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7366-04 (2) ORDINANCE NO. 7366-04 AN ORDINANCE PROVIDING FOR THE ISSUANCE OF GAS SYSTEM SUBORDINATE REVENUE OBLIGATIONS, AS SUBORDINATE OBLIGATIONS OF THE CITY PURSUANT TO THE CITY'S ORDINANCE NO. 5118-91, TO ACQUIRE OR PURCHASE, DIRECTLY OR INDIRECTLY, GAS SUPPLY AND/OR GAS PRODUCTION FACILITIES OR INTEREST THEREIN; PLEDGING THE NET REVENUES OF THE SYSTEM TO SECURE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON THE SUBORDINATE OBLIGATIONS IN ACCORDANCE WITH ORDINANCE NO. 5118-91; PROVIDING FOR THE RIGHTS OF THE SUBORDINATE HOLDERS OF SUCH OBLIGATIONS; PROVIDING FOR THE PAYMENT THEREOF; 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 Ordinance No. 5118-91, as amended and supplemented (the "Original Ordinance"). 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is supplemental to the Original Ordinance and all provisions of the Original Ordinance not supplemented, modified, superseded or repealed by the provisions hereof shall (a) remain in full force and effect, (b) apply to the Subordinate Obligations herein authorized, and (c) are incorporated herein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. "Additional Subordinate Obligations" shall mean additional subordinate obligations issued in compliance with the terms, conditions and limitations contained in the Original Ordinance and in this Ordinance and which (i) shall have a lien on the Pledged Revenues subordinate to that of the Bonds outstanding from time to time but on a parity with other Subordinate Obligations 1 Ordinance No. 7366-04 outstanding, (ii) shall be payable from the Net Revenues subordinate to the Bonds but on a parity with other Subordinate Obligations outstanding. "Financial Instruments" shall mean an agreement entered into with respect to the purchase or pricing of gas or other services provided under or as further described in a Gas Supply Agreement, the purpose of which is to provide a hedge or other financial control of the price or . costs of gas to be supplied to the System over a period of time. "Gas Supply Agreement" shall mean one or more agreements entered into from time to time, pursuant to which the City, through the System, acquires an interest in, directly or indirectly, a designated future supply of natural gas or natural gas production facilities, and may, but shall not be required to, include one or more Financial Instruments. "Issuer" shall mean the City of Clearwater, Florida. "Reserve Requirement" for each series of Subordinate Obligations shall be as determined by subsequent resolution of the Issuer. Unless otherwise specified, a series of Subordinate Obligations shall not be subject to a Reserve Requirement. If a subsequent resolution imposes a Reserve Requirement for a series of Subordinate Obligations, such Reserve Requirement shall not be in excess of the lesser of (i) the Maximum Bond Service Requirement of the Subordinate Obligations, (ii) 125% of the average annual Bond Service Requirement of the Subordinate Obligations, or (iii) 10% of the net proceeds of the Subordinate Obligations. "Subordinate Holder" shall mean any person who shall be the holder of any registered Subordinate Obligations or counterparty to a Gas Supply Agreement, as shown on the books and records of the System. The Issuer may deem and treat the person in whose name any Subordinate Obligation is registered as the absolute owner thereof for the purpose of receiving payment of, or on account of, the principal or redemption price thereof and interest due thereon, and for all other purposes. "System" shall mean the complete gas system now owned, operated and maintained by the Issuer, together with any and all assets, improvements, extensions and additions thereto hereafter constructed or acquired. 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 other obligations, upon the conditions set forth therein, to be payable from such Net Revenues, which obligations shall be junior and subordinate in all respects to the Bonds outstanding from time to time, as to lien on and source and security for payment from such Net Revenues. 2 Ordinance No. 7366-04 (B) The costs associated with the issuance of the Subordinate Obligation shall be deemed to include legal expenses, fiscal expenses, rating agency fees, expenses for estimates of costs and of revenues, accounting expenses, fees of financial advisors, accrued and capitalized interest, provisions for reserves, and such other expenses as may be necessary or incidental for the financing herein authorized. (C) The Revenues are not pledged or encumbered in any manner except for the prior payment from the Net Revenues of the principal of and interest on the Bonds outstanding from time to time. (D) The principal of and interest on the Subordinate Obligation and all required Sinking Fund, Reserve and 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 Subordinate Obligations 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 Subordinate Obligation, 