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ORDINANCE NO. 6915-01
AN ORDINANCE PROVIDING FOR WATER AND SEWER
REVENUE BONDS, SERIES [TO BE DETERMINED] OF THE
CITY OF CLEARWATER, FLORIDA, TO BE ISSUED IN ONE
OR MORE SERIES OVER ONE OR MORE YEARS; TO
FINANCE OR REFINANCE THE COST OF DESIGN,
ACQUISITION, CONSTRUCTION OR RECONSTRUCTION
OF IMPROVEMENTS TO THE CITY'S WATER AND SEWER
SYSTEM; PROVIDING FOR THE PAYMENT OF THE BONDS
FROM THE NET REVENUES OF THE CITY'S WATER AND
SEWER SYSTEM AND CERTAIN OTHER MONEYS
PLEDGED THEREFOR; PROVIDING FOR THE RIGHTS OF
THE HOLDERS OF SUCH BONDS; AMENDING ORDINANCE
NO. 3674-84, ORDINANCE NO. 5355-93 AND ORDINANCE
NO. 6311-98; WHICH AUTHORIZED THE PARITY BONDS
TO ALLOW DELIVERY OF ADDITIONAL BONDS PARITY
CERTIFICATE BY FINANCIAL SERVICES
ADMINISTRATOR; 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, and other applicable provisions of law and
pursuant to Section 16R of Ordinance No. 3674-84, as amended and supplemented (the "Original
Ordinance") and is supplemental to the Original Ordinance.
SECTION 2. DEFINITIONS. The following terms shall have the following meanings
herein, unless the text otherwise expressly requires. Words importing singular number shall
include the plural number in each case and vice versa, and words importing persons shall include
firms and corporations.
"Accreted Value" shall mean, as of any date of computation with respect to any Capital
Appreciation Bond, an amount equal to the principal amount of such 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 Payment Date
next preceding the date of computation or the date of computation if an Interest Payment Date,
such interest to accrue at a rate not exceeding the legal rate, compounded semi-annually, plus,
with respect to matters related to the payment upon redemption or acceleration of the Capital
Ordinance No, 6915-01
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Appreciation Bonds, if such date of computation shall not be an Interest Payment Date, a portion
of the difference between the Accreted Value as of the immediately preceding Interest Payment
Date and the Accreted Value as of the immediately succeeding Interest Payment Date, calculated
based on the assumption that Accreted Value accrues during any semi-annual period in equal
daily amounts on the basis of a 360 day year consisting of 12 months of 30 days each.
"Act" shall mean Chapter 166, Part II, Florida Statutes, and other applicable provisions of
law.
"Additional Bonds" shall mean Bonds issued in compliance with the terms, conditions
and limitations contained herein and in Section 16R of the Original Ordinance, 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 Installments" with respect to any Term Bonds of a Series, shall mean an
amount or amounts so designated which is or are established for the Term Bonds of such Series
by subsequent resolution of the Issuer and established with respect to such Term Bonds, provided
that (i) each such installment shall be deemed to be due on such interest or principal maturity
date of each applicable year as is fixed by subsequent resolution of the Issuer and shall be a
multiple of $5,000 principal amount (or $5,000 Maturity Amount, in the case of Capital
Appreciation Term Bonds), and (ii) the aggregate of such installments for such series shall equal
the aggregate principal amount (or Maturity Amount, in the case of Capital Appreciation Term
Bonds) of Term Bonds of such Series authenticated and delivered on original issuance.
"Authorized Investments" shall mean, with respect to a Series of Bonds, any of the
following if and to the extent the same are at the time legal for investment of municipal funds:
(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;
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Ordinance No. 6915-01
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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
(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-1" 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.
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Ordinance No. 6915-01
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With respect to any Series of Bonds issued hereunder, such additional investments as are
approved by subsequent resolution of the Issuer adopted prior to the issuance of such Series of
Bonds.
"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.
"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.
"Bondholder" shall mean a registered owner of a Bond as shown on the registration books
of the Registrar.
"Bond Service Requirement" for any Fiscal Year, as applied to the Bonds of any series,
shall mean the sum of:
(1) the amount required to pay the interest becoming due on the Bonds of such
series during the Fiscal Year, except to the extent that such interest shall have been
provided by payments into the Sinking Fund out of bond proceeds for a specific period of
time or by payments of investment income into the Sinking Fund from the Bond Service
Account or any subaccounts therein. Whenever such income is applied in calculating a
Bond Service Requirement for any purpose, such income shall also be excluded in the
computation of Gross Revenues for such purpose.
(2) the amount required to pay the principal of Serial Bonds of such senes
maturing in such Fiscal Year.
(3) the Amortization Installments for Term Bonds of such series for such Fiscal
Year.
(4) in the event the Issuer has purchased or entered into an agreement to purchase
Federal Securities or Authorized Investments from moneys in the Bond Service Account,
then the income received or to be received on such Federal Securities or Authorized
Investments from the date of acquisition thereof to the date of maturity thereof, unless
otherwise designated for other purposes, shall be taken into consideration in calculating
the payments which will be required to be made into the Sinking Fund and the Bond
Service Account therein. Whenever such income is applied in calculating a Bond Service
Requirement for any purpose, such income shall also be excluded in the computation of
Gross Revenues for such purpose.
"Bonds" shall mean the Parity Bonds, Series 2001 Bonds, and any Additional Bonds
permitted to be issued hereunder from time to time in accordance with the provisions hereof.
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Ordinance No. 6915-01
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"Capital Appreciation Bonds" shall mean Bonds the interest on which is payable only at
maturity or redemption, as determined by subsequent resolution.
"Capital Appreciation Term Bonds" shall mean Capital Appreciation Bonds of a series all
of which shall be stated to mature on one date, which shall be subject to retirement by operation
of the Bond Amortization Account, and the interest on which is payable only at maturity or
redemption.
"City Manager" shall mean the City Manager of the Issuer.
"Clerk" shall mean the City Clerk of the Issuer.
"Consulting Engineers" shall mean such qualified and recognized consulting engineers,
having a favorable repute for skill and experience in the construction and operation of such
facilities as the System, at the time retained by the Issuer to perform the acts and carry out the
duties as herein provided for Consulting Engineers.
"Cost of Operation and Maintenance" of the System shall mean the current expenses, paid
or accrued, of operation, maintenance and repair of the System as calculated in accordance with
sound accounting practice, but shall not include any reserves for renewals and replacements, for
extraordinary repairs or any allowance for depreciation or amortization.
"County" shall mean Pinellas County, Florida, a political subdivision of the State.
"Federal Securities" shall mean only direct obligations of, or obligations fully guaranteed
as to principal and interest by, the United States of America.
"Finance Director" shall mean the Financial Services Administrator of the Issuer or her
designee.
