5118-91e, - r a 0
ORDINANCE NO. 5118-91
AN ORDINANCE PROVIDING FOR THE ADVANCE REFUNDING OF THE
OUTSTANDING GAS SYSTEM REVENUE BONDS, SERIES 1983, OF THE
CITY OF CLEARWATER,,FLORIDA; AUTHORIZING THE ISSUANCE BY
THE CITY OF NOT EXCEEDING $9,000,000 GAS SYSTEM REVENUE
BONDS, SERIES 1991, 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
THE BONDS; PROVIDING CERTAIN OTHER MATTERS IN CONNECTION
THEREWITH; AND PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF
CLEARWATER, FLORIDA, as follows:
Section 1. AUTHORITY FOR THIS ORDINANCE. This ordinance is
enacted pursuant to the provisions of the Act, hereinafter defined.
Section 2. DEFINITIONS. The following terms in this ordi-
nance shall have the following meanings unless the text otherwise
expressly requires:
"Act" means Chapter 166, Part 11, Florida Statutes, and other
applicable provisions of law.
"Additional Parity Obligations" shall mean additional obli-
gations issued in compliance with the terms, conditions and
limitations contained herein and which shall have an equal lien
upon the Net Revenues, and rank equally in all respects with the
1991 Bonds.
"Amortization Installments" with respect to any Term Bonds of
a series, shall mean an-amount so designated which is established
for the Term Bonds of such series, provided that (i) each such
installment shall be deemed to be due on such interest or principal
maturity date of each applicable year as is fixed by subsequent
ordinance or resolution of the Issuer and shall be a multiple of
$5,000, and (ii) the aggregate of such installments for such series
shall equal the aggregate principal amount of Term Bonds of such
series authenticated and delivered on original issuance.
"Authorized Investments" shall mean any investment authorized
under applicable Florida and United States law.
"Bond Registrar" or "Registrar" shall mean the officer of the
Issuer or the bank or trust company which the Issuer may from time
to time designate to perform the duties herein set forth for the
Registrar of the 1991 Bonds.
"Bond Service Requirement" for any Fiscal Year, as applied to
the Bonds of any series, shall mean the sum of:
-Y/?-`/
AMMML
y `1 1
(1) The amount required to pay the interest becoming due
on the Bonds of such series during such Fiscal Year, except to the
extent that such interest shall have been provided by payments into
the Sinking Fund out of bond proceeds for a specified period of
time.
(2) The amount required to pay the principal of serial
Bonds of such series maturing in such Fiscal Year.
(3) The Amortization Installment for the Term Bonds of
such series for such Fiscal Year. In computing the Bond Service
Requirement for any Fiscal Year, the Issuer shall assume that an
amount of the Term Bonds of such series equal to the Amortization
Installment for the Term Bonds of such series for such Fiscal Year
will be retired by purchase or redemption in such Fiscal Year. In
computing the Bond Service Requirement for any Fiscal Year for
Bonds of any series, the Issuer shall assume that an amount of the
Term Bonds of such series equal to the Amortization Installment for
the Term Bonds of such series for such Fiscal Year will be retired
by purchase or redemption in such Fiscal Year or that payment of
such amount of Term Bonds at maturity will be fully provided for
in such Fiscal Year. When determining the amount of principal of
and interest on the Bonds which mature in any year, for purposes
of this ordinance or the issuance of any Additional Parity
obligations, the stated maturity date of Term Bonds shall be
disregarded, and the Amortization Installment, if any, applicable
to Term Bonds in such year shall be deemed to mature in such year.
"Bonds" shall mean the 1991 Bonds and all Additional Parity
obligations. 111991 Bonds" shall mean the obligations of the Issuer
authorized to be issued pursuant to Section 6 of this Ordinance.
"Capital Appreciation Bonds" shall mean the aggregate prin-
cipal amount of the Bonds that bear interest payable solely at
maturity or upon redemption prior to maturity in the amounts
determined by reference to the Compounded Amounts, all as shall be
determined by subsequent resolution of the Issuer. In the case of
Capital Appreciation Bonds that are convertible to Bonds with
interest payable prior to maturity or redemption of such Bonds,
such Bonds shall be considered Capital Appreciation Bonds only
during the period of time prior to such conversion.
"Cede" shall mean Cede & Co., the nominee of DTC, and any
successor nominee of DTC with respect to the Bonds pursuant to
Section 11 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations and rules thereunder in effect or
proposed.
2
S'1le- V
W 0
"Compounded Amounts" shall mean, as of the date of computa-
tion with respect to any Capital Appreciation Bonds, an amount
equal-to the principal amount of such Bonds (the•principal-amount
at the date of issuance) plus the interest accrued on such Bonds
from the date of original issuance of such Bonds to the Interest
Payment Date next preceding the date of computation or the date of
computation if an Interest Payment Date, such interest to accrue
at an interest rate per annum of the Capital Appreciation Bonds,
as set forth in the resolution awarding the sale of such Bonds,
compounded on the interest payment dates of each year, plus, with
respect to matters related to the payment upon redemption of such
Bonds, if such date of computation shall not be an Interest Payment
Date, a portion of the difference between the Compounded Amount as
of the immediately preceding Interest Payment Date (or the date of
original issuance if the date of computation is prior to the first
Interest Payment Date succeeding the date of original issuance) and
the compounded Amount as of the immediately succeeding Interest
Payment Date, calculated based on the assumption that the com-
pounded Amount accrues during any period in equal daily amounts on
the basis of a year of twelve 30-day months. A table of Compounded
Amounts for the Capital Appreciation Bonds shall be incorporated
in the resolution awarding the sale of any Capital Appreciation
Bonds.
"Consulting Engineer" shall mean such qualified and recognized
independent consulting engineer, having favorable repute or skill
and experience, with respect to the acts and duties to be provided
to the Issuer, as employed or retained by the Issuer to perform the
acts and carry out the duties herein provided.
"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 reaspnably 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 Facility 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.
Ill ?? ` Il
0
V
"Credit Facility Issuer" shall mean the provider of a Credit
Facility.
"Current Interest Bonds" means the aggregate principal amount
of Bonds that bear interest payable semiannually on such dates as
determined by subsequent resolution of the Issuer adopted on or
prior to the sale of the Bonds.
"DTC" shall mean The Depository Trust Company, New York, New
York, and its successors and assigns.
"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.
"Federal Securities" shall mean direct obligations of the
United States of America and obligations the principal of and
interest on which are fully guaranteed by the United States of
America, none of which permit redemption prior to maturity at the
option of the obligor, and interest on obligations of the
Resolution Funding Corporation.
"Fiscal Year" shall mean the period commencing on October 1
of each year and continuing to and including the succeeding
September 30, or such other annual period as may be established by
law as the Issuer's fiscal year.
"Gas System Manager" shall mean the Gas System Manager of the
City of Clearwater, Florida.
i
"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.
S
"Holder of Bonds" or "Bondholders" or any similar term shall
mean any person who shall be the registered owner ("Registered
owner") of any registered 1991 Bond, as shown on the Bond Register.
The Issuer may deem and treat the person in whose name any 1991
Bond 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.
4
5Ile" wo
"Maximum Bond Service Requirement" shall mean, as of any
particular date of calculation, the greatest amount of aggregate
Bond Service Requirement for the then current or any future Fiscal
Year.,
"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.
"Participants" shall mean those broker-dealers, banks and
other financial institutions from time to time for which ?TC holds
Bonds as securities depository.
"Paying Agent" shall mean the officer of the Issuer or the
bank or trust company which the Issuer may from time to time
designate to serve as paying agent.
"Registered Owners" shall mean those persons whose names and
addresses appear on the registration books, at the point in time
when registered ownership is to be determined unless a contrary
intent is clearly indicated by the context, maintained by the Bond
Registrar.
"Refunded Bonds" shall mean the City of Clearwater, Florida,
Gas System Revenue Bonds, series 1983, dated March 1, 1984.
"Reserve Requirement" for each series of Bonds shall be as
determined by subsequent resolution of the Issuer. The Reserve
Requirement for the 1991 Bonds shall be the lesser of (i) the
Maximum Bond Service Requirement of the 1991 Bonds, (ii) 125% of
the average annual Bond Service Requirement of the 1991 Bonds, or
(iii) 10% of the net proceeds of the 1991 Bonds.
"Serial Bonds" shall mean the Bonds of a series which shall
be stated to mature in annual installments.
"State" shall mean the State of Florida.
"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.
"Term Bonds" shall mean the Bonds of a series all of which
shall be stated to mature on one date and which shall be subject
to retirement by operation of the Bond Amortization Account.
b
5
W
Section 3. FINDINGS. It is hereby found, determined and
declared that:
(A) 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 reducing debt
service payments owed by the Issuer and by revising certain terms
and covenants previously made for the benefit of the holders of the
Refunded Bonds, to the advantage of the Issuer.
