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7423-05 ORDINANCE NO. 7423-05 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, SUPPLEMENTING ORDINANCE NO. 5118-91 TO AUTHORIZE ADDITIONAL GAS 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 AS ADDITIONAL PARITY OBLIGATIONS OF THE CITY PURSUANT TO THE CITY'S ORIGINAL ORDINANCE; PLEDGING THE NET REVENUES OF THE SYSTEM TO SECURE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON THE BONDS; PROVIDING FOR THE RIGHTS OF THE HOLDERS OF SUCH BONDS; PROVIDING FOR THE PAYMENT THEREOF; SETTING FORTH THE FORM OF ESCROW DEPOSIT AGREEMENT; PROVIDING FOR THE APPOINTMENT OF AN ESCROW AGENT; MAKING CERTAIN OTHER COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; PROVIDING CERTAIN OTHER MATTERS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE. BE IT ENACTED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA, as follows: SECTION 1. AUTHORITY FOR THIS ORDINANCE; ORDINANCE TO BE SUPPLEMENTAL. This Ordinance is enacted pursuant to the provisions of Chapter 166, Part II, Florida Statutes, and other applicable provisions of law (the "Act") and the Original Ordinance (as hereinafter defined). This Ordinance is supplemental to the Original Ordinance and all provisions of the Original Ordinance not supplemented, modified, superseded or repealed by the provisions hereof shall (a) remain in full force and effect, (b) apply to the Bonds (as hereinafter defined) issued pursuant to this Ordinance to the same extent and in the same manner as such provisions apply to the Parity Bonds, hereinafter defined, and (c) are incorporated herein by reference as if fully set forth. SECTION 2. DEFINITIONS. Unless the context otherwise requires, the terms defined in this Ordinance shall have the meanings specified in this section, and any capitalized terms not defined herein shall have the meanings specified in Section 2 of the Original Ordinance. Words importing singular number shall include the plural number in each case and vice versa, and words importing persons shall include firms and corporations. Ordinance No. 7423-05 1 "Bond Registrar" or "Registrar" shall mean the officer of the Issuer or the bank or trust company which the Issuer may from time to time designate to perform the duties herein set forth for the Registrar of the Refunding Bonds. "Bonds" shall mean (i) the Bonds authorized under the Original Ordinance, (ii) the Additional Parity Obligations previously issued by the Issuer, and (Iii) any Additional Parity Obligations issued hereafter in accordance with the provisions of the Original Ordinance and this Ordinance. "Escrow Deposit Agreement" shall mean that certain Escrow Deposit Agreement by and between the Issuer and a bank or trust company to be approved by subsequent resolution of the Issuer, for the purpose of providing for the payment of each series of Refunded Bonds, which agreement shall be in substantially the form attached hereto as Exhibit "A" and is hereby incorporated by reference. "Ordinance" shall mean this Ordinance No. 7423-05 of the Issuer as hereafter amended and supplemented from time to time in accordance with the provisions hereof. "Original Ordinance" shall mean City of Clearwater Ordinance No. 5118-91 as thereafter amended and supplemented from time to time in accordance with the provisions thereof. "Parity Bonds" shall mean the outstanding Gas System Revenue Bonds, Series 1997A, dated October 1, 1997, the outstanding Gas System Revenue Bonds, Series 1997B, dated October 1, 1997, the outstanding Gas System Revenue Refunding Bonds, Series 1998, dated January 15, 1998, the outstanding Gas System Revenue Refunding Bonds, Series 2004, dated January 15, 2004, and any Additional Parity Obligations issued under the authority of the Original Ordinance or this Ordinance. "Refunded Bonds" or "Advance Refunded Bonds" shall mean any series of Parity Bonds, or portion thereof, for which the future payments of principal, premium, if any, and interest has been provided for in an irrevocable escrow in accordance with the Escrow Deposit Agreement with proceeds of a series of Refunding Bonds, which are so designated in accordance with subsequent resolutions to be adopted by the Issuer prior to the issuance of such series of Refunding Bonds. "Refunding Bonds" or "Advance Refunding Bonds" shall mean the obligations of the Issuer authorized to be issued pursuant to this Ordinance and determined by subsequent resolution of the Issuer, which Refunding Bonds may be issued in one or more series, with each series to be separately designated in accordance with subsequent resolutions to be adopted by the Issuer prior to the issuance of any series of Refunding Bonds. "Series" or "Series of Bonds" or "Bonds of a 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 therefore pursuant to this Indenture Ordinance. Ordinance No. 7423-05 2 SECTION 3. FINDINGS. It is hereby found, determined and declared that: (A) The Issuer has heretofore enacted the Original Ordinance authorizing the