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 Subordinate Obligation shall not constitute a lien upon the System, or any part thereof, or on any other property of the Issuer, but shall constitute a subordinate lien only on the Net Revenues in the manner provided herein and in the Original Ordinance, junior and subordinate to the lien thereon in favor of the Bonds outstanding from time to time. (G) 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 Subordinate Obligation and the Outstanding Bonds, as the same become due, and to make all required Sinking Fund, Reserve and other payments required by this Ordinance and the Original Ordinance. (H) The Original Ordinance, in Section 16(S) thereof, provides for the issuance of additional obligations under the terms, limitations and conditions provided therein. (I) The Issuer has complied with the terms, conditions and restrictions contained in the Original Ordinance. The Issuer is, therefore, legally entitled to issue the Subordinate Obligation as additional obligations within the authorization contained in the Original Ordinance. (J) The Subordinate Obligation herein authorized shall be junior and subordinate in all respects to the Bonds outstanding from time to time, as to lien on and source and security for payment from such Net Revenues. 3 Ordinance No. 7366-04 SECTION 4. THE ORDINANCE TO CONSTITUTE CONTRACT. In consideration of the acceptance of the Subordinate Obligation authorized to be issued hereunder by those who shall hold the same 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 Subordinate Holders. The covenants and agreements herein set forth to be performed by the Issuer shall be for the equal benefit, protection and security of the legal Subordinate 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 S. AUTHORIZATION OF SUBORDINATE OBLIGATIONS. Subject and pursuant to the provisions hereof, Subordinate Obligation are authorized to be issued from time to time through the execution and delivery of a Gas Supply Agreement or otherwise in such form as may be specified in a subsequent resolution of the Issuer adopted prior to the issuance of such Subordinate Obligation (i) finance the acquisition or purchase, indirectly or directly, of gas supply and gas production facilities; (ii) make a deposit to the Reserve Account in the Sinking Fund to satisfy the Reserve Requirement (or to purchase a debt service reserve fund policy or surety, as determined by resolution of the Issuer adopted prior to the issuance of any series of Subordinate Obligation) and (iii) pay the costs of issuance of the Subordinate Obligation. SECTION 6. DESCRIPTION OF SUBORDINATE OBLIGATION. Each Subordinate Obligation shall be as described in a Gas Supply Agreement approved by the Issuer from time to time, or as otherwise may be approved by subsequent resolution of the Issuer adopted prior to the incurrence of a Subordinate Obligation. SECTION 7. EXECUTION OF SUBORDINATE OBLIGATIONS AND FINANCIAL INSTRUMENTS. Subordinate Obligations shall be executed in the name of the Issuer by its City Manager and Mayor, attested by the City Clerk and approved as to form by the City Attorney, and its official seal or a facsimile thereof shall be affixed thereto or reproduced thereon. Financial Instruments shall be approved as to form by the City Attorney of the Issuer, and shall be executed by the Issuer by the City Manager and the Mayor, and attested by the City Clerk. In case any officer whose signature shall appear on any Subordinate Obligation or Financial Instrument shall cease to be such officer before the delivery of such Financial Instrument, 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 Subordinate Obligation or Financial Instrument may be signed and sealed on behalf of the Issuer by such person who at the actual time of the execution of such Subordinate Obligation or Financial Instrument 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. APPLICATION OF PROVISIONS OF ORIGINAL ORDINANCE. The Subordinate Obligations and Financial Instruments herein authorized, shall for all purposes (except as herein expressly provided) be considered to be subordinate obligations issued under the 4 Ordinance No, 7366-04 authority of the Original Ordinance, and shall be entitled to all the protection and security provided therein for the Subordinate Obligation, and shall be in all respects entitled to the same security, rights and privileges enjoyed by the Subordinate Obligation. The covenants and pledges contained in the Original Ordinance shall be applicable to the Subordinate Obligation herein authorized. The principal of and interest on the Subordinate Obligation shall be payable from the Sinking Fund established in the Original Ordinance on a parity with the Subordinate Obligation, 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 Subordinate Obligation and the Subordinate Obligation as such principal and interest become due. SECTION 9. APPLICATION OF SUBORDINATE OBLIGATION PROCEEDS. The proceeds, including accrued interest and premium, if