(B) From the proceeds of the 1991 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 timely 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.
(C) 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.
(D) 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.
(E) The principal of and interest on the 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. The Bonds shall not constitute an
indebtedness, liability, general or moral obligation, or a pledge
of the faith, credit or taxing power of the Issuer, the State, or
any political subdivision thereof, within the meaning of any
constitutional, statutory or charter provisions. Neither the State
of.Florida, nor any political subdivision thereof, nor the Issuer
shall be obligated (1) to levy'ad valorem taxes on any property to
pay the principal of the 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.
G
00
0
The Bonds shall not constitute a lien upon the System,
or any part thereof, or on any other property of the Issuer, but
shall constitute a first and prior lien only on the Net Revenues
in the manner provided herein.
(F) The estimated Net Revenues to be derived from the
operation of the System will be sufficient to pay all principal of
and interest on the 1991 Bonds to be issued hereunder, as the same
become due, and to make all required Sinking Fund, Reserve and
other payments required by this ordinance.
Section 4. AUTHORIZATION OF REFUNDING. There is hereby
authorized the refunding of the Refunded Bonds in the manner
provided herein.
Section 5. THE ORDINANCE TO CONSTITUTE CONTRACT. In con-
sideration of the acceptance of the Bonds authorized to be issued
hereunder by those who shall hold the same from time to time, this
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 6. AUTHORIZATION OF 1991 BONDS. Subject and pursuant
to the provisions hereof, obligations of the Issuer to be known as
"Gas System Revenue Bonds, Series 199111 herein defined as the 111991
Bonds" are authorized to be issued in the aggregate principal
amount of not exceeding $9,000,000.
Section 7. DESCRIPTION OF 1991 BONDS. The 1991 Bonds shall
be numbered consecutively, from one upward; shall be in the denomi-
nation of $5,000 each or integral multiples thereof; shall be
dated; 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 s;tiall mature in numerical order, lowest numbers first, on such
dates and in such years, and in such amounts all as shall be fixed
by resolution or ordinance of the Issuer adopted prior to the
delivery of the 1991 Bonds.
The 1991 Bonds shall be issued in fully registered form,
without coupons; 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 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
7
S11S-%/
4W
earlier than the date of the 1991 Bonds, as is fixed by subsequent
resolution or ordinance of the Issuer, payable in accordance with
and pursuant to the terms of the 1991 Bonds.
Interest on the 1991 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 Bond Register, 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 1991
Bonds (the "Record Date"), irrespective of any transfer of the 1991
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 1991 Bonds are registered
at the close of business on the fifth (5th) day preceding the date
of mailing.
If the date for payment of the principal of, premium, if any,
or interest on the 1991 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 1991 Bonds may be issued or exchanged for 1991 Bonds in
coupon form, payable to bearer, in such form and with such attri-
butes 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 1991
Bonds to be includable in gross income of the Holder for federal
income tax purposes.
Section 8. EXECUTION OF BONDS. The 1991 Bonds shall be
executed in the name of the Issuer by its City Manager, counter-
signed by its Mayor-Commissioner and attested by its City Clerk,
and its official seal or a facsimile thereof shall be affixed
thereto or reproduced thereon. The 1991 Bonds shall be approved
as to form and correctness by the City Attorney of the Issuer. The
facsimile signatures of such officers may be imprinted or repro-
duced on the 1991 Bonds. The Certificate of Authentication of the
Bond Registrar, hereinafter described, shall appear on the 1991
Bonds, and no 1991 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 3991 Bond. The authorized signature for the Bond Registrar
8
.5-/re- s/
W
shall at all times be a manual signature. In case any officer
whose signature shall appear on any 1991 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 1991 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 9. NEGOTIABILITY AND REGISTRATION. A. NEGOTIABIL-
ITY. The 1991 Bonds shall be and shall have all of the qualities
and incidents of negotiable instruments under the Uniform Commer-
cial Code - Investment Securities of the State of Florida, and each
successive Holder, in accepting any of the 1991 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 Regis-
trar for the 1991 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 respons-
ible for the transfer and exchange of the 1991 Bonds. The Issuer
shall, prior to the proposed date of delivery of the 1991 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 compli-
ance 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
1991 Bonds. Such agreement shall set forth in detail the duties,
rights and responsibilities of the parties thereto.
The 1991 Bonds inay be transferred upon the registration books,
upon delivery to the Registrar, together with written instructions
as to the details for the transfer of such 1991 Bonds, along with
the social security or federal employer identification number of
such transferee and, if such transferee is a trust, the name and
social security or federal employer identification numbers of the
settlor and beneficiaries of the trust, the date of the trust and
the name of the trustee. No transfer of. any 1991 Bond shall be
effective until entered on the registration books maintained by the
Registrar.
In all cases of the transfer of the 1991 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 1991 Bond or 1991 Bonds of
authorized denominations of the same maturity and interest rate for
the aggregate principal amount which the Registered Owner is
9
silt - y/
MW W
entitled to receive at the earliest practicable time in accordance
with the provisions of this Ordinance. Any 1991 Bond or Bonds
shall be exchangeable for a 1991 Bond or Bonds of the same maturity
and interest rate, in any authorized denomination, but in a prin-
cipal amount equal to the unpaid principal amount of the 1991 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 1991 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 1991 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 1991 Bond shall be
delivered.
All 1991 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 1991 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 10. 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 substi-
tution for the Bond destroyed, stolen or lost, and upon the Holder
furnishing the Issuer proof of his ownership thereof and satisfac-
tory indemnity and complying with such other reasonable regulations
and conditions as the Issuer may prescribe and paying such expenses
as the Issuer may'%incur. All Bonds so surrendered shall be
cancelled by the Registrar for the Bonds. If any of the Bonds
shall have matured or be about to mature, instead of issuing a
substitute Bond, the Issuer may pay the same, upon being indemni-
fied 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 last, 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 herein-
10
5_/j S, -y/
f 4P
11 T
after pledged, to the same extent as all other Bonds issued
hereunder.
SECTION 11. BOOK ENTRY SYSTEM. Notwithstanding the
provisions of Sections 9 and 10 hereof, the 1991 Bonds may, if so
provided by subsequent resolution of the Issuer, be initially
issued in the form of a separate single certificated fully regis-
tered 1991 Bond for each of the maturities of such 1991 Bonds. In
such case upon initial issuance, the ownership of each such 1991
Bond shall be registered in the registration books kept by the Bond
Registrar in the name of Cede, as nominee of DTC.
With respect to 1991 Bonds registered in the registration
books kept by the Bond Registrar in the name of Cede, as nominee
of DTC, the Issuer, the Bond Registrar and the Paying Agent shall
have no responsibility or obligation to any such Participant or to
any indirect participant. Without limiting the immediately
preceding sentence, the Issuer, the Bond Registrar and the Paying
Agent shall have no responsibility or obligation with respect to
(i) the accuracy of the records of DTC, Cede or any Participant
with respect to any ownership interest in the 1991 Bonds, (ii) the
delivery to any Participant or any other person other than a
Registered owner, as shown in the registration books kept by the
Bond Registrar, of any notice with respect to the 1991 Bonds,
including any notice of redemption, or (iii) the payment to any
Participant or any other person, other than a Registered owner, as
shown in the registration books kept by the Bond Registrar, of any
amount with respect to principal of, premium, if any, or interest
on the 1991 Bonds. The Issuer, the Bond Registrar and the Paying
Agent may treat and consider the person in whose name each 1991
Bond is registered in the registration books kept by the Bond
Registrar as the Holder and absolute owner of such 1991 Bond for
the purpose of payment of principal, redemption premium, if any,
and interest with respect to such 1991 Bond, for the purpose of
giving notices of redemption and other matters with respect to such
1991 Bond, for the purpose of registering transfers with respect
to such 1991 Bond, and for all other purposes whatsoever. The
Paying Agent shall pay all principal of, redemption premium, if
any, and interest on the 1991 Bonds only to or upon the order of
the respective Registered owners, as shown in the registration
books kept by the Bond Registrar, or their respective attorneys
duly authorized in writing, as provided herein and all such pay-
ments shall be valid and effective to fully satisfy and discharge
the Issuer's obligations with respect to payment of principal of,
premium, if any, and interest on the 1991 Bonds to the extent 'of
the sum or sums so paid. No person other than a Registered owner,
as shown in the registration books kept by the Bond Registrar,
shall receive a certificated 1991 Bond evidencing the obligation
of the Issuer to make payments of principal, premium, if any, and
interest pursuant to the provisions hereof. Upon delivery by DTC
to the Issuer of written notice to the effect that DTC has deter-
mined to substitute a new nominee in place of Cede, and subject to
11
s //S7-Cf r
i
the provisions herein with respect to Record Dates, the word "Cede''
in this ordinance shall refer to such new nominee of DTC; and upon
receipt of such a notice the issuer shall promptly deliver a copy
of the same to the Bond Registrar and the Paying Agent.
