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ORDINANCE NO. 6876-01
AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA,
AUTHORIZING IMPROVEMENT REVENUE BONDS, SERIES
[TO BE DETERMINED] TO FINANCE OR REFINANCE THE
COST OF DESIGN, ACQUISITION, CONSTRUCTION,
RECONSTRUCTION OR REFUNDING OF CERTAIN
IMPROVEMENTS WITHIN THE CITY OF CLEARWATER,
PLEDGING THE REVENUES OF THE PUBLIC SERVICE TAX
REVENUES FOR THE PAYMENT OF THE DEBT SERVICE ON
THE BONDS; PROVIDING FOR THE RIGHTS OF THE
HOLDERS OF SUCH BONDS; MAKING CERTAIN OTHER
COVENANTS AND AGREEMENTS IN CONNECTION
THEREWITH; PROVIDING CERTAIN OTHER MATTERS IN
CONNECTION THEREWITH; AND PROVIDING AN
EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF
CLEARWATER, FLORIDA:
SECTION 1. AUTHORITY FOR THIS ORDINANCE. This Ordinance is enacted
pursuant to Chapter 166, Part II, Florida Statutes, the Charter of the City of Clearwater and other
applicable provisions oflaw.
SECTION 2. DEFINITIONS. Unless the context otherwise requires, the terms
defined in this section shall have the meanings specified in this section. Words importing singular
number shall include the plural number in each case and vice versa, and words importing persons
shall include firms and corporations.
"Acquired Obligations" shall mean and include any of the following securities, if and to the
extent the same are at the time legal for investment of funds ofthe Issuer and are non callable prior
to their scheduled maturity date (or scheduled redemption date as permitted in paragraph (iii) below):
(i) any bonds or other obligations which as to principal and interest constitute direct
obligations of, or are unconditionally guaranteed by, the United States of America, including
obligations of any Federal agency or corporation which has been or may hereafter be created
pursuant to an act of Congress as an agency or instrumentality of the United States of America to the
extent unconditionally guaranteed by the United States of America (including but not limited to
obligations of the Resolution Funding Corporation) or any other evidences of an ownership interest
in obligations or in specified portions thereof (which may consist of specified portions of the interest
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thereon) of the character described in this clause (i) held by a bank or trust company as custodian,
under which the owner of the investment is the real party in interest and has the right to proceed
directly and individually against the obligor on the obligations described in this clause (i), and which
underlying obligations are not available to satisfy any claim ofthe custodian or any person claiming
through the custodian or to whom the custodian may be obligated; and
(ii) any bonds or other obligations of (a) the State of Florida or (b) any state or
governmental unit thereof which are rated at such time in the then highest rating category of two or
more nationally recognized municipal rating agencies; and
(iii) any bonds or other obligations of any state ofthe United States of America or of
any agency, instrumentality or local governmental unit of any such state (a) which are not callable at
the option of the obligor prior to maturity or as to which irrevocable notice has been given by the
obligor to call such bonds or obligations on the date specified in the notice, (b) which are fully
secured as to principal and interest and redemption premium, if any, by a fund consisting only of
cash or bonds or other obligations ofthe character described in clause (i) hereof which fund may be
applied only to the payment of such principal of and interest and redemption premium, if any, on
such bonds or other obligations on the maturity date or dates thereof or the specified redemption date
or dates pursuant to such irrevocable instructions, as appropriate, and (c) as to which the principal of
and interest on the bonds and obligations ofthe character described in clause (i) hereof which have
been deposited in such fund along with any cash on deposit in such fund is sufficient to pay principal
of and interest and redemption premium, if any, on the bonds or other obligations described in this
clause (iii) on the maturity date or dates thereof or on the redemption date or dates specified in the
irrevocable instructions referred to in subclause (a) of this clause (iii), as appropriate.
"Additional Parity Obligations" shall mean additional obligations issued in compliance with
the terms, conditions and limitations contained herein and which (i) shall have a lien on the Pledged
Revenues equal to that of the Bonds, (ii) shall be payable from the Pledged Revenues on a parity
with the Bonds, and (iii) rank equally in all other respects with the Bonds.
"Amortization Installment" shall mean an amount designated as such by supplemental
resolution of the Issuer and established with respect to any Term Bonds.
"Authorized Newspapers" shall mean a financial newspaper of general circulation in the
Borough of Manhattan, City and State of New York (including, at such times as they are published,
The New York Times, The Dailv Bond Buyer or The Wall Street Journal).
"Average Annual Bond Service Requirement" shall mean, as of the date ofca1cu1ation, the
total amount of Bond Service Requirement which is to become due on all Bonds deemed to be
Outstanding immediately after the issuance of such series of Bonds divided by the total number of
years for which Bonds are deemed to be Outstanding.
"Bond Insurance Policy" shall mean the municipal bond new issue insurance policy issued by
a Bond Insurer that guarantees payment of principal of and interest on the Bonds or any Additional
Parity Bonds.
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"Bond Insurer" shall mean the provider of a Bond Insurance Policy for a Series of Bonds so
designated in a supplemental resolution of the Issuer.
"Bond Service Requirement" shall mean, for any Bond Year, at any time, the amount
required to be deposited in such Bond Year into the Bond Service Fund, as provided herein. In
calculating such amount, the Issuer shall subtract therefrom any amounts to be transferred from the
Construction Fund for the purpose of paying interest on the Bonds. With respect to Variable Rate
Bonds, if any, the interest rate used to calculate the Bond Service Requirement shall be assumed to
be the highest variable rate borne over the preceding twenty-four (24) months by Outstanding
Variable Rate Bonds issued under this Ordinance or, ifno such Variable Rate Bonds are at the time
Outstanding under this Ordinance, by variable rate debt for which the interest rate is computed by
reference to an index comparable to that to be utilized in determining the interest rate for the debt
then proposed to be issued. If Bonds are Option Bonds, the date or dates of tender shall be
disregarded, unless actually tendered and not remarketed, and the stated maturity dates thereof shall
be used for purposes of this calculation, if such Option Bonds are required to be paid from Pledged
Revenues hereunder on such date of maturity.
"Bonds" shall mean (i) the Improvement Revenue Refunding Bonds, Series 2001 herein
authorized to be issued and (ii) any Additional Parity Obligations permitted to be issued hereunder
from time to time in accordance with the provisions hereof.
"Bond Counsel" shall mean initially Bryant, Miller and Olive, P.A. or any attorney at law or
firm of attorneys of nationally recognized standing in matters pertaining to the exclusion from gross
income for federal income tax purposes of interest on obligations issued by states and political
subdivisions, and duly admitted to practice law before the highest court of any state of the United
States of America.
"Bond Service Fund" shall mean the Bond Service Fund created and established pursuant to
Section 16 of this Ordinance.
"Bond Year" shall mean the period commencing and ending on such dates as shall be
approved by supplemental resolution of the Issuer.
"Capital Appreciation Bonds" shall mean the aggregate principal amount ofthe Bonds that
bear interest payable solely at maturity or upon redemption prior to maturity in the amounts
determined by reference to the Compounded Amounts, all as shall be determined by supplemental
resolution of the Issuer. In the case of Capital Appreciation Bonds that are convertible to Bonds with
interest payable prior to maturity or redemption of such Bonds, such Bonds shall be considered
Capital Appreciation Bonds only during the period of time prior to such conversion.
"Capital Appreciation Income Bonds" shall mean those Bonds initially issued as Capital
Appreciation Bonds and which become Current Interest Bonds when the original issue amount and
the Compounded Amount equals $5,000 principal amount or an integral multiple thereof as
determined by subsequent resolution of the Issuer.
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In the case of Capital Appreciation Bonds that are convertible to Bonds with interest payable prior to
maturity or redemption of such Bonds, such Bonds shall be considered Capital Appreciation Bonds only
during the period of time prior to such conversion.
"Capital Appreciation Income Bonds" shall mean those Bonds initially issued as Capital
Appreciation Bonds and which become Current Interest Bonds when the original issue amount and the
Compounded Amount equals $5,000 principal amount or an integral multiple thereof as determined by
subsequent resolution of the Issuer.
"City Manager" shall mean the City Manager of the Issuer.
"Clerk" shall mean the City Clerk of the Issuer.
"Compounded Amounts" shall mean, as of any date of computation with respect to any Capital
Appreciation Bond, an amount equal to the principal amount of such Capital Appreciation Bond (the
principal amount at its initial offering) plus the interest accrued on such Capital Appreciation Bond from the
date of delivery to the original purchasers thereof to the interest date next preceding the date of computation
or the date of computation if an interest date, such interest to accrue at the applicable rate which shall not.
exceed the legal rate, compounded semiannually, plus, with respect to matters related to the payment upon
redemption or acceleration of the Capital Appreciation Bonds, if such date of computation shall not be an
interest date, a portion of the difference between the Compounded Amount as of the immediately preceding
interest date and the Compounded Amount as of the immediately succeeding interest date, calculated based
on the assumption that the Compounded Amount accrues during any semi-annual period in equal daily
amounts on the basis of a 360-day year of twelve 30-day months.
"Construction Fund" shall mean the Construction Fund created and established pursuant to Section
16 of this Ordinance.
"Escrow Deposit Agreement" means that certain Escrow Deposit Agreement by and between the
Issuer and a bank or trust company to be selected and named by the Issuer as determined by subsequent
Resolution of the Issuer relating to a specific Series of Bonds adopted prior to the issuance of such Bonds,
in such form as shall be approved by subsequent resolution of the Issuer adopted prior to the issuance of
any series of refunding bonds.
"Finance Director" shall mean the Financial Services Administrator of the Issuer or her designee.
"Fiscal Year" shall mean the period commencing on October I of each year and ending on the next
succeeding September 30 or such other annual period as may be prescribed by law from time to time for
the Issuer.
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"Holder of Bonds" or "Bondholders" or any similar term shall mean any persons who shall be the
registered owner of any outstanding Bonds.
"Interest Account" shall mean the special account of the same name created within the Bond
Service Fund.
"Issuer" or "City" shall mean the City of Clearwater, Florida.
"Maximum Bond Service Requirement" shall mean, as of any particular date of calculation, the
greatest amount of Bond Service Requirement for the then current or any future Bond Year, if any.
"Mayor-Commissioner" shall mean the Mayor-Commissioner or the Vice Mayor of the City
Commission of the Issuer, or such other person as may be duly authorized by the Mayor-Commissioner
to act on his or her behalf.
"200 I Project" shall mean the Project authorized to be financed with the proceeds of the Series
2001 Bonds to provide the City adequate funds to defease the Issuer's Florida Public Service Tax and
Bridge Revenue Bonds, Series 1985 (the "Series 1985 Bonds") and Improvement Revenue Bonds, Series .
1995 (the "Series 1995 Bonds") (Municipal Services/Public Safety and Policy Complex Project), a portion
of the cost of which are to be paid from the proceeds of the Series 2001 Bonds.
"Option Bonds" shall mean Bonds subject to tender for payment prior to their maturity at the option
of the Holder thereof.