"Fiscal Year" shall mean the period commencing on October 1 of each year and ending
on the succeeding September 30, or such other period as is at the time prescribed by law.
"Gross Revenues" shall mean all income or earnings, including any income from the
investment of funds as herein provided, derived by the Issuer from the operation of the System.
"Increased Capacity Requirements" means any increased demand upon or usage of the
capital facilities of the System resulting from additional connections thereto, or from substantial
changes to or in the use of properties connected thereto.
"Issuer" or the "City" shall mean the City of Clearwater, Florida.
"Maturity Amount" means the amount payable upon the stated maturity of a Capital
Appreciation Bond equal to the original principal amount thereof plus all accrued interest thereon
from the date of issue to the date of maturity.
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Ordinance No. 6915-01
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"Maximum Bond Service Requirement" shall mean, as of any particular date of
calculation, the greatest amount of aggregate Bond Service Requirement for the then current or
any future Fiscal Year.
"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.
"Net Revenues" of the System shall mean the Gross Revenues after deduction of the Cost
of Operation and Maintenance.
"Original Ordinance" shall mean Ordinance No. 3674-84, as amended and supplemented,
of the Issuer, authorizing the Parity Bonds.
"Parity Bonds" shall mean the Issuer's outstanding Water and Sewer Refunding Revenue
Bonds, Series 1993 and Water and Sewer Refunding Revenue Bonds, Series 1998.
"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.
"Payment Date" shall mean, with respect to payment to the Bondholders of principal or
interest on the Bonds, or with respect to the mandatory amortization of Term Bonds, the date
upon which payment of such principal, interest or Amortization Installment is required to be
made to the Paying Agent.
"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 the Net Revenues.
"Project Costs" shall mean all costs authorized to be paid from the Construction Fund
pursuant to Section 17 hereof to the extent permitted under the laws of the State. It is intended
that this definition be broadly construed to encompass all costs, expenses and liabilities of the
Issuer related to the Project which on the date of this Ordinance or in the future shall be
permitted to be funded with the proceeds of any Series of Bonds pursuant to the laws of the
State.
"Projects" shall mean the design, acquisition, construction or reconstruction of capital
improvements to the System undertaken by the City from time to time, all as may be designated
by subsequent resolution of the Issuer adopted with respect to any Series of Bonds.
"Put Bonds" shall mean the Term Bonds so designated by resolution or ordinance of the
Issuer at or prior to the time the Bonds of any series are sold.
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Ordinance No. 6915-01
"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 Requirement" shall be such amount 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 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.
"Serial Bonds" shall mean any Bonds for the payment of the principal of which, at the
maturity thereof, no Amortization Installments are required to be made prior to the stated date of
maturity of such Serial Bonds.
"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.
"System" shall mean the complete combined and consolidated water system and sanitary
sewer system of the Issuer now owned by the Issuer, or hereafter constructed or acquired by the
Issuer, together with all lands or interests therein, including plants, buildings, machinery,
franchises, pipes, mains, fixtures, equipment and all property, real or personal, tangible or
intangible, now or hereafter owned or used in connection therewith, and including any undivided
or partial ownership interests therein.
"Term Bonds" shall mean the Bonds of a series all of which shall be stated to mature on
one date and which shall be subject to retirement by operation of the Bond Amortization
Account.
"2001 Bonds" shall mean the Series of Bonds initially issued under this Ordinance and
designated as Series 2001 Bonds.
"2001 Project" shall mean the Project or Projects authorized to be financed with the
proceeds of the Series 2001 Bonds as identified by subsequent resolution of the Issuer adopted
prior to the issuance of the Series 200 I Bonds, consisting of design, acquisition, construction or
reconstruction of capital improvements to the System undertaken by the City from time to time,
a portion of the cost of which are to be paid from the proceeds of the Series 2001 Bonds
SECTION 3. FINDINGS. It is hereby ascertained, determined and declared that:
A. The Issuer now owns, operates and maintains the System and is empowered to
maintain, operate, improve and extend such system and regulate and fix reasonable rates and
charges for the services furnished thereby.
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Ordinance No. 6915-01
B. The Issuer derives Gross Revenues from rates, fees and charges made and collected
for the services and facilities of the System supplying water and sanitary sewerage services and
the Gross Revenues are not pledged or encumbered in any manner, except for payment of the
Parity Bonds.
C. Any Series of Bonds and the project to be funded with the proceeds of such Series of
Bonds, shall be issued and such projects shall be undertaken upon approval by subsequent
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. Section 16R of the Original Ordinance provides for the issuance of Additional Bonds
under the terms, limitations and conditions provided therein.
E. The Issuer has complied, or will comply prior to the delivery of the Bonds, with all
the terms, conditions and restrictions contained in Section 16R of the Original Ordinance. The
Issuer is therefore legally entitled to issue the Bonds as Additional Bonds within the
authorization contained in the Original Ordinance and the covenants in the Original Ordinance
shall apply to the Bonds.
F. The Bonds herein authorized shall be on a parity and rank equally, as to lien on and
source and security for payment from the Pledged Revenues and in all other respects, with the
Parity Bonds.
G. The estimated Pledged Revenues will be sufficient to pay all of the principal of and
interest on the Bonds, as the same become due, and to make all required sinking fund, reserve
and other payments required under this Ordinance and the Original Ordinance.
H. The principal of and interest on the Bonds and all required sinking fund, reserve and
other payments shall be made solely from the Pledged Revenues as herein provided. The Issuer
shall never be required to levy ad valorem taxes on any property therein to pay the principal of
and interest on the Bonds or to make any of the required sinking fund, reserve or other payments,
and any failure to pay the Bonds shall not give rise to a lien upon any property of or in the Issuer,
except the Pledged Revenues.
1. The total indebtedness of the Issuer, within the meaning of the Issuer's charter, does
not exceed twenty per centum (20%) of the current assessed valuation of all real property located
in the Issuer, and will not exceed such amount after issuance of the Bonds.
SECTION 4. AUTHORIZATION OF SERIES 2001 BONDS. There is hereby
authorized the issuance of the initial Series of Bonds hereunder to be designated the Series 2001
Bonds, in a principal amount of not to exceed $62,000,000, subject to such terms and conditions
as set forth herein and in subsequent Resolutions of the Issuer adopted prior to the issuance of the
2001 Bonds. The proceeds of which shall be used to pay the costs of capital improvements to the
System, the costs of issuing the 2001 Bonds, including any municipal bond insurance, and to
fund a debt service reserve fund.
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Ordinance No. 6915-01
SECTION 5. ORDINANCE TO CONSTITUTE CONTRACT. In consideration of
the acceptance of the Bonds by the Bondholders from time to time, this Ordinance shall be
deemed to be and shall constitute a contract between the Issuer and such Bondholders. 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 Bondholders of any and all of such 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.
