R92-96HESOLUTION ND. 92-
A RESOLUTION AUTHORIZING THE 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 SELECTED REDEMPTION DATE OR
DATES ALL OF THE OUTSTANDING WATER AND SEWER
REVENUE BONDS OF THE CITY AND FOR THE
PURPOSE OF PAYING A PORTION OF THE COST (AS
DEFINED HEREIN) OF INIPROVEMENTS 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
REVENEE BONDS AND UTILITY DEBT; PROVIDING
FOR THE INCURRENCE OF OTIiER 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 T~
DEBT AND THE INTEREST THEREON NET
REVENUES OF THE C~Tif'S
CERTAIN ~ ~
RIGHTS AND OF SUC~
A
CLAUSE, A ~ION
DATE.
WHEREAS, the City of Boynton Beach, Florida (the "City") is
a political subdivision and public body politic asd corporate in
Palm Beach County, Florida (the "County"), duly organized and
operating under the Constitution and laws of the State of
Florida (the "State"), including particularly Chapter 166,
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, and its Water and Sewer Utility Revenue Bonds, Series 1990
(caltectively, the "Prior Bonds"); and
5869M/65
Section 806.
Section 807.
Section 808.
Section 809.
TABLE OF CONTENTS
(CONTINUED)
Restrictions on Individual
Actions
No Remedy Exclusive
Delay Not a Waiver
Right to Enforce Payment of
Bondholder
Bonds
Pag~
98
98
98
99
Section 901.
Section 902.
ARTICLE IX
EXECUTION OF INSTRUMENTS BY BONDHOLDERS
AND PROOF OF OWNERSHIP OF BONDS
Execution of Instruments by Bondholders~
and Proof of Ownership of Bonds
Bond Insurer Deemed Holder
99
99
Section 1001.
Section 1002.
Section 1003.
ARTICLE X
SUPPLEMENTAL RESOLUTIONS
Supplemental Resolutions without
Bondholders' Consent
Supplemental Resolutions with
Bondholders' Consent
Supplemental Resolutions Part of
Resolution
100
101
102
Section 1101.
ARTICLE XI
DEFEASANCE
Cessation of Interests of
Bondholders
102
Section 1201.
Section 1202.
Section 1203.
Section 1204.
Section 1205.
Section 1206.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Effect of Covenants
Manner of Giving Notice
Successorship of Bond Registrar
Successorship of City Officers
Inconsistent Resolutions
Further Acts
105
105
106
106
106
106
5869M/66
Section 1207.
Section 1208.
Section 1209.
Section 1210.
TABLE OF CONTENTS
~CONTINUED)
He~dings Not Part of Resolution
City and Bondholders Alone Have
Under Resolution
Effect of Partial Invalidity
Resolution Effective
Rights
Paqe
106
107
107
107
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 certain amounts in the funds
created hereby (all of such Net Revenues, Impact Fees and other
amounts being referred to herein as the "Pledged Revenues"); and
WHEREAS, the City has 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 m new resolution that
will better provide for the operational and capital requirements
of the Utilify System and of obtaining debt service savings for
the City; and
WHEREAS, certain mmprovemen%s to the Utility System
consisting of the Project (as hereinafter defined) are necessary
and desirable for the furtherance of the health, safety and
welfare of the users 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 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 or to refund
or refinance all or s portion of the Bonds or any Series thereof
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
City of Boynton Beach, Florida as follows:
of the
ARTICLE I
DEFINITIONS
Section 101. Meanin~ of Words and Terms. In addition to
words and terms elsewhere defined in this Resolution, the
following words and terms as used in this Resolution shall have
the following 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
to the principal amount of such Bond (the principal amount on
the date of original issuance), plus the interest accrued on
such Bond from the date of original issuance to the Interest
Payment Date next preceding the date of computation or the date
of computation if an Interest Payment Date, compounded
periodically at the times provided for in the Series Resolution
authorizing the issuance of such Bonds, and if such date of
computation is not an Interest Payment Date, a portion of the
difference between the Accreted Value as of the immediately
preceding Interest Payment Date (or the date of original
issuance if such date of computation is prior to the first
Interest Payment Date) and the Accreted Value as of the
immediately succeeding Interest Payment Date, calculated based
on the assumption that Accreted Value accrues during any
semi-annual period in equal daily amounts on the basis of a year
of twelve 30-day months.
"Additional Bonds" shall mean the Bonds issued at any time
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 indebtedness and leases capitalized in accordance with
generally accepted accounting principles) incurred in accordance
with Section 212 of this Resolution.
"Amortization Requirements" shall mean the amounts required
to be deposited in the Redemption Subaccount for any Series of
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Bonds for the purpose of redeeming prior to their maturity and
paying at their maturity the Term Bonds of any Series issued
pursuant to this Resolution, the specific amounts and times of
such deposits to be determined by the Commission in a Series
Resolution relating to such Series of Bonds.
"Annual Budget" shall mean the Annual Budget
pursuant to section 503 of this Resolution.
adopted
"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
8ond from the original issue date of such Bond to the Interest
Payment Date next u~eceding the date of computation, or the date
of computation if an Interest Payment Date, such increased value
to accrue at the stated rate per annum of such Bond compounded
on the Interest Payment Dates, plus, if such date of computation
shall not be an Interest Payment Date, s 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
~nterest Payment Date, calculated based on the assumption that
Appreciated Value accrues during any semi-annual period in equal
daily amounts on the basis of a year of twelve 30-day months and
(ii) as ot any date of computation on and after the Interest
Commencement Date, the Appreciated Value on the Interest
Commencement Date.
"Arbitrage Rebate Fund" shall mean a fund or funds
established by the City with a Depositary for the deposit of
moneys necessary for payments required to be made to the United
States of America in connection with any Series of Bonds subject
to arbitrage rebate requirements under the Code. The moneys in
such fund or funds shall be applied only for the purposes for
which such fund or funds are established and shall not be
subject to a lien or charge in favor of Holders of any Bonds and
shall not be pledged as security for the payment of any Bonds.
"Assessments" shall mean the proceeds to be derived from
the City from any non-ad valorem assessments which may be levied
from time to time by the City, against certain classifications
of lands and properties to be specially benefitted by the
construction of any Improvements, including interest on such
assessments and any penalties thereon and moneys received upon
the foreclosure of the liens of any such assessments and, by
reason of such assessments, upon the sale of tax certificates,
but only to the extent and in such manner as such assessments
are pledged to the payment of the principal of, premium, if any,
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and interest on the Bonds issued hereunder by resolution or
ordinance duly adopted or enacted by the Cormmission.
"Balloon Indebtedness" shall mean indebtedness 25% or more
of the principal payments of which are due in a Fiscal Year and
which indebtedness is not required to be repaid over i~s term on
a substantially level debt service basis on a Fiscal Year basis,
and indebtedness 25% or more of the principal of which may, at
the option of the holder or registered owner thereof, be
redeemed in a Fiscal Year.
"Bond Counsel" shall mean a lawyer or
the City of favorable national reputation
relating to tax~exempt municipal bonds.
law firm selected by
for skill in matters
"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 eithe~
Serial Bonds or Term Bonds.
"Capital Appreciation and Income Bonds" shall mean any Bond
or Bonds of s Series issued under this Resolution as to which
accruing interest is not payable prior to the Interest
Commencement Date specified in 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 ox 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.
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"Capital Expenditures" shall mean all expenditures made for
extensions, additions, improvements, renewals and replacements
(other than ordinary maintenance and repairs) acquired,
constructed or ins%ailed 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
appurtenances 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 her designee or the officer succeeding to his or her
principal functions.
"City Manager" shall mean the City Manager of
his or her designee or the officer succeeding to
principal functions.
the City or
his or her
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, 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
Construction Fund, a special fund
Section 401 of this Resolution.
mean the Utility System
created and designated by
"Consulting Engineers" shall mean one or more licensed
professional engineers or firms of professional engineers, of
nationally recognized standing, at the time employed by the City
under the provisions of Section 703 of this Resolution to
perform and carry out the duties imposed on the Consulting
Engineers by this Resolution.
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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 all items 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 or similar facility in
which the entity providing such facility irrevocably agrees to
provide funds to make payment of the principal of and interest
on Bonds provided that such entity is at the time of providing
such facility of sufficient credit quality to entitle debt
backed by its Credit Facility to be rated in one of the two
highest long-term rating categories (without regard to any
gradations within such categories) by both Standard & Poor's
Corporation and Moody's Investors Service, Inc.
"Current 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 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 p~nalties 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 or repair, 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 Bonds" shall mean Bonds the interest on
which is payable to the Bondholder on the Interest Payment Dates
with respect thereto and not only at the maturity thereof.
"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 of moneys 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 all of the Prior Bonds.
"Expansion Project" means the Project or any portion
thereof or any Improvements or any portion thereof to be devoted
to the oversizlng, 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 September of the
following year, as the same may be amended from time to time to
conform to the fiscal year of the City.
"General 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" in this Article I.
"Impact Fee Account" shall mean the Impact Fee Account, a
special subaccount within the Enterprise Fund created and
designated pursuant to Section 515 of this Resolution, the
moneys in which shall be pledged and applied as set forth in
Section 515 of this Resolution.
"Impact Fees" shall mean all nonrefundable (except at the
option of the City) capital recovery charges, pollution control
fees, capacity charges and other similar fees and charges
separately imposed by the City as a nonuser capacity charge for
the proportionate share of the cost of expanding, oversizing
separating or constructing Improvements to the Utility System
and any investment earnings from the investment of funds on
deposit in the Impact Fee Account, but excluding those charges
imposed by the City on persons connecting to the Utility System
for the cost of physically connecting thereto, including but not
limited to the costs of excavation, plumbing, installation of
meters and landscaping.
"Improvements" shall mean such improvemenEs, 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
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 ~esolution awarding
the same (which date must be prior to the maturity date of such
Bonds) after which interest accruing on such Bonds shall be
payable semiannually, with the first such payment date being the
applicable Interest Payment Date immediately succeeding such
Interest Commencement Date.
"Interest Payment Date" shall mean the dates for the
payment of interest on a Series of Bonds as shall be established
by the Series Resolution for such Series of Bonds.
"Interest Rate Swap" shall mean an agreement in writing by
and between the City and another entity (the "Counterparty")
pursuant to which (i) the City agrees to pa~ 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 rs not required to, be determined by reference to an assumed
interest rate payable on the notional amount in %he period
specified in such agreement.