"Ordinance" shall mean this ordinance as from time to time may be amended or supplemented, in
accordance with the terms hereof.
"Outstanding" or "Bonds Outstanding" shall mean all Bonds which have been issued pursuant to this
Ordinance, except:
(i) Bonds canceled after purchase in the open market or because of payment at or
redemption prior to maturity;
(ii) Bonds for the payment or redemption of which cash funds or Acquired Obligations or
any combination thereof shall have been theretofore irrevocably set aside in a special account with an
escrow agent (whether upon or prior to the maturity or redemption date of any such Bonds) in an amount
which, together with earnings on such Acquired Obligations, will be sufficient to pay the principal of and
interest on such Bonds at maturity or upon their earlier redemption; provided that, if such Bonds are to be
redeemed before the maturity thereof, notice of such redemption shall have been given according to the
requirements of this Ordinance or irrevocable instructions directing the timely publication of such notice and
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directing the payment of the principal of and interest on all such Bonds at such redemption dates shall have
been given; and
(iii) Bonds which are deemed paid pursuant to this Ordinance or in lieu of which other
Bonds have been issued under Sections 11 and 13 hereof.
"Paying Agent" shall mean any paying agent for Bonds appointed by or pursuant to a supplemental
resolution and its successors or assigns, and any other Person which may at any time be substituted in its
place pursuant to a supplemental resolution.
"Permitted Investments" shall mean as follows, provided, however, that investment in Permitted
Investments shall only be undertaken in accordance with the Issuer's investment policy in effect at such time
or as specifically permitted by subsequent resolution of the Issuer:
(1) Bonds or other obligations which as to principal and interest constitute direct obligations of,
or are unconditionally guaranteed by, the United States of America, including any of the federal agencies .
and federally sponsored entities set forth in clause (3) hereinafter to the extent guaranteed by the United
States of America. In the event these securities are used for defeasance, they shall be non-callable and
non-prepayable;
(2) Obligations of any of the following federal agencies or federally sponsored entities which
obligations represent the full faith and credit (guaranteed obligations) of the United States of America, in
the event these securities are used for defeasance, they shall be non-callable and non-prepayable, (including
but not limited to) the following:
a. Export-Import Bank;
b. Farm Credit System Financial Assistance Corporation;
c. Rural Economic Community Development Administration (formerly the Farmers Home
Administration);
d. General Services Administration;
e. U.S. Maritime Administration;
f. Small Business Administration;
g. Government National Mortgage Association (GNMA);
h. U.S. Department of Housing & Urban Development (PHA's);
1. Federal Housing Administration; and
J. Federal Financing Bank
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(3) Direct obligations of any of the following federal agencies or federally sponsored entities
which are not fully guaranteed by the full faith and credit of the United States of America, in the event these
securities are used for defeasance, they shall be non-callable and non-prepayable:
a. Federal National Mortgage Association (FNMA);
b. Federal Home Loan Mortgage Corporation (FHLMC);
c. Resolution Funding Corporation (REFCORP);
d. Student Loan Marketing Association (SLMA);
e. Federal Home Loan Bank Systems (FHLB); and
f. Obligations of other Government Sponsored Agencies (approved by the Insurer).
The following obligations may be used as Permitted Investments for all purposes other than defeasance
investments in refunding escrow accounts.
(4) Commercial paper which is rated at the time of purchase in the highest classification
(without regard to qualifier), "A-I" by S&P and "P-l" by Moody's and which matures not more than 270
days after the date of purchase.
(5) Investment agreements the provider of which is rated in one of the two highest rating
categories, without regard to qualifiers, by two Rating Agencies under which the provider agrees to
periodically deliver, on a delivery versus payment basis, such securities as are described in clauses (1-4)
above.
(6) Investment agreements the provider of which is rated in one of the two highest rating
categories, without regard to qualifiers, by two Rating Agencies and which are continuously and fully
secured by such securities as are described in clauses (1-3) above, which securities shall have a market
value at all times at least equal to 102% of the principal amount invested under the investment agreement
(marked to market at least weekly).
(7) The pooled investment program of the State of Florida administered by the State Board
of Administration, known as the Local Government Surplus Funds Trust Fund, established pursuant to
Chapter 218, Part IV, Florida Statutes, as amended.
(8) Other forms of investments (including repurchase agreements) approved in writing by the
Bond Insurer with notice to Standard & Poor's.
"Person" shall mean an individual, a corporation, a partnership, an association, a joint stock
company, a trust, any unincorporated organization or governmental entity.
"Pledged Revenues" shall mean (1) the Public Service Tax and (2), except for testing the amount
of Pledged Revenues in connection with the issuance of Additional Bonds in accordance with Section 20(F)
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hereof, until applied in accordance with the provisions of this Ordinance, all moneys, including investments
thereof, in the funds and accounts established hereunder, other than the Rebate Fund.
"Principal Account" shall mean the special account of the same name created within the Bond
Service Fund.
"Project" or "Projects" shall mean the cost of the design, acquisition, construction or reconstruction
of capital improvements within the City or the refinancing of outstanding debt obligations of the City, the
proceeds of which financed such projects, all as determined by the Issuer in a subsequent resolution and
in accordance with plans and specifications on file or to be filed with the Issuer.
"Project Costs" shall mean all costs authorized to be paid from the Construction Fund pursuant to
Section 18 hereof to the extent permitted under the laws of the State, which costs shall include the costs
of issuing any series of Bonds hereunder. It is intended that this definition be broadly construed to
encompass all costs, expenses and liabilities of the Issuer related to the Project or Projects in the future shall
be permitted to be funded with the proceeds of any Series of Bonds pursuant to the laws of the State.
"Public Service Tax" shall mean the taxes levied and collected within the area of the Issuer on the
purchases of utilities services pursuant to Section 166.231, Florida Statutes, and Article III, Public Service
Tax, of Chapter 44 of the Code of Ordinances, City of Clearwater and after October 1, 2001, shall also
mean the Issuer's portion of the Communication Services Tax levied in accordance with Chapter 2000-26-
, Laws of Florida, which replaced local government's public service taxes on telecommunication services.
"Rebate Fund" shall mean the Rebate Fund created pursuant to Section 29 of this Ordinance.
"Redemption Account" shall mean the special account of the same name created within the Bond
Service Fund.
"Refunding Bonds" shall mean that amount of any Series of Bonds, the proceeds of which will be
applied to the refunding of any previously issued Bonds.
"Registrar" shall mean any registrar for the Bonds appointed by or pursuant to supplemental
resolution and its successors and assigns, and any other Person which may at any time be substituted in its
place pursuant to supplemental resolution.
"Reserve Fund" shall mean the Reserve Fund created and established pursuant to Section 16 of
this Ordinance.
"Reserve Requirement" shall be such amount, if any, as determined by subsequent Resolution of
the Issuer relating to a specific Series of Bonds adopted prior to the issuance of such Bonds, which may
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Ordinance No. 6876-01
not exceed the lesser of (i) the Maximum Bond Service Requirement, (ii) 125% of the Average Annual
Bond Service Requirement or (iii) the largest amount as shall not adversely affect the exclusion of interest
on the Bonds from gross income for Federal income tax purposes.
"Revenue Fund" shall mean the Revenue Fund created and established pursuant to Section 16 of
this Ordinance.
"Serial Bonds" shall mean all of the Bonds other than Term Bonds, as shall be determined by
supplemental resolution of the Issuer.
"Series" or "Series of Bonds" or "Bonds of a Series" shall mean all Bonds designated as being of
the same Series issued and delivered on original issuance in a simultaneous transaction, and any Bonds
thereafter delivered in lieu thereof or in substitution therefor pursuant to this Ordinance.
"Series 1985 Bonds" shall mean the City of Clearwater, Florida Public Service Tax and Bridge
Revenue Bonds, Series 1985.
"Series 1995 Bonds" shall mean the City of Clearwater, Florida, Improvement Revenue Bonds, .
Series 1995.
"Series 200 I Bonds" shall mean the initial Series of Bonds under this Ordinance as provided for
in Section 6 thereof.
"State" shall mean the State of Florida.
"Subordinated Debt Service Fund" shall mean the Subordinated Debt Service Fund created and
established pursuant to Section 16 hereof.
"Subordinated Indebtedness" shall mean indebtedness of the Issuer, subordinate and junior to the
Bonds, which is payable from the Subordinated Debt Service Fund created pursuant to Section 16 hereof.
"Term Bonds" shall mean the Bonds of a series, all of which shall be stated to mature on one date,
but which amortize a portion of the principal thereof prior to the maturity date through mandatory
redemption, as shall be determined by supplemental resolution of the Issuer.
"Variable Rate Bonds" shall mean obligations issued with a variable, adjustable, convertible or other
similar rate which is not fixed in percentage at the date of issue for the entire term thereof as shall be
determined by supplemental resolution of the Issuer.
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Ordinance No. 6876-01
The tenns "herein," "hereunder," "hereby," "hereto," "hereof' and any similar terms shall refer to this
Ordinance; the term "heretofore" shall mean before the date of adoption of this Ordinance; and the term
"hereafter" shall mean after the date of adoption of this Ordinance.
Words importing the masculine gender include every other gender. Words importing the singular
number include the plural number, and vice versa.
SECTION 3.
FINDINGS. It is hereby ascertained, determined and declared that:
(A) It is in the best interest of the Issuer that the Issuer authorize the issuance of the Series 2001
Bonds to provide the City adequate funds to refund, and thereby defease the Series 1985 Bonds and the
Series 1995 Bonds in full to fund a debt service reserve fund, and to pay the costs of issuance of the
Bonds, including the premium for a municipal bond insurance policy, if any, and the premium for a debt
service reserve fund policy, if any.
(B) Such Bonds shall be payable solely from the Pledged Revenues.
(C) Any Series of Bonds, after the issuance of the Series 2001 Bonds, and the Projects to be
funded with the proceeds of such Series of Bonds, shall be issued and such Projects shall be undertaken
upon approval by supplemental resolution of the Issuer as provided by law. The proceeds of any Series
of Bonds shall be applied as provided in a supplemental ordinance or resolution.
(D) The principal of and interest and redemption premium on the Bonds and all reserve and other
payments shall be payable solely from the Pledged Revenues. The Issuer shall never be required to levy
ad valorem taxes on any real or personal property therein to pay the principal of and interest on the Bonds
herein authorized or to make any other payments provided for herein. The Bonds shall not constitute a lien
upon any properties owned by or located within the boundaries of the Issuer or upon any property other
than the Pledged Revenues.
(E) The Pledged Revenues should be sufficient to pay all principal of and interest and
redemption premium on the Bonds to be issued hereunder, as the same become due, and to make all
required deposits or payments required by this Ordinance.
SECTION 4. TillS ORDINANCE TO CONSTITUTE CONTRACT. In consideration
of the acceptance of the Bonds authorized to be issued hereunder by those who shall hold the same from
time to time, this Ordinance shall be deemed to be and shall constitute a contract between the Issuer and
such Holders. The covenants and agreements herein set forth to be performed by the Issuer shall be for
the equal benefit, protection and security of the legal Holders of any and all of the Bonds, all of which shall
be of equal rank and without preference, priority or distinction of any of the Bonds over any other thereof,
except as expressly provided therein and herein.