SECTION 6. 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 "Water and
Sewer [Refunding] Revenue Bonds, Series [To Be Determined]" are ,authorized to be issued in
one or more series (including Additional Bonds) from time to time. 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 17T hereof or as limited by the Act, by law
or Section 16R of the Original Ordinance.
SECTION 7. DESCRIPTION OF BONDS. The Bonds shall be issued in fully
registered form; may be Capital Appreciation Bonds, Capital Appreciation Term 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 a Series of
Bonds; shall have such Paying Agent and Registrar; 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 at
such times as are fixed by supplemental resolution of the Issuer and shall mature annually on
such date in such years and in such amounts as will be fixed by supplemental resolution of the
Issuer prior to or upon the sale of any series of Bonds; and may be issued with variable,
adjustable, convertible or other rates with original issue discounts and/or original issue premium;
all as the Issuer shall provide herein or hereafter by supplemental resolution.
Each Series of Bond 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 Series of Bond shall bear interest from the date to which interest shall have been
paid.
The Capital Appreciation Bonds shall bear interest only at maturity or upon redemption
prior to maturity in the amount determined by reference to the Accreted Value of such Bonds.
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Ordinance No, 6915-0 I
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 any
Bonds (other than Capital Appreciation 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 and
the Accreted Value 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 alternative
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 executed in the name of
the Issuer by the Mayor-Commissioner and City Manager and attested by the City Clerk, and
approved as to form, sufficiency and correctness by the City Attorney, either manually or with
his or her facsimile signature, and the official seal of the Issuer or a facsimile thereof shall be
affixed thereto or reproduced thereon. The facsimile signature of such officers may be imprinted
or reproduced on the Bonds. The Certificate of Authentication of the Bond Registrar shall
appear on the Bonds, and no bond shall be valid or obligatory for any purpose or be entitled to
any security or benefit under this Ordinance unless such certificate shall have been duly executed
on such Bond. The authorized signature for the Bond Registrar shall be either manual or
facsimile; provided, however, that at least one of the signatures appearing on the Bonds shall at
all times be a manual signature. In case any officer whose signature shall appear on any Bonds
shall cease to be such officer before the delivery of such Bonds, such signature or facsimile shall
nevertheless be valid and sufficient for all purposes the same as if he had remained in office until
such delivery. Any Bond may be signed and sealed on behalf of the Issuer by such person who
at the actual time of the execution of such Bonds shall hold the proper office with the Issuer,
although at the date of enactment of this Ordinance such person may not have held such office or
may not have been so authorized.
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 this Ordinance. The Registrar's certificate of
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Ordinance No. 6915-01
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. NEGOTIABILITY. Subject to the provisions hereof respecting
registration and transfer, the Bonds shall be and shall have all the qualities and incidents of
negotiable instruments under the laws of the State of Florida, and each successive holder, in
accepting any of the Bonds, shall be conclusively deemed to have agreed that the Bonds shall be
and have all of such qualities and incidents of negotiable instruments under the Uniform
Commercial Code - Investment Securities of the State of Florida.
SECTION 11. REGISTRATION, EXCHANGE AND TRANSFER. There shall be a
Bond Registrar for the Bonds which may be the Issuer or a designated bank or trust company
located within or without the State of Florida. The Bond Registrar shall maintain the registration
books of the Issuer and be responsible for the transfer and exchange of the Bonds. The Issuer
shall, prior to the proposed date of delivery of the Bonds, by resolution designate the Bond
Registrar and Paying Agent. The Bond Registrar shall maintain the books for the registration of
the transfer and exchange of the Bonds in compliance with the Florida Registered Public
Obligations Act and the system of registration as established by the Issuer pursuant thereto.
Bonds may be transferred upon the registration books, upon delivery to the Registrar,
together with written instructions as to the details of the transfer of such Bonds, along with the
social security number or federal employer identification number of such transferee and, if such
transferee is a trust, the name and social security or federal employer identification numbers of
the settlor and beneficiaries of the trust, the date of the trust and the name of the trustee. No
transfer of any Bond shall be effective until entered on the registration books maintained by the
Bond Registrar.
Upon surrender for transfer or exchange of any Bond, the Issuer shall execute and the
Bond Registrar shall authenticate and deliver in the name of the registered owner or the
transferee or transferees, as the case may be, a new fully registered Bond or Bonds of authorized
denominations of the same maturity and interest rate for the aggregate principal amount which
the registered owner is entitled to receive at the earliest practicable time in accordance with the
provisions of this Ordinance. The Issuer or the Bond Registrar may charge the owner of such
Bond for every such transfer or exchange an amount sufficient to reimburse them for their
reasonable fees and for any tax, fee, or other governmental charge required to be paid with
respect to such transfer, and may require that such charge be paid before any such new Bond
shall be delivered.
All Bonds presented for transfer, exchange, redemption or payment (if so required by the
Bond Registrar), shall be accompanied by a written instrument or instruments of transfer or
authorization for exchange, in form and with guaranty of signature satisfactory to the Bond
Registrar, duly executed by the registered holder or by his duly authorized attorney in fact or
legal representative.
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Ordinance No. 6915-01
All Bonds delivered upon transfer or exchange shall bear interest from the preceding
interest payment date so that neither gain nor loss in interest shall result from the transfer or
exchange. New Bonds delivered upon any transfer or exchange shall be valid obligations of the
Issuer, evidencing the same debt as the Bond surrendered, shall be secured by this Ordinance and
shall be entitled to all of the security and the benefits hereof to the same extent as the Bonds
surrendered.
The Issuer and the Bond Registrar may treat the registered owner of any Bond as the
absolute owner thereof for all purposes, whether or not such Bonds shall be overdue, and shall
not be bound by any notice to the contrary.
Notwithstanding the foregoing provisions of this section, the Issuer reserves the right, on
or prior to the delivery of the Bonds to amend or modify the foregoing provisions relating to the
registration of the Bonds by resolution or ordinance in order to comply with all applicable laws,
rules, and regulations of the United States and/or the State of Florida relating thereto. In
addition, pursuant to a resolution adopted prior to the issuance of a Series of Bonds, the Issuer
may establish a book-entry-only system of registration for such Series Bonds, the provisions of
which shall be deemed to modify any inconsistent provisions of this Ordinance.
SECTION 12. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case
any Bond shall become mutilated, or be destroyed, stolen or lost, the Issuer may in its discretion
issue and deliver a new Bond of like tenor as the Bond so mutilated, destroyed, stolen or lost, 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 proof of his ownership thereof and satisfactory indemnity and
complying with such other reasonable regulations and conditions as the Issuer may prescribe and
paying such expenses as the Issuer may incur. All Bonds so surrendered shall be canceled by the
Registrar for the Bonds. 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 Bonds 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 the source and security for payment from
the funds, as hereinafter pledged, to the same extent as all other Bonds issued hereunder.
