitants of the City by reason of the volatility of the market for tax
5 exempt bonds. Prior to the issuance of the Series 2016 Bond, the Lender shall file with the
6 City the disclosure statement required by Section 218.385, Florida Statutes, and the
7 competitive bidding for the Series 2016 Bond is hereby waived pursuant to the authority of
8 Section 218.385(1), Florida Statutes.
9
10 Section 6. Execution and Delivery of the Series 2016 Bond. The Authorized
11 Representative and the City Clerk are hereby authorized and directed on behalf of the City to
12 execute the Series 2016 Bond as provided in the Bond Resolution and such officials are
13 hereby authorized and directed upon the execution of the Series 2016 Bond in the form and
14 manner set forth herein and in the Bond Resolution to deliver the Series 2016 Bond in the
15 amount authorized to be issued hereunder to the Bond Registrar for authentication (upon the
16 satisfaction of the conditions of Section 209 of the Bond Resolution) and delivery to or upon
17 the order of the Lender upon payment of the purchase price set forth herein.
18
19 Section 7. Application of Proceeds. Proceeds from the sale of the Series 2016 Bond
20 shall be applied for the purposes described herein as provided in a certificate executed by the
21 Authorized Representative at or prior to the issuance of the Series 2016 Bond.
22
23 Section 8. Amendments to Bond Resolution Applicable to Series 2016 Bond.
24 Pursuant to the authority of Section 1001(a), (b), (c) and/or (d) of the Bond Resolution, and
25 with the consent of the Bondholders of the Series 2016 Bond (which shall be deemed given
26 by their acceptance of the ownership thereof), notwithstanding anything to the contrary
27 contained in the Bond Resolution:
28
29 (a) The City Clerk shall serve as Bond Registrar with respect to the Series 2016 Bond; and
30
31 (b) The provisions of Article III of the Bond Resolution regarding "redemption" do not apply
32 to the Series 2016 Bond, and the Series 2016 Bond shall be subject to prepayment as provided
33 therein.
34
35 Section 9. Compliance with Tax Requirements. The City hereby covenants and
36 agrees, for the benefit of the Bondholders from time to time of the Series 2016 Bond, to
37 comply with the requirements applicable to it contained in Section 103 and Part IV of
38 Subchapter B of Chapter 1 of the Internal Revenue Code of 1986, as amended (the "Code") to
39 the extent necessary to preserve the exclusion of interest on the Series 2016 Bond from gross
40 income for federal income tax purposes. Specifically, without intending to limit in any way
41 the generality of the foregoing,the City covenants and agrees:
42
43 (1) to pay to the United States of America from, to the extent legally available, the funds
44 and sources of revenues pledged to the payment of the Series 2016 Bond, and from any other
45 legally available funds, at the times and to the extent required pursuant to Section 148(f) of
46 the Code, the excess of the amount earned on all non-purpose investments (as defined in
47 Section 148(f)(6) of the Code) (other than investments attributed to an excess described in this
48 sentence) over the amount which would have been earned if such non purpose investments
49 were invested at a rate equal to the yield on the Series 2016 Bond, plus any income
50 attributable to such excess (the "Rebate Amount");
51
52 (2) to maintain and retain all records pertaining to and to be responsible for making or
3
1 causing to be made all determinations and calculations of the Rebate Amount and required
2 payments of the Rebate Amount as shall be necessary to comply with the Code;
3
4 (3) to refrain from using proceeds from the Series 2016 Bond in a manner that would
5 cause the Series 2016 Bond to be classified as a private activity bond under Section 141(a) of
6 the Code; and
7
8 (4) to take or refrain from taking any action that would cause the Series 2016 Bond to
9 become an arbitrage bond under Section 103(b) and Section 148 of the Code.
10
11 The City understands that the foregoing covenants impose continuing obligations on the City
12 to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of
13 the Code so long as such requirements are applicable.
14
15 . Unless otherwise specified in the Certificate as to Arbitrage and Other Tax Matters delivered
16 in connection with the issuance of the Series 2016 Bond, the City shall designate a certified
17 public accountant, Bond Counsel, or other professional consultant having the skill and
18 expertise necessary (the "Rebate Analyst") to make any and all calculations required pursuant
19 to this Section regarding the Rebate Amount. Such calculation shall be made in the manner
20 and at such times as specified in the Code. The City shall engage and shall be responsible for
21 paying the fees and expenses of the Rebate Analyst.
22
23 Section 10. Authorizations. The Authorized Representative, the City Clerk and the
24 Assistant City Manager-Administrative Services are hereby jointly and severally authorized to
25 do all acts and things required of them by this Resolution or the Bond Resolution, or desirable
26 or consistent with the requirements hereof or thereof,-for the full, punctual and complete
27 performance of all terms, covenants and agreements contained in the Series 2016 Bond, the
28 Bond Resolution and this Resolution, and to make any elections necessary or desirable in
29 connection with the arbitrage provisions of Section 148 of the Code.
30
31 Section 11. Business Days. In any case where the scheduled date for payment of
32 principal, premium, if any, or interest of the Series 2016 Bond is not a Business Day, then
33 such payment of principal, premium, if any, or interest need not be made on such date but
34 may be made on the next succeeding Business Day, provided, however, that interest shall
35 continue to accrue to and shall be payable on such succeeding Business Day.
36
37 Section 12. Provisions Required by the Lender.
38
39 (a) This Section 12(a) concerns the resolution of any controversies or claims between the City
40 and the Bondholder of the Series 2016 Bond, whether arising in contract, tort or by statute,
41 that arise out of or relate to the Bond Resolution or the Series 2016 Bond (collectively a
42 "Claim"). For the purposes of this provision only, the term "Bondholder" shall include any
43 parent corporation, subsidiary or affiliate of the Bondholder involved in the servicing,
44 management or administration of any obligation described or evidenced by the Bond
45 Resolution or the Series 2016 Bond. The City, and the Bondholder by acceptance of the Series
46 2016 Bond, irrevocably and voluntarily waive any right they may have to a trial by jury in
47 respect of any Claim.
48
49 (b) The City shall within 270 days after the end of each of its Fiscal Years furnish to the
50 Bondholder of the Series 2016 Bond the financial statements of the City for such Fiscal Year,
51 together with an audit report of an independent certified public accountant to the effect that
52 such audit has been conducted in accordance with generally accepted auditing standards and
4
1 stating whether such financial statements present fairly in all material respects the financial
2 position of the City and the results of its operations and cash flows for the periods covered by
3 the audit report, all in conformity with generally accepted accounting principles applied on a
4 consistent basis. The City shall also furnish to the Bondholder of the Series 2016 Bond, within
5 thirty days after the end of each Fiscal Year, the annual budget of the City, and within thirty
6 days after written request therefor such other information, other than any information required
7 or permitted by law to be confidential, respecting the affairs, condition and/or operations,
8 financial or otherwise, of the City, as the Bondholder may reasonably request.
9
10 (c) The City shall within ten Business Days after it acquires knowledge thereof, notify the
11 Bondholder in writing at the Payment Office of the Lender of the happening, occurrence, or
12 existence of any Event of Default and any event or condition which with the passage of time
13 or giving of notice, or both, would constitute an Event of Default, and shall provide the
14 Bondholder, with such written notice, a detailed statement by a responsible officer of the City
15 of all relevant facts and the action being taken or proposed to be taken by the City with
16 respect thereto. Regardless of the date of receipt of such notice by the Bondholder, such date
17 shall not in any way modify the date of occurrence of the actual Event of Default.
18
19 (d) It shall be an Event of Default if the City shall fail to observe and perform any covenant,
20 condition or agreement on its part to be observed or performed under this Resolution for a
21 period of thirty days after the earlier of(i) the date written notice specifying such failure and
22 requesting that it be remedied, is given to the City by the Bondholder or (ii) the date the City
23 was required to give notice of the event or condition to the Bondholder pursuant to this
24 Resolution, unless the Bondholder shall agree in writing to an extension of such time prior to
25 its expiration.
26
27 (e) Notwithstanding anything to the contrary in Section 801(i) of the Bond Resolution, the
28 failure of cure an Event of Default under Section 801(i) of the Bond Resolution within sixty
29 days of the occurrence thereof shall be an Event of Default.
30
31 (f) No modification or amendment of this Resolution or of any resolution amendatory hereof
32 or supplemental hereto may be made except with the written consent of the Bondholder. No
33 modification or amendment to Article V, Sections 701 and 706, Article VIII, Article X and
34 Article XI of the Bond Resolution(or the definitions referenced therein) may be made without
35 the written consent of the Bondholder.
36
37 Section 13. Resolution to Constitute a Contract. In consideration of the purchase and
38 acceptance of the Series 2016 Bond authorized to be issued hereunder by those who shall be
39 the holders thereof from time to time, this Resolution shall constitute a contract between the
40 City and such holders, and all covenants and agreements herein and in the Bond Resolution
41 set forth to be performed by the City shall be for the equal benefit and security of all of the
42 holders.
43
44 Section 14. No Implied Beneficiary. With the exception of any rights herein
45 expressly conferred, nothing expressed or mentioned in or to be implied from this Resolution
46 or the Series 2016 Bond is intended or shall be construed to give any person other than the
47 City, the Lender and the Bondholder, any legal or equitable right, remedy or claim under or
48 with respect to this Resolution or the Bond Resolution or any covenants, conditions, and
49 provisions herein contained; this Resolution and the Bond Resolution and all of the covenants,
50 conditions and provisions hereof and thereof being intended to be and being for the sole and
51 exclusive benefit of the City,the Lender and the Bondholder.
52
5
1 Section 15. Severability. If any provision of this Resolution shall be held or deemed
2 to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall
3 not effect any other provision herein or render any other provision (or such provision in any
4 other context) invalid, inoperative or unenforceable to any extent whatsoever.
5
6 Section 16. Repealer. All Resolutions or parts thereof of the City in conflict with the
7 provisions herein contained or, to the extent of any such conflict, hereby superseded and
8 repealed.
9
10 Section 17: This Resolution shall take effect immediately upon its passage.
11
12 PASSED AND ADOPTED this /.411 day of d6ieG,/ , 2016.
13 CITY OF BOYNTON BEACH, FLORIDA
14
15 YES NO
16
17 Mayor-Stephen B. Grant /.5-eid"
18
19 Vice Mayor-Mack McCray
20 ✓,
21 Commissioner-Justin Katz
22
23 Commissioner-Christina Romelus
24
25 Commissioner-Joe Casello
26
27
28 VOTE ��r
29 ATT ST:
30 A -,�-v
31a
32 Jud'tli Pyle, CMC,
33 City Clerk
34rr ; .-
35 (Corporate Seal) ' :
I' LL
N�a
6
TRANSCRIPT OF PROCEEDINGS
$23,000,000
CITY OF BOYNTON BEACH, FLORIDA
UTILITY SYSTEM REVENUE BOND, SERIES 2016
DATED NOVEMBER 18, 2016
LIST OF CLOSING DOCUMENTS
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. R96-121, adopted on August 26, 1996;
(f) Resolution No. R01-193, adopted on May 15, 2001;
(g) Resolution No. R05-133, adopted on August 2, 2005;
(h) Resolution No. R08-032, adopted on March 4, 2008;
(i) Resolution No. R12-001, adopted on January 3, 2012;
(j) Resolution No. R16-158, adopted on November 15, 2016.
2. Notice of Sale to the Division of Bond Finance.
3. General Certificate of the City.
4. Copy of Bond.
5. State of Florida Division of Bond Finance Forms BF-2003/2004-B.
6. Certificate of Purchaser.
7. Certificate of Mayor Regarding Application of Bond Proceeds.
8. Expansion Project Certificate.
9. Additional Bonds Certificate.
10. Certificate as to Arbitrage and Other Tax Matters.
11. Form 8038-G and Transmittal Letter.
12. Opinion of Counsel to the City.
13. Opinion of Bond Counsel.
14. Closing Memorandum/Funding Instructions.
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:
(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. R96-121, adopted on August 26, 1996;
(f) Resolution No. R01-193, adopted on May 15, 2001;
(g) Resolution No. R05-133, adopted on August 2, 2005;
(h) Resolution No. R08-032, adopted on March 4, 2006;
(i) Resolution No. R12-001, adopted on January 3, 2012; and
(j) Resolution No. R16-158, adopted on November 15, 2016.
IN_WITNESS WHEREOF, I have hereunto set my hand as of the 18th day of November,
2016.
By:
�ty Clerk
•
5869M/62. . ...
TABLE OF CONTENTS -
Page
• ARTICLE I
DEFINITIONS
Section 101 . Meaning of Words and Teras 3
Section 102. Rules of Construction 20
ARTICLE II
FORM, EXECUTION, DELIVERY
AND REGISTRATION OF BONDS
Section 201. Issuance of Bonds 20
Section 202 . Details of Bonds 21
Section 203 . Execution and Form of Bonds 24
Section 204 . Authentication of Bonds 48
Section 205 . Exchange of Bonds 48
Section 206. Negotiability, Registration and
Transfer of Bonds . 48
Sec'tion207.... Ownership 'of Bonds ` 49
Section 208. Authorization of Series 1992 Bonds 49
Section 209 . Additional Bonds 52
Section 210. Refunding Bonds 56
Section 211 . State Indebtedness 5.9
Section 212 . Other Indebtedness 60
Section 213 . Temporary Bonds 62
Section 214 . Mutilated,. Destroyed. or Lost Bonds 62
Section 215. Provisions with Respect to Book-Entry
System 62
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption Generally 63
Section 302 . Selection of Bonds for Redemption or
Purchase 63 '
Section 303 . Redemption Notice 63
Section 304 . Partial Redemption of Bonds 65
Section 305. Effect of Calling for Redemption 65
Section 306 . Cancellation of Bonds 65
Section 307. Bonds Called for Redemption Deemed Not
Outstanding 65
5869M/63
TABLE OF CONTENTS
(CONTINUED)
Page
•
ARTICLE IV .
CONSTRUCTION .
Section 401. Construction Fund 66.
Section 402 . Payments from Construction Fund 67
Section 403. Cost of Project and Improvements. 67
Section 404 . . Title to Properties Acquired 68
Section 405. Disposition of Construction Fund
Balance 68
ARTICLE V
REVENUES AND FUNDS
Section 501. Utility System 69
Section 502 . Rate Covenant 69
Section 503. Annual Budget 70
Section 504 . Enterprise Fund; Revenue Account 71
Section 505. Sinking Fund Account and Other.
Accounts 71
Section 506. Payment of Current Expenses 74
Section 507. Application of Moneys in Bond Service
Subaccount 74 .
Section 508. Application of Moneys.. in Redemption
Subaccount 74
Section 509 . . Application of Moneys in Reserve
Account 76
Section 510 . Application of Moneys in Rate.
Stabilization Account 77
Section 511. 'Application of Moneys in Subordinated
Indebtedness Account 78
Section 512. Application of Moneys in Renewal,
Replacement and Improvement Account. 78
Section 513. Application of Moneys in General
Reserve Account 79
Section 514. Application of Moneys in Sinking Fund '
Account ' 79
Section 515. Impact Fee Account 80
Section 516. Money Held in Trust 81
Section 517. Interest Rate Swaps; Interest 81
i 5869M/64
TABLE OF CONTENTS
(CONTINUED)
Page
•
ARTICLE VI
DEPOSITARIES OF MONEYS, SECURITY FOR DEPOSITS
AND INVESTMENT OF FUNDS
Section 601. Security for Deposits 82
Section 602 . Investment of Moneys 82
Section 603 . Valuation of Investment Obligations 84
Section 604 . Accounting for. Funds 84
Section 605. Tax Covenants .. 85
ARTICLE VII
PARTICULAR COVENANTS
Section 701. Payment of Principal, Interest and
Premium; Pledge of Pledged Revenues 85
Section 702. Construction of Project and
Improvements; Operation of
Utility System 85
Section 703 . Employment of Consulting Engineers 86
Section 704 . Employment of Accountant 86
Section 705. Insurance 87
Section 706. Use of Revenues and Impact Fees 88
Section 707 . Records, Accounts and Audits 88
Section 708 . Franchises 89
Section 709. Supervisory Personnel 89
Section 710. Separate Systems 89
Section 711. No Free Service 90
Section 712. Failure to Pay for Services. 90
Section 713. Enforcement of Collections 90
Section 714 . Sale or Other Disposition of the
Utility System 90
Section 715. Financial Reporting, Notice of
Default and Supplemental Notice 92
ARTICLE VIII '
REMEDIES
Section 801 . . Events of Default 93
Section 802. Acceleration of Maturities 94
Section 803 . Enforcement of Remedies 95
Section 804 . Pro Rata Application of Funds 96
Section 805 . Effect of Discontinuance of
3 Proceedings 98
5869M/65.
TABLE OF QQNTENTS
(CONTINUED)
Paae
Section 1316 . ,. Restrictions on Individual Bondholder
Actions 98 : ..
Section 807. No Remedy Exclusive 98
Section 808. Delay Not a Waiver 98
Section 809. Right to Enforce Payment of Bonds 99
ARTICLE IX
EXECUTION OF INSTRUMENTS BY BONDHOLDERS
AND PROOF OF OWNERSHIP OF BONDS
Section 901. Execution of Instruments by Bondholders
and Proof of Ownership of Bonds 99
Section 902 . Bond. Insurer: Deemed Holder. 99
ARTICLE X
SUPPLEMENTAL RESOLUTIONS
Section 1001. Supplemental Resolutions without
Bondholders' Consent ;:. 100
Section 1002 . Supplemental Resolutions with
Bondholders ' Consent 101
Section 1003 Supplemental Resolutions Part of
Resolution 102
ARTICLE XI .
DEFEASANCE
Section 1101. Cessation of Interests of
Bondholders: . 102
ARTICLE XII .
MISCELLANEOUS PROVISIONS
Section 1201. Effect of Covenants 105
Section 1202. Manner of Giving Notice 105
Section 1203 . Successorship, of ,Bond °Registrar 106
Section 1204 . Successorship of City Officers 106
Section 1205. 'Inconsistent :Resolutions 106
Section• 1206. Further Acts 106
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Page
Section 1207. Headings Not Part of Resolution 106
Section 1208 . City and Bondholders Alone Have Rights
Under Resolution 107
Section 1209 = Effect of Partial Invalidity 107
Section 1210 . Resolution Effective 107
RESOLUTION NO.g 92- Y
A RESOLUTION AUTHORIZINGTHE ISSUANCE OF
UTILITY SYSTEM, REVENUE BONDS, SERIES 1992,
OF _ THE CITY OF .BOYNTON- BEACH, FLORIDA, IN
;SUCH AMOUNTS AS THE CITY SHALL . HEREAFTER
DETERMINE BY SERIES RESOLUTION, FOR THE
PURPOSE OF PAYING AT THEIR MATURITIES OR
REDEEMING AT A SELF ECTID REDEMPTION DATE OR
DATES ALL OF THE OUTSTANDING WATER AND SEWER
REVENUE . BONDS OF THE' CITY AND FOR THE
PURPOSE OF PAYING A PORTIONOFTHE COST (AS
DEFINED HEREIN) OF IMPROVEMENTS TO THE
CITY'S UTILITY SYSTEM (AS DEFINED HEREIN) ;
PROVIDING FOR THE ISSUANCE, OF ADDITIONAL
REVENUE BONDS TO PAY ALL OR PART OF THE COST
OF ADDITIONAL IMPROVEMENTS TO THE CITY'S
UTILITY SYSTEM AND FOR REFUNDING. OUTSTANDING
REVENUE BONDS AND UTILITY DEBT; ' PROVIDING
FOR THE INCURRENCE OF OTHER TYPES OF
INDEBTEDNESS OF THE CITY FOR THE PURPOSES OF
THE . UTILITY SYSTEM PAYABLE FROM THE .NET
REVENUES OF THE UTILITY.. . SYSTEM; PROVIDING
FOR THE PAYMENT OF SUCH BONDS, OTHER UTILITY
DEBT . AND THE INTEREST THEREON - FROM NET
REVENUES . OF THE CITY'S UTILITY •SYSTEM AND
CERTAIN. OTHER AMOUNTS; . SETTING FORTH THE . -
RIGHTSAND REMEDIES OFTHEHOLDERS OF SUCH
BONDS AND OTHER INDEBTEDNESS; ` PROVIDING A . .
SEVERABILITY CLAUSE,' A ' REPEALER .PROVISION . "
AND AN EFFECTIVE DATE.
WHEREAS, the City of Boynton Beach, Florida (the "City") is
a political subdivision and public body politic and corporate in
Palm Beach County, Florida (the "County") , duly organized and
operating under the Constitutionand laws of . the State of
Florida (the "State") , including particularly Chapter166,'
Florida Statutes, as amended, and the Charter of the City
(together, the "Act") , and the City has the power and authority
to acquire, own, maintain and operate on ' a revenue-producing
basis water, sewerage and stormwater plants and systems and to
issue revenue bonds payable from and secured by a pledge of the
revenues to be derived from the operation ,thereof; and ,
WHEREAS, pursuant to Resolution No.. 85,-YYY, as amended and
supplemented, the City has heretofore issued and presently has
outstanding its Water and Sewer Utility Revenue Bonds, Series
1985,• andits• Water and Sewer Utility Revenue Bonds, Series 1990
(collectively, the "Prior Bonds") ; and
WHEREAS, under the authority granted by the Act, the City
is authorized to issue utility system revenue bonds to pay at
their respective maturities or to redeem at a selected
redemption date or dates all of the Prior Bonds; to pay the cost
of Improvements (as hereinafter- defined) to the Utility System
(as hereinafter defined) and to pledge for the payment of such
revenue bonds the Net Revenues of the Utility System, and to the
extent and in the manner hereinafter provided, the Impact Fees
(as hereinafter defined) and certainamounts in the funds
created hereby (all of such Net Revenues, Impact Fees and other -
amounts being referred to herein asthe "Pledged Revenues") ; and
WHEREAS, the Cityhas determined that it is in the best
interests of the City to issue bonds to provide funds, together
with other available funds, to pay at their respective
maturities or earlier redemption dates all of the Prior Bonds
for the principal purposes of adopting a new resolution that
will better provide for the operational and capital requirements
of the Utility System and of obtaining debt service savings for '
the City; and .
WHEREAS, certain improvements to the Utility System
consisting of the Project (as hereinafter defined) are necessary
and desirable for the furtherance of thehealth, safety and
welfare of theusers of the Utility System; and
WHEREAS, the City has determined to issue its Utility
System Revenue Bonds, Series 1992 (the "Series 1992 Bonds" )
payable solely from and secured by a pledge of the Pledged, .
Revenues, in such amounts as the. City shall hereafter- determine
by Series Resolution (as hereinafter defined) , for the purpose
of .paying, with other available- funds, at their . respective:
maturities or earlier redemption . all of the Prior Bonds , .
together with interest on such Prior Bonds to their maturity or
redemption and for the purpose of paying a portion of the Cost
(as hereinafter defined) of the Project; and
WHEREAS, the City has determined to provide in this
Resolution for authorizing the issuance hereafter of other
Utility System Revenue Bonds and other forms of indebtedness of
the City for the purpose of paying all or any part of the cost
of any other improvements, renewals and replacements of the
Utility System or any part thereof and suchextensions 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 or to refund
or refinance all or -a portion of the Bonds or any Seriesthereof
or other indebtedness of the City incurred with respect to the ' -
Utility System then outstanding, and to prescribe the terms and
conditions under which such Bonds and other indebtedness may be
authorized and issued;
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NOW THEREFORE, Be It Resolved by the City Council of the
City of Boynton Beach, Florida as follows:
ARTICLE I .
DEFINITTONS
Section 101. Mean .no_ of ' words and Terms . 'In addition to
wordsand terms elsewhere defined in this Resolution, the
following words and terms as used in this' Resolution shall . have ..
the following meaning, unless some other meaning is . plainly'
intended•
"Accountant" shall mean the independent certified public
accountant 'or firm of independent certified public accountants
which shall have a favorable reputation for skill and experience
in accounting matters at the time and during .the ' period employed
by the City under the provisions of Section 704 of this
Resolution to perform and carry out the duties imposed on the
Accountant by this Resolution.
"Accreted Value" shall mean, as of any date' 'of 'computation
with respect : to . any Capital Appreciation Bond, an amount equal
tothe principalamount 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 priorto 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.
"Additional Bonds". shall mean the Bonds issued at anytime
under the provisions of section 209 of this Resolution. '
"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 indebtednessand leases capitalized in accordance with.
generally ' acceptedaccounting , principles) incurred in accordance
with Section 212 of this Resolution.
"Amortization Requirements" shall mean the amountsrequired
to be deposited in the Redemption Subaccount for any .Series , of"
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Bondsfor . the--purpose of redeeming prior to their maturity and
paying at their maturity the Term Bonds of any Series issued
pursuanttothis Resolution, the specific amounts and times of
such deposits to be determined by the Commission in a Series
Resolution relating to such Series of Bond-s .
"Annual Budget" shall mean the Annual. Budget adopted
pursuant to section 503 of• this 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 notbe 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 Valueaccruesduring 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= orfunds
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
suchfund 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 liensof 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,
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and interest on . the Bonds '.issued ..hereunder ' by. `resolutionor
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. Fisc'al 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 principa-1 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.
"Bond Registrar"= shall mean, as to each Series of Bonds, a
financial institution with trust powers, either within or
without the . State of Florida,. designated as such . by the
Commission .as to such Series of Bonds, which shall. perform . such
functions as . Bond Registrar as to such Series of - Bonds as are
required by Article . II, of this Resolution.
"Bonds" shall mean collectively the Bonds issued under the
provisions of Article II of this 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 this Resolution.
"Capital , Appreciation Bond" ' shall' mean. any Bond or Bonds of
a Series issued under this Resolution as to which interest is
compounded periodically on each of the applicable periodic dates
designated for compounding in the Series ' Resolution , for such .
Bonds or the resolution awarding the same 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 or award resolution and which may be either
Serial Bonds or Term Bonds.
"Capital Appreciation and Income Bonds" shall mean any Bond
or Bonds, of 'a Series issued under this Resolution asto which
accruing interest is not payable prior to the , Interest
Commencement Date specifiedin the . Series Resolution for . such
Bonds or the resolution .awarding the same and the Appreciated
Value for. such Bonds is compounded periodically on certain dates
designated in such. Series Resolution or award resolution prior
to the Interest Commencement. Date for .such Capital . Appreciation
and Income Bonds and ' which.. may be. either Serial Bonds or. Term '. .
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, and shall
include the cost of purchasing and installing such equipment_ and
appurtemmnces as may be necessary to meet the demands... upon the : .
Utility System; Capital Expenditures shall also include the
acquisition of such lands and rights-of-way and such
engineering, legal and administrative expenses as may be
required in connection with the foregoing.
"City" shall mean the City of Boynton Beach, Florida .
"City Attorney" shall mean the City Attorney of the City,
his or her designated assistant or the officer succeeding to his
or her principal functions. .
"City Clerk" shall mean the City Clerk of the City or his
or herdesignee or the officer succeeding to his or her
principal functions.
"City Manager" shall mean the City Manager of the City or.
his or her designee or' the officer succeeding to his or her
principal functions.
"Code" shall mean the "Internal Revenue Code of 1986, as
amended fromtime totime, and : .the . Treasury Regulations
promulgated thereunder and under the Internal Revenue Code of
1954, as amended.
- "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 Section 405 of this
Resolution. .
"Construction Fund" shall mean the Utility System
Construction Fund, a special fund created and designated by
Section 401 of this Resolution.
"Consulting Engineers" shall mean one or morelicensed
professional engineers or firms of professional engineers, of .
nationallyy recognized standing, at the time employed by the City
under the provisions of Section 703. of this Resolution to
perform and 'carry .out the duties imposed on the Consulting :
Engineers by -thisResolution.
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"Convertible Bonds" ' shall mean Bonds issued under this
Resolution which are convertible, , at. the option of the City,
into a form, of Bonds- which are permitted by this 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 allitems of cost which are set
forth in Section 403 of this Resolution.
"Credit Facility" shall mean an irrevocable letter of
credit, policy of municipal bond insurance, guaranty, purchase
agreement, credit agreement, surety bond of 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 f acility 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 Expenses" shall mean the City's reasonable and
necessary current expenses of maintenance, repair and operation,
of the Utility 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 Utility System pursuant to the Annual
Budget,= any reasonable payments to pension or retirement funds
properly chargeable to' the Utility System, insurance premiums,
engineering expenses . relating ,.. to maintenance, repair' and
operation, .expenses, including engineeringexpenses incurred in
connection with the research and development of: improvements or
planned or possible improvementsto the Utility System, fees and
expenses of the Bond Registrar, legal and accounting expenses, -
any fees, fines, or penalties lawfully imposed on the Utility
System, any taxes which may be lawfully imposed on the Utility
System or its income or operations and reserves for such taxes,
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
this 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 orrepair, or any allowance for depreciation or
amortization (except that for purposes of Section 513(f) hereof
Current . Expenses. shall include depreciation) , or" any, deposits' or
transfers to the credit of the ' Sinking .Fund Account, the Reserve
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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 Sections 209 and 502 of
this Resolution, any City administrative expenses allocated to
the Utility System.
"Current Interest Bcnds" 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.
"Defaulted Interest" shall have the meaning attributed to
such term in Section 202 of this Resolution.
"Depositary" shall mean any financial institution duly
authorized by law to perform the functions required of the
Depositary hereunder, and designated by the Finance Director as
a depositary ofmoneys under the provisions of this Resolution.
"Enterprise Fund" shall mean the Utility System Enterprise
Fund, a special fund created and designated by Section 504 of
this Resolution.
"Escrow Agent", shall mean a financial institution, either .
- -- within or without - the State. of -Florida, designated as Escrow -
Agent in the Escrow Deposit Agreement , and lawfully empowered to
perform such functions as are required by such Agreement .
"Escrow Deposit Agreement" shall mean the Escrow. Deposit
Agreement , to be dated as of the dated date of the Series 1992
Bonds by and between the City and the Escrow Agent, pursuant to
which a portion of the proceeds of the Series 1992 Bonds,
together with other available funds of the City, shall be held, -
invested and applied by the Escrow Agent as provided in this
Resolution and the Escrow Deposit Agreement to the payment at
their respective maturities and redemption at the selected
redemption date or dates of allof the Prior Bonds.
"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 financial
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
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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 Septemberof the
following year, as the same may be amended from time to time to
conform ,to.:the fiscal year of. the City. -
"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 this Resolution.
"Government Obligations" shall mean any of the obligations:
described in clauses (i) , (ii) , (iii) , (v) , (vi) , (vii) and (ix)
of the definition of "Investment Obligations" inthisArticle T .
"Impact- Fee -Account" shall mean the . Tmpact Fee Account, a
special subaccount within the - Enterprise Fund created and
designated pursuant to Section: 515 of . this Resolution, the
moneys in which shall bepledgedand applied as set forth in
Section 515 of this Resolution.
"Impact Fees" shall mean all nonrefundable (exceptat 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 investmentearnings from the . investment of funds ' on •
-
deposit in the Impact Fee Account, but excluding those ..charges
imposed by the City onpersons• connecting to the Utility System
for the cost of physically connecting thereto, includingbut not
limited to the costs of excavation, plumbing, installation of
meters and landscaping.
"Improvements" shall mean 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, and shall include such land, structures and
facilities as may be authorized to be acquired or constructed by
the City under ' the provisions of State law and ' such
improvements,, renewals and replacements of such land, structures
and facilities of the Utility. .System :.and' - such extensions and
additions thereto as may be necessary or desirable ' for
continuous and efficient service to - ' 'the public, , `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
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distribution of water all to the extent the same constitute part
of the Utility System.
"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 or such Bonds shall be
payable semiannually, with the first such payment date beingthe
applicable Interest Payment Date immediately succeeding such
Interest Commencement Date.
"Interest Payment Date" shall mean _ the dates , for the
payment . of interest on a Series of Bonds as shallbe established
by the Series Resolution for such Series of Bonds. .
"Interest Rate Swap" shall mean an agreementin 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- may,
but is not required to, be determined by reference to anassumed
interest rate payable on the notional . amountin the period
specified in such agreement.
"Interim Bonds or Notes" shall mean bondsor 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 this 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 general obligations of, or obligations the
timely payment of the principal of and interest on which
are unconditionally guaranteed by, the United States of
America;
(ii) obligations issued orguaranteed by any
instrumentality or agency of the United States of America,
whether now existing or hereafter organized, including but
not Limited to those . of the Federal Financing Bank, the '. =
members of the Farm Credit System whether individually or
consolidated, . Federal Home Loan Banks, the Export--Import
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BankGovernment
. _.. . .. -_ . .. . . and the... :.:.:::....
, - National�� Mortgage � 'Association. .
Tennessee Valley Authority;
(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 proceeddirectly 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 ofthe 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
asshall be permitted by State law; ' -
(v) . . municipal obligations, the timely payment of the
principal of, interest on andredemption 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 isirrevocably
pledged to the payment of the principal of, interest on and;
redemption premium, if any, of such municipal obligations; '
(vi) obligations issued by any state of the United
States, which are ratedinone 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;
(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
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Protection Corporation, which agreement is- 'fully ' secured by
any one or more of the securities describedin (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 claimsby third
parties;
lix) 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 .f.acility, 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 isat the time
of providing such facility of sufficient credit quality to
entitle debt backed by its Liquidity Facility to be ratedinthe
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
andMoody'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
hisor her principal functions. '
"Net. Revenues" for any 'particular period shall mean the
amount of the excess of the Revenues forsuch period over the
Current Expenses payable from the Revenue Account for such
period.
"Optional Tender Bonds" shall mean the portion of a Series.
of Bonds issued under this Resolution, a feature_ of which is an
option on the part of the Holders of such Bonds to tender such
Bondsto the'. City, a trustee or other fiduciary for such Holders .
for, payment prior to. stated maturity.
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"Outstanding" shall mean, when usedwith 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 Section 307. or Section 1101 of this Resolution.
"Pledged Revenues" shall mean (i) the Net Revenues, (ii) to
the extent provided in Section 515 hereof, the ImpactFees and
(iii) to the extent provided herein other amounts in the funds
and accounts created hereby.
"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
Appreciated Value 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 theamount: of the Principal and Interest
Requirements for any Fiscal Year, the ;following rules shall
apply: .
(a) withrespect to Variable Rate Bonds, the interest
rate shall be assumed to' be the average rate of interest
for all Variable Rate Bonds for, the prior Fiscal Year or
portion thereof, or if there were no Variable Rate Bonds
Outstanding during such. prior Fiscal Year, then the initial
rate of interest . on such :Variable Rate Bonds; "average
rate" shall mean the rate determined by dividing the total
annualized amount of interest paid on Variable Rate Bonds
in any Fiscal Year dor- , portion thereof by the , average
principal amount of Variable Rate Bonds outstanding -during
such Fiscal Year or portion thereof;
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(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 hereunder;
(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 interestportions of the
Appreciated Value becoming due at maturity or by virtue of
an Amortization Requirement shall be included in the
calculations of accrued andunpaid interest and principal
requirements; .
(f) if interest on a Series of Bonds- is payable from
the proceeds of such Bonds or fromother 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;
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(g) Principal and Interest Requirements shall not
include the principal of, redemption premium, if any, and
interest on Subordinated Indebtedness ;
(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 (1) 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 basiscalculated 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 enterinto an. Interest, Rate Swap
then, if, to' the extent and in the mannerso 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
any period of time as being the amount required to be paid
by the City to the Bondholders on such, date orduring 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) .
"Prior. Bonds" shall mean, collectively, the City' s Water
and Sewer Utility Revenue Bonds, Series 1985 and Water and Sewer
Utility Revenue Bonds, Series 1990 .
-15- 5868M
"Project" shall mean the Improvements described in the
Series Resolution for the Series 1992 Bonds, as the same may be
modified or supplemented from time to time bytheCity.
"Rate Consultant" shall meana consultant or consulting
firm or corporation at. the time employed by the Cityunder the
provisions of Section 502 of this Pesolution to 'perform and
carry out=, the duties imposed on the Rate Consultant by this
Resolution.
"Rate Stabilization Account" shallmeanthe Utility System
Revenue Bonds Rate Stabilization Account, a special account
within the Enterprise Fund created and designated by Section 505
of this Resolution.
"Redemption Subaccount" shall mean the Redemption
Subaccount, a special subaccount within the Sinking Fund Account .
created and designated by Section 505 of this. Resolution.
"Refunding Bonds" shall mean the Bonds issued at any time
under the provisions of Section 210 of this Resolution.
"Regular Record Date" shall mean the 15th day (whether or
not a business day) of the month preceding any Interest Payment
Date; . provided, however, that a ' different Regular Record Date
may be provided for a Series of Bonds pursuant to the Series
Resolution with respect to such Series .
"Renewal, Replacement and Improvement Account" shall mean
the Utility System Renewal, Replacement . and Improvement Account,
a special account within the Enterprise Fund created and
designated by Section 505of this 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 section 505 of this Resolution,
including any subaccounts created therein as required by section
505 of this Resolution.
"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 Seriesshall not be less than
one-sixtieth '(1/60th) of the Reserve Account Requirement
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for such Series in each month until the amount on .deposit
in the. Reserve Account shallbe equal to the Reserve
Account Requirement for such Series; and
(ii) in the , event any deficiency is
created in the Reserve Account. for .any Seriesby a.
withdrawal or otherwise, the Reserve Account Deposit
Requitement for any Series shall be increased, beginning in
the month following the month in which such deficiency was
created, by anamount 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 Po/icyor 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 facilityto 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, Inca
"Reserve Account Letter of Credit" shall meanan
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.
"Reserve Account Requirement" shall mean (i)' with respect
to the Series 2992 Bonds the lesser . of (a) the Maximum Principal
and Interest Requirements for the Series 1992 Bonds, or ' (b) the
maximum amount allowed to be funded from Bond proceeds under. the
Code, and (ii) with respect to any: Series of Additional Bonds or
Refunding Bonds, such funding requirement for . the Reserve
Account, if any, as shall be established in the Series .
Resolution for such Series; provided, however, that for any
Series the City shall be permitted to provide- all or a portion
of the Reserve' Account Requirement by the execution and delivery
of., . a Reserve Account ' Insurance Policy or a , Reserve . Account '
-17- 5868M
Letter of Credit or other similar arrangement which, after- its
issuance and delivery . will .permit- the Finance Director to
receive the full amount covered by such arrangement without
further conditions, financial or otherwise.
"Revenue Account" shall mean the Utility System Revenue
Account, a special account within the. Enterprise Fund created
and eesignated by Section 504 of this Resolution.
"Revenues" shall mean all moneys received by the City in
connection with or .as . a result of its ownership or operation of
the Utility System, including the income derived by the City
from the sale of water produced, treated or distributed by, or
the collection, transmission, treatment or disposal of sewage or
stormwater runoff by the Utility System, any proceeds of use and
occupancy insurance on the Utility System or any part thereof,
payments made to the City under Interest Rate Swaps, income from
investments made under this Resolution, and amounts transferred
from the Rate Stabilization Account to the Revenue. Account
pursuant to Section 510 of this Resolution and any Assessments;
provided, however, Revenues shall not include (i) grants,
contributions or donations, (ii) investment income from
investments of moneys on deposit in the Construction Fund and
the Impact Fee Account, (iii) proceeds of insurance (except use
and occupancy insurance) and condemnation awards, (iv) moneys
held in any Arbitrage Rebate Funds created pursuant to Section
505 of this Resolution, (v) proceeds of sales of property
constituting a part of the Utility System, (vi) special
assessments other than any Assessments, (vii) the proceeds of
Bonds or other Utility Debt or (viii) Impact Fees .
"Separate System" shall mean water. facilities, _ sewer
facilities or water and sewer facilities, which' are not, on the
date of enactment of this. Resolution, a part of the Utility
System and which the Commission shall determine by resolution to
make a Separate System; provided, however, the Commission shall
not adopt a resolution designating facilities as a Separate
System unless the requirements therefor as set forth in Section
710 of this Resolution are met at the time of such designation.
"Serial Bonds" shall mean the Bonds of a Series which shall
be stated to mature in annual installments .
"Series" shall mean the Bonds delivered at any one time
under the provisions of Sections 208, 209 and 210 of this
Resolution.
"Series 1992 Bonds" shall mean the Bonds authorized to be
"issued pursuant to Section 208 of this Resolution.'
"Series Resolution" means the resolution of the Commission
that is required by Article II of this Resolution to be adopted '
prior to the issuance of any . Series of , Bonds under this
Resolution. .
-18- 5868M
"Short-Term Indebtedness" means all indebtedness incurred
or assumed by . the City with respect to the Utility System- for
any of the following:
(1) Payments of principal andinterest with
respect to, money borrowed for an originalterm, or
renewable at the, option of the City for a period from the
date -orijinally incurred, of one yearor 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 anddesignatedby section 505 of this
Resolution.
"Special Record . Date" shall mean a date fixed by the Bond
Registrar for the payment of Defaulted Interest pursuant : to
Section 202 of this Resolution.
"State" shallmean 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 ,ar,e 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 or
acquiring • Improvements Permitted to be financed with State.
Revolving Fund moneys under the Federal Clean Water Act.
"Subordinated . Indebtedness" shall mean bonds, notesor
other forms of indebtedness, thea payment of the principal,
premium, and interest of which are payable solely from moneys . -
which mayfrom time to . time be ondeposit in the Subordinated
Indebtedness Account under , this Resolutionand which is.
designated as Subordinated Indebtedness by the Commission in the
resolution authorizing the issuance of such Indebtedness.
-19- , 5858M
"Subordinated Indebtedness Account" shall mean'. the
Subordinated Indebtedness Account, a ' special account within the
Enterprise Fund created and designated by Section 505 of this
Resolution.
"Term Bonds" shall mean the Bonds of a Series so designated
in the Series Resolution for such Bonds.
"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
this Resolution.
"Variable Rate Bonds" shall mean any Bonds issued under
this Resolution the interest rate on which is not established at
the time of issuance at a single numerical rate.,
Section 102. Rules of Construction. Words of the
masculine gender shall be deemed and construed to , include
correlative words of the feminine and neuter genders . Unless .
the context shall otherwise indicate, the words "Bond, " "owner, "
"Holder" and "person" shallinclude the plural as well as .the
singular number, the word "person" shall mean, any . individual,
corporation, partnership, joint venture, association,
joint-stock company, , trust, unincorporated organization or
government or any agency or political subdivision thereof, and
the word "Holder" or "Bondholder" when , used herein with respect
to Bonds issued hereunder shall mean the Holder or registered
owner, as the case may be, of Bonds at the time issued and
outstanding hereunder. The word "may" shall mean "may, but
shall not be required to" and the word "including" shall mean
"including, without limitation. " .
ARTICLE II•
FORM, EXECUTION, DELIVERY
AND REGISTRATION OF BONDS
Section 201. Issuance of Bonds, For the purpose of
providing funds for paying all or part ,of the cost of refunding
the Prior Bonds and constructing the Project, Bonds of the City
-20- 5868N1_
•
may be: issued_ under and secured ' by :this Resolution" subject to
the conditions hereinafter provided, in Section 208 of this
Article. Bonds of the City may also be issued under and secured
by , this Resolution, subject to the conditions hereinafter.
;provided in Sections 209 and 210 of this Article, for the
purposes of paying the Cost 'of 'Improvements, refunding all or
any portion. of the Bonds of one or more Series 'issued bythe.
Cityunder the provisions o. ' this Resolution and paying the
principal, premium, if any, and interest on any Utility Debt .
The principal of and the interest on all such Bonds shallbe
payable solely from the Pledged Revenues and all ' 'of the
covenants, agreements and provisions of this Resolution shall be
for the benefit and security of all and singular the present and
future Holders of the Bonds so issued or to be issued, without
preference, priority or distinctionas to lien or otherwise,
:except as otherwise hereinafter. provided, of any one Bond over
any.. other Bond by reason of priority in the issue, sale or
negotiation thereof or otherwise.
Section 202. Details of Bonds. Each Series. of Bonds .
issued hereundershall be created bya different Series
Resolution. ' Except to the extent provided herein with respect
to 'the' Series 1992 Bonds, each Series Resolution . shall ( a)
determinethe details' of , the Bonds 'of such "Series, including,
among other. things, the maximum principal ' amount ' of such Series,
the date thereof, the method of payment of interest thereon, the
;maximum maturity thereof, the redemption provisions relating
thereto, including the Amortization Requirements for the Term
Bonds, if any, the Bond . Registrar- therefor, and whether the
Bonds of • such Series shall be'..:-issuable .in book : entry, or
certificated form, (b) define any. ,Improvements to : befinanced
withthe proceeds of such Series, (c) ' providefor the
application of the• proceeds of the Bonds to which. such Series
Resolution relates, ;_: (d) ' establish the Reserve Account
Requirement and Reserve. Account• Deposita Requirement for such
Series, and (e) set forth additional covenants and 'provisions
with respect to ' any Series required ' in connection with the
obtaining , of , a Credit Facility, a Reserve Account Insurance
Policy "or ,a Reserve Account Letter of Credit, including any
special provisions _ designed to . _ comply with repayment
requirements under reimbursement or repayment agreements with
the entities providing such credit enhancement facilities , and
such other matters as. the . Commission . shall determine; provided,
however, the. Commission may provide in . the Series Resolution
thatall matters set forth above except themaximum principal
amount of any- Series and the : definitionof any ' ,Improvements to
be ' financed .with the proceeds. of such Series may be determined
by the Commission in thea resolution awarding such Series to the
purchaser. thereof.
The .Bondsof each Series issued under the provisions of
this Article ' shall, 'be designated "City of Boynton Beach,
—21. 5868M
Florida, Utility . System Revenue , Bonds, Series or, such.
appropriate variation thereofas contained herein or 'in ' any .
Series Resolution in each case inserting an identifying Series
year, and if more than one Series are expected to be issued in a
single calendar- year, inserting an identifying Series letter in
addition . to the year. Except as, otherwise providedin the
Series Resolution relating to a Series of Bonds, the Bonds of
any Series are issuable in fully registered form without coupons
in denominations (either with respect to original principal
amountor principal amount payable at maturity) of $5, 000 or any
whole multiple thereof. Bonds shall be numbered consecutively
from R-1 upwards . Bonds of each Series shall be dated, shall
mature on such date or dates as permitted by law, shall bear
interest until their. payment at a rate or rates, including rates
which may vary, not exceeding the maximum rate then permittedby
law, such interest being payable and such Bonds being subject to
redemption prior to their respective maturities , all as provided
in the Series Resolution for such Series.
Unless otherwise provided in the Series Resolution pursuant
to which each Series of Bonds is issued, each Bond shall bear
interest from the Interest Payment Date next preceding the date
on which it is authenticated unless it is (a) authenticated upon
any Interest 'Payment Date in which event it shall bear interest
from such Interest Payment Date or (b) authenticated before the
first Interest Payment Date in which event it shall bear
interest from its date; provided, however, that if at the time
of authentication of any Bond interest is in default, such Bond
shall bear interest from the date to which. interest has been
paid; except for (i), Capital Appreciation Bonds, which shall
bear interest as described under the defined term "Accreted
Value," payable only upon redemption, acceleration or maturity
thereof and (ii) Capital Appreciation and Income Bonds, which
shall bear interest as 'described under the defined term
"Appreciated Value" payable on the amount due at maturity - but
only from and after the, Interest Commencement Date.
Both the principal of and the interest on the Bonds shall
be payable in any coin or currency of the United States of
America (or other coin or currency provided for in the Series
Resolution applicable to any Series) that is legal tender for.
the payment of public and private debts on the respective dates
of payment thereof. Each check or other transfer of funds
issued or made for the purpose .of payment of principal, premium,
if any, and/or interest ' on Bonds shall bear a CUSIP number
identifying, by issue and maturity, the Bonds to which .such
payment relates .
The principal ' of the Bonds 'shall be payable upon 'the
presentation and surrender of such. Bonds as the same shall
become due at the principal office of the Bond Registrar.
-22- 5868M
Unless. otherwise provided in the Series Resolution uti pursuant
to which each Series of Bonds is issued, any interest on any
Bond which is payable, and is punctually paid, or " for', .which
„
payment is duly provided, on any Interest Payment Date shall be
paid to the person in whose name . the Bond isregistered in the
registration books provided for .. in Section 206 of this .
Resolution (hereinafter, as used in this Section, the "Hoider") .
at the close of business on the Regular Record Date: The Bond
Registrar shall pay interest which is payable.' on the Bonds . by'.
check or draft mailed to the persons entitled thereto on the
Interest Payment Date; provided, however, that , if so provided
by . Series Resolution, each Holder of Bonds aggregating not, less ...
thane $1, 000 ,000 shall be entitled to the payment of such
interest by wire transfer . '
Unless- otherwise provided in the Series Resolution pursuant
to which each Series of. Bondsis issued, any interest. on any
Bond which is payable, but 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. Registrars 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 , ..
atthesame time the City shall depositor 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 priorto 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 Datefor the payment of
such Defaulted Interest which shall be not more . than' 15 nor less
than 10 days prior . to the date of the proposed payment , and not
less than 10 days after the. receipt by the. Bond Registrar of the
notice; ' of the proposed. payment. The. Bond , Registrar shall
promptly notify the City 'of, such.. Special Record. Date and, inthe.
name and at the expense of the City, shallcause notice of the
proposedpayment 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 asit appears in the
-23-
5668M
registration books _ provided for- in Section 206 of this
Resolution not less than. 10 days prior to such Special Record
Date. Notice of the. proposed payment of suchDefaultedInterest
and the Special Record Date therefor having been mailed, as
aforesaid, such Defaulted Interestshallbe 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 pursuantto 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.
Subject to the foregoing provisions of this section, each
Bond delivered under this Resolution upon transfer of or in
exchange for or in lieu of . any other Bond shall carry ' all the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Bond and each such Bond- shall bear
interest from. such date, so that neither gain nor loss in
interest shall result from any such transfer, exchange or
substitution.
Section 203. execution and Form of Bonds-. The Bonds shall
be signed by or bear the- facsimile signature . of the Mayor and
shall be signed by or bear the facsimile , signature of theCity
Clerk and the official ' seal of the City ' or a facsimile- thereof
shall be impressed or imprinted on the Bonds; provided, however,
that if required by State law at the time of such execution, the
Bonds shall be manually executed by . the Mayor. In case any
officer whose signature or a facsimile of whose signature shall
appear on any Bonds shall cease to be such officer before the
delivery of such Bonds, such signature or such facsimile shall
nevertheless 'be valid and sufficient for all purposes the same
as if such officer had remained , in office until such delivery
and also any Bond may bear the facsimile signatureof, or' may be
signed by, such persons as at the actual, time of the execution
of such Bond shall be the proper officers to execute such Bond
although at the date of such Bond such persons may not have been
such officers. The Bonds issued under the provisions of this .
Article, the certificate of authentication, the statement, of
validation, if any, the opinion, certification and the form of
assignment shall be, respectively, inthe following forms with
such appropriate variations, omissions -and insertions as may be
-24- 5868M
required or permitted by this Resolution or the Series
Resolution pursuant to which such Bonds are issued. All Bonds
shall be endorsed thereon with such legends or text as may be
necessary or appropriate to conform to any requirements of law
with respect thereto .
The forms of Bonds may be changed as specified in any..,...
Series Resolution to reflect appropriate provisions fcr
different types of Bonds authorized under this Resolution,
including , . without : limitation, provisions for Capital
Appreciation Bonds, Capital Appreciation and Income Bonds ,
Interim Bonds or Notes, Variable. Rate Bonds, Optional Tender
Bonds and. Convertible Bonds.
[Remainder- of page intentionally blank]
-25- 5868M
[FORM OF CURRENT INTEREST BOND]
[Face of Bond]
No. $ bop°
United States of America
State of Florida
City of Boynton. Beach
Utility System Revenue Bond
Series
Maturity Date Interest Rate Original Issue Date Cusip
REGISTERED HOLDER:
PRINCIPAL AMOUNT:
The City of Boynton Beach (herein called the, "City") , a
political subdivision and public body politic and corporate of
the State of Florida, duly organized and operating under the
constitution and ' laws of the State of Florida, is 'justly
indebted and for value received hereby promises to pay to the
registered holder shown above or to the registered assigns or
legal representative thereof on the date specified above (or
earlier as hereinafter referred to) , upon the presentation and
surrender hereof,' . at the principal office
of — , in . the City
of (the "Bond
Registrar") , the principal sum shown above, and to pay to the
registered owner hereof, by check ordraft mailed to the
registered owner at such registered owner ' s address as it
appears on thebond registration books of the City, or by wire
transfer to the ' registered owner of at least $1,000,000
principal amount of the Bonds, interest on such principal sum
from the date hereofor from the 1 or _ 1
next preceding the date of authentication to which interest
shall have been paid, unless such date of authentication is
a 1 or 1 to which interest shall have
been paid, in which case from such date, such interest to the .
maturity hereof . being payable on 1 and ' 1 in
-26- 5868M.
each year, commencing 1, at the rate per annum
specified. above [insert interest rate methodology] , until
payment of such principal sum. Theinterest. . sopayableand '
punctually paid, or duly providedfor, on any interest payment
date will be paid to the person in whosename thisbond is
registeredat the 'close of business on the 'Regular Record' Date
for such interest, which ?hall' be the 15th day (whether- or not
business day) of the calendar monthnext preceding such interest--
payment date. Any such interest- not so punctually paid or duly
provided for shall forthwith cease to be.. payable to the
registered holder on such Regular Record Date., and may be paid
to the person in whose name this bond is registered at the close
of, business on a Special Record Date for the payment of such
defaultedinterest to be fixedby, the Bond Registrar, notice ,
whereof being given to the holders not less than 10 days prior
to such Special Record Date, 'or may be paid at any time in any
other lawful manner as more fully provided in the hereinafter
mentioned Resolution under which this bond is ' issued. Such
payment of interest shall be by check mailed to the holder at
such holder's address as it appears on the bond registration
books maintained by the Bond Registrar.. All such payments shall
be made in such coin or currency of the United States of America
as at the time of payment is legal :tender for payment: of public
and private debts .
This bond shall not bedeemed to constitute an indebtedness
of the City within the meaning,- of any constitutional or
statutory provision or limitation and the City is not obligated
to pay the principal of, the. 'premium-, .if, any, or the interest on
this ' bond . except. : from . the special fundhereinafter mentioned,
and the faith and credit of the City are not pledged to the.
payment of the principal of, the premium, if any, or the
interest on .this bond. The issuance' of this bond shall not
directly, ' indirectly or contingentlyobligate, the City..to levy
or to pledge any taxes whatever therefor or to make any
appropriation for the payment of the principal of; thepremium,
if any, or the interest on this bond except as provided in the
hereinafter described Resolution.
ADDITIONAL PROVISIONS' OF THIS BOND . ARE SET FORTH ON THE
REVERSE HEREOF AND SHALL FOR ALL PURPOSES -HAVE ' THE SAME EFFECT
.AS IF SET FORTH HERE.
This bond shall .not ' be valid , or become obligatory for- any
purpose or be entitled to any benefit- or security under the
Resolution until this bond shall' have been authenticated by the
execution by the . Bond Registrar of,, the certificate of.
authentication endorsed hereon.
IN WITNESS WHEREOF, said City of Boynton Beach, by
resolution duly adopted by its. City Commission, has caused this
_2'7- 5868M
bond to be signed by [bear the facsimile signature of] its Mayor
and to be signed by [bear the facsimile signature of] its City
Clerk and [a facsimile of] the official seal of the City to be
imprinted hereon, all as of the day of
Mayor
[SEAL]
City Clerk
* *. * * * * *
CERTIFICATE OF AUTHEI3TICATION
This bond is one of the bonds of the series designated
herein and issued under the provisions of the within-mentioned
Resolution.
Bond Registrar
By:
Authorized signatory
Date of authentication:
* * * a * *
[Reverse Side of Bond]
This bond is one of a series of bonds designated "Utility
System Revenue Bonds, Series , issued by _ the City of
Boynton Beach, Florida (the "City" ) for the purpose of providing
funds, with any . other available funds,
for
and this bond is issued
under and pursuant to that certain resolution adopted by the
City Commission of the City on ' , .19 (the
"Bond Resolution") and that certain resolution adopted by the
City Commission in furtherance of the Bond Resolution on ,
19 (the . "Series Resolution" and, together with the Bond.
Resolution, the "Resolution") .
