6188-97
ORDINANCE NO. 6188-97
AN ORDINANCE PROVIDING FOR THE ADVANCE
REFUNDING OF THE OUTSTANDING GAS SYSTEM
REVENUE BONDS, SERIES 1994A, OF THE CITY OF
CLEARWATER, FLORIDA; PROVIDING FOR THE ISSU-
ANCE OF NOT EXCEEDING $9,000,000 GAS SYSTEM
REVENUE REFUNDING BONDS, SERIES [TO BE DETER-
MINED], AS ADDITIONAL PARITY OBLIGATIONS. OF
THE CITY PURSUANT TO THE CITY'S ORIGINAL
ORDINANCE, TO BE APPLIED TO ADVANCE REFUND
SUCH OUTSTANDING OBLIGATIONS; 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 PAY-
MENT THEREOF; MAKING CERTAIN OTHER COVENANTS
AND AGREEMENTS IN CONNECTION THEREWITH; PRO-
VIDING CERTAIN OTHER MATTERS IN CONNECTION
THEREWITH; AND PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF
r : CLEARWATER, FLORIDA, as follows:
-.st.
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, 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Ordinance not supplemented, modified, superseded or repealed by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 Refunding Bonds, hereinafter defined, 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.
"Additional Parity Obligations" shall mean additional
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
k equal to that of the Parity Bonds and the Refunding Bonds, (ii)
r
shall be payable from the Net Revenues on a parity with the
Parity Bonds and the Refunding Bonds, and (iii) rank equally in
all respects with the Parity Bonds and the Refunding Bonds.
1113ond 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, including but not limited to the Parity Bonds
and the Refunding Bonds and (ii) any Additional Parity
Obligations issued hereafter in accordance with the provisions of
the original Ordinance and this Ordinance.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations and rules thereunder in effect or
proposed.
"Cost of Operation and Maintenance" of the System shall mean
all current expenses, paid or accrued, for the operation, main-
tenance and repair of all facilities of the System, as calculated
in accordance with sound accounting practice, and shall include,
without limiting the generality of the foregoing, insurance
premiums, administrative expenses of-the Issuer related solely to
the System, labor, cost of materials and supplies used for
current operation, and charges for the accumulation of
appropriate reserves for current expenses not annually recurrent
but which are such as may reasonably be expected to be incurred
in accordance with sound accounting practice, but excluding any
reserve for renewals or replacements, for extraordinary repairs
or any allowance for depreciation.
"Credit Facility" or "Credit Facilities" shall mean either
individually or collectively, as appropriate, any bond insurance
policy, surety bond, letter of credit, line of credit, guaranty
or other instrument or instruments that would enhance the credit
of the Bonds. The term Credit Pacility shall not include any
bond insurance, surety bond or other credit enhancement deposited
into or allocated to a subaccount in the Reserve Account in the
Sinking Fund.
"Credit Facility Issuer" shall mean the provider of a Credit
Facility.
"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 the Refunded
Bonds, which agreement shall be in substantially the form
attached hereto as Exhibit "A" and is hereby incorporated by
reference.
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"Gross Revenues" or "Revenues" shall mean all moneys
received from rates, fees, rentals or other charges .or income
derived from the investment of funds, unless otherwise provided
herein, by the Issuer or accruing to it in the operation of the
System, all calculated in accordance with sound accounting
practice.
"Holder of Bonds" or "Bondholders" or any similar term shall
mean any person who shall be the registered owner ("Registered
Owner") of any registered Bond, as shown on the books and records
of the Bond Registrar. The Issuer may deem and treat the person
in whose name any Band 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.
"Issuer" shall mean the City of Clearwater, Florida.
"Net Revenues" shall mean Gross Revenues less Cost of Opera-
tion and Maintenance.
"Ordinance" shall mean this ordinance of the Issuer as here-
after 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 1991, dated September 1, 1991, the outstanding Gas
System Revenue Bonds, Series 1994A, dated September '1, 1994, the
outstanding Gas System Revenue Bonds, Series 1996A, dated July 1,
1996, and any bonds issued under the authority of the original
ordinance or the City of Clearwater Ordinance No. 5665-94.
"Refunded Bonds" shall
of Clearwater, Florida, Gas
dated September 1, 1994,
principal, premium, if any,
an irrevocable escrow in
Agreement with proceeds of
mean all or any portion of the City
System Revenue Bonds, Series 1994A,
for which the future payments of
and interest has been provided for in
accordance with the Escrow Deposit
the Refunding Bonds, which are so
designated by the Issuer prior to the issuance of any series of
Refunding Bonds.
"Refunding Bonds" shall mean the obligations of the Issuer
authorized to be issued pursuant to Section 5 of this Ordinance,
which Refunding Bonds are to 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.
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?& 97
"Reserve Requirement" for each series of Bonds shall be as
determined by subsequent resolution of the Issuer. The Reserve
.Requirement for the Refunding Bonds shall be the lesser of (a)
the Maximum Bond Service Requirement of the Refunding Bonds, (ii)
125% of the average annual Bond Service Requirement of the
Refunding Bonds, or (iii) 102k of the net proceeds of the
Refunding Bonds.
"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 Additional Parity obligations, upon the
conditions set forth therein, to be payable on a parity from such
Net Revenues.
(B) The Issuer has previously issued the Refunded Bonds and
deems it necessary and in its best interest to provide for the
refunding of the Refunded Bonds. 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) From the proceeds of the Refunding Bonds and other
funds available therefor, there shall be deposited pursuant to
the Escrow Deposit Agreement a sum which, together with the
principal and income from the Federal Securities to be purchased
pursuant to such agreement, will be sufficient to make tamely
payments of all presently outstanding principal, redemption
premium, if any, and interest in respect to the Refunded Bonds,
as the same come due and/or redeemable. Such funds and principal
and income from investments shall also be sufficient to pay when
due all expenses, if any, described in the Escrow Deposit
Agreement.
(D) The costs associated with such refunding program shall
be deemed to include legal expenses, fiscal expenses, rating
agency fees, expenses for estimates of costs and of revenues,
accounting expenses, municipal bond insurance premiums, costs of
printing, fees of financial advisors, fees for escrow structuring
and verification, accrued and capitalized interest, provisions
for reserves, and such other expenses as may be necessary or
incidental for the financing herein authorized.