"Interim Bonds or Notes" shall mean bonds or notes issued
by the City with a final maturity not longer than 60 months (or
longer period if then so permitted by the provisions of State
law relating to the issuance of bond anticipation notes by
municipalities) in anticipation of the refinancing thereof from
all or a portion of the proceeds of a Series of Bonds issued
under this Resolution or from all or a portion of the proceeds
of Utility Debt.
"~nvestment 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
5imely payment of the principal of and interest on which
are unconditionally guaranteed by, the United States of
America;
(ii) obligations issued or guaranteed 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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Bank, Government National Mortgage Association and the
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 proceed directly and individually against the obligor on
the underlyin9 obligations described in clause (i) of this
definition, and which underlying obligations are not
available to satisfy any claim of the custodian or any
person claiming through the custodian or to whom the
custodian may be obligated;
(iv) bankers acceptances, certificates of deposit or
time deposits of any bank, trust company or savings and
loan association (including any investment in pools of such
bankers acceptances, certificates of deposit or time
deposits) which to the extent that such obligations are not
insured by the Federal Deposit Insurance Corporation, are
collateralized at all times in amounts and by obligations
as shall be permitted by State law;
(v) municipal obligations, the timely payment of the
principal of, interest on and redemption premium, if any,
on which are irrevocably secured by obligations described
in clause (i) of this definition and which obligations have
been deposited in an escrow account which is irrevocably
pledged to the payment of the principal of, interest on and
redemption premium, if any, of such municipal obligations;
(vi) obligations issued by any state of the United
States, which are rated in one of the two highest rating
categories (without regard to any gradation within such
categories) by both Moody's Investors Service, Inc. and
Standard & Poor's Corporation;
(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 w~th 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 described in (i), (ii) or
(iii) abov~ provided Ghat the City has a perfected first
security interest in the collateral and that such
collateral is held free and clear of claims by third
parties;
(ix) mortgage-backed securities and senior debt
obligations issued by any of the following agencies or such
other like governmental or government-sponsored agencies
which may be hereinafter created (so long as such agencies
continue to be governmentally owned or sponsored): (a) the
Federal National Mortgage Association; (b) the Government
National Mortgage Association; and (c) the Resolution
Funding Corporation; and
(x) units of participation in the Local Government
Surplus Funds Trust Fund administered by the State Board of
Administration pursuant to Part IV, Chapter 218, Florida
Statutes.
"Liquidity Facility" shall mean a letter of credit, policy
of municipal bond insurance, guaranty purchase agreement, line
of credit or similar facility in which the entity providing such
facility agrees to provide funds to pay the purchase price of
Optional Tender Bonds upon their tender by the Holders of
Optional Tender Bonds provided that such entity is at the time
of providing such facility of sufficient credit quality to
entitle debt backed by its Liquidity Facility fo be rated in the
highest short-term rating category (without regard to any
gradations within such categories) in which providers of similar
facilities are then rated by both Standard & Poor's Corporation
and Moody's Investors Service, Inc.
"Maximum Principal
the maximum amOunt of
any Fiscal Year.
and Interest Requirements" shall mean
Principal and Interest Requirements for
"Mayor" shall mean the Mayor of the City, or in his or her
absence, the Vice Mayor of the City or the officer succeeding to
his or her principal functions.
"Net Revenues" for any particular period shall mean the
amount of the excess of the Revenues for such period over the
Current Expenses payable from the Revenue Account for such
period.
"Optional Tender Bonds" shall mean the portion of a Series
of Bonds issued under this Resolution, a feature of which is an
~ opfion on the part of the Holders of such Bonds to tender such
Bonds to the City, a trustee or other fiduciary for such Holders
_ · for payment prior to stated maturity.
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5868M
"Outstanding" shall mean, when used with respect to the
Bonds, all Bonds theretgfore 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 Impact Fees 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,
Appreciated Value thereof, as of any particular date of
determination.
"Principal and Interest Requirements" shall mean for a
Fiscal Year %he sum of:
(i) the amount of interest on all Bonds then
Outstanding which is payable on each Interest Payment Date in
such Fiscal Year, and
(ii) the amount of Principal of all Serial Bonds then
Outstanding which is payable upon the maturity of Serial Bonds
in such Fiscal Year, and
(iii) the amount of Amortization Requirements for the
Term Bonds of such Series for such Fiscal Year.
In determining the amount of the Principal and Interest
Requirements for any Fiscal Year, the following rules shall
apply:
(a) with respect to Variable Rate Bonds, the interest
rate shall be assumed to be 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 or 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 8onds 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 sh~ll 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 aftsr the issuer of a Liquidity Facility or
the Credit Facility has advanced funds thersunder and
before such amount is repaid, Principal and Interest
Requirements shall include the principal amount so advanced
and interest thereon, in accordance with %he 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 virtus of an Amortization
Requirement shall be included in the calculations of
accrued and unpaid interest and principal requirements;
(e) with respect to Capital Appreciation and Income
Bonds, the principal and interest portions of the
Appreciated Value becoming due at maturity or by virtue of
an Amortization Requirement shall be included in the
calculations of accrued snd unpaid interest and principal
requirements;
(f) if interest on a Series of Bonds is payable from
the proceeds of such Bonds or from other amounts set aside
irrevocably for such purpose at the time such Bonds are
issued, interest on such Series of Bonds shall be included
in Principal and Interest Requirements only in proportion
to the amount of interest payable in the then current
Fiscal Year from amounts other than amounts so funded to
pay such interest;
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5868M
(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 ~ndebtedness were amortized (i) from
the date of such calculation over a period equal to 20
years, if such Balloon Indebtedness matures 20 years or
more from the date of such calculation, or (ii) if the
period from the date of such calculation to the final
maturity of such Balloon Indebtedness is less than 20
years, then the actual number of years to maturity shall be
used, on a level annual debt service basis calculated on a
Fiscal Year basis, at an interest rate, if such Balloon
Indebtedness bears interest at a fixed interest rate for
its entire term, equal to the actual interest rate on such
Balloon Indebtedness, and if such Balloon Indebtedness does
not bear interest at a fixed rate for its entire term,
bearing interest st a ~ate calculated in accordance with
the methodology established for Variable Rate Bonds in (a)
above.
(j) If, in connection with the issuance of a Series
of Bonds, the Issuer shall enter into an Interest Rate Swap
then, if, to the extent and in the manner so provided in
the Series Resolution with respect to such Series of Bonds,
Principal and Interest Requirements as to such Series of
Bonds shall be calculated as of any calculation date or for
any period of time as being the amount required to be paid
by the City to the Bondholders on such date or during such
period as "interest" on such Bonds, plus the amount
required to be paid by the City on such date or during such
period pursuant to the Interest Rate Swap (prior to any
netting of such amount against the amount required to be
paid to the City by the Counterpsrty) 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.
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"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 by the City.
"Rate Consultant" shall mean a consultant or consulting
firm or corporation at the time employed by the City under the
provisions of Section 502 of this Resolution to perform and
carry out the duties imposed on the Rate Consultant by this
Resolution.
"Rate Stabilization Account" shall mean the Utility System
Revenue Bonds Rate Stabilization Account, a special account
within the Enterprise Fund created and designated by Sectien 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 Sectien 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 505 of 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 ~o be
deposited monthly to the credit of the Reserve Account on
account of such Series; provided, however,
(i) the Reserve Account Deposit
Requirement for any Series shall not be less than
one-sixtieth (1/60th) of the Reserve Account Requirement
-16- 5868M
for such Series in each month until the amount on deposit
in the Reserve Account shall be equal to the Reserve
Account Requirement for such Series; and
(ii) in the event any deficiency is
created in the Reserve Account for any Series by a
withdrawal or otherwise, %he Reserve Account Deposit
Requirement for any Series shall be increased, beginning in
the month following the month in which such deficiency was
created, by an amount at least equal to one twenty-fourth
(1/24th) of the amount of such deficiency or, in the case
of a deficiency created by a withdrawal under a Reserve
Account Insurance Policy or a Reserve Account Letter of
Credit, the deficiency may be cured either by an i~crease
in the Reserve Account Deposit Requirement as stated above
or by the entity providing such facility restoring the
withdrawn amount to the amount available under such
facility.
"Reserve Account Insurance Policy" shall mean an insurance
policy, surety bond or other acceptable evidence of insurance,
if any, maintained by the City in lieu of or in partial
substitution for cash or securities on deposit in the Reserve
Account, provided that the entity providing such facility is at
the time of so providing of sufficient credit quality to entitle
debt backed by its facility to be rated in one of the two
highest rating categories (without regard to any gradations
within such categories) by both Standard & Poor's Corporation
and Moody's InvesEors Service, Inc.
"Reserve Account Letter of Credit" shall mean an
irrevocable, transferable letter of credit, if any, maintained
by the City in lieu of or in partial substitution for cash or
securities on deposit in the Reserve Account, provided that the
entity providing such letter of credit is at the time of so
providing of sufficient credit quality to entitle debt backed by
its letter of credit to be rated in one of the two highest
rating categories (without regard to any gradations within such
categories) by both Standard & Poor's Co~poration and Moody's
Investors Service, Inc.
"Reserve Account Requirement" shall mean (i) with respect
to the Series 1992 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
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5868M
Letter of Credit or other similar arrangement which, after its
issuance and delivery will permit the Finance Director ~o
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 designated 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 de~ived 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 a~d 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,
c~ntributions 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
605 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 s 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 s 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
prio~ to the issuance of any Series of Bonds under this
Resolution.
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5868M
"Short-Term Indebtedness" means all indebtedness incurred
or assumed by the City with respect to the Utility System for
any of the following:
(i) Payments of principal and interest with
respect to money borrowed for an original term, or
renewable at the option of the City for a period from the
date originally incurred, of one year or less;
(ii) Payments under leases having an original
term, or renewable at the option of the lessee for a period
from the date originally incurred, of one year or less; and
(iii) Payments under installment purchase contracts
having an original term of one year or less.
"Sinking Fund Account" shall mean the Utility System
Revenue Bonds Sinking Fund Account, a special accounE within the
Enterprise Fund created and designated by 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" shall mean the State of Florida.
"State Pollution Control Indebtedness" shall mean
obligations of the City to the State incurred in connection with
bonds issued by the State pursuant to the authority of Article
XII, Section 14 of the Constitution of the State, to the extent
such obligations are incurred for the purpose of paying all or
any part of the Cost of Improvements to the Utility System.