Upon receipt by the Issuer of written notice from DTC (i) to
the effect that DTC has received written notice from the Issuer or
from Participants having interests, as shown in the records of DTC,
in an aggregate principal amount of not less than fifty percent
(50%) of the aggregate principal amount of the then outstanding
1991 Bonds to the effect that a continuation of the requirement
that all of the outstanding 1991 Bonds be registered in the regis-
tration books kept by the Bond Registrar in the name of Cede, as
nominee of DTC, is not in the best interest of the beneficial
owners of the 1991 Bonds or (ii) to the effect that DTC is unable
or unwilling to discharge its responsibilities and no substitute
depository willing to undertake the functions of DTC hereunder can
be found which is willing and able to undertake such functions upon
reasonable and customary terms, such 1991 Bonds shall no longer be
restricted to being registered in the registration books kept by
the Bond Registrar in the name of Cede, as nominee of DTC, but may
be registered in whatever name or names Registered owners
transferring or exchanging such 1991 Bonds shall designate, in
accordance with the provision hereof.
Section 12. PROVISIONS FOR REDEMPTION. The 1991 Bonds shall
be redeemable by operation of the Bond Amortization Account or at
the option of the Issuer, as provided by subsequent resolution or
ordinance of the Issuer adopted prior to delivery of each install-
ment of the 1991 Bonds. The 1991 Bonds in denominations greater
than $5,000 shall be deemed to be an equivalent number of 1991
Bonds of the denomination of $5,000. In the event a 3991 Bond is
of a denomination greater than $5,000, a portion of such may be
redeemed, but 1991 Bonds shall be redeemed only in the principal
amount of $5,000 or any integral multiple thereof. In the event
any of the 1991 Bonds or portions thereof are redeemable as afore-
said, notice thereof identifying the 1991 Donds or portions thereof
to be redeemed will be given by the Registrar (who shall be the
Paying Agent for the 1991 Bonds, or such other person, firm or
corporation as may from time to time be designated by the Issuer
as the Registrar for the Bonds) by mailing a Copy of the redemption
notice.by first-class mail (postage prepaid) not more than thirty
(3C) days and not less than fifteen (15) days prior to the date
fixed for redemption to the Registered Owner of each 1991 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 1991 Bonds or portions thereof so called for redemption will
cease to bear interest after the specified re-Jenption date provided
funds for their redemption are on deposit at the place of payment
at that time.
12
.5/! X ' f/
Y '
Upon surrender of any 2991 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
1991 Bond or 1991 Bonds of authorized denominations in aggregate
principal amount equal to the unredeemed portion surrendered.
Whenever any 1991 Bonds shall be delivered to the Bond
Registrar for cancellation, upon payment of the principal amount
thereof, or for replacement, transfer or exchange. such 1991 Bonds
shall be cancelled and, upon request of the Issuer, destroyed by
the Bond Registrar. Counterparts of the certificate of destruction
evidencing any such destruction shall be furnished to the Issuer.
Section 13. FORM OF THE 1991 BONDS. The text of the 1991
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:
13
0 0
(Form of 1991 Bond)
No. $
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF CLEARWATER
GAS SYSTEM REVENUE BOND, SERIES 1991
Dated
Rate of Interest Maturity Date Date
Registered Owner:
Principal Amount:
KNOW ALL MEN BY THES
Florida (hereinafter cal
promises to pay to the
registered assigns, on
Principal Amount shown at
mentioned, and to pay so]
sum from the Dated Date
interest payment date to
of interest per annum sei
such interest being paya;
annually thereafter on t3
day of of eacY.
any, on th s Bond are paya
of on the date fixed for
office of
CusiR
E PRESENTS, that the City of Clearwater,
Led "City"), for value'received, hereby
Registered Owner identified above, or
:he Maturity Date specified above, the
4ve solely from the revenues hereinafter
ely from such revenue ' s,-interest on said
of this Bond or from the most recent
ghich interest has been paid, at the rate
forth above until payment of such sum,
ale , and semi-
e first day of and the first
year. The principal of and premium, if
ble upon presentation and surrender here-
maturity or redemption at the principal
(the "Paying Agent") in
, Fiorica, or at the ottxce aesignatea ror sucn
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 Bond Register, 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.
14
S-//r- 7/
!1 ,
t..
0
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 not exceeding $ of
like date, tenor and effect, except as to number, installments,
maturity and interest rate, issued to finance the cost of advance
refunding the outstanding Gas System Revenue Bonds, Series 1983,
pursuant to the authority of and in full compliance with the
Constitution and laws of the State of Florida, including particu-
larly Chapter 166, Part II, Florida Statutes, and other applicable
provisions of law, and ordinance No. -91, duly enacted by the
City on , 1991, as amended and supplemented (herein-
after collectively called the "Ordinance"), and is subject to all
the terms and conditions of such ordinance.
This Bond and the issue of Bonds of which it is a part, are
special obligations of the City payable solely from and secured by
an irrevocable first and prior lien upon and pledge 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 sub-
division 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
1.5
S_// S/ -!
W W
(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 regis-
tration 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 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 autho-
rized 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, main-
tain 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, 100% 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 prece-
dent 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
16
! --/4
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.
The Bonds are issued in the form of fully registered bonds
without coupons in denominations of $5000 or any integral multiple
of $5000. 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 autho-
rized 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 denomina-
tions, 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
fora and with guaranty of signature satisfactory to the Registrar,
duly executed by the Registered Holder of the 'Bonds to be trans-
ferred 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 iden-
tification 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 practi-
cable 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
17
srira? - ,(
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;-
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.
(SEAL)
CITY OF CLEARWATER, FLORIDA
City Manager
Mayor-Commissioner
ATTEST: APPROVED AS TO FORM AND
r CORRECTNESS:
i
w City Clerk
City Attorney
1
r
r
i
2
18
5//x-91
CERTIFICATE OF AUTHENTICATION OF BOND REGISTRAR
This Bond is one of the Bonds of the issue described in the
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 with Custodian for
right of survivorship (Minor)
and not as tenants in under Uniform Transfers to
common Minors Act of
(State)
Additional abbreviations may also be used though not in list
above.
19
4?-/I 9 - `/
.;j`
•
r s
i .1Lfv?
'?k'? ?„ ?M!
,q. .n ?. 4-•.+..?...,vt. ?',. ?....:..«'..?.:u.'k:t..?.V.»,....,•.::tcw+?',a1?.:k:.r.,.:.`. ? L?Ji:. •?.- ?y ? ••?.?, ?
?'$ V Y2µ ?5
..':? .I •,. ? '• "?a? .. ? r?w<._ii'f! ? rn'`.c.'` .R•`??Lit•??:?€?-. ?i` ?'? i l•'
VAW
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned _
(the "Transferor"), hereby sells, assigns and transfers unto
(Please insert name
and Social Security or Federal Employer Identification number of
assignee) the within Bond and all rights thereunder, and hereby
F irrevocably constitutes and appoints
i (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: Signature(s) must be
guaranteed by a member of the
New York Stock Exchange or a
commercial bank or a trust
# company.
? NOTICE: No transfer will be
registered and no new Bond will
be issued in the name of the
Transferee, unless the signa-
ture(s) to this assignment
corresponds with the name as it
appears upon the face of the
within Bond in every particular,
without alteration or enlarge-
ment or any change whatever and
the Social Security or Federal
Employer Identification Number
of the Transferee is supplied.
20
t
. mad
.La
Section 14. APPLICATION OF 1991 BOND PROCEEDS. The proceeds,
including accrued interest and premium, if any, received from the
sale of any or all of the 1991 Bonds shall be applied by the Issuer
as follows;
(A) The accrued interest shall be deposited in the
Interest Account in the Sinking Fund herein created and shall be
used only for the purpose of paying interest becoming due on the
1991 Bonds.
(B) Unless provided from other funds of the Issuer on
the date of issuance of the 1991 Bonds, a sum equal to the Maximum
Bond Service Requirement for the 1991 Bonds shall be deposited in
the subaccount in the Reserve Account in the Sinking !Fund, herein
created and established for the benefit of the 1991 Bonds, and
shall, be used only for the purposes provided therefor.
(C) Unless paid or reimbursed by the original purchasers
of the Bonds, the Issuer shall pay all costs and expenses in
connection with the preparation, issuance and sale of the 1991
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 to
the Escrow Deposit Agreement.
Section 15. SPECIAL OBLIGATIONS OF ISSUER. The Bonds shall
be special obligations of the Issuer, payable solely from the Net
Revenues as herein provided. The 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
s 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 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 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 lieu of this pledge shall be valid
21
:?- f/S'-7(
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 Bonds
shall be secured forthwith equally and ratably by an irrevocable
lien on the Net Revenues of the System, as defined herein, 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
Bonds, for the reserves therefor and for all other required
payments.