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Ordinance No. 6876-01
SECTION 5. AUTHORIZATION OF BONDS. Subject and pursuant to the
provisions hereof and as shall be described in subsequent resolutions of the Issuer to be adopted prior to
the issuance of any series of Bonds, obligations of the Issuer to be known as "Improvement Revenue
[Refunding] Bonds, Series [to be determined]" are authorized to be issued in one or more series (including
Additional Parity Obligations) from time to time. There is expressly authorized to be issued an initial Series
of Bonds to be called the "Improvement Revenue Refunding Bonds, Series 200 I", the proceeds of which
will used to refund the Series 1985 Bonds and the Series 1995 Bonds and fund the costs of the 2001
Bonds. The aggregate principal amount of the Bonds which may be executed and delivered under this
Ordinance is not limited except as is or may hereafter be provided in Section 20(F) of this Ordinance or
as limited by the Act or by law.
SECTION 6. AUTHORIZATION OF SERIES 2001 BONDS. There is hereby
authorized to be issued the City's Improvement Revenue Refunding Bonds, Series 2001(the "Bonds"), in
the principal amount necessary to provide the City adequate funds to defease the Series 1985 Bonds and
the Series 1995 Bonds in full, to fund the debt service reserve fund and to pay the costs of issuance of the
Bonds, including the premium for a municipal bond insurance policy, if any, and the premium for debt
service reserve fund policy, if any.
SECTION 7. DESCRIPTION OF BONDS. The Bonds shall be issued in fully
registered form; may be Capital Appreciation Bonds, Capital Appreciation Income Bonds, Variable Rate
Bonds, Serial Bonds or Term Bonds; shall be dated; shall be numbered consecutively from one upward
in order of maturity preceded by the letter "R"; shall be in the denomination of $5 ,000 each, or integral
multiples thereof for the Serial Bonds and in $5,000 maturity amounts for the Capital Appreciation Bonds
or in $5,000 multiples thereof, or such other denominations as shall be approved by the Issuer in a
supplemental resolution prior to the delivery of the Bonds; shall have a Paying Agent and Registrar
designated by the Issuer in a supplemental resolution of the Issuer adopted prior to the issuance of the
applicable Series of Bonds; shall bear interest at such rate or rates not exceeding the maximum rate allowed
by State law, the actual rate or rates to be approved by the governing body of the Issuer prior to or upon
the sale of the Bonds; such interest to be payable semiannually at such times as are fixed by supplemental
resolution of the Issuer if other than Capital Appreciation Bonds and shall mature annually on such date in
such years (not exceeding 30 years from the date of issuance) and such amounts as will be fixed by
supplemental resolution of the Issuer prior to or upon the sale of the Bonds; and may be issued with
variable, adjustable, convertible or other rates with original issue discounts and as Capital Appreciation
Bonds; all as the Issuer shall provide herein or hereafter by supplemental resolution.
Each Series of Bonds (except any Capital Appreciation Bonds) shall bear interest from the interest
payment date next preceding the date on which it is authenticated, unless authenticated on an interest
payment date, in which case it shall bear interest from such interest payment date, or, unless authenticated
prior to the first interest payment date, in which case it shall bear interest from its date; provided, however,
that if at the time of authentication payment of any interest which is due and payable has not been made,
such Serial Bond shall bear interest from the date to which interest shall have been paid.
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Ordinance No. 6876-01
The Capital Appreciation Bonds shall bear interest only at maturity or upon redemption prior to
maturity in the amount determined by reference to the Compounded Amount.
The principal of and the interest redemption premium, if any, on the Bonds shall be payable in any
coin or currency of the United States of America which on the respective dates of payment thereof is legal
tender for the payment of public and private debts. The interest on the Bonds shall be payable by the
Paying Agent on each interest payment date to the person appearing on the registration books of the Issuer
hereinafter provided for as the registered Holder thereof, by check or draft mailed to such registered
Holder at his address as it appears on such registration books or by wire transfer to Holders of $1 ,000,000
or more in principal amount of the Bonds. Payment of the principal of all Bonds except Capital
Appreciation Bonds, and the Compounded Amount with respect to the Capital Appreciation Bonds, shall
be made upon the presentation and surrender of such Bonds as the same shall become due and payable.
Notwithstanding any other provisions of this section, the Issuer may, at its option, prior to the date
of issuance of any Series of Bonds, elect to use an immobilization system or pure book-entry system with
respect to issuance of such Series of Bonds, provided adequate records will be kept with respect to the
ownership of such Series of Bonds issued in book-entry form or the beneficial ownership of bonds issued
in the name of a nominee. As long as any Bonds are outstanding in book-entry form the provisions of this
Ordinance inconsistent with such system of book -entry registration shall not be applicable to such Bonds.
The details of any altemative system of issuance, as described in this paragraph, shall be set forth in a
resolution of the Issuer duly adopted at or prior to the sale of such Series of Bonds.
SECTION 8. EXECUTION OF BONDS. The Bonds shall be signed by, or bear
the facsimile signatures of the Mayor-Commissioner and City Manager of the Issuer and shall be attested
by, or bear the facsimile signature of, the Clerk, and shall be approved as to form and legal sufficiency by
the City Attomey and a facsimile of the official seal of the Issuer shall be imprinted on the Bonds.
In case any officer whose signature or a facsimile of whose signature shall appear on any Bonds
shall cease to be such officer before the delivery of such Bonds, such signature or such facsimile shall
nevertheless be valid and sufficient for all purposes the same as ifhe has remained in office until such
delivery. Any Bond may bear the facsimile signature of or may be signed by such persons who, at the
actual time of the execution of such Bond, shall be the proper officers to sign such Bonds although, at the
date of such Bond, such persons may not have been such officers. The validation certificate endorsed on
the Bonds shall be executed by the Mayor-Commissioner by his manual or facsimile signature.
SECTION 9. AUTHENTICATION OF BONDS. Only such of the Bonds as
shall have endorsed thereon a certificate of authentication substantially in the form hereinbelow set forth,
duly executed by the Registrar, as authenticating agent, shall be entitled to any benefit or security under this
Ordinance. No Bond shall be valid or obligatory for any purpose unless and until such certificate of
authentication shall have been duly executed by the Registrar, and such certificate of the Registrar upon any
such Bond shall be conclusive evidence that such Bond has been duly authenticated and delivered under
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Ordinance No. 6876-01
this Ordinance. The Registrar's certificate of authentication on any Bond shall be deemed to have been duly
executed if signed by an authorized officer of the Registrar, but it shall not be necessary that the same officer
sign the certificate of authentication of all of the Bonds that may be issued hereunder at anyone time.
SECTION' 10. EXCHANGE OF BONDS. Any Bonds, upon surrender thereof at
the principal corporate trust office of the Registrar, together with an assignment duly executed by the
Bondholder or his attomey or legal representative in such form as shall be satisfactory to the Registrar, may,
at the option of the Bondholder, be exchanged for an aggregate principal amount of Bonds equal to the
principal amount of the Bond or Bonds so surrendered.
The Registrar shall make provision for the exchange of Bonds at the principal corporate trust office
of the Registrar.
SECTION 11. NEGOTIABILITY, REGISTRATION AND TRANSFER OF
BONDS. The Registrar shall keep books for the registration of and for the registration of transfers of
Bonds as provided in this Ordinance. The transfer of any Bonds may be registered only upon such books
and only upon surrender thereof to the Registrar together with an assignment duly executed by the
Bondholder or his attorney or legal representative in such form as shall be satisfactory to the Registrar.
Upon any such registration of transfer, the Issuer shall execute and the Registrar shall authenticate and
deliver in exchange for such Bond, a new Bond or Bonds registered in the name of the transferee, and in
an aggregate principal amount equal to the principal amount of such Bond or Bonds so surrendered.
In all cases in which Bonds shall be exchanged, the Issuer shall execute and the Registrar shall
authenticate and deliver, at the earliest practicable time, a new Bond or Bonds of the same type (e.g., Serial
Bonds will be exchanged for Serial Bonds and Capital Appreciation Bonds will be exchanged for Capital
Appreciation Bonds) in accordance with the provisions of this Ordinance. All Bonds surrendered in any
such exchange or registration of transfer shall forthwith be canceled by the Registrar. The Issuer or the
Registrar may make a charge for every such exchange or registration of transfer of Bonds sufficient to
reimburse it for any tax or other governmental charge required to be paid with respect to such exchange
or registration of transfer, but no other charge shall be made to any Bondholder for the privilege of
exchanging or registering the transfer of Bonds under the provisions of this Ordinance.
SECTION 12. OWNERSHIP OF BONDS. The person in whose name any Bond
shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and
payment of or on account of the principal or redemption price of any such Bond, and the interest on any
such Bonds shall be made only to or upon the order of the registered owner thereof or his 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 13.
BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In
13
Ordinance No. 6876-01
case any Bond shall become mutilated, or be destroyed, stolen or lost, the Issuer may in its discretion cause
to be executed, and the Registrar shall authenticate and deliver, a new Bond oflike date and tenor as the
Bond so mutilated, destroyed, stolen or lost (e.g., Serial Bonds shall be issued in exchange for Serial Bonds
and Capital Appreciation Bonds shall be issued in exchange for Capital Appreciation Bonds) in exchange
and substitution for such mutilated Bond upon surrender and cancellation of such mutilated Bond or in lieu
of and substitution for the Bond destroyed, stolen or lost, and upon the Holder furnishing the Issuer and the
Registrar proof of his ownership thereof and satisfactory indemnity and complying with such other rea-
sonable regulations and conditions as the Issuer and the Registrar may prescribe and paying such expenses
as the Issuer and the Registrar may incur. All Bonds so surrendered shall be canceled by the Issuer. If any
of the Bonds shall have matured or be about to mature, instead of issuing a substitute Bond, the Issuer may
pay the same, upon being indemnified as aforesaid, and if such Bond be lost, stolen or destroyed, without
surrender thereof.
Any such duplicate Bonds issued pursuant to this Section shall constitute original, additional
contractual obligations on the part of the Issuer whether or not the lost, stolen or destroyed Bonds be at
any time found by anyone, and such duplicate Bonds shall be entitled to equal and proportionate benefits
and rights as to lien on and source and security for payment from the funds, as hereinafter pledged, to the
same extent as all other Bonds issued hereunder.
SECTION 14. PROVISIONS FOR REDEMPTION. The Bonds shall be subject
to redemption prior to their maturity, at the option of the Issuer, at such times and in such manner as shall
be fixed by supplemental resolution of the Issuer prior to or at the time of sale of the Bonds.