"State Revolving Fund" shall mean the state revolving loan
fund established by the State of Flori~a 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, notes or
other forms of indebtedness, the payment of the principal,
premium, and interest of which are payable solely from moneys
which may from time to time be on deposit in the Subordinated
Indebtedness Account under this Resolution and which is
designated as Subordinated Indebtedness by the Commission in the
resolution authorizing the issuance of such Indebtedness.
-19-
5868M
"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 intarest 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,"
"Ho]der" 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."
ARTICLE II
FORM, EXECUTION, DELIVERY
AND REGISTRATION OF 8ONDS
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- 5868M
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 8onds of one or more Series issued by the
City under the provisions of 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 shall be
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 ail and singular the present and
future Holders of the Bonds so issued or to be issued, without
preference, priority or distinction as 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 hereunder shall be created by a different Series
Resolution. Except to the exten~ provided herein with respect
to the Series 1992 Bonds, each Series Resolution shall (a)
determine the 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 be financed
with the proceeds of such S~ries, (c) provide for the
application of the proceeds of the Bonds to which such Series
Resolution relates, (d) establish the Reserve Account
Requirement and Reserve Account Deposit Requiremenf 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
that all matters set forth above except the maximum principal
amount of any Series and the definition of any Improvements to
be financed with the proceeds of such Series may be determined
by the Commission in the resolution awarding such Series to the
purchaser thereof.
The Bonds of each Series issued under the provisions of
this Article shall be designated "City of Boynton Beach,
-21- 586BM
Florida, Utility System Revenue Bonds, Series ," or such
appropriate variation thereof as 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 provided in 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
amount or 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 permit%ed by law, shall bear
interest until their payment at a rate or rates, including rates
which may vary, not exceeding the maximum rate then permitted by
law, such interest being payable and such 8onds 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.
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5868M
Unless otherwise provided in the Series Resolution 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 is registered in the
registration books provided for in Section 206 of this
Resolution (hereinafter, as used in this Section, the "Holder")
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
than $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 Bonds is issued, any interest on any
Bond which is payable, but lis not punctually paid, or for which
payment is not duly provided, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date solely
by virtue of such Holder having been such Holder; and such
Defaulted Interest may be paid by the City, at its election in
each case, as provided in subsection A or B below:
A. The City may elect to make payment of any
Defaulted Interest on the BOnds of any Series to the persons in
whose names such Bonds are registered at the close of business
on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
City shall notify the Bond Registrar in writing of the amount of
Defaulted Interest proposed to be paid on each Bond and the date
of the proposed payment (which date shall be such as will enable
the Bond Registrar to comply with the next sentsnce hereof), and
at the same time the City shall deposit or cause to be deposited
with the Bond Registrar an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Bond Registrar for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust
for the benefit of the persons entitled to such Defaulted
Interest as in this subsection provided. Thereupon the 8ond
Registrar shall fix a Special Record Date for 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, in the
name and at the expense Of the City, shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefo~ to be mailed, first-class postage prepaid,
to each Holder at such Hol;der's address as it appears mn the
-23- 5868M
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 such Defaulted Interest
and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the persons
in whose names the Bonds of such Series are registered on such
Special Record Date and shall no longer be payable pursuant to
the following subsection B. The Bond Registrar shall pay such
Defaulted Interest which is payable on the Bonds pursuant to
this subsection A by check or draft mailed to the persons
entitled thereto on the date fixed for the payment of such
Defaulted Interest pursuant to this subsection A; provided,
however, the Commission pursuant to the series Resolution for a
series may provide for p~ymen~ of such Defaulted Interest by the
Bond Registrar by wlre 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 an~ 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 the City
Clerk and the official sea] 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 s 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 an~ Bond may bear the facsimile signature of, or may be
signed by, such persons as at the actual time of the execution
of such Bond shall be the prpper 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, ~f any, the opinion certification and the form of
assignment shall be, respectively, in the 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 for
different types of Bonds authorized under this Resolution,
including, without limitation, provisions for Capital
Appreciation Bonds, Capital Appr,eciation and Income Bonds,
Interim Bonds or Notes, Variable Rate Bonds, Optional Tender
8onds and Convertible Bonds.
[Remainder of page intentionally blank]
-25- 5868M
[FORM OF CURRENT INTEREST BOND]
[Face of Bond]
NO.
$ ,000
United States of America
State of Florida
City of Boynkon Beach
Utility System Revenue Bond
Series
Maturity Date Interest Rate Original Issue Date Cusip
REGISTERED HOLDER:
PRINCIPAL AMOUNT:
The City ot 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
legal representative thereof on the
earlier as hereinafter referred to),
surrender hereof, at the
of
of
the registered assigns or
date specified above (or
upon the presentation and
principal office
, in the City
(the "Bond
Registrar"), the principal sum shown above, and to pay to the
registered owner hereof, by check or draft mailed to the
registered owner at such registered owner's address as it
appears on the bond 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 hereof or 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. The interest so payable and
punctually paid, or duly provided for, on any interest payment
date will be paid to the person in whose name this bond is
registered at the close of business on the Regular Record Date
for such interest, which shall be the 15th day (whether or not a
business day) of the calendar month next preceding such interest
payment date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the
registered 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
defaulted interest to be fixed by 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 ns 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 be deemed 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 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 on this bond. The issuance of this bond shall not
directly, indirectly or contingently obligate the City to levy
or ko 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 or become obligatory for any
purpose or be entifled 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 Cit~ Commission, has caused this
-27- 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 , __
[SEAL]
Mayor
City Clerk
CERTIFICATE OF AUTHENTICATION
This bond is one
herein and Issued under
Resolution.
of the bonds of the series designated
the provisions of the within-mentioned
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 ad~pted by the
City Commission in furtherance of the Bond Resolution on
19 (the "Series Resolution" and, together with the Bon~
Resolution, the "Resolution").
-28-
5868M
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]
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 of maturity 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 particular bonds 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 s 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 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 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
bonds or the portions ~hereof 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
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 the Resolution, or to institute, appear
in or defend any suit or otheI proceeding with respect thersto,
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 in the
denomination of $5,000 or an~ whole multiple thereof. At the
principal office of the Bond Registrar, in the manner and
subject to certain conditions 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
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 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 interest at the same rate.
The Bond Registrar shall
register any transfer of this
select'ed for redemption.
not be required to exchange or
bond after this bond has been
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- 5868M
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
defined in 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.
Ail 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 seriss 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, 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 within bond on the books kept for registration
thereof with full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: The signature to this assignment
must correspond with the name as it
appears on the face of the within bond in
every particular, without alteration or
enlargement or any change whatever.
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 COM as tenants in common
TEN ENT - as tenants by the entireties
JT TEN as joint tenants with the
survivorship and not as tenants in common
UNIFORM TRANS MIN ACT -
(Cust)
Custodian for
under Uniform Transfers to Minors
Act
(State)
Additional abbreviations may also be used
though not in the above list.
right of
(Minor)
-32-
5868M
NO.
[FORM OF CAPITAL APPRECIATION AND INCOME BOND]
[Face of Bond]
$
,000
Maturity Date
United States of America
State of Florida
City of Boynton Beach
Utility System Revenue Bond
Series
Interest Rate Original Issue Date Cusip
REGISTERED HOLDER:
PRINCIPAL AMOUNT: $
AMOUNT DUE AT MATURITY:
per $5,000 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 fo~ value received hereby promises to pay to the
registered holder shown above or to the registered assigns or
legal representative thereof on
earlier as hereinafter referred
surrender hereof, at
of
of
Registrar"), the Amount Due
constituting the
the date specified above (or
to), upon the presentation and
the principal office
in the City
(the "8ond
at Maturity (stated above),
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 to such registered owne~ 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 "Regular Record
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 d~ys 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 of any 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
s 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 ~mount Due at Maturity. The
Appreciated Value per $5,000 Amoun~ 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, 19 and 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.
Ail 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 indebtsdness
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 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
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 ,
[SEAL]
Mayor
This bond
herein and
Resolution.
City Clerk
CERTIFICATE OF AUTHENTICATION
is one of the bonds of the series designated
issued under the provisions of the within-mentioned
Date of authentication:
Bond Registrar
By:
Authorized Signatory
-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
for
bond is issued under and pursuant to that certain
adopted by the City Commission of the City on
19 (the "Bond Resolution") and that certain
adopted by the City Commission in furtherance of
Resolution on , 19 (the "Series Resolution"
together with the Bond Resolution, the "Resolution").
funds,
and this
resolution
resolutio~
the Bond
and,
The bonds of this series consist of bonds maturing
on 1 of the years __ ko , 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 registered owner of s
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 in part, the City shall cause 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
-36- 5868M
of the date 10 days prior to the date of mailing of such notice
of redemption. The failure of any bondholder to receiv~ 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 at the
redemption price provided for the redemption of such bonds or
portion thsreof 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 called for
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 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 or any whole
multiple thereof. At the principal office of the Bond
Registrar, in the manner and subject to certain conditions
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 8ond 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
may be registered only upon such books and as otherwise provided
~n 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 be satisfactory
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 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
defined in 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.
Ail 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.
Jif the Bonds of s Series have been validated pursuant
to Chapter 75, Florida Sitatutes, 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 described which
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:
Signature Guaranteed:
NOTICE: The signature to this
assignment must correspond with the
name as it appears on the face of the
within bond in every particular,
without alteration or enlargement or
any change whatever.
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
on the face of the within Bond, shall be
they were written out in full according to
regulations.
in the inscription
construed as though
applicable laws or
TEN CON as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with the
survivorship and not as tenants in common
right of
UNIFORM TRANS MIN ACT - Custodian
(Cust)
under Uniform Transfers to Minors
Act
(State)
Additional abbreviations may also be used
though not in the above list.
(Minor)
-39- 5868M
Date
APPRECIATED VALUE PER $5,000
Appreciated
Value
AMOUNT DUE AT MATURITY
Appreciated
Date Value
and thereafter $5,000.00
[Remainder of page intentionally blank]
-40-
5868M
[FORM OF CAPITAL APPRECIATION BOND]
NO.