Section 16. COVENANTS OF THE ISSUER. Subject to the provi-
sions of Section 17 hereof, for as long as any of the principal of
and interest on any of the Bonds shall be outstanding and unpaid,
or until payment has been provided for as herein permitted, or
until there shall have been set apart in the Sinking Fund, herein
established, including the Reserve Account therein, a sum suffi-
cient to pay when due the entire principal of the Bonds remaining
unpaid, together with interest accrued and to accrue thereon, the
Issuer covenants with the Holders of any and all Bonds as follows:
(A) REVENUE FUND. The entire Gross Revenues, except the
income from investments (hereinafter provided for), derived from
the operation of the System shall upon receipt thereof be deposited
in the "City of Clearwater Gas Revenue Fund" (hereinafter called
the "Revenue Fund"), hereby created and established. Such Revenue
Fund shall constitute a trust fund for the purposes herein
provided, and shall be kept separate and distinct from all other
funds of the Issuer and used only for the purposes and in the
manner herein provided.
(B) SINKING FUND. There is hereby created and estab-
lished a separate fund to be designated "City of Clearwater Gas
System Revenue Bonds, Series 1991 Sinking Fund" (hereinafter called
"Sinking Fund"). There are also hereby created and established in
the Sinking Fund four accounts to be known as the "Interest
Account", "Principal Account", "Reserve Account" and "Bond Amorti-
zation Account". A separate subaccount shall be maintained in the
Reserve Account for each series of Bonds.
(C) DISPOSITION OF REVENUES. All revenues at any time
remaining on deposit in the Revenue Fund shall be disposed of on
or before the fifteenth (15th) day of each month, commencing in
the month immediately following the delivery of the Bonds only in
the following manner and in the following order of priority:
(1) Revenues shall first be used to deposit in the
"City of Clearwater Gas System Operation and Maintenance Fund" (the
"Operation and Maintenance Fund") which fund is hereby created and
established, such sums as are necessary for the Cost of Operation
and Maintenance, as hereinabove defined, for the next ensuing
month.
22
,5- WS . 1 t
04
(2) Revenues shall next be used for deposit into
the Interest Account, such sums as will be sufficient to pay one-
sixth (1/6) of all interest becoming due on the Bonds on the next
semiannual interest payment date.
(3) Revenues shall next be used for deposit into
the Principal Account, in any bond year in which a serial Bond
matures, such sums as will be sufficient to pay one-twelfth (1/12)
of the principal maturing on Serial Bonds in such year.
(4) Revenues shall next be used for deposit into
the Bond Amortization Account, in any bond year in which an Amorti-
zation Installment is due, such sums as will be sufficient to pay
one-twelfth (1/12) of the Amortization Installment required to be
made in such year. Such payments shall be credited to a separate
special account for each series of Term Bonds outstanding, and if
there shall be more than one stated maturity for Term Bonds of a
series, then into a separate special account in the Bond Amorti-
zation Account for each such separate maturity of Term Bonds. The
funds and investments in each such separate account shall be
pledged solely to the payment of principal of the Term Bonds of the
series or maturity within a series for which it is established and
shall not be available for payment, purchase or redemption of Term
Bonds of any other series or within a series, or for transfer to
any other account in the Sinking Fund to make up any deficiencies
in required payments therein.
Upon the sale of any series of Term Bonds, the
Issuer shall, by resolution or ordinance, establish the amounts and
maturities of such Amortization Installments for each series, and
if there shall be more than one maturity of Term Bonds within a
series, the Amortization Installments for the Term Bonds of each
maturity. In the event the moneys deposited for retirement of a
maturity of Term Bonds are required to be invested, in the manner
provided below, then the Amortization Installments may be. stated
in terms of either the principal amount of the investments to be
purchased on, or, the cumulative amounts of the principal amount of
investments required to have been purchased by, the payment date
of such Amortization Installment.
Moneys on deposit in each of the separate special
accounts in the Bond Amortization Account shall be used for the
open market purchase or the redemption of Term Bonds, pursuant to
Section 16(D) (1) hereof, of the series or maturity of Term Bonds
within a series for which such separate special account is estab-
lished or may remain in said separate special account and be
invested until the stated date of maturity of the Term Bonds. The
resolution or ordinance establishing the Amortization Installments
for any series or maturity of Term Bonds may limit the use of
moneys to any one or more of the uses set forth in the preceding
sentence.
23
5_11S -V
tit
The required deposits to the Principal Account,
Interest Account and Bond Amortization Account shall be adjusted
in order to take into account the amount of money currently on
deposit therein.
(5) Revenues shall next be applied by the Issuer
to maintain in each subaccount in the Reserve Account a sum equal
to the Reserve Requirement, if any, for any subsequent year on each
series of Bonds, which sum shall initially be deposited therein
from the proceeds of the sale of the Bonds and other funds of the
Issuer.
To the extent the Issuer determines pursuant to a
subsequent resolution to fund a subaccount within the Reserve
Account for a respective series of Bonds, the Issuer may provide
that the difference between the amounts on deposit in such sub-
account and the Reserve Requirement for such series of Bonds shall
be an amount covered by obtaining bond insurance issued by a
reputable and recognized municipal bond insurer, by a surety bond,
by a letter of credit or any combination thereof or by such other
form of credit enhancement as shall be approved by a resolution of
the Issuer adopted prior to the issuance of the series of Bonds for
which such subaccount is established. Such resolution may also
provide for the substitution of such credit enhancement. Bond
insurance, a surety bond, a letter of credit or any combination
thereof or such other form of credit enhancement may in the future
be deposited in the subaccount in the Reserve Account for the 1991
Bonds as shall be approved by subsequent resolution of the Issuer,
provided that the provider of such credit enhancement is then rated
in one of the two highest rating categories (without regard to
gradation) by Standard and Poor's Corporation and Moody's Investors
Service, Inc.
Any withdrawals from any subaccount in the Reserve
Account shall be subsequently restored from the first moneys avail-
able in the Revenue Fund on a pro rata basis as to all subaccounts
in the Reserve Account after all required current payments for the
operation and Maintenance Fund and Sinking Fund .(including all
deficiencies in prior payments to All Funds) have been made in
full.
Notwithstanding any provision of this Resolution to
the contrary, moneys in, each subaccount in the Reserve Account
shall be used only for the purpose of the payment of maturing
principal of or interest or making Amortization Installments on the
Bonds for which such subaccount was established when the other
moneys in the Sinking Fund are insufficient therefor, and for no
other purpose, including the payment of any other series of Bonds.
In the event of the refunding of any series of
Bonds, the Issuer may withdraw from the subaccount within the
Reserve Account for such series of Bonds, all or any portion of the
24
6-1? X -,F/
amounts accumulated therein with respect to the Bonds being
refunded and deposit such amounts as required by the resolution
authorizing the refunding of such series of Bonds.
(6) The Issuer shall not be required to make any
further payments into the Sinking Fund when the aggregate amount
of money in the Sinking Fund is at least equal to the total Bond
Service Requirement of the Bonds then outstanding, plus the amount
of redemption premium, if any, then due and thereafter to become
due on such Bonds then outstanding by operation of the Bond
Amortization Account.
(7) The Issuer shall next apply and deposit the
moneys in the Revenue Fund into a special account to be known as
the "City of Clearwater Gas System Renewal and Replacement Fund"
(hereinafter called the "Renewal and Replacement Fund"), which fund
is hereby created and established. The Issuer shall deposit into
the Renewal and Replacement Fund an amount equal to one-twelfth
(1/12) of an amount equal to 5% of prior year's Gross Revenues;
provided, however, that so long as there shall be on deposit in
such Renewal and Replacement Fund a balance of at least $300,000,
no additional deposits in such Fund shall be required. The moneys
in the Renewal and Replacement Fund shall be used only for the
purpose of paying the cost of extensions, enlargements or additions
to, or the replacement of capital assets of the System and
emergency repairs thereto. Such moneys on deposit in such Fund
shall also be used to supplement the Reserve Account if necessary,
in order to prevent a default in the payment of the principal or
Amortization Installments of and interest on the Bonds.
(8) The balance of any moneys remaining in the
Revenue Fund after the above required payments have been made may
be used by the Issuer for any lawful purpose.
(9) The Operation and Maintenance Fund, the Sinking
Fund, the Renewal and Replacement Fund, the Revenue Fund, and all
accounts therein and any other special funds herein established and
created shall constitute trust funds for the purposes provided
herein for such funds. All such funds shall be continuously secured
in the same manner as city deposits are authorized to be secured
by the laws of the State of Florida.
Moneys on deposit in the Revenue Fund, and the Sinking Fund
(except the Reserve Account therein) may be invested and reinvested
in the manner provided by law provided such investments either
mature or are redeemable at not less than par at the option of the
Issuer not later than the dates on which the moneys on deposit
therein will be needed for the purpose of such fund. The moneys
in the Reserve Account in the Sinking Fund and in the Renewal and
Replacement Fund may be invested and reinvested only in Authorized
Investments, in the manner provided by law. All income on such
investments shall. be deposited into the Revenue Fund; provided,
25
5-11 ?? /
however, that investment income earned in the Bond Amortization
Account shall remain therein or be transferred to the Principal.