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(E) 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 Refunded Bonds, which pledge and
encumbrance shall be defeased pursuant to the refunding herein
authorized, and the Parity Bonds.
(F) The principal of and interest on the Refunding Bonds
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 Refunding 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 Refunding 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.
(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 Parity Bonds and the Refunding 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(T) thereof,
provides for the issuance of Additional Parity 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 Refunding Bonds as
Additional Parity obligations within the authorization contained
in the Original Ordinance.
(J) The Refunding Bonds herein authorized shall be on a
parity and rank equally, as to lien on and source and security
for payment from the Net Revenues and in all other respects, with
the Parity Bonds.
SECTION A. THE ORDINANCE TO CONSTITUTE CONTRACT. In con-
sideration of the acceptance of the Refunding Bonds authorized to
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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
Holders. The covenants and agreements herein set forth to be
performed by the Issuer shall be for the equal benefit,
protection and security of the legal Holders of any and all of
the Bonds, all of which shall be of equal rank and without
preference, priority or distinction of any of the Bonds over any
other thereof, except as expressly provided therein and herein.
SECTION 5, AUTHORIZATION OF REFUNDING BONDS AND REFUNDING
OF THE REFUNDED BONDS. Subject and pursuant to the provisions
hereof, obligations of the Issuer to be known as "Gas System
Revenue Refunding Bonds, Series [to be determined]" herein
defined as the "Refunding Bonds" are authorized to be issued in
the aggregate principal amount of not exceeding $9,000,000 to
(i) finance the refunding of the Refunded Bonds, (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 Refunding Bonds)
and (iii) pay the costs of issuance of the Refunding Bonds.
The refunding of the Refunded Bonds is hereby authorized in
the manner provided herein.
SECTION 6. DESCRIPTION OF REFUNDING BONDS. The Refunding
:,..: Bonds shall be issued in fully registered form; may be Capital
Appreciation Bonds and/or Current Interest Bonds; shall be dated;
shall be numbered; 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 in such other denominations as shall
be approved by the Issuer in a subsequent resolution prior to the
delivery of the Refunding Bonds; shall bear interest at a fixed
or floating rate not exceeding the maximum rate allowed by law,
such interest to be payable semiannually on such dates and in
such years and amounts; and shall mature on such dates and in
such years, and in such amounts all as shall be fixed by resolu-
tion or ordinance of the Issuer adopted prior to the delivery of
the Refunding Bonds. The Refunding Bonds are to be issued in one
or more series, from time to time, either as construction or
completion bonds, and if issued in more than one series, each
series is to be separately designated as determined by resolution
of the Issuer adopted prior to the issuance of any such series of
Refunding Bonds'.
The Refunding Bonds shall be payable with respect to
principal (and Compounded Amount in the case of Capital
Appreciation Bonds) upon' presentation and surrender thereof on
the date fixed for maturity or redemption thereof at the office
of the Bond Registrar; shall be payable in any coin or currency
Ste)
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of the United States which at the time of payment is legal tender
for the payment of public or private debts; and shall bear
interest from such date, but not earlier than the date of the
Refunding Bonds, as is fixed by subsequent resolution or
ordinance of the Issuer, payable in accordance with and pursuant
to the terms of the Refunding Bonds.
Interest on the Refunding Bonds which are Current Interest
Bonds shall be paid by check or draft mailed to the Registered
Owners, at their addresses as they appear on the books and
records of the Bond Registrar, at the close of business on the
15th day of the month (whether or not a business day) next
preceding the interest payment date for the Refunding Bonds (the
"Record Date"), irrespective of any transfer of the Refunding
Bonds subsequent to such Record Date and prior to such interest
payment date, unless the Issuer shall be in default in the
payment of interest due on such interest payment date. In the
event of any such default, such defaulted interest shall be
payable to the Registered Owners at the close of business on a
special record date for the payment of defaulted interest as
established by notice mailed to the persons in whose names such
Refunding Bonds are registered at the close of business on the
fifth (5th) day preceding the date of mailing. Payment of
interest on the Refunding Bonds may, at the option of any owner
of Refunding Bonds in an aggregate principal amount of at least
$1,000,000, be transmitted by wire transfer to such owner to the
,;;.. bank account number on file with the Paying Agent as of the
.. ; Record Date upon written request therefor by the holder thereof
for the appropriate interest payment date.
If the date for payment of the principal of, premium, if
any, or interest on the Refunding Bonds shall be a Saturday,
Sunday, legal holiday or a day on which the banking institutions
in the city where the corporate trust office of the Paying Agent
is located are authorized by law or executive order to close,
then the date for such payment shall be the next succeeding day
which is not a Saturday, Sunday or legal holiday or a day on
which such banking institutions are authorized to close, and
payment on such date shall have the same force and effect as if
made on the nominal date of payment.
The Refunding Bonds may be issued or exchanged for Refunding
Bonds in coupon form, payable to bearer, in such form and with
such attributes as the Issuer may provide by supplemental
resolutions, upon receipt of an opinion from a nationally
recognized bond counsel that such issuance or exchange will not
cause interest on the Refunding Bonds to be includable in gross
income of the Holder for federal income tax purposes.
SECTION 7. EXECUTION OF BONDS. The Refunding Bonds shall
be executed in the name of the Issuer by its City Manager,
countersigned by its Mayor--Commissioner and attested to by its
'? 7
City Clerk, and its official seal or a facsimile thereof shall be
affixed thereto or reproduced thereon. The Refunding 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 Refunding Bonds. The Certificate
of Authentication of the Bond Registrar, hereinafter described,
shall appear on the Refunding Bonds, and no Refunding 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 Refunding Bond. The
authorized signature for the Bond Registrar shall at all tames be
a manual signature. In case any officer whose signature shall
appear on any Refunding 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
Refunding Bonds 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 8. NEGOTIABILITY AND REGISTRATION.