[Face of Bond~
$ ,000
Maturity Date
United States of America
State of Florida
City of Boynton Beach
Utility System Revenue Bond
Series
Interest Rate Original Issue Date
Cusip
REGISTERED HOLDER:
PRINCIPAL AMOUNT:
AMOUNT DUE AT MATURITY:
per $5,000 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 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 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 payment of said maturity amount or, upon ear~ie~
redemption or acceleration as set forth on the reverse side
hereof, payment to be made ak 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 amount heraof plus the compounded interest
accrued hereon 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 Accreted Value as of the
-41- 5868M
CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds of
herein and issued under the provisions
Resolution.
the series designated
of the within-mentioned
Bond Registrar
By: :
AUthorized Signatory
Date of authentication:
[Reverse Side of Bondi]
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 consislt of bonds maturing
on 1 of the years to , inclusive (the
"Serial Bonds") and of bonds maturing oD , 1
(the "Term Bonds"). The Term Bonds ar~. subject to mandatory
redemption at 100% or the principal amoun~ 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 She redemption price if a Capital
Appreciation Bond is redeemed prior go maturity, or (ii)
receiving payment of a Capital Appreciation Bond if the
principal of all Series Bonds is declared immediately due
and payable following an event of default, as specified in the
Resolution, or (iii) computing the amount of Ser~es Bonds
-43- 5868M
held by the registered owner of a Capit~l
giving to the City any notice, consent,
pursuant to the Resolution for any purp~
computing the amount of Series Bo~
the selection of Series Bond
principal amount of a Capital Appreciati(
to be its "Accreted Value," which cons
accrued interest and is more fully define(
Appreciation Bond in
request, or demand
whatsoever, or (iv)
to be redeemed and
to be redeemed, the
Bond shall be deemed
.sis of principal plus
in the Resolution.
[Redemption · . I
Provlsions]
If less than all of the bonds of any one maturity shall be
called for redemption, the particula~ bonds to be redeemed shall
be selected by lot as provided in the Res¢lution.
At least thirty (30) but not more than sixty (60) days
before the redemption date of any bonds :o be redeemed, whether
such redemption be in whole or in part, the City shall cause a
notice of such redemption to be filed [th the Bond Registrar
and mailed, first class postage prepa:d, to all registered
owners of bonds to be redeemed in wh~le o: in part at their last
addresses appearing upon the registrstio~ 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 bond]lolder to receive such
notice shall not affect the validity ,of s:lch redemption of bonds
'so called for redemption, nor shall any defect in the giving of
notice of redemption of any bond ai~fect the validity of the
redemption of any other bond. On the dat ~ fixed for redemption,
notice having been given as aforesaid, the bonds or portions
thereof so called for redemption shalll be due and payable at the
redemption price provided for the redemption of such bonds or
portion thereof and, if moneys for ,p~ym~:nt of such redemption
price and the accrued interest are he~ld b]~th~s Bond Registrar Or
an appropriate fiduciary institution acti escrow agent, as
provided in the Resolution, interest 9n the bonds or the
portions thereof so called for redemption shall cease to
accrue. If a portion of this bond ~hall be called for
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 th~ surrender hereof.
The holder of this bond shall
provisions of the Resolution, or to insti
the covenants therein, or to take any acti
event of default under the Resolution,
in or defend any suit or other proceedin¢
except as provided in the Resolution.
Modificstions or alterations of the
resolution supplemental thereto may be ma
and in the circumstances permitted by the
have no right to enforce the
;ute action to enforce
on with respect to any
to institute, appear
with respect thereto,
Resolution or of any
~e only to the extent
esolution.
-44-
5868M
The bonds are issuable as fully registered bonds of the
denomination of $5,000 or any whole multiple thereof. At the
principal office of the Bond Registrar, in the manner and
subject to certain conditions provided in the Resolution, bonds
may be exchanged for an equal 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 this bond
may be registered only upon such books and as otherwise provided
tn 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 be satisfactory to
the Bond Registrar. Upon any such registration of transfer, the
Bond Registrar shall deliver in exchange fo~ this bond s 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 ot 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
sel@cted 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 ot 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, and interesr on the bonds issued
under the provisions of the Resolution as the same shall become
due and ko create a reserve for such purpose.
Ail acts, conditions and ~hings 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.
-45-
5868M
[If the Bonds of a Series have been validated pursuant
to Chapter 75, Flori(~ Statutes, such Bonds shall have
statement in substantially the
endorsed thereon a
following form.]
STATEMENT
This bond is one of a Se]
by judgment of the Circuit Cou]
on
OPINION CE
VALIDATION
~s of Bonds which were validated
for Palm Beach County rendered
~IFICATION
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
ASSI(
FOR VALUE RECEIVED the u~
and transfers unto
within bond and all rights th~
constitutes and appoints
register the transfer of the wJ
registration thereof with fut]
premises.
Dated:
NOTICE:
assignm.
name as
within
without
any cha~
~MENT
dersigned
hereby sells, assigns
the
~reunder, and hereby irrevocably
attorney to
thin bond on the books kept for
power of substitution in the
The signature to this
~nt must correspond with the
it appears on the face of the
bond in every particular,
alteration or enlargement or
lge whatever.
5868M
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, whSn 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
survivorship and not as tenants in common
right of
UNIFORM TRANS MIN ACT -
Custodian
(Cust) (Minor)
under Uniform Transfers to Minors
Act
(state)
Additional abbreviations may also be used
though not in the abo~e list.
ACCRETED VALUE FOR $5,000 M!~TURITY AMOUNT
Date
Accreted Accreted
Value Date Value
-47-
5868M
5869M/61
CITY OF BOYNTON 8EACH, FLORIDA
RESOLUTION NO.
Adopted on June 16, 1992
Authorizing and Securing
Utility System Revenue Bonds
5869M/62
Section 101.
Sectign 102.
TABLE OF CODT~NTS
ARTICLE I
DEFINITIONS
Meaning of Words and Terms
Rules of Construction
PaGe
3
20
Section
Section
Section
Section
Section
Section
Section
Sectio.n
Section
Section
Section
Section
Section
Section
Section
ARTICLE II
FORM, EXECUTION, DELIVERY
AND REGISTRATION OF BONDS
201. Issuance of Bonds
202. Details of Bonds
203. Execution and Form of Bonds
204. Authentication of Bonds
205. Exchange of Bonds
206. Negotiability, Registration and
Transfer of Bonds
207. Ownership of Bonds
208. Authorization of Series 1992 Bonds
209. Additional Bonds
210. Refunding Bonds
211. State Indebtedness
212. Other Indebtedness
213. Temporary Bonds
214. Mutilated, Destroyed or Lost Bonds
215. Provisions with Respect to Book-Entry
System
20
21
24
48
48
48
49
49
52
56
59
60
62
62
62
Section 301.
Section 302.
Section 303,
Section 304.
Section 305.
Section 306.
Section 307.
ARTICLE III
REDEMPTION OF BONDS
Redemption Generally
Selection of Bonds for Redemption or
Purchase
Redemption Notice
Partial Redemption of Bonds
Effect of Calling for Redemption
Cancellation of Bonds
Bonds Called for Redemption Deemed Not
Outstanding
63
63
63
65
65
65
65
5869M/63
Section 401.
Section 402.
Section 403.
Section 404.
Section 405.
TABLE OF CONTENTS
(CONTINUED)
ARTICLE IV
CONSTRUCTION
Construction Fund
Payments from Construction Fund
Cost of Project and Improvements
Title to Properties Acquired
Disposition of Construction Fund
Balance
Paqe
66
67
67
68
68
Section 501
Section 502.
Section 503.
Section 504.
Section 505.
Section 506.
Section 507.
Section 508.
Section 509.
Section 510.
Section 511.
Section 512.
Section 513.
Section 514.
Section 515.
Section 516.
Section 517.
ARTICLE V
REVENUES AND FUNDS
Utility System
Rate Covenant
Annual Budget
Enterprise Fund; Revenue Accoun~
Sinking Fund Account and Other
Accounts
Payment of Current Expenses
Application of Moneys in Bond Service
Subaccount
Application of Moneys in Redemption
Subacccunt
Application of Moneys in Reserve
Account
Application of Moneys in Rate
Stabilization Account
Application of Moneys in Subordinated
Indebtedness Account
Application of Moneys in Renewal,
Replacement and Improvement Account.
Application of Moneys In General
Reserve Account
Application of Moneys in Sinking Fund
Account
~mpact Fee Account
Money Held in Trust
Interest Rate Swaps; Interest
69
69
70
71
71
74
74
74
76
77
78
78
79
79
80
81
81
5869M/64
TABLE OF CONTENTS
ARTICLE VI
DEPOSITARIES OF MONEYS, SECURITY FOR DEPOSITS
AND INVESTMENT OF FUNDS
Section 601.
Section 602.
Section 603.
Section 604.
Section 605.
Security for Deposits 82
Investment of Moneys 82
Valuation of Investment Obligations 84
Accounting for Funds 84
Tax Covenants 85
Page
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
ARTICLE VII
PARTICULAR COVENANTS
701. Payment of Principal, Interest and
Premium; Pledge of Pledged Revenues
702. Construction of Project and
Improvements; Operation of
Utility System
703. Employment of Consulting Engineers
704. Employment of Accountant
705. Insurance
706. Use of Revenues and Impact Fees
707. Records, Accounts and Audits
708. Franchises
709. Supervisory Personnel
710. Separate Systems
711. No Free Service
712. Failure to Pay for Services
713. Enforcement of Collections
714. Sale or Other Disposition of the
Utility System
715. Financial Reporting, Notice of
Default and Supplemental Notice
85
85
86
86
87
88
88
89
89
89
90
90
9O
90
92
Section 801.
Section 802.
Section 803.
Section 804.
Section 805.
ARTICLE VIII
REMEDIES
Events of Default
Acceleration of Maturities
Enforcement of Remediss
Pro Rata Application of Funds
Effect of Discontinuance of
Proceedings
93
94
95
96
98
Section 204. Authentication of Bonds. Only such of the
Bonds as 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 until such certificate of
authentication shall have been duly executed by the Bond
Registrar, and such certificate of the Bond Registrar upon any
such Bond shall be conclusive evidence that such Bond has been
duly authenticated and delivered under this Resolution and the
Series Resolution relating to such Bond. The certificate of
authentication on any Bond shall be deemed to have been duly
executed if signed by an authorized officer of the Bond
Registrar, but it shall not be necessary that the same officer
sign the certificate of authentication on all of the 8onds that
may be issued hereunder at any one time.