issuance of certain obligations to be secured by and payable from the Net Revenues, and providing for the issuance of Additional Parity Obligations, upon the conditions set forth therein, to be payable on a parity from such Net Revenues. (B) It is in the best interest of the Issuer to authorize the issuance of Bonds (including Refunding bonds and Advance Refunding Bonds to be issued from time to time to finance or refinance the costs of certain additions, extensions, supplements or replacements of the existing gas system. The refunding program herein described will be advantageous to the Issuer by providing a net present value reduction in the amount of debt service secured by the System, resulting in a lessening of presSures to increase System rates. (C) Such Bonds shall be payable from the Net Revenues on a parity with the then outstanding Parity Bonds. (D) Any Series of Bonds to be issued pursuant to this Ordinance, shall be issued upon approval by subsequent resolution of the Issuer as provided by law. The proceeds of any such Series of Bonds shall be applied as provided in a subsequent ordinance or resolution. (E) The principal of and interest on each Series of the Bonds and all other payments shall be payable solely from the Net Revenues derived from the operation of the System, as provided herein and in the Original Ordinance. The Bonds shall not constitute an indebtedness, liability, general or moral obligation, or a pledge of the faith, credit or taxing power of the Issuer, the State, or any political subdivision thereof, within the meaning of any constitutional, statutory or charter provisions. Neither the State of Florida, nor any political subdivision thereof, nor the Issuer shall be obligated (1) to levy ad valorem taxes on any property to pay the principal of the Refunding Bonds, the interest thereon, or other costs incidental thereto or (2) to pay the same from any other funds of the Issuer except from the Net Revenues, in the manner provided herein and in the Original Ordinance. The Bonds shall not constitute a lien upon the System, or any part thereof, or on any other property of the Issuer, but shall constitute a first and prior lien only on the Net Revenues in the manner provided herein and in the Original Ordinance. (F) The estimated Net Revenues to be derived from the operation of the System will be sufficient to pay all principal of and interest on the Parity Bonds and each Series of Bonds issued hereunder, as the same become due, and to make all required Sinking Fund, Reserve and other payments required by this Ordinance and the Original Ordinance. (G) The Original Ordinance, in Section 16(T) thereof, provides for the issuance of Additional Parity Obligations under the terms, limitations and conditions provided therein. Ordinance No. 7423-05 3 (H) The Issuer has complied with the terms, conditions and restrictions contained in the Original Ordinance. The Issuer is, therefore, legally entitled to issue the Refunding Bonds as Additional Parity Obligations within the authorization contained in the Original Ordinance. SECTION 4. THE ORDINANCE TO CONSTITUTE CONTRACT. In consideration of the acceptance of the Bonds by the Bondholders from time to time, this Ordinance and the Original 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 Holders of any and all of the Bonds, all of which shall be of equal rank and without preference, priority or distinction of any of the Bonds over any other thereof, except as expressly provided therein and herein. SECTION 5. AUTHORIZATION OF BONDS. Subject and pursuant to the provisions hereof and as shall be described in subsequent resolutions of the Issuer to be adopted prior to the issuance of any Series of Bonds, obligations of the Issuer to be known as "Gas System Revenue [Refunding] Bonds, Series [to be determined]" are authorized to be issued in one or more series from time to time. The aggregate amount of the Bonds which may be executed and delivered under this Ordinance is not limited except as is or may hereafter be limited by the maximum amount of Additional Parity Obligations provided in Section 16(T) of the Original Ordinance. SECTION 6. 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 of the Issuer prior to or upon the sale of the Bonds; such interest to be payable semiannually at such times as are fixed by supplemental resolution of the Issuer if Current Interest Bonds 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 premiums; all as the Issuer shall provide herein or hereafter by supplemental resolution. Each Series of Bonds shall bear interest from the interest payment date next preceding the date on which it is authenticated, unless authenticated on an interest Ordinance No. 7423-05 4 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 Bonds 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. The principal of and the interest redemption premium, if any, on the Bonds shall be payable in any coin or currency of the United States of America which on the