R92-102OF $60,255,000 AGGREGATE PRINCIPAL AMOUNT OF
UTILITY SYSTEM REVENUE BONDS, SERIES 1992;
FIXING AND DETERMINING THE PRINCIPAL AMOUNT,
INTEREST RATES, MATURITY 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 PREPARATION, APPROVAL AND
EXECUTION OF A FINAL OFFICIAL STATEMENT IN
CONNECTION WITH SUCH BONDS; AUTHORIZING THE
EXECUTION OF 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 S~WER UTILITY REVENUE
BONDS; AUTHORIZING THE PURCHASE OF A 8OND
INSURANCE POLICY AND MAKING CERTAIN COVENANTS
IN CQNNECTION 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
WNEREAS, 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 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 1992
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 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 City and 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 desirable to ratify 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 1992 8onds; 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 8n 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.
-2- 6007M
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF BOYNTON BEACH, FLORIDA:
Section i. Authority for this Resolu~iQn. 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. Defini~iQn~. 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 1992
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 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 1992 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 of issuing 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 form of the Bonds set forth in the Bond
Resolution, with suck changes as may be necessary os 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
-3- 6007M
officers of the City executing the Series 1992 Bonds,
execution to be conclusive evidence of such approval.
such
(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 aggre§ate 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 rates pez 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, 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
920,000 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 5.600
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 Bcnds 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 owne~
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.
-4- 60~7M
(c) Mandatory Redemption. The Series 1992 maturing in the
yea~ 2012 (the "2012 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 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 forth below:
2012 Term Bonds
Year Amount
2007 $2,055,000
2008 2,180,000
2009 2,320,000
20t0 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 amount thereof plus accrued interest thereon to
the redemption date, on November t in such years and in the
principal amounts (the "Amortization Requirements") as set forth
below:
2020 Term Bonds
Year Amount
2013
2014
2015
2016
2017
2018
2019
2020 (Maturity)
$2 715,000
2 885,000
3 060,000
3 255,000
3 460,000
3 675,000
3 905,000
4 150,000
If prior to any November 1 the City shall purchase for
cancellation or redeem 2012 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
-5- 6007M
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 8onds ox
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 Redemotion. 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 thei~ 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 t,
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 the redemption date as follows:
Redemption Period (both dates inclusive)
Redemption Prices
November 1, 2002 to October 31, 2003
November 1, 2003 to October 31, 2004
November 1, 2004 and thereafter
102%
101
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 insurance policy issued by the 1992 Bond
Insurer that guarantees .payment of principal of and
interest on the Series 1992 Bonds.
-6- 6007M
"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:
'Credit Facility' shall mean the Bond Insurance Policy
and an irrevocable letter of credit, policy of municipal
bond insurance, guaranty, purchase agreement, credit
agreement, surety bond or similar facility in which the
entity providing such facility irrevocably agrees to
provide funds to make payment of the principal of and
interest on Bonds provided that such entity is at the
time of providing such facility of sufficient credit
quality to entitle debt backed by its Credit Facility to
be rated in one of the two highest long-term rating
categories (without regard to any gradations within such
categories) by both Standard & Poor's Corporation and
Moody's Investors Service, Inc."
(c) 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 mesn 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 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 acceunting 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
-7-
60D7M
Rate Swap (as opposed to p~nts 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, 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 on and redemption premium, if
any, on which are irrevocably secured by obligations
described in clause (i) of this definition and which
obligations have been deposited in an escrow account
which is irrevocably pledged to the payment of the
principal of, interest on and redemption premium, if
any, of such municipal obligations which are rated in
the highest rating 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 "Ne~ 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 %he 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 respect to 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 Bu-er
25-Bond Revenue Index over the twelve months preceding
the date of calculation;"
(h) Section 102 of the Bond Resolution is amended in its
entirety to provide as follows:
-9- 6007M
"Section 102. Rules of Q~nS~ruction, Words of the
masculine gender shall be deemed and construed to
include correlative words of the feminine and neute~
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,
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." 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, o~, with respect to Additional Bonds issued
to pay debt service on Utility Debt, described in (ii)
below: (i) prepared by the Consulting Engineers and
demonstrating that the percentage derived by dividing
the Net Revenues projected for the 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 derivsd
by dividing the Net Revenues for any period of twelve
-10- 6007M
consecutive months selected by the City out of the
twenty-fouz months preceding the delivery of such
written statement or report, by the Maximum Principal
and Interest Requirements, including the Principal and
Interest Requirements with respect to the Additional
Bonds then to be delivered, for any future Fiscal Year
is not less than one hundred ten per centum (110%),
provided, that for purposes of this clause (c)(ii), Net
Revenues 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
addition thereto of a final paragraph providin9 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
notice sufficient funds shall have been deposited with
the Bond Registrar to pay the Redemption Price of the
Bonds to be redeemed."