(A) NEGOTIABILITY. The Refunding Bonds shall be and shall
have all of the qualities and incidents of negotiable instruments
under the Uniform Commercial Code - Investment Securities of the
4,.:. State of Florida, and each successive Holder, in accepting any of
the Refunding 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 Refunding 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 respon-sible for the transfer and exchange of the Refunding
Bonds. The Issuer shall, prior to the proposed date of delivery
of the Refunding 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 Refunding Bonds. Such
agreement shall set forth in detail the duties, rights and
responsibilities of the parties thereto.
The Refunding 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 Refunding
Bonds, along with the social security or federal employer
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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 Refunding Bond shall be effective until entered
on the registration books maintained by the Registrar.
f r }
in all cases of the transfer of the Refunding 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 Refunding
Bond or Refunding 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 Refunding Bond or Bonds shall be exchangeable for
a Refunding 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 Refunding 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 Refunding 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 Refunding 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 or
exchange, and may require that such charge be paid before any
such new Refunding Bond shall be delivered.
All Refunding 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 Refunding 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
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(e /:? ?(-q;?
reasonable
and paying
surrendered
any of the
instead of
regulations and conditions as the Issuer may prescribe
such expenses as the Issuer may incur. All Bonds so
shall be canceled by the Registrar for the Bonds. If
Bonds shall have matured or be about to mature,
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 provi-
sions of Sections 7, 8 and 9 hereof, the Issuer may, at its
option, prior to the date of issuance of the Refunding Bonds,
elect to use an immobilization system or pure book-entry system
with respect to issuance of such Refunding 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 of this Ordinance shall not be applicable to such
Refunding 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 Refunding Bonds.
SECTION 11. PROVISIONS FOR REDEMPTION. The Refunding Bonds
shall be subject to redemption prior to their maturity, at the
option of the Issuer, at such times and in such manner as shall
be fixed by resolution of the Issuer duly adopted prior to or at
the time of sale of the Refunding Bonds.
. Notice of such redemption will be given by the Registrar
(who shall be the Paying Agent for the Refunding Bonds, or such
other person, firm or corporation as may from time to time be
designated by the Issuer as the Registrar for the Refunding
Bonds) 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 Refunding Bond to be
redeemed in whole or in part at the address shown on the regis-
tration 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 Refunding Bonds or portions thereof so called for
redemption will cease to bear interest after the specified
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reasonable
and paying
surrendered
any of the
instead of
regulations and conditions as the Issuer may prescribe
such expenses as the Issuer may incur. All Bonds so
shall be canceled by the Registrar for the Bonds. If
Bonds shall have matured or be about to mature,
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 provi-
sions of Sections 7, 8 and 9 hereof, the Issuer may, at its
option, prior to the date of issuance of the Refunding Bonds,
elect to use'an immobilization system or pure book-entry system
with respect to issuance of such Refunding 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,
f;.., 8 and 9 of this Ordinance shall not be applicable to such
: Refunding 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 Refunding Bonds.
SECTION 11. PROVISIONS FOR REDEMPTION. The Refunding Bonds
shall be subject to redemption prior to their maturity, at the
option of the Issuer, at such times and in such manner as shall
be fixed by resolution of the Issuer duly adopted prior to or at
the time of sale of the Refunding Bonds.
Notice of such redemption will be given by the Registrar
(who shall be the Paying Agent for the Refunding Bonds, or such
other person, firm or corporation as may from time to time be
designated by the Issuer as the Registrar for the Refunding
Bonds) 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 Refunding Bond to be
redeemed in whole or in part at the address shown on the regis-
tration 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 Refunding Bonds or portions thereof 'so called for
redemption will cease to hear interest after the specified
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redemption date provided funds for their redemption are on
deposit at the place of. payment at that time.
Upon surrender of any Refunding 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 Refunding Bond or Refunding Bonds of authorized
denominations in aggregate principal amount equal to the
unredeemed portion surrendered.
( Whenever any Refunding Bonds shall be delivered to the Bond
Registrar for cancellation, upon payment of the principal amount
thereof, or for replacement, transfer or exchange, such Refunding
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 12. FORM OF THE- REFUNDING -BONDS. The text of the
Refunding Bonds shall be in substantially the following form 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:
No.
(Form of Refunding Bond)
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF CLEARWATER
GAS SYSTEM REVENUE REFUNDING BOND, SERIES (to be determined]
Dated
Rate of Interest Maturity Date Date- CUSIT)
Registered Owner:
Principal Amount:
KNOW ALL MEN BY THESE PRESENTS, that the City of Clearwater,
Florida (hereinafter called "City"), for value received, hereby
promises to pay to the Registered Owner identified above, or
registered assigns,- on the Maturity Date specified above, the
Principal Amount shown above solely from the revenues hereinafter
mentioned, and to pay solely from such revenues, interest on said
sum from the Dated Date of this Bond or from the most recent
11
OW-91
interest payment date to which interest has been paid,' at the
rate of interest per annum set forth above until payment of such
sum, such interest being payable , and
semiannually thereafter on the first day of and the
first day of of each year. The principal of and
premium, if any, on this Bond are payable upon presentation and
surrender hereof on the date fixed for maturity or redemption at
the principal office of (the
"Paying Agent") in , Florida, or at the office
designated for such payment of any successor thereof. The
interest on this Bond, when due and payable, shall be paid by
check or draft mailed to the person in whose name this Bond is
registered, at his address as it appears on the books and records
of the Bond Registrar, at the close of business on the 15th day
of the month (whether or not a business day) next preceding the
interest payment date (the "Record Date"), irrespective of any
transfer of this Bond subsequent to such Record Date and prior to
such interest payment date, unless the City shall be in default
in payment of interest due on such interest payment date. In the
event of any such default, such defaulted interest shall be
payable to the person in whose name such Bond is registered at
the close of business on a special record date for the payment of
defaulted interest as established by notice mailed by the
Registrar to the Registered Holder of the Bonds not less than
fifteen (15) days preceding such special record date. Such
notice shall be mailed to the person in whose name such Bond is
registered at the close of business on the fifth (5th) day
preceding the date of mailing. Payment of interest on the Bonds
may, at the option of any owner of. Bonds in an aggregate
principal amount of at least $1,000,000, be transmitted by wire
transfer to such owner to the bank account number on file with
the Paying Agent as of the Record Date upon written request
therefor by the holder thereof for the appropriate interest
payment date. All amounts due hereunder shall be payable in any
coin or currency of the United States, which is, at the time of
payment, legal tender for the payment of public or private debts.