respective dates of payment thereof is legal tender for the payment of public and private debts. The interest on the Bonds (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 7. EXECUTION OF BONDS. The Bonds shall be executed in the name of the Issuer by its City Manager, counter-signed by its Mayor and attested to by its City Clerk, and its official seal or a facsimile thereof shall be affixed thereto or reproduced thereon. The Bonds shall be approved as to form and legal sufficiency by the City Attorney of the Issuer. The facsimile signatures of such officers may be imprinted or reproduced on the Bonds. The Certificate of Authentication of the Bond Registrar, hereinafter described, 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 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 Bonds may be signed and sealed on behalf of Ordinance No. 7423-05 5 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 8. NEGOTIABILITY AND REGISTRATION. (A) NEGOTIABILITY. The Bonds shall be and shall have all of the qualities and incidents of negotiable instruments under the Uniform Commercial Code - Investment Securities of the State of Florida, and each successive Holder, in accepting any of the Bonds shall be conclusively deemed to have agreed that such Bonds shall be and have all of the qualities and incidents of negotiable instruments under the Uniform Commercial Code - Investment Securities of the State of Florida. (B) REGISTRATION AND TRANSFER. There shall be a Bond Registrar for the Bonds which shall be a 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 bank to serve as a 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 an agreement to be executed between the Issuer and such bank as Bond Registrar on or prior to the date of delivery of the Bonds. Such agreement shall set forth in detail the duties, rights and responsibilities of the parties thereto. The Bonds may be transferred upon the registration books, upon delivery to the Registrar, together with written instructions as to the details for the transfer of such Bonds, along with the social security 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 Registrar. In all cases of the transfer of the Bonds, the Registrar shall enter the transfer of ownership in the registration books and shall authenticate and deliver in the name of the transferee or transferees 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. Any Bond or Bonds shall be exchangeable for a Bond or Bonds of the same maturity and interest rate, in any authorized denomination, but in a principal amount equal to the unpaid principal amount of the Bond or Bonds presented for exchange. Bonds to be exchanged shall be surrendered at the principal office of the Registrar, and the Registrar shall deliver in exchange therefor the Bond or Bonds which the Bondholder making the exchange shall be entitled to receive. The Issuer or the Registrar may charge the Registered 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 Ordinance No. 7423-05 6 transfer or exchange, and may require that such charge be paid before any such new Bond shall be delivered. All Bonds delivered upon transfer or exchange shall bear interest from such date that neither gain nor loss in interest shall result from the transfer or exchange. All Bonds presented for transfer, exchange, redemption or payment (if so required by the Issuer), 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 Issuer and the Registrar duly executed by the Registered Owner or by his duly authorized attorney. SECTION 9. 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 10. BOOK ENTRY SYSTEM. Notwithstanding the provisions of Sections 7, 8 and 9 hereof, the Issuer may, at its option, prior to the date of issuance of the Bonds, elect to use an immobilization system or pure book-entry system with respect to issuance of such Bonds, provided adequate records will be kept with respect to the ownership of such 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 Sections 7, 8 and 9 ofthis Ordinance 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 subsequent resolution of the Issuer duly adopted at or prior to the sale of any such Series of Bonds. SECTION 11. ESCROW DEPOSIT AGREEMENT. The form of Escrow Deposit Agreement to be used in connection with the defeasance and redemption of a Series of Bonds to be redeemed is attached hereto as Exhibit "A" and incorporated herein by Ordinance No. 7423-05 7 reference is hereby approved. The Mayor, or in his absence the Vice Mayor, the City Manager and the City Clerk are hereby authorized to execute such Escrow Deposit Agreement in substantially the form attached as Exhibit "A" upon the approval of the City Attorney as to form and legal sufficiency, with such additional changes, insertions and omissions therein as do not change the substance thereof and as may be approved by the said officers of the Issuer executing the same, such execution to be conclusive evidence of such approval. The Finance Director is hereby authorized