Notice of such redemption shall, at least thirty (30) days prior to the redemption date, be filed with
the Registrar, and mailed, first class mail, postage prepaid, to all Holders of Bonds to be redeemed at their
addresses as they appear on the registration books hereinbefore provided for, but failure to mail such notice
to one or more Holders of Bonds shall not affect the validity of the proceedings for such redemption with
respect to Holders of Bonds to which notice was duly mailed hereunder. Each such notice shall set forth
the date fixed for redemption, the redemption price to be paid and, ifless than all of the Bonds of one
maturity are to be called, the distinctive numbers of such Bonds to be redeemed and in the case of Bonds
to be redeemed in part only, the portion of the principal amount thereof to be redeemed.
Any notice of optional redemption, other than with respect to a refunding, shall be circulated only
if sufficient funds have been deposited in the Bond Service Fund to pay the redemption price of the Series
of Bonds to be redeemed.
Official notice of redemption having been given as aforesaid, the Bonds or portions of Bonds to
be redeemed shall, on the redemption date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Issuer shall default in the payment of the redemption
price) such Bonds or portions of Bonds shall cease to bear interest. Upon surrender of such Bonds for
redemption in accordance with said notice, such Bonds shall be paid by the Registrar at the redemption
14
Ordinance No. 6876-01
price. Each check or other transfer of funds issued by the Registrar for the purpose of the payment of the
redemption price of Bonds being redeemed shall bear the CUSIP number identifying, by issue and maturity,
the Bonds being redeemed with the proceeds of such check or other transfer. Installments of interest due
on or prior to the redemption date shall be payable as herein provided for payment of interest. Upon
surrender for any partial redemption of any Bond, there shall be prepared for the Holder a new Bond or
Bonds of the same maturity in the amount of the unpaid principal of such partially redeemed Bond. All
Bonds which have been redeemed shall be canceled and destroyed by the Registrar and shall not be
reissued.
In addition to the foregoing notice, further notice may, but shall not be required to be given by the
Issuer as set out below, but no defect in said further notice nor any failure to give all or any portion of such
further notice shall in any manner defeat the effectiveness of a call for redemption if notice thereof is given
as above prescribed.
(1) Each further notice of redemption given hereunder shall contain the information
required above for an official notice of redemption plus (i) the CUSIP numbers of all Bonds being
redeemed; (ii) the date of issue of the Bonds as originally issued; (iii) the rate of interest bome by
each Bond being redeemed; (iv) the maturity date of each Bond being redeemed; and (v) any other
descriptive information needed to identify accurately the Bonds being redeemed.
(2) Each further notice of redemption shall be sent at least 35 days before the
redemption date by registered or certified mail or overnight delivery service to all registered
securities depositories then in the business of holding substantial amounts of obligations of types
similar to the type of which the Bonds consist (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) and to one or more national information
services that disseminates notices of redemption of obligations such as the Bonds.
SECTION 15. FORM OF BONDS. The text of the Bonds, together with the
certificate of authentication to be endorsed therein, shall be in substantially the following form, with such
omissions, insertions and variations as may be necessary, desirable, authorized or permitted by this
Ordinance or by any supplemental resolution adopted prior to the issuance thereof, or as may be necessary
if the Bonds or a portion thereof are issued as Capital Appreciation Bonds, Option Bonds, Variable Rate
Bonds, or as may be necessary to comply with applicable laws, rules and regulations of the United States
and of the State in effect upon the issuance thereof. The text of any Series of Bonds, other than the Bonds
shall be as determined by supplemental ordinance or resolution of the Issuer.
15
Ordinance No. 6876-01
[FORM OF BOND]
No.R-
$-
UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF PINELLAS
CITY OF CLEARWATER
IMPROVEMENT REVENUE [REFUNDING] BONDS, SERIES [TO BE DETERMINED]
MATURITY DATE:
INTEREST RATE:
DATED DATE:
CUSIP:
Registered Owner:
Principal Amount:
KNOW ALL MEN BY THESE PRESENTS that the City of Clearwater, Florida (hereinafter
called the "Issuer") for value received, hereby promises to pay to the order of the Registered Owner .
identified above or registered assigns, as herein provided, on the Maturity Date identified above, upon the
presentation and surrender hereof at the principal corporate trust office of
_, in the City of , from the revenues hereinafter mentioned, the Principal
Amount identified above in any coin or currency of the United States of America which on the date of
payment thereof is legal tender for the payment of public and private debts, and to pay, solely from said
sources, to the Registered Owner hereofby wire transfer or check transmitted to the Registered Owner
at his address as it appears on the Bond registration books of the Issuer as it appears on the 15th day of
the calendar month preceding the applicable interest payment date, interest on said Principal Amount at the
Interest Rate per annum identified above on each _ 1 and 1 commencing , _ from
the interest payment date next preceding the date of registration and authentication of this Bond, unless this
Bond is registered and authenticated as of an interest payment date, in which case it shall bear interest from
said interest payment date, or unless this Bond is registered and authenticated prior to _, _, in which
event this Bond shall bear interest from
'-'
The Bonds of this issue [shall not be] [shall be] subject to redemption prior to their maturity at the
option of the Issuer.
(Insert Optional or Mandatory Redemption Provisions)
Notice of such redemption shall be given in the manner required by the Resolution described below.
This Bond is one of an authorized issue of Bonds in the aggregate principal amount of $_ of
like date, tenor and effect, except as to number, principal amount, maturity redemption provisions and
16
Ordinance No. 6876-01
interest rate, issued to acquire, construct and erect certain capital improvements, all in full compliance with
the Constitution and Statutes of the State of Florida, including particularly Chapter 166, Part II, Florida
Statutes, and Ordinance No. _-01 duly enacted by the Issuer on , 2001, as
supplemented (hereinafter collectively called the "Ordinance") and is subject to all the terms and conditions
of such Ordinance. All capitalized undefmed terms used herein shall have the meaning set forth in the
Ordinance.
This Bond is payable solely from and secured by the Public Service Tax and, until applied in
accordance with the provisions of this Ordinance, all moneys, including investment thereof, in the funds and
accounts established hereunder, with the exception of the Rebate Fund (collectively, the "Pledged
Revenues") in the manner provided in the Ordinance.
This Bond does not constitute a general indebtedness of the Issuer within the meaning of any
constitutional, statutory or charter provision or limitation, and it is expressly agreed by the Holder of this
Bond that such Bondholder shall never have the right to require or compel the exercise of the ad valorem
taxing power of the Issuer or taxation of any real or personal property therein for the payment of the
principal of and interest on this Bond or the making of any debt service fund, reserve or other payments
provided for in the Ordinance.
It is further agreed between the Issuer and the Holder of this Bond that this Bond and the
indebtedness evidenced thereby shall not constitute a lien upon or on any other property of or in the Issuer
or any part thereof, but shall constitute a lien only on the Pledged Revenues all in the manner provided in
the Ordinance.
It is certified that this Bond is authorized by and is issued in conformity with the requirements of the
Constitution and Statutes of the State of Florida.
This Bond is and has all the qualities and incidents of a negotiable instrument under Article 8 of the
Uniform Commercial Code, the State of Florida, Chapter 678, Florida Statutes.
The transfer of this Bond is registrable by the Bondholder hereof in person or by his attomey or
legal representative at the principal corporate trust office of the Registrar but only in the manner and subject
to the conditions provided in the Ordinance and upon surrender and cancellation of this Bond.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any benefit or
security under the Ordinance until it shall have been authenticated by the execution by the Registrar of the
certificate of authentication endorsed hereon.
17
Ordinance No. 6876-01
IN WITNESS WHEREOF, the City of Clearwater, Florida, has issued this Bond and has caused
the same to be signed by its Mayor-Commissioner and City Manager and countersigned and attested to
by its Clerk and approved as to form, sufficiency and correctness by the City Attomey{the signatures of
the Mayor-Commissioner, the City Manager, the City Attomey and the Clerk being authorized to be
facsimiles of such officers' signatures), and its seal or facsimile thereof to be affixed, impressed, imprinted,
lithographed or reproduced hereon, all as of the _ day of ,200_.
CITY OF CLEARWATER, FLORIDA
(SEAL)
(manual or facsimile)
Mayor-Commissioner
ATTESTED AND COUNTERSIGNED:
(manual or facsimile)
City Manager
(manual or facsimile)
Clerk
Approved as to form and legal sufficiency:
(manual or facsimile)
City Attomey
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds issued under the provisions of the within mentioned Ordinance.
Registrar, as Authenticating Agent
Date of Authentication:
By (manual si~ature)
Authorized Officer
18
Ordinance No. 6876-01
ASSIGNMENT AND TRANSFER
For value received the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of transferee)
the attached bond of the City of Clearwater, Florida, and does hereby constitute and
appoint , attomey, to transfer the said Bond on the books kept for Registration thereof,
with full power of substitution in the premises.
Date
Signature Guaranteed by
[member
firm of the New York Stock
Exchange or a commercial
bank or a trust company.]
By: (manual signature)
Title:
NOTICE: No transfer will be registered and no new Bonds will be issued .
in the name of the Transferee, unless the signature to this assignment
corresponds with the name as it appears upon the face of the within Bond
in every particular, without alteration or enlargement or any change
whatever and the Social Security or Federal Employer Identification
Number of the Transferee is supplied.
[END OF FORM OF BOND]
19
Ordinance No. 6876-01
SECTION 16. CREATION OF FUNDS. There are hereby created and established the
following funds and accounts, which funds and accounts shall be trust funds for the purposes herein
provided and used only in the manner herein provided:
(A) The "City of Clearwater Improvement Revenue Bonds Revenue Fund" (hereinafter
sometimes called the "Revenue Fund") to be held by the Issuer and to the credit of which deposits shall be
made as required by Section 20(A) hereof.
(B) The "City of Clearwater Improvement Revenue Bonds Bond Service Fund" (hereinafter
sometimes called the "Bond Service Fund") to be held by the Issuer and to the credit of which deposits shall
be made as required by Section 20(B)(1) hereof. In such fund there shall be maintained the following
accounts: the Principal Account, the Interest Account and the Redemption Account.
(C) The "City of Clearwater Improvement Revenue Bonds Reserve Fund" (hereinafter
sometimes called the "Reserve Fund"), including a separate amount for each Series of Bonds, ifrequired,
to be held by the Issuer and to the credit of which deposits shall be made as required by Section 20(B)(2)
hereof.
(D) The "City of Clearwater Improvement Revenue Bonds Subordinated Debt Service Fund"
(hereinafter sometimes called the "Subordinated Debt Service Fund") to be created by the Issuer if and
when needed and to be held by the Issuer and to the credit of which deposits shall be made as required
by Section 20(B)(3) hereof.
(E) The "City of Clearwater Improvement Revenue Bonds Construction Fund" (hereinafter
sometimes called the "Construction Fund") to be held by the Issuer and to the credit of which deposits shall
be made as required by Section 17 hereof. Within such fund there shall be maintained separate accounts
for each Series of Bonds and furthermore be maintained separate accounts for capitalized interest funded
from the proceeds of any Series of Bonds.
(F) The "City of Clearwater Improvement Revenue Bonds Proceeds Fund" (hereinafter
sometimes called the "Proceeds Fund") to be held by the Issuer and to the credit of which deposits shall
be made as required by Section 18A hereof.