Account or the Interest Account and used to pay maturing principal,
Amortization Installments and interest on the Bonds.
The cash required to be accounted for in each of the foregoing
funds and accounts may be deposited in a single bank account, and
funds allocated to the various accounts established herein may be
invested in a common investment pool, provided that adequate
accounting records are maintained to reflect and control the
restricted allocation of the cash on deposit therein and such
investments for the various purposes of such funds and accounts as
herein provided.
The designation and establishment of the various funds and
accounts in and by this Ordinance shall not be construed to require
the establishment of any completely independent, self-balancing
funds as such term is commonly defined and used in government
accounting, but rather is intended solely to constitute an ear-
marking of certain revenues for certain purposes and to establish
certain priorities for application of such revenues as herein
provided.
(D) OPERATION OF BOND AMORTIZATION ACCOUNT. Money held
for the credit of the Bond Amortization Account shall be applied
to the retirement of term obligations as follows:
(1) Subject to the provisions of Paragraph (3)
below, the issuer may purchase Term Bonds then outstanding at the
most advantageous price obtainable with reasonable diligence, such
price not to exceed the principal of such Term Bonds plus the
accrued interest to the date of delivery thereof. The issuer shall
pay the interest accrued on such Term Bonds to the date of delivery
thereof from the Interest Account and the purchase price from the
Bond Amortization Account, but no such purchase shall be made by
the Issuer within the period of 45 days immediately preceding any
interest payment date on which Term Bonds are subject to call for
redemption, except from money in excess of the amounts set aside
or deposited for the redemption of Term Bonds.
(2) Subject to the provisions of Paragraph (3)
below, whenever sufficient money is on deposit in the Bond Amorti-
zation Account to redeem $5,000 or more principal amount of Term
Bonds, the Issuer may call for redemption from money in the Bond
Amortization Account such amount of Term Bonds then subject to
redemption as, with the redemption premium, if any, will exhaust
the money then held in the Band Amortization Account as nearly as
may be practicable. Prior to calling Term Bonds for redemption,
the Issuer shall withdraw from the Interest Account and from the
Bond Amortization Account and set aside in separate accounts or
deposit with the paying agents the respective amounts required for
26
paying the interest on and the principal of and redemption premium
applicable to the Term Bonds so called for redemption.
(3) Money in the Bond Amortization Account shall
be applied by the Issuer in each fiscal year,to the retirement of
Term Bonds then outstanding in the following order:
(a) The Term Bonds of each series of Bonds, to
the extent of the Amortization Installment, if any, for such Fiscal
Year for the Term Bonds of each such series then outstanding, plus
the applicable premium, if any, and, if the amount available in
such Fiscal Year shall not be sufficient therefor, then in propor-
tion to the Amortization Installment, if any, for such Fiscal Year
for the Term Bonds of each such series then outstanding, plus the
applicable premium, if any; provided, however, that if the Term
Bonds of any such series shall not then be subject to redemption
from money in the Bond Amortization Account and if the Issuer shall
at any time be unable to exhaust the money applicable to the Term
Bonds of such series under the provisions of this clause or in the
purchase of such Term Bonds under the provisions of Paragraph 1
above, such money or the balance of such money, as the case may be,
shall be retained in the Bond Amortization Account and, as soon as
it is feasible, applied to the Term. Bonds of such series; and
(b) Any balance then remaining, other than
money retained under the first clause of this paragraph 3, may be
applied to the retirement of such Term Bonds as the Issuer in its
sole discretion shall determine, but only, in the case of the
redemption of Term Bonds of any series, in such amounts and on such
terms as may be provided in the resolution or ordinance authorizing
the issuance of the obligations of such series.
(4) The Issuer shall deposit into the Bond Amorti-
zation Account Amortization Installments for the amortization of
the principal of the Term Bonds, together with any deficiencies
for prior required deposits, into the Bond Amortization Account,
such Amortization Installments to be in such amounts and to be due
in such years as shall be determined by resolution or ordinance of
the governing body of the Issuer prior to the delivery of the
Bonds.
The Issuer shall pay from the Sinking Fund all expenses in
connection with any such purchase or redemption.
(E) OPERATION AND MAINTENANCE. The Issuer will maintain
the system and all parts thereof in good condition and will operate
the same in an efficient and economical manner making suck.,. expend i--
tures for equipment and for renewals, repairs and replacements as
may be proper for the economical operation and maintenance thereof.
(F) OPERATING BUDGET. The Issuer shall annually, prior
to commencement of each of its Fiscal Years, prepare and adopt a
27
Sal ?'%?
Alk
s
detailed budget or budgets of the estimated expenditures for the
operation and maintenance of the System during such neat succeeding
Fiscal Year. The Issuer shall mail copies of such annual budget
or budgets (including any amendments thereto) to any Holder or
Holders of Bonds who shall file his address with the Issuer and
request in writing that copies of all such budgets be furnished him
and shall make available such budgets of the System at all reason-
able times to any Holder or Holders of Bonds or to anyone acting
for and on behalf of such Holder or Holders, provided that the cost
of reproducing and mailing such budget or budgets shall be borne
by the Holder requesting such budget or budgets.
(G) RATE ORDINANCE. The Issuer covenants to 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, 100$ of all Costs of Operation and Mainte-
nance of the System in such year and all reserve and other payments
provided for in this ordinance and 125% of the Bond Service
Requirement due in such year on all outstanding Bonds. Such rates,
fees, rentals or other charges shall not be reduced so as to be
insufficient to provide Revenues for such purposes.
The Issuer further covenants and agrees that the Issuer will
annually within thirty (30) days after adoption of the budget
described in the preceding Subsection F revise such fees, rates,
rentals and other charges for the use of the product, services and
facilities of the System to the extent necessary for the estimated
Gross Revenues to be derived from the operation of the System
during the next succeeding Fiscal Year to increase over the amount
of actual Gross Revenues from the operation of the System for the
next preceding Fiscal Year by the amount that the estimated expen-
ditures for operation and maintenance of the System during'such
next succeeding Fiscal Year shall exceed the actual expenditures
for operation and maintenance of the system during such next
preceding Fiscal Year.
(H) BOOKS AND RECORDS. The Issuer shall also keep books
and records of the Net Revenues of the System which shall be kept
separate and apart from all other books, records and accounts of
the Issuer, and the Holders shall have the right at all reasonable
times to inspect all records, accounts and data of the Issuer
relating thereto. '
(1) ANNUAL AUDIT. The Issuer shall also, at least once
a year, within six months after the close of its Fiscal. Year, cause
the books, records and accounts relating to the System to be
properly audited by a recognized independent firm of certified
public accountants and shall make generally available the report
of such audits to any Holder or Holders of Bonds. Such audits
shall contain a complete presentation of financial statements in
28
Ankk -`
W
accordance with generally accepted accounting principles. A copy
of such annual audit shall regularly be furnished to any nationally
recognized bond rating service which, upon application of the
Issuer prior to the issuance of the Bonds, shall have published a
rating on the Bonds and to any Holder of any Bonds who shall have
requested in writing that a copy of such reports be furnished him,
provided that the cost of reproducing and mailing such reports
shall be borne by the Holder requesting such reports.
(J) NO MORTGAGE OR SALE OF THE SYSTEM. The. Issuer will
not sell, lease, mortgage, pledge or otherwise encumber the System,
or any substantial part thereof, or any revenues to be derived
therefrom, except as herein provided.
The foregoing provision notwithstanding, the Issuer shall
have and hereby reserves the right to sell, lease or otherwise
dispose of any of the property comprising a part of the System
which the Issuer shall hereafter determine, in the manner provided
herein, to be no longer necessary, useful or profitable in the
operation of the System. Prior to any such sale, lease or other
disposition of said property, if the amount to be received therefor
is not in excess of $50,000, the City Manager of the Issuer or
other duly authorized officer in charge thereof shall make a
finding in writing determining that such property comprising a part
of the System is no longer necessary, useful or profitable in the
operation thereof.
If the amount to be received from such sale, lease or
other disposition of said property shall be in excess of $50,000
but not in excess of $100,000 such City Manager or other officer
shall first make a finding in writing determining that such
property comprising a part of the System is no longer necessary,
useful or profitable in the operation thereof, and the governing
body of the Issuer shall, by resolution or ordinance duly adopted,
approve and concur in the finding of such City Manager or other
officer, and authorize such sale, lease or other disposition of
said property.