to solicit offers from financial institutions to serve as Escrow Agent under the Escrow Deposit Agreement for each Series of Bonds to be redeemed, and the Finance Director is hereby authorized to select the firm with the lowest bid to serve in such capacity. SECTION 12. PROVISIONS FOR REDEMPTION. Each Series of Bonds shall beredeemable as provided by subsequent resolution ofthe Issuer applicable to each such Series of Bonds. Notice of such redemption, identifying the Bonds or portions thereof called for redemption, shall be given by the Registrar (who shall be the Paying Agent, or such other person, firm or corporation as may from time to time be designated by the Issuer as the Registrar) by mailing a copy of the redemption notice by first-class mail (postage prepaid) not more than thirty (30) days and not less than fifteen (15) days prior to the date fixed for redemption to the Registered Owner of each Bond to be redeemed in whole or in part at the address shown on the registration books. Failure to give such notice by mailing to any Registered Owner of Bonds, or any defect therein, shall not affect the validity of any proceeding for the redemption of other Bonds. All Bonds or portions thereof so called for redemption will cease to bear interest after the specified redemption date provided funds for their redemption are on deposit at the place of payment at that time. 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 in aggregate principal amount equal to the unredeemed portion surrendered. Whenever any Bonds shall be delivered to the Bond Registrar for cancellation, upon payment of the principal amount thereof, or for replacement, transfer or exchange, such Bonds shall be canceled and, upon request of the Issuer, destroyed by the Bond Registrar. Counterparts of the certificate of destruction evidencing any such destruction shall be furnished to the Issuer. SECTION 13. FORM OF THE BONDS. The Bonds shall be substantially in the form of Bond approved by Original Ordinance, with such omissions, insertions and variations as may be necessary and desirable and authorized and permitted by this Ordinance or by any supplemental resolution adopted prior to the issuance thereof. Ordinance No. 7423-05 8 SECTION 14. APPLICATION OF PROVISIONS OF ORIGINAL ORDINANCE. Each Series of Bonds shall for all purposes (except as herein expressly provided) be considered to be Additional Parity Obligations issued under the authority of the Original Ordinance and in accordance with such subsequent resolution to be adopted, and shall be entitled to all the protection and security provided therein for the Parity Bonds, and shall be in all respects entitled to the same security, rights and privileges enjoyed by the Parity Bonds. The covenants and pledges contained in the Original Ordinance shall be applicable to each Series of Bonds in like manner as applicable to the Parity Bonds. The principal of and interest on each Series of Bonds shall be payable from the Sinking Fund established in the Original Ordinance on a parity with the Parity Bonds, and payments shall be made into such Sinking Fund by the Issuer in amounts fully sufficient to pay the principal of and interest on the Parity Bonds and such Series of Bonds as such principal and interest become due. SECTION 15. COVENANTS OF THE ISSUER. The provisions of Section 16 of the Original Ordinance shall be deemed applicable to this Ordinance and shall apply to the Bonds issued pursuant to the Original Ordinance and in accordance with such subsequent resolution, as though fully restated herein. SECTION 16. AMENDING AND SUPPLEMENTING OF ORDINANCE WITHOUT CONSENT OF HOLDERS OF BONDS. The provisions of Section 17 of the Original Ordinance shall be deemed applicable to this Ordinance and shall apply to each Series of Bonds issued pursuant to this Ordinance and by subsequent resolution of the Issuer as though fully restated herein. SECTION 17. AMENDMENT OF ORDINANCE WITH CONSENT OF HOLDERS OF BONDS. The provisions of Section 18 of the Original Ordinance shall be deemed applicable to this Ordinance and shall apply to each Series of Bonds issued pursuant to this Ordinance and by subsequent resolution of the Issuer as though fully restated herein. SECTION 18. DEFEASANCE. The provisions of Section 19 of the Original Ordinance shall be deemed applicable to this Ordinance and shall apply to each Series of Bonds issued pursuant to this Ordinance and by subsequent resolution of the Issuer as though fully restated herein. SECTION 19. TAX COVENANTS. (A) The Issuer covenants with the Registered Owners of each Series of Bonds that it shall not use the proceeds of such series of Bonds in any manner which would cause the interest on such Series of Bonds to be or become includable in the gross income of the Registered Owner thereof for federal income tax purposes. (B) The Issuer covenants with the Registered Owners of each Series of Bonds that neither the Issuer nor any person under its control or direction will make any