SECTION 17. APPLICATION OF BOND PROCEEDS. The proceeds, including
accrued interest and premium, if any, received from the sale of any Series of Bonds shall be applied by
the Issuer simultaneously with the delivery of such Bonds to the purchaser thereof, as follows:
(A) The accrued interest shall be deposited in the Interest Account in the Bond Service Fund
and shall be used only for the purpose of paying interest becoming due on the Bonds.
20
Ordinance No. 6876-01
(B) Unless otherwise provided in a supplemental ordinance or resolution of the Issuer or unless
the Issuer has provided for a surety bond, a letter of credit, or other form of credit enhancement as
provided in Section 20(B)(2) hereof, a sum equal to the Reserve Requirement shall be deposited in the
Reserve Fund and shall be used only for the purposes provided therefor.
(C) A sufficient amount of the Bond proceeds shall be applied to the payment of the premiums
of any municipal bond insurance policies applicable to the Bonds and to the payment of costs and expenses
relating to the issuance of the Bonds which must be paid upon delivery of the Bonds.
(D) A sum as shall be determined by supplemental resolution of the Issuer shall be deposited
into the Construction Fund and used for the purpose of paying Proj ect Costs, if any.
(E) A sum as shall be determined by supplemental resolution of the Issuer shall be deposited
into the Proceeds Fund and used for the purpose of refunding outstanding debt obligations of the Issuer.
(F) Any remaining moneys from the Bonds shall be deposited as provided in supplemental
resolutions of the Issuer, but shall only be used for the purposes permitted by law.
The proceeds of any series of Bonds shall be applied as provided by supplemental resolution of
the Issuer adopted at or prior to sale of such series of the Bonds.
SECTION 18. DISBURSEMENTS FROM CONSTRUCTION FUND. Moneys
on deposit from time to time in the Construction Fund shall be used to payor reimburse the following
Project Costs:
(A) Costs incurred directly or indirectly for or in connection with a Project or a proposed or
future Project including, but not limited to, those for preliminary planning and studies, architectural, legal,
financial, engineering and supervisory services, labor, services, materials, equipment, acquisitions, land,
rights-of-way, improvements and installation;
(B) Premiums attnbutable to all insurance required to be taken out and maintained during the
period of construction with respect to a Project to be acquired or constructed, the premium on each surety
bond, if any, required with respect to work on such facilities, and taxes, assessments and other charges
hereof that may become payable during the period of construction with respect to such a Project;
(C) Costs incurred directly or indirectly in seeking to enforce any remedy against a contractor
or subcontractor in respect of any default under a contract relating to a Project or costs incurred directly
or indirectly in defending any claim by a contractor or subcontractor with respect to a Project;
21
Ordinance No. 6876-01
(D) Financial, legal, accounting, appraisals, title evidence and printing and engraving fees,
charges and expenses, and all other such fees, charges and expenses incurred in connection with the
authorization, sale, issuance and delivery of such Series of Bonds;
(E) Interest funded from Bond proceeds, if any, for a reasonable period of time, which shall
be deposited in the Construction Fund and shall be used as provided in a supplemental resolution of the
Issuer;
(F) Any other incidental and necessary costs including without limitation any expenses, fees and
charges relating to the acquisition, construction or installation of a Project, and the making of extraordinary
repairs, renewals and replacements, decommissioning or retirement of any portion of, including the cost
of temporary employees of the Issuer retained to carry out duties in connection with the acquisition,
construction or erection of a Project;
(G) Costs incurred directly or indirectly in placing any Project in operation in order that
completion of such Project may occur;
(H) Any other costs authorized pursuant to a supplemental resolution of the Issuer and
permitted under the laws of the State; and
(I) Reimbursements to the Issuer for any of the above items theretofore paid by or on behalf
of the Issuer.
SECTION 18A. DISBURSEMENTS FROM PROCEEDS FUND. Moneys on deposit
from time to time in the Proceeds Fund shall be used to fund deposits to, or to purchase Permitted
Investments for deposit to, an escrow fund established pursuant to an Escrow-Deposit Agreement, all as
shall be set forth in a resolution of the Issuer adopted prior to the issuance of any refunding bonds
hereunder.
SECTION 19. SPECIAL OBLIGATIONS OF ISSUER The Bonds shall not be or
constitute general obligations or indebtedness of the Issuer as ''bonds'' within the meaning of the Constitution
of Florida, but shall be payable solely from and secured by a pledge of the Pledged Revenues as herein
provided. No Holder or Holders of any Bonds issued hereunder shall ever have the right to compel the
exercise of the ad valorem taxing power of the Issuer or taxation in any form of any real or personal
property therein, or to compel the Issuer to pay such principal and interest from any other funds of the
Issuer.
The payment of principal of and interest on the Bonds shall be secured forthwith equally and ratably
by, and the Issuer hereby grants to the Bondholders an irrevocable lien on the Pledged Revenues, prior and
superior to all other liens or encumbrances on such Pledged Revenues and the Issuer does hereby
irrevocably pledge such Pledged Revenues to the payment of the principal of, redemption premium, if any,
22
Ordinance No. 6876-01
and interest on the Bonds, for the reserves therefor and for all other payments required hereunder. Such
amounts hereby pledged and assigned shall immediately be subject to the lien of this pledge without any
further physical delivery thereof or any further act, and the lien of this pledge shall be valid and binding as
against all parties having claims of any kind in tort, contract or otherwise against the Issuer, irrespective of
whether such parties have notice thereof.
SECTION 20. COVENANTS OF THE ISSUER. For so long as any of the principal
of and interest on any of the Bonds shall be outstanding and unpaid or until the Issuer has made provision
for payment of principal, interest and redemption premiums, if any, with respect to the Bonds, as provided
herein, the Issuer covenants with the Holders of any and all Bonds as follows:
(A) REVENUE FUND. All Public Service Tax Revenues shall upon receipt thereof be
deposited in the Revenue Fund. All deposits into such Revenue Fund shall be deemed to be held in trust
for the purposes herein provided and used only for the purposes and in the manner herein provided.
(B) DISPOSITION OF REVENUES. All revenues in the Revenue Fund, shall be disposed
of monthly, but not later than the twenty-fifth (25th) day of each month commencing in the month
immediately following the delivery of the initial series of Bonds, for so long as any Bonds remain
Outstanding, only in the following manner and the following order of priority:
(1) The Issuer shall first deposit into the Bond Service Fund and credit to the following
accounts, in the following order (except that payments in the Principal Account and the Redemption
Account shall be on a parity with each other), the following identified sums:
( a) Interest Account: Such sum as will be sufficient to pay one-sixth (1/6th)
(or such higher monthly amount on a prorated basis) of all interest coming due on all Outstanding
Bonds on the next interest payment date, together with any fees and charges of the Paying Agent
and Registrar therefor; provided, however, that monthly deposits of interest, or portions thereof,
shall not be required to be made to the extent that money on deposit within such Interest Account
is sufficient for such purpose. In the event the Issuer has issued Variable Rate Bonds pursuant to
the provisions hereof, Public Service Tax Revenues shall be deposited at such other or additional
times and amounts as necessary to pay any interest coming due on such Variable Rate Bonds on
the next interest payment date, all in the manner provided in a supplemental resolution of the Issuer.
Any monthly payment out of Public Service Tax Revenues to be deposited as set forth above, for
the purpose of meeting interest payments for any Series of Bonds, shall be adjusted, as
appropriate, to reflect the frequency of interest payment dates applicable to such Series. Moneys
in the Interest Account may be used only for the purposes set forth in this paragraph (a).
(b) Principal Account: Such sum as will be sufficient to pay one-twelfth
(1/ 12th) (or such higher monthly amount on a prorated basis) of the principal amount of the
Outstanding Bonds which will mature and become due on such annual maturity dates beginning in
23
Ordinance No. 6876-01
the month which is twelve (12) months prior to the first principal maturity date; provided, however,
that monthly deposits for principal, or portions thereof, shall not be required to be made to the
extent that money on deposit within such Principal Account is sufficient for such purpose. Any
monthly payment out of Public SeIVice Tax Revenues to be deposited as set forth above, for the
purpose of meeting principal payments for any Series of Bonds, shall be adjusted, as appropriate,
to reflect the frequency of principal payment dates applicable to such Series. Moneys in the
Principal Account may be used only for the purposes set forth in this paragraph (b).
(c) Redemption Account: Such sum as will be sufficient to pay one-twelfth
(1/12th) (or such higher amount on a prorated basis) of any Amortization Installment established
for the mandatory redemption of Outstanding Bonds on such annual maturity date beginning in the
month which is twelve (12) months prior to the first Amortization Installment date; provided, how-
ever, that monthly deposits into the Redemption Account, or portions thereof, shall not be required
to be made to the extent that money on deposit in the Redemption Account is sufficient for such
purpose. Any monthly payment out of Public SeIVice Tax Revenues to be deposited as set forth
above, for the purpose of meeting Amortization Installments for any Series of Bonds, shall be
adjusted, as appropriate, to reflect the frequency of dates established for Amortization Installments
applicable to such Series. The moneys in the Redemption Account shall be used solely for the
purchase or redemption of the Term Bonds payable therefrom. The Issuer may at any time
purchase any of said Term Bonds at prices not greater than the then redemption price of said Term
Bonds. If the Term Bonds are not then redeemable prior to maturity, the Issuer may purchase said
Term Bonds at prices not greater than the redemption price of such Term Bonds on the next
ensuing redemption date. If Term Bonds are so purchased by the Issuer, the Issuer shall credit the
account of such purchased Term Bonds against any current Amortization Installment to be paid by
the Issuer. If the Issuer shall purchase or call for redemption in any year Term Bonds in excess of
the Amortization Installment requirement for such year, such excess of Term Bonds so purchased
or redeemed shall be credited in such manner and at such times as the Issuer shall determine.
Moneys in the Redemption Account in the Debt Service Fund may be used only for the purposes
set forth in this paragraph (c).
(2) The Issuer shall next deposit from moneys remaining in the Revenue Fund an
amount required by the resolution of the Issuer authorizing each Series of Bonds into the ReseIVe Fund.
Any withdrawals from the ReseIVe Fund shall be subsequently restored from the first moneys available in
the Revenue Fund, after all current applications and allocations to the Bond Service Fund, including all
deficiencies for prior payments have been made in full. Notwithstanding the foregoing, in case of
withdrawal from the ReseIVe Fund, in no event shall the Issuer be required to deposit into the Reserve Fund
an amount greater than that amount necessary to ensure that the difference between the Reserve
Requirement and the amounts on deposit in the Reserve Fund on the date of calculation shall be restored
not later than sixty (60) months after the date of such deficiency (assuming equal monthly payments into the
ReseIVe Fund for such sixty (60) month period). The Issuer may provide that the difference between the
amounts on deposit in the Reserve Fund and the ReseIVe Requirement shall be an amount covered by
24
Ordinance No. 6876-01
obtaining bond insurance issued by a reputable and recognized municipal bond insurer, by a letter of credit
rated in one of the two highest categories by one of two nationally recognized rating agencies, by a surety
bond acceptable to any company issuing a policy of municipal bond insurance guaranteeing the payment
of principal and interest on such Series of Bonds, or any combination thereof. Moneys in the Reserve Fund
shall be used only for the purpose of the payment of Amortization Installments, principal of, or interest on
the Outstanding Bonds when the other moneys allocated to the Bond Service Fund are insufficient therefor,
and for no other purpose.
