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6931-02 e ORDINANCE NO. 6931-02 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, AMENDING ORDINANCE NO. 6378-99 TO AUTHORIZE ADDITIONAL STORMWATER SYSTEM 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 CORRECT CERTAIN DEFINITIONS THEREIN AND TO REVISE OTHER COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF CLEARWATER, FLORIDA: SECTION 1. AUTHORITY FOR THIS ORDINANCE. This Ordinance is enacted pursuant to Chapter 166, Part II, Florida Statutes, the Charter of the City of Clearwater, Ordinance No. 6378-99 and other applicable provisions of law. SECTION 2. DEFINITIONS. (A) The following definitions set forth in Ordinance No.. 6378-99 are hereby amended to read as follows (additional language is underlined and deleted language is indicated with [brackets]): "Additional Parity Obligations" shall mean additional obligations issued in compliance with the terms, conditions and limitations contained herein and which (i) shall have a lien on the Parity Pledged Revenues equal to that of the Bonds, (ii) shall be payable from the Parity Pledged Revenues on a parity with the Bonds, and (iii) rank equally in all other respects with the Bonds. "Bond Insurance Policy" shall mean, with respect to a Series of Bonds, any municipal bond new issue insurance policy issued by a Bond Insurer that guarantees payment of principal of and interest on such a Series of [the] Bonds.: "Bonds" shall mean (i) the Stormwater System Revenue Bonds, Series 1999; (ii) the Stormwater System Revenue Bonds, Series 2002 herein authorized to be issued and (iii) any Additional Parity Obligations permitted to be issued hereunder from time to time in accordance with the provisions hereof. "City Manager" shall mean the City Manager or an Assistant City Manager of the Issuer, or such other person as may be duly authorized by the City Manager of the Issuer to act on his or her behalf. Ordinance No. 6931-02 "Clerk" shall mean the City Clerk or an Assistant City Clerk of the Issuer, or such other person as may be duly authorized by the City Clerk of the Issuer to act on his or her behalf. "Finance Director" shall mean the [Financial Services Administrator] Finance Director of the Issuer or her designee. "Pledged Revenues" shall mean, with respect to any Series of Bonds (i) the Parity Pledged Revenues [Net Revenues of the System], and (ii) the moneys on deposit in the various funds and accounts created pursuant to this Ordinance allocable to such Series of Bonds, including but not limited to the Construction Fund and the Reserve Account for such Series, with the exception ofthe Rebate Fund. "Reserve Requirement" shall be, with respect to each Series of Bonds, the lesser of (i) the Maximum Bond Service Requirement for such Series of Bonds, (ii) 125% of the Average Annual Bond Service Requirement of such Series of Bonds, 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. (B) The following new definitions are hereby added: "Parity Pledged Revenues" shall mean (i) the Net Revenues of the System and (ii) the moneys on deposit in the Bond Service Fund. "Series" or "Series of Bonds" or "Bonds ofa Series" shall mean all Bonds issued under this Ordinance and 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. "2002 Project" shall mean the Project authorized to be financed with the proceeds of the Series 2002 Bonds as identified by subsequent resolution ofthe Issuer adopted prior to the issuance of the Series 2002 Bonds, consisting of constructing and acquiring certain additions, extensions and improvements to the Issuer's System, including but not limited to piping, the purchase of real property for retention ponds and drainage improvements, and other similar improvements, additions, renovations, acquisitions and related capital projects of the System. (C) Any terms not defined herein shall have the meaning assigned to such term in Ordinance No. 6378-99. SECTION 3. FINDINGS. It is hereby ascertained, determined and declared that: (A) The Issuer now owns, operates and maintains the System and will continue to derive revenue from rates, fees, rentals and other charges made and collected for the services of such System, which revenues and the other revenues pledged pursuant to the provisions hereof are not now pledged or encumbered in any manner except for payment of the Series 1999 Bonds. 