use of the Ordinance No. 7423-05 9 proceeds of such Series of Bonds (or amounts deemed to be proceeds underthe Code) in any manner which would cause such Series of Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code and neither the Issuer nor any other person shall do any act or fail to do any act which would cause the interest on such Series of Bonds to become includable in the gross income of the Registered Owner thereof for federal income tax purposes. (C) The Issuer hereby covenants with the Registered Owners of each Series of Bonds that it will comply with all provisions of the Code necessary to maintain the exclusion of interest on the Bonds from the gross income of the Registered Owner thereof for federal income tax purposes, including, in particular, the payment of any amount required to be rebated to the U.S. Treasury pursuant to the Code. SECTION 20. GOVERNMENTAL REORGANIZATION. The provisions of Section 21 of the Original Ordinance shall be deemed applicable to this Ordinance and shall apply to each Series of Bonds issued pursuant to this Ordinance and by subsequent resolution of the Issuer as though fully restated herein. SECTION 21. COVENANTS WITH CREDIT FACILITY ISSUER. The Issuer may make such covenants as it may, in its sole discretion, determine to be appropriate with any Credit Facility Issuer that shall agree to provide a Credit Facility that shall enhance the security or the value of a Series of Bonds. Such covenants may be set forth by subsequent resolution adopted prior to or simultaneously with the sale of each Series of Bonds and shall have the same effect as if such covenants were set forth in full in this Ordinance. SECTION 22. PRELIMINARY OFFICIAL STATEMENT. Thedistributionofa Preliminary Official Statement relating to each Series of Bonds is hereby approved in such form and substance as shall be approved by subsequent resolution of the Issuer. SECTION 23. SEVERABILITY. If anyone or more of the covenants, agreements, or provisions of this Ordinance should be held contrary to any express provision 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 separate from the remaining covenants, agreements or provisions of this Ordinance or of the Bonds. SECTION 24. REPEAL OF INCONSISTENT INSTRUMENTS. All ordinances or resolutions, or parts thereof, in conflict herewith are hereby repealed to the extent of such conflict. Ordinance No. 7423-05 10 SECTION 25. EFFECTIVE DATE. This Ordinance shall take effect immediately upon its enactment. PASSED ON FIRST READING April 7, 2005 PASSED ON SECOND AND FINAL April 21. 2005 READING AND ADOPTED ~;;;:::€ r: ~ Mayor Attest: =...Z ,. , . Approved as to form: ~K. Akin City Attorney Ordinance No. 7423-05 11 EXHIBIT A FORM OF ESCROW DEPOSIT AGREEMENT A-I Ordinance No. 7423-05 EXHIBIT A FORM OF ESCROW DEPOSIT AGREEMENT This ESCROW DEPOSIT AGREEMENT, dated as of I, 20-, by and between the CITY OF CLEARWATER, FLORIDA, a municipal corporation of the State of Florida (the "Issuer"), and . a [national banking association][state banking corporation] organized under the laws of the [United States of America][State of ], as Escrow Holder (the "Escrow Holder"); WITNESSETH: WHEREAS, the Issuer has previously authorized and issued obligations of the Issuer as hereinafter set forth defined as the "Refunded Bonds", as to which the Aggregate Debt Service (as hereinafter defined) is set forth on Schedule A; and WHEREAS, the Issuer has determined to provide for payment of the Aggregate Debt Service of the Refunded Bonds by depositing with the Escrow Holder pursuant to the provisions hereof, cash and Federal Securities (as defined herein), the principal of and interest on which will be at least equal to the Aggregate Debt Service; and WHEREAS, in order to obtain the funds needed for such purpose, the Issuer has authorized and is, concurrently with the delivery of this Agreement, issuing the Series 2005 Bonds more fully described herein; and WHEREAS, the Issuer has determined that the amount to be on deposit from time to time in the Escrow Account, as defined herein, will be sufficient to pay the Aggregate Debt Service; NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the Issuer and the Escrow Holder agree as follows (provided however that the Escrow Holder in agreeing to the foregoing shall not be held or deemed responsible in any manner whatsoever for the recitals made herein or in the Ordinance, or the adequacy or sufficiency of the Escrow Requirement): Section 1. Definitions. As used herein, the following terms mean: (a) "Aggregate Debt Service" means, as of any date, the sum of all present and future Annual Debt Service payments then remaining unpaid with respect to the respective Series of the Refunded Bonds. 