Securities in the Reserve Fund shall be valued annually at market rate. Deficiencies in the
amounts on deposit in the Reserve Fund resulting from a decline in market value shall be restored no later
than the succeeding interest payment date. In the event of the refunding of any Series of Bonds, the Issuer
may withdraw from the Reserve Fund, all or any portion of the amounts accumulated therein with respect
to the Bonds being refunded and deposit such amounts as required by the resolution authorizing the
refunding of such Series of Bonds; provided that such withdrawal shall not be made unless (a) immediately
thereafter the Bonds being refunded shall be deemed to have been paid pursuant to the provisions hereof
and (b) the amount remaining in the Reserve Fund after giving effect to the issuance of such refunding
obligations and the disposition of the proceeds thereof shall not be less than the Reserve Requirement for
any Bonds then Outstanding.
(3) From the moneys remaining in the Revenue Fund, the Issuer shall next deposit into
the Subordinated Debt Service Fund, if any, an amount required to be paid as provided in the resolution
of the Issuer authorizing such Subordinated Indebtedness for principal, interest, mandatory redemption
payments, if any, and debt service reserve payments, if any, on Subordinated Indebtedness, but for no
other purposes.
(4) The balance of any moneys remaining in the Revenue Fund after the above required
payments have been made may be used for any lawful purpose; provided, however, that none of said
money shall be used for any purposes other than those hereinabove specified unless all current payments,
including any deficiencies for prior payments, have been made in full and unless the Issuer shall have
complied fully with all the covenants and provisions of this Ordinance.
(5) The Bond Service Fund (including the accounts therein), the Reserve Fund, the
Revenue Fund, and any other special funds herein established and created shall be deemed to be held in
trust for the purposes provided herein for such funds. The money in all such funds shall be continuously
secured in the same manner as state and municipal deposits are authorized to be secured by the laws of
the State of Florida in Permitted Investments.
Except as otherwise permitted by the resolution authorizing any Series of Bonds, moneys
in any fund or account created hereunder (with the exception of the Reserve Fund) may be invested and
reinvested in Permitted Investments which mature not later than the dates on which the moneys on deposit
therein will be needed for the purpose of such fund. Except as otherwise permitted by the resolution
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Ordinance No. 6876-01
authorizing any Series of Bonds, moneys in the Reserve Fund may be invested and reinvested in Permitted
Investments maturing not later than five (5) years after deposit into such Reserve Fund by the Issuer. All
income on such investments, except as otherwise provided, shall be deposited in the respective funds and
accounts from which such investments were made and be used for the purposes thereof unless and until
the maximum required amount (or, with respect to the Construction Fund, the amount required to acquire,
construct and erect the Project) is on deposit therein, and thereafter shall be deposited in the Revenue
Fund.
(6) In determining the amount of any of the payments required to be made pursuant
to this Section, credit may be given for all investment income accruing to the respective funds and accounts
described herein, except as otherwise provided.
(7) The cash required to be accounted for in each of the funds and accounts described
in this Section may be deposited in a single bank account, provided that adequate accounting records are
maintained to reflect and control the restricted allocation of the cash on deposit therein for the various
purposes of such funds and accounts as herein provided. The designation and establishment of the various
funds in and by this Ordinance shall not be construed to require the establishment of any completely
independent, self-balancing funds as such term is commonly defined and used in governmental accounting, .
but rather is intended solely to constitute an earmarking of certain revenues and assets of the Project for
certain purposes and to establish certain priorities for application of such revenues and assets as herein
provided.
(C) BOOKS AND ACCOUNTS; AUDIT. The Issuer shall keep proper books, records and
accounts, separate and apart from all other records and accounts, showing correct and complete entries
of all transactions of the Project, and the Holders of any of the Bonds or any duly authorized agent or
agents of such Holders shall have the right at any and all reasonable times to inspect such books, records
and accounts. The Issuer shall, within one hundred eighty (180) days following the close of each Fiscal
Year of the Issuer cause an audit of such books, records and accounts to be made by an independent firm
of certified public accountants.
Copies of each such audit report shall be placed on file with the Issuer and be made available at
reasonable times for inspection by Holders ofthe Bonds.
(D) ENFORCEMENT OF COLLECTIONS. The Issuer shall do all things necessary on its
part to continue the levy and collection of the Public Service Tax at the rate permitted by and in compliance
with Section 166.231, Florida Statutes, and Article ill, Chapter 44, Code of Ordinances of the Issuer, and
Chapter 2000-260, Laws of Florida, with respect to the Communication Services Tax, as applicable, and
any successor provision of law. All such Pledged Revenues shall, as collected, be held in trust to be
applied as herein provided.
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Ordinance No. 6876-01
(E) ISSUANCE OF OTHER OBLIGATIONS. The Issuer shall issue no bonds or obligations
of any kind or nature payable from or enjoying a lien on the Pledged Revenues if such obligations have
priority over the Bonds with respect to payment or lien, nor shall the Issuer create or cause or permit to
be created any debt, lien, pledge, assignment, encumbrance or other charge on a parity with the lien of the
Bonds upon said Pledged Revenues. Notwithstanding any other provision in this Section, the Issuer may
issue Additional Parity Obligations under the conditions and in the manner provided herein. Any obligations
of the Issuer, other than the Bonds, which are payable from the Pledged Revenues shall contain an express
statement that such obligations are junior and subordinate in all respects to the Bonds as to lien on and
source and security for payment from such Pledged Revenues.
(F) ISSUANCE OF ADDITIONAL PARITY OBLIGATIONS. No Additional Parity
Obligations, payable on a parity with the Bonds then Outstanding pursuant to this Ordinance, shall be issued
except upon the conditions and in the manner herein provided. The Issuer may issue one or more Series
of Additional Parity Obligations by subsequent resolution for anyone or more of the following purposes:
financing the cost of any Project or refunding any or all Outstanding Bonds or of any Subordinated
Indebtedness of the Issuer.
No such Additional Parity Obligations shall be issued unless the following conditions are complied
with:
(I) There shall have been obtained and filed with the Clerk a certificate of the Finance
Director stating: (a) that the books and records of the Issuer relative to the Pledged Revenues have been
reviewed; (b) setting forth the amount of the adjusted Pledged Revenues derived for any consecutive twelve
(12) months out of the preceding twenty-four (24) months preceding the date of issuance of the proposed
Additional Parity Obligations adjusted as herein below provided; (c) that the aggregate amount of such
Pledged Revenues, as adjusted pursuant to paragraph 2 below, is equal to not less than 120% (or such
other percentage as may be set forth in a subsequent resolution of the Issuer adopted prior to the issuance
of the Series 2001 Bonds) of the Maximum Bond Service Requirement becoming due in any Bond Year
thereafter on (i) all Bonds issued under this Ordinance then Outstanding, and (ii) on the Additional Parity
Obligations with respect to which such certificate is made.
(2) Upon recommendations of the Finance Director and to the extent adopted in a
subsequent resolution of the Issuer, if there is an estimated increase in Public Service Tax Revenues to be
received by the Issuer as a result of a change in law to provide for additional Public Service Tax Revenues
to be levied and collected by the Issuer, then the Public Service Tax Revenues portion of Pledged
Revenues certified pursuant to paragraph 1 (b) of this Section shall be increased by the projectedincrease
in Public Service Tax Revenues to be distributed as if such excess Public Service Tax Revenues were in
fact available to the Issuer during the applicable twelve month period.
(3) Additional Parity Obligations shall be deemed to have been issued pursuant to this
Ordinance the same as the Outstanding Bonds, and all of the other covenants and other provisions of this
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Ordinance No. 6876-01
Ordinance (except as to details of such Additional Parity Obligations inconsistent therewith) shall be for
the equal benefit, protection and security of the Holder of all Bonds issued pursuant to this Ordinance.
Except as provided in Section 20(F) hereof, all Bonds, regardless of the time or times of their issuance,
shall rank equally with respect to their lien on the Pledged Revenues and their sources and security for
payment therefrom without preference of any Bonds over any other.
(4) In the event that the total amount of Bonds herein authorized to be issued are not
issued simultaneously, such Bonds which are subsequently issued shall be subject to the conditions of
Section 20(F) hereof.
(5) The Issuer need not comply with the provisions of paragraph 1 of this Section
20(F) if and to the extent the Additional Parity Obligations to be issued are refunding bonds, and if the
Issuer shall cause to be delivered a certificate of the Finance Director setting forth the annual debt service
(i) for the Bonds then Outstanding and (ii) for all Bonds to be immediately Outstanding after the issuance
of such Additional Parity Obligations and stating that the Bond Service Requirement in any year pursuant
to (ii) above is not greater than the Bond Service Requirement in the corresponding year set forth pursuant
to (i) above.
(6) The Issuer shall not be in default in the carrying out of any of the obligations
assumed under this Ordinance and no event of default shall have occurred under this Ordinance and shall
be continuing, and all payments required by this Ordinance to be made into the funds and accounts
established hereunder shall have been made to the full extent required.
(7) The resolution authorizing the issuance of the Additional Parity Obligations shall
recite that all of the covenants contained herein will be applicable to such Additional Parity Obligations.
SECTION 21. DEFAULTS; EVENTS OF DEFAULT AND REMEDIES. Except
as provided below, if any of the following events occur it is hereby defined as and declared to be and to
constitute an "Event of Default":
(A) Default in the due and punctual payment of any interest on the Bonds;
(B) Default in the due and punctual payment of the principal of and premium, if any, on any
Bond, at the stated maturity thereof, or upon proceedings for redemption thereof;
(C) Default in the performance or observance of any other of the covenants, agreements or
conditions on the part of the Issuer contained in this Ordinance or in the Bonds and the continuance thereof
for a period of thirty (30) days after written notice to the Issuer given by the Holders of not less than
twenty-five percent (25%) of aggregate principal amount of Bonds then Outstanding (provided, however,
that with respect to any obligation, covenant, agreement or condition which requires performance by a date
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Ordinance No. 6876-01
certain, if the Issuer performs such obligation, covenant, agreement or condition within thirty (30) days of
written notice as provided above, the default shall be deemed to be cured);
(D) Failure by the Issuer promptly to remove any execution, garnishment or attachment of such
consequence as will materially impair its ability to carry out its obligations hereunder;
(E) Any act of bankruptcy or the rearrangement, adjustment or readjustment of the obligations
of the Issuer under the provisions of any bankruptcy or moratorium laws or similar laws relating to or
affecting creditors' rights.