any, received from or deemed to be received as a result of the undertaking of a Subordinate Obligation shall be applied by the Issuer in accordance with the respective Gas Supply Agreement, Financial Instrument or as otherwise provided by subsequent resolution adopted by the Issuer prior to the incurrence of such Subordinate Obligation. SECTION 10. SPECIAL OBLIGATIONS OF ISSUER. The Subordinate Obligation shall be special obligations of the Issuer, payable solely from the Net Revenues as herein provided. The Subordinate Obligations do not constitute an indebtedness, liability, general or moral obligation, or a pledge of the faith, credit or taxing power of the Issuer, the State of Florida 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 Subordinate Obligation, the interest thereon or other costs incident thereto, or (2) to pay the same from any other funds of the Issuer except from the Net Revenues, in the manner provided herein. The acceptance of the Subordinate Obligation by the Subordinate Holders from time to time thereof shall be deemed an agreement between the Issuer and such Subordinate Holders that the Subordinate Obligation and the indebtedness evidenced thereby shall not constitute a lien upon the System, or any part thereof, or any other property of the Issuer, but shall constitute a subordinate and junior lien only on the Net Revenues, in the manner hereinafter provided. The Net Revenues shall be immediately 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. The payment of the principal of and the interest on the Subordinate Obligation shall be secured forthwith by an irrevocable lien on the Net Revenues of the System, as defined herein, junior and subordinate with the Outstanding Bonds and the Issuer does hereby irrevocably pledge such Net Revenues of the System to the payment of the principal of and the interest on the Subordinate Obligation, for the reserves therefor and for all other required payments. 5 Ordinance No. 7366-04 SECTION 11. 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 Subordinate Obligations issued pursuant to this Ordinance as though fully restated herein. SECTION 12. AMENDING AND SUPPLEMENTING OF ORDINANCE WITHOUT CONSENT OF SUBORDINATE HOLDERS. The provisions of Section 17 of the Original Ordinance shall be deemed applicable to this Ordinance and shall apply to the Subordinate Obligations issued pursuant to this Ordinance as though fully restated herein. SECTION 13. AMENDMENT OF ORDINANCE WITH CONSENT OF SUBORDINATE HOLDERS OF SUBORDINATE OBLIGATION. The provisions of Section 18 of the Original Ordinance shall be deemed applicable to this Ordinance and shall apply to the Subordinate Obligation issued pursuant to this Ordinance as though fully restated herein. SECTION 14. DEFEASANCE. The provisions of Section 19 of the Original Ordinance shall be deemed applicable to this Ordinance and shall apply to the Subordinate Obligations issued pursuant to this Ordinance as though fully restated herein. SECTION 15. TAX COVENANTS. To the extent any Subordinate Obligation is issued on a basis that the interest portion to be paid thereunder is intended by the Issuer to be excluded from gross income of the Subordinate Holders, the Issuer makes the following covenants: (A) The Issuer covenants with the Subordinate Holders of the Subordinate Obligation that it shall not use the proceeds of such debt in any manner which would cause the interest on such debt to be or become includable in the gross income of the Holder thereof for federal income tax purposes. (B) The Issuer covenants with the Subordinate Holders of such of Subordinate Obligation that neither the Issuer nor any person under its control or direction will make any use of the proceeds of such Subordinate Obligation (or amounts deemed to be proceeds under the Code) in any manner which would cause such Subordinate Obligation 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 Holder thereof for federal income tax purposes. (C) The Issuer hereby covenants with the Holder of Subordinate Obligation 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 Holder 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. 6 Ordinance No. 7366-04 SECTION 16. GOVERNMENTAL REORGANIZATION. The provisions of Section 21 of the Original Ordinance shall be deemed applicable to this Ordinance and shall apply to the Subordinate Obligation issued pursuant to this Ordinance as though fully restated herein. SECTION 17. 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 18. REPEAL OF INCONSISTENT INSTRUMENTS. All ordinances or resolutions, or parts thereof, in conflict herewith are hereby repealed to' the extent of such conflict. SECTION 19. EFFECTIVE DATE. This Ordinance shall take effect immediately upon its enactment. PASSED ON FIRST READING November 18, 2004 PASSED ON SECOND AND FINAL READING AND ENACTED December 2, 2004 Attest: ::: ~giL;: I.. .}i ~~.. c.. _ Cy ia E. Goudeau ' City lerk Approved as to form and legal sufficiency: 1)i Pamela K. Akin City Attorney 7 Ordinance No. 7366-04