This Bond is one of a duly authorized issue of Bonds in the
aggregate principal amount of $ of like date,
tenor and effect, except as to number, installments, maturity and
interest rate, issued to finance the cost of advance refunding
the Gas System Revenue Bonds, Series 1994A, pursuant to the
authority of and in full compliance with the Constitution and
laws of the State of Florida, including particularly Chapter 166,
Part II, Florida Statutes, and other applicable provisions of law
(the "Act"), and Ordinance No. 5118-91, duly enacted by the
Issuer on August 15, 1991, as supplemented by Ordinance No. -
97 duly enacted by the Issuer on , 1997, as amended
and supplemented (hereinafter collectively called the
"Ordinance"), and is subject to all the terms and conditions of
such Ordinance.
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?/gy- 91
It is provided in the ordinance that the Bonds of this issue
will rank on a parity with the outstanding Bonds of an issue of
Gas System Revenue Bonds, Series 1991, dated September 1, 1991,
the Gas System Revenue Bonds, Series 1996A, dated July 1, 1995
and any bonds issued under the authority of the original
ordinance or the City of Clearwater Ordinance No. 5665-94 (the
"Parity Bonds"). This Bond and the Parity Bonds are payable
solely from and secured by a first and prior lien upon and pledge
of the Net Revenues, as defined in the ordinance, which consists
of the net revenues derived by the City from the operation of the
System (the "Net Revenues") in the manner provided in the
ordinance. This Bond does not constitute an indebtedness,
liability, general or moral obligation, or a pledge of the faith,
credit or taxing power of the City, 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
City shall be obligated (1) to levy ad valorem taxes on any
property to pay the principal of the Bonds, the interest thereon
or other costs incident thereto or (2) to pay the same from any
other funds of the City, except from the Net Revenues, in the
manner provided herein. It is further agreed between the City
and the Registered Holder of this Bond that this Bond and the
indebtedness evidenced hereby shall not constitute a lien upon
the System, or any part thereof, or on any other property of the
City, but shall constitute a first and prior lien only on the Net
Revenues, in the-manner provided in the ordinance.
(INSERT REDEMPTION PROVISIONS)
Bonds in denominations greater than $5,000 shall be deemed
to be an equivalent number of Bonds of the denomination of
$5,000. In the event a Bond is of a denomination larger than
$5,000, a portion of such may be redeemed, but Bonds shall be
redeemed only in the principal amount of $5,000 or any integral
multiple thereof. In the event any of the Bonds or portions
thereof are called for redemption as aforesaid, notice thereof
identifying the Bonds or portions thereof to be redeemed will be
given by the Registrar (who shall be the paying agent for the
Bonds, or such other person, firm or corporation as may from time
to time be designated by the City as the Registrar for the Bonds)
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 Holder 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 Holder of Bonds, or
any defect therein, shall not affect the validity of any
proceeding for the redemption of other Bonds. All Bonds 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
13
of any Bond for redemption in part only, the City shall issue and
deliver to the Registered Holder thereof, the costs of which
shall be paid by the Registered Holder, a new Bond or Bonds of
authorized denominations in aggregate principal amount equal to
the unredeemed portion surrendered.
If the date for payment of the principal of, premium, if
any, or interest on this Bond shall be a Saturday, Sunday, legal
holiday or a day on which banking institutions in the city where
the corporate trust office of the paying agent is located are
authorized by law or executive order to close, then the date for
such payment shall be the next succeeding day which is not a
Saturday, Sunday, legal holiday or a day on which such banking
institutions are authorized to close, and payment on such date
shall have the same force and effect as if made on the nominal
date of payment.
(To be inserted where appropriate on face of bond:
"Reference is hereby made to the further provisions of this Bond
set forth on the reverse side hereof, and such further provisions
shall for all purposes have the same effect as if set forth on
this side.")
In and by the Ordinance, the City has covenanted and agreed
with the Registered Holders of the Bonds of this issue that it
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 product, services and facilities of
the System which will always provide revenues in each year
sufficient to pay, and out of such funds pay, loos of all costs
of operation and maintenance of the System in such year and all
reserve and other payments provided for in the Ordinance and 125%
of the bond service requirement due in such year on the Bonds of
this issue, and on all other obligations payable on a parity
therewith, and that such fees, rates, rentals and other charges
shall not be reduced so as to be insufficient to provide adequate
revenues for such purposes. The City has entered into certain
further covenants with the Holders of the Bonds of this issue for
the terms of which reference is made to the Ordinance.
It is hereby certified and recited that all acts, conditions
and things required to exist, to happen and to be performed
precedent to and in the issuance of this 'Bond exist, have
happened and have been performed in regular and due form and time
as required by the laws and Constitution of the State of Florida
applicable thereto, and that the issuance of the Bonds of. this
issue does not violate any constitutional or statutory
limitations or provisions.
This Bond is and has all the qualities and incidents of a
negotiable instrument under the Uniform Commercial Code
Investment Securities of the State of Florida.
Y 14
O5-97
The Bonds are issued in the form of fully registered bonds
without coupons in denominations of $5,000 or any integral
multiple of $5,000. Subject to the limitations and upon payment
of the charges provided in the Ordinance, Bonds may be exchanged
for a like aggregate principal amount of Bonds of the same
maturity of other authorized denominations. This Bond is
transferable by the Registered Holder hereof in person or by his
attorney duly authorized in writing, at the above-mentioned
office of the Registrar, but only in the manner, subject to the
limitations and upon payment of the charges provided in the
Ordinance, and upon surrender and cancellation of this Bond.