2 Ordinance No. 6931-02 (B) It is in the best interests ofthe Issuer and in the furtherance of the public health and safety of the residents thereofthat the Issuer authorize the issuance of the Bonds for the purpose of designing, permitting, acquiring and constructing the improvements and additions to its Stormwater System. (C) Such Bonds shall be payable from the Pledged Revenues. (D) Any Series of Bonds, after the issuance ofthe Series 2002 Bonds herein authorized, shall be issued upon approval by supplemental resolution of the Issuer as provided by law. The proceeds of any Series of Bonds shall be applied as provided in a supplemental ordinance or resolution. (E) The principal of and interest and redemption premium on each Series of the Bonds and all reserve and other payments shall be payable solely from the Pledged Revenues. The Issuer shall never be required to levy ad valorem taxes on any real or personal property therein to pay the principal of and interest on the Bonds herein authorized or to make any other payments provided for herein. The Bonds shall not constitute a lien upon any properties owned by or located within the boundaries of the Issuer or upon any property other than the Pledged Revenues. (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 Parity Pledged Revenues and in all other respects, with the Series 1999 Bonds. (G) The Pledged Revenues should be sufficient to pay all principal of and interest and redemption premium on the Bonds to be issued hereunder, as the same become due, and to make all required deposits or payments required by this Ordinance. (H) All costs of the 2002 Project incurred after the date of this Ordinance shall be reimbursed from proceeds of the Bonds. SECTION 4. AUTHORIZATION OF DESIGN, PERMITTING, ACQUISITION AND CONSTRUCTION OF THE 2002 PROJECT. There is hereby authorized the design, permitting, acquisition and construction of the 2002 Project. SECTION 5. Section 6 of Ordinance No. 6378-99 is hereby amended to read as follows (additional language is underlined and deleted language is indicated with [brackets]): 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 ofthe Issuer to be known as "Stormwater System Revenue Bonds, Series (to be determined)" are authorized to be issued in one or more series (including Additional Parity 3 Ordinance No. 6931-02 Obligations) from time to time in the aggregate principal amount of not exceeding [$30,000,000] the total amount of Bonds that can be issued within the parameters of Section 20(Q) hereof, which may mature at higher Compounded Amounts to include the maturity amount of Capital Appreciation Bonds and Capital Appreciation Income Bonds. There is expressly authorized to be issued an initial Series of Bonds to be called the "Stormwater System Revenue Bonds, Series 1999 (the "Series 1999 Bonds"), the proceeds of which will fund the costs ofthe 1999 Project, and a second Series of Bonds to be called the "Stormwater System Revenue Bonds, Series 2002" (the "Series 2002 Bonds"), the proceeds of which will fund the costs of the 2002 Project, all as shall be described in a subsequent resolution to be adopted prior to the issuance of such Series [1999] of Bonds. SECTION 6. Section 7 of Ordinance No. 6378-99 is hereby amended to read as follows (additional language is underlined and deleted language is indicated with [brackets]): SECTION 7. DESCRIPTION OF BONDS. The Bonds shall be issued in fully registered form; may be Capital Appreciation Bonds, Capital Appreciation Income Bonds, Option 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 Current Interest Bonds and in $5,000 maturity amounts for the Capital Appreciation Bonds or in $5,000 multiples thereof, or such other denominations as shall be approved by the Issuer in a supplemental resolution prior to the delivery of the Bonds; shall have such Paying Agent and Registrar as designated in a subsequent Resolution of the Issuer adopted prior to the issuance of such Series of Bonds; shall bear interest at such rate or rates not exceeding the maximum rate allowed by State law, the actual rate or rates to be approved by the governing body ofthe Issuer prior to or upon the sale of the Bonds; such interest to be payable semiannually at such times as are fixed by supplemental resolution ofthe Issuer if Current Interest Bonds and shall mature annually on such date in such years [(not exceeding 30 years from the date of issuance)] and such amounts as will be fixed by supplemental resolution of the Issuer prior to or upon the sale ofthe Bonds; and may be issued with [variable, adjustable, convertible or other rates with] original issue discounts and [as Capital Appreciation Bonds] original issue premiums; all as the Issuer shall provide herein or hereafter by supplemental resolution. Each [Serial] Current Interest 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 4 Ordinance No. 6931-02 been made, such [Serial] Current Interest 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 Compounded Amount. The principal of and the interest redemption premium, if any, on the Bonds shall be payable in any coin or currency of the United States of America which on the respective dates of payment thereof is legal tender for the payment of public and private debts. The interest on the [Serial] Current Interest 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 [Serial] Current