Section 205. Exchanqe of Bonds. Bonds, upon surrender
thereof at the principal corporate trust office of the Bond
Registrar, together with an assignment duly executed by the
registered owner or such registered owner's attorney o~ 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. Negotiability, ReGistration and Transfer of
Bonds. 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 8ond Registra~ shall authenticate and
deliver in exchange for such Bond a new Bond or 8onds 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 8ond
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 to be paid with respect to such
exchange or registration of transfer, but no other charge shall
be made to any owner of Bonds for the privilege of exchanging or
registering the transfer of Bonds under the provisions of this
Resolution. Neither the City nor the Bond Registrar shall be
required to make any such exchange or registration of transfer
of Bonds of a Series during the fifteen (15) days immediately
preceding the date of mailing of notice of redemption of Bonds
of such Series, or to transfe~ or exchange any Bond or any
portion thereof that has been selected for redemption.
Section 207. Ownership of Bonds. The person in whose name
a Bond shall be registered shall be deemed and regarded as the
absolute owner thereof for all purposes, and the interest on any
such Bond shall be paid only to or upon the order of the
registered owner thereof or such 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 payment or redemption
and any redemption premium, all of the Prior Bonds, (b) for
making a 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 s deposit to
the credit of a special account or 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 the 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 be made or
that other arrangements shall be made for satisfying such
obligations.
The Series 1992 Bonds shall be issued in such aggregate
principal amoUnt, shall be dated, shall be stated to mature
-49- 5869M
(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.
Each of the Series 1992 Bonds shall be executed
substantially in the form and manner hereinabove set forth and
shall be 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 disposition of moneys held
by the City under the resolutions pursuant to which the Prior
Bonds were issued, awarding the Series 1992 Bonds, specifying
the interest rate of 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 the Commission irrevocably calling for redemption
that portion, if any, of the Prio~ 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) the report of a firm of independent certified
public accountants, of favorable national reputation for skill
and experience in verifying the mathematical sufficiency and
yield cslculations in refunding transactions, stating their
conclusions with respect to (i) the mathematical computations of
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 pursuant to 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;
(g) an opinion of Bond Counsel to the effecf that the
interest on the Series 1992 Bonds is excluded from gross income
for federal income tax purposes; and
(h) A signed copy of a certificate of the Consulting
Engineers as to the percentage of the principal amount of such
Series of Bonds allocable to Expansion P~ojects.
When the documents mentioned in clauses (a) to (h),
inclusive, of this Section shall have been filed with the City
and when the Series 1992 Bonds shall have been executed 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 mentioned in 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 to be
sufficient for the purpose 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 or fee as shall be necessary to acquire a
Reserve Account Insurance Policy or Reserve Account Letter of
Credit or other similar arrangement to insure that an amount
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 the pledge 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 or acquiring
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 issuance of 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 ~he right
of prior redemption as hereinafter set forth) on such date or
dates, in such year or years as permitted by law, shall be~r
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 Seriss 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
-52-
5869M
Additional Bonds shall be on s 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
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 provisions 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 Series Resolution for such Series
of Additional Bonds, adopted by the Commission awarding such
Additional Bonds, specifying the interest rate or rates for such
Additional Bonds, or the initial interest rate if 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 of 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 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 InteresE 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%) (the period during which Net
Revenues are determined for purposes of this clause (c) being
referred to hereinafter as the "Measurement Period"); or (iii)
-53- 5869M
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 Years next 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 to the
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
-54- 5869M
derived from the Utility System during the Measurement Period
may be increased by addition to the Net Revenues for the
Measurement Period of the Net Revenues which would have been
derived from said existing water system, sewer system or
stormwater system if such existing water system, sewer system or
stormwater system had been a part of the Utility System during
the Measurement Period. For the purposes of this paragraph, the
Net Revenues derived from said existing water system, sewer
system or stormwater system during the Measurement Period shall
be adjusted by deducting the cost of operation and maintenance
of said existing water system~ sewer system or stormwater system
from the gross revenues of said existing water system, sewer
system or stormwater system in the same manner provided in this
Resolution for the determination of Net Revenues, and adjusted
in each case to reflect municipal ownership of such system.
(3) If the City, in connection with the issuance of
Additional Bonds, shall enter into a contract (with a duration
not less than the final maturity of such Additional Bonds) with
any public or private entity whereby the City agrees to furnish
services in connection with any water system, sewer system or
stormwater system, then the Net Revenues of the 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 year for the furnishing of said services b~ 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 (which levy will be done in accordance with State
law), the cost of which shall be paid from the proceeds of the
proposed Additional Bonds and if in the case of Impact Fees,
such Impact Fees are legally available for application with
respect to such Additional Bonds as permit%ed under clause
"FIRST" of Section 515, then the Net Revenues during the
Measurement Period may be increased by an amount equal to one
hundred per centum (100%) of the amount which the Consulting
Engineer estimates will be received in each year from the levy
of sai~ Assessments or Impact Fees, as the case may be, within
three years of the date of the sale of such Additional Bonds,
said amount to be the total received from the ~nstaltment
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, ~entals or othe~ 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 te 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 as required 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 purchase price of
such Additional Bonds. The Finance 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 fox 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 special account 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. Ref~dinq Bon~$. Refunding Bonds may be
issued unde~ and secured by this Resolution, subject to the
conditions hereinafter provided in this Section, from time to
time for the purpose of providing funds for refunding all or any
portion of the outstanding Bonds of any one or more Series by
payment at maturity or redemption at a selected redemption date
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or dates or combination of such payment st 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.
Before 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 amoun~ and details thereof, describing the
Bonds to be refunded and setting forth the determination of the
Commission that such refundin~ 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 as permitted by law, 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.
Excep~ 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 order 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 of 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 %he issuance
of such Refunding Bonds has been duly authorized and that all
conditions precedent to the delivery of such Refunding Bonds
have been 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 for the
payment or redemption or combination of such payment and
~edemption of all of the Bonds to be refunded; and
(f) either (i) a certificate of the Finance Director
that the issuance of the Refunding Bonds will not result in an
increase in the average annual Principal and Interest
Requirements for all Bonds Outstanding, such average to be
calculated by dividing the sum of all remaining Principal and
Interest Requirements for all Bonds Outstanding by the number of
years remaining to the final maturity of the last Outstanding
Bond, or (ii) the 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 the interest on the Bonds to be refunded 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 Resolution or 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 applied 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 Suhaccount
for application to the first interest due on such Refunding
Bonds;
(2) an amount which, together 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 redemption premium, if
any, and the interest on the Bonds to be refunded hereunder,
either at maturity or a selected redemption date 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 the sole 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 set aside
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 balance of such proceeds shall be deposited
to the credit of the Revenue Account.
Section 211. State 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 time in 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 in effect,
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 on a parity as to the pledge of Net Revenues of the
Utility System with the Bonds, if immediately after incurrence
of such Short-Term Indebtedness the outstanding principal amount
of all Short-Term Indebtedness does not exceed ten per centum
(10%) of the Net Revenues of the Utility System as shown on the
Annual Budget for the current Fiscal Year.
(b) The City may
without limit as to amount.
incur Subordinated Indebtedness
(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
Section 209 or 210 of this Resolution and such Convertible Bonds
comply with the tests of such Sections based upon the form of
such Convertible 8onds 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 Tende~ 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 national basis and (ii) there is in
effect with respect to such Optional Tender Bonds a Credit
Facility, then the provisions with respect to Optional Tender
Bonds contained in the definition of Principal and Interest
Requirements shall apply to such Optional Tende~ 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 ~pon 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 Utility System with the Bonds issued hereunder if, 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
Resolution to the effect that, prior to exercising any remedies
upon a default by the City under such instrument, the holders of
such Alternative Parity Debt or their representative shall
cooperate with the Holders o~ Bonds Outstanding under this
Resolution or 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 from entering into Interest Rate Swaps.
Upon the issuance of Alternative Parity Debt or Short-Term
Indebtedness, notwithstanding the provisions of Section 505
hereof, Net Revenues may be applied (on s 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 City shall 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 s 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 multiple thereof, substantially of the tenor hereinabove
set forth, 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 cancel the 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. Un%il so
e~changed, 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 tke 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 be executed, and the Bond
Registrar may deliver, a new Bond of like date, number and tenor
in exchange and substitution for and upon the cancellation of
such mutilated Bond or in lieu of and in substitution for such
Bond destroyed or 10st, upon the Holder's paying the reasonable
expenses and charges of the City and the Bond Registrar in
connection therewith and, in the case of s 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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Company and other depository 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 Bonds 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 may be 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 be 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 Bonds shall
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 the redemption date, a
notice of any such redemption, either in whole or in part,
signed by the Finance Director, (a) shall be filed with fhe Bend
Registrar and (b) shall be mailed, first class mail, postage
prepaid, to all registered owners of Bonds to be redeemed at
thei~ addresses 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 shall non affect the
validity of the redemption of any other Bond. Each such notice
shall specify the complete name of the Bonds to be redeemed,
their date of issue, interest rate, maturity date, the date of
mailing of such notice, the redemption price, the redemption
date and the place or places where amounts due upon such
redemption will be payable together with the 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 to the redemption date, and that
from and after such date interest thereon shall cease to accrue
and be payable 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
of redemption of obligations such as the Bonds (such as Kenney
Information Systems Notification 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 abovs. 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 fox
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 fox 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
Bond Registrar. Upon surrender of such 8ond, 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 Callinq for Redemption. On the
date so designated fo~ redemption, notice haying been published
and filed in the manner and under the conditions hereinabove
provided, the Bonds so called fo~ 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 o~ 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. Ail 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 the 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. Bonds Called for Redemption Deemed Not
Outstanding. If (a) (t) Bonds shall have been duly called for
redemption under the provisions of this Article or (2)
irrevocabls instructions have been given by the City to the Bond
Registrar or to a bank, %rust company o[ other appropriate
fiduciary institution acting as escrow agent (the "escrow
agent") to (i) call Bonds fo~ redemption under the provisions of
this Article, (ii) pay Bonds at their maturity o~ maturities or
(iii) both call Bonds for redemption under the provisions of
this Article and pay Bonds at their maturity o~ 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 ~n 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 shall not be deemed to be Outstandin§
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 the interest 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 to the 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
s 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 Holders until paid out as herein
provided.