Upon such transfer a new Bond or Bonds of the same maturity and
of authorized denomination or denominations, for the same
aggregate principal amount, will be issued to the transferee in
exchange therefor. Bonds may be transferred upon the
registration books upon delivery to the Registrar of the Bonds,
accompanied by a written instrument or instruments of transfer in
form and with guaranty of signature satisfactory to the
Registrar, duly executed by the Registered Holder of the Bonds to
be transferred or his attorney-in--fact or legal representative,
containing 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 federal employer identification number and date
.:, of the trust and the name of the trustee. In all cases of the
transfer of a Bond, 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 Date and Rate of Interest for the aggregate principal
amount which the Registered Holder is entitled to receive at the
earliest practicable time in accordance with the provisions of
the Ordinance. . The City or the Registrar may charge the
Registered Holder of such Bond for every such transfer or
exchange of a Bond an amount sufficient to reimburse them for
their reasonable fees and any tax, fee, or other governmental
charge required to be paid with respect to such transfer or
exchange, and-may require that such charge be paid before any
such new Bond shall be delivered.
The City may deem and treat the Registered Holder hereof as
the absolute owner hereof (whether or not this Bond shall be
overdue) for the purpose of receiving payment of or on account of
principal hereof and interest due hereon and for all other
purposes, and the City shall not be affected by any notice to the
contrary.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the Ordi--
15
(Af-e-?, 7
,
nance'until the certificate of authentication hereon shall have
been executed'by the Bond Registrar.
IN WITNESS WHEREOF, the city of Clearwater, Florida, has
issued this Bond and has caused the same to be executed by the
manual, or facsimile signature of its City Manager and
countersigned by the manual or facsimile signature of its Mayor-
Commissioner, and its corporate seal or a facsimile thereof to be
affixed, impressed, imprinted, lithographed or reproduced hereon,
and attested by the manual or facsimile signature of its' City
Clerk, as of the Dated Date.
CITY OF CLEARWATER, FLORIDA
(SEAL)
City Manager
Mayor-Commissioner
ATTEST: APPROVED AS TO FORM
AND LEGAL'SUFFICIENCY:
City Clerk
City Attorney
• 1
• i
l6•
E
CERTIFICATE OF AUTHENTICATION OF BOND REGISTRAR '
This Bond is one of the Bonds of the issue described in the
r within-mentioned ordinance.
BY
Authorized,signature.
Date.-of Authentication
< The following abbreviations, when used in the inscription on
the.-face of the within Bond,. shall be construed as though ' they
` were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common UNIF TRANSFERS TO MIN ACT -
TEN ENT - as tenants by 'the
entireties (Gust.)
JT TEN -.as joint.' tenants Custodian for
with ', right of ,, sur- (Minor)
vivorship and not as under Uniform Transfers to
tenants.in common Minors Act of
(State)
{. ? Additional abbreviations may also be used though not in list
above.
1
r
1
17
z
.i.?,r!3;a4sir`7`. .e r 3.. ... ,..,. .... , .: .r ... , .. .. ..
+I}? r4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned
(the "Transferor"), hereby sells, assigns and transfers unto
name and Social Security or Federal Employer identification
number of assignee) the within Bond and all rights thereunder,
and hereby irrevocably constitutes and appoints
(the "Transferee") as attorney to register
the transfer of the within Bond on the books kept for
registration thereof, with full power of substitution in the
premises.
Dated:
Signature guaranteed:
NOTICE: No transfer,-,will be
registered and no new Bond
will be issued in the name of
the Transferee, unless 'the
signature(s) to this
assignment corresponds with
the name as it appears upon
the face of the within Bond in
every particular, without
alteration or enlargement or
any change whatever and the
Social Security or Federal
Employer Identification Number
of the Transferee is supplied.
NOTICE: Signature(s) must be
guaranteed by a member of the
New York Stock Exchange or a
commercial bank or a trust
company.
7
M
(End of Form of Bond)
18
SECTION 13. APPLICATION OF PROVISIONS OF ORIGINAL
ORDINANCE. The Refunding Bonds, herein authorized, 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 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 the Refunding Bonds herein
authorized in like manner as applicable to the Parity Bonds. The
principal of and interest on the Refunding 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 the
Refunding Bonds as such principal and interest become due.
SECTION 14. APPLICATION OF REFUNDING BOND PROCEEDS. The
proceeds, including accrued interest and premium, if any,
received from the sale of any or all of the Refunding Bonds shall
be applied by the Issuer as follows:
(A) The accrued interest shall be deposited in the Interest
Account in the Sinking Fund created in the original Ordinance and
shall be used only for the purpose of paying interest becoming
due on the Refunding Bonds.
(B) Unless provided from other funds of the Issuer on the
date of issuance of any series of Refunding Bonds as set forth in
Section 16(B) of the Original Ordinance, a sum equal to the
Reserve Requirement for the Refunding Bonds shall be deposited in
the subaccount in the Reserve Account in the Sinking Fund, herein
created and established for the benefit of the Refunding Bonds,
and shall be used only for the purposes provided therefor, or, if
determined by subsequent resolution of the Issuer, a sum equal to
the premium of a debt service reserve fund policy or surety
provided in satisfaction of the Reserve Requirement for such
series of Refunding Bonds.
(C) Unless paid or reimbursed by the original purchasers of
the Refunding Bonds, the Issuer shall pay all costs and expenses
in connection with the preparation, issuance and sale of the
Refunding Bonds.'
(D) A sum which, together with the other funds to be
deposited pursuant to the Escrow Deposit Agreement, and the
investment income to be derived therefrom, will be sufficient to
pay, as of any date of calculation, the principal of, redemption
premium, if any, and interest on the Refunded Bonds as the same
shall become due and or redeemable, shall be deposited pursuant
I
19
to the Escrow Deposit Agreement.
SECTION 15. SPECIAL OBLIGATIONS OF ISSUER. The Refunding
Bonds shall be special obligations of the Issuer, payable solely
from the Net Revenues as herein provided. The Refunding Bonds 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 Refunding Bonds, 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 Refunding Bonds by the Holders
from time to time thereof shall be deemed an agreement between
the Issuer and such Holders that the Bonds 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 first. and prior 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
Refunding Bonds shall be secured forthwith equally and ratably by
an irrevocable lien on the Net Revenues of the System, as defined
herein, on a parity with the Parity 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 Refunding
Bonds, for the reserves therefor and for all other required
payments.
SECTION 16. 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 Refunding Bonds issued
pursuant to this Ordinance as though fully restated herein.
SECTION 17. 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 the Refunding Bonds issued pursuant to this
ordinance as though fully restated herein.