-28'- 5868M
The bonds of :.,this: series consist of bonds maturing
on 1 of the years.. to inclusive (the
"Serial Bonds") andof bonds maturing on 1
(the "Term Bonds") . The Term Bonds are subjectto mandatory
redemption at 100% of the principal amount thereof, plus accrued
interest, but without premium, on ; 1 of the
followingyears: andin the following amounts:
[Here insert Amortization Requirements]
The bonds of this series at the time outstanding which
mature after. 1, may be redeemed prior to their
respective maturities,, at the option of the City, from any,
moneys that may be made available for such ,purpose, either in
whole, on . any date not earlier than 1, , or in
part, in any order ofmaturity selected by the City, on any
interest payment date not earlier than __ ' 1, : , at the
following redemption dates and at the following redemption
prices (expressed as percentages of principal amount to be
redeemed) plus accrued interest to the redemption date as
follows:
Redemption Dates (Inclusive) Redemption price
1, to
1, to
1, and thereafter
If less than all of the bonds of any one maturity shall be
called for redemption, the particularbonds to be redeemed shall
be selected by lot as provided in the Resolution.
At least thirty (30) and not more than sixty (60) days
before the redemption date, of any bonds to be redeemed, whether.,
such redemption shall be in whole or in part., the City shall
cause a notice of such . redemption ' to be filed with 'the Bond
Registrar and mailed,. first class postageprepaid, toall
registeredowners of bonds to be redeemed in whole or in part at
their last addresses appearing upon the registration books of
the City, as of the date. 10 days prior to .thedate of mailing of
such notice of redemption. The failure of any bondholder to
receive such notice shall not affect the validity of - such
redemption of bonds so called for redemption, nor shall any
defect inthe giving of notice of redemption of any bond affect
the validity of the redemption of any other bond. On the date
fixed forredemption, notice having been given as aforesaid, the
bondsor portionsthereof so' called for redemption shall be due .
and payable at the redemption price provided for the redemption
-29- 5868M.
of such. bonds or portion thereof and, if moneys for payment of
such redemption price and the accrued interest are held by the'
Bond Registrar or an appropriate fiduciary institution acting as
escrow agent, as provided in the Resolution, interest on the
bondsor the portions thereof so called for redemption shall
cease to accrue.. If a portion of this bond shall be called for
redemption, a new bond or bonds in principal amount equal to the ,
.,nr.edeemed .portion hereof will be issued to the registered owner
hereof or his legalrepresentative upon the surrender hereof.
The holder of this bond shall have no right to enforce the
provisions of the Resolution, or to institute action to enforce
the covenants therein, or to take any action with respect to any
event of default under the Resolution, 'or to institute, appear
in or defend any suit or other proceeding with' respect thereto,
except as provided in the Resolution.
Modifications or alterations of the Resolution or of any '
resolution supplemental thereto may be made onlyto the extent
and in the circumstances permitted by the Resolution._
The -bonds are issuable as fully registered bonds in the
-denomination of $5, 000 or any whole multiple thereof. At .the
principal .. office of the Bond Registrar, in the . manner and
subject to certainconditions provided in the Resolution, bonds
may be exchanged for an equal aggregate principal amount of
bonds of the same maturity, or authorized denomination and
bearing interest at the same rate.
The 'Bond Registrar is required to keep at its principal
office the books of the City for the registration of and for the
registration of transfers of bonds . The transfer of, this bond
maybe registered only upon such books and as otherwise provided
in the Resolutionupon the surrender hereof to the Bond
Registrar together with an assignment duly executed by the
registered owner hereof or such 'registered owner's attorney or
legal representative in suchform as shall be satisfactory to
the Bond Registrar. 'Upon any such registration of transfer, the
Bond Registrar shall deliver in exchange for -this bond a new
bond or bonds, registered in the name of the transferee, of
authorized denominations, in an aggregate principal amount equal
to the unredeemed principal amount of this bond, of the same
maturity and bearing interestat the same rate.
The Bond Registrar shall not be required to exchange or '
register any transfer of this bond after ' this bond has been
selected for redemption.
This, bond is issued and the , Resolution was adopted under
and pursuant to the Charter of the . City and the laws of the
State of, Florida. The, Resolution provides for the creation of ."a
special account designated "Utility System Revenue Bonds Sinking
-30- 5868MI
Fund Account," which . fund, together with, certain other Pledged
Revenues' is pledged to and ' charged withthe ;payment.. of ' the'
principal of, premium, if any, ,. 'and°::;.the interest on all bonds
issued and outstanding under the Resolution, and the City has
covenanted in the Resolution todeposit- . to, the credit of said
special fund a sufficient amount of the_ Pledged Revenues (as
defined in the Resolution) of the City's Utility . System (as
defined in the Resolution) to , provide for_ the payment or thea'-
principal of, premium, . if any, and interest on the- bonds. issued
under the provisions of the Resolution as. ,the same shall become ,
due and to create a reserve for such purpose.
All ' acts, ' . conditions and things required by the . .
Constitution and laws of the State of .Florida and' the Charter,
ordinances and resolutions .of the City to happen, existand be
performed precedent to and in, the issuance of this bondhave
happened, exist and have been performed as 'so required.
* * * .
[If the Bonds of a series have , been validated pursuant
to Chapter 75, Florida Statutes , such Bonds shall have
endorsed. thereon ' a statement in substantially the .
following form.]
STATEMENT OF VALIDATION
This bond is oneof a Series of Bonds which were validated
by judgment of ` the Circuit Court fpr. Palm Beach County, .Florida
rendered on
* * * * * ' * '
OPINION CERTIFICATION
I HEREBY CERTIFY that the foregoing is. a true and correct
copy of, the legal opinion on the Bonds therein described'. which
was manually signed by _
and was dated as of the date of ,delivery of and payment for said
Bonds .
City Clerk. . � .
* * * * * * * ,
-31-. : , 5868M
ASSIGNMENT'. .'
FOR VALUE RECEIVED the undersigned hereby sells, assigns
and transfers unto
the within bond and all rights thereunder, and
hereby irrevocably constitutes and
appoints attorney to register the _
transfer. of . the i-ithin bond on the books kept for registration
thereof with full power of substitution in the premises .
Dated:
NOTICE: The signature to thisassignment
must correspond with the name as it
appears on the faceof the within bond in
every particular, without alteration or
enlargement or any change whatever. .
Signature Guaranteed:
NOTICE: Signatures must must be guaranteed, ..
by a member firm of the New York stock
Exchange or a commercial bank or a
trust company.
[FORM OF ABBREVIATIONS FOR BONDS]
The following abbreviations, when used in the inscription '
on the face of the within Bond, shall be construed as though they
were . written out in full according to applicable laws or
regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN ' - as joint tenants with the right ' of
survivorship and not as tenants in common"
UNIFORM TRANS MIN ACT - Custodian for
(Cost) (Minor).
under Uniform Transfers to Minors
Act
(State)
Additional abbreviations may also be used
though not in the above list.
-32- 5868M
[FORM OF CAPITAL.,APPRECIATION AND INCOME BOND]
[Face of. Bond]
No. $ 5000
United States of America :
State of Florida
City of Boynton Beach
Utility System Revenue Bond '
Series .
Maturity Date Interest Rate Original Issue Date Cusip
REGISTERED HOLDER:. .
PRINCIPAL AMOUNT:. $_...__:__ per, $5,000 Amount . Due at Maturity
AMOUNT DUE AT MATURITY: $
The City of Boynton Beach (herein called the "City") , a
political subdivision and public body politic and corporate of
theState of Florida, duly organized and operating under the.
Constitution and: laws of the. State of . Florida, is justly
indebted and for value received hereby promises to pay to the
registered holder shown above or to the, registered assigns or .
legal . representative thereof onthe' date specified above (or
earlier as hereinafter . referred to) , upon thepresentation and
surrender hereof, at , the principal ' office
of , , . in the City
of (the "Bond
Registrar") , " the Amount Due at Maturity (stated " above) ,.
constituting the Principal Amount (stated above) . per $5, 000
Amount Due_ at Maturity and interest thereon at the rate per
annum stated above from the Original Issue Date (stated ,above) ,
compounded" on each 1 and 1 during
the ' period from the .: Original 'Issue Date (stated above) "
to The City" further promises to 'pay. to the
registered .owner hereof°. by check or draft of , ' as
bond registrar (said and/or any bank or trust
company to become successor' bond registrar' being herein called
the "Bond Registrar, " made payable to the registered owner and
mailed tosuch registered owner at' the address shown on the
registration books of the City kept -for. that purpose at the
principal corporate 'trust office of the Bond Registrar at the
close of business on the . fifteenth; -day of the calendar month
-33- 5868M
preceding each interest payment date or the date on which the.
principal of this .. Bond is to be paid (the "RegularRecord
Date") , interest on the Amount Due at Maturity
from at the rate per annum stated
above [insert interest rate methodology] , payable on the first
days of _ and in each year (commencing
1, ) , ' until the City' s obligation with respect to the
payment of'` such Amount Due at Maturity shall be discharged. Any
interest not punctually paid on a Regular Record Date shall
forthwith cease to be payable to the registered owner on such
Regular Record Date and may be paid at the close of business on
a special record date for the payment of such defaulted interest
to be fixed by the Bond Registrar, notice whereof shall be given
not less than 10 days prior to such special record date to such
registered owners. Upon earlier redemption or other payment
prior to , as set forth on the
reverse hereof, payment shall be made at the Appreciated Value
as of the date of redemption or other payment of this Bond. The
"Appreciated Value" of this Bond shall mean (i) as ofany date
of computation up to and including, 1, , an
amount equal to the Principal Amount hereof plus the interest
accrued thereon to the 1 or 1 next
preceding the date of computation or the date of computation if
a 1 . or 1,...-. plus . if . such date of
computation shall not be a' 1 or 1,
a portion of the difference between the Appreciated Value as of
the immediately preceding . 1 or 1 (or
the Original Issue Date, if the date of computation is prior
to 1, 19 ) and the Appreciated Value as of the
immediately succeeding 1' or 1,
calculated based upon an 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 )
after 1, 19 the Amount Due at. Maturity. The
Appreciated Value per $5, 000 Amount Due at Maturity of this bond
on each 1 and 1 is set forth in a
table on the reverse hereof. . Upon redemption or other payment
subsequent to :1, 19and prior to the . Maturity Date
in ' accordance with the provisions set forth on' the reverse
hereof, payment of this Bond shall be made in an amount equal- to
the . Amount Due at Maturity plus any applicable premium: plus
accrued and unpaid interest on such Amount Due at Maturity.
All such payments shall be made in such coin or currency of
the United States of America as at the time of payment is legal
tender for payment of public and private debts.
This . bond shall not be deemed toconstitute an indebtedness
of the City within the meaning of any constitutional or
statutory provision or limitation and the City is not obligated
to pay the principal of, the premium, if any, or the interest on
this bond except from the special fund hereinafter 'mentioned,
-34- . 5868M
and the faith and credit of the City are . not pledged to the : ,
payment of the principal. : of, the '':'premium, if any, or the
interest 'on this bond. The issuance of this .bond shall not
directly, indirectly or contingently obligate the City to levy
or to pledge any taxes, whatever . therefor 'or. to make any
appropriation for the payment of the principal of:, the premium,
if any, or the. . interest on this bond. except, as provided in the
hereinafter described Resolution..
ADDITIONAL PROVISIONS OF THIS BOND ARE SET FORTH ON THE
REVERSE HEREOF AND SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT
AS IF SET,'.FORTH. HERE.
This "bond shall not be valid ot. become obligatory for any
purpose or be entitled to any benefit or security under . the
Resolution until, this bond shall have '.been: authenticated by the .'
execution by ' the Bond Registrar 'of the certificate- of
authentication endorsed hereon.
IN WITNESS WHEREOF, said- City of 'Boynton Beach, by
resolution duly adopted by its City Commission, has caused this
bond to be signed by. [bear the facsimile signature of] its Mayor
and to be signed by [bear the facsimile signature of] its city
Clerk and [a facsimile of] the official seal of the City to be
imprinted hereon, all as of the day of .
Mayor
City Clerk
CERTIFICATE OF. AUTHENTICATION
This bond is one of the bonds of the series ' designated
herein and 'issued under the provisions, of the within-mentioned,
Resolution.
Bond .Registrar
By:
Authorized Signatory . .
Date of authentication:.
-35- 5868M
[Reverse Side of Bond] ,
This bond is one of a series of bonds designated "Utility
System Revenue Bonds, Series " issued by the City of Boynton
Beach, Florida (the "City") for the purpose of providing funds,
with any other available funds,
for and this "
bond is issued under and pursuant to that certain resolution
adopted by the City Commission of the City on
19 . (the "Bond Resolution") and that certain resolution
adopted by the City Commission in furtherance of the Bond
Resolution on , 19 (the "Series Resolution" and,
together with the Bond Resolution, the "Resolution") .
The bonds of this series consist of bonds maturing
on 1 of the years to , inclusive (the
"Serial Bonds") and of bonds maturing on 1
(the "Term Bonds") . The 'Term Bonds are subject to mandatory
redemption at 100% of the principal amount thereof , plus accrued
interest, but without premium, on 1 of the
following years and in the following amounts:
[Here insert Amortization Requirements]
For the purposes of (i) receiving payment of the redemption
price if a Capital Appreciation and Income Bond is redeemed
prior to maturity, or (ii) receiving payment of a Capital
Appreciation and Income Bond if the principal. of all Bonds is
declared immediately due and payable under the provisions of the
Resolution, or (iii) computing the amount of the. Maximum Annual
Debt Service and . of Bonds held by the registeredowner of . a
Capital Appreciation and Income Bond in giving, to the City any
notice, consent, request or demand pursuant to the Resolution
for any purpose whatsoever, the principal amount of a Capital
Appreciation and Income Bond shall be deemed to be its
Appreciated Value. -
[Redemption Provisions]
If less than all of the bonds of any one maturity shall be
called for redemption, the particular bonds to be redeemed shall
be selected by lot as provided in the Resolution.
At least . thirty (30) but not more than sixty (60) days _
before the redemption date of any bonds to be redeemed, whether
such redemption be in whole or inpart, the City shall cause ' a
notice ofsuch redemption . to be filed with the Bond Registrar
and mailed, first class postage prepaid, . to all ' registered.
owners of bonds to be 'redeemedin whole or in part at their last
addresses appearing uponthe registration books of the City as
-36- - 5868M
of the date 10 days prior to the date of mailingof such notice
•
of redemption. The failure of anybondholder to receive such
notice shall not affect the validity of such redemption of bonds
so called for redemption, nor shall any defect in the giving of
notice of ',redemption of any , bond affect the validity of the
redemption of any other bond. On the date fixed for redemption,
notice having been given as aforesaid, the bonds or portions .
thereof so called for redemption shall be due and payable et the
redemption price provided for the redemption of such bonds or
portion thereof and, if moneys for payment of such redemption
price and the accrued interest are held by the Bond Registrar or
an appropriate fiduciary institution acting as escrow agent, as
provided in the Resolution, interest 'on the . bonds or the
portions thereof so called for redemption shall ' cease to.
accrue. If a portion of this bond shall be calledfor
redemption, a new bond or bonds in principalamount equal to the
unredeemed portion hereofwill be issued to, the registered owner
hereof or his legal representative upon the surrender hereof.
The holder of this bond shall have no' right to enforce the
provisions of the Resolution, or to institute action to enforce
the covenants therein, or to take any action with respect to any
event of default under the Resolution, or to institute, appear
in or defend .any suit . or other proceeding with respect. 'thereto,'
except as provided in the Resolution. ;
Modifications or alterations of the Resolution or , of any
Resolution supplemental thereto may be made only to the extent
and in the circumstances permitted by the Resolution.
The bonds are issuable as fully registered bonds of the
denomination of $5, 000' of Amount Due 'at Maturity orany whole
multiple thereof. At . the principal office" of the . Bond
Registrar, in the manner and subjectto certain conditions .
provided in the Resolution, bonds may, be exchanged for an equal
aggregate principal, amount of • bondsof the same maturity, or
authorized denomination and bearing interest at the same 'rate.
The Bond Registrar is required to keep at its principal
office the books of the City for the registration of and for the
registration of transfers of bonds . The transfer of thisbond '
may be registered only upon such books and as otherwise provided
in the Resolution upon the ' surrender hereof to . the Bond
Registrar together with an assignment duly executed by the
registered owner hereof or such registered owner ' s attorney or.
legal representative in such form. as shall besatisfactory to
the. Bond Registrar. Upon any such registration' of transfer, the ,.
Bond Registrar shall deliver in exchange for this. bond a new
bond or bonds, registered' in the name of the transferee, of
authorized denominations, in anaggregate principalamount equal
to the unredeemed principal amount of this bond,' of the same
maturity and bearing interest at the same rate.
-37- 5868M
The. Bond Registrar shall not be required to exchange_ or
register any . transfer of this bond after this bond has been
selected for redemption.
This bond is issued and the Resolution was adopted under
and pursuant to the Charter of the City and the laws of the
State of Florida. The Resolution provides for the creation of a _
special - `'account designated "Utility System Revenue Bonds Sinking
Fund Account, " which fund, together with certain other Pledged
Revenues, is pledged to and charged with the payment of the
principal of, premium, if any, and the interest on all bonds
issued and outstanding under the Resolution, and the City has
covenanted in the Resolution to deposit to the credit of said
special fund. a sufficient amount of the Pledged Revenues (as
defined in the Resolution) of the City's Utility System (as
definedin the Resolution) to provide for the payment of the
principal of, premium, if any, and interest on the bonds issued
under the provisions of the Resolution as the same shall become
due and to create a reserve for such purpose.
All acts , conditions and things required by the
constitution and laws of the State of Florida and the Charter ,
ordinances and resolutions of the City to happen, exist and be
performed., precedent to and in the issuance . of , this bond . have.
happened, exist and have been performed as so required.
* * * * * * *'
[If the Bonds of a Series have been validated pursuant
to Chapter 75, Florida Statutes, such Bonds shall have
endorsed thereon a statement in substantially the
following form. ]
STATEMENT OF VALIDATION
This bond is one of a Series, of. Bonds which were validated
by judgment of the Circuit Court for Palm Beach County rendered
on
* * * * * *
OPINION CERTIFICATION
I HEREBY CERTIFY that the foregoing is a true and correct
copy of the legal opinion on the Bonds therein describedwhich
was manually signed by
and was dated as of the date of delivery of and payment for said .
Bonds. -
City Clerk
-38•- 5868M
* * *
FOR VALUE RECEIVED the undersigned hereby sells, assigns
and transfers unto
the within bond and all rights thereunder, and hereby .
irrevocably constitutes and appoints _
attorney to register the transfer of . the within,. bond on the ... ;`
books kept for registration thereof with full .. power of
substitution in the premises.
Dated:
NOTICE: The , signature 'to. this
assignment mustcorrespond with the
name as it appears on the face of the
within bond 'in every particular.,
without' alteration or enlargement 'or.
any change whatever.
Signature Guaranteed:
NOTICE: Signatures must be guaranteed
by a member firm of : the New York Stock
Exchange or a commercial bank' or a
trust company.
(FORM OF ABBREVIATIONS FOR BONDS]
The following abbreviations, when . used 'in the inscription.
on the face of the within Bond, shall be construed as though
they were written out in full according to ' applicable laws or
regulations,
TEN CON. as tenants in common.
TEN ENT - as tenants by the entireties
JT TEN as , joint tenants with the rightof
survivorship and not as tenants in common ,
UNIFORM TRANS MIN ACT Custodian
(Cult) (Minor)
under Uniform Transfers to Minors '
Act _
(State)
Additional abbreviations may also be used.
though not in the above hist.
-39- 5868M
APPRECIATED VALUE PER $5, 000 AMOUNT DUE AT MATURITY
Appreciated Appreciated
Date Value Date Value
and thereafter $5, 000. 00
[Remainder of page intentionally blank]
•
•
—40-- 5858M
[FORM OF CAPITAL APPRECIATION BOND]
[Face. of Bond]
No. $ ,000
United States of America
State of Florida
City of Boynton Beach
Utility System Revenue Bond
Series
Maturity Date Interest Rate Original Issue Date Cusip
REGISTERED HOLDER:
PRINCIPAL 'AMOUNT': $ .._ per $5,00.0 Amount Due at Maturity
AMOUNT DUE AT MATURITY: $
The City of Boynton Beach (herein called the "City") , a
political subdivision : and public body politic and, corporate of ,
the State of Florida, duly organized and operating under the
Constitution and laws of the; State of . Florida, is justly
indebted and. ' for ' value received hereby :promises ' to pay- to' the:
registered holder shown above or the registered assigns or
legal representative thereof on the date specified above (or
earlier as hereinafter referred to) upon the presentation and
surrender hereof at the principal office of
, in the City of
(the "Bond Registrar") , the Amount Due at Maturity (stated
above) and interest . thereon at the rate per annum (stated above)
from the Original ' .Issue. Date (stated above) compounded
on and thereafter on and , of
each year until paymentof said maturity amount_ or, upon earlier
redemption or acceleration as = set forth. on the reverse side. .
hereof, payment to be made at the Accreted Value as of the date
of redemption or acceleration. The "Accreted Value" of this
bond shall mean, as of any, date of computation, an amount equal
to the principal amounthereof plus the compounded interest .
accrued hereon to the I or 1 next preceding
the date of computation- or' the date of -:computation if
a 1 or ' . ' ' 1 plus, ' if such date of
computation shall not be a 1 o 1 a
portion of the difference between the Accreted Value as of the .
-41- 5868M . .
immediately preceding
or and the ' Accreted Value as of the
immediately succeeding or
calculated based upon 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. The Accreted Value per .
$5,000 maturity amount of this Bond on each 1 ,
and '" 1 is set forth in a table on the reverse
hereof. The table should- not be construed as a representation
as to the market value of this bond at any time in' the future
but may bear a relationship to the amount of tax-exempt interest
and taxable gain with respect to this Bond if sold prior to
maturity. All such payments shall be made in such coin or
currency of . the United States of America as at the time of
payment is legal tender for payment of public and private debts .
This bond shall not be deemed to constitute an indebtedness
of the City within the meaning of any constitutional or
statutory provision or limitationand the City is not obligated
to pay the principal of, the premium, if any, or the interest on
this bond except from the special fund hereinafter mentioned,
and the faith and credit of the City are not pledged to the
payment of the principal of, the premium, if any, or the
interest onthisbond. The issuance ofthis bond shall not
directly, indirectly or contingently obligate the City ' to ' levy
or to pledge any taxes whatever therefor or to makeany
appropriation for the payment of the principal of, the premium,
if any, or the interest on this bond except as provided in the
hereinafter described Resolution.
ADDITIONAL PROVISIONS OF THISBONDARE SET FORTH ONTHE
REVERSE HEREOF AND SHALL FOR ALL PURPOSES. HAVE THE SAME EFFECT
AS: IF SET FORTH HERE.
This bond shall not be valid or become obligatory for any
purpose or be entitled to any benefit or security under the
Resolution until this bond shall have been authenticated by the
execution 'by the Bond Registrar of the certificate of
authentication endorsed hereon.
IN WITNESS WHEREOF, , said City of ' Boynton Beach, by
resolution duly adopted by its City Commission, has caused this
bond to be signed by [bear the facsimile signature of] its Mayor
andto be signed by [bear the facsimile signature of] its City
Clerk and [a facsimile of] the official seal of the City to be
imprinted hereon, all as of the day of , .
Mayor
[SEAL]
City Clerk
-42- 586BM
CERTIFICATE OF :AUTHENTICATION
This bond is one of the bonds of the series designated .
herein and issued under the provisions of the within-mentioned
Resolution.
Bond Registrar;
By:
Authorized Signatory
Date of authentication:
* * * * * * -
[Reverse Side of Bond]
This bond is one of a series .of bonds designated "Utility
System Revenue: Bonds, Series . " issued by the City of Boynton
Beach, Florida, (the. "City") for the purpose of . providing funds,
with any other available funds,
for and this bond
is issued under and pursuant to that certain resolution adopted
by the City Commission of the City on , 19 "
(the "Bond Resolution") and that certain resolution adopted by
the City - Commission in furtherance of the Bond Resolution.
on 19�_ (the "Series Resolution" and, together with
the Bond Resolution, the "Resolution") .
The bonds of '. this series consist . of bonds.-. maturing
on 1 of theyears to. , inclusive (the
Serial Bonds"), and of . bonds maturing on , 1
(the "Term. Bonds") . The Term. Bonds are subject to mandatory
redemption 'at 100% or the principal amount thereof, plus accrued
interest, but without premium, on 1 of the
following years and in the following amounts
;[Here insert Amortization Requirements]
The Capital Appreciation Bonds, of which this bond is one,
pay principal and compound accrued interest only at. maturity or
upon prior redemption or acceleration. For the, purposes of (i)
receiving payment ' of the redemption price if a Capital _
Appreciation Bond is redeemed prior to maturity, or (ii)
receiving payment of ' a . Capital 'Appreciation Bond if the
principal of all Series .'' " ', Bonds ' is declared immediatelydue,
and payable- following an event of default, asspecified in the
Resolution, 'or - (iii) .computing the amount of Series. , Bonds
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held by: the registered owner of a Capital AppreciationBond in
giving , to ' the City any' notice, consent, request, or demand
pursuant.' to: . the Resolution . for . any purpose whatsoever, or, (iv)
'computing the amount of Series Bonds to be redeemed and
• the selection of Series Bond to be redeemed, the
principal amount- of a Capital Appreciation Bond shallbe deemed
to be its "Accreted Value, ". which consists of principal plus .
accrued inte rc.st and is more fully defined in the Resolution.
[Redemption Provisions]
If less than all of the bonds of any one maturity shall be
called for redemption, the particular bonds to be redeemed shall
be, selected by lot as provided in the Resolution.
At least thirty (30) but not more than sixty ( 60) days
before the redemption date of any bonds to be redeemed, whether
such redemption be in whole or in part, the� City shallcause a
notice of such redemption to be filed with the Bond Registrar
and mailed, first class postage prepaid, to all registered
owners of bonds to be redeemed in whole or in part at their last
addresses appearing upon the registration books of the City as
of the date 10 days prior to the date of mailing of such notice
_of redemption. The failure of , any bondholder to receive such
noticeshall not affect the validity of such redemption 'of bonds
so called for redemption, nor shall any defect inthegiving of
notice of redemption of any bond affect the validity of the
redemption of any other bond. On the date fixed for redemption,
notice having been given as aforesaid, the bonds or : portions
thereof socalled for redemption shall be due and payable at the
redemption price provided for the redemption of such bonds or
portion thereof ' and,, if moneys for payment of such redemption
price and the accrued interest are held by the Bond Registrar or'
an appropriate fiduciary institution acting as escrow agent, as
provided in the Resolution, interest on the bonds : or the
portions thereof so called for redemption shall cease to
accrue. If a portion of this bond shall be calledfor
redemption, a new bond or bonds in principal amount equal to the
unredeemed portion hereof will be issued to the registered owner
hereof or his legal representative upon the surrender hereof.
The holder of this bond shall have no right to enforce the
provisions of the Resolution, or to institute action to enforce
the covenants therein, or to take any action with respect. to any
event of default under theResolution, or to institute, appear
in or defend any suit or other proceeding with respect thereto,
except as provided in the Resolution.
Modifications 'or alterations of the Resolution or ofany
resolution supplemental thereto- may be made only to the extent
and in the circumstances permitted by the Resolution.
-44- 5868M
The
e
fully registered
f
denomination on bonds
$5,00OSuor�any swhole multiple thereof.
of the
At the
principal office of. the, Bond Registrar, in the ,.manner . and
subject to certain cond-i,tions provided in the Resolution, bonds .
may be exchanged for anequal aggregate :principal amount of .
bonds of the same maturity, of authorized denomination and
bearing interest at the same rate. _
The Bond Registrar is required to keep at its principal
office the books of the City for the registration of and for the
registration of transfers of bonds. The transfer of thisbond
may be registered only upon such books and as otherwise provided
in the Resolution upon the surrender hereof . to the Bond
Registrar togetherwith an assignment duly executed by ' the
registered owner hereof 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
Bond Registrar shall deliver in exchangefor this bond a new
bond or bonds, registered in the name of the transferee, of
authorized denominations, in an aggregate principal' amount equal
to the unredeemed principal amount of this bond, of the same
maturity and bearing interest at the same rate.
The Bond Registrar shall not be required to exchange or
register any transfer of this bond after this bond has been
selected for. redemption.
This bond is issued and the Resolution was adopted under
and pursuant to the Charter of the City andthe ' laws of the
State of Florida. The Resolution provides for the creation of a
special account designated"Utility System Revenue Bonds Sinking
Fund Account, " which fund, 'together ..with . certain other .Pledged
Revenues, ,is pledgedtoand charged with the payment 'of the
principal.. of, premium,,. if : any, and' the interest .on all bonds
issued and outstanding under the Resolution, and the City has
covenanted in the Resolution to deposit to the credit. of said
special fund a sufficient amount of the Pledged Revenues (as
defined 'in the Resolution) . of the City's Utility System (as
defined 'in the 'Resolution) to provide for the payment of the
principal of, premium, if any, andinterest on the bonds issued
under the provisions of the Resolution as .the same shall become
due and to create a reserve for such' purpose.
All acts , conditions and things . , required by the
Constitution and laws of the State of 'Florida' 'and the ordinances
and resolutions of the City to happen, exist and be performed
precedent' to, and - in the issuance ' of this bond have happened,
exist and have been performed as so required.
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[If the Bonds of a Series have been validated pursuant
to Chapter 75, Florida Statutes, such Bonds shall have
endorsed thereon a statement in substantially the
following form. ]
STATEMENT OF VALIDATION
This-bond is one of a Series of Bonds which were validated
by judgment of the Circuit Court for Palm Beach County rendered
on
* * * * * * *
OPINION CERTIFICATION
I HEREBY CERTIFY that the foregoing is a true and correct
copy of the legal opinion on theBondstherein described which
was manually signed by
and was dated as of the date of delivery of and payment for said
Bonds.
City Clerk �^
* * * * *
ASSIGNMENT
FOR VALUE- RECEIVED the undersigned hereby sells, assigns
and transfers unto _the
within bond and all rights thereunder, and hereby irrevocably
constitutes and appoints - attorney to
register the transfer of .the within bond on the books kept for
registration thereof with full power of substitution in the
premises.
Dated:
NOTICE: The signature to this
assignment must correspond withthe
name as it appears on the ' face, of the
within bond in every particular,
without alteration or enlargement or
any change whatever:
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5868M
Signature, Guaranteed:
NOTICE: Signatures must be guaranteed
by a :member firm of the New. York Stock
Exchange or a commercial : bank ora
trust company. .
[FORM OF ABBREVIATIONS FOR BONDS]
The following abbreviations, when used in the inscription
on , the , face. of the within Bond, shall be construed .as though
they were written out in full according to applicable laws or
regulations
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN as joint tenants with the right of
survivorship and not as tenants in common
UNIFORM TRANS;MIN ACT - Custodian
(Cult) . (Minor)
under Uniform Transfers, to Minors
Act
(state)
Additional abbreviations may also be used.
though not in the above lista
* * *' * * * *
ACCRETED VALUE FOR $5,000 MATURITY AMOUNT
Accreted Accreted
Date . Value' ' Pate Value__
Section 204 . Authentication of Bonds . Only such of the
Bondsas shall have endorsed thereon a ' certificate of
authentication substantially in the form set forth above, duly
executed by the Bond. Registrar, shall be entitled to any benefit
or security under this Resolution. No Bond shall be valid or
obligatory for any purpose unless and untilsuch certificate of -
authentication shall have been duly executed, by the Bond
Registrar-, and such certificate of the Bond registrar upon any
such Bond shall be conclusive evidence that such Bond has been
duly authenticated and delivered under this Resolution and the
Series Resolution relating to such Bond. The certificate of
authentication on any Bond shall be deemed tohave been duly
executed if signed by an authorized officer of the Bond
Registrar, but it shall not be necessary that the same officer
sign the certificate of authentication on all of the Bonds that
may be issued hereunder at any one time. ..
Section 205. odds. 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 attorneyor legal
representative in such form as shall be satisfactory to. the Bond
Registrar, may, at the option of the owner thereof, be exchanged
for, an equal. .. aggregate . principal ,amount of . Bonds of the. . same
Series and maturity, of any denomination or denominations
authorized by this Resolution 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.
Section 206 . Nepati bility. .Reg tration and Transfer o€'
Bond§. The Bond Registrar shall keep books for the registration
of and for the registration of transfer of Bonds as provided in
this 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. this Resolution. All Bonds surrendered .
in any such exchange or registration of transfer shall' forthwith
-•48- - - 5869M
be cancelled by the Bond . Registrar.. 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 charge required tobe 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
r,gistering the transfer of Bonds under the, provisions of this..
Resolution. Neither the Citynor the Bond . Registrar shall be
required to make any such exchange or registration of transfer
of Bonds of a Series during the fifteen (15) daysimmediately
preceding thedateof mailing of notice of redemption of Bonds
of such Series, or totransfer or exchange any Bond or any
portion thereof that has been selectedfor redemption.
Section 207. Ownership of Bonds The person in whose.. name
a Bond shall be registered shall be deemed aridregarded asthe,
absolute owner thereof for all purposes, and the interest on any
such Bond shallbe paid only to or upon the order ofthe
registered owner . thereof orsuch registered owner ' s ' legal
representative. All such payments shall be valid and effectual
to satisfy and discharge the liability upon such Bond including
the premium, if any, and interest thereon to .the .extent . of the
sum or sums so paid.
" Section 208. ` .. Authorization of Series.. 1992 Bonds. . There
shall be initially issued at one time, under and secured by this
Resolution, a Series of revenue bonds of the City each of which
shall bear the designation "City of Boynton Beach, Florida, .
Utility System Revenue Bonds, Series 1992. " The .. Series 1992
Bonds shall be issued for the purpose of providing, funds,
together with any other available funds, (a) for paying at their
respective 'maturities or redeeming at a selected redemption date .
or dates (as specified in the Escrow Deposit Agreement) ,
together, with interest thereon until " their' paymentor redemption.
and any redemption premium,' allof the , PriorBonds, (b) for.
makinga deposit to the Reserve Account, in. an 'amount to be
provided pursuant to a . Series Resolution adopted prior to the
issuance of the Series 1992 Bonds, (c) for making a deposit to
the credit of a special accountor. accounts in the Construction
Fund, in an amount to be determined, pursuant to a Series
Resolution adopted prior ' to the issuance of the Series 1992
Bonds for the purpose of paying interest on the Series 1992,
Bonds for thea period of time specified in such . Series
Resolution, - (d) for paying 'a'' portion of the _Cost" .of the Project ,
and (e) for paying the costs of issuing. the Series 1992 Bonds .
The Series . Resolution specified : .above may provide that the
deposits specified in clauses (b) and (c) shall not bemade or
that other arrangements shall be made for satisfying such
obligations.
The Series 1992 Bonds shall be issued , insuch aggregate
principal' amount, shall be dated, shall be stated " to mature
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(subject to the right of prior redemption as hereinafter set.
forth) on such date or dates, in such year or years. as Permitted
by law, shall bear interest at such rate or rates, fixed or
variable, payable on such dates, shall have such optional tender
features, shall have such Credit Facility, shall have such Bond
Registrar, the Term Bonds of such series shall have such
Amortization Requirements and may be made redeemable at such
times and- prices (subject to the provisions of Article III of
this Resolution) , may be in the form of Current Interest Bonds,
Capital Appreciation Bonds, Capital Appreciation and Income
Bonds or any combination thereof, all as may be provided by the
Series Resolution.
Eachof the Series 1992 Bends, shall be executed
substantially in the form and manner hereinabove set forth and
shallbe deposited with the . Bond Registrar for authentication
and delivery, but prior to or simultaneously with the delivery
of the Series 1992 Bonds by the Bond Registrar there shall be
filed with the City the following :
(a) a copy, certified by the City Clerk, ' of this
Resolution; .
(b.). . .a . copy, . certified by . the City' .Clerk, ,., of the . .
"Series , Resolution authorizing the execution of .the Escrow
Deposit Agreement, providing for the dispositionof moneys held
by the Cityunder the resolutions pursuant to which the Prior
Bonds were issued, awarding the Series 1992 Bonds, specifying
the interestrateof each Series 1992 Bond and directing the
delivery of such Series 1992 Bonds to or upon the order of the
purchasers therein named upon payment of the purchase price
therein set forth;
(c) an , executed counterpart of the Escrow Deposit
Agreement;
(d) a copy, certified by the City Clerk, of the
resolution of theCommission irrevocably calling for redemption
that portion, if any, of the Prior Bonds to be redeemed at the
option of the City;
(e) an opinion of the City Attorney that the issuance
of said Series 1992 Bonds has been duly authorized and that all
conditions precedent to the delivery of such Bonds- have been
fulfilled; :
(f) thereport of . a firm of independent certified
public accountants, of favorable national reputation for 'skill
and experience in verifying the mathematical sufficiency and
yield calculations in refunding transactions, stating their
conclusions with respect to (i) the mathematical: computationsof
the adequacy of the maturing principal of and interest on the
-50 5869M
investments made with a portion of the proceeds of`° the : Series =
1992 Bonds and any other available. :moneys pursuantto the Escrow
Deposit Agreement for the payment of the principal of and
interest on the - Prior Bonds and (ii) the ' .mathematical
computations of the actuarial yield on such investments;
an opinion of Bond Counsel to the effect that the
interest on the Series 1992 Bonds is excluded from grossincome
or federal income tax purposes ; and
(h) A signed copy of a certificate of the Consulting
Engineers as to the percentage of the principalamount of such
Series of Bonds allocable to Expansion Projects.
When the documents mentioned in clauses (a). to (h) ,
inclusive, of this Section shall have been filed ' with ' the City
and when the Series ' 2992 Bonds shall have beenexecuted by, the
City and 'authenticated by. the Bond Registrar as , required by this
Resolution, the Bond Registrar shall deliver said Bonds at one
time to or upon the order of the purchasers named in the. Series .
Resolution mentionedin clause (b) of this Section, but only .
upon payment to the. Finance Director of the purchase price of
said Bonds. The Finance Director shall be entitled to 'rely upon . .
such Series Resolution as to all matters stated therein.
The proceeds (including accrued interest and any premium)
of said Bonds shall be applied by the Finance Director as
follows:
(1) the amount received as accrued interest on the
Bonds and any premium shall be deposited to the credit of the
Bond Service Subaccount;
(2); an amount estimated by the Finance_ Director tobe
sufficient for thepurpose shall be credited to a special
account and applied to the payment of the expenses of issuing
the Bonds, including, but not limited to, financial advisory,
accounting and legal fees, fees of, the Consulting Engineers,
rating agency fees, printing costs, initial Escrow Agent's and
Bond Registrar's fees and expenses, bond insurance' premiums,- and
any other miscellaneous expenses relating to the issuance of the
Bonds;
(3) either the amount which will equal the Reserve
Account Requirement on the Series 1992 Bonds shall be deposited
to the credit of the Reserve Account', or. an - amount` equal to any
required premium orfee asshall be necessary to acquire a
Reserver Account Insurance Policy :or Reserve. .Account Letter of,
Credit or other similar arrangement to insure that anamount
equal to. the Reserve Account Requirement will be unconditionally
available to the Finance Director for the purposes of the
Reserve Account: will be paid to the entity providing such
Reserve Account Insurance Policy- or Reserve Account Letter' of
Credit or other similar. arrangement;
-51- 5869M
(4) the amount, determined by the Finance Director,
in reliance on the report in clause (f) of this Section, to. be
sufficient for such purpose, shall be deposited with the Escrow
Agent and applied pursuant .to the Escrow Deposit Agreement to
the payment at maturity and redemption at a selected redemption
date or dates of all of the Prior Bonds, together with any
applicable. redemption premium and interest to accrue on much
Prior Bonds until their payment at maturity or redemption; and
(5) the balance shall be deposited to the credit of a
special account in the Construction Fund hereby established and
designated the "Series 1992 Project Construction Account" for
application to the payment of the Cost of the Project'.
Simultaneously with the delivery of the Series. 1992 Bonds,
the Finance Director shall transfer moneys in the several funds
and accounts under the resolutions pursuant to which the Prior
Bonds were issued in such manner as provided in the Series
Resolution mentioned in clause (b) of this section.
Section 209. ,additional Bonds . In addition to the Bonds
authorized under the provisions of Section 208 of this Article,
Additional Bonds of the City may be issued under and secured by
this Resolution, on a parity as to thepledge of the Pledged
Revenues" With the Bonds' theretofore' issued under Sections 208, . .
209 and 210 of this Resolution and secured by this Resolution
and then outstanding, subject to the conditions hereinafter
provided in this Section, from time to time for the purpose of
paying all or any part of the Cost of constructing oracquiring
any Improvements or for paying all or any portion of the
principal, premium, and interest on any Utility Debt .
Before any Additional Bonds shall be issued under the
provisions of this section the Commission shall adopt a Series
Resolution authorizing the issuanceof such Additional Bonds,
fixing the amount and the details thereof (including the Reserve
Account . Requirement therefor) , and either describing in brief
and general terms the Improvements' to be constructed; or
acquired, or the Utility Debt to be refinanced. The Additional
Bonds of each Series issued under the provisions of this. Section
shall be dated, shall be stated to mature (subject to the right
of prior redemption as hereinafter set forth) on such date or.
dates, in such year or years as permitted by law, shall bear
interest at such rate or rates , fixed or variable, shall have
such Optional Tender features and Liquidity Facilities and
Credit Facilities, shall have such Bond Registrar, and any Term
Bonds of such Series shall have such Amortization Requirements,
and may be made redeemable at such times and prices (subject to
the provisions of Article III of this Resolution) , all as may be
provided by the Series Resolution for such Additional Bonds.
Except as to any differences in the maturities thereof or the
rate or rates of interest or the provisions for redemption, such
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5869M
Additional Bonds shall be " on a
p'ari'ty as•�. to the pledge of
Pledged" Revenues with and shall be entitled to the same benefits
and security under this Resolution as all other Bonds issued
under Sections 208, 209 and 210 of this Resolution. Such
Additional Bonds shall be executed.. in the form and manner
hereinabove set forth, with such changes as may be necessary or
appropriate "to conform 'to the p'ovisions" of the resolution
authorizing the issuance of such Additional Bonds and the Series .
Resolution therefor, and shall be - deposited with the Bond
Registrar for authentication and delivery, but, before such
Additional Bonds shall be delivered by the Bond Registrar, there
shall be filed with the City the following : '
(a) a copy, certified ' by the City Clerk, of the
Series Resolution for such Series of Additional Bonds,,,
(b) a .copy, certified by the, City Clerk, of the
resolution, if other than the SeriesResolution for such Series
of Additional' Bonds., adopted by the Commissionawarding.. such
Additional Bonds, specifying the interest rate or rates for such
Additional Bonds, or the initial interest ' rateif such
Additional Bonds bear interest at a variable rate and directing
the delivery. of such Additional Bonds to or upon the order of
the .,purchasers therein named- upon payment sof the purchase Price, •
therein set forth,.
(c) a written statement or report of the Finance
Director, Consulting Engineers, , the Accountant , or the Rate
Consultant demonstrating with respect to Additional Bonds being'
issued .to provide funds to pay the Cost of a• Project . 'that , the
requirements of either (i) , (ii) or (iii) are satisfied, or with
respect to Additional Bonds issued to pay debt -service on
Utility Debt, demonstrating that the requirements of (ii) or .
(iii). below are satisfied: (i) the percentage derived by
dividing the Net Revenues projected for the Utility System for
the Fiscal. Yearfollowing 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 hereinafterpermitted in the ' next succeeding
paragraph of this Section, 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) 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%) (they period during which Net
Revenues are determined for purposes of this clause .(c). being
referredto hereinafter as the "Measurement Period") , or (iii) .
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the percentage- 'derived by dividing the Net Revenues for the
Measurement Period by the maximum amount of Principal and
Interest Requirements for the then current Fiscal Year or any of
the five Fiscal Yearsnext succeeding the current Fiscal Year,
including the Principal and Interest Requirements with respect
to the Additional Bonds then to be delivered, is not less than
one hundred ten percent (110%) ;
(d) if, in connection with such Series of Additional
Bonds there shall be filed with the City the written statement
or report specified in (c) (i) above, there shall also be filed
with the City a written statement or report of the Consulting
Engineer, the Accountant or the Rate Consultant setting forth
the projected Net Revenues 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; '
(e) an opinion of . the - City Attorney that the issuance,
of such Additional Bonds has been duly authorized and that all
conditions precedent to the delivery of such Additional Bonds
have been fulfilled;
(f) a, .certificate of the finance Director tothe
effect that' no :event of default , as defined in Section - 801 of
this Resolution, and no event which with the passage of time,
the giving of notice or both would become an event of default
has occurred within the twelve (12) consecutive calendar months
prior to the date of such certificate and is continuing, or, if
any such event or event of default has occurred and. is
continuing, that the issuance of such Series of Additional Bonds.
will cure the same; and
(g) a certificate of the Consulting Engineers as to
the percentage of the principal amount of such Additional Bonds
which are properly allocable to Expansion Projects.
In calculating Net Revenues for purposes of clause (c) of
this Section 209, 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 Utility System,
the Net Revenues for the Measurement Period may be adjusted to
show the Net Revenues which would have been derived from the
Utility., System in such' Measurement Period as if such increased
rates, fees, rentals or other charges for the services of the
Utility 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
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derivedfrom the, .Utility ; System during,' the Measurement ' Period
may be increasedby addition to the Net Revenues for the
Measurement Period of the Net Revenues which would have been
derived from said existing water system, sewer systemor
stormwater system ifsuchexisting water system, sewer system or
stormwater system had been a part of the Utility System during
the Measurement Period'. Forthe purposes of this p'aragraph, 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, sever system or stormwater system
from the gross revenues of said existing water system, sewer
system or stormwater system in the same manner provided in this
Resolution for the determination of Net Revenues, and adjusted
in each case to reflect municipalownership 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 Utility 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 a 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 Utility System and pledged for the Bonds
in the same manner as other Net Revenues of the Utility System.
(4) if.. the City covenants to levy Assessments ' or
Impact' Fees . against property to ' be benefitted by the
Improvements (whichlevy 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 for application with
respect to such Additional Bonds as permitted under clause
"FIRST" of Section . 515, then the Net Revenues during the
Measurement Period may be increasedby an amount equal to one
hundred per .centum (100%) of the amount which. the Consulting
Engineer estimates willbereceived 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 bethe 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:
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.(5) Should the City be constructing or acquiring
additions, extensions or Improvements to the Utility 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 pursuant to clause (d) above 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.When the documents mentioned above in this Section shall
have been. filed 'with the City and when the Additional Bonds
described in the resolutions mentioned in clauses (a) and (b) of
this Section shall have been executed by the City and
authenticated by the Bond Registrar asrequired by this
Resolution, the Bond Registrar shall deliver such Additional
Bonds at one time to or upon the order of the purchasers named
in the. Series Resolution mentioned in said clause (c) , ' but - only
upon payment to.. the Finance .. Director of-. ,the.. purchaseprice of
such Additional Bonds . TheFinance Director shall be entitled
to rely upon such resolutions as to all matters stated therein.
The proceeds (excluding accrued interest and any premium)
of Additional Bonds issued to finance the Cost of Improvements
shall be paid to the City for deposit with one or.. more
Depositaries to the credit, of a . special account in the
' Construction Fund appropriately designated and for application
to the payment of the Cost of such Improvements, including the
amount, if any, determined by the Commission to be deposited to
the credit of the Reserve Account for such Bonds. All of the
provisions of Article IV of this Resolution which relate to the
Project and the Construction Fund shall apply to such
Improvements and such specialaccount to the extent that such
provisions may be applicable. The proceeds of Additional Bonds
issued to refinance Utility Debt shall be applied to such
purpose as provided in the applicable Series Resolution. The.
amount received' as accrued interest upon the original issuance
and delivery of any such Bonds and any premium on such Bonds
shall be deposited to the credit of the Bond Service Subaccount
for application to the first interest due on such Bonds.
Section .210. Refunding Bonds. ' Refunding Bonds - may be
issued under and secured by this Resolution, subjectto the
conditions hereinafter provided in this Section, from time to
time forthe 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
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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 expenses
incurred or to be incurred ' in' connection-with such :refunding ,.
' ' Befoe any Series of Refunding Bonds shall be issued under .
-- the provisions 'of this Section the Commission shall adopt a -
Series Resolution authorizing the issuance of " such • Refunding -
Bonds, .fixing the amount and details thereof-, describing .the
Bonds to be refunded and setting forth the determination of . the
Commission that such refunding is in the best interests of the
City' and the users of the Utility System and stating the reasons
for such determination. Such Refunding Bonds shall be dated,
shall be stated, to mature (subject. to the right of "prior-'
redemption as .hereinafter, set forth) on: such .date or dates, ' in
such year or years permitted bylaw, shall bear interest at
- such rate or rates, fixed or variable, shall have such Optional
Tender features and such . Liquidity . Facilities '- and Credit '
. Facilities, shall have. such Bond Registrar, and. , any • Term Bonds
of such Series shall have such Amortization Requirements and may
be made redeemable at such times and prices (subject to the
provisions of Article:- 'III of this Resolution) , all . as .. may.' be . •
provided by the Series - Resolution .for such Refunding Bonds : _ • -
' 'Except . as to any differences in ' the maturities thereof or the -
rate or rates of interest or the provisions for redemption', 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 :this Resolution as all other Bonds issued under ' .
Sections 208, 209 and, .210 of this , Resolution. -Such Refunding .
Bonds shall be executed' substantially in the -form ' and manner
hereinabove set forth, with such changes as. may be necessary or -
appropriate to ' conform to "the . provisions of the resolution'
. authorizing the issuance of such 'Refunding• Bonds and the Series
Resolution therefor, ' and shall be deposited - with . the Bond .
Registrar for authentication and delivery, but prior:. to or
simultaneously with the delivery of such Refunding Bonds by the . "
Bond Registrar, there shall be filed with the City the following:
' (a) a copy,, certified, by the City : Clerk, of . the
Series Resolution"with respect to- Such Refunding Bonds;
(b) a copy, certified by . the ' City' Clerk, of the.
resolution adopted by the Commission, awarding, such Refunding
Bonds, specifying .the interest rate or rates for such Refunding. ...
. Bonds, or the initial rate if: such Refunding - Bonds bear interest.. •
at a variable rate, determining the disposition of the moneys on : .
deposit in the "Sinking Fund. Account and, any' other ..funds and
accounts on account of the Bonds to be' refunded,' 'and directing. -
the' delivery , of such' Refunding Bonds to' 'or upon - the ' ord"er- of the -
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purchasers therein named upon payment of the purchase price_ .
therein set' 'forth';
(c) an opinion of Bond Counsel to the effect that
upon the issuance of such Refunding Bonds and the application of
the proceeds thereof, the Bonds to be refunded will no longer be ,
deemed to be Outstanding under this Resolution and that the
issuance 'bf the Refunding Bonds will not adversely affect the
exclusion of interest on any Bonds then Outstanding from gross
income for federal income' tax purposes;
(d) an opinion of the City Attorney that the issuance
of such Refunding Bonds has been duly authorized and that all
conditions precedent to the delivery of such . Refunding Bonds
havebeen fulfilled;
(e) such documents as shall be required by the
Finance Director to show that provision has been duly made in
accordance with the provisions of this Resolution forthe
payment or redemption _ or combination of such payment and
redemption of all of the Bonds to be refunded; and
(f) either (i) a certificate of the Finance Director
that the is.suance.. of the. Refunding Bonds " .will not ..result in an
increase' in the-' average annual Principal and Intere's't
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 certificates required by clauses (c) , (d) and
(f) or section 209 of this Resolution. :
When the documents mentioned above in this Section shall
have been filed with the City Clerk and when the Refunding Bonds
described in the resolutions mentioned in clauses (a) and (b) of
this Section ' shall have been executed by the City and
authenticated by the Bond Registrar as required by . this
Resolution, the Bond Registrar shall deliver such' Refunding
Bonds at one time to or upon the order of the purchasers named
in the resolution mentioned in said clause (b) , but only upon
payment to the Finance Director of the purchase price of such
Refunding Bonds. The Finance Director' shall be entitled to rely
upon such resolutions as to all matters stated therein.
Simultaneously' with the delivery of such Refunding Bonds,
the Finance Director shall withdraw, if so provided in the
Series Resolution or the resolution mentions in clause (b) of
this Section 210, from the appropriate subaccounts of the
Sinking Fund Account an amount equal to the amount on deposit
therein on account of the principal of, redemption premium, if
any, and theinterest on the Bonds , .to berefunded and from the
Reserve Account an amount equal to the amount on deposit therein
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on . account of the .Bonds . to. ;be refunded, and apply the amount so
withdrawn in accordance with the:'"` Series .Resolutionor the
resolution mentioned in clause (c) of this Section 210. The. .
total amount so withdrawn, if so provided in the Series
Resolution or the resolution mentioned" in clause (c) of this
Section 210, the proceeds of such Refunding Bonds (including
accrued,interest and any premium) and any other moneys provided
for such 'purpose, shall be appliel by the Finance Director as
follows:
(1) the accrued interest received as part of the
proceeds of . such Refunding Bonds shall be deposited to the.`.
credit of a special subaccount in the Bond Service Subaccount
for application to the first interest due on such Refunding
Bonds;
(2) an amount which, , togethr ' with any income which
shall be derived from the investment of such amount pursuant to'
this clause (2) and any other available funds, shall be
sufficient to pay the principal of and redemptionpremium, if
any, and the interest on the Bonds to be refunded hereunder,
either at maturity or a selected redemptiondate or dates or
combination of such payment and redemption, shall be 'deposited
by. the Finance Director . to the credit of a special fund,
appropriately' designated,' to be held in trust by , an escrow
agent, for thesole and exclusive purpose of paying such
principal, redemption premium, if any,, and interest; ` and moneys
held for . the credit of such fund shall, as nearly as may be
practicable and reasonable, ' be invested and reinvested by "such.,
escrow agent at the direction of the Finance Director in
Government Obligations which shall': mature, or which shall be
subject to, redemption:, by the holder thereof at the option of.:.
such holder, not later than the respective dates when the moneys
held . for 'the credit of such fund will be required ' for the
purposes intended;
(3) such amount shall be' applied to, , or setaside
for , the payment of the' expenses' incident to such refunding as
shall be specified in the Series Resolution relating to such
Refunding Bonds; and
(4) any balanceof, such proceeds "shall be deposited
to the credit of, the Revenue Account:,
Section 211. $tate Indebtedness , In addition to the Bonds
authorized pursuant to the provisions, of Section , 208, "209 and
210 and to the extent permitted by the laws of the United States
and of the State 'from, time to timein effect,'' the City may incur.
State Revolving Fund Indebtedness and State Pollution Control
Indebtedness without limit as to amount so long" as such debt .
constitutes' Additional 'Bonds under Section" 209' of. this
Resolution or Utility Debt under Section 212 of . this• Resolution.
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Section 212. Other Indebtedness . To the extent permitted
by the laws of the State. of Florida from time to time 'ineffect,
the City may issue Bonds and may incur other forms of
indebtedness related to the Utility System, as follows :
(a) . The . City may incur Short-Term Indebtedness,
payable_ op 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 issued
hereunder, provided that such Convertible Bonds are issued under
Section209 or 210 of this Resolution and such Convertible Bonds
comply with the tests of. such Sections 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 Bonds contained in Section 209 or 210 of
this Resolution, 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 nationalbasis 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 Section 209 hereof, 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 upon
compliance with the 'tests for the issuance of Bonds contained. in
Sections 209 or 210 of this Resolution using for 'the purpose of
demonstrating compliance with such tests 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
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the UtilitySystem with the Bonds issued . - y...- .
.. . .,., hereunder ' i f,....but only
if, the following conditions are complied with:
(1) The City must satisfy the requirements set
forth in Section 209 or 210 of this 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 this
Resolutionto the 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.. this
Resolutionor their representative so that the interests of such
holders and the Holders of Bonds issued under this Resolution"
shall be equally and ratably protected. '
(3) The City shall duly authorize the issuance
or incurrence of such Alternative Parity Debt.
Upon satisfaction of the' foregoing conditions ' the " Finance
Director shall certify in writing that the proposed indebtedness :.
satisfies the conditions set forth in this' Resolution to be
deemed Alternative Parity Debt, and, upon such -certification,'
such indebtedness shall be so deemed.