For each Series of Additional 8onds 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 that it 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 os if the City shall so elect, by wire transfer.
Section 403. Cost of Proiect and Improvements. For the
purposes of this Article, the Cost of 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 incurred for 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 restoration 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 be 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 os 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 by purchase, 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 in the Reserve Account, initial setup fees and annual
fees for letters of credit, lines of credit, standby bcnd
purchase agreements or other similar credit enhancement os
liquidity enhancement devices and tender agent fees and fees
payable for remarketing Bonds during the period of construction
of the P~oject 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 the same in 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 construcnion of the Project
and any Improvements and paid for by the City out of funds other
than moneys in the Construction Fund.
Section 404. Title to Properties Acquired. 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 such lands or
properties fox 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 and used ~o
pay the Cost of a different Improvement or Improvements which
have been approved by ~he Commission, or applied to redeem Bonds
of such series in a manner permitted under this Resolution and
the applicable Series Resolution. Before undertaking any such
transfer, the Finance Director shall procure an opinion of Bond
Counsel to 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. Utility System Rates. The City covenants
that the schedules of rates for service provided by the Utility
System will 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 Covenant. The City further covenants
that it will fix, charge and 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
it shall appear necessary, it will adjust such rates and charges
by increasing or decreasing the same or any selected categories
of rates and charges so that the Net Revenues will be sufficient
to provide an amount in each Fiscal Year at least equal to one
hundred ten per cen~um (110%) of the Principal and Interest
Requirements for such Fiscal Year on account of the Bonds then
Outstanding and one hundred per centum (100%) of all amounts
required to be deposited to the 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 the Utility System,
to inspect the Utility System and to submit, within 60 days
thereafter, a written report to the City recommending revisions
of the rates, fees and charges of fhe 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 recommendations, fhe City
shall transmit copies thereof to the City Manager and shal~
revise its rates, fees and charges, or alter its methods of
operation and take such other action as shall conform with such
recommendations.
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If the City shall fail to comply with the recommendations
of the Rate Consultant, the registered owners of not less than
ten per centum (10%) in principal amount of all Bonds then
Outstanding may institute and prosecute an action or proceeding
in any court or before any board or commission having
jurisdiction to compel the City to comply with the
recommendations and the requirements of the 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 the Principal and Interest
Requirements on all Outstanding Bonds and other Utility Debt,
except any Subordinated Indebtedness, for such Fiscal Year.
Section 503. Annual BudGet, The City covenants that not
later than forty-five (45) days before the end of each Fiscal
Year it will prepare a preliminary budget covering Revenues,
Current Expenses, Capital Expenditures and all deposits to funds
and accounts required by Section 505 of 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 be in 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 Year will not exceed the
reasonable and necessary amount therefor, and that it will not
expend any amount for maintenance, repair and operation of the
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Utility System in excess of the total amount provided for
Current Expenses in 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 totsl 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
special account 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 s
Depositary or Depositaries to the credit of the Revenue
Account. All moneys in Lhe 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 Lhe "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 benefif 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 ~ith 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
subaccounf relates.
The City shall, on or before the 20th day of the month next
succeeding the month tn which Bonds are issued 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 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 credit of the Bond Service Subaccount required to be made
during such respective periods as provided above will equal the
amounts required (in addition to any amounts received as accrued
interest or capitalized interest from the proceeds of such
Bonds) for such next succeeding interest payment and next
maturing installment of principal, respectively; and provided
further that on or before the 15th day of the month preceding
any Interest Payment Date or maturity date of Bonds, the
required deposit to the Bond Service Subaccount shall be the
amount necessary, together with other amounts on deposit in such
Sub~ccount, 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 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 Requiremsnt, the required
deposit to the Redemption Subaccount shall be the amount
necessary, together with other amounts on deposit therein, to
provide for such Amortization Requirement.
(c) To the credit of the Reserve Account and the
subaccounts therein, such amount, if any, of any balance
remaining after making the deposits under clauses (a) and (b)
above (or the entire balance if less than the required amount)
as may be required to make the amount deposited to the credit of
the Ressrve Account and the subaccounts therein in such month
equal to the Reserve Account Deposit Requirement for all Bonds
for such month. In the event the amount available to be
deposited in the Reserve Account at any time is less than the
Reserve Account Deposit Requirement for all Bonds at such time,
the amount available shall be allocated among the various
subaccounts having a Reserve Account Deposit Requirement pro
rata, based upon the proportion that the Reserve Account Deposit
Requirement for each subaccount bears to the total Reserve
Account Deposit Requirement for all subaccounts.
(d) To the credit of the Renewal, Replacement and
Improvement Account, such amount, if any, of any balance
remainin9 after making the deposits under clauses (a), (b) and
(c) above (or the entire balance if less than the required
amount) as may be required to make the amount deposited in such
month to the credit of the Renewal, Replacement and Improvement
Account equal to one-twelfth (1/12) 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 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, required to 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
balance, 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 506. Payment of Current Expenses. The Current
Expenses shall be paid from the Revenue Account as the same
become due and payable. 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 in Bond Servige
Subaccoun~. 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 amount required for paying the interest on
such Bonds as such interest becomes due and payable and (ii)
with respect to s 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 Bonds withdraw from the Bond Service Subaccount and
deposit in trust with the Bond Registrar the amounts required
for paying the principal of all Ssrial Bonds as such principal
becomes du~ 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 8onds
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 the principal of such Bonds plus the amount of the
~edemption 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 City shall 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 be made by the City within the 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 City may 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 to satisfy 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 the period of 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 8ond Registrar
the respective amounts required for paying 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 the following order:
First: the Term Bonds of 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 of this
subdivision and, if the amount available in 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 th~ 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 Ser~es maturing on such date.
Upon the retirement o£ 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. Application of Moneys 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 ~he Amortization Requirements for the
Bonds for which such subac~ount 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 subaccoun% in the Reserve Account was
established, such excess s~all be withdrawn and deposited to the
credit of the Revenue Account; provided, however, the
Co~anission, pursuant to t~e 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 to be
deposited into such subaccoun% a Reserve Account Insurance
Policy or Reserve Account Letter of Credit fol the benefit of
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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. ADnlication 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 or other 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 the credit 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 ImDrovement Account. Except as ~ereinafter 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 is authorized to
make as hereinafter provided in this Section, shall be made in
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 the moneys held for the credit of the Bond
Service Subaccount, Redemption Subaccount, the Reserve Account
and Rate Stabilization Account Shall be insufficient for the
purpose of paying the interest on, the principal of and the
Amortization Requirements for the Bonds as the same become due
and payable, then the City shall withdraw from any moneys held
for the credit of the Renewal, Replacement and Improvement
Account and deposit to the credit of the Bond Service Subaccount
or Redemption Subaccount an amount sufficient to make up any
such deficiency. Any moneys s? withdrawn from the Renewal,
Replacement and Improvement Account and deposited to the credit
of the Bond Service Subaccount Dr the Redemption Subaccount
shall be restored from available moneys in the Revenue Account,
subject to the same conditions as are prescribed for deposits to
the credit of the Renewal, Replacement and Improvement Account
under the provisions of Section 50~ of this Article.
Section 513. Application of Mo~eys in General
Account. Moneys held for the qredlt of the General
Account may at the election of the' City be applied:
Reserve
Reserve
(a) to pay the Cost of Improvements,
(b) to purchase or redeem Bonds,
(c) to make up deficiencies in any of the accounts
and funds created by 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) upon the
approval of a majority of sll 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/Sths) of all members of the Commission, in
an amount in any Fiscal Year not 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 fox (a) the payment
of interest on the Bonds issued under the provisions of sections
208, 209 and 210 of this Resolution as such interest becomes due
and payable, or (b) the payment of the principal of such Bonds
at their maturities, or (c) the payment of the purchase ox
redemption price of such Bonds before their maturity, and such
moneys are hereby pledged to and charged with the payments
mentioned 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 callsd 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 Cityr to the extent permitted by State law,
in the following manner and order of priority:
FIRST, for deposit into the Bond Service Subaccount
and the Redemption Subaccount of the Sinking Fund Account,
as needed, in order to make payments of principal of,
redemption premium, if any, and interest on Bonds issued to
finance ox refinance the Costs of Improvements in respect
of which the Impact Fees have been imposed; and
SECOND, to pay the Costs of expanding, oversizin~,
separating or constructing Improvements in respect of which
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 an opinion of the City Attorney or of Bond Counsel
selected by the City to the effect that a greater amount is
permitted by State law, the maximum amount deposited into the
Bond Service Subaccount and the Redemption Subaccount of the
Sinking Fund Account in any Fiscal Year shall not exceed the
total Principal and Interest Requirements in such Fiscal Year
multiplied by a fraction, the numerato~ 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 denominato~ of which
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ARTICLE VI
DEPOSITARIES OF MONEYS, SECURITY FOR DEPOSITS
AND INVESTMENT OF FUNDS
Section 601. Security for Deposits. Ail moneys received
by the City under the provisions of this Resolution shall be
held either in accordance 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 held by 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 noE 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 to give security for any moneys which shall be
represented by obligations purchased under the provisions of
this Article as an investment of such moneys.
Ail moneys held by the City and deposited with each
Depositary shall be credited to the particular fund or 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 Suba¢count, the Reserve Account, the
Rate Stabilization Account, the Renewal, Replacement and
Improvement Account, the General Reserve Account and the Impact
Fee Account shall, as nearly as may be practicable, be
continuously invested and reinvested in Investment Obligations
which shall mature, or which shall be subject to redemption by
the holder 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 date of the Series of Bonds to which such subaccount
relates.
Investment Obligations so purchased as an investment of
moneys in any such fund or account shall be deemed at all times
to be part of such fund or account. The interest accruing
thereon and any profit realized from such investment shall be
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credited to such fund or account 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
credit of the Bond Service Subaccount and the Redemption
SubaccounE may, at the option of 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 against the 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 Requirement for the Series of Bonds for
which such subaccount was created, or if moneys on deposit
therein are sufficient for such purpose, then such earnings
shall be withdrawn and deposited to the credit of the Revenue
Account.