SECTION 18. 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
IIIJ
20
kys?-19V
the Refunding Bonds issued pursuant to this Ordinance as though
fully restated herein.
SECTION 19. DEFEASANCE. The provisions of Section 19 of
the Original Ordinance shall be deemed applicable to this
Ordinance and shall apply to the Refunding Bonds issued pursuant
to this Ordinance as though fully restated herein.
SECTION 20. 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 proceeds of such
series of Bonds (or amounts deemed to be proceeds under the 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 they 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 21. GOVERNMENTAL REORGANIZATION. The provisions of
Section 21 of the Original Ordinance shall be deemed applicable
to this Ordinance and shall apply to the Refunding Bonds issued
pursuant to this Ordinance as though fully restated herein.
SECTION 22, 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 the Refunding Bonds. Such covenants may
be set forth in a resolution adopted prior to or simultaneously
with the sale of the Refunding Bonds and shall have the same
effect as if such covenants were set forth in full in this
Ordinance.
SECTION 23. PRELIMINARY OFFICIAL STATEMENT. The
distribution of a Preliminary Official Statement relating to the
4--
21
Refunding Bonds is hereby approved in such form and substance as
''d1 shall be approved by the Mayor and City Manager of the Issuer.
The Mayor and the City Manager are hereby authorized to deem such
Preliminary Official Statement as "final" within the meaning of
Rule 15c-2-12 of the Securities and Exchange Commission, except
for certain "permitted omissions" as defined in such rule.
SECTION 24. SEVERABILITY. If any one or more of the cove-
nants, 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 25. REPEAL OF INCONSISTENT INSTRUMENTS. All ordi-
nances or .resolutions, or parts thereof, in conflict herewith are
hereby repealed to the extent of such conflict.
SECTION 26. EFFECTIVE DATE, This Ordinance shall, take
effect immediately upon its adoption.
PASSED ON FIRST READING September 4 ,1997
PASSED ON SECOND AND FINAL READING September 18, 1997
AND ADOPTED
Ri a Garvey
Mayor-Commissions
Attest:
a'a, E. Lla,-, -
Cynt a E. Goudeau
City lerk
Approved as to form:
P-r, L k A - I
Pamela K. Akin
City Attorney
22
keY-17
EXHIBIT A
FORM OF ESCROW DEPOSIT AGREEMENT
THIS ESCROW DEPOSIT AGREEMENT, dated as of ,
1997, by and between the CITY OF CLEARWATER, FLORIDA (the
"Issuer"), and , a banking associa-
tion organized under the laws of the [State of _] , [United
States of America], as Escrow Holder and its successors and
assigns (the "Escrow Holder");
W I T N E S S E T H:
WHEREAS, the Issuer has previously authorized and issued
obligations, hereinafter defined as "Refunded Bonds", as to which
the Total Debt Service (as hereinafter defined) is set forth on
Schedule A; and
WHEREAS, the Issuer has determined to provide for payment of
the Total Debt Service of the Refunded Bonds by depositing with
the Escrow Holder an amount which together with investment
earnings thereon is at least equal to such Total 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 its Gas System Revenue
Refunding Bonds, Series [To be determined], as defined herein;
and
WHEREAS, the execution of this Escrow Deposit Agreement and
full performance of the provisions hereof shall defease and dis-
charge the Issuer from the aforestated obligations;
3
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the Issuer and the Escrow Holder
agree as follows:
SECTION 1. Definitions. As used herein, the following ;
terms mean:
(a) "Agreement" means this Escrow Deposit Agreement.
(b) "Annual Debt Service" means the interest and principal
on the Refunded Bonds coming due in such year as shown on
Schedule A attached hereto and made a part hereof.
(c) "Bonds" means the $ City of Clearwater,
Florida, Gas System Revenue Refunding Bonds, Series [to be
determined], issued under the ordinance.
A-1
a
(d) "Escrow Account" means the account hereby created and
entitled Escrow Account established and held by the Escrow Holder
pursuant to this Agreement, in which cash and investments will be
held for payment of the principal of, premium, if any, and
accrued interest on the Refunded Bonds as they become due and
payable.
(e) "Escrow Holder" means
having its primary corporate trust office in ,
and its successors and assigns.
(f) "Escrow Requirement" means, as of any date of calcula-
tion, the sum of an amount in cash and principal amount of
Federal Securities in the Escrow Account which together with the
interest to become due on the Federal Securities will be
sufficient to pay the Total Debt Service on the Refunded Bonds in
accordance with Schedule A.
(g) "Federal Securities" means any bonds or other
obligations which as to principal and interest constitute direct
obligations of, or are unconditionally guaranteed as to full and
timely payment by, the United States of America, none of which
permit redemption or prepayment prior to the dates on which such
Federal Securities shall be applied pursuant to this Agreement.
The term "Federal Securities" shall not include money market
funds or mutual funds invested in obligations described in this
definition.
(h) "Issuer" means the City of Clearwater, Florida, and its
successors and assigns.
(i) "Ordinance" means Ordinance No. -97, enacted by
the governing body of the Issuer on 1997, as amended
and supplemented, authorizing issuance of the Bonds.
(j) "Refunded Bonds" means the bon
Issuer's Gas System Revenue Bonds, Series
1, 1994.
(k) "Total Debt Service" means the
premium and interest remaining unpaid
Refunded Bonds in accordance with Schedule
ds outstanding of the
1994A, dated September
sum of the principal,
with respect to the
A attached hereto.
SECTION 2. Deposit of Funds. The Issuer hereby deposits
$ with the Escrow Holder for deposit into the Escrow
Account, in immediately available funds, which funds the Escrow
Holder acknowledges receipt of, to be held in irrevocable escrow
by the Escrow Holder separate and apart from other funds of the
Escrow Holder and applied solely as provided in this Agreement.
$ of such funds are being derived from proceeds of
the Bonds. $ of such funds are being derived from
legally available funds of the Issuer. The Issuer represents
4 A-2
W(ff??
iF
that such securities and funds are at least equal to the Escrow
Requirement as of the date of such deposit.