1 (b) "Agreement" means this Escrow Deposit Agreement. (c) "Annual Debt Service" means, with respect to the redemption date for the Refunded Bonds, the principal of, premium, and interest on the respective Series of the Refunded Bonds coming due on the redemption date as shown on Schedule A attached hereto. (d) "Bonds" or "Series ---,--- Bonds" means the Gas System Revenue [Refunding] Bonds, Series _ of the Issuer, authorized by the Ordinance, as herein defined. (e) "Call Date" shall have the meaning set forth in the Issuer's Irrevocable Instruction and Authorization to Redeem Bonds. (f) "Escrow Account" means the account established and held by the Escrow Holder pursuant to this Agreement, in which cash and investments will be held for payment of the Refunded Bonds. (g) "Escrow Holder" means [ [national banking association][state banking [United States of America][State of ] [ ], a corporation] organized under the laws of the ]. (h) "Escrow Requirement" means, as of any date of calculation, the sum of an amount in cash and principal amount of Federal Securities in the Escrow Account which, together with the interest due on the Federal Securities, will be sufficient to pay, as the installments thereof become due, the Aggregate Debt Service. (i) "Federal Securities" means direct obligations of the United States of America and obligations the principal of or interest on which are fully guaranteed by the United States of America, none of which permit redemption prior to maturity at the option of the obligor. (j) "Irrevocable Instruction and Authorization to Redeem Bonds" means a certificate executed by the Issuer which provides for redemption of certain of the Refunded Bonds on the Call Date, irrevocably instructs the Escrow Holder to give notice of such redemption and directs the paying agent for the Refunded Bonds to pay the Refunded Bonds and the interest thereon upon surrender thereof at maturity or on their Call Date, whichever is earlier. (k) "Issuer" means the City of Clearwater, Florida. (1) "Ordinance" means Ordinance No. 5118-91 enacted by the Issuer on August IS, 1991, as amended and supplemented in Ordinance _-OS, enacted on , 2005, as amended and supplemented.. 2 (m) "Paying Agent" shall mean the Paying Agent for the Refunded Bonds. (n) "Refunded Bonds" shall mean the Series _ Bonds maturing on and after 1, 200_. (0) "Series Bonds" shall mean the Issuer's Gas System [Refunding] Revenue Bonds, Series , dated Section 2. Deposit of Funds. The Issuer hereby deposits $ with the Escrow Holder in immediately available funds, to be held in irrevocable escrow by the Escrow Holder and applied solely as provided in this Agreement. The Issuer represents that: (a) Such funds are all derived as follows: (1) $ from the net proceeds of the Bonds; and (2) $ the Refunded Bonds. transferred from the Sinking Fund held for the payment of (b) Such funds, when applied pursuant to Section 3 below, will at least equal the Escrow Requirement as of the date hereof. Section 3. Use and Investment of Funds. The Escrow Holder acknowledges receipt of $ and agrees: (a) to hold the funds in irrevocable escrow during the term of this Agreement, (b) to deposit the sum of $ , representing the $ of funds from the Sinking Fund for the Refunded Bonds and $ from the proceeds of the Bonds, in cash from the amount received by the Issuer in the Escrow Account, and, hold such funds in cash until the 1, 20_ redemption date of the outstanding Series Bonds, (c) to immediately invest $ of such funds derived from the proceeds of the Bonds by the purchase of the Federal Securities set forth on Schedule B-1 attached hereto, and to immediately invest $ of such funds by the purchase of the Federal Securities set forth on Schedule B-2, (d) to hold $ as uninvited cash, and (e) to deposit in the Escrow Account, as received, the receipts of maturing principal of and interest on the Federal Securities in the Escrow Account. 3 Section 4. Payment of Refunded Bonds. (a) Refunded Bonds. On the redemption date for each respective series of Refunded Bonds, the Escrow Holder shall pay to the Paying Agent for the Refunded Bonds, from the cash on hand in the Escrow Account, a sum sufficient to pay the Annual Debt Service for the respective series of Refunded Bonds coming due on such date, as shown on Schedule A and as demonstrated on Exhibit C hereto. (b) Surplus. On the last redemption date for the Refunded Bonds, after making the payments from the Escrow Account described in Subsection 4(a), the Escrow Holder shall pay to the Issuer any remaining cash in the Escrow Account in excess of the Escrow Requirement, to be used for any lawful purpose of the Issuer. (c) Priority of Payments. The holders of the Refunded Bonds shall have an express first lien on the funds and Federal Securities in the Escrow Account until such funds and Federal Securities are used and applied as provided in this Agreement. If the cash on hand in the Escrow Account is ever insufficient to make the payments required under Subsection 4(a), all of the payments required under Subsection 4(a) shall be made when due before any payments shall be made under Subsections 4(b). (d) Fees and Expenses of Escrow Holder. On the date hereof, the Escrow Holder acknowledges receipt of its fees to serve