(k) Section 401 of the Bond Resolution is amended by
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
amended in their 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
installment of principal on all Serial Bonds then
the
the
are
-11- 6007M
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 amount which when multiplied
by the number of deposits to the crsdit of the Bond
Service Subsccount required to be made during such
respective periods as provided above will equal the
amounts required (in addition to any amounts received as
accrued interest or capitalized interest from the
proceeds of such Bonds) for such next succeeding
interest payment and next maturing installment of
principal, respectively; and provided further that on or
before the 15th day of the month preceding any Interest
Payment Date or maturity date of Bonds, the required
deposit to the Bond Service Subaccount shall be the
amount necessary, together with other amounts on deposit
in such Subaccount, to provide for the interest and
principal coming due on such Interest Payment Date or
maturity date.
(b) To the credit of the Redemption Subaccount of the
Sinking Fund Account, an amount, together with any
amount concurrently deposited therein from the Impact
Fee Account, equal to one-twelfth (1/12) 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 Term Bonds of
each Series then outstanding required to be retired, in
satisfaction of the Amortization Requirements, if any,
for such Fiscal Year, provided, that on or before the
20th day of the month preceding the due date of any
Amortization Requirement, the required deposit to the
Redemption Subaccount shall be the amount necessary,
together with other amounts on deposit therein, to
provide for such Amortizmtion Requirement."
(m) Section 513(f) of the Bond Resolution is amended in
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
for such 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
its
-12- 6007M
hereinafter adjusted for the purposes of this Section
513Cf)) 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)) for the preceding Fiscal Year. For purposes of
this Section 513(f), "Net Revenues" for any Fiscal Year
shall be calculated 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 ~he Bonds shall have been paid or on such earlier
date as 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
provide as follows:
"Secfion 716.
For so long
outstanding:
Provisions concernin~ 1992 Bond Insurer.
as the Bond Insurance Policy shall be
(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 Articla 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 defaulz,
which notice the City shall be required to accept,
~o
-13- 6007M
(d) in determining whether the rights of
Bondholders are adversely affected by actions taken
pursuant to the te~ms and provisions hereof, no
effect shall be given to payments made under the
Bond Insurance Policy,
(e) no amendment or supplement to the Resoluhion
shall be effective without the prior written
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 with a full transcript of all proceedings
relating to the execution of any supplemental
resolution.
(f)
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 not provided
the amount of such deficiency, the Bond
Registrar shall simultaneously make
available to the 1992 8ond Insurer and to
the Fiscal Agent the registration books
for the Series 1992 Bonds maintained by
the Bond Registrar. In addition:
(A)
principal
the 1992
terms of
and shall
1992 Bond
Agent (1)
The Bond Registrar shall provide the
1992 Bond Insurer with a list of the
Bondholders entitled to receive
or interest payments from
Bond Insurer under ~he
the Bond Insurance Policy
make arrangements for the
Insurer and its Fiscal
to mail checks or drafts
to Bondholders entitled to receive
full or partial interest payments
from the 1992 Bond Insurer and (2)
to pay principal of the Bonds
-14- 6007M
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 (A) 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 %he 1992 Bo~d
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
first to the Bond Registrar, which
shall note on such Series 1992 Bond
the portion of principal paid by 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
-15- 6007M
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 1992 Bond Insurer, notify
all Bondholders that in the event that
any Bondholder's payment is so recovered,
such Bondholder wilt be entitled to
payment from the 1992 Bond Insures 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 Registra~ 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
or interest on the Series 1992 Bonds,
become subrogated to the rights of the
recipients of such payments in accordance
with the terms of the 8ond 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 as subrogee on the
registration books maintained by 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 8onds 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 ex~snt that the
1992 Sond Insurer is a subrogee with
respect thereto."
-16- 6007M
Until
After
(g) The notice addresses for the 1992 Bond Insurer
and the Fiscal Agent shall be as follows:
September 4,
Financial
1992:
175 Water Street
New York, New York
Attention: General
Guaranty Insurance Company
10038
Counsel
September 4,
1992:
115 Broadway
New York, New York, 10006
Attention: General Counsel
Citibank, N.A.