SECTION 13. PROVISIONS FOR REDEMPTION. Each Series of Bonds shall be
redeemable as provided by subsequent resolution of the Issuer applicable to each such Series of
Bonds.
Bonds in denominations greater than an authorized denomination (or authorized Maturity
Amount in the case of Capital Appreciation Bonds) shall be deemed to be an equivalent number
of Bonds in the denomination of an authorized denomination or Maturity Amount. If a Bond is
of a denomination or Maturity Amount larger than an authorized denomination or Maturity
12
Ordinance No. 6915-01
..
Amount, a portion of such Bond may be redeemed, in the amount of an authorized denomination
or Maturity Amount or integral multiples thereof.
Notice of such redemption, identifying the Bonds or portions thereof called for
redemption (i) shall be filed with the paying agents and any Registrar; and (ii) shall be mailed by
the Registrar, first-class mail, postage prepaid, to all registered owners of the Bonds to be
redeemed not more than sixty (60) days and not less than thirty (30) days prior to the date fixed
for redemption at their addresses as they appear on the registration books to be maintained in
accordance with the provisions hereof. Failure to give such notice by mailing to any owner of
Bonds, or any defect therein, shall not affect the validity of any proceeding for the redemption of
other Bonds.
Notice having been mailed and filed in the manner and under the conditions hereinabove
provided, the Bonds or portions of Bonds so called for redemption shall, on the redemption date
designated in such notice, become and be due and payable at the redemption price provided for
redemption of such Bonds or portions of Bonds on such date. On the date so designated for
redemption, notice having been mailed and filed and moneys for payment of the redemption
price being held in separate accounts in trust for the holders of the Bonds or portions thereof to
be redeemed, all as provided in this Ordinance, interest on the Bonds or portions of Bonds so
called for redemption shall cease to accrue, such Bonds and portions of Bonds shall cease to be
entitled to any lien, benefit or security under this Ordinance, and the holders or Registered
Owners of such Bonds or portions of Bonds, shall have no rights in respect thereof, except the
right to receive payment of the redemption price thereof.
Upon surrender of any Bond for redemption in part only, the Issuer shall issue and
deliver to the registered owner thereof, the costs of which shall be paid by the registered owner, a
new Bond or Bonds of authorized denominations or Maturity Amounts in aggregate principal
amount equal to the unredeemed portion surrendered.
In addition to the foregoing notice, further notice may be given by the Issuer as set out
below (provided such additional notice is not required as a condition to redeeming Bonds), 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 borne 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
13
Ordinance No. 69] 5-0]
~
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, Penn-
sylvania) and to one or more national information services that disseminates notices of
redemption of obligations such as the Bonds.
(3) Each such further notice shall be published one time in the Bond Buyer of
New York, New York or, if such publication is impractical or unlikely to reach a
substantial number of the Holders of the Bonds, in some other financial newspaper or
journal which regularly carries notices of redemption of obligations similar to the Bonds,
such publication to be made at least 30 days prior to the date fixed for redemption.
SECTION 14. FORM OF BONDS. The text of the Bonds shall be in substantially the
form attached hereto as Exhibit B, with such omissions, insertions and variations as may be
necessary and desirable and authorized and permitted by this Ordinance or by any subsequent
ordinance or resolution adopted prior to the issuance thereof, or as may be necessary if the Bonds
or a potion thereof are issued as Capital Appreciation Bonds, Capital Appreciation Term 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.
SECTION 15. BONDS NOT DEBT OF ISSUER. The Bonds shall not be or
constitute general indebtedness of the Issuer within the meaning of any constitutional or statutory
provision or limitation, but shall be payable solely from and secured by a prior lien upon and
pledge of the Pledged Revenues herein provided. No Bondholder 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 property therein to pay the Bonds or the interest thereon or be entitled to payment of such
principal and interest from any other funds of the Issuer except from the Pledged Revenues in the
manner provided herein.
SECTION 16. PLEDGED REVENUES. Until payment has been provided for as
herein permitted, the payment of the principal of and interest on the Bonds shall be secured
forthwith equally and ratably by 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 and interest on the
Bonds, the reserves therefor, and for all other required payments. The Pledged Revenues shall
immediately be subject to the lien of this pledge without any physical delivery thereof or 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. All funds and accounts created pursuant
hereto shall be held by the Finance Director (or such other officer of the Issuer as shall be
approved by the City Commission) as trust funds for payment of the Bonds.
14
Ordinance No. 6915-01
!
SECTION 17. COVENANTS OF THE ISSUER. Until all principal of and interest on
the Bonds shall have been paid or provided for as herein permitted, the Issuer covenants with the
Bondholders as follows:
A. REVENUE FUND. The entire Gross Revenues shall upon receipt thereof be
deposited in the Revenue Fund created and established by the Original Ordinance. Such
Revenue Fund shall constitute a trust fund for the purposes herein provided and shall be kept
separate and distinct from all other funds of the Issuer and used only for the purposes and in the
manner herein provided.
B. CONSTRUCTION FUND. 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 is hereby created.
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.
C. 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:
(1) 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;
(2) Premiums attributable 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;
(3) 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;
(4) 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;
(5) 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;
15
Ordinance No. 6915-0 I
(6) 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;
(7) Costs incurred directly or indirectly in placing any Project in operation in
order that completion of such Project may occur;
(8) Any other costs authorized pursuant to a supplemental resolution of the Issuer
and permitted under the laws of the State; and
(9) Reimbursements to the Issuer for any of the above items theretofore paid by or
on behalf of the Issuer.
D. DISPOSITION OF REVENUES. All funds at any time remaining on deposit in the
Revenue Fund shall be disposed of on or before the twentieth day of each month, commencing in
the month immediately following the delivery of the 2001 Bonds, for so long as any Bonds
remain Outstanding, only in the following manner and in the following order of priority:
(1) Funds shall first be used for deposit into the Operation and Maintenance Fund,
which was established by the Original Ordinance, of such sums as are necessary for the
Cost of Operation and Maintenance, for the next ensuing month.
(2) 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 Project Costs.