(g) The City may enter into Liquidity Facilities and
Credit . Facilities to the extent that the Series of Bonds or
portion thereof which is supported by such Credit Facilities is
incurred in compliance with the provisions of this Article II .
(h) Nothing in this Resolution shall prohibit the
City fromentering into Interest Rate Swaps.
Upon the issuance of Alternative Parity Debt or Short-Term
Indebtedness, notwithstandingthe provisions of Section 505
hereof, Net Revenues may be applied (on a parity basis with the
application of such revenues under Section 505 hereof) as
required under the ordinance or resolution authorizing the
issuance of such Alternative Parity Debt or Short--Term
Indebtedness ., The Cityshall take such actions " (including
amending or supplementing this Resolution and any other
collateral agreement or document) and execute, deliver, file and
record such instruments of security as may be necessary or
appropriate to "grant. or to otherwise secure for the, holders of
the 'Alternative. Parity 'Debt or Short-Term Indebtedness a lien on
the Net Revenues of the Utility" System on a . parity with that of
all other: holders of Alternative Parity 'Debt and Short-Term
Indebtedness and Holders of Bonds .
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Section 213. , Temporary Bonds . Until the definitive Bonds .
of any - Series are ready for delivery, there may be executed by
the . City :. and authenticated by the Bond Registrar, and the City
may deliver, in lieu of definitive Bonds and subject to the same
limitations and conditions except as to identifying numbers , .
temporary:. printed, engraved, lithographed or typewritten Bonds
in the denomination of Five Thousand. Dollars ($5,000) or any
whole inu3�iple.. thereof, substantially of the tenor hereinabove
setforth, in fully registered form without coupons, and with
appropriate omissions, insertions and variations as may be
required. The City shall cause the definitive Bonds to be
prepared and to be executed, endorsed and delivered to the . Bond
Registrar, and the Bond Registrar upon presentation of any
temporary Bond shall cancelthe same and authenticate and
deliver, in exchange therefor, at the place designated by the
Holder, without expense to the Holder, a definitive Bond or
Bonds of the same Series and in the same aggregate principal
amount, maturing on the same date and bearing interest at the
same rate as the temporary Bond surrendered. Until so
exchanged, the temporary Bonds shall in all respects, including
the privilege of registration and registration of transfer if so
provided, be entitled to the same benefit of this Resolution as
the definitive Bonds to the issued and authenticated hereunder,
and interest on . such temporary Bonds and notation of such
payment ' shall -be' endorsed thereon.
Section 214 . Mutilated, Destroyed or Lost Bonds . In case,
any Bonds secured hereby shall become mutilated or be destroyed
or lost, the City may cause to beexecuted, and the Bond
Registrar my 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 andcharges of the City and the Bond Registrar in
connection therewith and, in thecase 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.
Section . 215 . ' Provisions . with Respect to Book-Entry
System. The provisions of this Article contained in Sections
202 to 207, inclusive, may be 'changed or varied with respect to
any . Series of Bonds issued under this Article in any Series
Resolution applicable to such Series of Bonds for the purposes
of (1) complying with the requirements of any automated
depository and clearinghouse for securities transactions and (2)
effectuating any book--entry-only registration and payment system.
Appropriate officers and officials of the. City are hereby
authorized to enter into agreements with The Depository Trust
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y ,and other. depository y
Company p trust '.companies, -;..including but not
limited to agreements necessary for wire transfers of interest
and principal payments with respect to any Series; of Bonds ,
utilization of electronic book entry data received from The .
Depository Trust Company' and. other depository trust. companies 'in
place of actual delivery of Bonds and provision of notices with
respect . to Bords registered by The Depository Trust Company and
other depository :trust companies (or any of .their. designees
identified to the City) by overnight delivery, courier service;
telegram, telecopy'. or other similar means of communication.'
ARTICLE III `
REDEMPTION OF BONDS
Section 301. Redemption Generally. . The Bonds. of each
Series issued under the provisions of .this Resolution shall be
subject to redemption, either in whole or 'in part and at such
times and prices, as maybe provided by the Series Resolution
relating to such Series .
Section 302 Selection of Bonds for Redemption or
Purchase. The City shall, in accordance with the terms and
provisions of the Bonds and of this. Resolution and the Series
Resolution relating to any Bonds to beV redeemed, select the
Bonds or portions thereof to be purchased or redeemed by lot .
The City shall promptly notify in writing the Bond Registrar of
the numbers of the Bonds so selected for redemption and in
making such .selection, each. Bond of each Series of .Bondsshall.
be treated, as representing , that number of Bonds of the lowest
authorized denomination of that Series . as is obtained by
dividing. 'the .principal "amount of such Bond by such denomination. '.
Section 303. Redemption Notice. . At least thirty (30) and
not more than . sixty (60) days before theredemption date, a
notice of any such redemption', either in whole or in part,
signed by the Finance Director, (a) shall be filed with the Bond
Registrar and ' (b). shall be mailed, first classmail, postage
prepaid, to all registered owners of •Bonds to be redeemed at
theiraddresses as they. ' , appear on the registration books
hereinabove provided for, ,, 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
any such notice of redemption of any Bond shallnot affect the
validity of the redemption of any other Bond. Each such notice
shall specify the complete name of the Bondsto be redeemed,
their date of issue, ° interest rate, ..maturity date, the date of
mailing 'of such Vnotice, the' redemption price, the redemption
date and the place 'or. places where amounts due upon such
redemption will be payable -together withthe name, address and
telephone number of a contact person and,• ,if': . less` than all of
the Bonds- are to be redeemed, the CUSIP and certificate numbers '
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or other distinguishing marks of such Bonds to be redeemed in ,
part only and the respective portions thereof to be redeemed.
Such notice shall further state that on the redemption date
there shall become due and payable upon each of the Bonds , or
portions thereof to be redeemed, the redemption price thereof,.
together with interest accrued tothe redemption date, and that
from an . after such date interest thereon shall cease to accrue
and be pdayable on such Bonds or portions thereof so redeemed.
- In addition, further notice of redemption shall be given as
provided below, but a failure to give such further notice of
redemption shall not affect the validity of redemption of any
Bond if a notice is mailed as provided above. Such further
notice of redemption shall be given by certified mail, 'return
receipt requested, at least thirty (30) 'and not more than sixty
(60) days prior to the date fixed for redemption to (i) all
registered securities depositories that are registered owners of
Bonds being redeemed (such depositories now being Depository
Trust Company of New York, New York, Midwest Securities Trust
Company of Chicago, Illinois, Pacific Securities Depository
Trust Company of San Francisco, California, and Philadelphia
Depository Trust Company of Philadelphia, Pennsylvania),, (ii) at
least two national information services that disseminate notices
ofredemption of obligations _.such. as the Bonds (such as Kenney
Information "SystemsNotification Service, "Financial` Information, - '
Inc. 's Daily Called Bond Serice, Interactive Data Corporation' s
Bond Service, Moody's Municipal and Government News Report, and
Standard and Poor ' s Called Bond Record) , and (iii) owners of
$1,000, 000 or more in aggregate principal amount of Bonds of the
Series - being redeemed. Notice of redemption to securities
depositories shall be given ' in sufficient time 'so that such
notice is received at least two '(2) days before the date of
mailing to the registered owners as provided above. ' The notice
described in ( i) and (iii) above need not be given as to 'any
Series for so long as Cede & Co. is the owner of all Bonds of
such Series . .
A second notice of redemption shall be• given, within sixty
(60) days after the redemption date, by registered mail to
Owners of redeemed Bonds which ' have 'not been presented for
payment within thirty (30)' days after the redemption date.
Upon the payment of the redemption price of Bonds being
redeemed,: each check or other transfer of funds issued for such
purpose shall 'bear a description of the issue and maturity of
the Bonds being redeemed with the' proceeds of: such check or
other transfer .
The .provisions concerning the manner of giving notice of
redemption may be changed or varied or supplemented in any
Series Resolution applicable to any Series of Bonds issued under
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this Resolution for the purpose of complying with any ,
governmental or industry standards from time to time in effect.
Section 304. partial Redemption of Bonds . In the event
that ,only part of the principal sum of any Bond shall be called
for redemption or prepaid, payment of the amount to be redeemed
or prepaid shall be made only upon surrender of such Bond to the
• Bond Re4ittrar. 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.
Section 305 . Effect of Calling for Redemptipn. On the
date so designated for redemption, notice having been published
and filed in the manner and under the conditions hereinabove
provided, 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, all as provided in this Resolution,
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 this 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.
Section 306. Cancellation "of Bonds . All Bonds paid,
redeemed or purchased, either at or before maturity, shall be
delivered to the' Bond Registrar when such payment, redemption or
purchase is made and such Bonds shall, except as, provided, by
Section 304 hereof, thereupon be cancelled.. All Bonds cancelled
under any of thea provisions of, this Resolution . shall be
destroyed by the Bond Registrar. Upon destruction of any Bonds,
the, Bond Registrar shall execute, a certificate in duplicate,
describing the Bonds so destroyed, and one executed certificate
shall be, filed with the City and the other executed certificate
shall be retained by the Bond Registrar.
Section 307 . ponds Called for Redemption Deemed Not
Outstanding. If (a) (1) Bonds shall have been duly called for
redemption under the provisions of' . this Article or, (.2)
irrevocable instructions have been given by the City to the Bond .
Registrar or to a bank, trust company or other. ' appropriate
fiduciary institution acting as escrow agent (the "escrow
agent") to (i) call Bonds for redemption under the provisions, of:
this Article, (ii) pay Bonds at their maturity or maturities or
(iii) both call Bonds for redemption under the provisions of
this Article and pay Bonds at their maturity or maturities in
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any combination (the Bonds described in clauses (a) (1) and (a)
(2) are herein collectively called the "Bonds to be Paid") , and
(b) cash or Sufficient Government Obligations (hereinafter
defined) are held in separate accounts by the Bond Registrar or
escrow agent solely for the holders of the Bonds to be Paid,
then the Bonds to be Paid shallnot be deemed to be Outstanding
under the,:. provisions of this Resolution and shall cease to be
entitled to. any benefit or security under this Resolution other
than to receive payment of principal, redemption premium, if
any, and interest from such moneys.
For purposes of this Section 307, "Sufficient Government
Obligations" shall mean Government Obligations which are in such
principal amounts, bear interest at such rate or rates and
mature (without the option of prior redemption) on such date or
dates so that the proceeds to be received upon payment of such
Government Obligations at their .maturity and theinterest to be
received thereon will provide sufficient amounts in cash on the'
dates required to pay the principal of and redemption premium,
if any, and the interest on the Bonds to be paid tothe dates of
their maturity or redemption.
ARTICLE IV
CONSTRUCTION FUND
Section 401. Construction _Fund. A special fund to be
maintained by a Depositary is hereby created and designated the
"Utility System Construction Fund. " A special account within .
the Construction Fund is hereby created and designated "Series
1992 Project Construction Account" in which shall be deposited
the amounts specified in the Series ' Resolution with respect to
the Series 1992 Bonds.
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 Section 209 of
this Resolution to the Costs of 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 this Resolution the proceeds of which were
deposited to the credit of the Construction Fund and for the
further security of such Holdersuntil paid out as herein
provided.
For each Series of Additional Bonds issued pursuant to ..
Section 209 of this 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. .
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Section 402 . Payments .from Construction Fund .• Payment of .
the Cost of the Project :and any Improvements shall be made from
the special - accounts within the Construction Fund as herein
provided. All such payments shall be subject to the provisions
and restrictions set forth in this Article and the City.
covenants thatit will not cause, or permit to be paid from, the
Construction Fund any sums 'except in accordance with such
provisions and restrictions . Moneys in the Construction Fund
shall be disbursed by check, voucher, order, draft, certificate
or warrant signed by any one or more officers or employees of
the City having such duties under City rules and regulations or
designated by resolution of the Commission from time to time,
for such purpose or if the City shall so elect, by wire transfer.
Section 403-. Cost of Project and Improvements . For the
purposes. of this Article, the Costof the Project and any
Improvements to be constructed or acquired shall include,
without intending thereby to limit or to restrict or to extend
any proper definition of such Cost under the provisions of this
Resolution, the following:
(a) obligations incurredfor labor and materials and
to contractors, builders and 'materialmen in connection with the
construction _of enlargements, improvements , and extensions, for.
machinery and equipment, and for the resoration of property
damaged or destroyed in connection with such construction;
(b) interest accruing. upon any Bonds or upon any
other Utility Debt of the City incurred to finance the Project
or Improvements prior ' to ' the commencement of and during
construction or for any additional period as may authorized
by law if so provided, and subject to any limitation, in the
Series Resolution providing for the issuance of such Bonds;
(c) the cost of acquiring any privately owned water
works, sewage system or stormwater- system now ' serving - any
portion of the City and territory adjacent thereto, or any part
of any such system, either within or without or partly within or.
partly without the corporate limits of the City;
(d) the cost of 'acquiring bypurchase, if such
purchase shall be deemed expedient, and the amount of any award
or final judgment in any proceeding to acquire by condemnation,
such land, property rights, right-of-way, franchises, easements,
and other interests in lands as may be deemed necessary or
convenient in connection with such construction or with the
operation of the Utility System, and the amount of any damages
incident .thereto;
(e) expenses 'of administration properly chargeable, to:
such construction , or ' acquisition, legal, architectural and
engineering expenses and fees, costs of audits and of preparing
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and issuing the Bonds, fees and expenses of consultants,
- financing- charges, -taxes or -other governmental charges lawfully
assessed during construction, premiums on insurance in
connection °with construction, -deposits to the Reserve Account,
premiums for bond insurance, interest rate insurance or
insurance: assuring availability of the amounts required to be on
deposit,;iin the Reserve Account, initial setup fees and annual
fees fors - letters of credit, lines of credit, standby bond
purchase agreements or. other similar -credit enhancement or
liquidity enhancement devices and tender agent fees and fees
payable for remarketing Bonds during the period of construction
of the Project or any Improvements for which Bonds supported by
such devices were issued and all other items of expense not
elsewhere in this Section specified, incident to the financing,
construction or acquisition of the Project and any Improvements
and the placing of thesamein operation; and -
(f)- any obligation or expense heretofore or hereafter
incurred by the City for any of the foregoing purposes,
including the cost of materials, supplies or equipment furnished
by the City in connection with the construction of the Project
and any Improvements and paid for by the City out of funds other
than moneys in the Construction Fund.
Sectibn 404 . -Title to PropertiesAcauir'ed. The City
further covenants that the Project and any Improvements will be
constructed on or under land which is owned or can be acquired
by the City in fee simple or over or under which the City shall
acquire or can acquire either by long term lease or by perpetual
easements for the purposes of the Utility System, free from all
liens , encumbrances and defects of title which have a materially
adverse effect upon the City's right to use suchlands or
propertiesfor the purposes intended or which have been
adequately guarded against by a bond or other form of indemnity,
or lands, including public streets and highways, the right to
use and occupy which for such purposes shall be vested in the
City by law or by valid rights of way, easements, franchises,
licenses or. agreements.
Section 405 . 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, which fact shall be evidenced to the Finance Director
by a certificate stating the date of such completion, signed by
the City Manager for the City and approved by the Consulting
Engineers, 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 Renewal,
Replacement. and Improvement Account, to - the credit of the-
Sinking Fund Account for the payment of principal of the Bonds
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of such - Series, retained in the - Construction" Fund andused to
pay the Cost of a different' 'Improvement or Improvements which
have been approved by the Commission, orappliedto redeem Bonds:
of such series in a manner permitted . under thisResolution and
the applicable Series Resolution. Before undertaking anysuch
transfer,- the Finance Directorshall procure an opinion of. Bond
Counsel,-3:,o the effect that the proposed transfer will not
adversely affect. the exclusion of interest on any. Bonds from
gross income for federal income tax purposes .
ARTICLE V
REVENUES AND FUNDS
Section 501. UtilitySystem Rates . The City covenants
.that the schedules of rates for service provided by the ' Utility
Systemwill not' be less than the schedules fixed and prescribed
by ordinances and resolutions' heretofore enacted or adopted by
the Commission and now in effect, and that neither such
schedules nor the effective dates thereof will . be 'revised except
as hereinafter provided in this Article, except that there shall .-.
be no restriction on increasing rates at any time.
Section. 502. ' Rate Covenants The City further covenants
that it will fix, chargeand collect , reasonable rates and
charges for the use of the' services and facilities furnished by
the Utility System and that from time to time, and as often as
itshall : appear necessary, it will adjust such ratesandcharges
by increasing or decreasing . the same or any selected categories
of rates and charges so that the Net Revenues will be sufficient .
to provide anamount in each Fiscal Year r 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
requiredto' be deposited to the Accounts pursuant to clauses (c)
and (d) of Section 505 of this Resolution for such Fiscal Year.
If in any Fiscal Year the Net ' Revenues shall be less than
the amount required under the preceding paragraph of - this
Section, 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 thea Utility System,
to inspect. the Utility System and to submit, within 60days
thereafter, a written report to the City. , recommending revisions
of the rates, fees and charges of the Utility System and the
methods of operation. of , the Utility System that will result in
producing the ' amount so required in the following Fiscal Year .
Promptly upon its receipt of such' 'recommendationsthe ,City
shall transmit copies thereof :to the City Manager and shall
revise its rates,, fees . and charges,. or alter alte r its methods. of.
operation' and take such other action as shall conform with such
recommendations.
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If the City shall failto comply with the recommendations
of the Rate Consultant, the registeredowners 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 preceding paragraph
of this section.
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
requirements in the first paragraph 'of this Section shall not
constitute. an Event of Default so long as the Revenues, together .
with available' moneys in the Funds and Accounts created in
Article V of this Resolution, are sufficient to pay in cash ' the
Current Expenses . and to pay thePrincipal and Interest
Requirements on all Outstanding Bonds and other Utility Debt,
except any Subordinated Indebtedness, for such Fiscal Year .
Section 503 . Mpua 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 ,
CurrentExpenses., Capital Expenditures and all deposits to funds,,
and accounts required by Section 505 of this Resolution for the
ensuing Fiscal Year. Copies of each such preliminary budget
shall be filed with the Finance Director.
The .City further covenants that on or', before the first day
of each Fiscal Year it will finally adopt the budget covering
the 'above items for such Fiscal Year (herein sometimes called
the "Annual. Budget") . Copies ' of the Annual 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 under the provisions of
this Article. '
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 under the provisions of this
Article. 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 Yearwill not exceed the
reasonable and necessary amount therefor, 'and that it will not
expend any amount for maintenance, repair and operation of the
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Utility. System in excess of the total amount provided for
Current Expensesin the- Annual Budget. Nothing. in this section
contained - shall limit the amount which the City may expend for
Current . Expenses in any Fiscal Year provided any amounts
expended therefor in excess of the total amount provided in the
Annual Budget shall be received by the City from some source
other than the Revenues of the Utility System.
Section 504 . 'Enterprise Fund; Revenue Account . A special
fund is hereby created and designated the "Utility System
Enterprise Fund" (herein called the "Enterprise Fund") . A
specialaccount is hereby created within the . Enterprise Fund and :
designated "Utility System Revenue Account" (herein called the
"Revenue Account") . Except as provided in Article VI of this
Resolution with respect to investment income on certain funds
and accounts, the City covenants ' that all 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 Enterprise Fund and the accounts and
subaccounts, therein shall be held by the City ' in trust " and
applied as provided in this Article.
Section 505. ' Sinking Fund Account and Other Accounts. . A'
special account . is hereby created within. the Enterprise Fund, and
designated "Utility System Revenue Bonds Sinking Fund Account"
(herein called the "Sinking Fund Account") . There are hereby
created in the Sinking Fund Account two separate subaccounts
designated ' "Bond Service Subaccount" and "Redemption
Subaccount." Five additional special' accounts are hereby
created within 'the Enterprise Fund and , designated "Utility
System Revenue. Bonds Reserve Account" (herein called the
"Reserve: Account") ,. "Utility System Rate' Stabilization Account"
(hereinafter called the "Rate Stabilization Account") , "Utility
System Subordinated Indebtedness Account" (herein called the
"Subordinated Indebtedness Account") , "Utility System Renewal,
Replacement and Improvement Account" (herein called the
"Renewal, Replacement and Improvement. Account"') and .. "Utility
System General Reserve Account" (herein called the "General
Reserve Account")
The City hereby covenants to establish ,. and maintain,
pursuant to the Series Resolution for each series of Additional
Bonds, : a separate . subaccount within the Reserve• Account to be
maintained solely for the' benefit of the Holders of such Series
of Bonds, each such subaccount to be held ' by the Finance
Director separate and apart from all other reserve subaccounts
with respect to any: .other'_ Series of .Bonds issued under this
Resolution,: . and . . shall be held solely for the benefit and
security of the series of Bonds with. respect - to which such
separate reserve subaccounts were created. Each such separate .
subaccount : with . respect to 'a Series ' . shall be designated
"Series Reserve Subaccount, " (inserting an identifying
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Series year, and if more than one Series is to be issued in a
single calendar year, an identifying Series letter) .
The moneys in each of said Funds and Accounts shall be held
in trust and applied as hereinafter provided with regard to each
such Fund and Account and, pending such application, shall be
subject . .to a lien and charge in favor of the Holders of the
Bonds issued and Outstanding under this Resolution and for the
further security of such Holders until paid out or transferred
as herein provided, except that any subaccount in the Reserve
Account shall secure only the Series of Bonds to which such
subaccount relates .
The City shall, on orbefore the 20th day of themonth next
succeeding the month in which Bonds areissued under the
provisions of Section 208 of this Resolution and not later than
the 20th day of each month thereafter, withdraw 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 ensuing two (2) months, and deposit the sum so
withdrawn in the following order:
(a) , To the credit of .the . Bond , Service .Subaccount . of .. - .
the Sinking Fund 'Account, an amount equal to one-sixth (1/6) of
the amount of interest payable on the Bonds of each Series on
the next succeeding Interest Payment Date and an amount equal to
one-twelfth (1/12) or, if principal is payable semiannually,
one-sixth (1/6) , 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 Bonds
pursuant toSections . 208,, 209 or 210 of this 'Resolution .
(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,.
respectfully,.. 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, theproceeds 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 equal to one-twelfth (1/12) or,
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• - if any 'Bonds ' are required to be retired.~ semi-annually in
satisfaction of the ,Amortization Requirements . ;therefor,
one-sixth. (1/6) of the principalamount. of Term Bonds of each
Series then outstanding requiredto 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 Subaccountshall 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 deposits under clauses (a) and (b)
above (or the entirebalance if' less than the required .amount)
as may 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 DepositRequirementfor all Bonds atsuch time,
the amount available shall be allocated among thevarious
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 Requirement for all subaccounts.
(d) To thecredit of the ' Renewal, Replacement and
Improvement Account, such . amount, , if any, of any balance ,
remaining after making the deposits under clauses (a) , (b) and
(c). above (or theentire balance if less than the required,
amount)- as may be required to make' the amount deposited in such -
monthto the credit of the Renewal, Replacement . and Improvement
Account equal to one-twelfth (1/12) 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' less than the required amount) equal to the
sum of one-twelfth (1/12) 'of ; the principal of, redemption.
premium, if any, and interest coming due on any .Subordinated;
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Indebtedness during the next succeeding twelve . month period and
the amount,; : if any, requiredto be deposited in any special
reserve ,subaccount established within the Subordinated
Indebtedness Account as provided in Section 511 hereof.
(h) To the credit of the General Reserve Account , the
ba'` ance, ..if any, remaining after making the deposits- under
clauses :(a) through- (g) above.
If the amount deposited in any month to the credit of any
of the Accounts or subaccounts shall be less than the amount
required to be deposited under the foregoing provisions of this
Section, 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. '
Section 50.6. Payment of Current Expenses. The Current
Expensesshall be paid from, the Revenue Account as the same
become dueandpayable. Payments from the Revenue Account shall
be made in accordance, with procedures established by the City
from time to time, the Annual Budget and the covenants in
Section 503 of this Article.
Section 507. Application of Moneys inBond Service
Subaccount . The City shall on the business day immediately
preceding each Interest Payment Date, or with respect to an
Interest . Rate -_-Swap, - if so provided in a Series Resolution, on
such earlier date or dates , (i) withdraw from the Bond Service
Subaccount and deposit in trust with - the Bond Registrar . to
enable the Bond -Registrar to remit by mail to each registered '
owner of Bonds the amountrequired for paying the interest on
such Bonds as such interest becomes due and payable and (ii )
withrespect to a payment owing to the Counterparty pursuant to
an Interest Rate Swap, withdraw from the Bond Service Subaccount
the amount of such payment as directed by Series Resolution.
The Bond Registrar shall be permitted to transfer by wire to'
owners of at least $1,000 , 000 principal amount of the Bonds the
amounts required for paying the interest on such Bonds as such
interest becomes due and payable. The City shall on the business
day immediately preceding a date on which principal is due on
Serial Bondswithdraw from the Bond Service Subaccount and
deposit in trust with the 'Bond Registrar the amounts required
for paying the principal of all Serial . Bonds as such principal
becomes due and payable. The . City, in its discretion, may make
the deposits required in this section with the Bond Registrar by
wire transfer.
Section 508. Application of Moneys in Redemption
Subaccount. Moneys held for the credit ' of the Redemption
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Subaccount shall be :, applied . ,to the . retirement:' _of' the.. Bonds
issued under the provisions of this Resolution as follows : ;
(a) Subject to the provisions of paragraph. (c) of
this section, the City shall endeavor to purchase any;. Bonds
secured hereby and then Outstanding, whether or not such Bonds
shall then be subject to redemption, on the most advantageous
terms obtainable with reasonable diligence, such price not to
exceed theprincipal of such Bonds ;plus the amount of .the .
redemption premium, if any, which might , on the next redemption .
date be paid to the holders of such . Bonds under the provisions
of Article III of this Resolution if such Bonds should be called
for redemption on such date from , moneys in the Sinking Fund
Account. The Cityshall pay the interest accrued on such Bonds
to date of settlement therefor from the Bond Service Subaccount
and 'the purchase price from the Redemption Subaccount, but no.
such purchase shall bemade by the City withinthe period of
seventy-five (75) days next preceding any Interest Payment Date-=
on which such Bonds are subject to call for redemption under the
provisions of this Resolution.
(b) Subject to the provisions of. Article III of this. . .
Resolution and paragraph (c) of this Section, the Citymay call
for redemption on each Interest Payment Date on: which Bonds.' are
subject to redemption such amount of such ' Bonds as, with the
redemption premium, if any, will exhaust the moneys which will
be held for- the credit of the Redemption•. Subaccount on said
Interest Payment Date as nearly as may be; provided, however,
that not less than Fifty Thousand Dollars ($50,000) principal
amount of Bonds shall be called; for redemption at any one time .
unless a lesser amount shall be required tosatisfy the
Amortization Requirement for any Fiscal Year. Such redemption. '.
shall be made 'Pursuant. to ..the provisions of Article III of this
Resolution. The City shall during theperiodof five : (5)
business days ' prior to the Redemption Date withdraw from the.
Bond Service Subaccount and the Redemption Subaccount and set
aside in, separate accounts or deposit with the Bond Registrar
the respective amountsrequired, forpaying the interest on, and
the principal and redemption premium of, the. Bonds so called for
redemption .
(c) Moneys held in the Redemption Subaccount shall be
applied by the City each Fiscal Year to the retirement. of Bonds
of each Series then outstanding in thefollowing order:
•
First: the Term Bondsof each such Series to the
extent of the Amortization Requirement, if any, for
such Fiscal Year : for such Term Bonds,;' plus , the' .
applicable premium, if any, and any deficiency in any
preceding. 'Fiscal Years in the .purchase or redemption
of such Term Bonds under .. the provisions ofthis
subdivision, and, if the amount availablein such.
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Fiscal. Year shall not be sufficient therefor, then in
proportion to the Amortization Requirement, if any,
for such Fiscal Year for the Term Bonds of each such
Series then Outstanding, plus the applicable premium,
if any, and any such deficiency;
Second: Term Bonds of each Series, if any, in
proportion (as nearly as practicable) to the aggregate
principal amount of the Bonds of each such. Series
originally_ issued; and
Third: after the retirement of all Term Bonds, if
any, Serial Bonds issued under the provisions of this
Resolution in the inverse order of their maturities
and, to the extent that Serial Bonds of different
Series mature on the same date, in proportion (as
nearly as practicable) . to the principal amount . of
Bonds of each Series maturing on such date.
Upon the retirement of any Bonds by purchase or redemption
there shall be filed with the Finance Director a statement
briefly describing such Bonds and setting forth the date of
their purchase or redemption, the amount of the purchase price
or the redemption price of, such Bonds and the amount .-paid__ _as.
interest thereon. The expenses in connection with the purchase
or redemption of any Bonds shall be paid by the City from the
General Reserve Account.
Section 509 . . App_aoati onoff. oneyys in -Reserve Account .
Moneys held for the credit of each subaccount . in the. . Reserve
Account shall be used for the purposes of paying -the interest
on, the principal of and the Amortization for the
Bonds for which such subaccount was established whenever and to
the extent . that the moneys held for the credit of the Bond
Service Subaccount or , the Redemption Subaccount in respect of
such Bonds are insufficient for such purposes. 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; provided, , however., the
Commission, pursuant to the resolution awarding any Series of
Bonds hereunder to the original purchasers thereof, may provide
for a different disposition of any such excesses which relate to
such Series of Bonds. . -
Notwithstanding the foregoing, in lieu of the required
deposit into any subaccount in the Reserve Account, the City
may, with the consent ' of any applicable issuer of a Credit
Facility or. Liquidity Facility .then in effect, cause tobe
deposited into such subaccount a Reserve Account Insurance
Policy or Reserve Account Letter of Credit for the benefit of
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the Holders of the Bonds either in substitutionfor the full
amount then on 'deposit: therein, or inan amount equal. to the
difference between the amount required tobe deposited in such
subaccount and the sum, if. any, _ then on - deposit in such
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 . -t. .- deficiency exists for the Series for ` which such
subaccount . was ' established, which cannot. be cured by moneys in
any other Fund, Account or Subaccount held pursuant to this
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 herein. If any
such Reserve Account Insurance Policy or Reserve Account Letter
of Credit is substituted for moneys on deposit in such
Subaccount, 'the excess moneys in the subaccount shall beapplied
to satisfy any such deficiency in any of the Funds, Accounts or'
Subaccounts under ' this Resolution, .' 'and any remaining balance
shall be depositedin the- General Reserve Account." ' If a
disbursement. is made 'from a Reserve Account Insurance Policy or
Reserve Account Letter of Credit, the City shall be obligated to .
either reinstate the maximum limits of such Reserve Account
Insurance Policy and Reserve Account Letter of Credit
immediately following such disbursement or to deposit into such.
subaccount , as provided in Section 505(c) , funds .in' the amount
of the disbursement made under, such Reserve . Account Insurance
Policy or Reserve Account Letter of Credit.
In the event that' all or a ; portion' 'of the Reserve Account
Requirement for any', Series shall be provided by a Reserve
Account Insurance Policy or Reserve Account Letter of Credit, .
the City shall do all things necessary to receive in a timely
fashion 'from the provider of such ' Reserve. Account Insurance
Policy or Reserve Account Letter. of Credit amounts required to
be expended pursuant to this section.
Section 510. Application of Moneys j:n Rate Stabilization
Account . Moneys held for the credit of the Rate -Stabilization
Account shall bedisbursed, upon thewritten direction' of the
Finance Director, 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 .themoneys held
for the credit of the Bond Service Subaccount, Redemption
Subaccount and the Reserve Account shall be insufficient for
the purpose..of paying the intereston, the.. principalof and the
Amortization Requirements for the Bonds as the same become due
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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.
Section . 511. 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 to enable such
paying agent to pay 'to the holders of 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 orother instrument
pursuant to which such Subordinated' Indebtedness has . been
incurred (the "Subordinated Indebtedness Instrument") .
The City may, pursuant to the Subordinated Indebtedness
Instrument relating to any Subordinated Indebtedness, establish
within the' Subordinated Indebtedness Account a special reserve
subaccount for such Subordinated Indebtedness. Moneys deposited
to ; thecredit of the Subordinated. Indebtedness Account with.
respect ' to any - reserve .. subaccount 'deposit " requirement
established in. a Subordinated Indebtedness Instrument shall be
deposited in said subaccount and held as a reserve for the
corresponding' Subordinated Indebtedness, as shall be more fully
set forth in such Subordinated Indebtedness Instrument.
Section 512 . Application of Moneys in Renewal . Replacement
and Improvement Account. Except as hereinafter provided in. this
Section, 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, subject
to the provisions of the third paragraph of this section '512,
only 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.
Payments from the Renewal, Replacement and Improvement
Account, except the withdrawal which the City isauthorized to
make .as hereinafter provided in this Section, shall be madein
accordance with the provisions of Section 402 of this Resolution
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for payments from , the Construction Fund'. to the extent that such °
provisions may be applicable..
If at any time thea moneys held. for the credit of the Bond
Service Subaccount, Redemption Subaccount, the Reserve Account
and. Rate Stabilization Account shall be insufficientforthea,
purpose-}Lof paying the interest on, the p.-incipal - of and ' the
Amortization Requirements for the Bonds as the samebecome due
and payable, then the City shall withdraw from -any„ moneys held'
for the credit of the ' Renewal, Replacement and Improvement
Account and deposit to the credit of the Bond Service Subaccount
or Redemption Subaccount an amount 'sufficientto make up any
such deficiency. Any moneys so withdrawn from the Renewal,
Replacement and Improvement Accountand deposited to the credit _
of the Bond Service Subaccount or the Redemption Subaccount.
.shall be restored from available moneys in the Revenue . Account,
subject to the same conditions as are prescribed fordeposits to
the credit of the Renewal, Replacement and ' Improvement Account
under the provisions. of Section 505 of this Article .
Section - 513 . Application of Moneys _°n General Reserve
Account. Moneys . held for the credit of the General . Reserve
Account may at, the electionof the City be applied:
(a) to pay the Cost of Improvements, •
(b) . to purchase or 'redeem Bonds,
(c) to make up deficienciesin any of the accounts
and funds created by this 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, provided that
repayment to the Utility System of any such amount authorized to
be used for any such lawful purpose may not. be imposed as a '
condition to the use of such funds for such purpose (i) uponthe
approval of a majority of all members of the . Commission,' . in an
amount in any Fiscal Year not to exceed 20%. of. the Net. Revenues
for the previous .Fiscal- Year, or (ii) with the approval of at
least four-fifths . (4/5ths) . of : all. members of the Commission, in
an amount in any Fiscal Yearnot to exceed 50% of the Net
Revenues for the preceding Fiscal Year..
Section 514 . Application of Amounts . in Sinking Fund
Account. Subject to the terms and conditions set forth in -this •
Resolution, moneys held for the credit of the Sinking Fund
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Account ..shall be held in trust and disbursed for (a) the payment
of intereston .the. Bonds . issuedunder the provisions of sections
208, 209 and 210 of this Resolution as such interest becomes due
and payable, .or (b) the paymentof the principal of such Bonds
at their.' maturities, or (c) the payment of the purchase or
• redemption .. price of such Bonds', before their maturity, and such
moneys.. are.-: hereby pledged to and charged with the payments
anuntionecl .-in this Section.
Section . 515. Impact Fee Account. A special account is
hereby created within the Enterprise Fund and designated
"Utility . System Impact Fee Account" (herein called the "Impact
Fee Account") . . To. the extent required by law and imposed by. the
City, for . so long as there 'are any Bonds Outstanding which. are ,
secured. by this Resolution, 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..
redemption premium, if any, " and interest on' Bondsissued 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 ofwhich
the Impact Fees, have been imposed.
Moneys on deposit in the Impact Fee Account may also be
pledged to the payment of principal of, redemption premium, if
any, and interest. on Subordinated Indebtedness but only to the
extent permitted by law and only on a basis of such pledge being '
subordinate and junior to the pledge made, hereunder to the Bonds.
Notwithstanding the foregoing, unless the City shall have
received anopinion 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 issued hereunder 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
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is the Original Debt Amount for all Bonds of all Series ofwhich
any Bond or Bondsare. then Outstanding issued hereunder by the
City. In the case of any Bonds issued torefund or refinance
other Bonds or indebtedness of the City, the principalamount 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 Bondsor indebtedness refinanced
by such' Bt.nds 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
bereduced by the principal amount of. Bonds .'so retired in
advance. '
Section 516. 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 thepurpose of paying'. any of the Bonds hereby
secured, either at the maturity thereof orupon call for
redemption, orfor, the purpose of paying . any . interest on any of
the Bonds hereby secured, shall , be held in trust for the
respective Holders of such Bonds. But any'. moneys which shall be
soset aside ordeposited 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 orto' such officer,
board or . body, as the . case may _b'e,, forthe payment and then only
to the extent of 'the amounts so receivedwithout any interest
thereon, and the Bond ''Registrar shall have no responsibility. ,
with .respect . to 'such moneys.
Section 517. Interest Rate Swaps: 'Inte'rest. 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 . this 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" hereunder, entitled to' payment from, the sources
pledged to the payment of the Bonds in the same 'manner asall
other intereston the. Bonds.
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ARTICLE VI
DEPOSITARIES OF MONEYS, SECURITY FOR DEPOSITS
AND INVESTMENT OF FUNDS
Section 601. Security for Deposits , All moneys received .
- by the:...City under the provisions of this Resolution shall be
held either in acc .rdance herewith or shall be deposited with a
Depositary or. Depositaries, shall be held in trust, shall be
applied only in accordance with the provisions of this
Resolution and shall not be subject to lien or attachment by any
creditor of the City. .
All moneys heldby the . City or deposited with any
Depositary hereunder shall be continuously secured for the
benefit of the City and the Holders of. the Bonds in such manner
as may then be required or permitted by applicable State or
Federal laws regarding the security for the deposit of public
funds; provided, however, that it shall not be necessary for the
Bond Registrar to give security' for the deposits of any moneys
with it for the payment of the principal of or the redemption
premium or the interest on any Bonds issued hereunder, or for
the City togivesecurity for any moneys which shall be
represented by obligations purchased under the provisions of
this Article as an investment of such moneys. .
All moneys held by the City and deposited with each
Depositary shall be credited to the particular fundor account
to which_ such moneys belong.
Section 602 . 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 whichshall be subject to redemption by
the holder thereof at 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 mature not later than the final
maturity dateof the Series of Bonds to which such subaccount
relates.
Investment Obligations so purchased as an investmentof
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
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credited to such fund or .account. s and any . -loss: . resulting, from
such 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.
o
credit- f the Bond Sex- ice Subaccount and the Redemption
Subaccount may, at the optionof the City, be retained in said
accounts if the amounts are required for paying interest on the
Bonds on the. next 'Interest 'Payment. Date and principal of Serial '
Bonds : or the Amortization Requirements for Term Bonds when due,
and to the extent that earnings. are so retained, the City shall
receive a credit againstthe amounts required to be deposited to
said accounts pursuant to Section 505 of this 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 Requirementfor. the Series of Bonds for
which such Subaccount was created, or if' moneys on deposit.
therein are sufficient for such purpose, thensuch 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 -theoption. 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
requirementsof the Construction :Fund, withdrawn and. deposited .
to the credit of the Revenue Account. Anything in this clause
(e) 'to the contrary notwithstanding, no -transferof investment
earnings to the Revenue Accountas permitted herein shall affect'
the definition of Revenues contained in this Resolution '
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(f) Investment earnings on moneys on deposit to the
credit of the Impact Fee Account shall be retained therein until
applied pursuant to Section 515 of this Resolution.
The City shall sell or present for payment or redemption
any Investment Obligations so acquired whenever it shall be
necessary.: so to do in order to provide moneys to meet any
payment from such fund or account. Neither the City nor any
agent thereof shall be liable or responsible for any * loss
resulting from any investment.
Section 603.. Valuation of Investment Obligations . In
computing the amount in any fund created pursuant to the
provisions of this Resolution, obligations purchased as an
investment of moneys therein shallbe valued at their fair .
market value. Valuation on any particular date shallinclude
the amountof interest then earned oraccrued to such date or
any moneys or investments in such fund. The computation of the
amount on deposit in or credited to the funds created under this
Resolution and the valuation of the investments of such amounts
shall be performed by the City on the day after each Interest
Payment Date and on the last day of each Fiscal Year, and such
computation and valuation shall not be required to be performed
at othertimes-..
Section 504 . accounting for Funds. For the purposes of
this Resolution, each fund created hereunder shall be a series
of self-balancing accounts within the book of accounts of the
Utility System and shall connote a segregation of accounts , -
which will support special purpose disclosure reports, not to be
construed as a separate set of books of accounts.
For the purpose of investing or reinvesting, the City may
commingle moneys . in the ' funds and accounts created . and
established hereunder (other than the -Arbitrage Rebate Fund) in
order to achieve greater investment income; provided that the
City shall separately account for the amounts so commingled.
The amounts required to be accounted for in each of the funds
and Accounts designated herein (other than the Arbitrage Rebate
Fund) may be deposited in a single bank account for the Utility
System provided that adequateaccounting procedures are'
maintained to reflect and control the restricted allocations of
the amounts on deposit, therein for the various purposes of such-
funds and accounts as herein provided. The designation and
establishment of funds and accounts in and by this Resolution
(other than the Arbitrage Rebate Fund) shall not be construed to
require the establishment of any completely independent funds
and accounts but rather is intended solely to constitute an
allocation of certain revenues and assets of the Utility System
for certain purposes and to establish suchcertainpriorities
for application' of ' certain revenues and assets as herein
provided.
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Section 605. Tax Covenants . The City covenants and agrees'
that so long as any Bonds remain outstanding, itshall comply
with the requirements of the. Code to the extent necessary to
preserve the exclusion from gross income for Federal incometax
purposes of the interest on the Bonds. Notwithstanding anything
to the contrary contained herein or% otherwise, the City shall
not be•-4equi_red to comply with the covenants herein contained to
the extent that interest on any Bonds issued hereunder shall be
intended by the City, on the date of issuance of such Bonds, to
be ' included in gross income for Federal income tax purposesto
the Holders thereof under the Code.
ARTICLE VII
PARTICULAR. COVENANTS
Section 701. Payment of Principal. Interest and Premium;
pledge of Pledged Revenues . The City covenants that it will '
promptly pay the principal of and the interest on each and every
Bond issued under the provisions of this Resolution - at the
places, on the dates and in the manner specified herein and in
said Bonds and any premium required for the retirement of said
Bonds by purchase or redemption, according to the true' 'intent , .
and meanings thereof. Such principal, interest and premium: will
be payable solely from the Pledged ' Revenues and said Pledged
Revenues are hereby pledged to the payment thereof in the manner.
and to the extent hereinabove particularly specified.
Bonds issued under the provisions of this Resolution shall
not be deemed to constitute a debtof the City or a pledge of
the faith and credit of the ` .City, but such Bonds shall be
payable. . solely from the Pledged Revenues, and the Bonds shall
not directly or indirectly or contingently obligate the City to
levy or to pledge any form of taxation whatever therefor, nor
shall any suchBonds constitute a charge, lien or encumbrance-,
legal or equitable, upon any property of the City. .
Section 702. . Cor;structj on of Project Qpd Improvements ;
Qperation of Utility '5vstem. The City further 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 under the provisions of this Resolution, or for
which moneys repayable . from theproceeds of . Bonds or other
Utility . Debt issued under the provisions of this (Resolution
shall have been advanced to the City, in accordance with the
plans theretofore approved by the Consulting Engineers and that
upon the completion of the Project and such Improvements it will
operate and maintain the same as a part of the Utility System.
The City further covenants that it will establish • and
enforce reasonable 'rules and regulations governing the use of
the. Utility . System . ' and . the'. operations thereof,.. . that all
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compensation, salaries, fees and wages paid by it in connection
with the maintenance, repair and operation of the Utility .System
will be reasonable, that it will operate the Utility System in
an efficient and economical manner, that it will at all times
maintain the Utility System or any part thereof in . good repair
and in sound operating condition and will make all necessary
repairs, renewals and replacements , that it will duly observe
and comply with allvalid requirements of any municipal `or
governmental authority relative to the Utility System, that it
mill not create or suffer to be created any lien or charge upon
the Utility System or any part thereof or upon the Pledged
Revenues ranking equally with or prior to the Bonds, and that,
out of the Pledged Revenues, it will pay or cause to be'
discharged, within sixty (60) days after the same shall accrue,
all lawful claims and demands for labor, materials, supplies or
other objects which, if unpaid, might by law become a lien upon
the Utility System or any part thereof or upon the Revenues;
provided, however, that nothing contained in this section shall
require the City to pay or cause to be discharged, or make
provision for, , any such lien or charge so long as the validity
thereof shall be contested in good faith and by appropriate
legal proceedings .
Section 703_. Employment of Consulting Engineers. The City
covenants and agrees that so long as any Bonds are Outstanding
under this 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. Except for any fees and
expenses incurred under the provisions of Section 403 of this
Resolution, the cost of employing Consulting Engineers 'shall be
treated as a part of the cost of operation and maintenance of
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.
The City further covenants that the Consulting Engineers
shall at all - times have free access to all properties of the
Utility System and every part . thereof for the purposes of
inspection and examination and that its books, records and
accounts may be examined by the Consulting Engineers at all
reasonable times .
Section 704 . Emgloyment of Accountant . The City covenants
and agrees that it will for the purpose ofperforming and
carrying out the duties imposed on the Accountant by this .
Resolution employ an independent certified public accountant or
firm of independent certified public accountants of , suitable ..
experience and responsibility, having a favorable reputation for
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:of waterworks. and . .
skill and experience in the. " auditingsewer. .. :. .: . ..
systems.
Section '705. 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.
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 'ofany 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 isnot essential to the efficient or economic. ..
operation of the. Utility System. ' In theeventthat, 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.
The proceeds of all insurance referred to in this Section
shall be available for and shall', to the extent necessary, be
applied to the repair, replacement or reconstruction of the
damaged or destroyedproperty, and shall be ' paid '; out in the '.
manner . hereinabove provided for payments . from the Construction
Fund. If such proceeds are more than sufficient for such
purpose, the balance remaining shall be deposited to the credit
of the Renewal, Replacement and Improvement Account . If such
proceeds shall be insufficientforsuch purpose, the deficiency
may be supplied out of any moneys in the Renewal, Replacement
and Improvement Account.
All insurance policies shall be open to the inspection of .
the Bondholders and their representatives at all reasonable ,
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times : The Finance Director is hereby authorized in the name of
the City' to:.dernand, collect, sue and receipt for the insurance
money which may become due and payable under any policies.
payableto it. Any appraisement or adjustment of any loss or
damage and any settlement orpayment of indemnity therefor which
may be agreed upon between the City and any insurer shall be
evidenced _to the Finance Director by a certificate signed by the
officer or officers of the City responsible for managing the
Utility System.
Notwithstanding the foregoing provisions of this Section,
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.
Section 706. Use of Revenues and Impact Fees . The City
covenants and agrees that, so long as any of the Bonds secured
hereby shall be outstanding, none of the Revenues or Impact Fees
will be used for any purpose other than as provided in this
Resolution, and that no contract or contracts will be entered
into or any action taken by which the rights of Holders of the
Bonds might be impaired or diminished. Nothing in this
Resolution shall beconstrued as prohibiting -the, existence of
any loan previously made with amounts "constituting Revenues to
the general fund of the City to the extent, and only to the
extent, that such loan or loans exist(s) on the date of adoption
of this Resolution.
Section 707. 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 theapplication of such Revenues, and of the
number of users of the Utility System in each classification.
Such records and accounts shall be open to the inspection of all
interested persons.
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. Within a reasonable time thereafter reports of
each audit shall be filed with the Commission and the Finance
Director, and copies of such report shall be mailed to any
Bondholder who shall have filed his name and address with the
Finance Director for such purpose. Each such auditreport shall
set forth an opinion of the Accountant (which may be contained
in a separate letter) that no default on the part of the City of
any covenant .in- this .Resolution .hasbeen disclosed by reason of
such audit. Such audit reports shall be open to the inspection
of all interested persons.
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The City further covenants thatitwill.. cause any
additional reports or audits relating to the Utility System to
be made as requiredby law. Such reports . o,r audits may be
extracted from the portions of the City' s Consolidated Audited
Financial Report relating to the Utility System. The cost of
such audits shall be treated as a part, of the cost of oPeration.
Sec'fion 706 . Franchises . Except as provided- in Section
710 hereof and to the extent permitted by law, the City will not
grant a franchise to any person for the operation of a , water,
sewer or stormwater system which would be in competition with
the Utility System so long as, any Bonds are Outstanding under
this Resolution. '
Section 709 . Supervisory Personnel . The City in operating
the Utility System will employ or designate one or more of its
qualified employees as manager who has" demonstrated ability. and
experience in operating similar 'facilities, and will require all
employees who may have possession of money derived from the
operation of the Utility System to be covered by a fidelity
bond, written , by a responsible indemnity company in amounts
fully adequate to protect the City from loss.
Section 710. Separate Systems . The Commission may by, :
resolutiondetermine to own ' and operate. Separate Systems;
provided, however, that prior tothe adoption of any such'
resolutiondesignating 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 adverseimpact on the Net. : Revenues of the Utility
System and stating the basis for such determination.
The City may 'incur Utility Debt to acquire or improve
Separate Systems without compliance with any test or limit
contained in the Resolution so long as such ' is payable solely
from the revenues generated by such Separate System and the '
holders of such Utility Debt haveno recourse against and are in
no way payablefrom the Revenues of the Utility System. The
revenues, current expenses •and debt service associated with such
separate. System and any Utility Debt of the City incurred
thereforshall not be included in Revenues, Current Expenses and
Principal and Interest Requirements, each as defined in this
Resolution.
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 clause ' (.d)
of Section 209, of this Resolution. In determining compliance . '
with the testmentioned above, the revenues and current expenses
of the Utility Systemand the debt 'service on: any Utility Debt
payable from revenuesof such Separate. .Systems shall be included
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in Principal . and Interest Requirements . Priorto any . such .
consolidation; compliance ."with _the tests set forth in clause (d)
of Section 209 shall be demonstrated, regardless of whether.
there shall . be any. Utility Debt outstanding with respect to such
Separate System.
Section 711. No Free Service. To the extent permitted .;by
law, .the City will not render or cause to be rendered any free
services of any nature by the facilities of the Utility System
nor will any preferential rates be established for users of the
same class; the City including its departments, agencies and
instrumentalities, shall avail itself of the facilities of the
Utility System, and the same rates, feesor charges applicable
to other customers receiving like services under similar
circumstances shall be charged to the City and any such
department, agency or the City shall transfer from its
appropriate funds sufficient sums to" pay such charges . The
moneys so received shall be deemed to be Revenues derived from
the operation of the Utility System, and shall be deposited and
accounted for in the same manner as other Revenues derived from
such operation of the Utility System.
Section 712. Failure to Pay for Services . To the extent
- permitted by law, upon failure of any userto• pay for water
services rendered within sixty (60) days, the City shall shut-
off the connection of such user. to the Utility System and shall
not furnish or permit such user to receive further water service
until all obligations owed by such user to the City on account
of servicesshall have been paid in full, provided, that the
City Commission may authorize the continuation of service to
such user provided . such user complies with procedures
established by the City for thepayment . of delinquent
obligations, ' including, without limitation, procedures
permitting the payment of delinquencies over time This
covenant shall not, however, prevent the City from causing any
connection to be shut off sooner if permitted bylaw.
Section 713 . Enforcement of collections. . The City will
diligently enforce and collect the rates, fees and other charges
for the services of the Utility System; will take all steps,
actions and proceedings for the enforcement and collection of
such rates, fees and chargesas shall become delinquent to the
full extent permitted or authorized by law; and will maintain
accurate records with respect thereto. All such rates, fees,
charges and revenues herein pledged shall, as collected, be held
in trust to be applied as provided in this Resolution and not
otherwise. .
Section 714 . Sale or Other Disposition Qf the Utility
System. Except as provided in this Section, the City shall not
•sell or otherwise dispose of all or any part of the Utility
System.: -
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(a) To:..the exten
t ersriitted by law the City, without
restriction, may in anyFiscalYear 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 thenet 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 suchaudited statements are available. The
proceeds of a sale pursuant tothis 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 UtilitySystemin excess of the amount set
forth in clause . (a) of this Section, if , before any such.
transfer, there is delivered to the City Manager. ' a report of the
Consulting Engineer or Rate Consultant demonstratingthat 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. In determining whether to render such report,
the Consulting Engineer or Rate Consultant . shall consider the
usefulness _ of .the assets , to be disposed of to the operations of
the Utility System and the . uses to be' made of. any proceeds of a
sale and the rental income to be received with respect to any
lease thereof. 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 depositedto' 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 declaresthat such assets are not.
needed or serve no useful purpose in connection 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) ' Tothe extentpermitted 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: shallbe. no Bonds
deemed to be Outstanding underthe, provisions of this. Resolution ..
and the City shallhave ' 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 ° dueand
payable, and all other Utility Debt payable in any way from the
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Revenues of the Utility System and all fees then due and owing.
or to become due in the future with respect to Credit
Facilities. The proceeds of any sale, lease or other
disposition permitted by this clause (d) shall be applied first.
to the payment or provision for payment of the obligations ,
including the Bonds, set forth above, and only after all such
obligations shall have been paid or full provision for their
payment been made, shall the City apply any of such proceeds to
any other lawful purpose of the City.
No sale or any other disposition of assets of the Utility
System shall be consummated nor shall the proceeds of any such
sale be applied unless prior to such consummation or
application, there shall be delivered an opinion of Bond Counsel
to the effect that such sale and the application of the proceeds
as required herein will have no adverse impact on the exclusion
of interest on any of the Bonds or other Utility Debt from gross
income for Federal income purposes.
Section 715. Financial Reporting . Notice of__Pefaglt and
Supplemental Notice. For purposes of this Section 715, and this
Section 715 only, the term "Owner" shall include any person or
entity that claims in writing- delivered to the City to be the
Ownerofa 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, as further described
in Section 707 of this Resolution, shall be mailed to any 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.
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ARTICLE VIII
REMEDIES
Section 801. . Events of Default, Each of the following
events is hereby declared an "Event of Default" :
ham: _•
/a) payment of the' principal and of the redemption
premium, if any, of anyof the Bonds shall not bemade when the
same shall become `dueand 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 .
(c) the City shall fora anyreason be rendered
incapable of fulfillingits obligations hereunder; 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) daysfrom 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 havebeen 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 ortrustees
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,1 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 thewhole or any part of its property
and any of the aforesaid adjudications, orders, judgments or
decrees shall notbe 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 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
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(h) under the provisions of any other law for the
relief or aid of debtors, any courtof 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 this
Resolution on the part of the City to beperformedand 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; provided, however, if the default
specified in this ,clause (i) shall' be of a type which cannot be
remedied within thirty '(30) days, itsshall not constitute an
event of default 'if the City shall begin to remedy such default
within such thirty-day period. .
Section 802 . Acceleration of Maturities . Upon the
happening and continuance of any Event of Default specified in
cla_ uses, (.a). ..through (i) . of Section .801 of this Article., thenand
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 dueand payable, anything
contained in the Bonds or in this Resolution to the 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 ofany
other remedy under this Resolution, moneys shall have
accumulated in the Sinking Fund. Account sufficient to pay the
principal of all *natured 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.
hereunder 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
this Resolution (other than a default in the payment of the
principal of such Bonds thendueonly 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
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such declaration and then .outstanding may, by written notice to
the City, rescind and., annul such declaration and its
consequences, but. no such rescission or annulment shall extend
to or affect any subsequent default ' or impair . any ;right
consequent thereon.
Section 803 . Enforcement of Remedies, Uponthe happening
and Coif'tinuance of any Event of Defaultthen and in every siicii
case the Holders ofnotless than ten 'per centum (10%) in
aggregate principal amount, of the Bonds then Outstanding
hereunder may proceed to protect and enforce the rights of the ,
Bondholders under state law, or under this Resolution by such
suits, actions or special proceedings in equity or at law,
either for the specific performance ofany covenant or agreement
contained herein or in aid or execution of any power herein
granted or for the enforcement 'of any proper legal or equitable
remedy, as such Bondholder shall deem Most effectual to protect
and enforce such rights. Such Holders. of Bonds, or any trustee
appointed to represent Bondholders as hereinafter 'provided,
shall be entitled as :of right to the appointment of a receiver
of the Utility System in an appropriate judicial proceeding in a
court of 'competent jurisdiction, whether ornot such . Holder or
trustee is also seeking or shall have sought to enforce any
other right or exercise any other remedy inconnection with
Bonds issued pursuant to this Resolution.