20 Exchange 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 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
additional debt, whether or not it is on
a parity with the insured issue, within
30 days after the sale thereof;
(iii)
(iv)
a notice of any draw upon or deficiency
due to market fluctuation in the amount,
if any, on deposit in the Reserve Account;
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:
-17- 6007M
<i)
(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 da%e; 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.
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:
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
"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.
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 hhe
form and substance of such instrument and the
issuer thereof shall be approved by the 1992
Bond Insurer.
An unconditional irrevocable letter of credit
issued to the Fiduciary, as agent of the
Bondholders, by a bank may be deposited in the
Reserve Account to meet the Reserve Account
Requirement if the issuer thereof is rated at
least "AA" by S&P· The letter of credit shall
be payable in one or more draws upon
presentation by the beneficiary of a sight
-18- 6007M
draft accompanied by its certificate that it
then holds insufficient funds to make a
required payment of principal or interest on
bonds. The draws shall be payable within two
days of presentation of the sight draft. The
letter of credit shall be for a term of not
less than three years. The issuer of the
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 ox 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.
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 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 nor 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 tsws
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).
The obligation to reimburse the issuer of s
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 s
Reserve Account credit instrument to payment
or reimbursement of its fees and expenses
shall be subordinafed 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
-20-
6007M
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.
If (a) the revolving reinstatement feature
described in the preceding paragraph is
suspended or terminated or (b) the rating of
the claims paying ability of the issuer of the
surety bond or insurance policy falls below a
S&P "AAA" or a Moody's "Aaa" or (c) the rating
of the issuer of the letter of credit falls
below a S&P "AA", the City shall either (i)
deposit into the Reserve Account an amount
sufficient to cause the cash or permitted
investments on deposit in the Reserve Account
to equal the Reserve Account Requirement on
all outstanding Bonds, such amount to be paid
over the ensuing five years in equal
installments deposited at least semi-annually
or (ii) replace such instrument with a surety
bond, insurance policy or letter of credit
meeting the requirements in any of 1-3 above
within slx 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 issusr 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 Issue~r 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 ~equirements in any of
1-3 above within six months of such occurrence.
Where applicable, the amount available for
draws or claims under the Reserve Account
credit instrument may be reduced by the amount
-21- 6007M
9 o
10.
of cash of permitted investments deposited in
the Reserve Account pursuant to clause (i) of
the preceding subparagraph 6.
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.
The Resolution shall require the Fiduciary to
ascertain the necessity for s 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 s draw
under the Reserve Account credit instrument)
prior to each interest payment date.
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, tf 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 8ond Resolution is amended by
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.
the
-22- 6007M
(p) Clause (i) of Section 801 of the Bond Resolution is
amended to provide as follows:
"(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
and such default shall continue for thirty (30) days
after written notice specifying such default and
requiring the same to be remedied shall have been given
to 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, it shall not
constitute an event of default if the City shall begin
to remedy such default within such thirty-day period and
the issuer of each Credit Facility then outstanding
hsreunder shall have given its written consent to the
extension of such thirty-day period.
Section 6. Approval of Sale of the Series 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 citizens and
inhabitants of the City by reason of the volatility of 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
$58,897,272.93, plus accrued interest from June 15, 1992 to the
date of delivery, with the date of delivery to follow in the
manner and at the time and subject to the conditions set forth in
the Bond Purchase Agreement. The Original Purchasers have filed
with the City the disclosure statement required by Section
218.385(4), Florida Statutes, and the competitive bidding for the
Series 1992 Bonds is hereby waived pursuant to the authority of
Section 218.385(1), Florida Statutes.
Attached hereto as Exhibit "A" is a form of Bond Purchase
Agreement (the "Bond Purchase Agreement"). The City approves the
Bond Purchase Agreement and the Mayor is hereby authorized and
directed for and in the name of the City to execute, and the City
Clerk is authorized to attest to and affix the seal of the City to
and deliver the Bond Purchase Agreement to the Original Purchasers.
Section 7. Execution and Detiver¥ of the Series 1992 Bonds.
The Mayor and the City Clerk are hereby authorized and directed on
behalf of the City to execute the Series 1992 Bonds as provided in
the Bond Resolution and such officials are hereby authorized and
directed upon the execution of the Series 1992 Bonds in the form
-23- 6007M
and manner set forth herein and in the Bond Resolution to deliver
the Series 1992 Bonds in the amount authorized to be issued
hereunder to the Bond Registrar for authentication (upon the
satisfaction of the conditions of Section 208 of the Bond
Resolution) and delivery to or upon the order of the Original
Purchasers upon payment of the purchase price set forth herein.