If the amount to be received from such sale, lease or
other disposition of said property shall be in excess of $100,000
but not in excess of 10% of the value of faxed assets of the System
according to the most recent annual audit report, such City Manager
or other officer shall first make a finding in writing determining
that such property comprising a part of the System is no longer
necessary, useful or profitable in the operation thereof, and the
Consulting Engineer shall make a finding that it is in the best
interest of the System that such property be disposed of, and the
governing body of the Issuer shall by resolution or ordinance, duly
adopted, approve and concur in the findings of such City Manager
or other officer and of the consulting Engineer, and shall autho-
rize such sale, lease or other disposition of said property.
29
//ff ' l
Anything in this subparagraph (J) to the contrary not-
withstanding, nothing herein shall restrict the governing body of
the Issuer or, to the extent such authority has been vested in him
by such governing body, the City Manager in the exercise of his
discretion, from authorizing the sale or other disposition of any
of the property comprising a part of the System, if the Consulting
Engineer shall certify that the Net Revenues of the System will not
be materially adversely affected by reason of such sale or
disposition.
Such proceeds shall be placed in the Renewal and Replace-
ment Fund or used for the retirement of outstanding Bonds, in such
proportions to be determined by the governing body of the Issuer
upon the recommendations of the City Manager. The payment of such
proceeds into the Renewal and Replacement Fund shall not reduce the
amounts required to be paid into such Fund by other provisions
herein.
Anything in this subparagraph (J) to the contrary not-
withstanding, nothing herein shall prohibit the Issuer from trans-
ferring ownership of the System to another governmental entity in
accordance with Section 21 hereof without complying with the
provisions of this subparagraph (J).
(K) INSURANCE. For so long as any of the Bonds are out-
standing, the Issuer will carry adequate fire and windstorm insur-
ance on all buildings and structures of the works and properties
of the System which are subject to loss through fire or windstorm,
and will otherwise carry insurance of all kinds and in the amounts
normally carried in the operation of similar facilities and proper-
ties in Florida; provided,_however, that in lieu of such insurance
the Issuer may establish a qualified plan of self-insurance. Any
such insurance shall be carried for the benefit of the Holders of
the Bonds. All moneys received for losses under any of such insur-
ance, except public liability, are hereby pledged by the Issuer as
security for the Bonds, until and unless such proceeds are used to
remedy the loss or damage for which such proceeds are received,
either by repairing the property damaged or replacing the property
destroyed as soon as practicable.
(L) NO FREE SERVICE. The Issuer will not render or
cause to be rendered any free services of any nature by its System,
nor will any preferential rates be established for users of the
same class. Whenever the Issuer,' including its departments,
agencies and instrumentalities, shall avail itself of the product,
facilities or services provided by the System, or any part thereof,
the same rates, fees or charges applicable to other customers
receiving like services under similar circumstances shall be
charged to the Issuer and any such department, agency or instrumen-
tality. Such charges shall be paid as they accrue, and the Issuer
shall transfer from its general funds to the Revenue Fund suffi-
cient sums to pay such charges. The revenues so received shall be
30
5-//,r • ?/
0
deemed to be Revenues derived from the operation of the System, and
shall be deposited and accounted for in the same manner as other
Revenues derived from such operation of the System.
(M) ENFORCEMENT OF COLLECTIONS. The Issuer will dili-
gently enforce and collect the rates, fees and other charges for
the services and facilities of the System herein pledged; will take
all steps, actions and proceedings for the enforcement and collec-
tion of such rates, charges and fees as shall become delinquent to
the full extent permitted or authorized by law; and will maintain
accurate records with respect thereof. All such fees, rates,
charges and revenues herein pledged shall, as collected, be held
in trust to be applied as herein provided and not otherwise.
The Issuer will, under reasonable rules and regulations,
to the full extent permitted by law, shut off the connection of any
users of the system for non-payment of fees, rentals and other
charges for the services of the System and shall not furnish him
or permit him to receive from the System further service until all
obligations owed by him to the Issuer on account of services shall
have been paid in full.
(N) REMEDIES. Any Holder of Bonds issued under the
provisions hereof or any trustee acting for the Holders of such
Bonds, may either at law or in equity, by suit, action, mandamus
or other proceedings in any court of competent jurisdiction,
protect and enforce any and all rights, including the right to the
appointment of a receiver, existing under the laws of the State of
Florida, or granted and contained herein, and may enforce and
compel the performance of all duties required herein or by any
applicable statutes to be performed by the Issuer or by any officer
thereof.
Nothing herein, however, shall be construed to grant to
any Holder of the Bonds any lien on the System or any real property
of the Issuer.
(O) CONSULTING ENGINEER. The Consulting Engineer shall
provide the Issuer with competent engineering counsel affecting the
proper, efficient and economical operation and maintenance of the
System and in connection with the making of capital improvements
and renewals and replacements to the System. The Gas System
Manager may undertake the duties of Consulting Engineer for
purposes of this Ordinance so long as such Gas System Manager is
a registered engineer in the State of Florida; provided however,
that the Gas System Manager shall not perform the duties of
Consulting Engineer as required in Sections 16(J) and (T) of this
Ordinance.
(P) CITY MANAGER REPORTS. On an annual basis, the
Issuer shall cause to be prepared by the City Manager a report or
survey of the System, with respect to the management of the
31
S_// S' - (
"m
"V 4W
properties thereof, the sufficiency of the rates and charges for
services, the proper maintenance of the properties of the system,
and the necessity for capital improvements and recommendations
therefor. Such a report or survey shall also show any failure of
the issuer to perform or comply with the covenants herein
contained.
If any such report or survey of the City Manager reflects
that the rates and charges are insufficient to protect the rights
of the Bondholders, then the Issuer shall take such steps as are
required by law to raise the rates and charges for services of the
System.
(Q) NO COMPETING SYSTEM. To the full extent permitted
by law, the Issuer will not hereafter grant, or cause, consent to,
or allow the granting of, any franchise or permit to any person,
firm, corporation or body, or agency or instrumentality whatsoever,
for the furnishing of competing gas services to or within the
boundaries of the Issuer; provided, however, that if the Gas System
Manager renders an opinion that it would not be feasible for the
Issuer to provide such services to any specific area within the
three years succeeding a request to provide such service, the
issuer may authorize or allow the granting of such franchise or
permit for such area upon such terms and conditions as it may
approve.
(R) UNLAWFUL CONNECTION PROHIBITED. The Issuer has
enacted an ordinance making it unlawful for any person or persons
to tamper with, change or make any connection with the System with-
out the written consent of the Issuer, or to make any reconnection
with the system when service has been discontinued for delinquent
charges, until such delinquent charges have been paid in full,
including interest, reasonable penalties and reconnection charges.
3 The Issuer will diligently, to the full extent permitted by law,
enforce this covenant and prosecute any person violating the provi-
sions of this covenant or any penal ordinance relating to the same.
(S) ISSUANCE OF OTHER OBLIGATIONS. The Issuer will not
issue any other obligations payable from the Gross Revenues of the
System nor voluntarily create or cause to be created any debt,
lien, pledge, assignment, encumbrance or other charge having
priority to or being on a parity with the lien of the 1991 Bonds
and the interest thereon upon said Revenues except under the condi-
tions and in the manner provided herein. Any obligations issued
by the Issuer other than the 1991 Bonds herein authorized and
Additional Parity Obligations provided for in Subsection T below,
payable from such Revenues, shall contain an express statement that
such obligations are junior and subordinate in all respects to the
1991 Bonds, as to lien on and source and security for payment from
such Revenues.
32
'S-11f -f/
W W
(T) ISSUANCE OF ADDITIONAL PARITY OBLIGATIONS. Addi-
tional Parity Obligations, payable on a parity from the Net Reve-
nues of the System with the 1991 Bonds, may be issued after the
issuance of any 1991 Bonds, for the construction and acquisition
of additions, extensions and improvements to the System or for
refunding purposes and upon the following conditions:
(1) The Net Revenues derived or which would have
been derived, if adjusted as provided herein, from the System,
either during the immediately preceding Fiscal Year, during any
twelve (12) consecutive calendar months of the eighteen (18)
calendar months immediately preceding the sale of the proposed
Additional Parity Obligations or during the last twelve (12) month
period for which the issuer has audited financial statements for
the System, at the option of the Issuer, shall have been not less
than 125% of the Maximum Bond Service Requirement which will become
due in any calendar year thereafter on (a) the 1991 Bonds then
outstanding, (b) any Additional Parity Obligations issued and then
outstanding, and (c) the Additional Parity Obligations then
proposed to be issued.