The term "default" shall mean default by the Issuer in the performance or observance of any of the
covenants, agreements or conditions on its part contained in this Ordinance, any supplemental resolution
or in the Bonds, exclusive of any period of grace required to constitute a default or an "Event of Default"
as hereinabove provided.
For purposes of Section 21(A) and (B) hereof, no effect shall be given to any payments made
under any Bond Insurance Policy.
Any Holder of Bonds issued under the provisions hereof or any trustee acting for the Holders of
such Bonds, may either at law or in equity, by suit, action, mandamus or other proceedings in any court of
competent jurisdiction, protect and enforce any and all rights, including the right to the appointment of a
receiver, existing under State or federa1law, or granted and contained herein, and may enforce and compel
the performance of all duties required herein or by any applicable law to be performed by the Issuer or by
any officer thereof.
Nothing herein, however, shall be construed to grant to any Holder of the Bonds any lien on any
property of the Issuer, except the Pledged Revenues.
The foregoing notwithstanding:
(i) No remedy conferred upon or reseIVed to the Bondholders is intended to be exclusive
of any other remedy, but each remedy shall be cumulative and shall be in addition to any other remedy
given to the Bondholders hereunder.
(ii) No delay or omission to exercise any right or power accruing upon any default or Event
of Default shall impair any such right or power or shall be construed to be a waiver of any such default or
acquiescence therein, and every such right and power may be exercised as often as may be deemed
expedient.
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Ordinance No. 6876-01
(iii) No waiver of any default or Event of Default hereunder by the Bondholders shall extend
to or shall affect any subsequent default or Event of Default or shall impair any rights or remedies
consequent thereon.
(iv) Acceleration of the payment of principal of and interest on the Bonds shall not be a
remedy hereunder in the case of an Event of Default.
Upon the occurrence of an Event of Default, and upon the filing of a suit or other commencement
of judicial proceedings to enforce the rights of the Bondholders under this Ordinance, the Bondholders shall
be entitled, as a matter of right, to the appointment of a receiver or receivers of the Project and the funds
pending such proceedings, with such powers as the court making such appointment shall confer.
Notwithstanding any provision of this Ordinance to the contrary, for all purposes of this Section
21, except the giving of notice of any Event of Default to the Holder of the Bonds, the Bond Insurer shall
be deemed to be the Holder of the Bonds it has insured.
On the occurrence of an Event of Default, to the extent such rights may then lawfully be waived,
neither the Issuer nor anyone claiming through or under it, shall set up, claim or seek to take advantage of
any stay, extension or redemption laws now or hereafter in force, in order to prevent or hinder the
enforcement of this Ordinance, and the Issuer, for itself and all who may claim through or under it, hereby
waives, to the extent it may lawfully do so, the benefit of all such laws and all right of redemption to which
it may be entitled.
Within 30 days of knowledge thereof, both the Issuer and the Paying Agent shall provide notice
to the Bond Insurer of the occurrence of any Event of Default.
The Bond Insurer shall be included as a party in interest and as a party entitled to (i) notify the
Issuer or any Paying Agent of the occurrence of an Event of Default and (ii) request the Issuer or any
Paying Agent to intervene in judicial proceedings that affect the Bonds or the security therefor. The Issuer
and any Paying Agent are required to accept notice of default from the Bond Insurer.
Anything in this Ordinance to the contrary notwithstanding, upon the occurrence and continuance
of an Event of Default, the Bond Insurer shall be entitled to control and direct the enforcement of all rights
and remedies granted to the Bondholders under this Ordinance and the Bond Insurer shall also be entitled
to approve all waivers of events of default.
SECTION 22. AMENDING AND SUPPLEMENTING OF ORDINANCE
WITHOUT CONSENT OF HOLDERS OF BONDS. The Issuer, from time to time and at any time
and without the consent or concurrence of any Holder of any Bonds, may enact an ordinance amendatory
hereof or supplemental hereto, if the provisions of such supplemental ordinance shall not adversely affect
the rights of the Holders of the Bonds then Outstanding, for anyone or more of the following purposes:
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Ordinance No. 6876-01
(A) To make any changes or corrections in this Ordinance as to which the Issuer shall have been
advised by counsel that are required for the purpose of curing or correcting any ambiguity or defective or
inconsistent provisions or omission or mistake or manifest error contained in this Ordinance, or to insert
in this Ordinance such provisions clarifying matters or questions arising under this Ordinance as are
necessary or desirable;
(B) To add additional covenants and agreements of the Issuer for the purpose of further securing
the payments of the Bonds;
(C) To surrender any right, power or privilege reserved to or conferred upon the Issuer by the
terms of this Ordinance;
(D) To confirm as further assurance any lien, pledge or charge or the subjection to any lien,
pledge or charge, created or to be created by the provisions of this Ordinance;
(E) To grant to or confer upon the Holders any additional right, remedies, powers, authority
or security that lawfully may be granted to or conferred upon them;
(F) To assure compliance with federal "arbitrage" provisions in effect from time to time;
(G) To provide such changes as may be necessary in order to adjust the terms hereof so as to
facilitate the issuance of Variable Rate Bonds or Option Bonds; and
(H) To modify any of the provisions of this Ordinance in any other aspects provided that such
modifications shall not be effective until after the Bonds Outstanding at the time such supplemental
ordinance is adopted shall cease to be Outstanding, or until the holders thereof consent thereto pursuant
to Section 23 hereof, and any Bonds issued subsequent to any such modification shall contain a specific
reference to the modifications contained in such supplemental ordinance.
Except for supplemental ordinances providing for the issuance of Bonds pursuant hereto, the Issuer
shall not enact any supplemental ordinance authorized by the foregoing provisions of this Section unless in
the opinion of Bond Counsel the enactment of such supplemental ordinance is permitted by the foregoing
provisions of this section.
SECTION 23. AMENDMENT OF ORDINANCE WITH CONSENT OF
HOLDERS OF BONDS. Except as provided in Section 22 hereof, no material modification or
amendment of this Ordinance or of any resolution supplemental hereto shall be made without the consent
in writing of the Holders of fifty-one percent or more in the principal amount of the Bonds of each Series
so affected and then Outstanding. For purposes of this Section, to the extent any Bonds are insured by a
policy of municipal bond insurance or are secured by a letter of credit and such Bonds are then rated in as
high a rating category as the rating category in which such Bonds were rated at the time of initial issuance
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Ordinance No. 6876-01
and delivery thereofby either Standard & Poor's Corporation or Moody's Investors Service, or successors
and assigns, then the consent of the issuer of such municipal bond insurance policy or the issuer of such
letter of credit shall be deemed to constitute the consent of the Holder of such Bonds. No modification or
amendment shall permit a change in the maturity of such Bonds or a reduction in the rate of interest thereon
or in the amount of the principal obligation thereof or affecting the promise of the Issuer to pay the principal
of and interest on the Bonds as the same shall become due from the Pledged Revenues or reduce the
percentage of the Holders of the Bonds required to consent to any material modification or amendment
hereof without the consent of the Holder or Holders of all such obligations. For purposes of the
immediately preceding sentence, the issuer of a municipal bond insurance policy or a letter of credit shall
not consent on behalf of the Holders of the Bonds. No amendment or supplement pursuant to this Section
23 (but not including Section 22 hereof) shall be made without the consent of the Bond Insurer, if any.
SECTION 24. DEFEASANCE. The covenants and obligations ofthe Issuer shall be
defeased and discharged under terms of this Ordinance as follows:
(A) If the Issuer shall payor cause to be paid, or there shall otherwise be paid, to the Holders
of all Bonds the principal, redemption premium, if any, and interest due or to become due thereon, at the
times and in the manner stipulated herein, then the pledge of the Pledged Revenues and all covenants,
agreements and other obligations of the Issuer to the Bondholders, shall thereupon cease, terminate and
become void and be discharged and satisfied. If the Issuer shall payor cause to be paid, or there shall
otherwise be paid, to the Holders of any Outstanding Bonds the principal or redemption premium, if any,
and interest due or to become due thereon, at the times and in the manner stipulated herein, such Bonds
shall cease to be entitled to any lien, benefit or security under this Ordinance, and all covenants, agreements
and obligations of the Issuer to the Holders of such Bonds shall thereupon cease, terminate and become
void and be discharged and satisfied.
(B) The Bonds, redemption premium if any, and interest due or to become due for the payment
or redemption of which moneys shall have been set aside and shall be held in trust (through deposit by the
Issuer of funds for such payment or redemption or otherwise) at the maturity or redemption date thereof
shall be deemed to have been paid within the meaning and with the effect expressed in paragraph (A) of
this Section 24. Subject to the provisions of paragraph (C) and (D) of this Section 24, any Outstanding
Bonds shall prior to the maturity or redemption date thereofbe deemed to have been paid within the
meaning and with the effect expressed in paragraph (A) of this Section if (i) in case any of said Bonds are
to be redeemed on any date prior to their maturity, the Issuer shall have given to the escrow agent
instructions accepted in writing by the escrow agent to notify Holders of Outstanding Bonds in the manner
required herein of the redemption of such Bonds on said date and (ii) there shall have been deposited with
the escrow agent either moneys in an amount which shall be sufficient, or Acquired Obligations (including
any Acquired Obligations issued or held in book-entry form on the books of the Department of the
Treasury of the United States) the principal of and the interest on which when due will provide moneys
which, together with the moneys, if any, deposited with the escrow agent at the same time, shall be
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Ordinance No. 6876-01
sufficient, to pay when due the principal of or premium, if any, and interest due and to become due on said
Bonds on or prior to the redemption date or maturity date thereof, as the case may be.
(C) For purposes of determining whether Variable Rate Bonds shall be deemed to have been
paid prior to the maturity or redemption date thereof, as the case may be, by the deposit of moneys, or
Acquired Obligations and moneys, if any, in accordance with paragraph B of this Section 24, the interest
to come due on such Variable Rate Bonds on or prior to the maturity date or redemption date thereof, as
the case may be, shall be calculated at the maximum rate permitted by the terms thereof; provided,
however, that if on any date, as a result of such Variable Rate Bonds having borne interest at less than such
maximum rate for any period, the total amount of moneys and Acquired Obligations on deposit with the
escrow agent for the payment of interest on such Variable Rate Bonds is in excess of the total amount
which would have been required to be deposited with the escrow agent on such date in respect of such
Variable Rate Bonds in order to satisfy the second sentence of paragraph (B) of this Section 24, the
escrow agent shall, if requested by the Issuer, pay the amount of such excess to the Issuer free and clear
of any trust, lien, pledge or assignment securing the Bonds or otherwise existing under this Ordinance.
(D) Option Bonds shall be deemed to have been paid in accordance with the second sentence
of paragraph (B) of this Section 24 only if, in addition to satisfying the requirements of clauses (i) and (ii)
of such sentence, there shall have been deposited with the escrow agent moneys in an amount which shall
be sufficient to pay when due the maximum amount of principal of and redemption premium, if any, and
interest on such Bonds which could become payable to the Holders of such Bonds upon the exercise of
any options provided to the Holders of such Bonds; provided, however, that if, at the time a deposit is
made with the escrow agent pursuant to paragraph (B) of this Section, the options originally exercisable
by the Holder of an Option Bond are no longer exercisable, such Bond shall not be considered an Option
Bond for purposes of this paragraph (D). If any portion of the moneys deposited with the escrow agent
for the payment of the principal of and redemption premium, if any, and interest on Option Bonds is not
required for such purpose, the escrow agent shall, if requested by the Issuer, pay the amount of such excess
to the Issuer free and clear of any trust, lien, security interest, pledge or assignment securing said Bonds
or otherwise existing under the Resolution.