The receiver so' appointed shall forthwith, directly or by
his agents and : attorneys, enter into and . upon and take
-
possession . of the Utility System, and each and every part
thereof, and shall. . hold, operate and maintain,., manage and
control the Utility System,, : and each and. every part thereof, and
in the name of the; City shall exercise all the rights 'and 'powers
.
of the City withrespect to the Utility System as the City
itself might do. Such receiver shall collect and receive all
Revenues and maintain and operate the . Utility System in the
manner provided in this Resolutionand comply under the
jurisdiction of the court appointing such receiver, with all of
the provisions of this Resolution.
Whenever all that is 'due upon the' Bonds, and interest
thereon, andunderany covenants of this Resolution for the
Funds' and Accounts, and upon any other obligations and interest
thereon ' havinga ' charge, lien or encumbrance , upon the . Revenues
of the Utility System and the Impact Fees shall have been paid
and made good, and all defaults under the provisions of this
Resolution shall have been cured and: made good, possession of
the Utility System shall be surrendered to . the City upon the
entry of an order of the court to that effect. Upon any
subsequent Event of Default, any Holder of Bonds issued pursuant
to this Resolution, or any trustee appointed for Bondholders as
hereinafter provided, shall have the right. - to secure the further
appointment of a receiver .
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5869M
Such receiver shall in the performance of the powers ,
hereinabove conferred upon him be under the direction and
supervision of the. court making such appointment, shall at all
times be subject to the orders , and decrees of such court and may
be removed thereby and a successor receiver appointed in the
discretion of such court. Nothing herein contained shall limit
or restrict the jurisdiction of such court to enter such other.
and further ordersand decrees as such court ' may .deem necessary
or appropriate for the exercise by the receiverofany . function
not specifically set forth herein.
Any receiver appointed as provided herein ' shall . hold and
operate the Utility System in the name of. the City and for the
joint protection and benefit of , the City and the Holders of
Bonds issued pursuant to this Resolution. Such receiver shall
have no power to sell, assign, mortgage or otherwise dispose of
any assets of any kind or character belonging or pertaining to
the Utility 'System, except as provided herein, but the authority.
of such receiver shall be limited to the possession, operation
and maintenance of the Utility System for the sole purpose of
the protection of both the City and the Bondholders.
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 this
Resolution with authority to represent . such Bondholders in any
legal, proceedings for the enforcement and protection of the
rights of such Bondholders . Such certificate shall be executed
by such Bondholders or their duly authorized attorneys or
representatives, and shall be filed in the office of the City
Clerk of the City.
Notwithstanding anything' in this 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.
Section 804. Pro Rata Application of Funds.' Anything in
this Resolution to the contrary notwithstanding, if at anytime
the moneys in the Sinking Fund Account shall not be sufficient
to pay the principal of ortheinterest on the Bonds as the same
become due and payable (either by their terms or by acceleration
of maturities under the provisions of Section 802 of this
Article) , such moneys, together with any moneys then 'available
for such purpose, whether through the exercise 'of the remedies
provided for in this Article or otherwise, shall be applied as
follows:
(a) . Unlessthe principal of all the Bonds' shall have
become due and payable or - shall have been declared due and
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5869M
payable, .all , such. moneys shall be applied:
First : , to,. the paymentof_ 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 preferenceexcept as to any
differencein the respective rates of interest specified in
the Bonds;
B9coad: tothe payment of the persons entitled
thereto of the unpaid principal of any of the Bonds which
shalil have become due (other than Bonds called for
redemption forthe payment of which sufficient moneys 'are
held pursuant to the provisions of this Resolution) , in the
order of their due dates, with interest upon such Bonds at
the respective rates specified therein from the respective
dates upon which they became due, and, if the amount
available shall not be sufficient to payin 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 tothe redemption. of Bonds, : all in accordance.
with the provisions of Article V of this Resolution.
(b) If the principal and 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 orofinterest over
principal or of any installment .' of interest over any other.
installment of interest, or of any Bond over any, other , Bond,
ratably, accordingto the amounts due respectively for principal
and interest, to the personsentitled 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 under the provisions.
of ' Section 803 of this Article, then, subject to the 'provisions'
of 'paragraph (b) of this Section in the event thatthe principal
of all the Bonds shalllater become due or be declared due and
payable, the moneys remaining in and thereafter accruing to the
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Sinking. Fund Account shall be applied in accordance with the
provisions of paragraph (a) of this section.
Whenever moneys are to be applied by the City pursuant to
the provisions of this section, such moneys shall be applied by
the City at such times, and from time to time, as the City in
its sole discretion shall determine, having due regard to the
amount of such moneys available for application and the
likelihood of additional moneys becoming available for such
application in the future; the deposit of such moneys with the
Bond Registrar, or otherwise setting aside such moneys, in trust
for the proper purpose, shall constitute proper application by
the City; and the City shall incur no liability whatsoever to
any Bondholder or to any other person for any delay in applying
any such funds, so long as the City actswith reasonable
diligence, having due regard to the circumstances, and
ultimately applies the same in accordance with such provisions
of this Resolution as maybe applicable at the time of
application . Whenever the City shall exercise such discretion.
in applying such funds , it shall fix the date upon which such
application is to be made and upon such date interest on the
amounts of principal to be paid on such date shall cease to
accrue. The City shall givesuch notice as it may deem
appropriate and as otherwise required herein of the fixing of
any such date, and shall not be required to make payment to the
Holder of any unpaid Bond until such Bond shall be surrendered
to it for appropriate endorsement.
Section 805 . effect of Discontinuance DU Proceedinas_, In
case any proceeding taken by any Bondholder on account of any
default shall have been discontinued or abandoned for any
reason, then and in every such case the City and the Bondholder
shall be restored to their former positions and rights
hereunder, respectively, and all rights and remedies of the
Bondholders shall continue as though nosuch proceeding had been
taken.
Section 806 . 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 orprejudice the security of
this Resolution, or to enforce any right hereunder except in the
manner herein provided, and all proceedings at law or in equity
shall be instituted, had and maintained for the benefit of all
Holders of such Bonds.
Section 807. Igo Remedy Exclusive. No remedy herein
conferred upon the Bondholders" is intended to be exclusive of
any other remedyor remedies herein provided, and each and every
such remedy shall be cumulative and shall be . in addition to
every other remedy given hereunder.
Section 808. Delay Not a Waiver. No delay or omission of
any Bondholder to exercise any right or power accruing upon any
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default •shall: impair any such -, right or power or shall be
construed to be a waiver:,: of . any :such':default or an acquiescence
therein; and every power and remedygiven by this Article to the
Bondholder may be. exercised from time to time and as often as
may be deemed expedient.
Section- 809:'.. Fight to Enforce Payment of Bonds. Nothing,
in this Article shallaffect or impair the right of any '
Bondholder . to enforce the payment of the principal of and
interest on his Bond, or the obligation of the City to pay the
principal of and interest on each Bond to the Holder thereof at
the time and place in said Bond expressed.
ARTICLE IX
EXECUTION OF INSTRUMENTS BY BONDHOLDERS
AND PROOF OF OWNERSHIP OF BONDS
Section . 901. Execution, of Instruments by $ondholders and
Proof of Ownership Qf Jm ds. Any request, direction, consent or
other" instrument in writing required or permitted by this
Resolution to be signed or executed by Bondholders may be in any,
number of concurrent instruments of similar tenor and may be
signed or executed by such Bondholders or their attorneys or
legal representatives. Proof of the execution of any such
instrument may be proved by the ' verification of any officer in
any jurisdiction who, bythe laws thereof, has power to take
affidavits' 'within ' such jurisdiction, to the effect that such
instrument was subscribed and sworn to before him, or by an
affidavit of a witness to such execution. Where such execution . .
is on behalf of a person other than an individual such
verification or affidavit shall also constitute sufficient proof
of theauthority of the signer thereof.. '
(b) The ' fact of the . ownership of Bonds shall ` be
proved by : .the registration books required to' be ..maintained.
pursuant to Article II of this Resolution.
Nothing contained in this Article shall be construed as
limiting. the City. to such proof, it being , intended that the City
may accept any other' evidence .of- the matters herein stated which
itmay` deem sufficient. Any request .or .consent of the Holder of
any Bond shall bind every future Holder of the same Bond in'
respect of anything done by the City in pursuance of such
request or consent.
Notwithstanding any of,. the foregoing provisiOns 'of this
Section, the City"shall not be required' to. ..recognize . any person
as a' Holder of any Bond orto take any action at his request
unless such Bond shall be deposited with it .
Section 902 . pond Insurer Deemed Holder. - To the extent
provided.. . in 'a.. -.Series .Resolution, the issuer of any Credit •
Facilitywith respect .to ' any : Series of Bonds, shall , be deemed .to
be the 'holder of such Bonds .
ARTICLE X
SUPPLEMENTAL RESOLUTIONS
Section 1001. Supplemental Resolutions Without
Bondholders ' Consent . The Commission may, from time to time and
at any time adopt such Resolutions supplemental hereto as shall
not be'4inconsistent with the terms and provisions hereof (whici
supplemental Resolution shall thereafter form a part hereof) :
(a) to cure any ambiguity or formal defect or
omission or to correct any inconsistent provisions in this .
Resolution orin 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
this Resolution other conditions, limitations and restrictions
thereafter to be observed, or
(.d) to .add to the, covenants andagreements. of the,.
City .. in this Resolution other covenants and agreements
thereafter to be observed by the City or to surrender any right,
or power herein reserved to or conferred upon the City, or
(e) topermit the issuance of Bonds in coupon form,
if as a condition precedent to the adoption of such supplemental "
resolution, there shall bedelivered to the City an opinion of
Bond Counsel to theeffect 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 Federalincome
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 this Resolution as an "indenture"
under the Trust Indenture Act of 1939, as amended, or
(i) to create additional, Sinking Fund Accounts for
series of Additional Bonds as permitted by Section 505 hereof, or .
(j) to permit Bonds to be . issued in denominations
other than $5, 000, , or
(k) to comply with requirements of entities providing
Credit "Facilities , Reserve Account Insurance Policies and
Reserve Account Letters of Credit.
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Section : 1002 Bunnlemental Resolutions with Bondholders '
Consent,, Subject tothe._ terms and provisions contained in this
Section, andnot otherwise, , the Holders of not less than a
majority in aggregate principal amount of the Bonds then
outstanding ' shall have the right, from time totime, anything
contained in this Resolution to the contrary notwithstanding, to
consen.t�.. to and 'approve the adoption of such resolution or
resolutions supplemental heretoas shall 'be ' deemed. necessary or
desirable by the City for the purpose of modifying, altering,
amending, adding to Or rescinding, in any particular, any of the
terms or ' provisions contained in this' Resolution or in a
supplemental resolution; provided, however, that nothing herein
contained shall permit,' or be construed as permitting, without
the consent of the Holders of all Bonds affected, (a)' an
extension of the maturity of the principal of orthe interest on
any Bond issued hereunder, or (b) a reduction in the principal
amount of any Bond or the redemption: premium or the j rate of
interest thereon, or (c) thecreation of a lien upon or a pledge
of Revenues . other than the lien and pledgecreated by this
Resolution, or (d) 'a preference or priority of any Bond or, Bonds
over any other Bond ' or Bonds, or. (e) a reduction inthe
aggregate principal amount of the Bonds required for consent to.
such supplemental resolution. Nothing herein contained, however,
shall be . ' construed as making necessary the "approval by
Bondholders ofthe' adoption of any supplemental resolution. as
authorized in Section 1001 of this Article.
The consent ' of the Holders of any series of Additional
Bonds oto be issued, hereunder shall be deemed . given if the
underwriters or initial purchasers for resale consent in writing
to such supplemental resolution the nature of the amendment
effected by such supplemental resolution is disclosed in the
official statement or other, offering document pursuant to which
such Series of Additional Bonds is offered and sold to the
public.
If at any time the. City shall' determine that it is
necessary or desirable to adopt any supplemental resolution for
any of the purposes of this Section, the City shall cause notice "
of the "proposed adoption of such supplemental resolution to be
mailed, postage prepaid, to all 'registered owners of Bonds then
outstanding, at their addresses as . they . appear on the
registration books. Such notice shall' 'briefly set forththe
nature of the proposed supplemental resolution and shall state
that the copies thereof are on file at theofficeof the City
Clerk for inspection by all Bondholders. The city shall not,
however, - be -subject toany liability to any Bondholder by reason.
of '.its, failure to . cause the notice : required by this. Section to
be mailed ' and any such failure , shall 'not affect the validity of
suchsupplementalresolution when consented' to ' and approved as
providedin this Section.
Whenever, at:..the' time within one year , after.. the date of the
first mailing .of such notice, the City shall deliver to the
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Finance Director an instrument or instruments in writing
purporting tobe executed by the Holders of not less than a
majority in aggregate - principal amount of the Bonds then
Outstanding, which instrument or instruments shall refer to the
proposed supplementalresolution described in such notice and
shall specifically consent to and approve the adoptionthereof
in substantially the form 'f the copy thereof referred to_ ln
such 6tice, thereupon, but not otherwise, the commission may
adopt such supplemental resolution in substantially such form,
without liability or responsibility to any holder of any Bond,
whether or not such Holder shall have consented thereto.
If the Holders of not less than a majority in aggregate
.,principal amount of the Bonds then Outstanding at the time of
the. adoption of such supplemental resolution shall have
consented to and approved the adoption . thereof as herein .
provided, no Holder of any Bond shall have anyright to object
to the adoption of such supplemental resolution, or to object to
any of the termsand provisions contained therein or the,
operation thereof, or in. any manner to question the propriety of
the adoption thereof , or to enjoin or restrain the commission
from adopting the same or from taking any action pursuant to the
provisions thereof.
Upon the 'ado tion of an supplemental " resolution
p y� pp pursuant
to the provisions of this Section, - this Resolution shall be
deemed to be modified and amended in accordance therewith, and
the respective rights, duties and obligations under this
Resolution of the City and all Holders of Bonds then Outstanding .
shall thereafterbe determined, exercised 'and enforced in all
respects under the provisions of this Resolution as so modified
and amended.
Section 1003. Supplemental Re,solutio s' Part .pf Resolution,
Any supplemental Resolution adopted in accordance with the
provisionsof this Article and approved as' to legality by 'the
City Attorney shall thereafter forma part of this Resolution,
and all of the terms and conditions contained in any such
supplemental Resolution as to any provision authorized to be
contained therein shall be and shall be deemed to be part of the
terms and conditions of this Resolution for any and all
purposes. In case of theadoption and approval of any
supplemental Resolution, express reference may be made thereof
in the text of any Bonds issued thereafter, if deemed necessary
or desirable by the City. . .
ARTICLE XI '
DEFEASANCE
Section 1101. Ces”tion of , nterests of Bondholders . If, .
when the ' Bonds secured hereby (a) shall have become 'due and
payable in accordance with their terms or (b) shall have been
duly called for redemption or (c) irrevocable instructions' to
call the, Bonds for redemption' or' to pay the Bonds at their
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respective maturities or ,combination .. of such payment and
redemption shall have been given by 'the City, the whole amount
of theprincipal and the interest and premium, if any, so due
and payable upon all of the Bonds then Outstanding shall bepaid
or sufficient moneys, or Government Obligationsthe . principalof
and the interest (which with respect to any Variable Rate Bonds
shall Abe .."assumed to be the maximum nterest rate permitted under
the documents governing such Variable Rate Bonds) on which when
due will provide sufficient moneys, shallbe held by the .Bond
Registrar or other bank, trust company or other appropriate
financial institution, acting as escrow agent, for such purpose
under the provisions of this Resolution, and provision shall
also be made for paying all other sums payable hereunder by , the
City, then and inthat case theright, title and interest of the
Holders of the Bonds secured hereby in the Pledged Revenues,
funds and accounts mentioned in this 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
deposited pursuant to this Section, and the Commission in such
case, shall repeal and cancel this Resolution andmay apply any
surplus in any subaccount in the Sinking 'Fund Account and all. .
balances remaining inany other funds oraccounts 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 this Resolution shall be.,
continue and remain in full force and effect; provided, however,
that in the event Government Obligations shall be deposited with
and held by the Bond , Registrar or other bank, trust company or
other 'appropriate ' financial institution, acting as escrow agent,
as hereinabove provided, and in addition to the requirements set
forth in Article III of , this Resolution, the City shall within
thirty (30) days after such Government Obligations shall have
been deposited with the Bond Registraror other 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 redeemedprior 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 heldbythe , Bond. Registrar or other bank, trust..
company or other appropriate financial institution, acting as
escrow agent, and (c) that this 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
the same persons entitled to receive a notice- of redemption of
the Bonds for whose benefits such deposit shall :have been made
as provided in Section 303 hereof:
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With respect to Variable Rate Bonds or Optional Tender
Bonds, prior to the release of this Resolution, there shall be
filed with the Finance . Director, the following: (i) a resolution
adopted by the Commission determining (which determination may
be based upon opinions of bond counsel or investment bankers)
that the rights of the owners of such Variable Rate Bonds or
Optional Tender Bonds to receive payment of interest at :-the-
Variable Rate as provided in the documents pursuant to which
such Bonds were issued and the right to receive payment of the
purchase price of such Bonds upon tender for purchase, as
provided in the documents pursuant to which such Bonds were
issued, either pursuant to a Credit Facility provided therefor
or otherwise willnot be materially adversely impaired by the
release of this Resolution pursuant to this Article XI; (ii ) a
resolution, adopted by the Commission, which may be the same
resolution specified in clause (i) above, specifying the uses to
which any Current Excess Interest Earnings (as hereinafter
defined) may be applied, which may include thefinancing of
Improvements or Capital Expenditures, ' as defined in this
Resolution, for the Utility System or Current Expenses of the
Utility System to the extent thatexpenditure of such sums for
such purpose reduces the required Revenues, or, if the City no
longer owns the Utility System, the capital expenditures for
other. . lawful , purposes: of the City, in each event, such uses -
• shall be for facilities the construction or acquisition of -which
would, but for the receipt of such Current Excess Interest
Earnings, have been constructed or acquired using proceeds of
unissued Bonds or other bonds of the City or paid from future
revenues. of the city; ..and (iii) . .there shall . have been furnished
to the City, as a condition of the release of this Resolution,
an opinion of Bond Counsel to the effect .that such release will
not have an adverse effect on the Federal income tax exemption
of interest on any of such Bonds as are then exempt from such
taxation. ' .
For the purposes of this Section, "Current Excess Interest
Earnings" shall mean for each period for which interest is
received by the escrow agenton the Government Obligations held
in escrow for the Holders of the outstanding Bonds, the excess,
if any, of interest received on such Government Obligations over
the amount of interest paid on the Variable Rate Bonds in such
period. The agreement pursuant to which such Government
Obligations are held by theescrow agent shall provide for
withdrawal of such Current Excess Interest Earningswhen
received by the escrow agent and payment of such sums to the
city for ' expenditure' 'in the manner provided in the 'resolution
mentioned in clause (ii) of the preceding paragraph; provided,
however, to ' the extent that ' such Current Excess Interest
Earnings are derived from Government Obligations described ' in
clause (iii) of the definition of Government Obligations, this
paragraph shall not apply. '
All moneys and obligations held by the Bond Registrar or
other bank, trust company or other 'appropriate financial
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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 there from.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 1201. effect of Covenants. All covenants,
stipulations, obligations and agreements of the City contained
in this Resolution shall be deemed to be covenants,
stipulations, obligations and agreements of the City and of the
Commission and of each department and agency of the city to the
full extent authorized or permitted., by law, and all such
covenants, stipulations, obligations and agreements shall bind
or inure, to the benefit of the successor or successors thereof
from time to time and any officer, board, body or commission to
whom or to which any power or duty affecting such covenants,
stipulations, obligations and agreements shall be transferred by
or in accordance with law.
Except as otherwise provided in this Resolution, all
rights, powers' and privileges conferred and duties and
liabilities imposed upon the City or upon the Commission by the
provisions of this Resolution shall be exercised or performed by
the commission, or by such other officers, board, body or
commission as may be required by law to exercise such powers or
to perform such duties.
No covenant, stipulation, obligation or agreement herein
contained shall be deemed to be a covenant, stipulation,'
obligation or' agreement of any member, agent or employee of the.
Commission in his individual capacity, and neither the members
of the Commission nor any, official executing the Bonds shall be
liable personally on' the Bonds or be subject to any personal
liability or accountability by reason of the issuance thereof .
Section 1202. Manner of Giving Notice. Any notice,
demand, direction, request or other instrument authorized' or
required by, this Resolution to be given to or , filed with the
City shall be deemed to have been sufficiently given, or filed
for all purposes of this Resolution if and when sent by
registered mail, return receipt requested, to the City at
City of Boynton Beach
100 East Boynton Beach Boulevard .
Boynton Beach, Florida 33425
Attention: Director of Finance
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All documents received by. the City and the Commission under
the provisions of this Resolution shall, be , retained in their
possession, subject at all reasonable times to the inspection of
the City, any Bondholder, and the agents and representatives
thereof.
Section 1203 . Fuccessorshir of Bond Registrar. Any bank
or trust company with or into which the Bond Registrar may be
merged or consolidated, or to which the assets and ' business of
such Bond Registrar may be sold, shall be deemed the successor
of such Bond Registrar for the purposes of this Resolution. If
the position of the Bond Registrar shall become vacant for any
reason, the Commission shall, within thirty (30) days
thereafter, appoint a bank or trust company located in the same
city, as the Bond Registrar to fill such vacancy. The City
shall have the right at any time to remove the Bond Registrar
and .to appoint a successor Bond Registrar; provided, however,
that no such removal and appointment shall cause a delay in the
payment of principal of, redemption premium, if any, or interest
on any Bond Outstanding under . this. Resolution.
Section 1204 . Successorship by City Officers . In the
event that the offices of Mayor, Finance Director, City Manager,
City, Clerk or City _Attorney shall be abolished .. or any two or•,
more of such offices shall be merged or consolidated, or in the
event of a vacancy in any such office. by reason of death,
resignation, removal from office or otherwise, or in the event
any such officer shall become incapable of performing the duties
of his office by reason of sickness, absence from the City or
otherwise, all powers conferred and all obligations and duties
imposed upon such officer shall be . performed by the officer
succeeding to the principal functions thereof or by the officer
upon whom such powers , obligations and duties shall be imposed
by law,.
Section 1205. Inconsistent ' Resolutions. All resolutions
and parts thereof which are inconsistent with any of the.
provisions of this Resolution are hereby declared to be
inapplicable to the provisions of this Resolution.
Section 1206 . Further Acts . Theofficers and agents of
this City are hereby authorized and directed to do allthe acts
and . things required of them by the Bonds and this. Resolution,
for the full, punctual andcomplete performance of all of the
terms, covenants, provisions and agreements contained in the
Bonds and this Resolution.
Section 1207. Headings Not ' Part of Resolution., Any
headings preceding the texts of the several Articles and
sections hereof and any table of contents, marginal notes or
footnotes appended to copies_ hereof shall be ' ' solely for
convenience of reference, and shall not constitute a part of .
this Resolution, nor shall they effect its meaning, construction
or effect.
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Section 1208 .. City and Bondholders Alone Have Rights Under
Resolution. Except as:.-° hereinotherwise expressly provided,
nothing in this Resolution, expressed' or =implied, is intended or
shall be construedto confer uponany person, firm or
corporation, other than the City and the. Holders of the Bonds
issued under and secured by this Resolution, any right, remedy
orclam, legal or equitable, under or by reason of -the
Resolution or any .p :ovisions hereof, this Resolution and all its'
provisions being intended to be and being for the sale and
exclusive benefit of the City and the Holders from time to time
of the Bonds issued hereunder. .
Section 1209 . . Effect of Partial Invalidity. In case any
one or more of the provisions of this Resolution or of any, Bonds
or coupons issued hereunder shall for 'any 'reason. be . heldto be
illegal or invalid, such illegality '-or . invalidity, shall not
affect any other provision of this Resolution or of the Bonds or
coupons, but this Resolution and the Bonds and coupons shall be
construed and enforced as if such illegal or invalid provision .
had not been contained therein. . , The Bonds are issued and this
Resolution is adopted with theintentthat the laws, of the State , .
of Florida shall govern their construction.
Section 1210. Resolution Effective. This Resolution shall
take effect immediately upon its adoption.
Passed and adopted this 16th day of June, 1992 .
(SEAL).
ATTEST CITY. OF BOYNTON
B By:
Y
Ci Clerk Ma or
APPROVED AS TO 0: 111.-
AND
AND, LEGA SUF IC NCY: Vi. - Mayor
/4 .✓' .
Jo/. „ f
By:
Cwy Attor'-y ommissioner
Ad- ga4Z
Commissi. er
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Mlle . City ;i f = ov1r t n. ear
City.Clerk's Office
r ' 100 E BOYNTON BEACH BLVD
' ' °` BOYNTON.BEACH FL 33435
•
(561) 742-6060
FAX: (561) 742-6090
•.•
1
0 • e-mail . prainitoj@cfl.us
•
www.Boynton-beach.or g
• CERTIFICATION
I, ]ANET M. PRAINITO, CITY CLERK of the,City of Boynton Beach, Florida,
do hereby certify that the attached Resolution No. R92-102 consisting of 30 pages is a
• true and correct copy as it appears in the:records of the City of Boynton Beach, Florida.
WITNESS, my hand and the corporate seal of the CITY OF BOYNTON BEACH,
FLORIDA, dated this 21St day of February, 2012.
. - . 41.
35. ET M. PRAINITO, MMC
CITY CLERK
(SEAL)
-
•
•
40
S:\CC\WP\certifications\Resolut ons\2012\Certified R92-102 doc
America's Gateway to the Gulfstiearn
RESOLUTION NO. R 92_/& .
A SERIES RESOLUTION PROVIDING FOR THE ISSUANCE � .
" OF $60, 255,000 ACGREGATE PRINCIPAL AMOUNT OF
UTILITY SYSTEM REVENUE BONDS, SERIES 1.992;
FIXING AND DETERMINING THE PRINCIPAL AMOUNT,
INTEREST RATES, I+1ATURITY DATES,: REDEMPTION
PROVISIONS . AND OTHER DETAILS OF SAID BONDS;'
MAKING CERTAIN REVISIONS TO RESOLUTION NO.
R 92-96; FINDING NECESSITY FOR .A NEGOTIATED
SALE OF SUCH BONDS; . RATIFYING THE FORM AND USE
OF - A PRELIMINARY OFFICIAL STATEMENT AND
AUTHORIZING THE PREPARATIOI , APPROVAL AND
EXECUTION OF A FINAL OFFICIAL STATEMENT IN
CONNECTION WITH SUCH BONDS; AUTHORIZING THE
EXECUTION CoF A BOND PURCHASE AGREEMENT, A BOND
REGISTRAR AGREEMENT, A . FORWARD PURCHASE
AGREEMENT AND AN ESCROW DEPOSIT AGREEMENT;
PROVIDING. FOR THE APPLICATION OF THE PROCEEDS
OF SAID BONDS AND CERTAIN OTHER . MONEYS;
DIRECTING THE REFUNDING OF THE CITY' S
OUTSTANDING WATER AND SEWER UTILITY REVENUE
BONDS; 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 Council") on June 16, 1992
(the "Bond Resolution") obligations of the City may be issued and
may be secured by a' lien upon andpledge 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 1992
Bonds") under the Bond Resolution to provide fundsto pay the cost
of. Improvements . to ,the Utility System (as,, defined in the Bond
Resolution) , to advance refund the Prior Bonds (as defined in the
Bond Resolution) , to provide for a deposit to the Reserve Account
(as defined in the Bond Resolution) and to pay certain costs of
issuing such Series 1992 Bonds; and
WHEREAS, prior to the issuance of the Series 1992 Bonds the
conditions set forth in Section 208 of the Bond Resolution shall.
be satisfied; and
WHEREAS, the City Council has determined that because of the
unsettled nature of the municipal bond market and for other
reasons the sale of such Series 1992 Bonds through negotiation
with the Original Purchasers (hereinafter defined) is in the best
interest of the City; and
WHEREAS, the City Council has received from Smith Barney,
Harris Upham & Co. Incorporated, as representative of itself and
William R. Hough & Co. and Stifel, Nicolaus & Company Incorporated
(collectively, the "Original Purchasers") , a proposal to purchase
the Series 1992 Bonds in the form of a Bond Purchase Agreement by
and between the Cityand the Original Purchasers, and the City
Council has determined that the acceptance of such proposal 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 desirableto ratify the form and
use of a Preliminary Official Statement and to approve the
preparation and execution of a Final Official Statement in
connection withthe issuance of such Series 1992 Bonds; and
WHEREAS, it is necessary and desirable to specify the dates,.
the interest rates , maturity dates, and redemption provisions for
such Series 1992 Bonds and to appoint Barnett Banks Trust Company,
N.A. as Bond Registrar for such Series 1992 Bonds; and
WHEREAS, it is necessary and desirable to provide for the
advance-refunding of the Prior Bonds; and
WHEREAS, it is necessary and desirable to approve the form of
and authorize ' the execution and delivery of an ' escrow deposit
agreement between the City and Barnett Banks Trust Company, N.A. ;
and
WHEREAS, it is necessary and desirable to approve the form of
and authorize the execution and delivery of a forward purchase
agreement by and among Barnett Banks Trust Company, N.A. ,
Sakura Global Capital, Inc. and the City; and
WHEREAS, the City has received a commitment from Financial.
Guaranty 'Insurance Company to issue its municipal bond insurance
policy insuring the payment of principal of and interest on the
Series 1992 Bonds and it is necessary and desirable to accept such
commitment .
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NOW, THEREFORE, 'BE' IT RESOLVED BY THE CITY COUNCIL 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 uther 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 lawfullyand
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 1992
Bonds are issuedand delivered by the City and paid for by the
Original Purchasers .
"Interest Payment Date" shall mean May 1 andNovember 1 of
each year, commencing November 1, 1992 .
"Project" means. those Improvements to the Utility. System
described in the Preliminary Official. Statement attached hereto as
Exhibit' "D in the ..Section .thereof.:.entitled "The 19.92 Project. "'
Section 3 . Authorization ,of Bonds . Bonds . are ' hereby
authorized to be issued pursuant to . this'. Resolution. and Section
208 of the . Bond Resolution in the aggregate principal amount of
$60,255,000,- ,The Bonds hereby authorized shall be known as
"Utility System Revenue Bonds, Series 1992". (the "Series 1992
Bonds" ) . Prior . to the issuance of the Series 1992 Bonds the
conditions of Section 208 of the Bond Resolution shall be
satisfied.. The Series' 1992 ' Bonds are being issued .to provide,
funds ` to pay the Cost of the Project and the costs ofissuing the
Series 1992, Bonds, to provide for a ': deposit; to the Series 1992
Reserve Subaccount and to provide for the advance-refunding of the
Prior Bonds.
Section 4 . Terms of the Series 1992 Bonds . .
(a) Form of Bonds. The Series 1992 Bonds shall be
substantially in the formof the Bonds setforth 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 1992 Bonds. set . forth herein as may be approved by the
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officers of. the City 'executing the - Series: 1992 . Bonds, such
. execution to' be conclusive evidence of such approval.
(b) Amounts , Maturities . and Interest Rates . The Series 1992 .,
Bonds will consist of ' $18, 735, 000 aggregate principal amount of
Current Interest Serial Bonds and $41,520,000 aggregate principal
amount of Current Interest Term Bonds .
The-Series 1992 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 ' June 15, 1992, and shall bear interest from such date,
payable - semi-annually on the first day of May and November of each
year, ' commencing November 1, 1992. The. Series 1992 Bonds shall be
issued in the -aggregate principal amounts, shall bear interest at
the ratesper annum computed on the basis ofa 360-day year
consisting of twelve 30-day months, and, shall mature on November 1
of the years, as set forth in the following table:
Amount Maturity Interest Rate
$ 1,360, 000 1992 2 . 900%
850 , 000 1993 3.200
880, 000 1994. 4 . 100
92D 000 1995 - . ' 4 .550
965, 000 1996 - 4. 800
• 1,005, 000 1997 . 4 . 900
1, 055, 000 1998 5 .250
1,110, 000 . 1999 5 .400
1, 175, 000 2000 5. 60.0
1, 240,000 . 2001 5 . 700
1,,305, 000 2002 5 .800
1,390, 000 . 2003 . 5. 900
1, 715,000 2004 6. 000
1,825, 000 2005 6 . 150
1,940 , 000 2006 6.200
14, 415, 000. 2012 6.250
27, 105, 000 2020 6. 250
Principal .of the Series 1992 Bonds shall be payable only upon
presentation and surrender of such Bonds at the principal office
of the Bond Registrar. Interest on the Series 1992 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 1992
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 1992 Bonds, -as shown on the
registration books kept by the Bond Registrar on the Regular
Record Date :or . the Special Record Date. .
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(c) . Mandatory Redemption: The Series 1992 maturing in the
year 2012 (the "2012 Term Bonds") " shall be : subject" to mandatory
redemption in part (exceptfor the finalinstallment due at.
maturity which shall not be a redemption) by the City at a
redemption price equal to the unpaid principal amount thereof plus.
accrued interest thereon to the redemption date, on November 1 in
such years and in the principal amounts: (the "Amortization
Requirements") as set -forthbelow:
2012 Term Bonds
Year Amount
2007 $2,.055,000
2008. 2, 180 , 000
2009. . 2,320,000
2010 2,460, 000
2011 2, 615 ,000
2012 (Maturity) 2,785,000,
The Series 1992 Bonds maturing in the year 2020 (the "2020
Term Bonds" ) shall be subject to mandatory redemption in part ,
(except for the final " installment due at maturity which shall not
be a redemption) . by the City at a redemption price equal to the
unpaid . principal amountthereofplus accrued interest thereon to
the redemption date, on November 1 in such years and in the
principal amounts (the "Amortization Requirements") as set forth
below: .
2020 Term Bonds, _
Year Amount
2013 $2, 715, 000 .. .
2014 2,885, 000 .
2015 3, 060, 000
2015 3,255,000
2017 3,460, 000
2018 3, 675,000
2019 3,905,000
2020 (Maturity) 4, 150, 000
If prior to any November .1 the City shall 'purchase for
cancellation or redeem 2032 Term- Bonds , 2020 Term Bonds,
respectively, in excess• of the aggregate Amortization Requirements
for such 2012 Term- Bonds .or 2020 Term Bonds, respectively, to but
not including such November. 1,. such excess of, '2012 Term. Bonds or.
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2020 Term. Bonds, as the case may be, so purchased or redeemed and
not previously applied as a credit pursuant to this Section 4
shall be credited over such of the remaining mandatory redemption
dates and Amortization Requirements for such 2012 Term Bonds or
2020 Term Bonds, as the case may be, as the City shall determine,
and shall reduce the amount of 2012 Term Bonds or 2020 Term Bonds ,
respectively, otherwise subject to redemption and due on such
dates,,, Provided, however, that no such excess shall be credited
to the amount of 2012. Term Bonds or 2020 Term Bonds subject to.
mandatory redemption on a particular November 1 after the
selection of 2012 Term Bonds or 2020 Term Bonds to be redeemed on
such date has been made.
(d) Optional ate 3emption. The Series 1992 Bonds maturing on
or before November 1, 2002, are not subject to redemption prior to
their respective maturities . The Series 1992 Bonds maturing on or
after November 1, 2003, may be redeemed prior to their respective
maturities , at the option of the City, from any moneys legally
available for such purpose, either in whole on any date not
earlier than November 1, 2002, or in part in any order of
maturities selected by the Finance Director of the City (by lot
within any maturity) on any date not earlier than November 1,
2002, at the redemption prices (expressed as percentages of the
principal amount of the Series 1992 Bonds to be redeemed) ,
-- together with accrued interest to theredemption dateas follows:
Redemption Period _Odoth dates inclusive) Bedemption Prices
November 1, 2002 to October 31, 2003 102%
November 1, 2003 to October 31, 2004 101
November 1, 2004 and thereafter 100
(e) Reserve__Account Deposit Requirement. The Series 1992
Reserve Subaccount shall be funded in an amount equal to the
Reserve Account Requirement for the Series 1992 Bonds at the time
of initial issuance and delivery of the Series 1992 Bonds, and in.
the event any deficiency is created in . the Series 1992 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.
(a) • Section 101 of the Bond Resolution is amended by the
addition thereto of two new definitions as follows:
"Bond Insurance Policy" shall mean the municipal
bond new issue insurancepolicy issued by the 1992 Bond
Insurer that guarantees payment of principal of and
interest on the Series 1992 Bonds.,
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"1992 Bond Insurer" "Shall mean Financial Guaranty ,
Insurance Company, a New : York stock insurance company,
or any successor thereto.
(b) The definition. of "Credit Facility". contained in Section
101 of the. Bond Resolution is amended in its entirety to provide
as follows :
"''''°rtredit 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. "
(c) - The definition of "Current Expenses" contained in Section
101 of the Bond Resolution is amended in its entiretyto provide
as follows:
'Current 'Expenses" shall mean the City' s reasonable
and necessary current expenses of maintenance, repair
and operation of the Utility 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 ,
Utility System 'pursuant to the Annual 'Budget, any
reasonable payments to pension or retirement . funds
properly chargeable to the Utility. System, insurance
premiums, engineering expenses relating to maintenance,
repair and operation, expenses, includingengineering
expenses incurred in connection with the research and
development of improvements or planned or possible
improvementsto the Utility System, fees and expenses of
the Bond Registrar, legal and accounting expenses, any
fees, fines, or penalties lawfully imposed on the
Utility System, any taxes which may be lawfully imposed .
on theUtility System or its income or operations. . and
reserves for such taxes, 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
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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 this 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 anyreserves for extraordinary
rn ntenance 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 Sections 209 and 502 of this Resolution, any City
administrative expenses allocated to the Utility System. "
(d) The definition of "Government Obligations" contained in
Section 101 of the Bond Resolution is amended in its entirety to
provide as follows :
" ' Government Obligations ' shall mean obligations
described in clause (i) of the definition of "Investment
Obligations" in the Resolution."
(e) Clauses (i) and (v) of the definition of "Investment
Obligations" contained in Section 101 of the Bond Resolution are
amended in their entirety to provide as follows:
" (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 guaranty; "
"(v) Municipal obligations, the timely payment of the
principal of, interest onand 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 category (without regard to any
gradation within such category) by both Moody' s
Investors Service, Inc. and Standard & Poor' s
Corporation; " .
-8- - . . 6007M
(f). . The definition of "Net 'Revenues" ' contained ' in- Section 101
of the Bond Resolution is amended in its entirety to provide as
follows:
'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, however, that for
purposes of Section 209(c) and Section . 502 hereof, the
term "Net Revenues" shall not include Revenues deposited:
in the Rate Stabilization Account ."
(g) Clause (a) of the definition of "Principal and Interest
Requirements" contained in Section 101 of the Bond Resolution is
amended in its entirety to provide as follows:
"(a) with respect to Variable Rate Bonds, the interest
rate shall be assumed to be (i) with respectto the rate
covenant contained in Section 502 hereof, the higher of
the rate of interest on such Variable Rate Bonds on the
date of calculation and the average rate of interest for
all Variable Rate Bonds for the twelve months preceding
the date of calculation (or such shorter period as such
Variable Rate Bonds shall have been outstanding) ;
"average rate". shall mean the rate . determined by
dividing the total amount of interest paid on Variable
Rate Bonds in any period by the average principal amount
of. Variable Rate Bonds outstanding during such period;
and (ii) with respect to the condition of Section 209 (c)
hereof concerning the issuance of Additional Bonds, _ and
for purposes of calculating the Reserve Account
Requirement for such Variable Rate Bonds ,, the highest of
(x) the actual rate borne on the date of calculation by
outstanding Variable Rate Bonds or, if no such debt is
outstanding, by outstanding 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 the debt proposed to be issued
("Comparable Variable Rate Debt") , (y) the average rate
borne during the twelve months preceding the date of
calculation by outstanding Variable Rate Bonds or , if no.
such debt is outstanding, by Comparable. Variable Rate -
Debt, and (z) 110% of the average of The Bond Btlyej
25-Bond Revenue Index 'over the twelve months 'preceding
the date of. calculation; "
(h) Section 102.' of the Bond Resolution is amended in it's
entirety to provide as' follows :
-9- 6007M
"Section .:102. Rules of Construction. Wordsof - the
masculinegender shall bedeemed and construed to.
include correlative words of the feminine and neuter
genders. Unless the context shall otherwise indicate,
the words. "Bond, ". "owner, " "Holder" and "person" shall
include the plural as well as the singular number, the
word "person" shall mean . any individual, corporation,
cartnership, jcint venture, association, joint-stock
ompany, trust, unincorporated organization or
government or any agency or political subdivision
thereof, and the word "Holder" or "Bondholder" when
used herein with respect to Bonds issued hereunder
shall mean the Holder or registered owner, as the case
may be, of Bonds at the time issued and- outstanding
hereunder. The word "may" shall mean "may, but shall
not be required to" and the word "including" shall mean
"including, without limitation. " All calculations of
"depreciation" shall be made ' in accordance with
generally accepted accounting principles applicable to
municipal utility systems similar to the Utility
System. "
(i) Section 209(c) of the Bond Resolution is amended in its
entirety to provide as follows :
" (c) a written statement or report described, with
respect to Additional Bonds being issued to provide
funds to pay the Cost of a Project, 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 projectedfor the Utility 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 hereinafter permitted in the next
succeeding paragraph of this Section, 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
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consecutive months selected by, the City outof the
twenty-four months preceding :.the delivery of such
written statement', or,=.;.report,; ..by. the ' Maximum Principal
and Interest Requirements , including thePrincipal, and
Interest Requirementswith 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 (c) (ii) , Net
Reti'enues consisting of Impact' Fees and amounts
transferred from the Rate Stabilization Account to the
Revenue Account shall, not in the aggregate account for
more than 10' percent of the total Net Revenues (the
period during which Net Revenues are determined for
purposes of this clause . (c) being referred to .
hereinafter as the "Measurement Period") ; " .
(j ), Section 303 of .the Bond Resolution is amended by, the
addition thereto of a final paragraph providing as follows :
"No notice: of the optional,' redemption of Bonds, except
: with respect to ,Bonds that have been defeased pursuant
to ' Section 1101 hereof, shall be , 'given as provided
herein above unless prior to the date of giving of such
noticesufficient funds shall have been deposited with
the Bond Registrar to pay . the Redemption Price of the
Bonds tobe redeemed. "
(k) Section 401 . of the Bond Resolution 'is amended by the
addition thereto of a final paragraph' providing as follows :
"To the extent there are no other funds available for
such purpose held pursuant to _this. 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
such Bonds: "
(1) Sections 505(a) and (b) . of the Bond 'Resolution .. are
amended intheir entirety to provide as follows:
" (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 (1/6) of the amount of
interest payable on the Bonds of each Series on the next
succeeding Interest • `Payment Date and equal to
one--twelfth (1/12) . or,.° . if principal 'is payable
semiannually, one-sixth (1/6) , of the next maturing
installmentof principal on all Serial Bonds then
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outstanding; provided, however, that in . each month
intervening between the date of delivery of Bonds
pursuant to Sections 208, 209 or 210 of this Resolution
(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, respectfully, the amount specified in this
subparagraph shall be that amourt which when multiplied
by the number of deposits to the credit of the Bond
Service Subaccount required to be made during such
• respectiveperiods 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 ormaturity 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 (1/12) or, if, any
Bonds are required to be ' retired semi-annually in
satisfaction of the Amortization Requirements therefor,
one-sixth (1/6) of the principal amount of Terra 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,
togetherwith other amounts on deposit therein,, to
provide for such Amortization Requirement. "
(m) Section 513 (f) of the Bond Resolution is amended in its
entirety to provide as follows:
" (f) for any lawful use of the City, provided that
repayment to the Utility System of 'any such amount
authorized to be used for any such lawful purpose may
not be imposed as a condition to the use of such funds
forsuch purpose (i) upon the approval of a majority of
all members of the Commission, in an amount in any
Fiscal Year not to exceed 20% 'of the Net Revenues (as
-12-. 600Th
hereinafter adjusted- for the purposes ..of this Section
513(f) ) for the previous Fiscal Year, or (ii) with the
approval of ' at ;least four-fifths . (4/5ths) of all .
members of the Commission, in an amount in any •Fiscal.
Year not to exceed 50% of the Net Revenues (as
hereinafter adjusted for the purposes of this Section
513(f) ) forthe preceding Fiscal Year. For purposes of
this Section 513 (f) ,. "Net Revenues" for any. Fiscal Year
shall be calculi;`ed as though "Current Expenses"
includes depreciation, , Principal and - Interest
- Requirements, Reserve • Account Deposit Requirements, .
deposits or transfers made to the Renewal, Replacement
and, Improvement Account, and payments of principal and
interest on Subordinated Indebtedness with respect to
such Fiscal Year. Furthermore, application of money
pursuant to this Section 513•(f) shall be permitted only
on the Business Day following a . 'date on which principal
on the Bonds shall have been paid: oron such earlier
dateas amounts on deposit in the Bond Service
Subaccount and Redemption Subaccount are sufficient" to
pay all principal and interest coming due on the Bonds '
on the next date on which principal is payable on the
Bonds. "
(n) A new .Section 716 is ' added to the Bond ."Resolution to..
provide as follows :
"Section 716 . Provisions concerning 1992 Bond Insuzex.
For so long as the 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 Bond 'Insurance _Policy,
(b) the City and the Bond Registrar shall notify
the 1992 Bond . Insurer. immediately of any payment
default on the Bonds, and the City shall notify the
1992 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
1992 Bond _ Insurer... shall be deemed to ' be the sole
holder of the 'Series 1992 Bonds' for so long as ' it
has : not failed to ' comply with its, ' payment
obligations under "the, Bond Insurance Policy, and
the 1992 "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,
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(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
Bond Insurance Policy,
(e) no amendment or supplement to the Resolution,
shall be effective without the prior N,ritten
consent of the 1992 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 1992 Bond Insurer shall be
provided witha full transcript of all proceedings
relating to theexecution of any supplemental
resolution.
(f) _ (1) If, at the close of business on the
Business Day preceding any Interest
Payment Date for the Series 1992 Bonds ,
there is not on deposit with the Bond
Registrar sufficient monies available to
pay all principal of and interest on the
Series 1992 Bonds due on such date, the
City and the Bond Registrar shall
immediately notify the 1992 Bond Insurer
and Citibank, 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 notprovided
the amount of such deficiency,. the Bond
Registrar shall. simultaneously make
available to the 1992 Bond Insurer and to
the Fiscal Agent the registration books
for the Series 1992 Bonds maintained by
the Bond Registrar. In addition:
(A) The Bond Registrar shall provide the
1992 Bond Insurer with a list of - the
Bondholders entitled to receive
principal or interest payments from
the 1992 Bond Insurer under the
terms of the Bond Insurance Policy
and shall make arrangements for the
1992 Bond Insurer and its Fiscal
Agent (1) to mail checksor drafts
to Bondholders entitled to receive
full or partial interest payments
fromthe 1992 Bond Insurer and (2)
to pay principal of the Bonds
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surrendered , to the . Fiscal Agent by
the Bondholders entitled to receive
:full: or partial principal payments
from the 1992 Bond Insurer; and
(B) The Bond . Registrar . shall, at the
time it makes the registration books
available to the 1992 Bond Insurer
pursuant to (i:) , above, notify
Bondholders entitled to receive the
payment of principal of or interest
on the Bonds from the 1992 Bond
Insurer (1) as , to the fact of such
entitlement', (2) that the: 1992 Bond.
Insurer will remit to them all or
part' of the interest payments coming
due subject to the terms of the 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 1992 Bond
Insurer, such Bondholder must tender
his Series 1992 Bond with the
instrument of transfer , in the form.
provided on the_ Series 1992 Bond
executed in the name of the 1992
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 .1992. Bond
Insurer, such Bondholder must tender
his Series 1992 Bond for payment
firstto the Bond Registrar, which
shall note on such Series 1992 Bond
the portion of principal paidby the
Bond Registrar, 'and then, with . an.
acceptable - form of ' . assignment
executed in the name of the 1992
Bond 'Insurer, to the Fiscal Agent,
which will • 'then pay the . unpaid
portion . of principal , to the
Bondholder subject ' to the , terms of
the Bond Insurance Policy.
(ii) In the event that the Bond Registrar has
notice that any payment of principal of
or interest on a Series 1992 Bond has.
been recovered from ' a : Bondholder pursuant
5
-1 - 5047M
to the United States Bankruptcy Code by a
trustee in bankruptcy in accordance with
the final, ' nona'ppealable order of a court
having competent jurisdiction, the Bond
Registrar shall, at the time it provides
notice to the 1992 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 1992 Bond Insurer to the
extent of such recovery, and the Bond
Registrar shall furnish to the 1992 Bond
Insurer its records evidencing the
payments of principal of and interest on
the Series 1992 Bonds which have been
made by the Bond Registrar and
subsequently recovered from Bondholders,
and the dates on which such payments were
made.
(iii) The 1992 Bond Insurer shall, to the
extent it makes payment of principal of
orinterest on the Series 1992 Bonds,
become subrogated to the rights of the
recipients of such payments in accordance -
with the terms of the 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 1992 Bond
Insurer ' s rights assubrogee on the
registration books maintainedby the Bond .
Registrar upon receipt from the , 1992 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 1992 Bond Insurer' s rights as
subrogee on the registration books for
the Series 1992 Bonds maintained by the
Bond Registrar upon receipt of proof of
the payment of 'principal thereof to the - .
Bondholders of such Series 1992 Bonds .
Notwithstanding anything in this
Resolution or the Series 1992 Bonds' to
the contrary, the Bond Registrar shall
make payment "of such past due interest
and past due principal directly to the
1992 Bond Insurer to the extent that the
1992 Bond Insurer is a subrogee with
respect thereto. "
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(g) The notice addresses for the 1992 Bond Insurer
and the Fiscal Agentshall- be asfollows:
Financial Guaranty Insurance Company.
Until September 4 , 1992 :
175 Water Street
New York, New York. 10038
Attention:- General Counsel
After September 4 , 1992:
115 Broadway
New York, New York; 1000.6
Attention General Counsel
Citibank, N.A.
20Eichange Place - 16th Floor
New York, New York 10005
Attention: Municipal Trust and ,
Agency Services Administration
(h) The 1992 Bond Insurer shall be provided with
the following information: .
(i) Within '120 days after the end of each o .
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 financial 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 theissuance 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;
(iv) a notice of the "redemption, other than
mandatorysinking - fund ' redemption, of any
of the Bonds, including the principal
amount, maturities and CUSIP numbers
thereof ;
(v) Simultaneously with thedeliveryof the
annual audited financial statements :
6.00'7M
(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 1992 Bond Insurer'
may reasonably request from time to time.
(i) The following requirements shall be fulfilled to
the satisfaction of the 1992 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 1992 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 bedeposited 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 amunicipal 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 1992
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
bepayable in one ormore draws upon
presentation by the beneficiary of a sight
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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 yearsTheissuer of the
'.tr,,4y;., 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 sufficientto
cause the cash or Investment Obligations on'
deposit in the Reserve Account. . together with
any other qualifyingcredit 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 ReserveAccount 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
creditif the letter of credit has not been
replaced or renewed. The Resolution • shall
directthe Fiduciary to .drawupon 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 1992 . Bond Insurer and in
form and substance satisfactory to the 1992
Bond Insurer as tothe 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
theissuer of such credit instrument is not a•
domestic,. entity, an opinion of foreign counsel ..
-19,� 6007M
•
in form and substance satisfactory to the 1992
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 1992 Bond Insurer and in form and
substance_ satisfactory to the 1992 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 reimbursementof 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 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
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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 in8lirance policy falls below a
S&P "AAA" or a Moody's "Asa" 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
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of cash 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.
(o) Section 1101 of the Bond Resolution is amended by the
addition thereto of a final paragraph to provide as follows:
"No deposit of cash or cash and Government Obligations
shall be deemed sufficient to pay the principal, premium
and interest on the Bonds within the meaning of this
Section 1101 unless and until the City shall have
obtained a report of . an independent nationally
recognized certified public accountant to the effect
that such deposit of cash and/or Government Obligations
shall be sufficient to pay such principal , interest and
premium. -
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(p) Clause (i). of. Section801 ' of , the Bond Resolution is
amended to provide as follows :
- s
" (i) The City shall default ' in', the due and punctual
performance of any other of the covenants , conditions,
agreements or provisions contained in the Bonds or in
this Resolution . on the part of the City to '.be performed
.ap , 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 this City '. by the holders of not less than ten
percentum (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, itshall not .
constitute an event 'of default if the City shall begin
to remedy such defaultwithin such thirty-day period and
the issuer of each Credit Facility then' outstanding
hereunder shall have given its written consent to the .
extension of such thirty-day period.
Section 6. Approval of Sale of the S Zies 1992 Bonds . The.
City hereby determines that . a negotiated sale of the Series 1992
Bonds is in the. , best interest of the City and the citizensand . :
inhabitants of the City by reason of the, volatilityof the -market
for tax exempt bonds . The -City hereby approves the sale of the
Series 1992 Bonds to the: Original Purchasers for a, price of
$58, 897 , 272.93, plus accrued interest from June 15, 1992 to the
date of delivery, with the' date of delivery to follow in the
manner and at the time and subject, to the conditions set forth in
the .Bond Purchase, Agreement . The Original Purchasers have filed
with the -City the disclosure . statement '. required by' Section
218 .385 (4) , Florida Statutes, and the competitive bidding for the
Series 1992 Bonds is hereby 'waived pursuant to the authority of ,
Section 218 . 385(1) , Florida Statutes.
Attached hereto as Exhibit "A" is a form of Bond ' Purchase
Agreement (the "Bond Purchase Agreement") . The City approves. the
Bond. Purchase Agreement 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 -deliverthe .Bond Purchase. Agreement to the Original Purchasers.,
Sectian '7. Execution and Delivery of the Series 1992 Bonds .
The Mayor and the City .Clerk are hereby authorized anddirected on .
behalf of the City to execute the 'Series " 1992 Bonds as provided in
the' Bond Resolution andsuch officials are hereby authorized and
directedupon the execution of the Series 1992 Bonds in the form
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and manner set forth herein and in the Bond Resolution to deliver
the Series 1992 Bonds in the amount authorized to be issued
hereunder to the Bond Registrar for authentication (upon the
satisfaction : of the conditions of Section 208 of the Bond
Resolution) anddelivery to or upon the order of the Original
Purchasers upon payment of the purchase price set forth herein.
-+e tion 8 . Application of Series 1992 Bond Proceeds .
Proceeds from the sale of the Series. 1992 Bonds shall be paid to
the City, except in the case of the cost of the Bond Insurance
Policy ($319,174 . 82) which shall be paid by the Original
Purchasers to the 1992 Bond Insurer on behalf of the City, to be
applied as follows:
(a) Deposit to the Series 1992 Reserve
Subaccount $ _ 77, 706. 75
(b) Deposit to the Bond Service
Subaccount 367, 951 . 64
(c) Deposit to Series 1992 Project
Construction Account 2, 500, 000 . 00
(d) Deposit in Escrow Deposit Trust Fund 55, 853, 002 . 45
(e) Payment of Issuance Expenses 147,388 .91
No deposit shall 'bemade pursuant to Section 208(c) of the
Bond Resolution.
Section 9 . Bond Registrar. The City hereby appoints Barnett
Banks Trust Company, N.A. (the "Bank") as Bond Registrar with
respect to the Series 1992 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 thename 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 asshall be
approved by the officials executing the same, such execution to
constitute conclusive evidence of such approval.
Section LO. _._Pfficial Statement. The City hereby approves the
form and content of, and ratifies the use by the Original
Purchasers in marketing the Series 1992 Bonds , of the Preliminary
Official Statement dated June 20, 1992 relating to the Series 1992
Bonds and attached hereto as Exhibit "C. " The preparation of a
final Official Statement for the Series 1992 Bonds, which shall be
in substantially the form of the Preliminary Official Statement,
changed to reflect the terms of the Series 1992 Bonds set forth
herein and with such other changes, alterations and corrections .
therein as may be approved by the Mayor and City Clerk, such
approval to be conclusively established by ' such execution, is
hereby authorized, and upon preparation thereof the Mayor and the
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City Manager are authorized anddirected , for and in the name of
the City to execute and de]4ver' the, Official Statement .