SECTION 3. Use and Investment of Funds. The Escrow Holder
acknowledges receipt of the sum described in Section 2 and
agrees:
(a) to hold the funds and investments purchased pursuant to
this Agreement in irrevocable escrow during the term of this
Agreement for the sole benefit of the holders of the Refunded
Bonds;
(b) to immediately invest
derived from the proceeds of the
set forth on Schedule C attached
ties and $ of such funds
terms of this Agreement;
$ of such funds
Bonds in the Federal Securities
hereto and to hold such securi-
in cash in accordance with the
(c) in the event the securities described on Schedule C
cannot be purchased, substitute securities may be purchased with
the consent of the Issuer but only upon receipt of verification
from an independent certified public accountant that the cash and
securities deposited will not be less than the Escrow Requirement
and only upon receipt of an opinion of Bryant, Miller and Olive,
P.A., that such securities constitute Federal Securities for
purposes of this Agreement;
(d) there will be no investment of funds except as set
forth in this Section 3 and except as set forth in Section 5.
SECTION 4. Payment of Bonds and-Expenses.
(a) Refunded Bonds. On the dates and in the amounts set
forth on Schedule A, the Escrow Holder shall transfer to First
Union National Bank of Florida, Jacksonville, Florida, the Paying
Agent for the Refunded Bonds (the "Paying Agent"), in immediately
available funds solely from amounts available in the Escrow
Account, a sum sufficient to pay that portion of the Annual Debt
Service for the Refunded Bonds coming due on such dates, as shown
on Schedule A.
(b) Expenses. On each of the due dates as shown on
Schedule B, the Escrow Holder shall pay the portion of the
expenses coming due on such date to the appropriate payee or
payees designated on Schedule B or designated by separate
certificate of the Issuer.
(c) Surplus.
Account described
Holder shall retain
the Escrow Account
termination of this
After making the payments from the Escrow
in subsection 4(a) and (b) above, the Escrow
in the Escrow Account any remaining cash in
in excess of the Escrow Requirement until the
Agreement, and shall then pay any remaining
A-3
funds to the Issuer.
(d) Priority of Payments. The holders of the Refunded
Bonds shall have an express first priority security interest in
the funds and Federal Securities in the Escrow Account until such
funds and Federal Securities are used and applied as provided in
this Agreement.
SECTION 5. Reinvestment. (a) Except as provided in Section
3 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 or otherwise dispose of any of the
Federal Securities acquired hereunder and shall substitute other
Federal Securities and reinvest any excess receipts in 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, will cause interest on the Bonds to be included
in the gross income of the holders thereof for purposes of
Federal income taxation. The transactions may be effected only
if U)'an independent certified public accountant selected by the
Issuer shall certify or opine in writing to the Issuer and the
Escrow Holder that the cash and principal amount of Federal
securities remaining on hand after the transactions are completed
L.., F
will, assuming no reinvestment earnings, be not less than the
Escrow Requirement, and (ii) the Escrow Holder shall receive an
opinion from a nationally recognized bond counsel acceptable to
the Issuer to the effect that the transactions, in and by
themselves will not cause interest on such Bonds to be included
in the gross income of the holders thereof for purposes of
Federal income taxation and such substitution is in compliance
with this Agreement. Subsection 4(c) above notwithstanding, cash
in excess of the Escrow Requirement caused by substitution of
Federal Securities shall, as soon as practical be paid to the
Issuer. Notwithstanding any provision of this Agreement to the
contrary, no forward purchase agreement shall relating to the
securities held hereunder shall be executed unless Moody's
Investors Service, Inc. shall have confirmed that such agreement
shall not adversely affect the rating, then outstanding, if any,
on the Refunded Bonds.
SECTION 6. Redemption-or Acceleration of Maturity. The
Issuer will not accelerate the maturity of, or exercise any
option to redeem before maturity, any Refunded Bonds, except as
set forth on Schedule A attached hereto.
SECTION 7. Indemnity. To the extent permitted by law, the
Issuer hereby assumes liability for, and hereby agrees to indem-
.. A-4
KCY47
nify, protect, save and keep harmless the Escrow Holder and its
respective successors, assigns, agents and servants, from and
against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs, expenses and disburse-
ments (including reasonable legal fees and disbursements) of
whatsoever kind and nature which may be imposed on, incurred by,
or asserted against at any time, the Escrow Holder (whether or
not also indemnified against the same by the Issuer or any other
person under any other agreement or instrument) and in any way
relating to or arising out of the execution and delivery of this
Agreement, the establishment of the Escrow Account established
hereunder, the acceptance of the funds and securities deposited
therein, the purchase of the Federal Securities, the retention of
the Federal Securities or the proceeds thereof and any payment,
transfer or other application of funds or securities by the
Escrow Holder in accordance with the provisions of this
Agreement; provided, however, that the Issuer shall not be
required to indemnify the Escrow Holder against its own
negligence or willful misconduct. In no event shall the Issuer
be liable to any person by reason of the transactions
contemplated hereby other than to the Escrow Holder as set forth
in this Section. The indemnities contained in this Section shall
survive the termination of this Agreement. The Escrow Holder
shall not be liable for any deficiencies in the amounts necessary
to pay the Escrow Requirement. Furthermore, the Escrow Holder
shall not be liable for the accuracy of the calculation as to the
sufficiency of moneys and the principal amount of Federal
., Securities and the earnings thereon to pay the Escrow Require-
ment.
SECTION B. 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 for any payment, transfer
or other application of moneys or securities by the Escrow Holder
in accordance with the provisions of this Agreement or by reason
of any non-negligent or non-willful act, omission or error of the
Escrow Holder made in good faith in the conduct of its duties.
The Escrow Holder shall, however, be responsible for its
negligent or willful failure to comply with its duties required
hereunder, and its negligent or willful acts, omissions or errors
hereunder. The duties and obligations of the Escrow Holder may
be determined by the express provisions of this Agreement. The
Escrow Holder may consult with counsel, who may or may not be
counsel to the Issuer, at the Issuer's expense and in reliance
upon the opinion of such counsel shall have full anu complete
authorization and protection in respect of any action taken,
suffered or omitted by it in good faith in accordance therewith.
IIJ
A-5
?/ff K- l7
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.