(c) Invsstment earnings on moneys on deposit to the
credit of the Rate Stabilization Account and the Renewal,
Replacement and Improvement Account may, at the option 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) Invesnment earnings on moneys on deposit to the
credit of the Construction Fund may, at the option of the City,
be retained in said Fund or, if deemed to be surplus to the
requirements of the Construction Fund, withdrawn and deposited
to the credit of the Revenue Account. Anything in this clause
(e) lo the contrary notwithstanding, no transfer of investment
earnings to the Revenue Account as 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 investmenno
Section 603. Valuation of Investment ObliGations, In
computing t~e amount in any fund created pursuant to the
provisions of this Resolution, obligations purchased as an
investment of moneys therein shall be valued at their fair
market value. Valuation on any particular date shall include
the amount of interest then earned or accrued 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 other times.
Section 604. Accountinq 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 sen 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 adequate accounting procedures are
maintained to reflect and control the restricted allocations of
the amounns on deposit therein for the various purposes of such
funds and accounts ss 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 %o
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 such certain priorities
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, it shall comply
with the requirements of the Code to the extent necessary to
preserve the exclusion from gross income for Federal income tax
purposes of the interest on the Bonds. Notwithstanding anything
to the contrary contained herein or otherwise, the City shall
nde be required 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 %ax purposes to
the Holders thereof under the Code.
ARTICLE VII
PARTICULAR COVENANTS
Section 701. Payment of Princioal. Interest and Premium;
Pledae 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 ~equired for the retirement of said
Bonds by purchase or redemption, according to the true intent
and meaning thereof. Such principal, interest and premium will
be payable solely from the 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 debt of 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 such Bonds constitute a charge, lien or encumbrance,
legal or equitable, upon any property of the City.
Section 702. Construction of Project and Improvements;
Operation of Utility System. The C~ty 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 the proceeds 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 if 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 er any part thereof in good repair
and in sound operating condition and will make all necessary
repairs, renewals and replacements, that it will duly observa
and comply with all valid requirements of any municipal or
governmental authority relative to the Utility System, that it
will 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,
ali 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 Consultina Enaineers. 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 firsf 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. Employment of Accountant. The City covenants
and agrees that it will for the purpose of performing and
carrying out the duties imposed on the Accountant by this
Resolution employ an independent certified public accountant or
firm of independent certified public accountants of suitable
experience and responsibility, having a favorable reputation for
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skill and experience in the auditing of waterworks and sewer
systems.
Section 705. ~nsurance. 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.
Ail such policies shall be for the benefit of the City,
shall be made payable to the City and shall be deposited with
the city, and the City shall have the sole right to receive the
proceeds of such policies and to collection and receipt for
claims thereunder. The proceeds of any and all such insurance
shall be deposited in the name of the City in a Depositary.
The City covenants that, immediately after any 10ss 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 thst the repair, replacement or reconstruction
of such property is nor essential to the efficient or economic
operation of the Utility System. In the event that the City
shall determine that the repair or replacement of such damaged
or destroyed property is not essential to the efficient or
economic operation of the Utility System, the proceeds of such
insurance received by the City, at the option of the City, shall
be deposited to the credit of either the Redemption SubaccounE
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 ~estroyed property, and shall be paid out in the
manner hereinabove provided for payments from the Consfruction
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 insufficient for such purpose, the deficiency
msy be supplied out of any moneys in the Renewal, Replacement
and Improvement Account.
Ail 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 demand, collect, sue and receipt for the insurance
money which may become due and payable under any policies
payable to it. Any appraisement or adjustment of any loss or
damage and any settlement or payment of indemnity therefor which
may be agreed upon between the City and any insurer shall be
evidenced to the Finance Director by s 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 be construed 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 the application 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 al/
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 audit ~eport 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 has been 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 that it will cause any
additional reports or audits relating to the Utility System to
be made as required by law. Such reports or 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.
Section 708. Franchises. Except as provided in Section
710 hereof and to the extent permitted by law, the City will not
§ran% a franchise to any person for the operation of a water,
sewe~ or stormwater system which would be in competition with
the Utility System so long as any Bonds are Outstanding unde~
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 losso
Section 710. Separate Systems. The Commission may by
resolution determine to own and operate Separate Systems;
provided, however, that prior to the adoption of any such
resolution designating any facilities as a Separate System,
there shall be delivered to the City Manager a certificate of
the Finance Director containing his determination that the
ownership and operation of such Separate System will not have a
material adverse impact on the Net Revenues of the Utility
System and stating the basis for such determination.
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 have no recourse against and are in
no way payable from 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
therefor shall 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 test mentioned above, the revenues and current expenses
of the Utility System and the debt service on any Utility Debt
payable from revenues of such Separate Systems shall be included
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in Principal and Interest Requirements. Prior to 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, fees or 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 user to 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 ho receive further water service
until all obligations owed by such user to the City on account
of services shall 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 the payment of delinquent
obligations, including, without limitation, procedures
permitting the payment of delinquencies over time. This
covenant shall not, however, prevent the City from causin'g any
connection to be shut off sooner if permitted by law.
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 fo~ the enforcement and collection of
such rates, fees and charges as shall become delinquent to the
full extent permitted o~ 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 of 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 extent permitted by law the City, without
restriction, may in any Fiscal Year sell, lease or otherwise
dispose of assets forming a part of the Utility System, the
aggregate value of which in each such Fiscal Year does not
exceed the greater of $1,000,000 or one half of one per centum
(1/2 of 1%) of the book value of fhe net property, plant and
equipment of the Utility System as shown on the audited
financial statements of the Utility System for the latest Fiscal
Year for which such audited statements are available. The
proceeds of a sale pursuant to this clause (a) and any rental
income received by the City from a lease of such property shall
be deposited to the credit of the Revenue Account.
(b) To the extent permitted by law the City may in
any Fiscal Year sell, lease or otherwise dispose of assets
forming a part of the Utility System in excess of the amount set
forth in clause (a) of this Section, if, before any such
transfer, there is delivered to the City Manager a report of the
Consulting Engineer or Rate Consultant demonstrating that the
sale, lease or other disposition of such property will not have
an adverse impact on the Net Revenues and stating the basis for
such conclusion. 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 deposited to the credit of the Revenue
Account.
(c) To the extent permitted by law the City may in
any Fiscal Year sell, lease os otherwise dispose of any assets
forming a part of the Utility System without regard to the
limitations and conditions in paragraphs (a) and (b) above if
the Commission by resolution declares that such assets are not
needed or serv~ 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 preperty shall be
deposited to the credit of the Revenue Account.
(d) To the extent permitted by law, the City may
sell, lease or otherwise dispose of the assets of the entire
Utility System, if, upon the application of the proceeds of any
such sale as hereinafter required, there shall be no Bonds
deemed to be Outstanding under the provisions of ~his Resolution
and the City shall have paid or made full provision for the
payment of all other obligations of ~he City payable from the
Revenues of the Utility System, including but not limited to,
Current Expenses then due and payable or to become due and
payable, and all other Utility Debt payable in any way from the
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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 obliqations,
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 8onds or other Utility Debt from gross
income for Federal income purposes.
Section 715. Financial Reporting, Notice of Default 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
Owner of a Bond (or a beneficial owner of a Bond, in %he 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 availsble 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 ali
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 msy 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":
(a) payment of the principal and of the redemption
premium, if any, of any of the Bonds shall not be made when the
same shall become due and payable, either at maturity or by
proceedings for redemption or otherwise; or
(b) payment of any installment of interest on any of
the Bonds shall not be made when the same shall become due and
payable; or
(c) the City shall for any reason be
incapable of fulfilling its obligations hereunder; or
rendered
(d) final judgment for the payment of money shall be
rendered against the City as a result of the ownership, control
or operation of the Utility System and any such judgment shall
not be discharged within sixty (60) days from the entry thereof
or an appeal shall not be taken therefrom or from the order,
decree or process upon which or pursuant to which such judgment
shall have been granted or entered, in such manner as to stay
the execution of or levy under such judgment, order, decree or
process or the enforcement thereof; or
(e) the City admits in writing its inability to pay
its debts generally as they become due, or files a petition in
bankruptcy or makes an assignment for the benefit of its
creditors or consents to the appointment of receiver or trustees
for itself o~ 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 City7 or
(f) the City is adjudged insolvent by a court of
competent jurisdiction, or is adjudged s bankrupt on a petition
in bankruptcy filed against the City, or an order, judgment or
decree is entered by a court of competent jurisdiction
appointing, without the consent of the City, a receiver or
trustee of the City or of the whole or any part of its property
and any of the aforesaid adjudications, orders, judgments or
decrees shall not be vacated or set aside or stayed within
ninety (90) days from the date of entry thereof; or
(g) the City shall file a petition or answer seeking
reorganization or 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
relisf or aid of debtors, any court of competent jurisdiction
shall assume custody or control of the City or of the whole or
any substantial part of its property, and such custody or
control shall not be terminated within ninety (90) days from the
date of assumption of such custody or control; or
(i) %he City shall default in the due and punctual
performance of any other of the covenants, conditions,
agreements and provisions contained in the Bonds or in this
Resolution on the part of the City to be performed and such
default shall continue for thirty (30) days after written notice
specifying such default and requiring 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, i~ts shall not constitute an
event of default if the City shall ~gin 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
clauses (a) through (i) of Section 801 of this Article, then and
in every such case the Holders of not less than a majority in
aggregate principal amount of the Bonds then Outstanding may, by
a notice in writing to the City, declare the principal of all of
the Bonds then Outstanding (if not then due and payable) to be
due and payable immediately, and upon such declaration the same
sh~ll become and be immediately due and 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 enforcemen~ of any
other remedy under this Resolution, moneys shall have
accumulated in the Sinking Fund Acceunt sufficient to pay the
principal of all matured BOnds an~ 411 arrears of interest, if
any, upon all Bonds then Qutstanding (except the principal of
any Bonds not then due except by virtue of such declaration and
the interest accrued on such Bo~dS 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 th~n due onl~ because of a declaration
under this Section) shall have been ~emedied, then and in every
such case the Holders of n~t less t~an a majority in aggregate
principal amount of the Bonds n6t th~n 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. Upon the happening
and continuance of any Event of Default then and in every such
case the Holders of not less 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 of any covenant or agreement
contained herein or in aid or execution of any power herein
granted or for the enforcement of any proper legal or equitable
remedy, as such 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 or not such Holder or
trustee is also seeking or shall have sought to enforce any
other right or exercise any other remedy in connection with
8onds 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 with respect 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 Resolution and comply under the
jurisdiction of the court appointing such receiver, with all of
the provisions of this Resolution.