(3) From the moneys remaining in the Revenue Fund, the Issuer shall next deposit
into the Sinking Fund created by the Original Ordinance, such sums as will be sufficient
to pay (a) one-sixth (1/6) of all interest becoming due on the Bonds on the next semi-
annual interest payment date; (b) commencing in the first month which is twelve (12)
months or six (6) months prior to the first annual or semi-annual maturity date, respec-
tively, of any Serial Bonds, one-twelfth (1112) or one-sixth (1/6), respectively, of the
amount of Serial Bonds which will become due and payable on the next annual or
semiannual principal maturity date, respectively, and (c) one-twelfth (1112) of the
Amortization Installment required to be made on the next annual payment date or one-
sixth (116) of the Amortization Installment required to be made on the next semi-annual
payment date into a "Bond Amortization Account", created and established in the Sinking
Fund by the Original Ordinance. Such payments shall be credited to a separate special
account for each series of Term Bonds outstanding, and if there shall be more than one
stated maturity for Term Bonds of a series, then into a separate special account in the
Sinking Fund for each such separate maturity of Term Bonds. The funds and investments
in each such separate account shall be pledged solely to the payment of principal of the
Term Bonds of the series or maturity within a series for which it is established and shall
16
Ordinance No. 6915-01
not be available for payment, purchase or redemption of Term Bonds of any other series
or within a series, or for transfer to the Sinking Fund to make up any deficiencies in
required payments therein. The Amortization Installments may be due either annually or
semiannually, but in any event, the required payments as set forth above shall be made
monthly commencing in the first month which is six (6) months or twelve (12) months, as
the case may be, prior to the date on which the Amortization Installment is required to be
made pursuant to (c) above.
Upon the sale of any series of Term Bonds, the Issuer shall by resolution,
establish the amounts and maturities of such Amortization Installments for each series,
and if there shall be more than one maturity of Term Bonds within a series, the
Amortization Installments for the Term Bonds of each maturity. In the event the moneys
deposited for retirement of a maturity of Term Bonds are required to be invested, in the
manner provided below, the Amortization Installments may be stated in terms of either
the principal amount of the investments to be purchased on, or the cumulative amounts of
the principal amount of investments required to have been purchased by, the payment
date of such Amortization Installment.
Moneys on deposit in each of the separate special accounts in the Bond
Amortization Account shall be used for the open market purchase or the redemption of
Term Bonds of the series or maturity of Term Bonds within a series for which such
separate special account is established or may remain in said separate special account and
be invested until the stated date of maturity of the Term Bonds. The resolution estab-
lishing the Amortization Installments for any series or maturity of Term Bonds may limit
the use of moneys to anyone or more of the uses set forth in the preceding sentence and
may specify the type or types of investments permitted hereunder to be purchased.
(4) Moneys remaining in the Revenue Fund shall next be applied by the Issuer to
maintain a Reserve Account, which Reserve Account was created and established by the
Original Ordinance, in a sum equal to the Reserve Requirement, all or a portion of which
sum may be initially provided from the proceeds of the sale of the Bonds and/or other
moneys of the Issuer. The Issuer shall thereafter deposit into said Reserve Account an
amount equal to one-twelfth (1112) of twenty per cent (20%) of the difference between
the amount, if any, so deposited upon the delivery of the Bonds and the amount of the
Reserve Requirement on all outstanding Bonds. No further payments shall be required to
be made into such Reserve Account when there has been deposited therein and as long as
there shall remain on deposit therein a sum equal to the Maximum Bond Service
Requirement on all outstanding Bonds becoming due in any ensuing Fiscal Year.
Any withdrawals from the Reserve Account shall be subsequently restored from
the first moneys available in the Revenue Fund after all required current payments into
the Sinking Fund and into the Reserve Account, including all deficiencies for prior
payments, have been made in full.
17
Ordinance No. 6915-01
Moneys in the Reserve Account shall be used only for the purpose of the payment
of maturing principal (including Amortization Installments) of or interest on the Bonds
when the moneys in the Sinking Fund are insufficient therefor, and for no other purpose.
Upon the issuance by the Issuer of any Additional Bonds under the terms, limitations and
conditions provided in this Ordinance and the Original Ordinance, the payments into the
Reserve Account shall be increased so that the amount on deposit therein shall be equal to
the Maximum Bond Service Requirement on all Bonds outstanding and to be
outstanding.
Whenever the amount on deposit in the Reserve Account exceeds the Reserve
Requirement on all Bonds then outstanding, the excess may be withdrawn and deposited
into the Sinking Fund.
The Issuer shall not be required to make any further payments into the Sinking
Fund or into the Reserve Account when the aggregate amount of moneys in the Sinking
Fund and the Reserve Account are at least equal to the aggregate principal amount of
Bonds then outstanding, plus the amount of interest then due or thereafter to become due
on the Bonds then outstanding.
Notwithstanding the foregoing provlSlons, in lieu of the required deposits of
Revenues into the Reserve Account, the Issuer may cause to be deposited into the
Reserve Account a surety bond or an insurance policy issued by a reputable and
recognized insurer for the benefit of the Bondholders in an amount equal to the difference
between the Maximum Bond Service Requirement and the sums then on deposit in the
Reserve Account, if any, which surety bond or insurance policy shall be payable (upon
the giving of notice as required thereunder) on any interest payment date on which a
deficiency exists which cannot be cured by funds in any other account held pursuant to
this Ordinance and the Original Ordinance and available for such purpose. The insurer
providing such surety bond or insurance policy shall be an insurer whose municipal bond
insurance policies insuring the payment, when due, of the principal of and interest on
municipal bond issues results in such issues being rated in the highest rating category by
Standard & Poor's Corporation or Moody's Investors Service, Inc., or their successors. If
a disbursement is made from a surety bond or an insurance policy provided pursuant to
this paragraph, the Issuer shall be obligated to either reinstate the maximum limits of such
surety bond or insurance policy immediately following such disbursement or to deposit
into the Reserve Account, as herein provided in this paragraph for restoration of
withdrawals from the Reserve Account, funds in the amount of the disbursement made
under such policy, or a combination of such alternatives.
(5) The Issuer shall next apply and deposit the moneys in the Revenue Fund into
the Renewal and Replacement Fund created by the Original Ordinance. The Issuer shall
deposit into such Renewal and Replacement Fund an amount equal to one-twelfth (1/12)
of five per centum (5%) of the Gross Revenues of the System for the previous Fiscal
Year, or such other amount as is certified as necessary for the purposes of the Renewal
and Replacement Fund by the Consulting Engineer and as approved by the City
18
Ordinance No. 6915-01
.
Commission. The moneys in said Renewal and Replacement Fund shall be used only for
the purpose of paying the cost of extensions, enlargements or additions to or the
replacement of capital assets of the System and emergency repairs thereto. Such moneys
on deposit in such Fund shall also be used to supplement the Reserve Account if
necessary in order to prevent a default in the payment of the principal of and interest on
the Bonds.
(6) To the extent junior lien bonds are issued and outstanding (which subordinated
bonds the Issuer reserves the right to issue), the Issuer shall next apply moneys in the
Revenue Fund to the payment of principal of, redemption premium, if any, and interest
on such subordinated debt of the Issuer.
(7) The balance of any moneys remaining in the Revenue Fund after the above
required payments have been made may either be deposited into either the Renewal and
Replacement Fund or the Sinking Fund, or may be used for the purchase or redemption of
Bonds, or may be used by the Issuer for any lawful purpose of the Issuer.