SECTION 9. Resi ation 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, any rating agency then providing a rating on either the
Refunded Bonds or the Bonds, and the Paying Agent for the
Refunded Bonds not less than sixty (60) days before such
resignation shall take effect. Such resignation shall not take
effect until the appointment of a new Escrow Holder hereunder.
SECTION 10. 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 percentum (51%) in aggregate
principal amount of the Refunded Bonds then outstanding, such
instruments to be filed with the Issuer, and notice in writing
given by such holders to the original purchaser or purchasers of
the Bonds and published by the Issuer once in a newspaper of
general circulation in the territorial limits of the Issuer, and
in a daily newspaper or financial journal of general circulation
in the City of New York, New York, not less than sixty (60) days
before such removal is to take effect as stated in said
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 provi-
sions of this Agreement with respect to the duties and
obligations of the Escrow Holder by any court of competent
jurisdiction upon the application of the Issuer or the holders of
not less than five percentum (5%) in aggregate principal amount
of the Bonds then outstanding, or the holders of not less than
five percentum (50) in aggregate principal amount of the Refunded
Bonds then outstanding.
(c) The Escrow Holder may not be removed until a successor
Escrow Holder has been appointed in the manner set forth herein.
SECTION 11. 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
A-6
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 immediately appoint an Escrow Holder to
fill such vacancy and upon such appointment, all assets held
hereunder shall be transferred to such successor. The Issuer
shall, either (i) publish notice of any such appointment made by
it 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 or financial journal, of general
circulation in the City of New York, New York, or (ii) mail a
notice of any such appointment made by it to the Holders of the
Refunded Bonds within thirty (30) days after such appointment.
(b) At any time within one year after such vacancy shall
have occurred, the holders of a majority in principal amount of
the Bonds then outstanding or a majority in principal amount of
the Refunded Bonds then outstanding, by an instrument or concur-
rent instruments in writing, executed by either group of 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. In the case of conflicting
appointments made by the bondholders under this paragraph, the
first effective appointment made during the one year period shall
,r govern.
4 ?
(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 pre-
scribe, appoint a successor Escrow Holder.
(d) Any corporation or association into which the Escrow
Holder may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its corporate
trust business and assets as a whole or substantially as a whole,
or any corporation or association resulting from any such
conversion, sale, merger, consolidation or transfer to which it
is a party, ipso facto, shall be and become successor Escrow
Holder hereunder and vested with all the trust, powers,
discretions, immunities, privileges and all other matters as was
its predecessor, without the execution or filing of any
instrument or any further act, deed or conveyance on the part of
any parties hereto, anything herein to the contrary
notwithstanding, provided such successor shall have reported
total capital and surplus in excess of $15,000,000, provided that
such successor Escrow Holder assume in writing all the trust,
duties and responsibilities of the Escrow Holder hereunder.
A-7
l ler-97
SECTION 12. Pa ent to Escrow Holder. The Escrow Holder
hereby acknowledges that it has agreed to accept compensation
under the Agreement' in the sum of $ payable
, for services to be performed by the Escrow
Holder pursuant to this Agreement, plus out-of--pocket expenses to
be reimbursed at cost from legally available funds of the Issuer.
The Escrow Holder shall have no lien or claim against funds in
the Escrow Account for payment of obligations due it under this
Section.
SECTION 13. Term. This Agreement shall commence upon its
execution and delivery and shall terminate when the Refunded
Bonds have been paid and discharged in accordance with the
proceedings authorizing the Refunded Bonds, except as provided in
Section 7.
SECTION 14. Severability. if any one or more of the cove-
nants 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,
notice of such event shall be sent to Moody's Investors Service
at the address set forth in Section 15, but such covenant or
agreements herein contained shall be null and void and shall in
no way affect the validity of the remaining provisions of this
Agreement.
SECTION 15. Amendments to this Agreement. This Agreement
is made for the benefit of the Issuer and the holders from time
to time of the Refunded Bonds and the Bonds and it shall not be
repealed, revoked, altered or amended in whole or in part without
the written consent of all affected holders, the Escrow Holder
and the Issuer; provided, however, that the Issuer and the Escrow
Holder may, without the consent of, or notice to, such holders,
enter into such agreements supplemental to this Agreement as
shall not adversely affect the rights of such holders and as
shall not be inconsistent with the terms and provisions of this
Agreement, for any one or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in
this Agreement;
(b) to grant to, or confer upon, the Escrow Holder, for the
benefit of the holders of the Bonds and the Refunded Bonds any
additional rights, remedies, powers or authority that may
lawfully be. granted to, or conferred upon, such holders' or the
Escrow Holder; and
(c) to subject to this Agreement additional funds,
securities or properties.
The Escrow Holder shall, at its option, be entitled to
A-8
Py 9?
request at the Issuer's expense and rely exclusively upon an
t opinion of nationally recognized attorneys on the subject of
municipal bonds acceptable to the Issuer with respect to
compliance with this Section, including the extent, if any,- to
which any change, modification; addition or elimination affects
the rights of the holders of the Refunded Bonds or that any
instrument executed hereunder complies with the conditions and
provisions of this Section. Prior written notice of such
amendments, together with proposed copies of such amendments
shall be provided to Moody's Investors Service, Inc., Public
'Finance Rating Desk/Refunded Bonds, 99 Church Street, New York,
New York 10007.
SECTION 16. Counterparts. This Agreement may be executed
in several counterparts, all or any of which shall be regarded
for all purposes as one original and shall constitute and be but
one and the same instrument.
SECTION 17. Governing _ Law. This Agreement shall be
construed under the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers and
their corporate seals to be hereunto affixed and attested as of
the date first above written..
CITY OF CLEARWATER, FLORIDA
(SEAL)
Mayor-Commissioner
ATTEST:
City Clerk
Approved as to form and
legal sufficiency:
City Attorney
'SI
{
[ESCROW HOLDER]
A-9
0/1?0- ?117
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,'- (SEAL)'
By
;I Title:
4 I ATTEST.:
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SCHEDULE A
TOTAL DEBT SERVICE
!1 FOR
CITY-OF CLEARWATER, 'FLORIDA'
GAS SYSTEM' REVENUE'. BONDS
.
SERIES 1994A
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[Schedule -Attached]
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SCHEDULE'OF FEDERAL SECURITIES
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