Rection 11 . Prior Bonds . The City has determined that it is
in the best interest of the City' to provide for the refunding of
all of the City' s Water and Sewer Utility Revenue, Bonds, Series
1985, and its Water and Sewer Utility Revenue Bonds, Series 1990
as arevourrently outstanding.
• The City hereby irrevocably elects, effective upon and only
upon the, issuance of , the Series 1992 Bonds, that, the Water and
Sewer Utility Revenue- Bonds, Series' 1985 maturing' in the years
1994 through 2000, inclusive, shall becalled for redemption on
November 1, 1993 , and the Water and Sewer Utility Revenue Bonds,
Series 1985 maturing in the years after 2000 shall be called for
redemption on November 1, 1995 . The City hereby directsthatat
least 30 days prior, to November 1, 1993 and November 1, 1995,
Barnett Banks Trust Company, N.A. . or its successor, as Bond
Registrar with respect to the Water and Sewer Utility Revenue
Bonds, Series 1985, shall give notice of redemption of such Bonds
in a manner provided therein and in Section 302 of Resolution No.
85-YYY pursuant to which the Refunded Bonds were issued. .
The City hereby irrevocably elects, effective upon and only
upon' the issuance of the Series 1992 Bonds, that the Water and
Sewer Utility Revenue Bonds , Series 1990 maturing in the years
2001 through 2015, inclusive, shall be called for redemption on
November 1, 2000 and the Water and Sewer Utility Revenue Bonds,
Series 1990 maturing subsequent to the year 2015 shall be called
for redemption on November 1, 2005 , ' The City hereby directs that
at least 30 days prior to November ' 1, 2000 and November. 1, 2005,
Barnett Banks Trust Company, N.A. ,' or its successor, as 'Bond
Registrar with respect to the Water and Sewer Utility Revenue
Bonds, Series' 1990, shall give notice of redemption of such Bonds
in a manner provided therein and in Section 302 of Resolution No.
85-YYY and Section 5 of Resolution No. 90-ZZZZZZ pursuant to which
the Refunded Bonds were issued.
Amounts held in the funds and accounts established pursuant to
Resolution No. B5-YYY of the City, as amended and supplemented,
with respect to. the Prior Bonds, shall be applied as follows:
(A) The' amount of $549 ,300.00 in , the 'bond service
account shall be deposited in the Escrow Deposit Trust
Fund pursuant to the Escrow Deposit Agreement ;
(8) Amounts in the reserve account in the amount of , .
' . - $4,577 ,573.25 shall be deposited in . the Series 1992
Reserve Subaccount', and the amount of $510.75 shall be
deposited in the ' Escrow Deposit Trust Fund under the
Escrow. Deposit Agreement;
(C) The amount in the renewal and replacement fund shall
be deposited in the Renewal, Replacement and Improvement
Account;
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(D) Amounts in the general reserve fund shall be
transferred to the general reserve account;
(E) Amounts in the impact fee fund shall betransferred
to the Impact Fee Account;
(F) Amounts in the revenue fund shall be transferred to
the Revenue Fund.
(G) Amounts held inthe construction fund constituting
proceeds of the Water and Sewer Utility Revenue Bonds,
Series 1990 shall continue to be held by the City for the
purpose for which such funds were to have been used.
Section 12 . Escrow Deposit Agreement. The City hereby
appoints Barnett Banks Trust Company, N.A. (the "Escrow Agent" ) as
Escrow Agent with respect to the Prior., Bonds., The form of Escrow
Deposit Agreement (the "Escrow Deposit Agreement") attached hereto
as Exhibit "D" 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 hereby authorized to attest to and
apply the seal of the City to the Escrow Deposit Agreement, with
such changes, alterations or corrections thereto as shall be
approved by the officials executing the same, such execution to
constitute conclusive evidence ofsuch approval.
Section 13 . _Eorwar Purchase Agreement. The form of Forward
Purchase and Assignment Agreement (the "Forward Purchase
Agreement") attached hereto as Exhibit "E" 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 hereby authorized to
attest to and apply the seal of the City to the Forward Purchase
Agreement, with such changes, alterations or corrections thereto
as shall be approved by the officials executing the same, such
execution to constitute conclusive evidence of such approval.
Section 14 . Aut1 qri.zatjon 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
1992 Bonds to be provided by the 1992 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.
Section 15 . Book Entry System, The Series 1992 Bonds shall
be initiallyregistered in the name of Cede & Co. ("Cede" ) , as
nominee of DTC. Notwithstanding any other provision hereof, for
so long as Cede is the registered owner of all of the Series 1992
Bonds, payment of interest for theSeries1992 Bonds shall be made
by wire transfer of New York Clearing House or equivalent next day
funds to the account of Cede on the business day next preceding
any Interest Payment Date for the Series 1992 Bonds at the address
indicated for Cede, in the registry books of. the Bond _Registrar.
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6007M _ .
Beneficial owners of the Series . 1992 Bonds 'wil.1 not receive
physical 'delivery' Of ' Series 1992 Bond certificates nor willthey
have a right to receive ' a 'certificate during the period that the
Series 1992 Bonds are immobilized in the custody of DTC. The City. .
and the Bond Registrar are authorized and -directed., to execute a
letter of ., representations in theform attached hereto,;. as
Exhibit "F" and to comply with the provisions- thereof .. .
Section ' 16 . Comnliince with Tax Requirements . The City
hereby covenants and agrees , for the benefit of the Bondholders
from time to time of the Series 1992 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 1992 Bonds from gross income
forfederal 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 1992
Bonds, and from any other legally available funds, at.
the times 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 1992 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 1992 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 1992 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 Fart 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 1992 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 -mnner. and at such times as specified in the Code. 'The ..City
shall engageand shall be responsible for paying the fees and
expenses of the Rebate Analyst .
Section 17. Authorizations . The Mayor, the City Clerk, the
Finance Director, the Assistant Finance Director, the City Manager
and the Assistant City Manage= 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 Agreement, 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 1992 Bonds , the
Bond Resolution, this Resolution, and the Bond Purchase Agreement ,
and to make any elections necessary or desirable in connection
with the arbitrage provisions of Section 148of the Code. The
Mayor, the Finance Director , the Assistant Finance Director, the
City Manager and the Assistant City Manager, the Escrow Agent, or
any,.of - .them, are hereby autho.rized_, for. ' and on -behalf of the City
to subscribe for United States Treasury. Certificates of
Indebtedness, Not.s, and/orBonds -- ' State and Local Government
Series , in connection with the refunding of the prior Bonds .
Sect;on J8 . Holidays.. In any case where the date of maturity
of intereston or principal of the Series 1992 Bonds or the date
fixed for redemption of any Series 1992 Bonds is . not a Business
Day, then payment ofprincipal, premium, if any, ' or' interest need
not be made on such date but may bemade on the next succeeding
Business Day; with the same force and effect asif made on the
date of maturity or the date fixed for redemption.
• f • . , _ • ' , • ! - In
consideration of the purchase and acceptance of the Series 1992
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 orto ' be implied from this Resolution or the Series
1992 Bonds is intended :or shall be construed to give any person
other than the City, the Original Purchasers, the 1992 Bond
Insurer and' the" Owners, any legal or equitable right, remedy or
claim under or with respect to this Resolution or . the Bond _
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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 Purchasers, the 1992 Bond Insurer and the
Owners. .
-election 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 conflictwith the provisions herein contained or , to
the extent ofany such conflict,. hereby„superseded and repealed.
Section 23 . Effective Date. This Resolution shall take
effect immediately upon its adoption.
Section 24 . Reveal of Refunded Bond _Resolution. Upon the
funding of the Escrow Deposit Trust Fund pursuant to the Escrow
Deposit Agreement, and the investment of funds therein pursuant
thereto, . 'the_. Issuer . .will have providedfor the payment of the
Refunded Bonds in accordance with Section 11.0.1 of Resolution No.
B5-YYY, and therefore, at such time, said Resolution, and all
amendments and supplements thereto, shall be, without further
action by the Issuer, cancelled and repealed. .
PASSED AND ADOPTED THIS 29TH DAY OF JUNE, 1992. .
(SEAL) .
ATTEST:. , CITY OF BOYNTON BEACH, FLORIDA
By ,MIS! i. By:
Ci = Clerk Mayor ”.
" i r ayo r
o . one
itpOrV 4111W/
ommission=
APPROVED/. S '• FORM
AND LE -;t. S FICI CY:
•
By:
C' y Attorney .
-29- 6007M
T ,e City , f ita ,.eh
City Clerks Office
•-�%wry •?'Kyt .
100 E BOYNTON BEACH BLVD
"A •= ..-� �r BOYNTON BEACH FL 33435
• r (561) 742-6060
FAX: (561) 742-6090
e-mail : grainitoj@cfl.us
www.boynton-beach oig
CERTIFICATION
I, JANET M. PRAINITO, CITY CLERK of the City of Boynton Beach, Florida,
do hereby certify that the attached Resolution No. R92-114 consisting of 1 page is a
true and correct copy as it appears in the records of the City of Boynton Beach, Florida.
WITNESS, my hand and the corporate seal of the CITY OF BOYNTON BEACH,
FLORIDA, dated this 21St day of February, 2012.
W)! • Ptif: .
JA T M. PRAINITO, MMC
CITY CLERK
S:\CC\WP\certifications\Resolutions\2012\Certified R92-114 doc
America's Gateway to.the Gulfstiearn ..
RESOLUTION R92-/A/
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA, AMENDING
RESOLUTION NO. R92-102.
BE IT RESOLVED BY THE CITY COMMISSION of TEE CITY OF BOYNTON
FLORIDA, AS FOLLOWS:
Section 1. Resolution No. R92-102, adopted by the City
Commission of the City of Boynton Beach, Florida, on June
29,1992, (the "Resolution") is hereby amended as follotias:
(a) Section 8 of the Resolution is hereby amended in its
entirety to provide as follows:
"Notwithstanding any provision of Section 208 of the
Bond Resolution, proceeds from the sale of the Series
1992 Bonds shall be applied to make deposits to the
funds and accounts established pursuant to the Bond
Resolution and the Escrow Deposit Agreement pursuant to
a certificate signed by the Finance Director at the
time of issuance of the Series 1992 Bonds. No deposit
shall be made pursuant to Section 208(c) of the Bond
Resolution."
(b) Subparagraph (B) of the fourth paragraph of Section 11
of the Resolution is hereby amended to provide in its
entirety as follows:
"Amounts in the reserve account in the amount of
1 $4,578,084.00 shall be applied to make deposits to the
ftnds and accounts established pursuant to the Bond
I - Resolution and the Escrow Deposit Agreement:..pursuant...to
a certificate signed by the Finance Director at the
time of issuance of a Series 1992 Bonds."
Section 2. This Resolution shall take effect immediately
upon its adoption.
PASSED AMD ADOPTED this /lo day of July, 1992.
CITY OF BOYNTON BEACH, FLORIDA
I gt."-ot.I Mayor
is-- ayor
/ 1
44-Commi er
0
co# ,.
•
Commissi r
ATTEST:
Clerk APPROVED AS TO FORM:
•
(Corporate Seal) BY: C i.tale /Yf. 1,' -�,
O.31': City,Attorney / ,
Bond.Ard.
7/16/92
- The City of : oynt®yl. • 12.
w 4 far ,- City Clerk's Office
100 E BOYNTON BEACH BLVD
BOYNTON BEACH FL 33435
r (561) 742-6060
FAX: (561) 742-6090
; e-mail : pxainitoj a cfLus
wr v boynton-beach.org
CERTIFICATION
I, JANET M. PRAINITO, CITY CLERK of the City of Boynton Beach, Florida,
do hereby certify that the attached Resolution No. R96-88 consisting of 122 pages is a
true and correct copy as it appears in the records of the City of Boynton-Beach, Florida.
WITNESS, my hand and the corporate seal of the CITY OF BOYNTON BEACH,
FLORIDA, dated this 21St day of February, 2012.
iONA
A; 'ET M. PRAINITO, MMC
CITY CLERK
(SE¢
710-41,
•
S:\CC\WP\certifications\Resolutions\2012\Certified R96-88 doc
America's Gateway to the Gulf Cream . . - -. _
RESOLUTION NO. R 9 6-8g
A SERIES RESOLUTION PROVIDING FOR THE ISSUANCE
OF NOT EXCEEDING . $30, 000, 000 AGGREGATE
PRINCIPAL AMOUNT OF UTILITY SYSTEM REVENUE
BONDS, SERIES1996 ; 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 WILLIAM R. HOUGH & CO. , RAYMOND JAMES
& ASSOCIATES, INC„ AND SMITH BARNEY INC„ ;
MAKING CERTAIN REVISIONS TO RESOLUTION NO. •
R 92-96; , 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 BOND PURCHASE AGREEMENT AND A
BOND REGISTRAR AGREEMENT; AUTHORIZING THE USE
OF CERTAIN MONIES HELD . IN CERTAIN OF THE FUNDS
AND ACCOUNTS ESTABLISHED PURSUANT TO RESOLUTION
NO. R 92--96 TO DEFEASE A PORTION 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 92-9.6 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 1996
Bonds" ) under ' the Bond Resolution to provide• funds to' pay 'the cost
-of Improvements to the Utility System (as defined in the Bond
Resolution) , to provide for a deposit to the Reserve Account (as
'defined in the Bond Resolution) - and to pay certain costs of
issuing such. Series 1996 Bonds; and -
WHEREAS, prior to the issuance of the Series' 1996 Bonds the
conditions set forth in Section 209 of the .Bond Resolution shall
be' satisfied; and
WHEREAS, the City Commission has determined that because of
the unsettled nature of the municipal . bond market and . for other
reasons the sale of such, Series 1996 Bonds through negotiation
with the Original Purchasrs (hereinafter_defined) is. in the best .
. - • - . -, interest of ' the City; and- .
• WHEREAS, the City Commission has received from William R..
Hough & Co. , Raymond James & Associates, Inc,. and Smith Barney
Inc .: (collectively, - the "Original Purchasers") , a form of -a Bond
. Purchase ' Agreement by and between the City and the Original
• Purchasers whereby the Original Purchasers would agree to purchase
- the Series 1996 Bonds, ' and the - City Commission has determined that
the authorization of' the acceptance of such proposal pursuant to
• the. terms set forthin 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 1996 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 1996 Bonds and to appoint
The Bank of New York as Bond Registrar for such Series 1996 Bonds
. and to confirm that The Bank of New York has - replaced Barnett
Banks Trust Company, N.A. as Bond Registrar for the City' s Utility
. System Revenue Bonds, Series 1992 ; and . .
WHEREAS, the City .has received .. a commitment. - from :=Financial --. ._ .
Guaranty Insurance Company to issue its. municipal' bond insurance.
policy insuring the - payment . of principal of -and interest on the -
Series 1996 'Bonds and it is necessary and desirable to accept such
. commitment; and '
•
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WHEREAS, the Bond''Resolution' per'mits the City to defease the
lien of. Bonds issued thereunder by 'settingfunds 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 use certain funds currently held by, the City
in certain of the funds established pursuant to Resolution No.' R
92-96 available for such purpose to defease. the lien of a portion
of the Utility System Revenue Bonds, Series 1992 (the "Defeased
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 Defeased
Bonds .
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA:
Section 1 Au ho itv far 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 hereinin 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 anyday other _than a Saturday,
Sunday or other . day on which the Bond Registrar is lawfully and
temporarilyclosedor a day on which the. New York. Stock Exchange
is lawfully and temporarily closed.
"Closing Date" shall mean the date on which' the Series 1996 `
Bonds ' are issued." and delivered by . the City and paid for by ' 'the
Original Purchasers
" Interest. Payment 'Date" shall mean May 1 . . and November 1 o
each year, commencing November 1, 1996 .
"Project" means certain Improvements to' the Utility System
consisting generally of ' renewals, replacements , extensions,.,
expansions ' and other . ,impravements to the' City's ' water system,
wastewater system and stormwater system reasonably anticipated for
the next five- years, as further described in documents on file
with the City:,.
Se. tion 3 . Authorization of Binds . ° ,: Bonds are hereby
authorized to be issued pursuant to this Resolution and Section
•
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208 of the Bond Resolution in the aggregate principalamount of
not to exceed $30, 000, 000 . The Bonds hereby authorized shall be
known as "Utility System Revenue Bonds, Series 1996" (the "Series
1996 Bonds") . Prior to the issuance of the Series 1996 Bonds the
conditions. of Section 209 of the Bond Resolution shall be
satisfied. The Series 1996 Bonds are being, issued to provide
funds to pay the Cost of the Project and the costs of issuing the
Series 1996 Bonds, and to provide for a deposit to the Series 1996
Reserve Subaccount .
Section 4 . Terms of the Series 1996 Bonds .
(a) Form of Bonds „ The Series 1996 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 1996 Bonds set forth herein as may be approved. by the
officers of the City executing. the Series 1996 Bonds , such
execution to be conclusive evidence of such approval .
(b) Amounts , Maturities, Redemption Provisions and Interest
Rates . . The Series 1996 Bonds will consistof 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 1996 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 such date andshall bear interest from such date, payable
semi-annually on the first day of May and November of each year,
commencing November 1, 1996 . . The Series 1996 Bonds shall be
issued in the aggregate principal- amount, not in excess of
$25, 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 1996 Bonds,
provided however that the net interest cost of the . Series 1996
Bonds shall not exceed 7.00 percent per annum and the final
maturity of the Series 1996 Bonds shall not be after November 1, .
2020 . . - .
Principal 'of the Series 1996 Bonds shall be payable only upon
presentation and surrender of such Bonds at the principal office.
• of the Bond Registrar . Interest on the Series 1996 Bonds shall be
paid bycheckor draft, or at the option of any registered owner
of not less than $1,000 , 000 in principal amount of the Series 1996
Bonds, exercised in writingdelivered 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
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registered owners of the Series , :1996 Bonds as" shown onthe
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 1996 . Bonds shall be an . amount equal to.
the lesser of (i,) 10% of the aggregate stated principal amount, of
the Series 1996 Bonds Outstanding, (ii) the maximum amount of
principal and . interest scheduled to become due on the Outstanding,
Series . 19.96 Bonds in the current or any succeeding Bond Year, or
( iii) 125% of the average annual debt service on the, Outstanding
Series 1996 Bonds (calculated on a Bond Year basis at the time of
issuance only) ., If the Series 1996 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 1996 Bonds. (netof pre-issuance
accrued interest) shall be used 'to measure the aforesaid 10%
limitation in lieu of the stated principal amount of', the Series
1996 Bonds . The Series 1996 Reserve Subaccount , which is hereby
ordered created, shall be funded in an - amount ' equal to the Reserve,
Account Requirement for the Series 1996 Bonds at the time of
initial issuance and delivery of the Series 1996 Bonds, and in the
event any.- deficiency is created in the Series 1996 Reserve
Subaccount, the Reserve Account. Deposit Requirement for such .. .
Series shall be, in each month, '- an amount equal, to atleast one
twenty-fourth ( 1/24) of the amount of such deficiency..
Section 5. Amendments to Bond Resolution. The amendments to
the Bond Resolution set forthin this Section 5 shall be effective.
upon, and only upon the issuance of the Series 1996 Bonds . In
addition, these amendment's shall be effective, and the Series 1996
Bonds shall be issued, only ifthe requirements of Section 1002 of
the Bond Resolution, concerning the consent of the . Holders of
Bondsto amendments to the Bond Resolution, shall have been
satisfied andthe provisions of Section '716 (e) of the Bond
Resolution, concerning consent of the 1992. Bond Insurer and notice
to each rating agency maintaining a rating on the Bonds; shall
have been satisfied, or waived by the 1992 Bond Insurer, prior to
the issuance' of the Series 1996 Bonds.
(a) Section 101 of the Bond Resolution . is amended by the
addition thereto of two new definitions as follows :
"1996 ' ,Bond. ' Insurance 'Policy" shall meanthe
municipal . bond new issue insurancepolicyissued by the
1996. Bond Insurer that guarantees payment of.. principal
of and interest' on the Series 1996 Bonds . '
"19.96 , Bond Insurer" shall mean Financial Guaranty
Insurance Company, a. New York stock insurance company,
or any 'successor thereto .
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•
•
(b) The definition of - "Current Expenses" contained in Section
101. of the Bond Resolution is amended in its entirety to provide
as follows:
•
"Current Expenses shall .mean - the .City' s- reasonable
and necessary current expenses of maintenance, repair
• and operation of the Utility System, (a) including all
ordinary and usual expenses of maintenance and repair,
which- may include expenses not annually recurring, a.11
reasonable City administrative expenses allocated to the
Utility System pursuant to the Annual' Budget-, any
• reasonable payments to pension or retirement funds
•
properly chargeable to the Utility 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 Utility System, fees and expenses of
the Bond, Registrar, legal and accounting expenses, any
fees, fines, or penalties lawfully imposed on the
Utility System, any taxes which may be lawfully imposed
on . the Utility System or its income or operations and
_: reserves -- for
such -.-taxes, or payments_ in :lieu of ' s.uch . .:
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 , this •
• 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 , ,Repl,acement and Improvement Account, the - -
General Reserve Account or the Impact Fee Account, and
shall not include, for purposes of Sections 209 and 502
of this Resolution; any .City administrative , expenses
• . allocated to the. Utility- System. " -
•
(c) The definition of "Improvements" contained in Section 101
of the Bond . Resolution is amended inits entirety to provide as
follows:-.
• .
. "Improvements" shall- mean (i ) _ such improvements ,
renewals and replacements of the Utility System or any
•
•
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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 Ut:i lity System any unit, or part
thereof, and shall include such land, structures and
facilities as may be authorized to be acquired or
constructed' by the City under the provisions of State
law and such improvements , renewals and replacements of
such land, structures and facilities of the Utility.
System and such extensions and additions thereto asmay
be necessary or. desirable for continuous and efficient
service to the public, 'which Improvements , may include,.
without limitation, land, structures and facilities used
or useful for the collection, transmission, treatment, .
disposal and reclamation of sewage andstormwater ' runoff
and for :the supply, storage,, treatment, transmission . and .
distribution ofwater all to the.. extent -the same.
constitute part of the Utility System and' . (ii) such
other expenditures as may : be necessary ordesirable in , •
the judgment of the City but not related to the Utility , ' •
System, provided, that as used in Sections 404 and 702
hereof, the term "Improvements".. shall not': include.. 'the'
items described in this clause (ii)
(d) Section 513 (f) of. the Bond : Resolution is amended in its
entirety to provide as follows :
" (f) for anylawful use- of. the City as directed by the
City Commission.
(e) A ' new Section 717 is .. added. to the ' Bond Resolution to
provide as follows:
"Section 717, ' Provisions concerning 1996 Bond Insurer ..
For so long as the 1996 Bond Insurance Policy shall be
outstanding :
(a) 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 1.996 Bond Insurance Policy,
`(b) the City and the Bond , Registrar shall notify
• the 1996 Bond Insurer immediately of any payment
default on the Bonds; .and . the ' City, shall notify the
1996 Bond Insurer of any other default hereunder
known to the Citywithin thirty : (30) days after the
City- acquires knowledge of such default,
(c) fora. all purposes of .Article , VIII hereof
governing ' events of - default and .remedies, except
thegiving of notice of default to Bondholders, , the
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•
1996 Bond Insurer shall ' be deemed to be the sole
holder of the Series 1996 Bonds for so long as it
has not failed to comply with its payment
obligations under the 1996 Bond Insurance Policy,
- and the 1996 . 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
1996 Bond Insurance Policy,
(e) no amendment or . supplement to the. Resolution ' -
shall be effective without the prior written
consent of the 1996 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 1996 Bond Insurer shall 1De
.. , , . . _ provided, with.. a .full . transcript of all pr.oceeding.s, ' - _
relating to the execution of' any ' supplemental . '
• resolution.
. • (f) (1) If, at the close of business on - the
Business Day preceding any Interest
Payment Date for the Series 1996 Bonds,
there is not - on deposit with the Bond .
Registrar sufficient monies available to
pay. all principal of and interest on the.
Series 1996 Bonds due on such date, the
'City and the Bond Registrar shall
immediately notify the 1996 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 Bond Registrar shall
simultaneously make available . to the. 1996
Bond Insurer and to the Fiscal Agent the
•
' registration. - books for' the Series 1996
' Bonds maintained by the Bond Registrar . .
In addition :
(A) The Bond Registrar shall provide the -
•
1996 Bond Insurer with a list of the
Bondholders entitled to receive
principal or , interest payments , from . _
•
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•
the 1996 Bond Insurer . under the
terms. of the 1996 Bond Insurance
Policy and shall make arrangements
for the 1996 Bond. Insurer and its
Fiscal Agent (1) to mail checks or •
drafts to Bondholders entitled to
receive full ' or 'partial' interest
payments from the 1996 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 1996 Bond Insurer;.
and
(B) The Bond Registrar shall, at the
time it makes the registration books
available to the ' 1996 Bond Insurer
pursuant . to (A) above, notify
Bondholders entitled to receive the
payment of principal of or interest
on the Bonds" ' .from the 1996 Bond
Insurer, (1) as to the fact ofsuch
entitlement,' (2) that the 1996 Bond
Insurer will remit to them all or
part of the interest payments coming
due subject to the terms . of. the 1996
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
1996 ' Bond Insurer,. such Bondholder
must tender his Series 1996 Bond
with the instrument of transfer in
the form provided on the Series 1996
Bond executedin' the name of the
1996 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 ' 1996 Bond Insurer, such
Bondholder - must• tender his Series
1996 Bond • for payment first to the
Bond Registrar, which shall note on
such Series 1996 Bond theportion of
principal paid by .. the Bond
Registrar, and then, with an•
acceptable form of ' assignment
executed in the . name of the =1996
Bond Insurer, to the Fiscal Agent,
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which will then pay the unpaid
portion of principal to the
Bondholder subject to the terms of
the 1996 Bond Insurance Policy..
( ii) In the event that the Bond Registrar has
notice that any payment of principal of
or interest on a Series 1996 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 ' 1996 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 1996 Bond Insurer to the
extentof such recovery, and the Bond
Registrar shall furnish to the 1996 Bond
Insurer its records evidencing the
payments of principalofand : interest _ on . ..
the Series 1996 Bonds which have been
made by the Bond Registrar and
subsequently recovered from Bondholders ,
and the dates on which such payments were
made.
(iii) The 1996 Bond Insurer shall, to the
extent it makes payment of principal of
or intereston the Series 1996 Bonds,
become subrogated to the rights of the
recipients of such payments in accordance
with the terms of the 1996 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 1996 Bond
Insurer' s rights as subrogee on the
registration books maintained by the Bond
Registrar upon receipt from the 1996 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 oast due
principal, the Bond Registrar shall note
the 1996 Bond Insurer ' s rights as
subrogee on the registration books for
the Series 1996 Bonds maintained by the
Bond- Registrar upon receipt of proof of.
the payment of principal thereof to the
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Bondholders of such Series 1996 Bonds ., .
Notwithstanding anything in this
Resolution or the Series 1996 Bonds to
the contrary, the Bond Registrar shall.
make payment of such past due interest
and past due, principal directly to the
1996 Bond Insurer to theextent that the
1996 Bond Insurer is a subrogee with
respect thereto . "
(g) The notice addresses for the 1996 Bond Insurer :
and the Fiscal Agent shall be as follows :
1.15 ' 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 1996 Bond Insurer shall be providedwith
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 financial 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
additionaldebt, 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 tomarket fluctuation in the amount,
if any, on deposit in the Reserve Account;
(-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;
-1 -
(v) Simultaneously with the delivery of the
annual audited financial statements :
(A) The numberof 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
expansionsplanned or undertaken
since the last report date; and
(vi) Such additional information as the 1996 Bond Insurer
may reasonably request from time to time.
(i) The following requirements shall be fulfilled to
the satisfaction of the 1996 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 1996 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 policyguaranteeing 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 1996
Bond Insurer. .
3 . An unconditional irrevocable letter of credit
issued to the Fiduciary, as agent of the
Bondholders, bya 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
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presentation' '" by. the 'beneficiary ofa sight
draft accompanied by its certificate thatit
then holds insufficient funds to make a
required payment ofprincipal or. interest on
bonds ., The draws shallbe -payable within two
days of presentation of the sight draft . The. ,
letterof credit shall be for a term of not
less. than three years . The issuer of the
letter of credit shall be required to notify
'the Issuer and the Fiduciary, not later than
30 months prior to the statedexpiration 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-, 1996 Bond Insurerand in
form . andsubstance satisfactory to the 1996
Bond Insurer, as, ` to the ' due ' 'authorization,
execution, delivery and .enforceability, of such
instrument in accordance with its.- terms,
subject toapplicable lawsaffecting
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 1996'.
_13_ 8121M
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 1996 Bond Insurer and inform and
substance satisfactory to the 1996 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 topayment
or reimbursement of its feesand 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 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 anyreason, 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
• -14- - 812:1M
below aS&P "AA" , the obligation to reimburse
the issuer of the Reserve Account credit
instrument shall . be - subordinate to thecash
replenishment of. the Reserve Account..
60; . 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) therating.
of the issuer of 'the letter of credit falls
below 'a S&P . "AA" , the City shall either (1) •
deposit into the Reserve Account an amount
sufficient to cause thecash or permitted
• investments 'on deposit in the Reserve Account
toequal the Reserve Account Requirement on,
all outstanding Bonds., such amountto be paid
over the ' ensuing five years. in equal
installmentsdeposited atleast semi-annually.
or (ii) replace such instrument with a surety
bond, insurance policy or letter of credit .
meetingtherequirements inany of 1-3 . above.
within six monthsof 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) theissuer 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. tobe paid over the ensuing '
year . .inequal installments'" on at 'least a
monthly ;basis . or ' ( ii) replace, such instrument
with a ' surety bond, insurance policy or letter
or credit meetingthe requirements in anyof
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 of permitted investments deposited in
the Reserve Account pursuant to clause (i) . of ,
the preceding subparagraph 6
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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 199E Bonds . The
City hereby determines that a negotiated sale of the Series 1996
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
Bond Purchase Agreement (the "Bond Purchase Agreement") . The City
approves the Bond Purchase Agreement together with such changes
thereto as are necessary to reflect the terms of the Series 1996
Bonds and to reflect the purchase price thereof, provided, that
the underwriters ' discount shall not exceed $9 . 00 per thousand
dollars of principal amount of the Series 1996 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 Agreement to the Original
Purchasers . - Prior to the - execution of the Bond Purchase .
Agreement, the Original Purchasers shall file with the City the
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disclosure statement required by Section 218 .385, Florida
Statutes, and the competitive bidding for the Series 1996 Bonds is
herebywaived pursuant to the authority of Section 218 ,385 ( 1) ,
Florida Statutes .
Section 7 . Execution and Delivery of the Series 1996 Bonds .,
The Mayor and the City Clerk are hereby authorized and directed on
behalf of the City to execute the Series 1996 Bonds as provided in
the Bond Resolution and such officials are hereby authorized and
directed upon the execution of the Series 1996 Bonds in the form
and manner set forth herein and in the Bond Resolution to deliver
the Series 1996 Bonds in the amount authorized to be issued
hereunder to the Bond Registrar for authentication (upon the
satisfaction of the conditions of Section 208 of the Bond
Resolution) and delivery to or upon the order of the Original
Purchasers upon payment of the purchase price set forth herein..
Section 8 . Application of Series 1996 Bond Proceeds .
Proceeds from the sale of the Series 1996 Bonds shall be applied
as provided in a certificate executed by the Mayor at or prior to
the issuance of the Series 1996 Bonds.
Section 9 . Bond Registrar . The City hereby appoints The Bank
of New York (the "Bank" ) as Bond Registrar with respect to the
Series 1996 Bonds, and confirms that The Bank of New York has
replaced Barnett Banks Trust Company, N.A. as Bond Registrar for
the City' s Utility System Revenue Bonds, Series 1992 . 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 Cityto 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
Purchasers in marketing the Series 1996 Bonds , of a Preliminary
Official Statement' relating to the Series 1996 Bondsin 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 bythe 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 1996
Bonds , which shall be in substantially the form of the Preliminary
Official Statement, changed to reflect the terms of the Series
1996 Bonds • and with such other changes, alterations and
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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
1996. Bonds to be provided by the 1996 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 ..
•
Section 12 . Book Entry System. The Series 1996 Bonds shall
be initially registered in the name of Cede & Co .. ( "Cede" ) , as
nominee of DTC. Notwithstanding any other provision hereof, for
so long as Cede is the registered owner of all of the Series 1996
Bonds , payment of interest for the Series 1996 Bonds shall be made
by wire transfer of New York Clearing House or equivalent next day
funds to the account of Cede on the business day next preceding
any Interest Payment Date for the Series 1996 Bonds at the address
indicated for Cede in the registry booksof the Bond Registrar .
Beneficial owners of the Series 1996 Bonds will not receive
physical delivery of Series 1996 Bond certificates nor will they
have a right to receive a certificate during the period that the
Series 1996 Bonds are immobilized in the custody of DTC, The City
and the Bond Registrar are authorized and directedto execute a
letter of representations in the form attached hereto as
Exhibit "D" , completed with the details of the Series 1996 Bonds ,
and to comply with the provisions thereof .
Section 13 . Compliance with Tax ReguirQments . The City
hereby covenants and agrees , for the benefit of the Bondholders
from time to time of the Series 1996 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 1996 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 1996
Bonds, and from any other legally available funds, at
the times 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
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which would have 'been earned ` -if such non--purpose
investments were invested at a rate equal to the yield
on the Series 1996 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 necessaryto comply with the
Code;
(3) to refrain .from using proceeds from the
Series 1996 Bonds in a manner that would cause the ,
Bonds. or any of them, to be classified a's , 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 1996 Bonds, or any of
them, .to become arbitragebonds 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 1996,. Bonds, the 'Cityshall 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 Defeased Bon._s and the Escrow Deposit
Agreement . The 'use . of funds available for such purpose in the
funds and accounts established pursuant to the Bond . Resolution to
def ease the lien of the Defeased Bonds' 'in ' accordance with the ,
terms: of the Bond Resolution ishereby authorized, provided that
the precise identity of the .Defeased Bonds, and the ,precise
• sources of funds for such :purpose under ' the Bond Resolution shall
be ' as provided in the Escrow Deposit 'Agreement hereinafter
authorized., The .' redemption of the Defeased 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 ofblanks therein as may be
approved by. the' Mayor, such approval tobe conclusively evidenced
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by the execution of the Escrow Deposit Agreement by the Mayor,
'Ihe 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 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 1996 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, inaccordance 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 , 1996, 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, debt service
coverage by Net Revenues and Impact Fees , 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 Purchasers and to the Bond Registrar for the
Series 1996 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 ofthe occurrence of any of the following events with
respect to the Series 1996 Bonds , if such event is material :
( i ) principal and interest payment delinquencies;
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•
(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 1996 Bonds;
(vii) modifications to rights of the holders of the Series
1996 Bonds;
(viii) bond calls of the Series 1996 Bonds (other than
scheduled mandatory redemption) or any acceleration of the maturity
thereof;
(ix) defeasances (in whole or in part) of Series 1996
Bonds ;
(x) release, substitution, or sale of property securing
repayment of the Series 1996 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 obligatedperson with respect to the Series 1996 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 1996 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
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•
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 1996 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
1996 Bonds and shall not create any rights in any other parties .
(h) AmendmenU 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 . 1996 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 1996 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
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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 . Authorizations . The Mayor, the City Clerk, the
Acting Finance Director, the City Manager and the Assistant 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 Agreement, 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 1996 Bonds , the Bond Resolution, this Resolution, and the
Bond Purchase Agreement, and to make any elections necessary or
desirable in connection with the arbitrage provisions of Section
148 of the Code.
Section 17 , Holidays . In any case where the date of maturity
of interest on or principal of the Series 1996 Bonds or the date
fixed for redemption of any Series 1996 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 16 . Resolution to Constitute a Contract. In
consideration of the purchase and acceptance of the Series 1996
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 19 , 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
1996 Bonds is intended or shall be construed to give any person
other than the City, the Original Purchasers, the 1996 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 Purchasers, the 1996 Bond Insurer and the Owners ,.
Section 2Q . 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
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shall noteffect 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 21 . Repealer . All Resolutions or parts thereof of
the Cityin conflict with the provisions herein contained or, to
the extent of any such conflict, hereby superseded and repealed ..
Section 22 . Effective Date. This Resolution shall take
effect immediately upon its adoption.
PASSED AND ADOPTED THIS 18th DAY OF JUNE, 1996 .
(SEAL) .
ATTEST: CITY OF BOYNTON BEACH, FLORIDA
By: JU By:
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Cit Clerk Mayor
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Commissioner
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APPROVED AS TO FORM
.AND l Ga SUF ICIE► CY:
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ty Attorn-1y
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-24- 8121M
The City of l'oynt . n Beach
4.•• = City Clerk's Office
£� ' 100 E BOYNTON BEACH BLVD,
BOYNTON BEACH FL 33435
- (561) 742-6060
itFAX: (561) 742-6090
-1 e-mail : prainitoj@cfl,us
www boynton-beach o;i g
CERTIFICATION
I, JANET M. PRAINITO, CITY CLERK of the City of Boynton Beach, Florida,
do hereby certify that the attached Resolution No. R96-121 consisting of 1 page is a
true and correct copy as it appears in the records of the City of Boynton Beach, Florida.
WITNESS, my hand and the corporate seal of the CITY OF BOYNTON BEACH,
FLORIDA, dated this 21St day of February, 2012.
fesCa •
t .
ET M. PRAINITO, MMC
CITY CLERK
(SE,. 1
•
S:\CC\WP\certifications\Resolutions\2012\Certified R96-121 doc
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Ii
r RESOLUTION R96-4.?/
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA, PROVIDING
THAT THE CITY'S STORMWATER RUNOFF
i, COLLECTION, TRANSMISSION, TREATMENT AND
DISPOSAL SYSTEM SHALL BE INCLUDED WITHIN
THE "UTILITY SYSTEM" AS DESCRIBED IN THE
CITY'S UTILITY SYSTEM REVENUE BOND
RESOLUTION (RESOLUTION NO. R92-96, AS
AMENDED);AND PROVIDING AN EFFECTIVE DATE..
WHEREAS,the Utility System Revenue Bond Resolution(R92-96, adopted
June 16, 1992) defines"Utility System" as the existing water and sewer system
together with "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
it
WHEREAS, the City's stormwater utility should be consolidated with the
existing water and wastewater utility, and the three will operate as a single
i! economic entity under the terms of said Bond Resolution;
NOW,THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
i Section 1 Effective October 1, 1996, they City's stormwater runoff -
°I collection,transmission,treatment and disposal system shall be included within the
ji "Utility System", as defined in Resolution No. R92-96, adopted by the City
Commission on June 16, 1992 (the "Utility System Bond Resolution"), all as
authorized and contemplated by the Utility System Bond Resolution.
Section 2. That this Resolution shall become effective October 1, 1996..
.i
PASSED AND ADOPTED this ,,,/D day of August , 1996..
CITY OF BOYNTON BEACH, FLORIDA
Mayor
•
Vice ayo ,j
Commissioner
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Commissioner
Commissioner
ATTEST:
Cit Clerk
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• BOYNTO.ys(Cocote ).
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The City ,•. f $ '®ynt.. )e c
o City Clerks Office '
100 E BOYNTON BEACH BLVD ..
- . • ; . BOYNTON BEACH FL 33435 ;
(561) 742-6060
FAX (561) 742-6090
email : •pramitoj@cfl,us
www..boynton-beach.org .
CERTIFICATION
I, JANET M. PRAINITO, CITY CLERK of the City of Boynton Beach, Florida,
do hereby certify that the attached Resolution Nov RO1-193 consisting of 18 pages is a
true and correct copy as itappears in the recordsof the City of Boynton Beach, Florida
WITNESS, my hand and the corporate seal of the CITY OF BOYNTON BEACH,
FLORIDA, dated this 21St day of February, 2012.
3A ET M. PRAINITO, MMC
CITY CLERK
( E.4
•
•
::`�•a!-it±ate-.,%6A-� .
S:\Cc\WP\certifications\Resolutions\2Q12\Certified R01-193 doc
• Amey ica-s Gateway to the`Gulfstr eam
RESOLUTION NO. R 01- tq�
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
though 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 andwill 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 I,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
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 .3.0-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..04 percent per annum and the final maturity of.the Series
2002 Bonds shall not be after November 1, 2020 .
Principalof 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, ox' (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-minirnis 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 (1124) 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:
"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 transcriptof 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 Registrarshall 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
Bond Registrar shall simultaneously make available to the 2002 Bond Insurer and to the
Fiscal Agent the registrationbooks 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 paymentsfrom 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 thetime 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
•
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,financial statements, a statement of the Net Revenues pledged
• to payment of Bonds in such previous F'iscaI 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;
•
•
_ ... •
(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;
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 Iast 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 (otherthan 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 andsubstance of'such instrument and the issuer thereof shall be
approved by the 2002 Bond Insurer.
3.. 'An unconditionalirrevocable 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 sightdraft
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 befor a term of not less than three years. The issuer'. of the
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 reimbursementof 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 Ietter.
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 aII 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 Ietter 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.,
it
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 Bondsand
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 withsuch 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 tobe provided by the 2002Bond 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
requited 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 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 Iimit 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 20.02
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 longas 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 ManagerandEscrow 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 arid 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 financialinformation 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 though a designated agent, in'a timely manner, to (i)each NR.MSIR 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;
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(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.. .
•
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(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 amountof 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 fmancial
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 acomparison (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'theformer 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
1'6 .
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- .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. ResoIution 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 tight, 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, the2002 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.
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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: /1• ��. By:
C ! r1r111�U,,�il� or'
a) g . .Vice-Mayor
44/0
fi!!1!r111111111 110� L' \
Commissioner
Commissioner I
Commissioner
•
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
By:
City Attorney •
18
The Cite O _ 0 ga V e Ole 4
City Clerk's Office
:r
xr' •;. ?•w'-. 100 E BOYNTON BEACH BLVD
' `! (p . BOYNTON BEACH FL 33435
..'t.1•'. \.f + (561) 742-6060
' ': 111'___ : FAX: (561) 742-6090 .
' `'` .,fe`3'V• e-mail : prainitoj@cfl us
www.boynton-beach.org
CERTIFICATI4 hi
Kr JANET M. PRAINITO, CITY CLERK of the City of Boynton Beach, Florida,
do hereby certify that the attached Resolution No. R05-13.3 consisting of 89 pages is a
true and correct copy as it appears in the records of the City of Boynton Beach, Florida.
WITNESS, my hand and the corporate seal of the CITY OF BOYNTON BEACH,
FLORIDA, dated this 21st day of February, 2012.
ET M. PRAINITO, NIMC
CITY CLERK
(SEAL)_
r ., .
clr _
_.o..
S:\CC\WP\certifications\Resolutions\2012\Certified R05-133.doc
America's Gateway to the Gulfstream
RESOLUTION NO.R05- 133
A SERIES RESOLUTION PROVIDING FOR THE ISSUANCE OF
NOT EXCEEDING $16,000,000 AGGREGATE PRINCIPAL
AMOUNT OF UTILITY SYSTEM REVENUE REFUNDING
BONDS, SERIES 2005; PROVIDING A METHOD FOR FIXING
AND DETERMINING THE PRINCIPAL AMOUNT, INTEREST
RATES,MATURITY DATES,REDEMPTION PROVISIONS AND
OTHER DETAILS OF SAID BONDS; AUTHORIZING THE
AWARD THE SALE OF THE BONDS TO BEAR, STEARNS &
CO..INC.;FINDING NECESSITY F ORA NEGOIIATED SALE OF
SUCH BONDS; PROVIDING A METHOD FOR APPROVING
THE FORM OF AND AUTHORIZING THE USE OF A
PRELIMINARY OFFICIAL STATEMENT AND AUIHORIZING
THE PREPARATION, APPROVAL. AND EXECUTION OF A
FINAL OFFICIAL SIATEMENT IN CONNECTION WITH SUCH
BONDS; AUTHORIZING THE EXECUTION OF A BOND
PURCHASE CONTRACI AND A BOND - REGISTRAR
AGREEMENT; AUIHORIZING THE REDEMPTION OF A
PORTION OF THE CITY'S UTILITY SYSTEM REVENUE.
BONDS, SERIES 1996; PROVIDING A METHOD FOR
APPROVING THE FORM OF AND AUTHORIZING THE
EXECUTION OF AN ESCROW DEPOSIT AGREEMENT;
PROVIDING FOR CERTAIN CONIINUING 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 RESERVE SURETY
BOND AND MAKING CERTAIN COVENANTS IN
CONNECTION THEREWITH; DESIGNATING THE BOND
REGISTRAR FOR SAID BONDS; CONIAINING 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 ofFlorida,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 defined mentioned)fbr certain purposes; and
WHEREAS,pursuant to Resolution No.R 92-96 adopted by the City Commission ofthe City
(the"City Commission")on.Tune 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 2005 Bonds") under the Bond
Resolution to provide funds, together with available funds of the City for the redemption prior to
maturity of the City's Utility System Revenue Bonds, Series 1996(the"1996 Bonds")maturing on
•
•
and after November 1,2007(the "Refunded Bonds") and to pay certain costs of issuing such Series
2005 Bonds; and
WHEREAS,prior to the issuance ofthe Series 2005 Bonds the conditions set forth in Section
210 of the Bond Resolution shall be satisfied; and
WHEREAS,the City Commission has determined that the sale of such Series 2005 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 Bear;Stearns&Co.Inc..(the"Original
Purchaser")a form of a Bond Purchase Contract by and between the City and the Original Purchaser
whereby the Original Purchaser would agree to purchase the Series 2005 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 2005 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 2005 Bonds and to appoint
the Bank of New York Trust Company,N.A. as Bond Registrar for such Series 2005 Bonds; and
WHEREAS,the City has received a commitment from Ambac Assurance Corporation to
issue its financial guaranty insurance policy insuring the payment of the principal of and interest on
the Series 2005 Bonds and it is necessary and desirable to accept such commitment; and
WHEREAS, the City has received a commitment from Ambac Assurance Corporation to
issue its surety bond to satisfy the Reserve Account Requirement for the Series 2005 Bonds and it
is necessary and desirable to accept such commitment; and
WHEREAS,the City desires to approve the form and use of an escrow deposit agreement
to provide for payment of the Refunded Bonds and to appoint The Bank of New York Trust
• Company,N.A.. as escrow agent thereunder;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF IHE 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.
2
1
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 thisResolutionor in the Bond Resolution, as amended hereby, shall have the following
meanings:
"Authorized Representative"means the Mayor or Vice-Mayor,and in the absence or inability
to act of the Mayor or Vice-Mayor;the City Manager or any other City Commissioner(the absence
or inability to act of the Mayor of Vice-Mayon as to any particular action being conclusively
established by the taking of such action by the City Manager or other:City Commissioner)..
"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 Iawfully and temporarily closed,
"Closing Date"shall mean the date on which the Series 2005 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 1,2005..
Section 3. Authorization of Bonds.. Bonds are hereby authorized to be issued pursuant to
this Resolution and Section 210 of the Bond Resolution in the aggregate principal amount ofnot to.
exceed $16,000,000. The Bonds hereby authorized shall be known as "Utility System Revenue
Refunding Bonds,Series 2005"(the"Series 2005 Bonds").. Prior to the issuance of the Series 2005
Bonds the conditions of Section 210 of the Bond Resolution shall be satisfied, The Series 2005'
Bonds are being issued for the principal purpose of providing funds,together with funds held in the.
Reserve Account and Bond Service Subaccounts under the Bond Resolution in respect of the
Refunded Bonds,to defease and to redeem the Refunded Bonds prior to maturity. Proceeds of'the
Series 2005 Bonds may be used to pay costs associated with issuing the Series 2005 Bonds and
defeasing the Refunded Bonds. The Series 2005 Bonds may not be issued unless the issuance of'the
Series 2005 Bonds and the refunding of the Refunded Bonds produces net present value debt service
savings for the City,calculated as of the date ofdeliveryofthe.Series 2005 Bonds using the arbitrage
yield on the Series 2005 Bonds as the discount rate,of at least the greater of(i)$300,000.00 and(ii)
3%of'the principal amount of the Refunded Bonds..
Section 4. Terms of the Series 2005 Bonds.
(a) Form of Bonds. The Series 2005.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 2005 Bonds set forth herein
as may be approved by the officers of the City executing the Series 2005 Bonds,such execution to
be conclusive evidence of such approval.
(b) Amounts,Maturities,Redemption Provisions and Interest Rates. the Series 2005
Bonds will consist of such aggregate principal amount of Current Interest Serial Bonds and such .
3
•
aggregate principal amount of Current Interest Term Bonds as shall be determined bythe Authorized
Representative as hereinafter provided,
The Series 2005 Bonds shall be issued in the denomination of$5,000 and integral multiples
thereof;shall be issued in registered form,shall be numbered nom R-1 upwards,shall be dated their
date of initial issuance and delivery, and shall bear interest from such date,payable on the Interest
Payments Dates. the Series 2005 Bonds shall be issued on such date, in the aggregate principal
amount,not in excess of$16,000,000,shall bear interest at the rates per annum, computed on the
basis of a 360-dayyear consisting of twelve 30-daymonths,not in excess ofthe maximum legal rate,
and shall mature on November 1 of the years and shall have such redemption provisions, all as set
forth in a certificate executed bythe Authorized Representative at or before the issuance ofthe Series
2005 Bonds,provided however that the final maturity of the Series 2005 Bonds shall not be after
November 1, 2020..
Principal of the Series 2005 Bonds shall be payable only upon presentation and surrender of
such Bonds at the principal office of the Bond Registrar Interest on the Series 2005 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 ofthe Series 2005 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 2005 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 2005 Bonds shall be an amount equal to the lesser of(i) 10%ofthe aggregate stated principal
amount of the Series 2005 Bonds Outstanding, (ii) the maximum amount of principal and interest
scheduled to become due on the Outstanding Series 2005 Bonds in the current or any succeeding
Bond Year; or(iii) I25% of the average annual debt service on the Series 2005 Bonds (calculated
on a Bond Year basis at the time of issuance only). If the Series 2005 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 2005 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 2005 Bonds. The Series 2005 Reserve Subaccount,which is hereby ordered created,
shall be funded in an amount equal to the Reserve Account Requirement for the Series 2005 Bonds
at the time of initial issuance and delivery of the Series 2005 Bonds,and in the event any deficiency
is created in the Series 2005 Reserve Subaccount,the Reserve Account Deposit Requirement fox-
such
orsuch 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 2005 Bonds..
(a) Section 101 of the Bond Resolution is amended by the addition thereto of two new
definitions as follows:
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•
•
•
•
•
"2005 Bond Insurance Policy" shall mean the financial guaranty insurance policy
issued by the 2005 Bond Insurer that guarantees payment of principal of and interest on the
Series 2005 Bonds.
"2005 Bond Insurer" shall mean Ambac Assurance Corporation, a Wisconsin-
domiciled insurance corporation, or any successor thereto.
(b) A new Section 719 is added to the Bond Resolution to provide as follows:
"Section 719. Provisions concerning 2005 Bond Insurer.. For so long as the 2005
Bond Insurance Policy shall be outstanding,notwithstanding any provision to the
contrary contained herein, the following provisions shall apply with respect to the
Series 2005 Bonds:
(A) "Ambac Assurance" shall mean Ambac Assurance
Corporation, a Wisconsin-domiciled stock insurance company.
(B) "Municipal Bond Insurance Policy"shall mean the municipal .
bond insurance policy issued by Ambac Assurance insuring the
payment when due of the principal of and interest on the Series 2005
Bonds as provided therein.
(C) Any provision of this Resolution expressly recognizing or
• granting rights in or to Ambac Assurance may not be amended in any
manner which affects the rights of Ambac Assurance hereunder
without the prior written consent of Ambac Assurance.. Ambac
Assurance reserves the right to charge the City a fee for any consent
or amendment to this Resolution while the Municipal Bond Insurance
Policy is outstanding. •
(D) Unless otherwise provided in this Section,Ambac Assurance's
consent shall be required in addition to Bondholder consent, when
required, for the following purposes: (i) execution and delivery of
any amendment or change to this Resolution,(ii)removal of'the Bond
Registrar and selection and appointment of any successors, and (iii)
initiation or approval of any action not described in(i) or(ii) above
which requires Bondholder consent.
(E) Any reorganization or liquidation plan with respect to the City
must be acceptable to Ambac Assurance.. In the event of any
reorganization or liquidation,Ambac Assurance shall have the right
to.vote on behalf'of'all Bondholders who hold Ambac Assurance-
insured Series 2005 Bonds absent a default by Ambac Assurance
under the Municipal Bond Insurance Policy insuring the Series 2005
Bonds.. •
•
5
(F) Anything in this Resolution to the contrary notwithstanding,
upon the occurrence and continuance of an Event of Default,Ambac
Assurance shall be entitled to control and direct the enforcement of
all rights and remedies granted to the Bondholders under this
Resolution, including,without limitation: (i) the right to accelerate
the principal of the Series 2005 Bonds as described in this Resolution
and(ii)the right to annul any declaration of acceleration,and Ambac
Assurance shall be entitled to approve all waivers of events ofdefault.
(G) Subject to Section 802 hereof; upon the occurrence of an
Event of Default,Ambac Assurance may,by written notice to City,
declare the principal of the Series 2005 Bonds to be immediately due
and payable.
(H) While the Municipal Bond Insurance Policy is in effect, the
•City shall furnish,at the City's expense, to Ambac Assurance,to the
attention of the Surveillance Department:
(a) as soon as practicable after the filing thereof; a copy
of any financial statement of the City and a copy of any audit and
annual report of the City;
(b) a copy of any notice to be given to the registered
• owners of'the Series 2005 Bonds, including, without limitation,
notice of any redemption of or defeasance of Series 2005 Bonds,and
any certificate rendered pursuant to this Resolution relating to the
security for the Series 2005 Bonds; and
•
(c)such additional information as it may reasonably request.
(I) The City shall notify Ambac Assurance,to the attention of the
General Counsel's office, of'any failure of the City to provide any
notices,certificates,or other documentation required to be provided
by the City hereby.
(T) The City will permit Ambac Assurance to discuss the affairs,
finances and accounts of' the City or any information Ambac .
Assurance may reasonably request regarding the security for the
Series 2005 Bonds with appropriate officers of'the City. The City
will permit Ambac Assurance to have access to and to make copies
of all books and records relating to the Series 2005 Bonds at any
reasonable time.
(K) Ambac Assurance shall have the right to direct an accounting
at the City's expense, and the City's failure to comply with such
• direction within thirty(30)days after receipt of written notice of the
• 6
direction from Ambac Assurance shall be deemed a default
hereunder;provided,however;that if compliance cannot occur within
such period,then such period will be extended so long as compliance
is begun within such period and diligently pursued,but only if such
extension would not materially adversely affect the interests of any
registered owner of'the Series 2005 Bonds,
. (L) Notwithstanding any other provision of this Resolution, the
Bond Registrar or the City shall immediately notify Ambac
Assurance,to the attention of the General Counsel's office,if at any
time there are insufficient moneys to make any payments of principal
and/or interest on the Series 2005 Bonds as required,and immediately
upon the occurrence of any Event of Default hereunder:
(M) To the extent that the City enters into a continuing disclosure
agreement with respect to the Series 2005 Bonds,Ambac Assurance
• shall be included as a party to be notified.
(N) Notwithstanding anything herein to the contrary,in the event
that the principal and/or interest due on the Series 2005 Bonds shall
be paid by Ambac Assurance pursuant to the Municipal Bond
Insurance Policy,the Series 2005 Bonds shall remain Outstanding for
all purposes,shall not be defeased or otherwise satisfied and shall not
be considered paid by the City,and the assignment and pledge of the
amounts pledged to repayment of the Series 2005 Bonds and all
covenants, agreements and other obligations of the City to the
Bondholders shall continue to exist and shall run to the benefit of
Ambac Assurance, and Ambac Assurance shall be subrogated to the
rights of such Bondholders.