Interest Bonds and the Compounded Amount with respect to the Capital Appreciation Bonds shall be made upon the presentation and surrender of such Bonds as the same shall become due and payable. Notwithstanding any other provisions of this section, the Issuer may, at its option, prior to the date of issuance of any Series of Bonds, elect to use an immobilization system or pure book-entry system with respect to issuance of such Series of Bonds, provided adequate records will be kept with respect to the ownership of such Series of Bonds issued in book-entry form or the beneficial ownership of bonds issued in the name of a nominee. As long as any Bonds are outstanding in book-entry form the provisions of this Ordinance inconsistent with such system of book-entry registration shall not be applicable to such Bonds. The details of any 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 7. Section 20(B)(2) of Ordinance No. 6378-99 is hereby amended to read as follows (additional language is underlined and deleted language is indicated with [brackets]): (2)The Issuer shall next deposit from moneys remaining in the Revenue Fund an amount required to make the amount on deposit in the Reserve Fund with respect to a Series of Bonds equal the Reserve Requirement for such Series of Bonds, subject to the funding limitations set forth in this paragraph (2). Any withdrawals from the Reserve Fund shall be subsequently restored from the first moneys available in the Revenue Fund, after all required current payments for Cost of Operation and Maintenance as set forth above and all current applications and allocations to the Bond Service Fund, including all deficiencies for prior payments 5 Ordinance No. 6931-02 have been made in full. Notwithstanding the foregoing, in case of withdrawal from the Reserve Fund, in no event shall the Issuer be required to deposit into the Reserve Fund an amount greater than that amount necessary to ensure that the difference between the Reserve Requirement and the amounts on deposit in the Reserve Fund with respect to a Series of Bonds on the date of calculation shall be restored not later than sixty (60) months after the date of such deficiency (assuming equal monthly payments into the Reserve Fund for such sixty (60) month period). The Issuer may provide that the difference between the amounts on deposit in the Reserve Fund with respect to a Series of Bonds and the Reserve Requirement with respect to a Series of Bonds shall be an amount covered by obtaining bond insurance issued by a reputable and recognized municipal bond insurer, by a letter of credit rated in one of the two highest categories by one of two nationally recognized rating agencies, by a surety bond acceptable to any company issuing a policy of municipal bond insurance guaranteeing the payment of principal and interest on such Series of Bonds, or any combination thereof. Moneys in each account in the Reserve Fund applicable to a Series of Bonds shall be used only for the purpose of the payment of Amortization Installments, principal of, or interest on the Outstanding Bonds of such Series when the other moneys allocated to the Bond Service Fund for such Series of Bonds are insufficient therefor, and for no other purpose. Securities in the Reserve Fund shall be valued annually at market rate. Deficiencies in the amounts on deposit in the Reserve Fund resulting from a decline in market value shall be restored no later than the succeeding interest payment date. In the event of the refunding of any Series of Bonds, the Issuer may withdraw from the Reserve Fund, all or any portion of the amounts accumulated therein [with respect to the] allocable to that portion of the Series of Bonds being refunded and deposit such amounts as required by the resolution authorizing the refunding of such Series of Bonds; provided that such withdrawal shall not be made unless (a) immediately thereafter that portion of the Series of Bonds being refunded shall be deemed to have been paid pursuant to the provisions hereof and (b) the amount remaining in the [Reserve Fund] account in the Reserve Fund applicable to that portion of the Series of Bonds not being refunded after giving effect to the issuance of such refunding obligations and the disposition of the proceeds thereof shall not be less than the Reserve Requirement for [any] that portion of the Series of Bonds then Outstanding and not being refunded. SECTION 8. Section 20(B)(5) of Ordinance No. 6378-99 is hereby amended to read as follows (additional language is underlined and deleted language is indicated with [brackets]): (5)The Bond Service Fund (including the accounts therein), the Reserve Fund, the Revenue Fund, and any other special funds herein established and created shall be deemed to be held in trust for the purposes provided herein for such funds. The money in all such funds