E. INVESTMENT OF FUNDS. The Operation and Maintenance Fund, the Sinking
Fund, the Reserve Account, the Renewal and Replacement Fund, the Revenue Fund, the
Construction Fund, and any other special funds herein and in the Original Ordinance established
and created shall constitute trust funds for the purposes provided herein for such funds. All such
funds shall be continuously secured in the same manner as state and municipal deposits are
required to be secured by the laws of the State of Florida. Moneys on deposit in any of such
funds and accounts may be invested and reinvested in Authorized Investments.
Investments made with moneys in the Construction Fund, the Revenue Fund, the
Operation and Maintenance Fund, and the Sinking Fund (except the Bond Amortization Account
therein), must mature not later than the date that such moneys will be needed. Investments made
with moneys in the accounts in the Bond Amortization Account, in the Reserve Account and in
the Renewal and Replacement Fund must mature, in the case of the accounts in the Bond
Amortization Account not later than the stated date of maturity of each respective Amortization
Installment of the Term Bonds to be retired from the sub-accounts in the Bond Amortization
Account from which the investment is made, in the case of the Reserve Account not later than
the final maturity of any Bonds then outstanding, and in the case of the Renewal and
Replacement Fund, not later than such date as shall be determined by the Issuer. Any and all
income received by the Issuer from all such investments shall be deposited into the Revenue
Fund, except however, that investment income earned in the Bond Amortization Account may be
retained therein or deposited into the Sinking Fund and used to pay maturing principal of and
interest on the Bonds, at the option of the Issuer.
The cash required to be accounted for in each of the foregoing funds and accounts
established herein may be deposited in a single bank account, and funds allocated to the various
accounts established herein may be invested in a common investment pool, provided that
adequate accounting records are maintained to reflect and control the restricted allocation of the
cash on deposit therein and such investments for the various purposes of such funds and accounts
as herein provided.
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Ordinance No. 6915-01
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 System for certain
purposes and to establish certain priorities for application of such revenues and assets as herein
provided.
F. OPERATION AND MAINTENANCE. The Issuer will maintain the System and all
parts thereof in good condition and will operate the same in an efficient and economical manner,
making such expenditures for equipment and for renewals, repairs and replacements as may be
proper for the economical operation and maintenance thereof.
G. RATE ORDINANCE. The Issuer has enacted or will enact a rate ordinance and
thereby will fix, establish and maintain such rates and will collect such fees, rentals and other
charges for the services and facilities of the System and revise the same from time to time
whenever necessary, as will always provide Gross Revenues in each Fiscal Year sufficient to pay
the Cost of Operation and Maintenance of the System in such Fiscal Year, one hundred fifteen
per centum (115%) of the Bond Service Requirement becoming due in such Fiscal Year on the
outstanding Parity Bonds, on the outstanding Bonds and on all outstanding Additional Bonds,
plus one hundred per centum (100%) of all reserve and other payments required to be made
pursuant to this Ordinance and the Original Ordinance. Such rates, fees, rentals and other
charges shall not be reduced so as to be insufficient to provide Gross Revenues for such
purposes.
H. BOOKS AND RECORDS. The Issuer shall keep books and records of the System,
which books and records shall be kept separate and apart from all other books, records and
accounts of the Issuer, and Bondholders shall have the right at all reasonable times to inspect all
records, accounts and data of the Issuer relating thereto.
I. ANNUAL AUDIT. The Issuer shall also, at least once a year, cause the books,
records and accounts relating to the System to be properly audited by a recognized independent
firm of certified public accountants and shall make generally available the report of such audits
to any Bondholder.
J. NO MORTGAGE OR SALE OF THE SYSTEM. The Issuer irrevocably
covenants, binds and obligates itself not to sell, lease, encumber or in any manner dispose of the
System as a whole until all of the Bonds shall have been paid in full as to both principal and
interest, or payment shall have been duly provided for under this Ordinance.
The foregoing provision notwithstanding, the Issuer may sell or dispose of, for fair
market value, any properties or parts of the System which the Consulting Engineer shall certify
in writing are not necessary for the continued operation of the System and that the sale or
disposal of which will not adversely affect the Gross Revenues to be derived from the System to
20
Ordinance No. 6915-01
such an extent that the Issuer will fail to comply with the covenants contained herein, including
Section 17(G) of this Ordinance and the Original Ordinance.
The proceeds derived from any sale or disposal of any properties or parts of the System as
provided for in the above paragraph shall, in the discretion of the Issuer, be (1) deposited in the
Renewal and Replacement Fund and used exclusively for the purpose of paying the cost of
extensions, enlargements or additions to, or the replacement of capital assets of the System and
for unusual or extraordinary repairs thereto, or for the construction or acquisition of additions,
extensions and improvements to the System, or (2) for the purchase or retirement of the Bonds
then outstanding. However, if the Consulting Engineer certifies that proceeds are necessary for
the purposes stated in part (1) above, such proceeds shall remain in the Renewal and
Replacement Fund until such certified requirements are satisfied, and the proceeds shall not be
used for any other purpose allowed by this Ordinance or the Original Ordinance.
K. INSURANCE. The Issuer will make adequate provision to maintain fire and
windstorm insurance on all buildings and structures and properties of the System which are
subject to loss through fire or windstorm, public liability insurance, and other insurance of such
types and in such amounts as are normally carried in the operation of similar public and private
utility systems within the State of Florida. Any such insurance shall be placed with nationally
recognized and reputable insurors or under State approved and authorized self insurance
programs or any combination of both and shall be carried for the benefit of the Bondholders. All
monies received for losses under any such insurance, except public liability, are hereby pledged
by the Issuer as security for the Bonds, until and unless such proceeds are used to remedy the
loss or damage for which such proceeds are received, either by repairing the property damaged or
replacing the property destroyed within ninety (90) days from the receipt of such proceeds.
L. NO FREE SERVICE. The Issuer will not render or cause to be rendered any free
services of any nature by its System, nor will any preferential rates be established for users of the
same class. This covenant shall not prevent individual contracts with other governmental entities
for the wholesale delivery of services of the System. The Issuer, including its departments,
agencies and instrumentalities, shall avail itself of the facilities or services provided by the
System or any part thereof, and the same rates, fees or charges applicable to other customers
receiving like services under similar circumstances shall be charged to the Issuer and any such
department, agency or instrumentality. Such charges shall be paid as they accrue, and the Issuer
shall transfer from its general funds sufficient sums to pay such charges. The revenues so
received shall be deemed to be Gross Revenues derived from the operation of the System and
shall be deposited and accounted for in the same manner as other Gross Revenues derived from
such operation of the System.
M. MANDATORY CONNECTION. To the full extent permitted by law the Issuer
will adopt and keep in force and effect an ordinance requiring that all improved premises with
respect to which water or sewer services from the System are available shall connect such
premises to the System and shall obtain available water and sewer services only from the System.