Whenever all that is due upon the Bonds, and interest
thereon, and under any covenants of this Resolution for the
Funds and Accounts, and upon any other obligations and interest
thereon having a 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 fo 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 s receiver.
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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 orders and decrees as such court may deem necessary
or appropriate for the exercise by the receiver of any function
not specifically set forth herein.
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 8onds 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 8ondholders. 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
Fscility, 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 any time
the moneys in the Sinking Fund Account shall not be sufficient
to pay the principal of or the interest on the Bonds as the same
become due and payable (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) Unless the principal of all the Bonds shall have
become due and payable or shall have been declared due and
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payable, all such moneys shall be applied:
First: to the payment of the persons entitled
thereto of all installments of interest then due and
payable, 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 ho the amounts due on
such installment, to the persons entitled thereto, without
any discrimination or preference except as to any
difference in the respective rates of interest specified in
the Bonds;
Second: to the payment of the persons entitled
thereto of the unpaid principal of any of the Bonds which
shalll have become due (other than Bonds called for
redemption for the payment of which sufficient moneys are
held pursuanf to the provisions of this Resolution), in the
o~er 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 pay in full the
principal of Bonds due on any particular date, together
with such interest, then to the payment of such principal,
ratably according to the amounE of such principal due on
such date, to the persons entitled thereto without any
discrimination or preference except as to any difference in
the respective rates of interest specified in the Bonds; and
Third: to the payment of the interest on and the
principal of the Bonds, to the purchase and retirement of
Bonds and to the redemption of Bonds, all in accordance
with the provisions of 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 or of interest over
principal or of any installment of interest over any other
installment of interest, or of any Bond over any other Bond,
ratably, according to the amounts due respectively for principal
and interest, to the persons entitled thereto without any
discrimination or preference except as to any difference in %he
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 that the principal
of all the Bonds shall later become due or be declared due and
payable, the moneys remaining in and thereafter accruing to the
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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 acts with reasonable
diligence, having due regard to the circumstances, and
ultimately applies the sa~me in accordance with such provisions
of this Resolution as may be 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 give such 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 of Proceedinqs. 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 no such 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 or prejudice 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. No Remedy Exclusivg, No remedy herein
conferred upon the Bondholders is intended to be exclusive of
any other remedy or remedies herein provided, and each and every
such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder.
Section 808. Pela¥ 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 remedy given by this Article to the
Bondholder may be exercised from time to time and as often as
may be deemed expedient.
Section 809. Riqht to Enforce Payment Of Bonds, Nothing
in this Article shall affect or impai~ 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 sa~d Bond expressed.
ARTICLE IX
EXECUTION OF INSTRUMENTS BY BONDHOLDERS
AND PROOF OF OWNERSHIP OF BONDS
Section 901. Execution of Instruments bY Bondholders and
Proof of Ownershin of Bonds. Any ~equest, 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, by the laws thereof, has power to take
affidavits within such jurisdiction, to the effect that such
instrument was subscribed and sworn to before him, or by an
affidavit of a witness to such execution. Where such execution
is on behalf of a person other than an individual such
verification or affidavit shall also constitute sufficient proof
of the authority of the signer thereof.
(b) The 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
it may 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 ko recognize any person
as a Holder of any Bond or to take any action at his request
unless such Bond shall be deposited with it.
Section 902. Bond Insurer Deemed Holdgr. To the extent
provided in a Series Resolution, the issuer of any Credit
Facility with respect to any Series of Bonds shall be deemed to
be the holder of such Bonds.
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ARTICLE X
SUPPLEMENTAL RESOLUTIONS
Section 1001. Sunnlemental Resolutions Withouf
Bondholders' Consent. The Commission may, from time to time and
at any time adopt such Resolutions supplemental hereto as shall
not be inconsistent with the terms and provisions hereof (which
supplemental Resolution shall thereafter form a par% hereof):
(a) to cure any ambiguity or formal defect or
omission or to correct any inconsistent provisions in this
Resolution or in any supplemental Resolution, or
(b) to 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 and agreements of the
City in this Resolution other covenants and agreements
thereafter to be observed by the City or to surrender any right
or power herein reserved to or conferred upon the City, or
(e) to permit the issuance of Bonds in coupon form,
if as a condition precedent to the adoption of such supplemental
resolution, there shall be delivered to the City an opinion of
Bond Counsel to the effect that the issuance of Bonds in coupon
or bearer form are then permitted by law to be issued and that
the interest on such Bonds would be exempt from Federal income
taxation, or
(f) to permit the City to issue Bonds the interest on
which is not exempt from Federal income taxation;~or
(g) to qualify the Bonds or any of them for
registration under the Securities Act of 1933, as amended, or
the Securities Exchange Act of 1934, as amended, or
(h) to qualify 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. Supplemental Resolutions with Bondholders'
Consent. Subject to the terms and provisions contained in this
Section, and not otherwise, the Holders of not less than a
majority in aggregate principal amount of the Bonds then
outstanding shall have the right, from time to time, anything
contained in this Resolution to the contrary notwithstanding, to
consent to and approve the adoption of such resolution or
resolutions supplemental hereto as shall be deemed necessary or
desirable by the City for the purpose of modifying, altering,
amending, adding to or rescinding, in any particular, any of the
terms or provisions contained in this Resolution or in 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 or the interest on
any Bond issued hereunder, or (b) a reduction in the principal
amount of any Bond or the redemption premium or the rate of
interest thereon, or (c) the creation of a lien upon or a pledge
of Revenues other than the lien and pledge created by this
Resolution, or (d) a preference or priority of any Bond or Bonds
over any other Bond or Bonds, or (e) a reduction in the
aggregBte 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 of the adoption of any supplemental resolution as
authorized in Section 1001 of this Article.
The consent of the Holders of any series of Additional
Bonds to 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 if 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 forth the
nature of the proposed supplemental resolution and shall state
that the copies thereof are on file at the office of the City
Clerk for inspection by all Bondholders. The city shall nor,
however, be subject to any 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
such supplemental resolution when consented to and approved as
provided in 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 to be 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 supplemental resolution described in such notice and
shall specifically consent to and approve the adoption thereof
in substantially the form of the copy thereof referred to in
such notice, thereupon, but not otherwise, the 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 any right to object
to the adoption of such supplemental resolution, or to object to
any of the terms and provisions contained therein or the
operation thereof, or in any manner to question the propriety of
the adoption thereof, or to enjoin or restrain the commission
from adopting the same or from taking any action pursuant to the
provisions thereof.
Upon the adoption of any supplemental resolution pursuant
to the provisions of this Section, this Resolution shall be
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 thereafter be determined, exercised and enforced in all
respects under the provisions of this Resolution as so modified
and amended.
Section 1003. Summlemental Resolutions Part of Resolution,
Any supplemental Resolution adopted in accordance with the
provisions of this Article and approved as to legality by the
City Attorney shall thereafte~ form a part of this Resolution,
and all of the terms and conditions contained in any such
supplemental Resolution as to any provision authorized to be
contained therein shall be and shall be deemed to be part of the
terms and conditions of this Resolution for any and all
purposes. In case of the adoption and approval of any
supplemental Resolution, express reference may be made %hereof
in the text of any Bonds issued thereafter, if deemed necessary
or desirable by the City.
ARTICLE XI
DEFEASANCE
Section 1101. Cessation of Interests 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 the principal and the interest and premium, if any, so due
and payable upon all of the Bonds then Outstanding shall be paid
or sufficient moneys, or Government Obligations the prlnclpal of
and the interest (which with respect to any Variable Rate Bonds
shall be assumed to be the maximum interest rate permitted under
the documents governing such Variable Rate Bonds) on which when
due will provide sufficient moneys, shall be held by the 8ond
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 in that case the right, 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 and may apply any
surplus in any subaccount in the Sinking Fund Account and all
balances remaining in any other funds or accounts other than
moneys held for the redemption or payment of Bonds or the
interest thereon ~o 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 Registrar or 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 redeemed prior to their maturities or mandatory
redemption dates, a statement to the effect that such Bonds are
being paid at maturity and any Term Bonds are being redeemed in
amounts and at times which will satisfy the AmortizatIon
Requirements therefor, (b) a ~escription of the Government
Obligations so held by the Bond Registrar or other bank, trust
company or other appropriate financial institution, acting as
escrow agent, and (c) that this Resolution has been repealed and
cancelled in accordance with the provisions of this Section, and
in addition such notice shall be gilven in the same manner and to
the same persons entitled to receilve 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 will not 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 the financing of
Improvements or Capital Expenditures, as defined in this
Resolution, for the Utility System or Current Expenses of the
Utility System to the extent that expenditure 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
ho 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 agent on 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 the escrow agent shall provide for
withdrawal of such Current Excess Interest Earnings when
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) o~ 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 o~ Government Obligations, this
paragraph shall not apply.
Ail moneys and obligations held by the Bond Registrar or
other bank, trust company or othar appropriate financia~
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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. Ail covenants,
stipulations, obligations and agreements of the City contained
in this Resolution shal~ 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 trans'ferred 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 Givinq 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
Boynton Beach, Florida
Boulevard
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 8ondholder, and the agents and representatives
thereof.
Section 1203. Successorship 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 ~ight 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. Successorshim by City Offic~r~. 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 taw.
Section 1205. Inconsistent Resolutions. Ail resolutions
and parts thereof which are inconsistent with any of the
provisions of this Resolution are hereby declared to be
inapplicable to the provisions of this Resolution.
Section 120S. Further Acts. The officers and agents of
this City are hereby authorized and directed to do all the acts
and things required of them by the Bonds and this Resolution,
for the full, punctual and complete 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 Riqhts Un~er
Resolution. Except as herein otherwise expressly provided,
nothing in this Resolution, expressed or implied, is intended or
sh~ll be construed to confer upon shy person, firm or
corporation, other than the City and the Holders of the Bonds
issued under and secured by this Resolution, any right, remedy
or claim, legal or equitable, under or by reason of the
Resolution or any provisions 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 th~s Resolution or of any Bonds
or coupons issued hereunder shall for any reason be held to be
illegal or invalid, such illegality or invalidity shall not
affect any other provision of this Resolution or of the Bonds 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 the intent that 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:
Ci~/y Cl~rk
APPROVED AS TO/~M
CITY OF BOYNTON BEACH
By: Ma~o r
,. ~%mmis s loner
Commi s s~
~r
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5869M