as Escrow Holder in the amount of $ , and agrees to invoice the Issuer for reimbursement of any out of pocket expenses incurred by the Escrow Holder in performing its services hereunder, and further acknowledges that the Escrow Holder does not have a lien on or claim against any funds held hereunder for reimbursement of such expenses. Section 5. Reinvestment. (a) Except as provided in Section 3 hereof, and in this Section, the Escrow Holder shall have no power or duty to invest any funds held under this Agreement or to sell, transfer or otherwise dispose of or make substitutions of the Federal Securities held hereunder. (b) At the written request of the Issuer and upon compliance with the conditions hereinafter stated, the Escrow Holder shall sell, transfer, otherwise dispose of or request the redemption of any of the Federal Securities acquired hereunder and shall either apply the proceeds thereof to the full discharge and satisfaction of the Refunded Bonds or substitute other Federal Securities for such Federal Securities. The Issuer will not request the Escrow Holder to exercise any of the powers described in the preceding sentence in any manner which would cause any Bonds to be "arbitrage bonds" within the meaning of the Internal Revenue Code of 4 1986, as amended, and the Regulations thereunder. The transactions may be effected only if (i) an independent certified public accountant shall certify to the Escrow Holder that the cash and principal amount of Federal Securities remaining on hand after the transactions are completed, together with the interest due thereon, will be not less than the Escrow Requirement, and (ii) the Escrow Holder shall receive an unqualified opinion from a nationally recognized bond counsel or tax counsel to the effect that the transactions will not cause such Bonds to be "arbitrage bonds" within the meaning of the Internal Revenue Code of 1986, as amended, and the regulations thereunder in effect on the date of the transactions and applicable to transactions undertaken on such date. Section 6. No Redemption or Acceleration of Maturity. Except as provided in the Irrevocable Instruction and Authorization to Redeem Bonds, the Issuer will not accelerate the maturity or due date of the Refunded Bonds. Section 7. Responsibilities of Escrow Holder. The Escrow Holder and its respective successors, assigns, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Agreement, the establishment of the Escrow Account, the acceptance of the funds deposited therein, the purchase of the Federal Securities, the retention of the Federal Securities or the proceeds thereof or any payment, transfer or other application of money or securities by the Escrow Holder in any non-negligent act, non-negligent omission or non-negligent error of the Escrow Holder made in good faith in the conduct of its duties. The Escrow Holder shall, however, be liable to the Issuer for its negligent or willful acts, omissions or errors which violate or fail to comply with the terms of this Agreement. The duties and obligations of the Escrow Holder shall be determined by the express provisions of this Agreement. The Escrow Holder may consult with counsel, who mayor may not be counsel to the Issuer, and in reliance upon the opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Holder shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the Issuer. The Escrow Holder has no duty to determine or inquire into the happening or occurrence of any event or contingency where the performance or the failure of performance of the Issuer with respect to arrangements or contracts with others, the Escrow Holder's sole duty and responsibility hereunder being to safeguard the Escrow Account and dispose of and deliver the same strictly in accordance with this Agreement. Section 8. Resignation of Escrow Holder. The Escrow Holder may resign and thereby become discharged from the duties and obligations hereby created, by notice in writing given to the Issuer and published once in a newspaper of general circulation published in the 5 territorial limits of the Issuer, and in a daily newspaper of general circulation or a financial journal published or circulated in the Borough of Manhattan, City and State of New York, not less than sixty (60) days before such resignation shall take effect. Such resignation shall take effect immediately upon the appointment of a successor Escrow Holder hereunder and payments of all amounts due the resigning Escrow Holder. Section 9. Removal of Escrow Holder. (a) The Escrow Holder may be removed at any time by an instrument or concurrent instruments in writing, executed by the holders of not less than fifty-one per centum (51%) in aggregate principal amount of each series of Refunded Bonds then outstanding, such instruments to be filed with the Issuer, and notice in writing given by such holders to all of the registered holders of each series of the Refunded Bonds and published once in a newspaper of general circulation published in the