SECTION 25. GOVERNMENTAL REORGANIZATION. Notwithstanding any
other provisions of this Ordinance, this Ordinance shall not prevent any lawful reorganization of the
governmental s1IUcture of the Issuer, including a merger or consolidation of the Issuer with another public
body or the transfer of a public function of the Issuer to another public body, provided that no such
reorganization shall materially adversely affect the ability of the Issuer or the successor governmental entity
to continue to collect and pledge the Pledged Revenues or the Issuer's right to collect the Pledged
Revenues.
SECTION 26. MATTERS RELATING TO THE BOND INSURER. The Issuer
hereby covenants, represents, and expressly agrees to the following terms and provisions as such are
necessary and desirable in order to obtain a Municipal Bond Insurance Policy:
33
Ordinance No. 6876-01
~
A. Consent of the Bond Insurer. Any provision of this Ordinance expressly recognizing or
granting rights in or to the Bond Insurer or to an Insurer may not be amended in any manner which affects
the rights of the Bond Insurer hereunder without the prior written consent of the Bond Insurer.
B. Consent of the Bond Insurer in Addition to Bondholder Consent. Unless otherwise
provided in this Section, the Bond Insurer's consent shall be required in addition to Bondholder consent,
when required, for the following purposes: (i) execution and delivery of any supplemental ordinance or
resOlution or any amendment, supplement or change to or modification thereto, (ii) removal of the Paying
Agent and selection and appointment of any successor paying agent; and (iii) initiation or approval of any
action not described in (i) or (ii) above which requires Bondholder consent.
C. Consent of the Bond Insurer in the Event of Insolvency. Any reorganization or liquidation
plan with respect to the Issuer must be acceptable to the Bond Insurer. In the event of any reorganization
or liquidation, the Bond Insurer shall have the right to vote on behalf of all Bondholders who hold the Bond
Insurer-insured Bonds absent a default by the Bond Insurer under the applicable Municipal Bond Insurance
Policy insuring such Bonds.
D. Consent of the Bond Insurer upon Default. Anything in this Ordinance to the contrary -
notwithstanding, upon the occurrence and continuance of an event of default as defined in this Ordinance,
the Bond Insurer shall be entitled to control and direct the enforcement of all rights and remedies granted
to the Bondholders for the benefit of the Bondholders under this Ordinance.
E. Notification and Documents to be Furnished. While the Municipal Bond Insurance Policy
is in effect, the Issuer shall furnish to the Bond Insurer (to the attention of the Surveillance Department,
unless otherwise indicated):
(i) as soon as practicable after the filing thereof, a copy of any financial statement of the Issuer
and a copy of any audit and annual report of the Issuer;
(ii) a copy of any notice to be given to the registered owners of the Bonds, including, without
limitation, notice of any redemption of or defeasance of the Bonds, and any certificate rendered pursuant
to this Ordinance or relating to the security for the Bonds;
(iii) such additional information it may reasonably request;a
(iv) notice of any failure of the Issuer to provide relevant notices, certificates, etc.; and
(v) immediate notification if at any time there are insufficient moneys to make any payments of
principal and or interest as required and immediate notification upon the occurrence of any event of default.
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Ordinance No. 6876-01
F ~ Access to Issuer Information. The Issuer will permit the Bond Insurer to discuss the affairs,
financings and accounts of the Issuer or any information the Bond Insurer rnay reasonably request regarding
the security for the Bonds with appropriate officers of the Issuer. The Issuer will permit the Bond Insurer
to have access to the Project and to have access to and make copies of all books and records relating to
the Bonds at any reasonable time.
G. Continuing Disclosure. To the extent that the Issuer has entered into a continuing disclosure
obligation with respect to any Series of Bonds, the Bond Insurer for such Series shall be included as a party
to be notified.
Notwithstanding the foregoing or any other provision of this Ordinance or any subsequent
resolution, the rights and benefits granted to the Bond Insurer shall be conditioned on, and shall be subject
to, the absence of any default by the Bond Insurer on any applicable Municipal Bond Insurance Policy.
SECTION 27. NO IMPAIRMENT. The pledging of the Pledged Revenues in the
manner provided herein shall not be subject to repeal, modification or impairment by an subsequent
ordinance, resolution or other proceedings of the City, provided however, the City rnay decrease the rates
applicable for the application of the Pledged Revenues so long as sufficient Pledged Revenues are levied.
to satisfy the tests of Section 20(F) hereof.
SECTION 28. CAPITAL APPRECIATION BONDS. For the purposes of (i)
receiving payment of the redemption price of a Capital Appreciation Bond if redeemed prior to maturity,
(ii) receiving payment if the principal of all Bonds is declared immediately due and payable, and (iii)
computing the amount of Holders required for any notice, consent, request or demand hereunder for any
purpose whatsoever, the principal amount of a Capital Appreciation Bond shall be deemed to be its
Compounded Amount.
SECTION 29. TAX COVENANTS. With respect to any Bonds for which the Issuer
intends on the date of issuance thereof for the interest thereon to be excluded from gross income for
purposes of Federal income taxation:
(A) The Issuer shall not use or permit the use of any proceeds of any such series of Bonds or
any other funds of the Issuer, directly or indirectly, to acquire any securities or obligations, and shall not use
or permit the use of any amounts received by the Issuer with respect to such series of Bonds in any manner,
and shall not take or permit to be taken any other action or actions, which would cause any such series of
Bonds to be a "private activity bond" within the meaning of Section 141 or an "arbitrage bond" within the
meaning of Section 148, or "federally guaranteed" within the meaning of Section 149(b), of the Internal
Revenue Code of 1986, as amended (the "Code"), or otherwise cause interest on such series of Bonds to
become subject to federal income taxation.
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Ordinance No. 6876-01
(B) The Issuer shall at all times do and perform all acts and things permitted by law and this
Ordinance which are necessary or desirable in order to assure that interest paid on such series of Bonds
will be excluded from gross income for purposes of federal income taxes and shall take no action that
would result in such interest not being so excluded.
(C) The Issuer shall payor cause to be paid to the United States Government any amounts
required by Section 148(t) of the Code and the regulations thereunder (the "Regulations"). In order to
insure compliance with the rebate provisions of Section 148(t) of the Code with respect to any such series
of Bonds for which the Issuer intends on the date of issuance thereof to be excluded from gross income for
purposes of Federal income taxation, the Issuer hereby creates the "City of Clearwater [Improvement]
Revenue Bonds Rebate Fund" (hereinafter sometimes called the "Rebate Fund") to be held by the Issuer.
The Rebate Fund need not be maintained so long as the Issuer timely satisfies its obligation to pay any
rebatable earnings to the United States Treasury; however, the Issuer may, as an administrative
convenience, maintain and deposit funds in the Rebate Fund from time to time. Any moneys held in the
Rebate Fund shall not be considered Pledged Revenues and shall not be pledged in any manner for the
benefit of the holders of the Bonds. Moneys in the Rebate Fund (including earnings and deposits therein)
shall be held for future payment to the United States Government as required by the Regulations and as set
forth in instructions of Bond Counsel delivered to the Issuer upon issuance of such Bonds.
SECTION 30. ADDITIONAL RIGHTS TO BOND INSURER Pursuant to one or
more supplemental resolutions, the Issuer may provide additional rights, covenants, agreements and
restrictions relating to any Rating Agency, or any Bond Insurer with respect to a Municipal Bond Insurance
Policy.
SECTION 31. SEVERABILITY. Ifany one or more of the covenants, agreements or
provisions of this Ordinance should be held contrary to any express provision oflaw or contrary to the
policy of express law, though not expressly prohibited, or against public policy, or shall for any reason
whatsoever be held invalid or shall in any manner be held to adversely affect the validity of the Bonds, then
such covenants, agreements or provisions shall be null and void and shall be deemed separate from the
remaining covenants, agreements or provisions of this Ordinance or of the Bonds issued hereunder.
SECTION 32. SALE OF BONDS. The Bonds shall be issued and sold at public or
negotiated sale at one time or in installments from time to time and at such price or prices as shall be
consistent with the provisions of the requirements of this Ordinance and other applicable provisions oflaw
as set forth in a supplemental resolution of the Issuer adopted before the issuance of any Series of Bonds.
SECTION 33. GENERAL AUTHORITY. The members of the City Commission of
the Issuer and the Issuer's officers, attomeys and other agents and employees are hereby authorized to
perform all acts and things required of them by this Ordinance or desirable or consistent with the
requirements hereof for the full, punctual and complete performance of all of the terms, covenants and
agreements contained in the Bonds and this Ordinance, and they are hereby authorized to execute and
36
Ordinance No. 6876-01
..
.
deliver all documents which shall be required by Bond Counselor the initial purchasers of the Bonds to
effectuate the sale of the Bonds to said initial purchasers.
SECTION 34. NO THIRD PARTY BENEFICIARIES. Except such other Persons
as may be expressly described herein or in the Bonds including the Bond Insurer, nothing in this Ordinance,
or in the Bonds, expressed or implied, is intended or shall be construed to confer upon any Person other
than the Issuer and the Holders any right, remedy or claim, legal or equitable, under and by reason of this
Ordinance or any provision hereof, or of the Bonds, all provisions hereof and thereof being intended to be
and being for the sole and exclusive benefit of the Issuer, the Bond Insurer, if any, and the Persons who
shall from time to time be the Holders.
SECTION 35. NO PERSONAL LIABILITY. Neither the members of the City
Commission of the Issuer nor any person executing the Bonds shall be personally liable therefor or be
subject to any personal liability or accountability by reason of the issuance thereof.
SECTION 36. REPEAL OF INCONSISTENT INSTRUMENTS. Any other
ordinance or resolutions, or parts thereof, in conflict herewith are hereby repealed to the extent of such
conflict.
SECTION 37. EFFECTIVE DATE. The provisions of this Ordinance shall take effect
upon its enactment, as required by law.
[Remainder of page intentionally left blank.]
37
Ordinance No. 6876-01
SECTION 38. PUBLIC NOTICE. Notice of the proposed enactment of this
Ordinance has been properly advertised in a newspaper of general circulation In accordance with Chapter
166.041, Florida Statutes.
PASSED ON FIRST READING
September 20, 2001
,
PASSED ON SECOND READING
AND FINAL READING AND
ADOPTED AS AMENDED.
October 4
,2001
i1.~X2-::>
MaYOr-Cri~oner
----
Attest:
p
r1./City Clerk
(.~
Approved as to Form and Legal
Sufficiency:
clmey
38
Ordinance No. 6876-01