(0) Ambac Assurance will allow only the following obligations
to be used for defeasance purposes: (1) cash fully insured by the
F ederal Deposit Insurance Corporation or otherwise collateralized
with obligations described in (2)below, or(2) direct obligations of
(including obligations issued or held in book entry form on the books
of)the Department of the Iieasury of the United States of America.
(P) Nothing in this Resolution expressed or implied is intended
or shall be construed to confer upon, or.to give to, any person or
entity,other than the City,Ambac Assurance,the Bond Registrar and
the registered owners of the Series 2005 Bonds,any right,remedy or . .
claim under or by reason of this Resolution or any covenant,
condition or stipulation hereof; and all covenants, stipulations,
promises and agreements in this Resolution contained by or on behalf'
of the City shall be for the sole and exclusive benefit of'the City,
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Ambac Assurance,the Bond Registrar and the registered owners of
the Series 2005 Bonds..
(Q) To the extent that this Resolution confers upon or gives or
grants to Ambac Assurance any right, remedy or claim under or by
reason of this Resolution, Ambac Assurance is hereby explicitly
recognized as being a third-party beneficiary hereunder and may
enforce any such right,remedy or claim conferred,given or granted
hereunder:
(R)(i) Upon the written request of Ambac Assurance,the City shall
take steps to remove any Bond Registrar which shall have violated •
any provision hereof; (ii) the City will provide Ambac Assurance
written notice if any Bond Registrar shall resign; (iii) every Bond
Registrar appointed under this Resolution shall be a financial
institution in good standing located in or incorporated under the laws
of the State, duly authorized to exercise trust powers and subject to
examination by federal.or State authorities,having a reported capital •
.and surplus of not less than $75,000,000 and not objected to by
Ambac Assurance; (iv) any successor Bond Registrar shall not be
appointed unless Ambac Assurance approves such successor in
writing; (v) notwithstanding any other provisions of this Resolution
in determining whether the rights of the bondholders will be
adversely affected by any action taken pursuant to the terms and
provisions of this Resolution,the Bond Registrar shall consider the
affect on the Bondholders as if there were not municipal bond
insurance policy;and(vi)notwithstanding any otherprovision of this
Resolution, no removal, resignation or termination of the Bond
Registrar shall take effect until a successor; acceptable to Ambac
Assurance shall be appointed
(S) "Authorized Investments" shall mean the investments
described in the Resolution, but only to the extent also described
below and only to the extent the same shall be permitted from time
to time by applicable laws of the State:
(a) direct obligations of(including obligations issued or
held.in book entry form on the books of) the Department of the
Treasury of the United States of America, including Federal
Securities;
(b) obligations of any of the following federal agencies
which obligations represent the full faith and credit of the United
States of America: Export-Import Bank; Rural Economic
Community Development Administration; U.S.. Maritime
Administration; Small Business Administration;U.S..Department of
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Housing & Urban Development; F ederaI Housing Administration;
and Federal Financing Bank;
(c) direct obligations of any of the following federal
agencies which obligations are not fully guaranteed by the full faith
and credit of the United States of America: senior debt obligations
rated"AAA" by S&P and "Aaa" by Moody's issued by the Federal
National Mortgage Association or the F annie Mae;obligations of'the
Resolution Funding Corporation; senior debt obligations of the
Federal Home Loan Bank System; senior debt obligations of other
government sponsored agencies approved by Ambac Assurance;
(d) U.S. Dollar denominated deposit accounts, federal
funds and banker's acceptances with domestic commercial banks
which have a rating on their short term certificates of deposit on the
date of purchase of'A-1'or'A-1+'by S&P and 'P-1'by Moody's and
maturing no more than 360 days after the date of'purchase(ratings on
holding companies are not considered as the rating of the issuing
bank);
•
(e) commercial paper which is rated at the time of
purchase in the single highest classification, "A-1+" by S&P and
"P-1"by Moody's and which matures not more than 270 days after the
date of purchase;
(f) money market funds rated 'AAAm' or 'Aaam-G' or
better by S&P;
(g) units ofparticipation in the Local Government Surplus
Funds Trust Fund established pursuant to Part IV, Chapter 218,
Florida Statutes, or any similar common trust fund which is
established pursuant to State law as a legal depository of public
moneys;
(h) shares of'beneficial interest in the Florida Municipal
Investment fiust created pursuant to Section 163.01,Florida Statutes;
and
(i) other forms of investments approved in writing by
• Ambac Assurance with notice to S&P..
(1) The value of all investments shall be determined when
required as follows: (i) as to investments not described in (ii)and
(iii) below, at the fair market value based on accepted industry •
standrads and from accepted industryproviders;(ii)as to certificates
of'deposit and banker's acceptances, the face amount thereof; plus
9
accrued interest; and (iii) as to any investment not specified above,
the value there of established byprior agreement between the City and
Ambac Assurance.
• (U) As long as the Municipal Bond Insurance Policy shall be in
. full force and effect,the City and anyBond Registrar agree to comply
with the following provisions:
(a) At least one(1)day prior to all Interest Payment Dates
the City or Bond Registrar will determine whether there will be
sufficient funds in the funds and accounts established pursuant to the
Resolution to pay the principal of or interest on the Series 2005
Bonds on such Interest Payment Date.. Iffthe City or Bond Registrar
determines that there will be insufficient funds in such funds or
accounts, the City or Bond Registrar shall so notify Ambac
Assurance. Such notice shall specify the amount of the anticipated
deficiency, the Series 2005 Bonds to which such deficiency is
applicable and whether such Series 2005 Bonds will be deficient as
to principal or interest,or both.. If the City or Bond Registrar has not
so notified Ambac Assurance at least one(1) day prior to an Interest
Payment Date,Ambac Assurance will make payments ofprincipal or
interest due on the Series 2005 Bonds on or before the first(1st)day
next following the date on which Ambac Assurance shall have
received notice of nonpayment from the City or Bond Registrar:.
(b) The City or Bond Registrar shall, after giving notice
to Ambac Assurance as provided in (a) above, make available to
Ambac Assurance and,at Ambac Assurance's direction,to The Bank
of New York, in New York, New York, as insurance trustee for
Ambac Assurance,or any successor insurance trustee(the"Insurance
Tiustee"), the registration books of the City maintained by the
Registrar and all records relating to the funds and accounts
maintained under this Resolution.
(c) the City or Bond Registrar shall provide Ambac
Assurance and the Insurance Trustee with a list of registered owners
of Series 2005 Bonds entitled to receive principal or interest
payments from Ambac Assurance under the terms of the Municipal
• Bond Insurance Policy, and shall make arrangements with the
. Insurance Trustee(i)to mail checks or drafts to the registered owners
of Series 2005 Bonds entitled to receive full or partial interest
payments from Ambac Assurance and (ii) to pay principal upon
Series 2005 Bonds surrendered to the Insurance Trustee by the
owners of Series 2005 Bonds entitled to receive full or partial
principal payments from Ambac Assurance.
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(d) The City or Bond Registrar shall at the time it provides
• notice to Ambac Assurance pursuant to (a) above, notify owners of
Series 2005 Bonds entitled to receive the payment of'principal or
interest thereon from Ambac Assurance (i) as to the fact of such
entitlement,(ii)that Ambac Assurance will remit to them all or a part
of the interest payments next coming due upon proof of owner
entitlement to,interest payments and delivery to the Insurance Trustee,
in form satisfactory to the Insurance Iiustee, of an appropriate
assignment of the Owner's right to payment,(iii)that should they be
entitled to receive full payment ofprincipal from Ambac's Assurance,
they must surrender their Series 2005 Bonds (along with an •
appropriate instrument of assignment in form satisfactory to the
Insurance Trustee to permit ownership of such Series 2005 Bonds to
be registered in the name of Ambac Assurance) for payment to the
Insurance Trustee, and not the City or Bond Registrar, and (iv) that
should they be entitled to receive partial payment of principal from
Ambac Assurance,they must surrender their'Series 2005 Bonds for
payment thereon first to the Bond Registrar who shall note on such
Series 2005 Bonds the portion of the principal paid by the Bond
Registrar and then, along with an appropriate instrument of
assignment in form satisfactory to the Insurance Trustee, to the
Insurance Trustee, which will then pay the unpaid portion of
principal.
(e) In the event that the City Or Bond Registrar has notice
that any payment of'principal of or interest on a Bond which has
become Due for Payment (as defined in the Municipal Bond
Insurance Policy)and which is made to an Owner by or on behalf of
the City has been deemed a preferential transfer and theretofore
recovered from its Owner pursuant to the United States Bankruptcy
Code by a trustee in bankruptcy in accordance with the final,
nonapp eal able order of'a court having competent jurisdiction,the City
or Bond Registrar shall, at the time Ambac Assurance is notified
pursuant to (a) above, notify all Owners that in the event that any
Owner's payment is so recovered, such Owner will be entitled to
payment from Ambac Assurance to the extent of'such recovery if
sufficient funds are not otherwise available, and the City or Bond
Registrar shall furnish toAmbac Assurance its records evidencing the
payments of principal of and interest on the Series 2005 Bonds which
have been made by the City or Bond Registrar and subsequently
recovered from Owners and the dates on which such payments were
made. •
(f) In addition to those rights granted Ambac Assurance
• under this Resolution,Ambac Assurance shall,to the extent it makes
payment of principal.of or interest on Series 2005 Bonds, become
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subrogated to the rights of the recipients of such payments in
accordance with the terms of the Municipal Bond Insurance Policy,
and to evidence such subrogation(i) in the case of subrogation as to
claims for past due interest, the Bond Registrar shall note Ambac
Assurance's rights as subrogee on the registration books of the City
maintained .by the Bond Registrar upon receipt from Ambac
Assurance of'proof'of the payment of'interest thereon to the Owners
of the Series 2005 Bonds, and (ii) in the case of'subrogation as to
claims for past due principal, the Bond Registrar shall note Arnbac
Assurance's rights as subrogee on the registration books of the City
maintained by the Bond Registrar;if'any,upon surrender of the Series
• 2005 Bonds by the Owners thereof together with proof of the
payment of'principal thereof'. •
(V) Unless the 2005 Bond Insurer shall be in default of its
obligations pursuant to the 2005 Bond Insurance Policy, the 2005
Bond Insurer shall be deemed to be the Holder of the 2005 Bonds for
• purposes of consenting to amendments to the Bond Resolution; and • . .
the provisions of Section 1002 in respect of such amendments,other
than the amendments described in clauses(a)through (e) of the first
sentence of Section 1002 of the Bond Resolution.
(c) A new Section 720 is added to the Bond Resolution to provide as follows:
"Section 720. Reserve Surety Provisions. Notwithstanding any provision to the contrary
contained herein,the following provisions shall apply while Ambac Assurance has issued a surety
bond in order to fund all or a portion of the Reserve Account Requirement for any Series 2005
Bonds:
(A) "Ambac Assurance" shall mean Ambac Assurance Corporation, a
Wisconsin-domiciled stock insurance company.
(B) "Surety Bond" shall mean the surety bond issued by Ambac
Assurance guaranteeing certain payments into the Series 2005
Reserve Subaccount with respect to the Series 2005 Bonds as
provided therein and subject to the limitations set forth therein.
(C) Any provision of this Resolution expressly recognizing or granting
rights in or to Arnbac Assurance may not be amended in any manner
which affects the rights of'Ambac Assurance hereunder without the
prior written consent of Ambac Assurance..
(D) Unless otherwise provided in this Section, Arnbac Assurance's
consent shall be required in addition to Bondholder consent, when
required, for the following purposes: (i) execution and delivery of
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any amendment or change to this Resolution,(ii)removal of the Bond
Registrar and (iii)initiation or approval of any action not described
in(i)or(ii) above which requires Bondholder consent.
(E) While the Surety.Bondis in effect,the City shall fizrnish to Ambac
Assurance, to the attention of the Surveillance Department:
(a) as soon as practicable after the filing thereof,. a copy
of any financial statement of the City and a copy of any audit and
annual report of the City;
(h) a copy of any notice to be given to the registered
owners of the Series 2005 Bonds, including, without limitation,
notice of any redemption of or defeasance of Series 2005 Bonds,and
any certificate rendered pursuant to this Resolution relating to the
security for the Series 2005 Bonds; and
(c) such additional information as it may reasonably request,
(F) the City will permit Ambac Assurance to discuss the affairs,finances •
and accounts of the City or any information Ambac Assurance may
reasonably request regarding the security for the Series 2005 Bonds
with appropriate officers of the City. The City will permit Ambac
Assurance to have access to and to make copies of all books and
records relating to the Series 2005 Bonds at any reasonable time. •
(G) Notwithstanding any other provision of this Resolution, the Bond
Registrar or the City shall immediately notify Ambac Assurance, to
the attention of the General Counsel's office,if at any time there are
insufficient moneys to make anypayments ofprincipal and/or interest
on the Series 2005 Bonds as required, and immediately upon the
occurrence of any Event of Default hereunder
•
(H) TO the extent that the City enters into a continuing disclosure
agreement with respect to the Series 2005 Bonds,Ambac Assurance
shall be included as a party to be notified. .
(1) As long as the Surety Bond shall be in full force and effect,the City
and any Bond. Registrar agree to comply with the following
provisions:
(i) In the event and to the extent that moneys on deposit in the Bond
Service Subaccount and/or Redemption Subaccount,plus all amounts
on deposit in and credited to the Series 2005 Reserve Subaccount in .
excess of the amount of the Surety Bond,are insufficient to pay the
amount of the principal and interest coming due,then upon the later .
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of(x) one (1) day after receipt by the General Counsel of Ambac
Assurance of a demand for payment in the form attached to the Surety
Bond as Attachment 1 (the"Demand forPayment"),duly executed by
the Bond Registrar certifying that payment due under this Resolution
has not been made to the Bond Registrar;or(y) the payment date of
Obligations as specified in the Demand for Payment presented by the
Bond Registrar to the General Counsel ofAmbac Assurance,Ambac
Assurance will make a deposit of funds in an account with the Bond
Registrar or its successor;in New York,New York,sufficient for the
payment to the Bond Registrar of amounts which are then due to the
Bond Registrar under the Resolution(as specified in the Demand for
Payment)up to but not in excess of the Surety Bond Coverage, as
defined in the Surety Bond;provided,however;that in the event that
the amount on deposit in or credited to the Series 2005 Reserve
Subaccount of the Reserve Account, in addition to the amount
available under the Surety Bond,includes amounts available under a
letter of credit, insurance policy, surety bond, or other such funding
instrument (the "Additional Funding Instrument"), draws on the
Surety Bond and the Additional Funding Instrument shall be made on
a pro rata basis to fund the insufficiency;
(ii)the Bond Registrar shall,after submitting to Ambac Assurance the
Demand for Payment as provided in (i) above, make available to
Ambac Assurance all records relating to the funds and accounts
maintained under this Resolution;
(iii)the Bond Registrar shall,upon receipt of moneys received from
the draw on the Surety Bond, as specified in the Demand for
Payment,credit the subaccount of the Reserve Account to the extent
of'moneys received pursuant to such Demand;and
(iv)the Series 2005 Reserve Subaccount shall be replenished in the
following priority: (x) principal and interest on the Surety Bond and
on any Additional Funding Instrument shall be paid first from
available funds on a pro rata basis;(y)after all such amounts are paid
in full, amounts necessary to fund the subaccount of the Reserve
Account to the required level, after taking into account the amounts
available under the Surety Bond and any Additional Funding
Instrument, shall be deposited from the next available funds.
(d) The definition of"Renewal,Replacement and Improvement Account Requirement"contained
in Section 101 of'the Bond Resolution is amended to provide as follows,and such amendment shall
be deemed incorporated into all Supplemental Resolutions adopted after the date hereof; so that it
shall not be necessary to obtain the consent of the Holders of such Bonds to such amendment.
However;such amendment shall not become effective until(i)the Outstanding principal amount of
the City's Utility SystemRevenue Bonds,Series 1996 and Utility System Revenue Refunding Bonds,
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Series 2002 constitutes less than a majority of the principal amount of all Outstanding Bonds,(ii)
notice to the Holders of the Outstanding Series 1996 Bonds and Series 2002 Bonds shall have been
given in accordance with Section 1002 of the Bond Resolution,and(iii)the requirements of Section
718(e)of the Bond Resolution(added by Section 5(b)of Resolution No.RO1-193)shall have been
satisfied.. As permitted by Section 1002 of the Bond Resolution, the Original Purchaser, by its
purchase of the Series 2005 Bonds, consents to the following amendment of the definition of.
"Renewal,Replacement and Improvement Account Requirement."
"Renewal, Replacement and Improvement Account Requirement" shall mean an
amount equal to six percent of the Revenues for the preceding Fiscal Year or such
greater or lesser amount as determined by the City Commission by resolution from
time to time
Section 6. Approval of Sale of the Series 2005 Bonds, The City hereby determines that a
negotiated sale of the Series 2005 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 Bond 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 2005 Bonds and to reflect the purchase price thereof, provided, that the
underwriter's discount shall not exceed$7.00 per thousand dollars ofprincipal amount of the Series
2005 Bonds,and with such other completions,additions and/or changes as shall be approved by the
Authorized Representative,such approval to be conclusively established by such execution,and the
Authorized Representative is hereby authorized and directed for and in the mine of the City to
execute 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 biddingfor the Series
2005 Bonds is hereby waived pursuant to the authority of'Section 218.385(1),Florida Statutes:.
Section 7..Execution and Delivery of the Series 2005 Bonds. The Authorized Signatory and
the City CIerk are hereby authorized and directed on behalf of the City to execute the Series 2005
Bonds as provided in the Bond Resolution and such officials are hereby authorized and directed upon
the execution of the Series 2005 Bonds in the fbrm and Manner set forth herein and in the Bond
Resolution to deliver the Series 2005 Bonds in the amount authorized to be issued hereunder to the
Bond Registrar for authentication(upon the satisfaction of'the conditions of'Section 210 ofthe 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 2005 Bonds and
any amounts available under the Bond Resolution as a result of the refunding arid defeasance of'the
Refunded Bonds shall be applied for the purposes describedherein as provided in a certificate
executed by the Authorized Signatory at or prior.to the issuance of the Series 2005 Bonds•
Section'9. Bond Registrar. The City hereby appoints The Bank of'New York Bust
Company, NA.. as Bond Registrar with respect to the Series 2005. Bonds. • The form of'Bond
Registrar Agreement attachedhereto as Exhibit"B"is hereby approved and the Authorized Signatory
is hereby authorized and directed for and:in the name of the City to execute,and the City Clerk is
15 .
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 2005 Bonds,of a Preliminary
Official Statement relating to the Series 2005 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 Authorized Signatory,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 Authorized
Signatory 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 2005 Bonds,which shall be in substantially
the form of the Preliminary Official Statement,changed to reflect the terms of the Series 2005 Bonds
and with such other changes, alterations and corrections therein as may be approved by the
Authorized Signatory, such approval to be conclusively established by such execution, is hereby
authorized,and upon preparation thereof the Authorized Signatory is 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 Authorized Signatory is authorized,but
not obligated,to accept commitments from the 2005 Bond Insurer for the issuance of the 2005 Bond
Insurance Policy and a Reserve Account Insurance Policy and to execute,on behalf of the Issuer;
a Guaranty Agreement with respect to the Reserve Fund Insurance Policy.
Section 12. Compliance with Tax Requirements. The City hereby covenants and agrees,for
the benefit of the Bondholders from time to time of the Series 2005 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 2005 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 2005 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 2005 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;
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. (3) to refrain from using proceeds from the Series 2005 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 2005
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 N 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 2005 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 13. 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"D"is hereby
approved,subject to such changes,insertions, omissions,and filling in of blanks therein as may be
approved by the Authorized Signatory,such approval to be conclusively evidenced by the execution
of the Escrow Deposit Agreement by the Authorized Signatory. The Authorized Signatory 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 Trust Company, N.A.. the Authorized Signatory, Finance Director; Financial Advisor 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 14. 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 2005 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;2005 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
•
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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 2005 Bond Insurer and to the Bond Registrar for the Series 2005 Bonds as
designated by the City from time to time.. (The information required to be disclosed in this paragraph
shall be hereinafter refereed 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 timelymanner;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 2005 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
2005 Bonds;
(vii) modifications to rights of'the holder's of the Series 2005 Bonds;
(viii) bond calls of the Series 2005 Bonds (other than scheduled mandatory
redemption)or any acceleration of the maturity thereof;
(ix) defeasances(in whole or in part)of Series 2005 Bonds;
(x) release;substitution,or sale ofproperty securing repayment of'the Series 2005
Bonds;
(xi) rating changes;and
()ii) any changes in the City's Fiscal Year:.
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(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 2005 Bonds(within the meaning ofthe 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 2005 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 2005 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 solelyfor the benefit of the holders
and beneficial owners of the Series 2005 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 ofthis Section and any such provision maybe waived,provided that
the following conditions are satisfied:
(1) lithe 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 Taw, 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 2005
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 2005 Bonds
pursuant to the terms of'the Bond Resolution..
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In the event of any such amendment or waiver ofa 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 15. Authorizations. the Authorized Signatory, the City Clerk and the Finance
Director are hereby jointly and severally authorized to do all acts and things required of them by this
Resolution,the Bond Resolution,the Escrow Deposit Agreement,the Bond Registrar Agreement 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 2005 Bonds,the Bond Resolution,this Resolution,the Escrow Deposit Agreement,the Bond
Registrar Agreement 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 16. Business Days. In any case where the date of maturity of'interest on or principal
of the Series 2005 Bonds or the date fixed for redemption ofany Series 2005 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 17. Resolution to Constitute a Contract In consideration of the purchase and
acceptance of the Series 2005 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 18. 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
2005 Bonds is intended or shall be construed to give any person other than the City, the Original
Purchaser;the 2005 Bond Insurer;the Escrow Agent,the Bond Registrar 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 2005 Bond
Insurer,the Escrow Agent,the Bond Registrar and the Owners.
Section 19. 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:.
20
•
Section 20. 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..
•
•
•
21
Section 21. Effective Date..This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED THIS 2ND DAY OF AUGUST,2005
(SEAL)
AT IEST: CITY OF BOYNT'ON BEACH,FLORIDA
.�`'►;,�'t•'. . Mayor
•
VICE- OI'
Commissioner
l
• ��
Commissioner
Commissioner
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
1111110
By: NAP-
City
ACity Attorney
22
The City ,,t ' : ovneton. :each
City Clerk's Office
ti; fia: 100 E BOYNTON BEACH BLVD
}fit -• f1. BOYNTON BEACH FL 33435
- (561) 742-6060
': . :• 4. FAX: (561) 742-6090
Ys`'" e-mail : prainitoj@cfl.us
www.boynton-beach..org
CERTIFICATION
I, JANET M. PRAINITO, CITY CLERK of the City of Boynton Beach, Florida,
do hereby certify that the attached Resolution No. R08-0.32 consisting of 9 pages is a
true and correct copy as it appears in the records of the City of Boynton Beach, Florida..
WITNESS, my hand and the corporate seal of the CITY OF BOYNTON BEACH,
FLORIDA, dated this 21St day,of February, 2012.
ET M. PRAINITO, MMC
CITY CLERK
(SEAL),
•
•
5:\CC\WP\certifications\Resolutions\2012\Certified R08-032,doc
Amenca'sGateway to the Gulfstr'earn
1 RESOLUTION NO.R08- O:8,
2
3 A SERIES RESOLUTION PROVIDING FOR THE
4 ISSUANCE OF NOT . EXCEEDING $30,000,000 OF
5 UTILITY SYSTEM REVENUE BONDS, SERIES 2008;
6 PROVIDING A METHOD FOR FIXING AND
7 DETERMINING THE . PRINCIPAL AMOUNT,
8 INTEREST RATES, MATURITY. DATES,
9 REDEMPTION PROVISIONS AND OTHER DETAILS
10 OF SAID. BONDS;AUTHORIZING THE SALE'OF THE
11 BONDS TO BRANCH BANDING AND TRUST
12 COMPANY ("BB&T"); FINDING NECESSITY FOR A
13 NEGOTIATED SALE OF SUCH BONDS; PROVIDING
14 FOR THE APPLICATION OF THE PROCEEDS OF
15 , . SAID BONDS AND CERTAIN OTHER MONEYS;
16 . DESIGNATING THE BOND REGISTRAR FOR SAID
17 ' BONDS; CONTAINING CERTAIN AUTHORIZATIONS
18 AND., OTHER PROVISIONS; AND PROVIDING AN
19. EFFECTIVE DATE
20
21
22 WHEREAS, the City of Boynton Beach, Florida (the "City") is authorized by the
23 Constitution and laws of the State of Florida, including the City's Charter and Chapter 166,
24 Florida Statutes, to issue revenue bonds of the City payable from Pledged Revenues (as
25 defined in the Bond Resolution hereinafter defined mentioned) for certain purposes;and
26
27 WHEREAS,pursuant to Resolution No.. R 92-96 adopted by the City Commission of
28 the City (the "City Commission") on June 16, 1992, as amended (the "Bond Resolution")
29 obligations of the City may be issued and may be secured by a lien upon and pledge of ..
30 certain "Pledged Revenues" as defined in and to the extent set forth in the Bond Resolution;
31 and
32 '
33 WHEREAS, the City desires to issue Bonds (the "Series 2008 Bonds") under the
• 34 Bond Resolution to provide funds, together with available funds of the City, to pay, costs of
35 capital improvements to the City's Utility System and topay certain costs of issuing'such
36 Series 2008 Bonds; and
37 .
38 . WHEREAS,prior to the issuance of the Series 2008 Bonds the conditions set forth in
39 Section 209 of the Bond Resolution shall be satisfied; and
40 .
41 WHEREAS, the City Commission has determined that the sale of such Series 2008
42 Bonds through negotiation with the Original Purchaser (hereinafter defined) is in the best
4.3 , interest of the City; and
1
I I
. 1
21 1 WHEREAS, the City Commission has received from Branch Banking and Trust
3 Company ("BB&T") (the "Orig'nal Purchaser") a form of a commitment attached hereto as
4 Exhibit A(the "Cortunitment").whereby the Original Purchaser agrees to purchase the.Series
5 2008 Bonds, and the City Commission has determined that the authorization of the
6 acceptance of such proposal pursuant to the terms Set forth in Section 6 hereof is in the best
7 interests of the City and will effect the purposes set forth in the Bond Resolution;and
8
9 WHEREAS, it is necessary and desirable to specify a method for determining the
10 dates, the interest rates, maturity dates and redemption provisions for such Series 2008
11 Bonds;
12
1:3 1 'NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
14 ' CITY OF BOYNTON BEACH,FLORIDA:
15
16 Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the
17 provisions of the Charter of the City of Boynton Beach, Florida,the Constitution of the State
18 of Florida, including, but not limited to,Article VIII, Section 2 thereof, and other applicable
19 provisions of law;including Chapter 166,Florida Statutes,and the Bond Resolution.:
20.
21. Section 2._ Definitions., Terms used herein in capitalized form and not otherwise
22 defined herein shall have'the'meanings ascribed thereto in the Bond Resolution., The
23 following terms, when used in this Resolution or in the Bond Resolution, as amended
24 .. hereby,shall have the following meanings:
25
26 ' "Authorized Representative" means the Mayor or Vice'-Mayor, and in the absence or
27 inability to act of the Mayor or Vice-Mayor, the City Manager or any other City
28 Commissioner (the absence or inability to act of the Mayor of Vice-Mayor as to any
29 : particular action being conclusively established by the taking of such action by the City
30 Manager or other City Commissioner)..
31
32 "Business Day" shall mean any day other than a Saturday, Sunday or other day on
.33 which the Bond Registrar is lawfully and temporarily closed"or a day on which the New
34 York Stock Exchange is lawfully and temporarily closed.. ' ' ,
:35
36 "Closing Date" shall mean the date on which the Series 2008 Bonds are issued and
37 delivered by the City and paid for by the Original Purchaser..
38
39 "Interest Payment . Date" shall mean, May 1 and November 1 of' each year,
40 commencing May 1,2008..
41
1 Section 3. Authorization of Bonds. Bonds are hereby authorized to be issued
2 pursuant to this Resolution and Section 210 of the Bond Resolution in the aggregate
3 principal amount of' not to exceed $30,000,000. The Bonds hereby authorized shall be
4 known as "Utility System Revenue Bonds, Series 2008" (the "Series 2008 Bonds").. Prior to
5 the`1f'issuance of Series 2008 Bonds the conditions of'Section 209 of the Bond Resolution
6 shall be satisfied.. The Series 2008 Bonds are being issued for the principal purpose of
7 providing funds to pay fbr capital improvements to the Utility System.
8
9 Section 4. Terms of the Series 2008 Bonds,.
10 .�
11 (a) Form of_Bonds.. The Series 2008 Bonds shall be substantially in the form of
12 the Bonds set forth in the Bond Resolution, with such changes as may be necessary or
13 appropriate to conform to the provisions of this Resolution and the terms of the Series 2008
14 Bonds set forth herein as may be approved by the officers of the City executing the Series
15 2008 Bonds, such execution to be conclusive evidence of such approval.
16
17 . (b) Amounts,Maturities, Redemption Provisions and Interest Rates
18 .
19 The Series..2008 Bonds shall .be issued as a single-.bond for the entire principal
20 amount of the Series 2008 Bonds, shall be issued in registered form,shall be numbered from
21 R-1 upwards, shall be dated their date of'initial issuance and delivery, and shall bear interest
22 from such date, payable on the Interest Payments Dates. The Series 2008 Bonds shall be
23 issued on such date, in the aggregate principal amount, not in excess of$30,000,000, shall
24 bear interest at the rates per annum, computed on the basis of'a 360-day year consisting of
25 twelve .30-day months, not in excess of the maximum legal rate, and shall mature on
26 November 1 of the years and shall have such prepayment or redemption provisions, all as set
27 forth in the Series 2008 Bonds, and as shall be consistent with the Commitment
�8
29 (c) . Reserve Account Deposit Requirement. The Reserve Account Requirement
30 for the Series 2008 Bonds shall be zero..
31
32 Section 5. Approval of'Sale of the Series 2008 Bonds,. The City hereby determines
33 that a negotiated, sale of the Series 2008 Bonds to the Original Purchaser is in the best
34 interest of the City and thecitizens and inhabitants of the City by reason of the.volatility of'
35 the market for tax exempt bonds. Prior to the issuance of the Series 2008 Bonds, the
36 Original Purchaser shall.file with the City the disclosure statement required by Section
37 218.385, Florida Statutes, and the competitive bidding for the Series 2008 Bonds is hereby
38 waived pursuant to the authority of Section 218.385(1),Florida Statutes.
39
40 . Section 6. Execution and DeIivery of' the Series 2008 Bonds.. The Authorized
41 Signatory and the City Clerk are hereby authorized and directed on behalf of the City to
42 execute the Series 2008 Bonds as provided in the Bond Resolution and such officials are
43 hereby authorized and directed upon the execution of the Series 2008 Bonds in the form and
44 manner set forth herein and in the Bond Resolution to deliver the Series 2008 Bonds in the
45 amount authorized to be issued hereunder to the Bond Registrar for authentication(upon the
1 satisfaction of the conditions of Section 209 of the Bond Resolution) and delivery to or upon
2 the order of'the Original Purchaser upon payment of the purchase price set forth herein,.
3
4 Section 7. Application of Proceeds,. Proceeds from the sale of the Series 2008
5 Bonds shall be applied for the purposes described' herein as provided in a certificate
6 executed-by the Authorized Signatory at or prior to the issuance of the Series 2008 Bonds:,'
7
8 Section 8. Bond Registrar„ The City Clerk shall serve as Bond Registrar with
9 - respect to the Series 2008 Bonds,
10
11 . Section 9. Compliance with Tax Requirements., The City hereby covenants and
12 'agrees, for the benefit of the Bondholders from time to time of'the Series 2008 Bonds,'to
13 comply with the 'requirements applicable to it contained in Section 103 and Part IV of
14 Subchapter B of'Chapter 1'of the Internal Revenue Code of 1986, as amended (the "Code")
15 'to the extent necessary to preserve the exclusion of interest on the Series 2008 Bonds from
16 gross income for federal income tax purposes Specifically, without intending to limit in any
17 way the generality of the foregoing, the City covenants and agrees:
18
19 (1)' to pay to the United States of America from, to,the extent legally
20 ' ' available,'the funds and sources of revenues pledged tothe payment of the 'Series
21 2008.Bonds, and fr•om any other legally available funds, at the times and to the
22 extent required pursuant to Section 148(f) of the Code, the excess of the amount
23 earned on all non-purpose investments (as defined in Section 148(f)(6) of the Code)
24 (other than investments attributed to an excess described in this sentence) over. the
25 amount which would have been earned if' such non:purpose investments were
26 invested at a rate equalto the yield on the Series.2008 Bonds, plus any income
27 attributable to such excess(the "Rebate Amount");
28
29 (2) to maintain and retain all'records pertaining to and to be responsible
30 for making or causing to be made all determinations and calculations of the.Rebate
• 31 Amount and required payments of the Rebate Amount as shall be necessary to
32 . comply with the Code;
33
34 (3) . ' to refrain from using proceeds fionz, the'Series: 2008 Bonds in a
35 manner that, would cause the Bonds or any of them, to be classified as private
36' activity bonds under Section 141(a)of'the Code; and
37
38 (4) to take or refrain from taking any action that would cause the Series
39 '2008 Bonds,or any of'them, to become arbitrage bonds under Section 103(b) and
40. . . Section 148 of the Code.
41
42 The City understands that the foregoing covenants imposecontinuing obligations on
43 the City to comply with the requirements of Section 103 and'Part IV,of Subchapter B of
44 Chapter 1 of the Code so long as such requirements are applicable.: '
` .
1 Unless otherwise specified in the Certificate as to Arbitrage and Other Tax Matters
2 delivered in connection with the issuance of the Series 2008 Bonds,the City shall designate
3 a certified public accountant,Bond Counsel, or other professional consultant having the skill
4 and expertise necessary (the "Rebate Analyst") to make any and all calculations required
5 pursuant to this Section regarding the Rebate Amount.. Such calculation shall be made in the
6 manner and at such times as specified in the Code.. The City shall engage and shall be
7 responsible for paying the fees and expenses of the Rebate Analyst..
8
9 Section 10. A.uthorizations., The Authorized. Signatory, the City Clerk and the
10 Finance Director are hereby jointly and severally authorized to do all acts and things
11 required of them by this Resolution or the Bond Resolution, or desirable or consistent with
12 the requirements hereof or. thereof; for the full, punctual and complete performance of all
1:3 terms, covenants and agreements contained in the Series 2008 Bonds, the Bond Resolution
I4 and this Resolution, and to make any elections necessary or desirable in connection with the
15 arbitrage provisions of Section 148 of the Code.
16
17 Section 11. Business Days.. In any case where the date of maturityof interest on or
18 principal of the Series 2008 Bonds or the date fixed for redemption of any Series 2008
19 Bonds.is not a Business Day,then payment of principal,premium, if any, or interest need not
20 be made on such date but may be made on the next succeeding Business Day, with the same
21 . force and effect as if made on the date of maturity or the date fixed for redemption..
22 '
2:3 Section 12. Resolution to Constitute a Contract.. In consideration of the purchase
24 and acceptance of the Series 2008 Bonds authorized to be issued hereunder by those who
25 shall be the holders thereof from time to time, this Resolution shall constitute a contract
26 between the City and such holders,and all covenants and agreements herein and in the Bond
27 Resolution set forth to be performed by the City shall be for the equal benefit and security of
28 all of the holders.
29 '
30 Section 13. No Implied Beneficiary. With the exception of any rights herein
31 expressly conferred, nothing expressed or mentioned in orto be'. implied from this
32 Resolution or the Series 2008 Bonds is intended orshall be construed to give any person
33 other than the City, the Original Purchaser and the Owners, any legal or equitable right,
34 remedy or claim under or with respect to this Resolution or the Bond Resolution or any
35 covenants, conditions, and provisions herein contained; this Resolution and the Bond
36 Resolution and all of' the covenants, conditions and provisions hereof and thereof being
37 intended to be' and beingfor the sole and exclusive benefit of the City, the Original
38 Purchaser and the Owners
39
40 Section 14. Severability.. If any provision of this Resolution shall be held or deemed
41 to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall
42 not effect any other provision herein or render any other provision(or such provision in any
43 other context)invalid, inoperative or unenforceable to any extent whatsoever.
44
5
1 , Section.15._ Repealer, All Resolutions or parts thereof of the City in conflict with
2 the provisions herein contained or; to the extent of any such conflict,hereby superseded and
3 repealed,
4
51 i Section 21_ Effective Date. This Resolution shall take effect immediately upon its
6 adoption.
7 PASSED AND ADOPTED this .3 day of March 2008,.
8 CITY OF BOYNTON BEACH,FLORIDA
9 r /
10. .z•_+..iL `/
11 , or-.T' y Tayl V .
12
13
14 . Vice Mayor ---Jose Rodriguez
15
16
17 Commissioner—Ronald Weiland
19 Ar
20 CoFn nissio.er- f oodrow .
21 `
22
x..
23 ommissioner Mar ene Ross
24 ATTEST:
2S <-
26 B._ 41:4.-6)
27 Jan t M. Prainito, CMC
28.`-• Cl
29 GN'Y:4=. `�.
30 ( 4 Ate 801• A:'
31
' . o.N
6
City Clerk's Office
100E BOYNTON BEACH BLVD
• t=; BOYNTON BEACH FL 33435
. (561) 742-6060
FAX: (561) 742-6090
a e-mail : px-ainitoj@cfl,us
www.boynton-beach org
I,
JANET M. PRAINITO, CITY CLERK of the City of Boynton Beach, Florida,
do hereby certify that the attached Resolution No. R12-001 consisting of 25 pages is a
true and correct copy as it appears in the records of the City of Boynton Beach, Florida.
WITNESS, my hand and the corporate seal of the CITY OF BOYNTON BEACH,
FLORIDA, dated this 21st day of February, 2012,.
1./1.1TET M. PRAINITO, MMC
CITY CLERK
(SEAL)
*'L•,,.mak
S:\CC\WP\certifications\Resolutions\2012\Certified R12-001 doc
America's Gateway to the Gu f trear
RESOLUTION NO.. R12- 001
A SERIES RESOLUTION PROVIDING FOR THE ISSUANCE
OF NOT EXCEEDING $55,000,000 AGGREGATE PRINCIPAL
AMOUNT OF UTILITY SYSTEM REVENUE' BONDS,
SERIES 2012; PROVIDING A METHOD FOR FIXING AND
DETERMINING THE PRINCIPAL AMOUNT, INTEREST
RATES, MATURITY DATES, REDEMPTION PROVISIONS
AND OTHER DETAILS OF SAID BONDS; AUTHORIZING
THE SALE OF THE BONDS TO RBC CAPITAL MARKETS,
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 BOND PURCHASE CONTRACT AND A
BOND REGISTRAR AGREEMENT; AUTHORIZING THE
PREPAYMENT OF ALL OR A PORTION OF THE CITY'S
UTILITY SYS TEM REVENUE BONDS, SERIES 2008;
PROVIDING FOR CERTAIN CONTINUING DISCLOSURE
OBLIGATIONS OF THE CITY; PROVIDING FOR THE
APPLICATION OF THE PROCEEDS OF SAID BONDS AND
' i CERTAIN OTHER MONEYS; AUTHORIZING THE
PURCHASE OF A BOND INSURANCE POLICY AND
RESERVE SURETY BOND AND MAKING CERTAIN
COVENANTS IN CONNECTION THEREWITH;
DESIGNATING THE BOND REGISTRAR FOR SAID
BONDS; CONTAINING CERTAIN AUTHORIZATIONS AND
OTHER PROVISIONS; AND PROVIDING AN EFFECTIVE
iI DATE.
11 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,
11 Florida Statutes, to issue revenue bonds of the City payable from Pledged Revenues (as defined
in the Bond Resolution hereinafter defined mentioned)for certain purposes; and
WHEREAS, pursuant to Resolution No. R 92-96 adopted by the City Commission of
11
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 2012 Bonds") under the Bond
Resolution to provide funds, together with available funds of'the City, for the redemption prior
! to maturity of all or a portion of'the City's Utility System Revenue Bonds, Series 2008 (the
[ "Series 2008 Bonds")(the Series 2008 Bonds that are to be refunded being referred to as the
If "Refunded Bonds"), to pay the cost of capital expenditures with respect to the Utility System! -:.
•
(as defined in the "Bond Resolution") and to pay certain costs of issuing such Series 2012
Bonds (including the premium(s) for bond insurance and/or a reserve fund insurance policy);
and
WHEREAS, prior to the issuance of the Series 2012 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 2012
Bonds through negotiation with RBC Capital Markets, LLC (the "Original Purchaser") is in the
best interest of the City; and
WHEREAS, the refunding of the Refunded bonds is in the best interest of the City due
to the reduction in interest expense to be realized thereby;and
WHEREAS,the City Commission has received from the Original Purchaser a form of a
Bond Purchase Contract by and between the City and the Original Purchaser whereby the
Original Purchaser would agree to purchase the Series 2012 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
1, 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 2012 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 2012 Bonds and to
appoint The Bank of'New York Mellon Trust Company, NA. as Bond Registrar for such Series
2012 Bonds; and
WHEREAS, the City has received a commitment from Assured Guaranty Municipal
Corp..to issue its municipal bond insurance policy insuring the payment of the principal of and
Hinterest on all or a portion of the Series 2012 Bonds and it is necessary and desirable to
authorize the acceptance of such commitment;and
WHEREAS, the City has received a commitment fzom Assured Guaranty Municipal,
Corp. to issue its financial guaranty insurance policy to satisfy the Reserve Account
Requitement for the Series 2012 Bonds and it is necessary and desirable to authorize the
1 acceptance of'such commitment; and
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
j! 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'Iaw,including Chapter 166, Florida Statutes, and the Bond Resolution..
2
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:
"Authorized Representative" means the Mayor or 'Vice-Mayor, and in the absence or
inability to act of the Mayor or Vice•Mayor, any other City Commissioneror the City Manager
(the absence or inability to act of the'Mayor of Vice-Mayor as to anyparticular action being
conclusively established by the taking of such action by the City Manager or other City
Commissioner)..
"Brisiness'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 Depository
Trust Company is.lawfirlly and temporarily closed:.
"Closing Date" shall'mean the date, 'onwhich.the Series 2012 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
May 1, 2012, or such other dates as may be set forth in the certificate establishing the terms of
the Series 2012'Bonds pursuant to Section 4(b)hereof.
Section 3. Authorization of'Bonds.. Bonds are hereby authorized to be issued pursuant
to this Resolution and Section 210 of the Bond Resolution in the aggregate principal amount of
not to exceed $55,000,000.. The.Bonds hereby authorized shall be known as "Utility System
Revenue Bonds, Series 2012.." Prior to the issuance of the Series 2012 Bonds the conditions of
Section 209 of the Bond Resolution shall be satisfied„ .The Series 2012 Bonds are being issued
for the principal purpose of'providing funds, together with funds held in the Bond Service
Subaccount under the Bond Resolution in respect of'the'Series 2008 Bonds, to, redeem the
` Refunded Bonds prior to maturity,to pay the cost of capital expenditures to the Utility System!
' and to pay costs associated with:issuing the Series.2012 Bonds (including the premium(s) foil
the bond insurance policy and/or a financial guaranty insurance policy). No portion of the
Series 2012 Bonds may be issued to provide funds to retire the Refimded Bonds unless the
issuance of such portion of the Series 2012 Bonds and the refunding of the Refunded Bonds'
produces net presentvalue debt service savings for the,City, calculated as of the date of
delivery of the Series 2012 Bonds using the arbitrage yield on the Series 2012 Bonds as the'
' discount rate, of at least 3%of the principal amount of the Refunded Bonds..
i
Section 4. Terms of the Series 2012 Bonds.,
(a) Form of Bonds. The Series 2012.Bonds shallbe,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 2012 Bonds set forth
herein as may'be approved by the officers of the City executing the Series 2012 Bonds, such!
execution to be conclusive evidence of such approval..
•
(b) Amounts. Maturities Redemstion Provisions and Interest Rates. the Series
2012 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 Authorized Representative as hereinafter provided.
The Series 2012 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, and shall bear interest from such date..
payable on the Interest Payments Dates.. The Series 2012 Bonds shall be issued on such date, in
the aggregate principal amount, not in excess of$55,000,000, shall bear interest at the rates per
annum, computed on the basis of a 360-day year consisting of twelve 30-day months, not in
excess of'the maximum legal rate, 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 Authorized
Representative at or before the issuance of the Series 2012 Bonds, provided however that the
final maturity of the Series 2012 Bonds shall not be after November`1, 2042.
Principal of the Series 2012 Bonds shall be payable only upon presentation and
..surrender of such Bonds at the.principal office of the Bond Registrar.. Interest on the. Series_
2012 Bonds shall be paid by check or draft, or at the option of any registered owner of not lest
than$1,000,000 in principal amount of the Series 2012 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 thei
' Bond Registrar to the registered owners of the Series 2012 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 2012 Bonds shall be an amount equal to the lesser of(i) 10% of the aggregate stated
• i • principal amount of the Series 2012 Bonds Outstanding, (ii)the maximum amount of principal
and interest scheduled to become due on the Outstanding Series 2012 Bonds in the current Or
any succeeding Bond Year, or (iii) 125% of the average annual debt service on the Series 2012
• Bonds(calculated on a Bond Year basis at the time of issuance only). If the Series 2012 Bonds
have more than a de- minimis amount of original issue discount or premium (as defined in
1 ` • Treas.. Reg. ' 1.148-1(b)),•-then the issue price (as defined in said regulation) of the Series 2012
Bonds (net of pre-issuance accrued interest) shall be used to measure the aforesaid 10%
limitation in lien'of the stated principal amount of the Series 2012 Bonds.. The Series 2012'
Reserve Subaccount; which is hereby ordered created, shall be funded in an amount equal to
i the Reserve Account Requirement for the Series 2012 Bonds at the time of initial issuance and
delivery of the Series 2012 Bonds, and in the event any deficiency is created in the Series 20121
Reserve Subaccount, the Reserve Account Deposit Requirement for such Series shall be, in
each month, an amount equal to at least [one twelfth(1/12)1 of the amount of such deficiency.
•
Section 5. Amendments to Bond Resolution,
(a) The amendments to the Bond Resolution set forth in this Section 5(a) shall be
effective upon, and only upon the issuance of the Series 2012 Bonds and the purchase by-they
1 ► City of the hereinafter referenced 2012 Bond Insurance Policy.: Section 101 of the Bona`
;.Resolution is amended by the addition thereto of two new definitions as follows: . •
1_1
4
•
• "2012 Bond Insurance Policy" shall mean the insurance policy issued by the
2012 Bond Insurer guaranteeing the scheduled payment of principal of and interest on
the Series 2012 Bonds when due.
• "2012 Bond Insurer" shall mean Assured Guaranty Municipal Corp.., a New
York stock insurance company,or any successor thereto or assignee thereof'.
(b) The amendments to the Bond Resolution set forth in this Section 5(b) shall be
effective upon, and only upon the issuance of the Series 2012 Bonds and the purchase by the
City of the above- referenced 2012 Bond Insurance Policy. A new Section 721 is added to the
Bond Resolution to provide as follows:
•
"Section 721. Provisions concerning 2012 Bond Insurer.. For so long as the
2012 Bond Insurance Policy shall be outstanding, notwithstanding any provision
• to the contrary contained herein, the following provisions shall apply with
respect to the Series 2012 Bonds:
•
(a) The prior written consent of the 2012 Bond Insurer shall be a condition
precedent to the deposit of any credit instrument provided in lieu of' a cash
deposit into the Series 2012 Reserve Subaccount, if' any. Notwithstanding
anything to the contrary set forth in the Bond Resolution, amounts on deposit in
the Series 2012 Reserve Subaccount shall be applied solely to the payment of
debt service due on the Series 2012 Bonds..
(b) The 2012 Bond Insurer shall be deemed to be the sole holder of the
Series 2012 Bonds for the purpose of exercising any voting right or privilege or
i giving any consent or direction or taking any other action that the holders of'the
Series .2012 Bonds insured by it are entitled to take pursuant to the Bond
{,
Resolution pertaining to (i) defaults and remedies and (ii) the duties and
obligations of the Bond Registrar. Remedies available to the Bondholders shall
• include mandamus,.
•
(c) If'acceleration is permitted under the Bond Resolution, the maturity of'
the Series•2012 Bonds insured by the 2012 Bond Insurer shall not be accelerated. -
without the consent of the 2012 Bond Insurer and in the event the maturity of
the Series 2012 Bonds is accelerated, the 2012 Bond Insurer may elect, in its
• sole discretion, to pay accelerated principal and interest accrued, on such
principal to the date of acceleration (to the extent unpaid by the City) and the
Bond Registrar shall be required to accept such amounts..Upon payment of'such
accelerated principal and interest accrued to the acceleration date as provided
above, the 2012 Bond Insurer's obligations under the 2012 Bond Insurance
Policy with respect to the Series 2012 Bonds shall be fully discharged.
(d) No grace period for' a covenant default shall exceed .30 days or be
extended for more than 60 days, without the prior written consent of'the 2012
Bond Insurer. No grace period shall be permitted for payment defaults..
5
i . .
(e) The 2012 Bond Insurer is a third party beneficiary of the Bond Resolution,
(f) Upon the occurrence of an extraordinary optional, special or
extraordinary mandatory redemption in part, the selection of'Series 2012 Bonds
to be redeemed shall be subject to the approval of'the 2012 Bond Insurer,. The
exercise of any provision of the Bond Resolution which permits the purchase of
Series 2012 Bonds in lieu of redemption shall require the prior written approval
of the 2012 Bond Insurer'if'any Series 2012 Bond so purchased is not cancelled
. upon purchase.
(g) Any amendment, supplement, modification to, or waiver of,' the Bond
Resolution or any other transaction document, including any underlying security
agreement (each a "Related Document"), that requires the consent of
Bondowners or•adversely affects the rights. and interests of' the 2012 Bond
Insurer shall be subject to the prior written consent of the 2012 Bond Insurer„
. , . (h) Unless the 2012 Bond Insurer otherwise directs, upon the occurrence and _ . .
continuance of an Event of Default or an event which with notice or lapse of'
time would constitute an Event of Default, amounts on deposit in the Series
2012 Project Construction Account of the Construction Fund shall not be
disbursed, but shall instead be applied to the payment of debt service or
redemption price of the Series 2012 Bonds.. •
' (i} The rights granted to the 2012 Bond Insurer under the Bond Resolution
or any other Related Document to request,.consent to or direct any action are
rights granted to the 201.2 Bond Insurer in consideration of its issuance of the
2012 Bond Insurance PoIicy.. Any exercise by the 2012 Bond Insurer of such
Frights is merely an exercise of'the 2012 Bond Insurer's contractual rights and
shall'not be construed or deemed to.be taken for the benefit, or on behalf; of the
• Bondholders and such action does not evidence any position of'the 2012 Bond.
Insurer, affirmative or negative, as to whether the consent of'the Bondowners or
any other person is required in addition to the consent of the 2012 Bond Insurer.
sl .
1 (j) Only (1) cash, (2) non callable direct'obligations of the United States of'
11 America. ("Treasuries"); (3) evidences of ownership.of proportionate interests in
future interest and principal payments on Treasuries held by a bank or trust
company 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
Ij obligor and the underlying Treasuries are-not available to any person claiming
j through the custodian or to whom the custodian may be obligated, (4) subject to
the prior written consent of the 2012 Bond Insurer, pre-refunded municipal
obligations rated "AAA"'and "Aaa by S&P and Moody's, respectively, or (5)
subject to the prior written consent of'the 2012 Bond Insurer, securities eligible
for "AAA" defeasance under then existing criteria of'S &P or any combination
thereof, shall be used to effect defeasance of the Bonds unless the 2012 Bond
Insurer otherwise approves..
6
To accomplish defeasance, the City shall cause to be delivered (i) a
report of an independent firm of .nationally recognized certified public
accountants or such other,accountant as shall be acceptable to the 2012 Bond
Insurer("Accountant")verifying the sufficiency of the escrow established to pay
the Series 2012 Bonds in full on the maturity or redemption date
("Verification"), (ii)an Escrow Deposit Agreement(which shall be acceptable in
form and substance to the 2012. Bond Insurer), (iii) an opinion of'nationally
recognized bond counsel to the effect that the Series 2012 Bonds are no longer
"Outstanding" under the Bond Resolution and (iv) a'_certificate of discharge of
the Trustee with respect to the 'Series 2012 Bonds; each Verification .and
defeasance opinion shall be acceptable in form and substance, and addressed, to
the City,Bond Registrar and 2012 Bond Insurer,..the 2012 Bond Insurer shall be
provided with final drafts of'the above referenced documentation not less than
five business days prior to the funding of the escrow.'
Series 2012 Bonds shall be deemed "Outstanding" under the Bond Resolution
unless and until they are in fact paid and retired or the above criteria are met, '
(k) Amounts paid by the 2012 Bond Insurer under the 2012 Bond Insurance
Policy shall not be deemed paid forpurposes of'the Bond Resolution and the .
Series 2012 Bonds relating to such payments shall remain Outstanding and
continue to be due and owing until paid by the City in accordance with the Bond
Resolution. The Bond Resolution shall not be discharged unlessall amounts'due
! or to become due to the 2012 Bond 'Insurer have been paid in full or' duly
provided for,
1I
(1) Each of'the City'and Bond Registrar covenant and agree 'to take such
• action (including, as applicable, filing of UCC' financing statements "and.
j continuations thereof) as is necessary from time-to time to preserve the priority
1 : of'the pledge of'the Pledged Revenues under applicable law. -
i
{ (m) Claims Upon.the 2012 Bond Insurance Policy and Payments by and to
1, the 2012 Bond Insurer.
If, on the third Business, Day prior to the related scheduled interest -
payment date or principal payment date ("Payment Date")there is not on deposit „
with the Bond Registrar; after making all transfers and deposits required under
! the Bond Resolution, .moneys sufficient to pay the principal of and interest on
the Series 2012 Bonds due on such Payment Date, the Bond Registrar shall give
notice to the 2012 Bond Insurer and to its designated agent (if any) (the "2012
Bond Insurer's Fiscal Agent") by telephone or telecopy of the amount of such
deficiency'by 12:00 noon,New York City time,on such,Business Day. Ifs on the
second Business Day prior to the related Payment Date, there continues to be a
deficiency in the amount available to pay the principal of and interest on the
Series 2012. Bonds due on such Payment Date,the Bond Registrar shall make a
claim under the 2012 Bond Insurance Policy and give notice to the 2012 Bond
E '
Insurer and the 2012 Bond Insurer's Fiscal Agent (if any) by telephone of the
amount of such deficiency, and the allocation of such deficiency between the
amount required to pay interest on the Series 2012 Bonds and the amount
required to pay principal of the Series 2012 Bonds, confirmed in writing to the
2012 Bond Insurer and the 2012 Bond Insurer's Fiscal Agent by 12:00 noon,
New York City time, on such second Business Day by filling in the form of
Notice of Claim and Certificate delivered with the 2012 Bond Insurance Policy..
The Bond Registrar shall designate any portion of payment of principal
on Series 2012 Bonds paid by the 2012 Bond Insurer; whether by virtue of
mandatory sinking fund redemption, maturity or other advancement of maturity,
on its books as a reduction in the principal amount of Series 2012 Bonds
registered to the then current Bondholder, whether DTC or its nominee or
otherwise, and shall issue a replacement Bond to the 2012 Bond Insurer;
registered in the name of Assured Guaranty Municipal Corp.., in a principal
amount equal to the amount of principal so paid (without regard to authorized
denominations); provided that the Bond Registrar's failure to so designate any
payment or issue any replacement Bond shall have no effect on.theamount.of
principal or interest payable by the City on any Bond or the subrogation rights of
the 2012 Bond Insurer.
The Bond Registrar shall keep a complete and accurate record of all
funds deposited by the 2012 Bond Insurer into the Policy Payments Account
(defined below) and the allocation of such funds to payment of interest on and
principal of any Bond.. the 2012 Bond Insurer shall have the right to inspect
such records at reasonable times upon reasonable notice to the Bond Registrar.