territorial limits of the Issuer, and in a daily newspaper of general circulation or a financial journal published or circulated in the Borough of Manhattan, City and State of New York, not less than sixty (60) days before such removal is to take effect as stated in such instrument or instruments. A photographic copy of any instrument filed with the Issuer under the provisions of this paragraph shall be delivered by the Issuer to the Escrow Holder. (b) The Escrow Holder may also be removed at any time for any breach of trust or for acting or proceeding in violation of, or for failing to act or proceed in accordance with, any provisions of this Agreement with respect to the duties and obligations of the Escrow Holder, by the Issuer or by the holders of not less than twenty-five per centum (25%) in aggregate principal amount of each series of the Refunded Bonds then outstanding. (c) No such removal shall take effect until a successor Escrow Holder shall be appointed hereunder. Section 10. Successor Escrow Holder. (a) If at any time hereafter the Escrow Holder shall resign, be removed, be dissolved or otherwise become incapable of acting, or shall be taken over by any governmental official, agency, department or board, the position of Escrow Holder shall thereupon become vacant. If the position of Escrow Holder shall become vacant for any of the foregoing reasons or for any other reason, the Issuer shall appoint a successor Escrow Holder to fulfill the duties of Escrow Holder hereunder. The Issuer shall publish notice of any such appointment once in each week for four (4) successive weeks in a newspaper of general circulation published in the territorial limits of the Issuer and in a daily newspaper of general circulation or a financial journal published or circulated in the Borough of Manhattan, City and State of New York, and, before the second publication of such notice shall mail a copy thereof to the original purchaser or 6 purchasers of the Refunded Bonds. (b) At any time within one year after such vacancy shall have occurred, the holders of a majority in principal amount of each series of Refunded Bonds then outstanding, by an instrument or concurrent instruments in writing, executed by all such bondholders and filed with the governing body of the Issuer, may appoint a successor Escrow Holder, which shall supersede any Escrow Holder theretofore appointed by the Issuer. Photographic copies of each such instrument shall be delivered promptly by the Issuer, to the predecessor Escrow Holder and to the Escrow Holder so appointed by the bondholders. (c) If no appointment of a successor Escrow Holder shall be made pursuant to the foregoing provisions of this section, the holder of any Refunded Bonds then outstanding, or any retiring Escrow Holder may apply to any court of competent jurisdiction to appoint a successor Escrow Holder. Such court may thereupon, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Escrow Holder. Section 11. Term. This Agreement shall commence upon its execution and delivery and shall terminate when the Refunded Bonds have been paid and discharged in accordance herewith, and all amounts held by the Escrow Holder hereunder have been applied in accordance herewith. Section 12. Severability. If anyone or more of the covenants or agreements provided in this Agreement on the part of the Issuer or the Escrow Holder to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreements herein contained shall be null and void and shall be severed from the remaining covenants and agreements and shall in no way affect the validity of the remaining provisions of this Agreement. Section 13. Counterparts. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as duplicate originals and shall constitute and be but one and the same instrument. Section 14. State of Florida. Governing Law. This Agreement shall be construed under the laws of the Section 15. Security for Accounts and Funds. All accounts and funds maintained or held pursuant to this Agreement shall be continuously secured in the same manner as other deposits of municipal funds are required to be secured by the laws of Florida. 7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers and their official seals to be hereunto affixed as of the date first above written. THE CITY OF CLEARWATER, FLORIDA (SEAL) Mayor ATTEST: City Clerk City Manager Approved as to Form, Sufficiency and Correctness: City Attorney 8 , as Escrow Holder (SEAL) By: Its: 9 . Schedule A (Aggregate Debt Service; Semi-Annual Debt Service; Annual Debt Service; Description of Refunded Bonds) Series Bonds Payment Date Principal Premium Interest Total Debt Service - . . Schedule B-1 (Restricted Federal Securities for Investment) Maturity Bond Type Principal Coupon Yield Purchase Price , , . " Schedule B-2 (Unrestricted Federal Securities for Investment) Maturity Bond Type Principal Coupon Yield Purchase Price Schedule C Escrow Cash Flow Date Principal Rate Interest Transfer Receipts Disbursements Cash Balance