In determining the amount of Net Revenues for the
purposes of paragraph (1) above, the consulting Engineers may
adjust the Net Revenues by adding thereto the following:
(a) The Net Revenues (computed for such
utility on the same basis as net revenues are computed for the
System) of any gas utility which the Issuer shall have acquired
prior to the issuance of such Additional Parity Obligations or
which the Issuer shall be acquiring from proceeds of such
Additional Parity obligations; and
(b) In the event a change has been made in
the rate schedules for services from the System prior to the
issuance of the proposed Additional Parity obligations for a part
of such 12 month period referred to in (1) above, and such change
has resulted in an increase in Net Revenues, such amount of
additional Net Revenues which the Consulting Engineers estimate
would have been received by the issuer during such 12 month period
if such change in such rate schedule had been in effect during the
entire 12 month period and in the event a change has been made in
the rate schedules for services from the System prior to the
issuance of the proposed Additional Parity obligations for a part
of such 12 month period referred to in (1) above, and such change
has resulted in a decrease in Net Revenues, by subtracting there-
from such amount of the Net Revenues which the Consulting Engineers
estimate would not have been received by the Issuer during such 12
month period referred to in (1) above, if such change in such rate
schedule had been in effect during the entire 12 month period.
(2) Each resolution or ordinance authorizing the
issuance of Additional Parity obligations will recite that all of
33
W
the covenants herein contained will be applicable to such
Additional Parity Obligations.
(3) The issuer shall not be in default in
performing any of the covenants and obligations assumed hereunder,
and all payments herein required to have been made into the
accounts and funds, as provided hereunder, shall have been made to
the full extent required.
SECTION 17. AMENDING AND SUPPLEMENTING OF ORDIN NCE WITT OUT
CONSENT OF__REGISTEREDOWNERS OF BONDS. The Issuer, from time to
time and at any time and without the consent or concurrence of any
Registered owner of any Bond, may adopt an ordinance or resolution
amendatory hereof or supplemental hereto, if the provisions of such
supplemental ordinance or resolution shall not adversely affect the
rights of the Registered Owners of the Bonds then Outstanding, for
any one or more of the following purposes:
(A) To make any changes or corrections in this Ordinance
as to which the Issuer shall have been advised by counsel that are
required for the purpose of curing or correcting any ambiguity or
defective or inconsistent provision or omission or mistake or mani-
fest error contained in this Ordinance, or to insert in this Ordi-
nance such provisions clarifying matters or questions arising under
this ordinance as are necessary or desirable;
(B) To add additional covenants and agreements of the
Issuer for the purpose of further securing the payment of the
Bonds;
(C) To surrender any right, power or privilege reserved
to or conferred upon the Issuer by the terms of this ordinance;
(D) To confirm as further assurance any lien, pledge or
{ change, or the subjection to any lien, pledge or change, created
r or to be created by the provisions of this Ordinance;
(E) To grant to or confer upon the Registered Owners any
additional right, remedies, powers, authority or security that
lawfully may be granted to or conferred upon them;
(F) To assure compliance with Federal "arbitrage" provi-
sions in effect from time to time;
(G) To bring all or a portion of the System into compli-
ance with applicable state or federal laws; and
(H) To modify any of the provisions of this ordinance
in any other respects provided that such modification shall not be
effective until after the Bonds outstanding at the time such
supplemental ordinance or resolution is adopted shall cease to be
outstanding, or until the Holders thereof consent thereto pursuant
34
0
to Section 18 hereof, and any Bonds issued subsequent to any such
modification shall contain a specific reference to the modifi-
cations contained in such supplemental ordinance or resolution.
SECTION 18. AMENDMENT OF ORDINANCE _WITH-CONSENT OF REGISTERED
OWNER OF ON S. Except as provided in Section 17 hereof, no
material modification or amendment of this Ordinance or of any
ordinance amendatory hereof or ordinance or resolution supplemental
hereto may be made without the consent in writing of the Registered
Owners of fifty-one percent or more in the principal amount of the
Bonds of each Series so affected and then outstanding; provided,
however, that no modification or amendment shall permit a change
in the maturity of such Bonds or a reduction in the rate of
interest thereon or in the amount of the principal obligation
thereof or affecting the promise of the Issuer to pay the principal
of and interest on the Bonds as the same shall become due from the
Net Revenues of the System or reduce the percentage of the Regis-
tered Owners of the Bonds required to consent to any material
modification or amendment hereof without the consent of the
Registered owner or Registered owners of all such obligations. For
purposes of this Section, to the extent any Bonds are secured by
a Credit Facility and such Bonds are then rated in one of the two
highest rating categories (without regard to gradation) by either
Standard & Poor's Corporation or Moody's Investors Service, Inc.,
or successors and assigns, then the consent of the Credit Facility
Issuer shall be deemed to constitute the consent of the Registered
Owner of such Bonds and in such case no consent of the Registered
Owners of such Bonds shall be required; provided, however, a copy
of such amendment shall be provided to such rating agencies not
less than thirty (30) days prior to the effective date thereof.
Section 19. DEFEASANCE. If, at any time, the Issuer shall
have paid, or shall have made provision for payment of, the prin-
cipal, interest and redemption premiums, if any, with respect to
the 1991 Bonds, then, and in that event, the pledge of and lien on
the Net Revenues in favor of the Holders of the 1991 Bonds shall
be no longer in effect. For purposes of the preceding sentence,
deposit of Federal securities or bank certificates of deposit fully
secured as to principal and interest by Federal Securities in
irrevocable trust with a banking institution or trust company, for
the sole benefit of the Bondholders, in respect to which such
Federal Securities or certificates of deposit, the principal of
which, together with the income thereon, will be sufficient to make
timely payment of the principal, interest, and redemption premiums,
if any, on the outstanding 2991 Bonds, shall be considered
"provision for payment." Nothing herein shall be deemed to require
the Issuer to call any of the outstanding 1991 Bonds for redemption
prior to maturity pursuant to any applicable optional redemption
provisions, or to impair the discretion of the Issuer in deter-
mining whether to exercise any such option for early redemption.
35
WN W
Section 20. FEDERAL INCOME TAX COVENANTS_._
f`
(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 became 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 the gross income of the Registered
owner thereof for federal income tax purposes.
(C) The Issuer hereby covenants with the Registered
owners of each series of Bonds that it will comply with all
provisions of the Code necessary to maintain the exclusion of
interest on the Bonds from the gross income of the Registered owner
thereof for federal income tax purposes, including, in particular,
the payment of any amount required to be rebated to the U.S.
Treasury pursuant to the Code.
Section 21. GOVERNMENTAL REORGANIZATION. Notwithstanding any
other provisions of this Ordinance, this Ordinance shall not
prevent any lawful reorganization of the governmental structure of
the Issuer, including a merger or consolidation of the Issuer with
another public body or the transfer of the System to another public
body, provided that any reorganization which affects the System or
any transfer of the System shall provide that the System shall be
continued as a single enterprise and that any public body which
succeeds to the ownership and operation of the System shall also
assume all rights, powers, obligations, duties and liabilities of
the Issuer under this Ordinance and pertaining to all Bonds.
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 for one or more series
that shall enhance the security or the value of such Bonds. Such
covenants may be set forth in a resolution adopted prior to or
simultaneously with the sale of such Bonds and shall have the same
effect as if such covenants were set forth in full in this
Ordinance.
Section 23. SEVERABILITY.
nants, agreements, or provisions
contrary to any express provision
If any one or more of the cove-
of this Ordinance should be held
of law or contrary to the policy.
36
of express law, though not expressly prohibited, or against public
policy, or shall for any reason whatsoever be held invalid, then
such covenants, agreements or provisions shall be null and void and
shall be deemed separate from the remaining covenants, agreements
or provisions of this Ordinance or of the Bonds.
Section 24. SAL OF BONDS. 1991 Bonds shall be issued and
sold at public or private sale at such price or prices consistent
with the provisions of the Act and the requirements of this Ordi-
nance as the Issuer shall hereafter determine by ordinance or
resolution. If the 1991 Bonds are issued in installments, no 1991
Bonds shall be issued after issuance of the first installment
unless all requirements of Section 16 T of this Ordinance, relating
to Additional Parity obligations, are met.
SECTION 25. PRELIMINARY OFFICIAL STATEMENT. The distribution
of a Preliminary Official Statement relating to the 1991 Bonds is
hereby approved in such form and substance as 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 26. 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 27. EFFECTIVE DATE. This Ordinance shall become
effective immediately upon its enactment.
PASSED ON FIRST READING on August 1, 1991.
PASSED AND ENACTED by the City Commission of the City of
Clearwater, Florida, this 15th day of August. , 1991.
SEAL CITY F CLE WATER, FLORIDA
Mayor-Commissions
ATTEST:
L44"-E.-
Ci Clerk
Approved as to torm and
correctness:
L
City Attorney
37
ESCROW DEPOSIT AGREEMENT
op
THIS ESCROW DEPOSIT AGREEMENT, dated as of 1, 1991,
by and between the CITY OF CLEARWATER, FLORIDA (the "Issuer"), and
-1 f
Florida, a banking association organized under the laws of the
[State of Florida) [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 obli-
gations, hereinafter defined as "Refunded Bonds", as to which the
y Total Debt Service (as hereinafter defined) is set forth on
i Schedule A; and
t
WHEREAS, the Issuer has determined to provide for payment of
the Total Debt Service of the Refunded Bonds by depositing with the
i 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 Refunding Revenue Bonds,
Series 1991, as defined herein; and
WHEREAS, the execution of this Escrow Deposit Agreement and
full performance of the provisions hereof shall defease and
discharge the Issuer from the aforestated obligations;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the Issuer and the Escrow Holder agree
as follows:
i
SECTION 1. Definitions. As used herein, the following terms
} mean: c,
(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) "Call Date" shall have the same meaning as set forth in
the Redemption Resolution.