Upon payment of a claim under the 2012 Bond Insurance Policy, the
4 Bond Registrar shall establish a separate special purpose trust account for the
benefit of Bondholders referred to herein as the "Policy Payments Account" and
11 1, over which the Bond Registrar shall have exclusive control and sole right of
withdrawal„ The Bond Registrar shall receive any amount paid under the 2012
Bond Insurance Policy in trust on behalf of Bondholders and shall deposit any
such amount in the Policy Payments Account and distribute such amount only
1 .
Pfor purposes of making the payments for which a claim was made. Such
11.
amounts shall be disbursed by the Bond Registrar.to Bondholders in the same
manner as principal and interest payments are to be made with respect to the
. ! Series 2012 Bonds under the sections hereof regarding payment of Series 2012
Bonds.. It shall not be necessary for such payments to be made by checks or wire
1 : . transfers•separate from-the check or wire transfer used to pay debt service with
-other funds available to make such payments. Notwithstanding anything herein
to the contrary, the City agrees to.pay to the 2012 Bond Insurer (i) a sum equal
to the total of all amounts paid by the 2012 Bond Insurer under the 2012 Bond
Insurance Policy (the "2012 Bond Insurer Advances"); and (ii) interest on such
2012 Bond Insurer Advances from the date paid by the 2012 Bond Insurer until
• payment thereof in full, payable to the 2012 Bond Insurer at the Late Payment
Rate per annum (collectively, the "2012 Bond Insurer Reimbursement
Amount's").. "Late Payment Rate" means the lesser of(a) the greater of(1) the
per annum rate of interest, publicly announced from time to time by JPMorgan
Chase Bank at its principal office in The City of New York, as its prime or base
lending rate (any change in such rate of interest to be effective on the date such
change is announced by .JPMorgan Chase Bank) plus 3%, and (ii) the then
applicable highest rate of interest on the Series 2012 Bonds and (b) the
maximum rate permissible under.applicable usury or similar laws limiting
interest rates., The Late Payment.Rate shall be computed on the basis of the
actual number of dayselapsed over a year of .360 days.. The City hereby
covenants and agrees that the 2012 Bond Insurer Reimbursement Amounts are
secured by a lien on and pledge of the Pledged Revenues and payable from such
Pledged Revenues on a parity with debt service due on the Series 2012 Bonds..
Funds held in the Policy Payments Account shall not be invested by the
Bond Registrar and may..not be applied- to satisfy any costs, expenses or
'. liabilities of'the Bond Registrar:..Any funds remaining in the Policy Payments
Account following a.Bond payment date shall promptly be remitted to the 2012
Bond Insurer,.
(n) The 2012. Bond Insurer shall, to the extent it makes any payment of
principal of or intereston the Series 2012 Bonds, become subrogated to the
rights of'the recipients of'such payments in accordance with the terms of the
2012 Bond Insurance Policy Each obligation of the City to the 2012 Bond
Insurer under the Related Documents shall survive discharge or termination of
such Related Documents
(o) The City.shall pay or reimburse the 2012 Bond Insurer any and all
! 1 . 'charges, fees, costs and expenses that the 2012 Bond Insurer may reasonably
pay or incur in connection with (i) the administration, enforcement, defense or
! I preservation of any rights or security in any Related Document; (ii) the pursuit
I of any remedies under the Bond Resolution or any other Related Document or
otherwise afforded by law or equity, (iii)any amendment, waiver or other action
with respect to, or related to, the Bond .Resolution: or any other Related
11 Document whether or notexecuted or completed, or (iv) any litigation or other
dispute in connection with.the Bond d Resolution or any other Related Document
or the transactions contemplated thereby, other than costs resulting from the
failure of the 2012 Bond Insurer to honor its obligations under the 2012 Bond
!` Insurance 'Policy..' The 2012 Bond Insurer reserves the right to ' charge a
reasonable fee as a condition to executing any amendment, waiver or consent
proposed in respect"of'the Bond Resolution or any other Related Document,
(p) After payment of reasonable.'expenses of the Bond Registrar; the
application of. funds realized upon default shall be applied to the payment of
I` expenses of the City or rebate only after the payment of past due and current-
debt service on the Series 2012 Bonds and amounts required to restore.the
ffI' Reserve Account to the Reserve Account Requirement.
�
i 9.
(q) The 2012 Bond Insurer shall be entitled to pay principal or interest on
the Series 2012 Bonds that shall become Due for Payment but shall be unpaid by
. reason of Nonpayment by the City (as such terms are defined in the 2012 Bond
Insurance Policy) and any amounts due on the Series 2012 Bonds as a result of
acceleration of the maturity thereof in accordance with the Bond Resolution,
whether or not the 2012 Bond Insurer has received a Notice of Nonpayment (as
such terms are defined in the 2012 Bond Insurance Policy) or a claim upon the
2012 Bond Insurance Policy..
(r) The notice address of the 2012 Bond Insurer is: Assured Guaranty
Municipal Corp.., 31 West 52nd Street, New York, New York 10019, Attention:
Managing Director- Surveillance,Re: Policy No, , Telephone: (212) 826
0100; Telecopier: (212) 339 3556., In each case in which notice or other
communication refers to an Event of Default,then a copy of such notice or other
communication. shall also be sent to the attention of the General Counsel and
shall be marked to indicate "URGENT MATERIAL ENCLOSED.."
. (s). The 2012 Bond Insurer:shall be provided with the following information
by the City or Bond Registrar„ as the case may be:
(i) Annual audited financial statements within 150 days after the end of the
City's fiscal year (together with a certification of the City that it is not aware of'
any default or Event of' Default under the Bond Resolution), and the City's
annual budget.within.30 days after the approval thereof together with such other
information, data or reports as the 2012 Bond Insurer shall reasonably request
from time to time;
I (ii). Notice of any draw upon the Series 2012.Reserve Subaccount within two
Business Days after knowledge thereof other than(i) withdrawals of amounts in
excess of the Reserve Account Requirement and (ii) withdrawals in connection
with a refunding of'Series 2012 Bonds;
(iii) Notice of'any default known to the Bond Registrar or City within five
Business Days after knowledge thereof;
(iv) Prior notice of'the advance refunding or.redemption of any of the Series
2012 Bonds, including the principal amount, maturities and CUSIP numbers
I thereof;
(v) Notice of the resignation or removal of' the Bond Registrar and the
appointment of; and acceptance of'duties by, any successor thereto;
f (vi) Notice. of'the commencement of any proceeding by or against the City
commenced under the United States Bankruptcy Code or any other applicable
bankruptcy, insolvency, receivership, rehabilitation or similar law (an
"Insolvency Proceeding");
10
f(. •
(vii) Notice of the making of any claim in connection with any Insolvency
Proceeding seeking the avoidance as a preferential transfer of any payment of
principal of,' or interest on,the Series 2012'•Bonds;
(viii) A full original transcript of all'proceedingsrelating to the execution of
any amendment, supplement,or waiver to the Related Documents; and
(ix) All reports, notices and correspondence to be delivered to Bondholders
under the terms of the Related Documents,
In. addition, to the extent that the City has entered into a continuing disclosure
agreement, covenant or undertaking with respect to the Series 2012 Bonds, all
information furnished pursuant to such agreements shall also be provided to the
2012 Bond Insurer; simultaneously with the furnishing of such information,
(t) • The 2012 Bond Insurer• shall have the right to receive such additional
information as it may reasonably request.
(u) The City will permit the 2012 Bond Insurer to discuss the affairs,
finances and accounts of the City or any information the 2012 Bond Insurer may
reasonably request regarding the security. for, the Series 2012 Bonds with
appropriate officers of the City and will use commercially reasonable efforts to
enable the 2012 Bond Insurer to have access to the facilities, books and records
of'theCity on any business day upon reasonable prior notice,`
1, 1
(v) The Bond Registrar shall notify the 2012 Bond Insurer of any failure of
the City to provide notices, certificates and other information under the
e
transaction documents.
(w) Notwithstanding satisfaction of' the other conditions to the issuance of'
1; Additional Bonds set forth hi the Bond Resolution, no such issuance mayoccur
fE
(1) if an Event of Default (or' any event which, once all notice or grace periods
have passed, would constitute an Event of Default) exists unless such default
shall be cured uponsuch issuance and (2) unless.the Reserve Accountis fully
funded at the Reserve Account Requirement (including the proposed issue)upon
the issuance of such Additional Bonds, in either case•unless otherwise permitted
by the 2012 Bond Insurer.
(x) . In determining whether any amendment, consent, waiver or other action
to. be taken, or any failure to'take action, under the Bond Resolution would
1 I adversely:affectthe. security"for the Series' 2012 Bonds or the lights of the
Bondholders, the Bond .Registrar shall consider= the effect of any such
amendment,,consent,waiver, action'or inaction as if'there were no 2012 Bond
Insurance Policy.
(y) No contract shall be entered into or any action taken by which the rights
of the 2012 Bond
payment Series
- � Insurer� or securityfor• or sources o ' a erzt o 'the
•
•
2012 Bonds may be impaired or prejudiced in any material respect except upon
obtaining the prior written consent of'the 2012 Bond Insurer:,
(z) If the Series 2012 Bonds are issued for refunding purposes,there shall be
delivered an opinion of Bond Counsel addressed to the 2012 Bond Insurer (or a
reliance letter relating thereto), or a certificate of discharge of the Bond
Registrar for the Refunded Bonds, to the effect that, upon the making of the •
required deposit to the escrow, the legal defeasance of the Refunded Bonds shall
have occurred. If the Refunded Bonds are insured by Assured Guaranty
Municipal Corp.., at least three business days prior to the proposed date for
• delivery of the Policy with respect to the Refunding Bonds, the 2012 Bond
Insurer shall also receive (i) the verification letter,-of which the 2012 Bond
• Insurer shall be an addressee, by an independent firm of certified public
accountants which is either nationally recognized or otherwise acceptable to the .
2012 Bond Insurer; of the adequacy of the escrow established to provide for the
payment of the Refunded Bonds in accordance with the terms and provisions of
i the Escrow Deposit.Agreement; and(ii) the form of an opinion of Bond Counsel
' addressed to the 2012 Bond Insurer.(ox a reliance letter relating thereto)-to the
effect that the Escrow-Deposit Agreement is a.valid and binding obligation of
• the parties thereto, enforceable •in accordance with its terms (such Escrow
Deposit Agreement shall provide that no amendments are permitted without the
prior written consent of the 2012 Bond Insurer)„ An executed copy of each of
such opinion and reliance letter; if' applicable, or Bond Registrar's discharge
certificate, as the case may be, shall be forwarded to the 2012 Bond Insurer prior
to delivery of the Series 2012 Bonds.
;.
(aa) Any interest rate exchange agreement ("Swap Agreement") entered into
by the City that is payable from the Pledged Revenues shall meet the following
conditions: (i) the Swap Agreement must be entered into to manage interest
costs related to, or a hedge against (a) assets then held, or (b) debt then
outstanding,or(iii) debt reasonably expected to be issued within the next twelve
j (12) months, and (ii) the Swap Agreement shall not contain any leverage
element or multiplier component greater than 1.Ox unless there is a matching
a hedge• arrangement which. effectively offsets the exposure from any such
element or component. Unless-otherwise consented to in writing by the 2012
Bond Insurer; any. uninsured net settlement, breakage or other termination
• amount then in effect shall be subordinate to debt service on the Series 2012
Bonds and on any debt on parity with the Series 2012 Bonds, The City shall not
terminate a Swap Agreement unless it•demonstrates to the satisfaction of the
'' i 2012 Bond Insurer prior to the payment of any such termination amount that
F i such payment will not cause the City to be in default under the Related
Documents, including but not limited to, any monetary obligations thereunder,
All counterparties or guarantors to any Swap Agreement must have a rating of at
I f least "A-" and "A3" by Standard & Poor's ('S&P") and Moody's Investors
Service("Moody's"). If the counterparty or guarantor's rating falls below"A-" or
"A3" by either S&P or Moody's, the counterparty or guarantor shall execute a
• credit support annex to the Swap Agreement, which credit support annex shall
12 .
be acceptable to the 2012 Bond Insurer. If the counterparty or the glRrantor's
long term unsecured rating falls below"Baal" or "BBB+" by either Moody's or
S&P, a replacement counterparty or guarantor; acceptable to the 2012 Bond
Insurer; shall be required.,
(c) The amendments to the Bond Resolution set forth in this Section 5(c) shall be effective
upon; and only upon the issuance of the Series 2012 Bonds and the purchase by the City of the
hereinafter referenced 2012- Reserve Account Insurance Policy. Section 101 of the Bond
Resolution is amended by the addition thereto of two new definitions as follows:
"2012 Reserve Account Insurance Policy" shall mean the municipal"bond debt
service reserve insurance policy issued by the 2012 Bond Insurer that satisfies the
Reserve Account Requirement for the Series 2012 Bonds..
"2012 Bond Insurer" shall mean Assured Guaranty Municipal Corp.., a New,
York stock insurance company, or any successor thereto or assignee thereof,
(d) The amendments to the Bond Resolution set forth in this Section 5(d) shall be effective
upon, and onlyupon n the issuance of the Series 2012 Bonds and the purchase by the City of the
above- referenced 2012 Reserve Account Insurance Policy. A new Section 722 is added to the
Bond Resolution to provide as follows:
"Section 722. Reserve Surety Provisions. Notwithstanding any
provision to the contrary contained herein, the following provisions shall apply
while Assured Guaranty Municipal Corp.. .has issued a municipalbond debt
service reserve insurance policy in order to fund all or a portion of the Reserve
Account Requirement for any Series 2012 Bonds:
(a). The City shall repay any draws under the 2012 Reserve Account
Insurance Policy and pay all related reasonable_ expenses incurred by AGM..
I f Interest shall accrue and be payable on such draws and expenses from the date
• of payment by AGM at the Late Payment Rate,. . "Late Payment Rate" means the
lesser of(a) the greater of(i)the per annum rate of interest,publicly announced
I , from time to time by.'Morgan Chase Bank at.its principal office in the City of
I; New York, as its prime or base lending rate ("Prime Rate") (any change in such
�. . Prime Rate to be effective on the date such change is announced by .JPMorgan
k1 Chase Bank) plus 3%, and (ii) the then applicable highest rate of interest'on,the
I Series 2012 Bonds and(b).the maximum rate permissible under applicable usury
I or,similar laws limiting interest rates.. 'The Late Payment Rate shall be computed.
1 on the basis of the actual number of days elapsed over a year of 360 days.. In the
event.JPMorgan Chase Bank ceases to announce its Prime Rate publicly, Prime
Rate shall be the publicly announced prime or base lending rate of such national
11 bank as,AGM shall specify.
I+
! Repayment of draws and payment 'of expenses and accrued interest
I thereon at the Late Payment Rate (collectively,."Policy Costs") shall commence
f! in the fust month following each draw, and each such monthly payment shall be
in an amount at least equal to 1/12 of the aggregate of Policy Costs related to
such thaw.
Amounts in respect of'Policy Costs paid to AGM shall be credited first to
interest due, then to the expenses due and then to principal due. As and to the
• extent that payments are made to AGM on account of principal due, the
coverage under the Reserve Policy will be increased by a like amount, subject to
the terms of the Reserve Policy. •
All cash and -investments in the •Series 2012 Reserve Subaccount
established for the Series-2012 Bonds (the "Reserve Fund").shall be transferred
to the Sinking Fund Account for payment of debt service on Series 2012 Bonds
before any thawing may be made on the Reserve Policy or any other credit
facility credited to the Reserve Fund in lieu of cash("Credit Facility"),. Payment
of' any Policy Costs shall be made prior to replenishment of any such cash
amounts. Draws on all Credit Facilities (including the Reserve Policy) on which
there is available coverage shall be made on a pro-rata basis (calculated by
reference to the coverage then available thereunder) after applying all available •
'; cash and investments in the Reserve Fund•, Payment of Policy Costs and
• reimbursement of amounts with respect to other Credit Facilities shall be made
on a pro-rata basis prior to replenishment of any cash drawn from the Reserve
( Fund. For the avoidance of doubt, "available coverage" means the coverage
then available for disbursement pursuant to the terms of the applicable
alternative credit instrument without regard to the legal or financial ability or
willingness of the provider of such instrument to honor a claim or. draw thereon
or•the failure of'such provider to honor any such-claim or draw.
i • (b) If the City shall fail to pay any Policy Costs in accordance with
the requirements of'Paragraph 5(a) hereof,AGM shall be entitled to exercise any
and all legal and equitable remediess-available to it, including those provided
under the Resolution other than (i) acceleration of the'maturity of the Series
2012 Bonds or (ii) remedies which would adversely affect owners of the Series
2012 Bonds. •
(c) The Bond Resolution shall not be discharged until all Policy
Costs owing to AGM shall have been paid in full.. The City's obligation to pay
11 •
such amounts shall expressly survive payment in full of the Series 2012 Bonds„
•
I (d) The additional bonds test and the- rate covenant in the Bond
• E Resolution shall be applied by treating any Polley Costs then due and owing as
Current Expenses..
I
' ` •
(e) The Bond Registrar shall ascertain the necessity for. a claim upon
I the Reserve Policy in accordance with the provisions of'paragraph(a)hereof and
provide notice to AGM in accordance with the terries of the Reserve Policy at
least five Business Days-prior to each date upon which interest or principal is
due on the Bonds..
14 I
(e). the definition of "Renewal, Replacement and Improvement Account Requirement"
contained in Section 101 of the Bond Resolution is amended to provide as follows, and:such
amendment shall be deemed incorporated into all Supplemental Resolutions adopted after the
date hereof; so that it shall not be necessary to obtain,the consent of the Holders of such Bonds
to .such amendment.. However, such amendment ,shall not become effective until (i) the
Outstanding principal amount of the City's Utility System Revenue Refunding Bonds,..Series
2002 and the Series 2008 Bonds constitutes less than a majority of the principal amount of all
Outstanding Bonds, (ii)notice to the Holders of the Outstanding Series 2002 Bonds and Series
2008 Bonds shall have been given in accordance with Section 1002.of'the Bond Resolution,
and (iii) the requirements of Section 718(e) of the.Bond Resolution (added by Section 5(b) of'
Resolution No.. R01-193) shall have been satisfied„As permitted by Section 1002 of the Bond
,'1 Resolution, the Original Purchaser, by its purchase of'the Series 2012 Bonds, consents to the
following amendment of the definition of "Renewal, Replacement and Improvement Account
Requirement."
"Renewal, Replacement and Improvement Account Requirement" shall mean an
amount equal to six percent of the Revenues, for the preceding. Fiscal,Year or
such greater or, lesser amount'.as determined by the City. Commission by'
° resolution from time to time..
Section 6. Approval of Sale of the Series 2012 Bonds„ the City hereby determines that
a negotiated sale of the Series 2012 Bonds is in the best interest of the City and the citizens and
j : 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 Bond Purchase Contract (the "Bond Purchase Contract")
The City approves the Bond Purchase Contract together with such changes thereto as are
If necessary to reflect the terms of the.Series 2012 Bonds and to reflect the purchase price thereof,
f; provided, .that the underwriter's discount shall not exceed $6.00 per thousand dollarsof l
I ! principal amount of the Series 2012 Bonds, and with such other completions, additions and/or'
1, changes as shall• be approved by the Authorized Representative, such approval to be
I ! conclusively established by such execution, and the•Authorized Representative is hereby
I authorized and directed for and in the name of the City to execute 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 I
Section 218 385, Florida Statutes, and the competitive bidding for the Series 2012 Bonds is I
I j hereby:waived pursuant to the authority of Section'218.,385(1),Florida Statutes,,
1 . Section 7. `Execution and Delivery.of the Series 2012 Bonds,." The Authorized 1
� I
Signatory and the City Clerk are hereby authorized and directed on behalf' of'.the City to
execute the Series 2012 Bonds as provided in the Bond Resolution and such officials are hereby
! authorized and directed upon the execution of the Series-20.12 Bonds in the form and manner
set forth herein and in the Bond Resolution to deliver 'the Series 2012 Bonds in the amount!
I , authorized to beissued hereunder to the Bond Registrar'for •authentication (upon the
III. 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,
� . 15 :
Section 8. Application of Proceeds.. Proceeds from the sale of the Series 2012 Bonds
and any amounts available under the Bond Resolution as a result of the refunding of the
Refunded Bonds shall be applied for the purposes described herein as provided in a certificate
executed by the Authorized Signatory at or prior to the issuance of the Series 2012 Bonds,
•
Section 9. Bond Registrar, The City hereby appoints The Bank of New York Mellon
Trust Company, N.A.. as Bond Registrar with respect to the Series 2012 Bonds, The form of
Bond•Registrar Agreement attached hereto as Exhibit "B" is hereby approved and the
Authorized Signatory 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 2012 Bonds, of a
Preliminary Official Statement relating to the Series 2012 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 Authorized Signatory, 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 Authorized Signatory 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 2012 Bonds, which shall be in substantially the form of the Preliminary Official
• Statement, Changed to reflect the terms of the Series 2012 Bonds and with such other changes,
alterations and corrections therein as may be approved by the Authorized Signatory, such
' approval to be conclusively established by such execution, is hereby authorized, and upon
; preparation thereof the Authorized Signatory is 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 Authorized Signatory is authorized,
but not obligated,.to accept either or both commitments from the 2012 Bond Insurer for the
issuance.of the 2012 Bond Insurance Policy and/or the 2012 Reserve Account Insurance Policy
: and to execute, an behalf of the City, an Insurance Agreement with respect to the 2012 Reserve
1 Account Insurance.Policy..
Section 12. Compliance with Tax Requirements.. The City hereby covenants and
agrees, for the benefit of the Bondholders from time to time of the Series 2012 Bonds, to
' ' comply. with-the requirements applicable to it contained in Section 103 and Part TV 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 2012 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 2012
Bonds, and from any other Iegally available funds, at the times and to the extent
16
required pursuant to Section 148(f) of the Code;theexcess 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 2012 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 2012 Bonds in a manner
• that would cause the Series 2012 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,
2012 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
1 City to comply with the requirements of'Section 103 and Part TV 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 2012 Bonds, the City shall designate a
certified public accountant,Bond Counsel,or other professional consultant having the skill and:
II . expertise necessary (the "Rebate Analyst") to make any and all calculations required pursuant!
11 to this Section regarding the Rebate Amount, Such calculation shall be made in the manner and!
11 at such times as specified in the Code„ The City shall engage and shall be responsible for'r
paying the fees and expenses of the Rebate Analyst„
Section 13. The Refunded Bonds„ Subject to the provisions of' Section 3, the
redemption of all or a portion of the Series 2008 Bonds is authorized and directed,. The'Series
11 2008 Bonds to be retired shall be described in the certificate of theAuthorized Representative'
described in Section 4(b) hereof: The City is authorized to enter into an escrow deposit;
I agreement in form and substance, and with such escrow agent, as may be approved by the
11 Authorized Representative, and to take such other action,including subscribing or directing the
! escrow agent to subscribe for U.S, Treasury Obligations-State and Local Government Series, in
1: connection with such.refunding.
! Section 14, Continuing Disclosure.The City agrees; in accordance with the provisions
1 of, and to the degree necessary to comply with, the secondary market disclosure requirements.
!I of Securities and Exchange Commission Rule 15c2-.12'(the "Rule"), to file with the MSRB in
I an electronic format as prescribed by.the MSRB:
(1) the following annual financial information and operating -data (the
"Annual Information"), commencing with the Fiscal Year ending September 30, 2012:
(i) Updates of the financial information and operating data of the type set
forth in the final official statement for the Series 2012 Bonds, including operating data with
respect to the System, in a form which is generally consistent with the presentation of such
information in the final Official Statement for the Series 2012 Bonds; and
(ii) Audited financial statements with respect to the City utilizing generally
accepted accounting principles to local governments..
The information in clauses (i) and (ii) above will be available for each Fiscal Year on or
prior to the next September 30 following the end of such Fiscal Year; and will be made
available, in addition to the MSRB, to each Beneficial Owner of the Series 2012 Bonds who
requests such information in writing, the financial statements referred to in clause (ii) above
may be available separately from the information in clause (i) above and will be provided by
the City as soon as practical after acceptance of such statements from the auditors by the City;
if not available within one yearafter the end of the Fiscal Year, unaudited information will be
provided in accordance with the time frame set forth above and audited financial statements
will be provided as soon after such time as they become available;
(2) in a timely manner not in excess of ten(10)business days after the event,
i notice of occurrence of'any of the following events with respect to the Series 2012 Bonds:
(i) principal and interest payment delinquencies;
(ii) non-payment related.defaults,if material;
(iii) unscheduled draws on debt service reserves reflecting financial,
I difficulties;
(iv) unscheduled draws on credit enhancements reflecting financial!
R difficulties;
(v) substitution of'credit or liquidity providers,or their failure to perform;
(vi) if applicable to a Series of'Bonds, events that may adversely affect the;
Series tax exemption, including issuance by the Internal Revenue Service of'proposed and final
decisions about whether'such Bonds can be taxed;
1 (vii) modifications to rights of security holders, if'material;
(viii) bond calls, if'material,and tender offers;
(ix)" defeasance;
(x) release, substitution or sale of'any property securing repayment of the;
1 ; Bonds, if'material;
(xi) rating changes;
(xii) bankruptcy, insolvency, receivership, or similar proceeding of the City,;
For purposes of this clause(xii), any such event shall be considered to have occurred when any
of the following occur: the appointment of a receiver;fiscal agent or similar officer for the City
' in a proceeding under' the U.S, Bankruptcy Code or' in any other proceeding under state or
j federal law in which a court or' governmental authority has assumed jurisdiction over
1 substantially all of the assets or business of the City, or if such jurisdiction has been assumed by
leaving the existing governing body and officials or officers in possession but subject to the
11 supervision and orders of a court or governmental authority, or the entry of an order confirming,
H18
. a plan.of'reorganization, arrangement Or liquidation by a court or governmental authority
. ' having supervision or jurisdiction over substantially all of the assets or business of'the City;
. (xiii) mergers, consolidations,. or acquisitions of the City, the sale of all or
- substantially all of the assets of the City, other than in the ordinary course of business, the entry
' . • into a definitive agreement to undertake such -an action or the lamination ,of a definitive
agreement relating to any such actions,other than pursuant to its terms, if material;and
(xiv) appointment of a successor or additional trustee or paying agent or the
change of the name of a trustee or paying agent, if material; '
- (3) -- in a timely manner, to the MSRB, notice of its failure to provide the
Annual Information with respect to itself on or prior to September 30.following the end of the
• precediing'Fiscal Year:. . . , .
. . For purposes of this Section 14, "MSRB" means the Municipal Securities Rulemaking
Board established pursuant to Section 15B(b)(1) of'the Securities Exchange Act of' 19.34,, as
amended,
': - The city also covenants to promptly provide a copy-of the above information:to the
' ' 2012 Bond Insurer.
. • The foregoing Covenants shall run to .the benefit of the Bondholders and the beneficial •
owners of Bonds owned in book-entry format.. However, failure to meet the covenants set forth
. in this Section 14 shall not be deemed to constitute.an event of default or.a breach of any other
. covenant under this Resolution, and the sole remedy for such a default or breach shall be as
described in the next paragraph. ' , . , .
r Any Bondholder or any beneficial owner may either at law or in equity,by suit, action,l-
- mandamus or other proceeding.in any'court or competent jurisdiction, protect and enforce any
F and all•rights granted ,or contained ,in this .Section •14 and may. enforce any compel the 1
' 'performance of all, duties required hereby to:be performed by the City or -by any officers i .
' - thereof;.
i - . -Notwithstanding any other:provision of'this Ordinance,this Section'14 may be amended 1
• . iI - only as follows: (a). the amendment 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
it - identity, nature or status of the City or the type,of'business conducted by the City; (b) the
. 11
provisions of',this Section 14;as'amended, would have complied with the requirements of'Rule?
15c2-12 of the Securities-and Exchange Commission as in effect as of the date of issnartce of
a the Series 2012Bonds,after taking-into account any amendments or interpretations of'the Rule,;
as well as any change in circumstances; and (c)the amendment does not materially impair the I
I i interest of'the Bondholders and/or beneficial owners as determined by an opinion of nationally!
recognized bond counsel delivered to the,City, or by'approving-vote Of the Bondholder's or
! beneficial owners of the Series 2012 Bonds at the time of the amendment,. In the event of any;
. :l amendment hereto, the annual,f nancial information provided subsequent to such amendnierit j
!I . shall explain, in narrative form, the reasons for the amendment and the impact of the change in 1
-the type of operating data or financial, information. being 'provided by the City, If the!
+' amendment affects the accounting principles to be followed in preparing financial statements of
' I the City,th&annual,financial information for the year in which the change is made must present
ii
19 j
a comparison between the financial statements or information prepared on the basis of the new
accounting principles and those prepared on the basis of the former accounting principles., The
comparison must include a qualitative discussion of the differences in the accounting principles
and the impact of the change in the accounting principles on the presentation of the financial
information, in order to provide information to investors to enable them to evaluate the ability
of'the City to meet its obligations. To the extent reasonably feasible, the comparison should
also be quantitative.. A notice of'the change in the accounting principles must be sent to the
MSRB.
Section 15. Authorizations.. The Authorized Signatory, the City Clerk and the Finance
Director are hereby jointly and severally authorized to do all acts and things required of them
by this Resolution, the Bond Resolution, the Bond Registrar Agreement 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 2012 Bonds, the Bond Resolution, this Resolution, the Bond Registrar Agreement 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 16. Business Days.. In any case where the date of maturity of interest on or
I principal of the Series 2012 Bonds or the date fixed for redemption of any Series 2012 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
I effect as if'made on the date of'matrix ity or the date fixed for redemption.
Section 17. Resolution to Constitute a Contract.. In consideration of the purchase and
11 acceptance of the Series 2012 Bonds authorized to be issued hereunder by those who shall bei
f • the holders thereof'from time to time, this Resolution shall constitute a contract between the I
!I City and such holders; and all covenants and agreements herein and in the Bond Resolution set
i forth to be performed by the City shall be for the equal benefit and security of all of the holders..
Section 18. No Implied Beneficiary“ With the exception of'any rights herein expressly
`
lconferred, nothing expressed or mentioned in or. to be implied from this Resolution or the
Series 2012 Bonds is intended or shall be construed to give any person other than the City, the
'' Original Purchaser; the 2012 Bond Insurer, the Bond Registrar and the Owners, any legal or:
f.
1 equitableright, remedy or claim under or with respect to this Resolution or the Bond'
lResolution oz'any covenants; conditions, and provisions herein contained; this Resolution and
E 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 2012 Bond Insurer;the Bond Registrar and the Owners..
Section 19. Severability. If any provision of'this Resolution shall be held or deemed to
I 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:,
if
I
Section 20. 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 21. Effective Date.. This Resolution shall take effect immediately upon its adoption..
,a
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PASSED AND ADOPTED THIS 3rd DAY OF JANUARY, 2012..
(SEAL)
ATTEST: CIIY OF BOYNTON BEACH, FLORIDA
` may:
City Jerkayor
� '27/
3, FT, ,�` ` Vi Mayo
,o. n e
• ?'0 iv �/ is m__war
o sionez
' r .I/
Commissioner
""),-‘
Commissioner
11
APPROVED AS TO FORM
i! AND LEGAL SUFFICIENCY: '
JI
IF
1 ! By:
City Attorney •
I�
1 '
jl
IE" 22
1 RESOLUTION NO. R16-
2
3 A SERIES RESOLUTION PROVIDING FOR THE ISSUANCE OF $23,000,000 OF ITS
4 UTILITY SYSTEM REVENUE BOND, SERIES 2016; PROVIDING A METHOD FOR
5 FIXING AND DETERMINING THE PRINCIPAL AMOUNT, INTEREST RATE,
6 MATURITY DATE, REDEMPTION PROVISIONS AND OTHER DETAILS OF SAID
7 BOND; AUTHORIZING THE SALE OF THE BOND TO RAYMOND JAMES CAPITAL
8 FUNDING, INC.; FINDING NECESSITY FOR A NEGOTIATED SALE OF SUCH BOND;
9 PROVIDING FOR THE APPLICATION OF THE PROCEEDS OF SAID BOND AND
10 CERTAIN OTHER MONEYS; DESIGNATING THE BOND REGISTRAR FOR SAID
11 BOND; CONTAINING CERTAIN AUTHORIZATIONS AND OTHER PROVISIONS;AND
12 PROVIDING AN EFFECTIVE DATE.
13
14
15 WHEREAS, the City of Boynton Beach, Florida (the "City") is authorized by the Constitution
16 and laws of the State of Florida, including the City's Charter and Chapter 166, Florida Statutes,
17 to issue revenue bonds of the City payable from Pledged Revenues (as defined in the Bond
18 Resolution hereinafter defined mentioned) for certain purposes; and
19
20 WHEREAS, pursuant to Resolution No. R 92 96 adopted by the City Commission of the City
21 (the"City Commission") on June 16, 1992, as amended(the "Bond Resolution") obligations of
22 the City may be issued and may be secured by a lien upon and pledge of certain "Pledged
23 Revenues" as defined in and to the extent set forth in the Bond Resolution;and
24
25 WHEREAS, the City desires to issue a Bond (the "Series 2016 Bond") under the Bond
26 Resolution to provide funds, together with available, funds of the City, to pay costs of capital
27 improvements to the City's Utility System and to pay certain costs of issuing such Series 2016
28 Bond; and
29
30 WHEREAS, prior to the issuance of the Series 2016 Bond the conditions set forth in Section
31 209 of the Bond Resolution shall be satisfied; and
32
33 WHEREAS, the City Commission has determined that the sale of such Series 2016 Bond
34 through negotiation with the Lender(hereinafter defined) is in the best interest of the City; and
35
36 WHEREAS, the City Commission has received from Raymond James Capital Funding, Inc.
37 (the "Lender") the proposal attached hereto as Exhibit A(the "Proposal") whereby the Lender
38 proposes to make a loan to the City to be evidenced by the Series 2016 Bond, and the City
39 Commission has determined that the authorization of the acceptance of such proposal pursuant
40 to the terms set forth in Section 6 hereof is in the best interests of the City and will effect the
41 purposes set forth in the Bond Resolution; and
42
43 WHEREAS, it is necessary and desirable to specify a method for determining the dates, the
44 interest rates,maturity dates and redemption provisions for such Series 2016 Bond;
45
46 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF
47 BOYNTON BEACH, FLORIDA:
48
49 Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the
50 provisions of the Charter of the City of Boynton Beach, Florida, the Constitution of the State
51 of Florida, including, but not limited.to, Article VIII, Section 2 thereof, and other applicable
52 provisions of law, including Chapter 166, Florida Statutes, and the Bond Resolution.
1
2 Section 2. Definitions. Terms used herein in capitalized form and not otherwise defined
3 herein shall have the meanings ascribed thereto in the Bond Resolution. The following terms,
4 when used in this Resolution Or in the Bond Resolution, as amended hereby, shall have the
5 following meanings:
6
7 "Authorized Representative" means the Mayor or Vice-Mayor, and in the absence or inability
8 to act of the Mayor or Vice-Mayor, the City Manager or any other City Commissioner (the
9 absence or inability to act of the Mayor of Vice-Mayor as to any particular action being
10 conclusively established by the taking of such action by the City Manager or other City
11 Commissioner).
12
13 "Business Day" shall mean any day other than a Saturday, Sunday or other day on which the
14 Payment Office of the Lender(as defined in the Series 2016 Bond) is lawfully and temporarily
15 closed.
16
17 "Closing Date" shall mean the date on which the Series 2016 Bond are issued and delivered by
18 the City and paid for by the Lender.
19
20 "Interest Payment Date" shall mean May 1 and November 1 of each year, commencing May 1,
21 2017.
22
23 Section 3. Authorization of Bond. A Bond is hereby authorized to be issued pursuant
24 to this Resolution and Section 209 of the Bond Resolution in the principal amount of
25 $23,000,000. The Bond hereby authorized shall be known as "Utility System Revenue Bond,
26 Series 2016" (the "Series 2016 Bond"). Prior to the issuance of the Series 2016 Bond the
27 conditions of Section 209 of the Bond Resolution shall be satisfied. The Series 2016 Bond is
28 being issued for the principal purpose of providing funds to pay for capital improvements to the
29 Utility System.
30
31 Section 4. Terms of the Series 2016 Bond.
32
33 (a) Form of Bond. The Series 2016 Bond shall be substantially in the form attached hereto
34 as Exhibit B,with such changes as may be necessary or appropriate to conform to the provisions
35 of this Resolution and the terms of the Series 2016 Bond set forth herein as may be approved
36 by the officers of the City executing the Series 2016 Bond, such execution to be conclusive
37 evidence of such approval.
38
39 (b)Amounts,Maturities,Redemption Provisions and Interest Rates.The Series 2016 Bond shall
40 be issued as a single bond for the entire principal amount of the Series 2016 Bond, shall be
41 issued in registered form, shall be numbered R-1, shall be dated the date of its initial issuance
42 and delivery, and shall bear interest from such date, payable on the Interest Payments Dates.
43 The Series 2016 Bond shall be issued on such date, in the amount of$23,000,000, shall bear
44 interest at the rate of 2.45% per annum (subject to adjustment as provided in the Series 2016
45 Bond), computed on the basis of a 360 day year consisting of twelve 30 day months, not in
46 excess of the maximum legal rate, and shall mature on November 1 of the years and shall have
47 such prepayment or redemption provisions, all as set forth in the Series 2016 Bond, and as shall
48 be consistent with the Proposal.
49
50 (c) Reserve Account Requirement. The Reserve Account Requirement for the Series 2016
51 Bond shall be zero.
52
2
1 Section 5. Approval of Sale of the Series 2016 Bond. The City hereby determines that
2 a negotiated sale of the Series 2016 Bond to the Lender is in the best interest of the City and
3 the citizens and inhabitants of the City by reason of the volatility of the market for tax exempt
4 bonds. Prior to the issuance of the Series 2016 Bond, the Lender shall file with the City the
5 disclosure statement required by Section 218.385,Florida Statutes,and the competitive bidding
6 for the Series 2016 Bond is hereby waived pursuant to the authority of Section 218.385(1),
7 Florida Statutes.
8
9 Section 6. Execution and Delivery of the Series 2016 Bond. The Authorized
10 Representative and the City Clerk are hereby authorized and directed on behalf of the City to
11 execute the Series 2016 Bond as provided in the Bond Resolution and such officials are hereby
12 authorized and directed upon the execution of the Series 2016 Bond in the form and manner set
13 forth herein and in the Bond Resolution to deliver the Series 2016 Bond in the amount
14 authorized to be issued hereunder to the Bond Registrar for authentication(upon the satisfaction
15 of the conditions of Section 209 of the Bond Resolution) and delivery to or upon the order of
16 the Lender upon payment of the purchase price set forth herein.
17
18 Section 7. Application of Proceeds. Proceeds from the sale of the.Series 2016 Bond
19 shall be applied for the purposes described herein as provided in a certificate executed by the
20 Authorized Representative at or prior to the issuance of the Series 2016 Bond.
21
22 Section 8. Amendments to Bond Resolution Applicable to Series 2016 Bond. Pursuant
23 to the authority of Section 1001(a), (b), (c) and/or (d) of the Bond Resolution, and with the
24 consent of the Bondholders of the Series 2016 Bond (which shall be deemed given by their
25 acceptance of the ownership thereof),notwithstanding anything to the contrary contained in the
26 Bond Resolution:
27
28 (a) The City Clerk shall serve as Bond Registrar with respect to the Series 2016 Bond; and
29
30 (b) The provisions of Article III of the Bond Resolution regarding "redemption" do not apply
31 to the Series 2016 Bond, and the Series 2016 Bond shall be subject to prepayment as provided
32 therein.
33
34 Section 9. Compliance with Tax Requirements. The City hereby covenants and agrees,
35 for the benefit of the Bondholders from time to time of the Series 2016 Bond, to comply with
36 the requirements applicable to it contained in Section 103 and Part IV of Subchapter B of
37 Chapter 1 of the Internal Revenue Code of 1986, as amended (the "Code") to the extent
38 necessary to preserve the exclusion of interest on the Series 2016 Bond from gross income for
39 federal income tax purposes. Specifically, without intending to limit in any way the generality
40 of the foregoing,the City covenants and agrees:
41,
42 (1) to pay to the United States of America from, to the extent legally available, the funds
43 and sources of revenues pledged to the payment of the Series 2016 Bond, and from any other
44 legally available funds, at the times and to the extent required pursuant to Section 148(f) of the
45 Code, the excess of the amount earned on all non-purpose investments (as defined in Section
46 148(f)(6)of the Code)(other than investments attributed to an excess described in this sentence)
47 over the amount which would have been earned if such non purpose investments were invested
48 at a rate equal to the yield on the Series 2016 Bond,plus any income attributable to such excess
49 (the "Rebate Amount");
50
51 (2) to maintain and retain all records pertaining to and to be responsible for making or
52 causing to be made all determinations and calculations of the Rebate Amount and required
3
1 payments of the'Rebate Amount as shall be necessary to comply with the Code;
2
3 (3) to refrain from using proceeds from the Series 2016 Bond in a manner that would cause
4 the Series 2016 Bond to be classified as a private activity bond under Section 141(a) of the
5 Code; and
6
7 (4) to take or refrain from taking any action that would cause the Series 2016 Bond to
8 become an arbitrage bond under Section 103(b) and Section 148 of the Code.
9
10 The City understands that the foregoing covenants impose continuing obligations on the City
11 to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of
12 the Code so long as such requirements are applicable.
13
14 Unless otherwise specified in the Certificate as to Arbitrage and Other Tax Matters delivered in
15 connection with the issuance of the Series 2016 Bond,the City shall designate a certified public
16 accountant, Bond Counsel, or other professional consultant having the skill and expertise
17 necessary (the "Rebate Analyst") to make any and all calculations required pursuant to this
18 Section regarding the Rebate Amount. Such calculation shall be made in the manner and at
19 such times as specified in the Code. The City shall engage and shall be responsible for paying
20 the fees and expenses of the Rebate Analyst.
21
22 Section 10. Authorizations. The Authorized Representative, the City Clerk and the
23 Assistant City Manager-Administrative Services are hereby jointly and severally authorized to
24 do all acts and things required of them by this Resolution or the Bond Resolution, or desirable
25 or consistent with the requirements hereof or thereof, for the full, punctual and complete
26 performance of all terms, covenants and agreements contained in the Series 2016 Bond, the
27 Bond Resolution and this Resolution, and to make any elections necessary or desirable in
28 connection with the arbitrage provisions of Section 148 of the Code.
29
30 Section 11. Business Days. In any case where the scheduled date for payment of
31 principal,premium, if any, or interest of the Series 2016 Bond is not a Business Day,then such
32 payment of principal, premium, if any, or interest need not be made on such date but may be
33 made on the next succeeding Business Day, provided, however, that interest shall continue to
34 accrue to and shall be payable on such succeeding Business Day.
35
36 Section 12. Provisions Required by the Lender.
37
38 (a) This Section 12(a) concerns the resolution of any controversies or claims between the City
39 and the Bondholder of the Series 2016 Bond, whether arising in contract,tort or by statute,that
40 arise out of or relate to the Bond Resolution or the Series 2016 Bond (collectively a "Claim").
41 For the purposes of this provision only, the term "Bondholder" shall include any parent
42 corporation, subsidiary or affiliate of the Bondholder involved in the servicing,management or
43 administration of any obligation described or evidenced by the Bond Resolution or,the Series
44 2016 Bond. The City, and the Bondholder by acceptance of the Series 2016 Bond, irrevocably
45 and voluntarily waive any right they may have to a trial by jury in respect of any Claim.
46
47 (b) The City shall within 270 days after the end of each of its Fiscal Years furnish to the
48 Bondholder of the Series 2016 Bond the financial statements of the City for such Fiscal Year,
49 together with an audit report of an independent certified public accountant to the effect that
50 such audit has been conducted in accordance with generally accepted auditing standards and
51 stating whether such financial statements present fairly in all material respects the financial
52 position of the City and the results of its operations and cash flows for the periods covered by
4
1 the audit report, all in conformity with generally accepted accounting principles applied on a
2 consistent basis. The City shall also furnish to the Bondholder of the Series 2016 Bond, within
3 thirty days after the end of each Fiscal Year, the annual budget of the City, and within thirty
4 days after written request therefor such other information, other than any information required
5 or permitted by law to be confidential, respecting the affairs, condition and/or operations,
6 financial or otherwise, of the City, as the Bondholder may reasonably request.
7
8 (c) The City shall within ten Business Days after it acquires knowledge thereof, notify the
9 Bondholder in writing at the Payment Office of the Lender of the happening, occurrence, or
10 existence of any Event of Default and any event or condition which with the passage of time or
11 giving of notice, or both, would constitute an Event of Default, and shall provide the
12 Bondholder, with such written notice, a detailed statement by a responsible officer of the City
13 of all relevant facts and the action being taken or proposed to be taken by the City with respect
14 thereto. Regardless of the date of receipt of such notice by the Bondholder, such date shall not
15 in any way modify the date of occurrence of the actual Event of Default.
16
17 (d) It shall be an Event of Default if the City shall fail to observe and perform any covenant,
18 condition or agreement on its part to be observed or performed under this Resolution for a
19 period of thirty days after the earlier of(i) the date written notice specifying such failure and
20 requesting that it be remedied, is given to the City by the Bondholder or (ii) the date the City
21 was required to give notice of the event or condition to the Bondholder pursuant to this
22 Resolution, unless the Bondholder shall agree in writing to an extension of such time prior to
23 its expiration.
24
25 (e) Notwithstanding anything to the contrary in Section 801(i) of the Bond Resolution, the
26 failure of cure an Event of Default under Section 80.1(i) of the Bond Resolution within sixty
27 days of the occurrence thereof shall be an Event of Default.
28
29 (f)No modification or amendment of this Resolution or of any resolution amendatory hereof or
30 supplemental hereto may be made except with the written consent of the Bondholder. No
31 modification or amendment to Article V, Sections 701 and 706, Article VIII, Article X and
32 Article XI of the Bond Resolution(or the definitions referenced therein) may be made without
33 the written consent of the Bondholder.
34
35 Section 13. Resolution to Constitute a Contract. In consideration of the purchase and
36 acceptance of the Series 2016 Bond authorized to be issued hereunder by those who shall be
37 the holders thereof from time to time, this Resolution shall constitute a contract between the
38 City and such holders, and all covenants and agreements herein and in the Bond Resolution set
39 forth to be performed by the City shall be for the equal benefit and security of all of the holders.
40
41 Section 14. No Implied Beneficiary. With the exception of any rights herein expressly
42. conferred,nothing expressed or mentioned in or to be implied from this Resolution or the Series
43 2016 Bond is intended or shall be construed to give any person other than the City, the Lender
44 and the Bondholder, any legal or equitable right, remedy or claim under or with respect to this
45 Resolution or the Bond Resolution or any covenants, conditions, and provisions herein
46 contained; this Resolution and the Bond Resolution and all of the covenants, conditions and
47 provisions hereof and thereof being intended to be and being for the sole and exclusive benefit
48 of the City,the Lender and the Bondholder.
49
50 Section 15. Severability. If any provision of this Resolution shall be held or deemed to
51 be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not
52 effect any other provision herein or render any other provision (or such provision in any other
5
1 context) invalid, inoperative or unenforceable to any extent whatsoever.
2
3 Section 16. Repealer. All Resolutions or parts thereof of the City in conflict with the
4 provisions herein contained or, to the extent of any such conflict, hereby superseded and
5 repealed.
6
7 Section 17: This Resolution shall take effect immediately upon its passage.
8
9 PASSED AND ADOPTED this /-qday of 4‘ehtde,- , 2016.
10 CITY OF BOYNTON BEACH, FLORIDA
11
12 YES NO
13
14 Mayor—Stephen B. Grant , h se,Nt
15
16 Vice Mayor—Mack McCray
17
18 Commissioner—Justin Katz
19
20 Commissioner—Christina Romelus
21
22 Commissioner—Joe Casello
23
24
25 VOTE
26 AT ST:
27 4.01111.
28 ,dgef -
29 ith Pyle, CMC
30 ity Clerk
31
32 (Corporate Seal)
r..
y6 41
I
6
Exhibit A to Resolution
October 13, 2016
Re: City of Boynton Beach, Florida—Utility System Revenue Note, Series 2016
On behalf of Raymond James Capital Funding, Inc.,we are pleased to submit the attached loan proposal
including the terms and conditions applicable to provide funds to pay for capital expenditures related
to the City's water, sewer and storm water utility system.
Transaction Overview
Borrower: City of Boynton Beach (the "City")
Lender: Raymond James Capital Funding, Inc. — a non-bank subsidiary of Raymond
James Bank (the "Lender")
Facility: The obligation will be in the form of a loan issued to the City in an amount not
to exceed $23,000,000 (the "Series 2016 Loan"). Interest on the Series 2016
Loan shall be tax-exempt to the holders thereof.
Purpose: The City shall use proceeds of the Series 2016 Loan to provide funds to pay for
capital expenditures related to the City's water, sewer and storm water utility
system and pay transaction costs (the "Project").
Closing Date: On or before November 18, 2016 (the "Closing Date")
Security: The Series 2016 Loan will be payable solely from and secured by an irrevocable
lien upon and pledge of the Pledged Revenues,which include (i) Net Revenues
of the System, (ii) certain Impact Fees, and (iii) subject to the application
thereof as provided in the Resolution, amounts in certain funds and accounts
established under the Resolution. The lien of the Series 2016 Loan on Pledged
Revenues will be on parity with the City's Utility System Revenue Refunding
Bonds, Series 2002, the City's Utility System Revenue Bonds, Series 2012, and
any Additional Bonds issued under the Resolution.
Term/Maturity: The Series 2016 Loan shall mature no later than November 1,2031 with interest
payments on the outstanding principal balance of the Series 2016 Loan
calculated on a 30/360-day basis and paid semiannually on May 1 and
November 1, beginning May 1, 2017. The principal amount of the Series 2016
Loan shall be payable annually beginning November 1, 2021 corresponding to
the estimated amortization schedule below.
Raymond James Capital Funding, Inc.
710 Carillon Parkway/I St. Petersburg, FL 33716;/727.567.8000//raymondjamesbank.com
1
• - • ` •• ' ' City of Boynton Beach
• Utility System Revenue Note,Series 2016
Maturity Date Principal.
11/1/2021 $1,800,000
11/1/2022 $1,835,000
11/1/2023 $1,870,000
11/1/2024 $1,910,000
11/1/2025 $1,950,000
11/1/2026 $1,990,000
11/1/2027 $2,035,000
11/1/2028 $2,080,000
11/1/2029 $2,450,000
11/1/2030 $2,510,000
11/1/2031 $2,570,000
Total $23,000,000
Interest Rate: The tax-exempt interest rate on the Series 2016 Loan,shall be fixed for the term
of the financing at a rate of 2.45%. The interest rate shall be locked until the
Closing Date at no additional cost to the City. If the closing occurs after
November 18 2016, the rate may be reset subject to market conditions at the
time of closing.
Original Issue
Discount: The Lender will make the Loan at a discount of 0.25%of the par amount of the
Series 2016 Loan treated by the Lender as an original issue discount for Federal
income tax purposes.
Lender's Counsel: The Lender shall be represented by Michael Wiener with Holland & Knight. ,
Lender's counsel responsibilities shall be limited to a review of documents
prepared by Bond Counsel with fees capped at $7,500 paid from proceeds of
the Series 2016 Loan.
Prepayment: Except as provided under"Gross-Up" below,the Series 2016 Loan may only be
prepaid at the option of the City in whole or in part on or after November 1,
2026 at 100% of the then outstanding principal amount plus any accrued
interest,without premium,on any business day upon 30 days written notice to
the Lender. Prior to the above date, the Series 2016 Loan may not be prepaid
in whole or in part without the prior written consent of the Lender. Partial
prepayments shall be applied in inverse order of maturity (treating ,
amortization installments as maturities) and shall be subject to a minimum
amount of$1,000,000.
Raymond James Capital Funding, Inc.
710 Carillon Parkway!/St. Petersburg, FL 337161/727567.8000/I raymondjamesbank.com
Conditions
Precedent: The City and its agents will deliver closing documents and make the
representations customary in similar transactions and acceptable to the
Lender.While preliminary credit approval has been obtained,the final amount
and terms shall be subject to final credit approval as a condition precedent to
closing this transaction.
Covenants: The City has covenanted to fix, charge and collect rates s and charges at a
level such that Net Revenues will be sufficient to cover annual debt service
on all bonds issued under the Resolution at a minimum of 110%. Other
covenants shall be consistent with those included in the Resolution.The City
shall provide the Lender with annual audits and budgets on a timely basis.Such
annual audits shall be provided within 210 days of the end of each fiscal year.
The City shall also provide such other information as the Lender shall
reasonably request.
Default Rate: Under any Event of Default, the interest rate on the Series 2016 Loan shall
accrue at the Default Rate. The Default Rate shall be calculated at the
greater of(a)the published Federal Reserve Bank's Prime Rate+3%, (b) the
• Federal Funds Rate+5%, or(c) 7%, per annum. Once the Event of Default is
cured, the interest rate will revert back to the original tax-exempt rate.
Tax Treatment: The interest component on the Series 2016 Loan shall be excludable from gross
income for federal income tax purposes.The City shall covenant to perform all
actions, functions or requirements in order to maintain the tax-exempt status
on the Series 2016 Loan.The Lender shall be provided an opinion of tax counsel
satisfactory to the Lender and its counsel which concludes that the interest on
the Series 2016 Loan (including any original issue discount properly allocable to
an owner thereof) is excludable from gross income for federal income tax
purposes.
Defaults/Remedies: Upon the breach of any covenant, agreement or warranty, the financing
documents will provide remedies to the Lender customary for transactions of
this nature, exercise rights and remedies available under law, equity or under
the terms of the resolution and/or other financing documents and the interest
rate shall be adjusted to the Default Rate described above.
Gross-Up: Gross-up shall be limited to an event of taxability resulting from actions or
inactions of the City. Upon an event of taxability, the interest rate on the
affected loan shall increase to a taxable rate of 3.80%as of the date of taxability
including a payment reflecting the difference between the tax-exempt and
taxable rate from the determination of taxability plus any penalties and costs
incurred by the Lender. Upon a determination of taxability, the Series 2016
Loan shall be prepayable at par plus accrued interest,at the taxable rate,to the
date of prepayment upon 30 days prior written notice to the Lender.
Raymond James Capital Funding, Inc.
710 Carillon Parkway//St. Petersburg, FL 33716//727.567.8000//raymondjamesbank.com
Waiver of
Jury Trial: The City and the Lender will waive, to the fullest extent permitted by applicable
law, any right to have a jury participate in resolving any dispute in any way
related to the transactions contemplated hereby or any documents related
thereto.
No Advisory or
Fiduciary Role: The City acknowledges and agrees that: (i) information contained in this
document regarding the Series 2016 Loan is for discussion purposes only in
anticipation of engaging in arm's length commercial transactions with the City
in which the Lender would be acting solely as a principal to make a loan to the
City, and not as a municipal advisor,financial advisor or fiduciary to the City or
any other person or entity regardless of whether the Lender or an affiliate has
or is currently acting as such on a separate transaction; (ii) the Lender has not
assumed any advisory or fiduciary responsibility to the City with respect to the
transaction contemplated hereby and the discussions, undertakings and
procedures leading thereto (irrespective of whether the Lender or its affiliates
have provided other services or are currently providing other services to the
City on other matters); (iii)the only obligations the Lender has to the City with
respect to the transaction contemplated hereby expressly are set forth in this
term sheet and the financing documents;and (iv)the City has consulted its own
legal, accounting,tax, financial and other advisors, as applicable,to the extent
it has deemed appropriate.
Disclaimer: This term sheet includes information related to a direct loan transaction
("Direct Loan"). Please be advised that Direct Loan is a product offering of the
Lender. Additionally, the Lender has financial and other interests that differ
from your interests. In its capacity as lender, Lender's sole role would be to
enter into a loan agreement to provide funds for the purpose stated above.
Lender will not have any duty or liability to any person or entity in connection
with the information provided herein.The information provided is not intended
to be and should not be construed as "advice" within the meaning of Section
15B of the Securities Exchange Act of 1934.
Confidentiality: This term sheet is confidential and proprietary, and terms herein may not be
disclosed without our prior written consent, except to your professional
advisors in connection with the Series 2016 Loan who agree to be bound by
such confidentiality requirements, or as may be required by law.