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Ordinance No. 6915-01
N. ENFORCEMENT OF COLLECTIONS. The Issuer will diligently enforce and
collect all fees, rentals or other charges for the services and facilities of the System and take all
steps, actions and proceedings for the enforcement and collection of such fees, rentals or other
charges which shall become delinquent to the full extent permitted or authorized by the Act and
by the laws of the State of Florida.
The Issuer will, under reasonable rules and regulations, shut off and discontinue the
supplying of the water service and the sewer service of the System for the nonpayment of fees,
rentals or other charges for said water service or said sewer service, or either of them, and will
not restore said water service or sewer service, or either of them, until all delinquent charges for
both water service and sewer service, together with interest and reasonable penalties, have been
paid in full.
O. REMEDIES. Any Bondholder, or any trustee acting for the Bondholders 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 the laws ofthe State of Florida, or granted and contained herein, and may
enforce and compel the performance of all duties herein required or by any applicable statutes to
be performed by the Issuer or by any officer thereof.
Nothing herein, however, shall be construed to grant to any Bondholders any lien on any
real property of the Issuer.
P. CONSULTING ENGINEERS. The Issuer will retain an independent consulting
engineer or engineering firm having a favorable reputation for skill and experience for the
design, construction and operation of systems of comparable size and character as the System,
for the purpose of providing the Issuer competent engineering counsel in connection with the
making of the capital improvements. The Issuer may, however, employ additional engineers at
any time with relation to specific engineering and operation problems arising in connection with
the System.
Q. CITY MANAGER REPORTS. On an annual basis, within 45 days of the receipt of
the annual audit of the System provided for above, the Issuer shall cause to be prepared by the
City Manager a report or survey of the System with respect to the management of the properties
thereof, the sufficiency of the rates and charges for services, the proper maintenance of the
properties of the System and the necessity for capital improvements and recommendations
therefor. Such a report or survey shall also show any failure of the Issuer to perform or comply
with the covenants herein contained, including those contained in subsection I above.
In the event that such annual report reflects that the rates and charges for services are
insufficient to protect the rights of the Bondholders, then the Issuer shall take such steps as are
required by law to raise the rates and charges for services. In the event that the annual report
indicated that the rates and charges for services should be increased substantially pro rata as to all
classes of service, then, to the full extent permitted by law, the Issuer shall raise the rates and
charges for services without the necessity for notice or public hearing.
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Ordinance No. 6915-01
:
R. NO COMPETING SYSTEM. To the full extent permitted by law the Issuer will not
grant or cause, consent to, or allow the granting of any franchise or permit to any person, firm,
corporation or body or agency or instrumentality whatsoever for the furnishing of water or
sanitary sewerage services to or within the service area of the System, if determined by the
Consulting Engineers to be materially competitive with the System and adversely affecting the
Gross Revenues derived from the operation thereof.
S. 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 Bonds 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.
T. ISSUANCE OF ADDITIONAL BONDS. Additional Bonds, payable on a parity
from the Pledged Revenues with the Parity Bonds and the Bonds, shall be issued only for the
purposes of refunding a part of the outstanding Bonds or financing the cost of extensions,
additions and improvements to the System and for the acquisition and construction of, and
extensions, additions and improvements to, sewer and/or water systems which are to be
consolidated with the System and operated as a single combined utility. Additional Bonds, other
than for refunding purposes, shall be issued only upon compliance with all of the following
conditions:
(1) 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 System have
been audited by qualified and recognized firm of independent certified public accountants; (b)
based on such audited financial statement, that the amount of the adjusted Net Revenues derived
for the Fiscal Year preceding the date of issuance of the proposed Additional Bonds or for any
twelve (12) consecutive months during the eighteen (18) months immediately preceding the date
of issuance of the Additional Bonds with respect to which such certificate is made, adjusted as
herein below provided; and (c) based on such audited financial statement, that the aggregate
amount of such Net Revenues, as adjusted, for the period for which such Net Revenues are being
certified is equal to not less than 120% of the Maximum Bond Service Requirement becoming
due in any Fiscal Year thereafter on (i) all Parity Bonds and the Bonds issued under this
Ordinance, if any, then Outstanding, and (ii) on the Additional Bonds with respect to which such
certificate is made.
(2) Upon recommendation of the Consulting Engineers, the Net Revenues
certified pursuant to (b) in the previous paragraph may be adjusted for purposes of this
Subsection by including: (a) 100% of the additional Net Revenues which in the opinion of the
23
Ordinance No. 6915-01
Consulting Engineer would have been derived by the Issuer from rate increases adopted before
the Additional Bonds are issued, if such rate increases had been implemented before the
commencement of the period for which such Net Revenues are being certified, and (b) 100% of
the additional Net Revenues estimated by the Consulting Engineer to be derived during the first
full twelve month period after the facilities of the System are extended, enlarged, improved or
added to with the proceeds of the Additional Bonds with respect to which such certificate is
made. The adjustments described in Section 17(T)(2)(b) may only be made if the Net Revenues
as adjusted under Section 17(T)(2)(a) for the period for which such Net Revenues are being
certified equals at least 1.00 times the Maximum Bond Service Requirement becoming due in
any Fiscal Year thereafter on (i) all Bonds then outstanding; and (ii) on the Additional Bonds
with respect to which such certificate is made.
(3) Additional Bonds 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 Ordinance and the Original Ordinance (except as to details of such Additional
Bonds inconsistent therewith) shall be for the equal benefit, protection and security of the Holder
of all Bonds issued pursuant to this Ordinance and the Original Ordinance. Except as provided
in Section 17(T) 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 17(T) hereof.
(5) The Issuer need not comply with the provisions of paragraph 1 of this
Section 17(T) if and to the extent the Additional Bonds 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 Series of Bonds to be immediately
Outstanding thereafter 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 a Series of Additional Bonds
shall recite that all of the covenants contained herein will be applicable to such Additional
Bonds.
U. MAINTENANCE OF SYSTEM. The Issuer will maintain the System in good
condition and continuously operate the same in an efficient manner and at a reasonable cost.
24
Ordinance No. 6915-01
:
SECTION 18. TAX COMPLIANCE.
A. In General. The Issuer at all times while the Bonds and the interest thereon are
outstanding will comply with all applicable provisions of the Internal Revenue Code of 1986, as
amended (the "Code") and any valid and applicable rules and regulations promulgated thereunder
(the "Regulations") in order to ensure that the interest on the Bonds will be excluded from gross
income for federal income tax purposes.