Section 8. Application of Series 1992 Bond Proceed$.
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
(b) Deposit to the Bond Service
Subaccount
(c) Deposit to Series 1992 Project
Construction Account
(d) Deposit in Escrow Deposit Trust Fund
(e) Payment of Issuance Expenses
77,706.75
367,951.64
2,500,000.00
55,853,002.45
147,388.91
No deposit shall be made pursuant to Section 208(c) of the
Bond Resolution.
Section 9. Bond Reqistrar. 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 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 Statemenk. 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 s
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 ~o be conclusively established by such execution, is
hereby authorized, and upon preparation thereof the Mayor and the
-24- 6007M
City Manager are authorized and directed for and in the name of
the City to execute and deliver the Official Statement.
Section 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 are currently 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 be called 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 directs that at
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 ~edemption 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 therezn 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. 85-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;
(B) 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 sh~ll be
deposited in the Escrow Deposit Trust Fund under %he
Escrow Deposit Agreement;
(C) The amount in the renewal and replacement fund shall
be deposited in the Renewal, Replacement and Improvement
Account;
-25- 6007M
(D) Amounts in ~he general reservs fund shall be
transferred to the general reserve account;
(E) Amounts in ~he impact fee fund shall be transferred
to the Impact Fee Account;
(F) Amounts in the revenue fund shall be transferred Lo
the Revenue Fund.
(G) Amounts held in the 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 Aareemen~. 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 of such approval.
Section 13. Forward 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 Forwsrd 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. 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
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 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 1992
Bonds, payment of interest for the Series 1992 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.
-26- 6007M
Beneficial owners of the Series 1992 Bonds will not receive
physical delivery of Series 1992 Bond certificates nor will they
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 direcfed to execute a
letter of representations in the form attached hereto as
Exhibit "F" and to comply with the provisions thereof.
Section 16. CommlianQe with Tax Requirements. The City
hereby covenants and agrees, for the benefit of the B~ndholders
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 Subchspter 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
for federal income tax purposes. Specifically, withou~ 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 an~ other legally available funds, mt
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 Secfion 148(f)(~)
of the Code) (other than investments attributed to ~n
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(8) 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 Part IV of Subchapter B of Chapter 1 of the
Code so long as such requirements are applicable.
-27- 6007M
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 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 17. Authorizations. The Mayor, the City Clerk, the
Finance Director, the Assistant Finance Director. the City Manager
and the Assistant City Manager are hereby jointly and severally
authorized to do all aces 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 148 of 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 authorized for and on behalf of the City
to subscribe for United States Treasury Certificates of
Indebtedness, Notes, and/or Bonds -- State and Local Government
Series, in connection with the refunding of the prior Bonds.
Section 18. Holidays. In any case where the date of maturity
of interest on 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 of principal, premium, if any, or interest need
not be made on such date but may be made on the next succeeding
Business Day, with the same force and effect as if made on the
date of maturity or the date fixed for redemption.
Section 19. Resolution to Constitute a Contract. In
consideration of the purchase and acceptance of the Series 1992
Bonds authorized to be issued hereunder by those who shall be the
holders thereof from time to time, this Resolution shall
c~nstitute a contract between the City and such holders, and all
coivenants and agreements herein and in the Bond Resolution set
forth to be performed by the City shall be for the equal benefit
a~d security of all of the holders.
SeCtion 20. No Implied Beneficiary. With the exception of
any rights herein expressly conferred, nothing expressed or
melntiOned in or to be implied from this Resolution or the Series
i9~92 Bonds is intended or shall be construed to give any person
other than the City, the Original Purchasers, the 1992 Bond
InlSurer and the OWners, any legal or equitable right, remedy or
claim under or with respect to this Resolution or the Bond
-28- 6007M
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.
Section 21. Severabilit¥. 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. Ail Resolutions or parts thereof of
tke City in conflict with the provisions herein contained or, to
the extent of any such conflict, hereby superseded and repealed.
Section 23. Effective Date. This Resolution shall take
effect immediately upon its adoption.
Section 24. Repeal 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 provided for the payment of the
Refunded Bonds in accordance with Section 11.01 of Resolution No.
85-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:
Ci~ Clerk
APPROVED~S ~/~ .
AND LE~.S,~F~j~CY.
-29- 60G7M
6007M/30
Bond
EXHIBIT "A"
Purchase Agreement
(SEE CENTRAL PILES)