Notwithstanding anything herein to the contrary,any party hereto may disclose
to any and all persons,without limitation ofany kind, the tax treatment or tax
structure of this transaction. Furthermore, the parties to this transaction may
disclose, as required by federal or state laws, any information as required to
comply with such federal or state laws.
Raymond James Capital Funding, Inc.
710 Carillon Parkway.//St. Petersburg, FL 33716//727.567.8000//raymondjamesbank.com
This term sheet will expire and the transaction must close on or before November 18, 2016 unless
extended by Lender.Thank you for the opportunity to be of service to the City of Boynton Beach.Should
you have any questions, please don't hesitate to contact me at the number below.
Sincerely,
If,/f J^i
?4
Cord D. King
Tax-Exempt Lending Manager
Raymond James Capital Funding, Inc.
710 Carillon Parkway
St. Petersburg, FL 33716
727.567.2055
cord.king@raymondiames.com
cc: Tim Howard—City of Boynton Beach, FL
Jay Glover—Public Financial Management
Tyler Calderone—Public Financial Management
Acceptance:
City of Boynton Beach
cr-
Title: VJ 'C€ �GGyp/'
Date: /f//- ,/,
Raymond James Capital Funding, Inc.
710 Carillon Parkway//St. Petersburg, FL 33716//727.567.8000//raymondjamesbank.com
EXHIBIT B TO RESOLUTION
No. R-1 $23,000,000.00
City of Boynton Beach, Florida
Utility System Revenue Bond, Series 2016
Maturity Date Interest Rate Original Issue Date
November 1, 2031 2.45% November 18, 2016
BONDHOLDER: Raymond James Capital Funding, Inc.
PRINCIPAL AMOUNT: Twenty-three Million and No/100 Dollars
The City of Boynton Beach, Florida (herein called the "City"), a political subdivision and
public body politic and corporate of the State of Florida, duly organized and operating under the
constitution and laws of the State of Florida,is justly indebted to and hereby promises to pay to the
Bondholder shown above or to the registered assigns thereof(the"Bondholder")on the date specified
above(or earlier as hereinafter referred to), the principal sum shown above, or such lesser amount
as shall be outstanding hereunder,and interest on such principal sum from the date hereof at the rate
per annum specified above (subject to adjustment as hereinafter provided), computed on the basis
of a 360-day year consisting of twelve 30-day months, until payment of such principal sum.
The principal hereof shall be repaid in installments, due on November 1 of the years and in
the amounts set forth in the following table, and on November 1, 2031 the entire outstanding
principal balance hereof plus all accrued and unpaid interest thereon shall be paid in full:
Year Principal Due
2021 $1,830,000.00
2022 1,860,000.00
2023 1,890,000.00
2024 1,925,000.00
2025 1,965,000.00
2026 2,000,000.00
2027 2,040,000.00
2028 2,075,000.00
2029 2,415,000.00
2030 2,470,000.00
2031 2,530,000.00
Interest on the outstanding principal balance shall be paid in arrears,on the first day of each
May and November, commencing May 1, 2017.
Prepayments of principal may be made by the City on any Business Day on or after the earlier
of(i)the occurrence of a Determination of Taxability or(ii) on or after November 1,2026, and not
otherwise,provided that(a)prepayments shall be in an amount of at least$1,000,000(or the entire
unpaid balance hereof if less than $1,000,000 is outstanding), (b) the City shall provide the
Bondholder with at least thirty days'prior written notice of any prepayment, which notice may be
conditional or revocable by the City, and (c) the City shall also pay the interest accrued on any
principal being prepaid.Prepayments of less than the entire principal balance hereof shall be applied
to the remaining scheduled installment(s) of principal to be paid hereon in the inverse order of the
due dates thereof, or in such other order as agreed upon in writing by the City and the Bondholder.
All payments made by the City to the Registered Holder shall be applied first to accrued
interest,then to any other amounts as shall be owing by the City to the Registered Holder hereunder,
and then to principal.
All payments hereon shall be made in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private debts, and shall be made
by wire transfer by the City to the Registered Holder in accordance with written instructions
provided by the Registered Holder to the City, or in such other manner as may be agreed upon by
the City and the Registered Holder. The place of payment designated by the Bondholder being
referred to as the "Payment Office of the Lender." Presentment of this Bond is not required for
payment hereof.
As used in this Bond:
(1) "Code" means the Internal Revenue Code of 1986, as amended, and any
Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or
applicable thereto; and
(2) "Determination of Taxability"shall mean the circumstance of interest payable
on this Bond becoming includable for federal income tax purposes in the gross income of the
Bondholder hereof as a consequence of any act or failure to act by the City.A Determination
of Taxability shall be evidenced by (i) the issuance by the Internal Revenue Service of a
statutory notice of deficiency or other written notification which holds in effect that the
interest payable with respect to this Bond is includable for federal income tax purposes in the
gross income of the Bondholder,which notice or notification is not contested by either the
City or the Bondholder, or(ii) a determination by a court of competent jurisdiction that the
interest payable with respect to this Bond is includable for federal income tax purposes in the
gross income of the Bondholder,which determination either is final and non-appealable or
is not appealed within the requisite time period for appeal, or(iii)the admission in writing
by the City to the effect that interest payable with respect to this Bond is includable for
federal income tax purposes in the gross income of the Bondholder, in each case solely due
to an action or a failure to act by the City. A Determination of Taxability shall not occur
solely from the fact that such interest is taken into account in determining adjusted current
earnings for the purpose of the alternative minimum tax imposed on corporations.
Upon the occurrence of a Determination of Taxability,the interest rate on this Bond shall be
adjusted to a rate equal to the lesser of the maximum lawful rate or 3.80% (the "Adjusted Interest
Rate"),as of and from the date such determination would be applicable with respect to this Bond(the
"Accrual Date"); and(i)the City shall on the next May 1 or November 1, whichever is first,pay to
the Bondholder an amount equal to the sum of(1)the difference between(A)the total interest that
would have accrued on this Bond at the Adjusted Interest Rate from the Accrual Date to such May
1 or November 1,and(B)the actual interest paid by the City on this Bond from the Accrual Date to
such May 1 or November 1, and(2)any penalties, fines, fees, costs and interest required to be paid
by the Bondholder to the Internal Revenue Service as a result of such Determination of Taxability;
and(ii) from and after the Determination of Taxability, this Bond shall continue to bear interest at
the Adjusted Interest Rate for the period such determination continues to be applicable with respect
2
to this Bond. This adjustment shall survive payment of this Bond until such time as the federal
statute of limitations under which the interest on this Bond could be declared taxable under the Code,
shall have expired.
After the occurrence of any default under the hereinafter described Resolution,
notwithstanding any other terms hereof or of the Resolution,the Interest Rate on this Bond shall be
adjusted to be the higher of(a)the "bank prime loan rate" (or any successor thereto) published by
the Board of Governors of the Federal Reserve System plus 3%per annum, (b)the Federal Funds
Rate plus 5%per annum,or(b)7%per annum,but in no event shall such rate exceed the maximum
rate allowed under applicable law. "Federal Funds Rate"means the "Federal funds(effective)"rate
published by the Board of Governors of the Federal Reserve System. The Registered Holder shall
give the City notice of any such adjustment of the Interest Rate.
This Bond is one of a series of Bonds designated "Utility System Revenue Bonds, Series
2016"the"Series 2016 Bonds"),issued by the City pursuant to Resolution No.92-96 adopted by the
City Commission of the City on June 16, 1992, as amended and supplemented (the "Bond
Resolution"), particularly as amended and supplemented by that certain resolution adopted by the
City Commission of the City in furtherance of the Bond Resolution on November 15, 2016 (the
"Series Resolution"and,together with the Bond Resolution,the"Resolution").This Bond is secured
by and is payable under the Resolution as a "Bond" thereunder, on a parity with all other Bonds
thereunder to the extent provided therein.
Reference is made to the Resolution for a more complete statement of the provisions thereof
and of the rights and duties of the City,the Bond Registrar and the owners of Bonds. Copies of the
Resolution are on file and may be inspected at the offices of the City. By the purchase and
acceptance of this Bond,the holder hereof signifies assent to all of the provisions of the Resolution.
IN WITNESS WHEREOF, the City of Boynton Beach, Florida by resolution duly adopted
by its City Commission,has caused this Bond to be signed by its Mayor and to be attested by its City
Clerk and the official seal of the City to be impressed hereon, all as of the 18th day of November,
2016.
[SEAL] CITY OF BOYNTON BEACH, FLORIDA
By:
Mayor
ATTEST:
By:
City Clerk
3 .
* * * * * * *
CERTIFICATE OF AUTHENTICATION
This Bond is the Bond of the series designated herein and issued under the provisions of the
within-mentioned Resolution.
City Clerk of the City of Boynton Beach, Florida,
as Bond Registrar
By:
City Clerk
Date of authentication: November 18, 2016
4
Notice Of Sale Printed On: 10/30/2016 12:42:14P
Bond issue name: $23,000,000 City of Boynton Beach, Florida Utility System Revenue Bonds, Series 2016
Sale date: 11/18/2016
Closing date: 11/18/2016
Submitted by: mark.raymond@mraymondlaw.com
Submission date: 10/30/2016
$23,000,000
CITY OF BOYNTON BEACH, FLORIDA
UTILITY SYSTEM REVENUE BOND, SERIES 2016
GENERAL CERTIFICATE OF THE CITY
We,the undersigned Vice-Mayor(the"Vice-Mayor")and City Clerk(the"Clerk")of the City
Commission (the "Governing Body") of the City of Boynton Beach, Florida (the "City"), DO
HEREBY CERTIFY as follows:
1. We are the qualified and acting Vice-Mayor and Clerk of the City.
2. All of the 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.
3. Goren, Cherof, Doody&Ezrol, P.A. are the duly appointed Attorneys for the City
and accordingly are entitled to sign opinions and other documents pertaining to the Governing Body,
the City, and the City's $23,000,000 Utility System Revenue Bond, Series 2016, dated November
18, 2016 (the "Bond"). Mark E.Raymond is bond counsel for the City, and accordingly is entitled
to sign opinions and other documents as bond counsel.
4. The Vice-Mayor has. signed the Bond by his manual signature, and the manual
signature appearing on the Bond and the manual signature at the end of this certificate are each the
true and lawful signature of the Vice-Mayor.
•
5. The seal of the City was impressed upon the Bond, and attested by the manual
signature of the Clerk., Such seal and signature appearing on the Bond and the manual signature of
the Clerk and the impression of the seal of the City at the end of this certificate constitute the true
and lawful seal of the City and the signature of the Clerk, respectively.
6. No action, suit, inquiry or other proceeding is pending or, to our knowledge,
threatened, in or before any agency, court ortribunal,public board or administrative body, state or
federal (i) to restrain or enjoin the issuance, delivery or validity of the Bond or (ii) in any way
contesting or affecting the validity of the Bond or Resolution No.92-96 of the City,as amended and
supplemented (the "Resolution") or the application of the proceeds of the Bond, or the levy or
collection or distribution of the Pledged Revenues (as defined in the Resolution), or the pledge
thereof as security for the Bond, or (iii) contesting the power of the City or its authority for the
issuance of the Bond or the adoption of the Resolution, (iv) contesting the tax-exempt status of
interest on the Bond or (v) which may result in any material adverse change in the business,
properties, assets of or financial condition of the City, the Pledged Revenues or the ability of the
City to comply with the provisions of the Bond and the Resolution.
7. No litigation is pending or, to our knowledge, threatened, against the City or
involving any of the property, assets or operations under the control of the City which is reasonably
anticipated by the City to have a material and adverse effect upon the security provided for the Bond
pursuant to the Resolution.
8. No litigation is pending or, to our knowledge, threatened, to contest the creation,
organization, existence or corporate powers of the City, 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 Bond, or
of any other officer of the City.
9. The adoption of the Resolution,the execution,delivery,receipt and due performance
of the Bond and the City's compliance with the provisions thereof(i) to the best of our knowledge
will not conflict with or constitute on the City's part a material breach of or a default under any
existing State of Florida or United States constitutional provision, law, court or administrative
regulation, decree or order or (ii) will not conflict with or constitute on the City's part a material
breach of or a default under any agreement,indenture,bond,note,lease or other instrument to which
the City is subject or by which the City is or may be bound, and 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
City except as provided by the Bond and the Resolution.
10. 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 Bond, the security therefor, or the application of the proceeds
therefrom, or any other material matters with respect to the Bond.
11. Since September 30,2015,no adverse change has occurred in the financial position
or result.of operations of the City or the Utility System which would be material and adverse to the
security providedfor the Bond pursuant to the Resolution.
12. All conditions precedent to the issuance of the Bonds pursuant to the Resolution have
been satisfied in accordance with the terms of the Resolution.
13. The interest rate borne by the Bond does not exceed the maximum rate permitted by
Section 215.84, Florida Statutes.
IN WITNESS WHEREOF,we have hereunto set our hands and the official seal of the City,
and have indicated our respective official titles, all as of the 18th day of November, 2016.
Si:natu - Official Title
�/, ., Vice-Mayor
Ijam. City Clerk
dith Pyle
(Official Seal) ' t..
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No. R-1 $23,000,000.00
City of Boynton Beach, Florida
Utility System Revenue Bond, Series 2016
Maturity Date Interest Rate Original Issue Date
November 1, 2031 2.45% November 18, 2016
BONDHOLDER: Raymond James Capital Funding, Inc.
PRINCIPAL AMOUNT: Twenty-three Million and No/100 Dollars
The City of Boynton Beach, Florida (herein called the "City"), a political subdivision and
public body politic and corporate of the State of Florida, duly organized and operating under the
constitution and laws of the State of Florida,is justly indebted to and hereby promises to pay to the
Bondholder shown above or to the registered assigns thereof(the"Bondholder")on the date specified
above (or earlier as hereinafter referred to), the principal sum shown above, or such lesser amount
as shall be outstanding hereunder,and interest on such principal sum from the date hereof at the rate
per annum specified above (subject to adjustment as hereinafter provided), computed on the basis
of a 360-day year consisting of twelve 30-day months, until payment of such principal sum.
The principal hereof shall be repaid in installments, due on November 1 of the years and in
the amounts set forth in the following table, and on November 1, 2031 the entire outstanding
principal balance hereof plus all accrued and unpaid interest thereon shall be paid in full:
Year Principal Due
2021 $1,830,000.00
2022 1,860,000.00
2023 1,890,000.00
2024 1,925,000.00
2025 1,965,000.00
2026 2,000,000.00
2027 2,040,000.00
2028 2,075,000.00
2029 2,415,000.00
2030 2,470,000.00
2031 2,530,000.00
Interest on the outstanding principal balance shall be paid in arrears,on the first day of each
May and November, commencing May 1, 2017.
Prepayments of principal may be made by the City on any Business Day on or after the earlier
of(i)the occurrence of a Determination of Taxability or(ii) on or after November 1,2026,and not
otherwise,provided that(a)prepayments shall be in an amount of at least$1,000,000 (or the entire
unpaid balance hereofif less than $1,000,000 is outstanding), (b) the City shall provide the
Bondholder with at least thirty days' prior written notice of any prepayment, which notice may be
conditional or revocable by the .City, and (c) the City shall also pay the interest accrued on any
principal being prepaid.Prepayments of less than the entire principal balance hereof shall be applied
to the remaining scheduled installment(s)of principal to be paid hereon in the inverse order of the
due dates thereof, or in such other order as agreed upon in writing by the City and the Bondholder.
All payments made by the City to the Registered Holder shall be applied first to accrued
interest,then to any other amounts as shall be owing by the City to the Registered Holder hereunder,
and then to principal.
All payments hereon shall be made in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private debts,and shall be made
by wire transfer by the City to the Registered Holder in accordance with written instructions
provided by the Registered Holder to the City, or in such other manner as may be agreed upon by
the City and the Registered Holder. The place of payment designated by the Bondholder being
referred to as the "Payment Office of the Lender." Presentment of this Bond is not required for
payment hereof.
As used in this Bond:
(1) "Code" means the Internal Revenue Code of 1986, as amended, and any
Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or
applicable thereto; and
(2) "Determination of Taxability"shall mean the circumstance of interest payable
on this Bond becoming includable for federal income tax purposes in the gross income of the
Bondholder hereof as a consequence of any act or failure to act by the City.A Determination
of Taxability shall be evidenced by (i) the issuance by the Internal Revenue Service of a
statutory notice of deficiency or other written notification which holds in effect that the
interest payable with respect to this Bond is includable for federal income tax purposes in the
gross income of the Bondholder,which notice or notification is not contested by either the
City or the Bondholder, or(ii) a determination by a court of competent jurisdiction that the
interest payable with respect to this Bond is includable for federal income tax purposes in the
gross income of the Bondholder,which determination either is final and non-appealable or
is not appealed within the requisite time period for appeal, or(iii)the admission in writing
by the City to the effect that interest payable with respect to this Bond is includable for
federal income tax purposes in the gross income of the Bondholder,in each case solely due
to an action or a failure to act by the City. A Determination of Taxability shall not occur
solely from the fact that such interest is taken into account in determining adjusted current
earnings for the purpose of the alternative minimum tax imposed on corporations.
Upon the occurrence of a Determination of Taxability,the interest rate on this Bond shall be
adjusted to a rate equal to the lesser of the maximum lawful rate or 3.80% (the "Adjusted Interest
Rate"),as of and from the date such determination would be applicable with respect to this Bond(the
"Accrual Date"); and(i)the City shall on the next May 1 or November 1, whichever is first,pay to
the Bondholder an amount equal to the sum of(1)the difference between(A)the total interest that
would have accrued on this Bond at the Adjusted Interest Rate from the Accrual Date to such May
1 or November 1,and(B)the actual interest paid by the City on this Bond from the Accrual Date to
such May 1 or November 1, and(2) any penalties, fines, fees, costs and interest required to be paid
by the Bondholder to the Internal Revenue Service as a result of such Determination of Taxability;
and(ii) from and after the Determination of Taxability,this Bond shall,continue to bear interest at
the Adjusted Interest Rate for the period such determination continues to be applicable with respect
to this Bond. This adjustment shall survive payment of this Bond until such time as the federal
2
statute of limitations under which the interest on this Bond could be declared taxable under the Code,
shall have expired.
After the occurrence of any default under the hereinafter described Resolution,
notwithstanding any other terms hereof or of the Resolution,the Interest Rate on this Bond shall be
adjusted to be the higher of(a) the "bank prime loan rate" (or any successor thereto)published by
the Board of Governors of,the Federal Reserve System plus 3% per annum, (b)the Federal Funds
Rate plus 5%per annum,or(b)7%per annum,but in no event shall such rate exceed the maximum
rate allowed under applicable law. "Federal Funds Rate" means the "Federal funds(effective)"rate
published by the Board of Governors of the Federal Reserve System. The Registered Holder shall
give the City notice of any such adjustment of the Interest Rate.
This Bond is one of a series of Bonds designated "Utility System Revenue Bonds, Series
2016"the"Series 2016 Bonds"),issued by the City pursuant to Resolution No.92-96 adopted by the
City Commission of the City on June 16, 1992, as amended and supplemented (the "Bond
Resolution"), particularly as amended and supplemented by that certain resolution adopted by the
City Commission of the City in furtherance of the Bond Resolution on November 15, 2016 (the
"Series Resolution"and,together with the Bond Resolution,the"Resolution").This Bond is secured
by and is payable under the Resolution as a "Bond" thereunder, on a parity with all other Bonds
thereunder to the extent provided therein.
Reference is made to the Resolution for a more complete statement of the provisions thereof
and of the rights and duties of the City,the Bond Registrar and the owners of Bonds. Copies of the
Resolution are on file and may be inspected at the offices of the City. By the purchase and
acceptance of this Bond,the holder hereof signifies assent to all of the provisions of the Resolution.
IN WITNESS WHEREOF, the City of Boynton Beach,Florida by resolution duly adopted
by its City Commission, has caused this Bond to be signed by its Vice-Mayor and to be attested by
its City Clerk, and the official seal of the City to be impressed hereon, all as of the 18th day of
November, 2016.
[SEAL] CITY OF BOYNT• : - , FLORIDA
P
11 ice- ayor
ATTEST:. r ,.
By:
/City Clerk
3
* * * * * * *
CERTIFICATE OF AUTHENTICATION
This Bond is the Bond of the series designated herein and issued under the provisions of the
within-mentioned Resolution.
City Clerk of the City of Boynton Beach, Florida,
as Bond Registrar
By:
City Clerk
Date of authentication: November 18, 2016
4
$23,000,000 City of Boynton Beach, Florida Utility System Revenue Bonds, Series 2016
Submit Date: 11/15/2016 Printed On: 11/15/2016 5:10:55PM
Issuer
Name of Governmental Unit:
City of Boynton Beach, Florida
Mailing Address of Governmental Unit or its Manager:
100 East Boynton Beach Boulevard
Address 2:
[blank]
City: State: Zip Code:
Boynton Beach FL 33425
Counties in which governmental unit has jurisdiction:
Palm Beach
Type of Issuer:
City
Is the Issuer a Community Development District?
No
Bond Information
Bond Issue Detail(s):
Name of Bond Issue Amount Issued Interest Calculation Yield
Utility System Revenue Bond, Series 2016 $23,000,000.00 Arbitrage Yield 2.478
Amount Authorized:
$23,000,000.00
Dated Date:
11/18/2016
Sale Date:
11/18/2016
Delivery Date:
11/18/2016
Legal Authority For Issuance: _
Ch. 166, F.S.
Type Of Issue:
Revenue
Is this a Private Activity Bond?
No
Specific Revenue(s) Pledged:
Primary: Facility/Revenues/User Fees
Secondary: None
Purpose(s)of the Issue:
Primary: Sewer/Waste Water
Secondary: None
Is this a Refunding Issue?
No
Page 1 of 5
$23,000,000 City of Boynton Beach, Florida Utility System Revenue Bonds, Series 2016
Submit Date: 11/15/2016 Printed On: 11/15/2016 5:10:55PM
Bond Refunding Issue Detail(s):
Name of Refunding Issue Dated Date Original Par Value Par Value Refunded
[blank]
Type of sale:
Negotiated Private Placement
Insurance/Enhancements:
No,Credit Enhancement
Rating(s):
Moody's: NR
S&P: NR
Fitch: NR
Other: [blank]
Debt Service schedule provided by:
Email
Optional Redemption Provisions provided by:
Email
Participants J
Provide the name and address of the Senior Managing Underwriter or Sole Purchaser.
Underwriter:
Raymond James Capital Funding, Inc.
Mailing Address of Underwriter:
710 Carillon Parkway
Address 2:
[blank]
City: State: Zip Code:
St. Petersburg FL 33716
Co-Underwriter:
None
Provide the names and addresses of any attorneys who advised the unit of local government with respect to the bond
issue.
Bond Counsel:
Mark E. Raymond
Mailing Address of Bond Counsel:
4360 Northlake Blvd
Address 2:
Ste 204
City: State: Postal Code:
Palm Beach Gardens FL 33410
Co-Bond Counsel:
None
Provide the names and addresses of any municipal advisor who advised the unit of local government with respect to
the bond issue.
Municipal Advisor:
Public Financial Management Inc.
Page 2 of 5
$23,000,000 City of Boynton Beach, Florida Utility System Revenue Bonds, Series 2016
Submit Date: 11/15/2016 Printed On: 11/15/2016 5:10:55PM
Mailing Address of Municipal Advisor:
300 south orange ave
Address 2:
ste 1170
City: State: Zip Code:
Orlando. FL 32801
Co-Municipal Advisor:
None
Other Professionals:
Goren Cherof Doody&Ezrol, P.A.
Mailing Address of Other Professionals:
100 East Boynton Beach Boulevard
Address 2:
[blank]
City: State: Zip Code:
Boynton Beach FL 33425
Paying Agent:
None
Registrar:
None
Fees
Has any fee,bonus,or gratuity been paid by any underwriter or municipal advisor, in connection with the bond issue,
to any person not regularly employed or engaged by such underwriter or advisor?
Fees Paid:
Company Name Fee Paid Service provided or function served
[blank]
Have any other fees been paid by the unit of local government with respect to the bond issue, including any fee paid to
attorneys of municipal advisors?
Total Bond Counsel Fees Paid:
$21,850.00
Total Municipal Advisor Fees Paid:
$21,850.00
Other Fees Paid:
Company Name Fee Paid Service Provided or Function Served
Goren Cherof Doody&Ezrol $14,630.00 city attorney
Holland &Knight LLP $7,500.00 bank counsel
•
Page 3 of 5
$23,000,000 City of Boynton Beach, Florida Utility System Revenue Bonds, Series 2016
Submit Date: 11/15/2016 Printed On: 11/15/2016 5:10:55PM
Filing of this form has been authorized by the official of the issuer identified below:
Name:
Tim Howard
Title:
Governmental Officer primarily responsible for coordinating issuance of the bonds
Fees charged by Underwriter:
Management Fee(per thousand par value):
$0.00
OR
Private Placement Fee:
$0.00
Underwriter's expected gross spread(per thousand par value):
$0.00
Respondent
For additional information,the Division of Bond Finance should contact:
Name:
Mark E. Raymond
Title:
lawyer
Phone:
561-775-8440
Company:
mark e raymond
Mailing Address of Respondent:
4360 northlake blvd
Address 2:
ste 204
City: State: Zip Code:
palm beach gardens . FL 33410
Page 4 of 5
$23,000,000 City of Boynton Beach, Florida Utility System Revenue Bonds, Series 2016
Submit Date: 11/15/2016 Printed On: 11/15/2016 5:10:55PM
Information relating to party completing this form(if different from above):
Name:
[blank]
Title:
[blank]
Phone:
[blank]
Company:
[blank]
Mailing Address:
[blank]
Address 2:
[blank]
City: State: Zip Code:
[blank] [blank] [blank]
Continuing Disclosure
Is the issuer required to provide continuing disclosure information in accordance with SEC Rule 15C2-12?
No
Page 5 of 5
$23,000,000
CITY OF BOYNTON BEACH, FLORIDA
UTILITY SYSTEM REVENUE BOND, SERIES 2016
CERTIFICATE OF LENDER
November 18, 2016
To: City of Boynton Beach, Florida (the "City")
Pursuant to the provisions of Section 218.385,Florida Statutes,as amended,Raymond James Capital
Funding, Inc. (the "Lender") provides the following information with respect to the arrangements
made in connection with the loan to be made by the Lender to the City which will be evidenced by
the above-referenced Bond(the"Bond").Terms used herein in capitalized form that are not otherwise
defined have the same meanings as in the Resolution(as defined in the Bond).The Lender represents
as follows:
(a) The nature and estimated amounts of expenses to be incurred by the Lender in connection
with the Bond is legal fees of$7,500.00 (to be paid by the City).
(b) There were no "finders," as defined in Section 218.386, Florida Statutes, as amended, in
connection with the Bond.
(c) The Lender is making the loan and is thus becoming the registered owner of the Bond. The
Loan will be in a principal amount equal to $23,000,000 with a discount of $57,500.00
retained by the Lender. Such discount will be treated by the Lender as "original issue
discount" for federal income tax purposes.
(d) No management fee will be charged by the Lender.
(e) Except as provided in(a),no fee,bonus or other compensation will be paid by the Lender in
connection with the issuance of the Bond to any person not regularly employed or retained by
the Lender.
(f) The name and address of the Lender is Raymond James Capital Funding, Inc., 710 Carillon
Parkway, St. Petersburg, Florida 33716.
(g) The City is incurring $23,000,000.00 of debt evidenced by the Bond for the purpose of
financing expenses related to City's Utility System. The debt'evidenced by the Bond is
expected to be repaid over a period of approximately 14.96 years and bears an interest rate of
2.45%,The source of repayment or security for the Bond is Net Revenues of the City's Utility
System. Authorizing the debt evidenced by the Bond will result in an average of
approximately$1,926,177 ofNet Revenues of the Utility System not being available for other
uses by the City each year for approximately 14.96 years.
Raymond James Capital Funding, Inc.
By:
Authorized Signory
$23,000,000
CITY OF BOYNTON BEACH, FLORIDA
UTILITY SYSTEM REVENUE BOND, SERIES 2016
VICE-MAYOR'S CERTIFICATE OF PAYMENT
AND APPLICATION OF PROCEEDS
The undersigned Vice-Mayor of the City of Boynton Beach,Florida(the "City")does hereby
certify on behalf of the City as follows:
1. This Certificate relates to the City's$23,000,000 Utility System Revenue Bond, Series
2016, dated November 18, 2016 (the "Bond"), issued pursuant to Resolution No. 92-96 of the City,
as amended and supplemented(the "Resolution").
2. Terms used herein in capitalized form and not otherwise defined herein shall have the
meanings ascribed thereto by the Resolution.
3. The City acknowledges receipt from Raymond James Capital Funding,Inc.as original
purchaser of the Bond (the "Original Purchaser"), of the amount of$22,942,500, which amount
represents the principal amount of the Bond.less $57,500 of original issue discount.
4. Proceeds of the Bond in the amount of$22,942,500 have been deposited in the Series
2016 Project Construction Account created as required by the Resolution.
IN WITNESS WHEREOF,the City has caused this Certificate to be signed by its Vice-Mayor
as of the 18th day of November, 2016.
CITY OF BOYNTON BEACH, F _0
B ;
ice-Mayor
r
$23,000,000
CITY OF BOYNTON BEACH, FLORIDA
UTILITY SYSTEM REVENUE BOND, SERIES 2016
EXPANSION PROJECT CERTIFICATE
The undersigned Assistant City Manager-Public Services of the City of Boynton Beach,
Florida(the "City") does hereby certify on behalf of the City as follows:
1. This Certificate relates to the City's$23,000,000 Utility System Revenue Bond,Series
2016, dated November 18, 2016 (the "Bond") issued pursuant to Resolution No. 92-96 of the City,
as amended and supplemented (the "Resolution").
2. Terms used herein in capitalized form and not otherwise defined herein shall have the
meanings ascribed thereto by the Resolution.
3. The Project being financed with proceeds of the Bond may involve Expansion
Projects. However,it cannot be predicted with any reliability what percentage of the Bond proceeds
will be expended on Expansion Projects. Accordingly, the Expansion Project Percentage shall be
deemed to be zero until such time as the Consulting Engineers certify the percentage of the Project
that constitutes an Expansion Project.
Dated November 18, 2016.
CITY OF BOYNTON BEACH, FLORIDA
J j1
B 0
Y•
Assistant City Manae - Public Services
$23,000,000
CITY OF BOYNTON BEACH, FLORIDA
UTILITY SYSTEM REVENUE BOND, SERIES 2016
ADDITIONAL BONDS CERTIFICATE
The undersigned Assistant City Manager-Administrative Services of the City of Boynton
Beach, Florida(the "City") does hereby certify on behalf of the City as follows:
1. This Certificate relates to the City's$23,000,000 Utility System Revenue Bond,Series
2016, dated November 18, 2016 (the "Bond") issued pursuant to Resolution No. 92-96 of the City,
as amended and supplemented (the "Resolution").
2. Terms used herein in capitalized form and not otherwise defined herein shall have the
meanings ascribed thereto by the Resolution.
3. The Net Revenues for the twelve month period ended September 30, 2015 were
$21,974,069 ("A"). The Maximum Principal and Interest Requirements, including for the Bond,for
any future Fiscal Year are $6,818,433 ("B"). A divided by B is more than 1.10.
4. No event of default, as defined in Section 801 of the Resolution, and no event which
with the passage of time,the giving of notice or both would become an event of default,has occurred
within the 12 consecutive calendar months prior to the date of this Certificate and is continuing.
Dated November 18, 2016.
CITY OF BOYNTON BEACH, FLORIDA
By: <!a'' 207240
Assistant City Manager-Administrative Services
$23,000,000
CITY OF BOYNTON BEACH, FLORIDA
UTILITY SYSTEM REVENUE BOND, SERIES 2016
CERTIFICATE AS TO ARBITRAGE
AND OTHER TAX MATTERS
Tim Howard,the undersigned Assistant City Manager-Administrative Services of the City of
Boynton Beach,Florida(the"City"),being duly authorized and delegated,with others,to perform such
requirements as are necessary and proper for the issuance and sale of the City's above-referenced bond
(the "Bond"), does hereby certify and declare as follows:
I. IN GENERAL.
1.1. The Bond is being issued pursuant to and in accordance with Resolution No.
92-96 adopted by the City on June 16, 1992 as amended and supplemented,particularly by Resolution
No. R16-158, adopted by the City on November 15, 2016 (collectively, the "Bond Resolution"), in
order to provide funds to pay capital costs associated with the City's Utility System(as defined in the
Bond Resolution) (the "Project").
1.2. On November 18, 2016 (the "Issue Date")the City will issue and deliver(i.e.,
physical delivery of the Bond in exchange for the purchase price)the Bond,dated November 18,2016.
The first day on which there was a binding contract in writing for the sale of the Bond on specific
terms that were not later modified or adjusted in any material respect was November 18, 2016
(hereinafter, the "Sale Date").
1.3. I am an officer of the City who is duly charged, with others, with the
responsibility of issuing the Bond.
1.4. No obligations other than the Bond are being issued at substantially the same
time (within 15 days of the Bond) and sold pursuant to the same plan of financing and which are
reasonably expected to be paid out of substantially the same source of funds as the Bond.
1.5. This Certificate as to Arbitrage and Other Tax Matters(this"Certificate"),which
is made on behalf of the City, is executed for, among other things, the purposes of establishing the
reasonable expectations of the City as to future events relating to the amount and use of the proceeds
of the Bond and establishing limitations upon the investment of such proceeds. This Certificate is
being executed and delivered pursuant to Sections 148, 149 and 150 of the Code and the Income Tax
Regulations promulgated thereunder (hereinafter "Treas. Reg.") (collectively, the "Arbitrage
Regulations").
1:6. The facts, estimates, and circumstances set forth herein are based upon
representations made by the City, and to the best knowledge, information and belief of the
undersigned, such facts, estimates, and circumstances are true, correct and complete as of the date
hereof, and the City is not aware of any facts or circumstances that would cause it to question the
accuracy of the representations made herein; the expectations as to future events, which are based
thereon, are in all respects reasonable; and there are no other facts, estimates, or circumstances that
would materially change such expectations. On the basis of such facts, estimates, and circumstances,
it is not expected that the proceeds of the Bond will be used in a manner that would cause the Bond
to be an arbitrage bond under Section 148 of the Code and the Arbitrage Regulations.
II. THE GOVERNMENTAL PURPOSE OF THE BOND.
2.1. The Bond is being issued primarily to provide funds to finance the Project.
III. SOURCE AND DISTRIBUTION OF FUNDS.
3.1. The Bond is being sold to the Lender at a purchase price of$22,942,500.00,
representing the par amount of the Bond minus an original issue discount of$57,500.00.
3.2. The sale proceeds of the Bond will be applied as follows:
Costs of Project 22,876,670.00
Costs of Issuance 65,830.00
Total $22,942,500.00
2
IV. FUNDS AND ACCOUNTS.
4.1. The Bond Resolution establishes the following accounts:
An Enterprise Fund; and therein:
(a) a Revenue Account;
(b) a Reserve Account(which does not secure the Bond);
(c) a Rate Stabilization Account;
(d) a Subordinated Indebtedness Account;
(e) a Renewal and Replacement and Improvement Account;
(f) a General Reserve Account;
(g) a Sinking Fund Account; and therein:
(i) a Bond Service Subaccount, and
(ii) a Redemption Subaccount; and
(h) an Impact Fee Account.
Other than certain amounts in certain of the foregoing funds and accounts, there are no amounts that
are expected to be used directly or indirectly to pay debt service on the Bond,or which will be directly
or indirectly pledged to pay debt service on the Bond and for which there is a reasonable assurance that
such amounts will be available to pay debt service on the Bond, even in the event the City encounters
financial difficulties.
The City expects as of this date that the term of the Bond is not longer than is reasonably
necessary for the purpose of the issue,and the weighted average maturity of the Bond does not exceed
120%of the average reasonably expected economic life of the capital projects to be financed thereby.
4.2. Proceeds of the Bond will be deposited in the Series 2016 Account of the
Construction Fund and will be used to pay costs of the Project,including costs of issuance of the Bond.
The City expects that at least 85% of the net sale proceeds of the Bond will be expended by the end
of the three-year period beginning on the date of this Certificate. The City has incurred or reasonably
3
expects that it will within six months incur a binding obligation to a third-party in an amount at least
equal to 5%of the net sale proceeds of the Bond relating to the acquisition,construction and equipping
of the Project. The City expects that work on the Project will commence and will proceed with due
diligence to completion and that the allocation of net sale proceeds of the Bond to the Project will
proceed with due diligence.
Proceeds of the Bond deposited in the Series 2016 Account of the Construction Fund may be
invested at an unrestricted yield for a period not to exceed three years from the date of this Certificate.
Investment proceeds of the Bond on deposit in the Series 2016 Account of the Construction Fund may,
also be invested at an unrestricted yield for a period ending on the later of the date that is three years
from the date hereof or the date that is one year after original receipt of such earnings.
Any amounts in the Series 2016 Construction Fund which cannot be invested at an unrestricted
yield pursuant to this Section 4.2 shall be invested,if at all, in obligations that bear a yield not higher
than the yield on the Bond plus one-eighth of one percentage point.
4.3. Amounts that are expected to be used to pay debt service on the Bond,
including all amounts in the Debt Service Fund allocable to the Bond, are referred to herein as the
"Sinking Fund Proceeds." -
The Sinking Fund Proceeds constitute a fund that will be used primarily to achieve a proper
matching of revenues and debt service on the Bond within each Bond Year. The Sinking Fund
Proceeds will be depleted at least once each Bond Year except for a reasonable carryover amount
which will not exceed the greater of (A) the earnings on the Sinking Fund Proceeds for the
immediately preceding Bond Year or (B) one-twelfth of the debt service on the Bond for the
immediately preceding Bond Year.
The Sinking Fund Proceeds may be invested without regard to any yield restrictions for a period
ending not later than thirteen months from the date of receipt of such amounts.
4
Any Sinking Fund Proceeds which cannot be invested at an unrestricted Yield pursuant to this
Section 4.3 shall be invested, if at all, in obligations that bear a yield not higher than the yield on the
Bond plus one-thousandth of one percentage point.
4.4. Any amounts on deposit in the Enterprise Fund that do not constitute Sinking
Fund Proceeds and that are not elsewhere described in this Article IV maybe invested without regard
to any yield limitation with respect to the Bond.
4.5. Notwithstanding any provision of this Article IV to the contrary,to the extent
permitted by the Bond Resolution, amounts may be invested in obligations("tax-exempt bonds")the
interest on which is excluded from gross income pursuant to Section 103(a) of the Code, and which
are not specified private activity bonds (as defined in Section 57(a)(5)(c) of the Code), and/or in
investments that constitute"tax-exempt bonds"pursuant to Treas.Reg. §1.150-1(b)without regard to
any yield restriction.
V. YIELDS.
5.1. The yield on the Bond has been determined to be not less than 2.478%.
VI. ARBITRAGE REBATE.
6.1. In the Bond Resolution the City covenanted and agreed to comply with the
requirements applicable to it contained in Section 103 in Part IV of Subchapter B of Chapter 1 of the
Code to the extent necessary to preserve the exclusion of interest on the Bond from gross income for
federal income tax purposes. Specifically, the City covenanted and agreed to comply with the
requirements of Section 148 (f) of the Code concerning arbitrage rebate.
6.2. The City agrees to engage the services of one or more certified public
accountants or lawyers,or other consultants of expertise in the"arbitrage bond"provisions of the Code
and Treasury Regulations (the "Rebate Consultant")on or before the earlier of(i)November 1, 2021
or (ii) the date that the Bond is discharged in full. The City shall cause the Rebate Consultant to
5
perform such calculations as may be necessary to enable the City to comply with the provisions of the
Arbitrage Regulations and the Code.
6.3. The City covenants that, unless the Rebate Consultant advises the City that
an exception from arbitrage rebate applies, an amount which, when added to all previous rebate
payments made with respect to the Bond, equals (a) at least ninety percent of the rebate amount as of
each Installment Computation Date (hereinafter defined) and (b) all of the rebate amount as of the
Final Computation Date(hereinafter defined),shall be paid to the United States as hereinafter provided
from legally available funds of the City.Each rebate payment is required to be paid no later than sixty
days after the Installment Computation Date or Final Computation Date, as applicable. Payments of
rebate installments will be made to the Internal Revenue Service at such office as may be required by
law. The payments will be accompanied by Form 8038-T.
6.4. For purposes hereof,the term"Installment Computation Date"means the last
day of the fifth and each succeeding fifth Bond Year. Thus,the first Installment Computation Date is
November 1, 2021.
6.5. For purposes hereof, the term "Final Computation Date" means the date the
Bonds are fully discharged.
6.6. For purposes hereof,the term"Bond Year"means a one year period beginning
on and including November 2 and ending on and including the next succeeding November 1, except
that the first Bond Year begins on the date of issuance of the Bond and ends on November 1, 2017.
VII. HEDGE BONDS.
7.1. The City reasonably expects that at least 85%of the spendable proceeds of the
Bond will be spent for the governmental purposes thereof within a three year period beginning of the
date of issuance thereof, and that not more than 50% of the proceeds thereof will be invested in non-
purpose investments having a substantially guaranteed yield for four years or more.
6
VIII. MISCELLANEOUS.
8.1. Terms used herein in capitalized form and not otherwise defined herein shall
have the same meaning as ascribed thereto in the Bond Resolution and in the Arbitrage Regulations.
8.2. Anything in this Certificate to the contrary notwithstanding, if the Code or
Arbitrage Regulations should be modified or interpreted by the Treasury Department or by a court of
competent jurisdiction or held invalid by a court of competent jurisdiction and the affect of the
modification, interpretation, or invalidation is to make unnecessary to any extent the limitations on
yield on acquired obligations stipulated in this Certificate as a requirement of the exclusion of the
interest on the Bond from gross income of the owners thereof for Federal income tax purposes,then
to that extent such stipulation shall be ineffective. The City, however, shall not take any action
pursuant to this paragraph without a prior written opinion of Bond Counsel that such action would not
adversely affect the tax-exempt status of interest on the Bond.
8.3. If an action causes the Bond to meet the private business tests or the private
loan financing test described in Section 1.141-12 of the United States Treasury Regulations,the City
will consult with Bond Counsel regarding taking a"remedial action"as described in such Regulation.
Dated November 18, 2016
CITY OF BOYNTON BEACH, FLORIDA
By: tt)74'P
Assistant City Manager-Administrative Services
7
MARK E. RAYMOND 4360 NORTHLAKE BOULEVARD
ATTORNEY AT LAW SUITE 204
PALM BEACH GARDENS, FL 33410
Tel: 561.775.8440
Fax: 561.775. 8442
mark.raymond@mraymondlaw.cam
November 18, 2016
Internal Revenue Service Center
Ogden,Utah 84201
RE: $23,000,000 City of Boynton Beach, Florida Utility System Revenue Bond,
Series 2016
Dear Sir/Madam:
Enclosed please find Form 8038-G which relates to the above-referenced Bond. Please
acknowledge your receipt by sending me Notice CP 152.
Very truly yours,
//V
(;)
Mark E. Raymond
Form 8038-G Information Return for Tax-Exempt Governmental Obligations
(Rev.September 2011) ►Under Internal Revenue Code section 149(e) OMB No.1545-0720
►See separate instructions.
Department of the Treasury Caution:If the issue price is under$100,000,use Form 8038-GC.
Internal Revenue Service
Part.I Reporting Authority If Amended Return, check here ► ❑
1 Issuer's name 2 Issuer's employer identification number(EIN)
CITY OF BOYNTON BEACH,FLORIDA 59-6000282
3a Name of person(other than issuer)with whom the IRS may communicate about this return(see instructions) 3b Telephone number of other person shown on 3a
MARK E RAYMOND 561-775-8440
4 Number and street(or P.O.box if mail is not delivered to street address) Room/suite 5 Report number(For IRS Use Only)
4360 NORTHLAKE BLVD. 204 13 n—71
6 City,town,or post office,state,and ZIP code 7 Date of issue
PALM BEACH GARDENS,FL 33410 11-18-2016
8 Name of issue 9 CUSIP number
Utility System Revenue Bond,Series 2016 NONE
10a Name and title of officer or other employee of the issuer whom the IRS may call for more information(see 10b Telephone number of officer or other
instructions) employee shown on 10a
Tim Howard,Asst.City Manager-Administrative Services 561-742-6311
Part II Type of Issue (enter the issue price). See the instructions and attach schedule.
11 Education 11
-12 Health and hospital 12
13 Transportation 13
14 Public safety 14
15 Environment(including sewage bonds) 15
16 Housing 16
17 Utilities 17 23,000,000 00
18 Other. Describe O. 18
19 If obligations are TANs or RANs,check only box 19a ► ❑ '
If obligations are BANs,check only box 19b ► ❑
20 If obligations are in the form of a lease or'installment sale, check box ► ❑
Part Ill Description of Obligations. Complete for the entire issue for which this form is being filed.
- (a)Final maturity date (b)Issue price (c)Stated redemption (d)Weighted (e)Yield
price at maturity average maturity
21 11/01/2031 $ 22,942,500 $ 23,000,000 10.2958 years 2.478 %
Part IV 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 22,942,500 00
24 Proceeds used for bond issuance costs(including underwriters'discount) . . 24 65,830 00
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
28 Proceeds used to advance refund prior issues 28
29 Total (add lines 24 through 28), 29 65,830 00
30 Nonrefunding proceeds of the issue(subtract line 29 from line 23 and enter amount here) . . 30 22,876,670 00
Part V Description of.Refunded Bonds. Complete this part only for refunding bonds.
31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . . ► years
32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years
33 Enter the last date on which the refunded bonds will be called(MM/DD/YYYY) ►
34 Enter the date(s)the refunded bonds were issued►'(MM/DD/YY(Y)
For Paperwork Reduction Act Notice,see separate instructions. Cat.No.63773S Form 8038-G(Rev.9-2011)
Form 8038-G(Rev.9-2011) Page 2
Part VI 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
(GIC)(see instructions) 36a
b Enter the final maturity date of the GIC►
c Enter the name of the GIC provider►
37 Pooled financings: Enter the amount of the proceeds of this issue that are to be used to make loans '
to other governmental units 37
38a If this issue is a loan made from the proceeds of another tax-exempt issue,check box► Eland enter the following information:
b Enter the date of the master pool obligation►
c Enter the EIN of the issuer of the master pool obligation►
d Enter the name of the issuer of the master pool obligation►
39 If the issuer has designated the issue under section 265(b)(3)(B)(i)(III)(small issuer exception),check box . . . ► ❑
40 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box ► ❑
41a If the issuer has identified a hedge, check here► ❑ and enter the following information:.
b Name of hedge provider►
c Type of hedge►
d Term of hedge►
42 If the issuer has superintegrated the hedge,check box ► ❑
43 If the issuer has established written procedures to ensure that all nonqualified bonds of this issue are remediated
according to the requirements under the Code and Regulations(see instructions), check box ►
44 If the issuer has established written procedures to monitor the requirements of section 148,check box ►
45a If some portion of the proceeds was used to reimburse expenditures,check here► ❑ and enter the amount
of reimbursement ►
b Enter the date the official intent was adopted►
Under penalties of perjury,I declare that I have examined this return and accompanying schedules and statements,and to the best of my knowledge
Signature and belief,they are t -, • rec,-.• -.mplete.I Fttie ec• e that I consent to the IRS's disclosure of the issuer's return information,as necessary to
and process this -t rd the•_ •' I h. - -•abo -.
Consent ' 11/ 8/2016 Mack McCray,Vice-Mayor
' .- - • issuer's author d repr Date 'Type or print name and title
Paid Print/Type preparer's name - PTIN
Pre er's signature to Check ❑✓ if
Preparer MARK E RAYMOND 11/18/2016 self-employed p01305240
Use Only Firm's name ► MARK E RAYMOND f Firm's EIN ►
Firm's address ► 4360 northlake blvd;ste 204;palm beach gardens4l 33410 Phone no. 561-775-8440
Form 8038-G(Rev.9-2011)
GOREN CHEROF
James A.Cherof DOO DY & EZ RO L P.A.
jcherof@cityatty.com ATTORNEYS E Y S AT LAW
November 18, 2016
Raymond James Capital Funding, Inc.
710 Carillon Parkway
St. Petersburg, FL 33716
City of Boynton Beach, Florida
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33435
Re: $23,000,000 City of Boynton Beach, Florida
Utility System Revenue Bonds, Series 2016
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
$23,000,000 Utility System Revenue Bond, Series 2016, dated November 18, 2016 (the
"Bonds").
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. Terms used herein and note otherwsie defined herein have the meanings ascribed thereto
by Resolution No. 92-96 adopted by the City Commission on June 16, 1992, as amended and
supplemented, particularly as supplemented by Resolution No. R16-158, adopted by the City
Commission on November 15, 2016 (collectively, the "Resolution").
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 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
{00158352.1306-9905242) Please reply to Fort Lauderdale Office
Fort Lauderdale Office
3099 E.Commercial Blvd.,Suite 200,Fort Lauderdale,FL 33308. T 954-771-4500 I F 954-771-4923
Delray Beach Office
76 N.E.Fifth Avenue,Delray Beach,FL 33483. T 561-276-9400
www.cityatty.com
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;
(ii) 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 to the best of our knowledge
after due inquiry of responsible City officials, 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 validity
of the Bonds or the Resolution or the result of which would materially adversely affect the
operations or financial condition of the City or of the Utility System; and
(iii) 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 and the
Resolution 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.
(iv) The City is a political subdivision of the State of Florida, duly organized and validly existing
and has full legal right, power and authority to adopt and perform its obligations under the
Resolution and the resolutions and ordinances levying the rates and charges for the use of the
Utility System (the "Rate Instrument") and to authorize, execute and deliver and to perform its
obligations under the Resolution and the Bond.
(v) The adoption of the Resolution and the adoption and/or enactment of the Rate Instrument,
and compliance with the provisions thereof, will not conflict with, or constitute a breach of or
default under, any law, administrative regulation, consent decree, ordinance or resolution or, to
the best of my knowledge, any agreement or other instrument to which the City was or is subject
as the case may be, nor will such enactment, adoption, execution, delivery, authorization 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 City, or under
the terms of any law, administrative regulation, ordinance, resolution or instrument, except as
expressly provided by the Resolution.
(vi) The City is lawfully empowered to pledge and grant a lien on, and has pledged and granted a
lien on the Pledged Revenues for payment of the principal of, redemption premium, if any, and
interest on the Bond.
(vii) The City has lawful authority to operate the Utility System and to determine, fix and collect
rates and charges for use of the Utility System and to determine, fix and collect Impact Fees in
the manner provided in the Rate Instrument.
(00158352.1 306-9905242)
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 constitutional power of the United States of America.
Goren, Cherof, Doody & Ezrol, P.A.
e4/3/1 4c2irqkg-f
{00158352.1 306-9905242)
MARK E. RAYMOND 4360 NORTHLAKE BOULEVARD
ATTORNEY AT LAW SUITE 204
PALM BEACH GARDENS, FL 33410
Tel: 561.775.8440
Fax: 561.775.8442
mark.raymond@mraymondlaw.bom
November 18, 2016
City of Boynton Beach, Florida
Raymond James Capital Funding, Inc.
Re: City of Boynton Beach, Florida
$23,000,000 Utility System Revenue Bond, Series 2016
Ladies and Gentlemen:
I have acted as bond counsel in connection with the issuance and sale by City of Boynton
Beach,Florida(the "City") of its$23,000,000 aggregate principal amount Utility System Revenue
Bond, Series 2016 (the "Bond"). The Bond is issued pursuant to the Constitution and Laws of the
State of Florida, particularly the Charter of the City, Article VIII, Section 2, Florida Constitution
and Chapter 166, Florida Statutes (collectively, the "Act"), and Resolution No. 92-96 adopted by
the City Commission of the City on June 16, 1992, as amended and supplemented, particularly as
supplemented by Resolution No. R16-158, adopted by the City Commission of the City on
November 15,2016 (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, I have examined a certified copy of the
Resolution and am relying on the representations, covenants and agreements of the City contained
therein.
I 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, prospectus or official
statement, and is not intended in any way to be a disclosure document used in connection with the
sale or delivery of the Bond.
The opinions set forth below are expressly limited to, and I 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,I am of the opinion as of the date hereof and under
existing law, as follows:
1. The City is a duly created and existing municipal corporation and political
subdivision of the State of Florida.
- a
November 18, 2016
Page 2
2. The Resolution has been duly adopted by the City and constitutes a valid and
binding obligation of the City, enforceable in accordance with its terms.
3. The Bond has been duly authorized, executed and delivered by the City and is a
valid and binding obligation of the City, payable solely from the sources provided therefor in the
Resolution.
4. The interest on the Bond is excluded from gross income of the Registered Owner
thereof for federal income tax purposes and is not an item of tax preference described in Section
57 of the Internal Revenue Code of 1986, as amended (the "Code") for purposes of the federal
alternative minimum tax imposed on individuals and corporations. Such interest is required to be
taken into account in determining adjusted current earnings for purposes of calculating the
alternative minimum taxable income of corporations. The opinions expressed in this paragraph are
conditioned upon continuing compliance by the City 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 interest on the Bond from gross income
for federal income tax purposes. Failure by the City to comply with such requirements could cause
the interest on the Bond to be included in gross income for federal income tax purposes retroactive
to the date of issuance of the Bond. Other provisions of the Code may give rise to collateral federal
income tax consequences (which may be adverse) to particular owners. 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 Bond.
5. The Bond is exempt from all present excise taxes on documents imposed by the
State of Florida.
My opinions expressed herein are predicated upon present laws and interpretations
thereof. I 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 Bond after the date hereof. It is to be understood that
the rights of owners of the Bonds and the enforceability of the Bond 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.
This letter does not create any attorney-client relationship where one would not otherwise
exist.
Very truly yours,
Mark E. Raymond
300 S.Orange Avenue Telephone:(407)648-2208
AnmeSuite 1170 Fax:(407)648-1323
PPM' Orlando,FL 32801 www.pfm.com
The PFM Group
�— Financial&Investment Advisors
November 18,2016
Closing Memorandum
To: City of Boynton Beach Working Group
From: Public Financial Management,Inc.
Re: City of Boynton Beach,Florida
$23,000,000 Utility System Revenue Bond,Series 2016
This memorandum describes the flow of funds that is to occur for the closing of the Utility System
Revenue Bond, Series 2016 (the "2016 Bond"). The closing for the 2016 Bond is to occur on the
morning of November 18,2016. Unless otherwise noted, all funds will be delivered in same day funds
(Federal Funds).
Closing: November 18, 2016
Once the wire has been confirmed via e-mail by Mara Frederiksen, bond
counsel will deem the transaction closed.
If you have any questions regarding closing or require any additional information, please call Jay
Glover at (407) 406-5760 or Tyler Calderone at (407) 406-5764.
I. Purchase Price and Bond Transfer
The purchase price of the 2016 Bonds is $22,942,500.00, which reflects the principal amount of the
2016 Bond of$23,000,000.00 less the Bank Commitment Fee/Original Issue Discount in the amount
of$57,500.00.
Par Amount $ 23,000,000.00
- Bank Commitment Fee (57,500.00)
Purchase Price $ 22,942,500.00
City of Boynton Beach,FL
Closing Memorandum
umnimot
November 18,2016
Page 2
II. Wiring Instructions from Raymond James Capital Funding, Inc. to the City
Project Fund $ 22,876,670.00
Cost of Issuance 65,830.00
Wire Amount $ 22,942,500.00
Wire from Raymond James Capital Funding,Inc. to the City $22,942,500.00
Bank of America
ABA Number: 026 009 593
BNF: City of Boynton Beach Treasurer's Fund
Beneficiary A/C: 001 611 435 311
Ref: City of Boynton Beach—Utility System Revenue Bonds, Series 2016
Atm: Mara Frederiksen (561) 742-6312
III. Estimated Cost of Issuance
Cost of Issuance $/1000 Amount
Bond Counsel Fee 0.95000 21,850.00
City Attorney Fee 0.63609 14,630.00
Financial Advisor Fee 0.95000 21,850.00
Bank Counsel Fee 0.32609 7,500.00
Total 2.86217 65,830.00
CITY OF BOYNTON BEACH, FLORIDA
By: Tim Howard,Assistant City Manager—Administrative Services