?. (d) "Bonds" means the $ City of Clearwater,
Florida, Gas System Revenue Bonds, Series 1991, issued under the
ordinance.
EXHIBIT "A"
(e) "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 and accrued interest on the
Refunded Bonds as they become due and payable.
(f) "Escrow Holder" means , having
its primary corporate trust office in , Florida, and
its successors and assigns.
(g) "Escrow Requirements" means, as of any date of
calculation, the sum of an amount in cash and principal amount of
Federal Securities in the Escrow Account which together with the
interest 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.
(h) "Federal Securities" means any bonds or other obligations
which as to principal and interest constitute direct obligations
of, or are unconditionally guaranteed by, the United States of
America, none of which permit redemption at the option of the
United States of America prior to the dates on which such Federal
Securities shall be applied pursuant to this Agreement.
(i) "Issuer" means the City of Clearwater, Florida, and its
successors and assigns.
(j) "Ordinance" means the ordinance adopted by the governing
body of the Issuer on , 1991, as amended and supple-
mented from time to time, authorizing issuance of the Bonds.
(k) "Redemption Resolutions means a resolution adopted by the
governing body of the Issuer which provides for redemption of
certain of the Refunded Bonds on the Call Date, irrevocably
instructs the Escrow Holder to give notice of such redemption, and
directs the paying agents for the Refunded Bonds to pay the
Refunded Bonds and the interest thereon upon surrender thereof at
maturity or on their Call Date whichever is earlier.
(1) ' "Refunded Bonds" means the remaining bonds outstanding
of the City of Clearwater, Florida, Gas Systein Revenue Bonds,
Series 1983.
(m) '"Total Debt Service" means the sum of the principal and
interest remaining unpaid with respect to the Refunded Bonds in
accordance with Schedule A attached hereto. 1
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 Arrevocable escrow
by the Escrow Holder separate and apart from other funds of the
2
-5 _//S - - el'(
v •
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
that such funds are derived from the net proceeds of the Bonds and
other lawfully available funds of the Issuer and 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 Agree-
ment for the sole benefit of the holders of the Refunded Bonds;
(b) to immediately invest $ of such funds
derived from the proceeds of the Bonds in the Federal Securities
set forth on schedule B attached hereto and to hold such securities
and $ of such funds in cash in accordance with the terms
of this Agreement;
(c) in the event the securities described on Schedule B
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
(d) there will be no investment of funds except as set forth
in this Section 3.
SECTION 4. Payment of Bonds and Ex enses.
(a) Refunded Bonds. On the dates and in the amounts set
forth on Schedule A, the Escrow Holder shall transfer to
the Paying Agent for the Refunded Bonds (the
"Paying Agent"), in immediately available funds, 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) Surplus. After making the payments from the Escrow
Account described in Subsection 4(a) above, the Escrow Holder shall
retain in the Escrow Account any remaining cash in the Escrow
Account in excess of the Escrow Requirement until the termination
of.,this Agreement, and shall then pay any remaining funds to the
Issuer for deposit to the Sinking Fund created in the Ordinance.
(c) Priority of Payments. The holders of the Refunded Bonds
shall have an express first lien on the funds and Federal
Securities in the Escrow Account until such funds and Federal
securities are used and applied as provided in this Agreement.
3
5//L? - 7/
SECTION 5. Reinvestment. (a) Except
3 and in this Section, the Escrow Holder
duty to invest any funds held under this
transfer or otherwise dispose of or make
Federal Securities held hereunder.
40
as provided, in Section
shall have no power or
Agreement or to sell,
substitutions of the
(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. 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 (i) 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 will 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.
SECTION 6. No Redemption or Acceleration of Maturity. Except
as set forth in the Redemption Resolution, the Issuer will not
accelerate the maturity of, or exercise any option to redeem before
maturity any Refunded Bonds.
SECTION 7. Responsibilities of Escrow Holder. The Escrow
Holder and its respective successors, assigns, agents and servants
shall not be held to any personal liability whatsoever, in tort,
contract, or otherwise, in connection with the execution and
delivery of this Agreement, the establishment of the Escrow
Account, the acceptance of the funds deposited therein, the
purchase of the Federal Securities, the retention of the Federal
Securities or the proceeds thereof or 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,
and in reliance upon the opinion of such counsel shall have full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it in good faith in accordance
4
5_/lC? - 9/
`w
therewith. Whenever the Escrow Holder shall deem it necessary or
desirable that a matter be proved or established prior to taking,
suffering or omitting any action under this Agreement, such matter
,may be deemed to be conclusively established by a certificate
signed by an authorized officer of the Issuer.
SECTION 8. Resignation of Escrow Holder. The Escrow Holder
may resign and thereby become discharged from the duties and obli-
gations 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 (50) days before such resignation shall take
effect. Such resignation shall not take effect until the
appointment of a new Escrow Holder hereunder.
SECTION 5. 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 provisions 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 out-
standing, or the holders of not less than five percentum (5%) 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 10. Successor Escrow Holder.
(a) If at any time hereafter the Escrow Holder shall resign,
be removed, be dissolved or otherwise become incapable of acting,
or shall be taken over by any governmental official, agency,
department or board, the position of Escrow Holder shall thereupon
become vacant. If the position of Escrow Holder shall become
5
vacant for any of the foregoing reasons or for any other reason,
the Issuer shall appoint an Escrow Holder to fill, such vacancy.
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 concurrent
instruments in writing, executed by either group of such bond-
holders 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 appoint-
ments made by the bondholders under this paragraph, the first
effective appointment made during the one year period shall govern.
(c) If no appointment of a successor Escrow Holder shall be
made pursuant to the foregoing provisions of this Section, the
holder of any Refunded Bonds then outstanding, or any retiring
Escrow Holder may apply to any court of competent jurisdiction to
appoint a successor Escrow Holder. Such court may thereupon, after
such notice, if any, as such court may deem proper and prescribe,
appoint a successor Escrow Holder.
SECTION 11. Pent to Escrow Holder. The Escrow Holder
hereby acknowledges that it has agreed to accept compensation under
the Agreement in the sum of $ , which the Issuer agrees to
pay on the date of delivery of the Bonds 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 City.
SECTION 12. 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.
SECTION 13. Sev_e_rability. 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, 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.
G
S //? ? ll
x
i
SECTION 14. 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 P.bL row Holder shall, at its option, be entitled to rely
exclusive.)l upon an 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.
SECTION 15. 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 16. Governing Law. This Agreement shall be construed
under the laws of the State of Florida.
7
5-/4 '?'/
NSF=, r
hh A' ' ,/
,i
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
correctness:
City Attorney
(SEAL)
ATTEST:
Title:
[ESCROW HOLDER]
By
Title:
8
s
.._ ?.. • ....,k;-wr?_. ..... v3..SL"1°^? luSfy?.?'.:C='4Ti fi????t?:?r .IM?y ??°JY?????! ?. °: ?L?'?f7ri.?`•?..?'. ¢?? .F'. ,'4.i..5 :. ?.3, ,
' •? .l.
Y
IT
SCHEDULEH 7`??1
i SCHEDULE OF FEDERAL SECURITIES `Sa
° (To be Provided)
f )i
,7 f., t ''
JFj
Xi
:r
1 E'
5 '4
!
rl
f
t
i
•
`ter... ,i? 'k??
rfA r=?:?'.v"; ??? t'A( "d ? ? •'?rA`.. .Ci" a 7-;. .----•r,........ww+r.?•+??:.-,T-?,.,srnwwrvWy?fww:4e?::.+?.i°w?J7r. _ :..a?
.,,?" ;r.,, :?aMa{ •??.? :.. ,`- t2• n'Y'?j'a:? hl n., i?•i r; :ir k 'i_ .4e - i, .. <..-t:. E....
77 ?d
..
1•• E ??
ei-
SCHEDULE A
"t SCHEDULE OF DEBT SERVICE
FOR
'i CITY OF CLEARWATER, FLORIDA
GAS SYSTEM REVENUE BONDS
. 4
SERIES 1983
' TOTAL
DATE DUE PRINCIPAL PREMIUM INTEREST DEBT SERVICE
.i
c .
E
-: i
4 ;t
i
t,
1 •
1
e
r
t? }
t
t
1
.
;
i
f
Aw
i
r
r
5 ?
,
'
e
'
+1 ' ,
ms.
. ,
nt3 ?
f
t ,ar
E
b?
a
4
7
i