B. Rebate. (1) The Issuer shall either make or cause an independent firm of certified
public accountants or tax compliance firm to make and promptly provide to the Issuer the
rebate calculations required by the Code and Regulations, on which the Issuer may
conclusively rely in taking action under this Section. The Issuer shall make deposits to
and disbursements from separate accounts to the extent required by the Code and
Regulations and shall otherwise maintain full and complete accounting records of receipts
and disbursements of, and investment purchases and sales allocated to, the "gross
proceeds" subject to the rebate requirements of the Code and Regulations. The
requirements of this Subsection 18B may be superseded or amended by new calculations
accompanied by an opinion of bond counsel addressed to the Issuer to the effect that the
use of the new calculations are in compliance with the Code and Regulations and will not
cause the interest on the Bonds to become included in gross income for Federal income
tax purposes.
(2) The Issuer shall either make or cause an independent firm of certified public
accountants or tax compliance firm to annually make and promptly forward to the Issuer
after the end of the Bond Year and within the time required by the Code and the
Regulations the computation of the rebate deposit required by the Code, on which the
Issuer may conclusively rely in taking action under this Subsection B. Records of the
determinations required by this Subsection B and the Code and Regulations shall be
retained by the Issuer until six (6) years after the Bonds are no longer outstanding.
(3) Within the time required by the Code and Regulations following the end of the
fifth Bond Year, as defined in the Code, and every five (5) years thereafter, the Issuer
shall pay to the United States of America ninety percent (90%) of the rebate amounts
calculated as of such payment date, as shown by the computations of the Issuer. or the
certified public accountants or tax compliance firm, and one hundred percent (100%) of
the earnings on such rebate amounts as of such payment date. Not later than sixty (60)
days after the final retirement of each applicable series of Bonds, the Issuer shall pay to
the United States of America one hundred percent (100%) of the balance remaining of the
rebate amount and the earnings thereon. Each payment required to be paid to the United
States of America pursuant to this Subsection B shall be filed with the Internal Revenue
Service Center, Ogden, Utah 84201. Each payment shall be accompanied by a copy of
the Form 8038 originally filed with respect to each applicable series of Bonds and a state-
ment summarizing the determination of the amount to be paid to the United States of
America.
25
Ordinance No. 6915-01
. SECTION 19. 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,
or Accreted Value 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 ofthirty (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 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 19(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 federal law, 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.
26
Ordinance No. 6915-01
.'
The foregoing notwithstanding:
(i) No remedy conferred upon or reserved 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.
(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.
27
Ordinance No. 6915-01
~
Anything in this Ordinance to the contrary notwithstanding, upon the occurrence and
continuance of an Event of Default, the Bond Insurer, if any for a Series of Bonds shall be
entitled to control and direct the enforcement of all rights and remedies granted to the
Bondholders under this Ordinance for such Series of Bonds and the Bond Insurer shall also be
entitled to approve all waivers of events of default.
.
SECTION 20. 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:
(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 21 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 resolutions providing for the issuance of a Series of Bonds
pursuant hereto, the Issuer shall not enact any supplemental ordinance authorized by the
28
Ordinance No. 6915-01
... .~
~
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 21. AMENDMENT OF ORDINANCE WITH CONSENT OF
HOLDERS OF BONDS. Except as provided in Section 20 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 and delivery thereof by 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 21 (but not including Section
20 hereof) shall be made without the consent of the Bond Insurer, if any.
SECTION 22. DEFEASANCE. The covenants and obligations of the 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 22. Subject to the provisions of
paragraph (C) and (D) of this Section 22, any Outstanding Bonds shall prior to the maturity or
29
Ordinance No. 6915-01
.; ::
"
redemption date thereof be 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 Federal
Securities (including any Federal Securities 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 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 22, 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 22,
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 22 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 ofthe 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 23. SALE OF THE 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
30
Ordinance No. 6915-01
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~
~,
shall be consistent with the provisions of the requirements of this Ordinance and other applicable
provisions of law as set forth in a supplemental resolution of the Issuer adopted before the
issuance of any Series of Bonds.
SECTION 24. CAPITAL APPRECIATION BONDS. For the purposes of (i)
receiving payment of the redemption price if a Capital Appreciation Bond is redeemed prior to
maturity, (ii) receiving payment of a Capital Appreciation Bond if the principal of all Bonds is
declared immediately due and payable under the provisions of the Ordinance, (iii) computing the
amount of the Maximum Bond Service Requirement, and (iv) computing the percentage of
Bonds held by the registered owner of a Capital Appreciation Bond in giving to the Issuer or the
Trustee any notice, consent, request or demand pursuant to the Ordinance for any purpose
whatsoever, the principal amount of a Capital Appreciation Bond shall be deemed to be its
Accreted Value.
SECTION 25. AMENDING PRIOR ORDINANCES. In accordance with Section 21
of Ordinance No. 3674-84, which permits amendments and modifications of such Ordinance
which are not material modifications or amendments thereof, but with the consent of the
respective Bond Insurer for the Parity Bonds, Section 16R of Ordinance No. 3674-84, Ordinance
No. 5355-93 and Ordinance No. 6311-98 is hereby amended by deleting in its entirety paragraph
(1) thereof and replacing such paragraph with the following new paragraph (1):
(1) 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 System have been audited by qualified and recognized firm
of independent certified public accountants; (b) based on such audited financial
statement, that the amount of the adjusted Net Revenues derived for the Fiscal
Year preceding the date of issuance of the proposed Additional Bonds or for any
twelve (12) consecutive months during the eighteen (18) months immediately
preceding the date of issuance of the Additional Bonds with respect to which such
certificate is made, adjusted as herein below provided; and (c) based on such
audited financial statement, that the aggregate amount of such Net Revenues, as
adjusted, for the period for which such Net Revenues are being certified is equal
to not less than 120% of the Maximum Bond Service Requirement becoming due
in any Fiscal Year thereafter on (i) all Parity Bonds and the Bonds issued under
this Ordinance, if any, then Outstanding, and (ii) on the Additional Bonds with
respect to which such certificate is made.
SECTION 26. SEVERABILITY OF INVALID PROVISIONS. If anyone or more
of the covenants, agreements or provisions herein contained shall be held contrary to any express
provisions of law 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, then such covenants,
agreements or provisions shall be null and void and shall be deemed separable from the
remaining covenants, agreements or provisions and shall in no way affect the validity of any of
the other provisions hereof or ofthe Bonds issued hereunder.
31
Ordinance No. 69] 5-0]
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~ ;
. -
, .
.
· SECTION 27. REPEALING CLAUSE. All ordinances or resolutions or parts thereof
of the Issuer in conflict with the provisions herein contained are, to the extent of such conflict,
hereby superseded and repealed.
SECTION 28. EFFECTIVE DATE. This Ordinance shall take effect immediately
upon its passage.
SECTION 29. 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
November 1 ,2001
PASSED ON SECOND READING
AND FINAL READING AND
ADOPTED AS AMENDED.
November 15 ,2001
Approved as to form:
flt~
Pamela K. Akin
City Attorney
Attest:
~fkt:C1ff~
p~ Cynt a. Goud~u- ...
1) City Clerk .' ..
32
Ordinance No. 69]5-0]