shall be continuously secured in the same 6 Ordinance No. 6931-02 manner as state and municipal deposits are authorized to be secured by the laws of the State of Florida in Permitted Investments. Moneys in any fund or account created hereunder (with the exception of the Reserve Fund) may be invested and reinvested in Permitted Investments which mature not later than the dates on which the moneys on deposit therein will be needed for the purpose of such fund. [Moneys in the Reserve Fund may be invested and reinvested in Permitted Investments maturing not later than five (5) years after deposit into such Reserve Fund by the Issuer.] All income on such investments, except as otherwise provided, shall be deposited in the respective funds and accounts from which such investments were made and be used for the purposes thereof unless and until the maximum required amount (or, with respect to the Construction Fund, the amount required to acquire, construct and erect the Project) is on deposit therein, and thereafter shall be deposited in the Revenue Fund. SECTION 9. Section 20(D) of Ordinance No. 6378-99 is hereby amended to read as follows (additional language is underlined and deleted language is indicated with [brackets]): (D) RATE COVENANT. The Issuer will fix, establish, revise from time to time whenever necessary, maintain and collect always such fees, rates, rentals and other charges for the use of the products, services and facilities of the System which will always provide Net Revenues in each year sufficient to pay [the lesser of the aggregate of] one hundred fifteen percent (115%) of the Bond Service Requirement becoming due in such year on the Outstanding Bonds. Such rates, fees, rentals or other charges shall not be reduced so as to render them insufficient to provide revenues for the purposes provided therefor by this Ordinance. SECTION 10. Section 20(Q)(1) of Ordinance No. 6378-99 is hereby amended to read as follows (additional language is underlined and deleted language is indicated with [brackets]): (Q) ISSUANCE OF ADDITIONAL PARITY OBLIGATIONS. No Additional Parity Obligations shall be issued after the issuance of the Series 2002 Bonds herein authorized, except upon the conditions and in the manner hereinafter provided: (1 )There shall have been obtained and filed with the Clerk a certificate of [an independent certified public accountant] the Finance Director stating: (a) that the books and records of the Issuer relative to the System and the [Pledged] Net Revenues have been reviewed by an independent certified public accountant; and (b) the amount of the [Pledged] Net Revenues derived for any consecutive twelve (12) months out of the preceding twenty-four (24) months preceding the date of issuance of the proposed Additional Parity Obligations as adjusted pursuant to paragraphs 2,3,4 and/or 5 below, is equal to not less than 120% 7 Ordinance No. 6931-02 of the Maximum Bond Service Requirement becoming due in any Fiscal Year there- after on (i) all Bonds issued under this Ordinance, [if any] then Outstanding, and (ii) on the Additional Parity Obligations with respect to which such certificate is made. SECTION 11. Section 24(A) of Ordinance No. 6378-99 is hereby amended to read as follows (additional language is underlined and deleted language is indicated with [brackets]): SECTION 24. 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] one or more Series of 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] such 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. SECTION 12. Section 28 of Ordinance No. 6378-99 is hereby amended to read as follows (additional language is underlined and deleted language is indicated with [brackets]): SECTION 28. CAPITAL APPRECIATION BONDS. For the purposes of (i) receiving payment of the redemption price of a Capital Appreciation Bond if redeemed prior to maturity, (ii) receiving payment if the principal of all Bonds is declared immediately due and payable, and (iii) [computing Bond Service Requirement, and (iv)] computing the amount of Holders required for any notice, consent, request or demand hereunder for any purpose whatsoever, the principal amount of a Capital Appreciation Bond shall be deemed to be its Compounded Amount. SECTION 13. REPEAL OF INCONSISTENT INSTRUMENTS. Any other ordinance or resolutions, or parts thereof, in conflict herewith are hereby repealed to the extent of such conflict. SECTION 14. EFFECTIVE DATE. The provisions ofthis Ordinance shall take effect upon its enactment, as required by law. [Remainder of page left intentionally blank] 8 Ordinance No. 6931-02 SECTION 15. 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 June 20, PASSED ON SECOND AND FINAL READING July 18 Attest: ~- - ,....... _....-_...~.~~.~ $;JCyat a . GOOdeau . ~ V City Clerk Approved as to form: ~ Akin City Attorney 9 ,2002 ,2002 Ordinance No. 6931-02