Ordinance No. 15-04-10ORDINANCE NO. 15-04-10
AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA,
SUPPLEMENTING ORDINANCE NO. 15-95-7, ENACTED BY THE
CITY COMMISSION ON NOVEMBER 13, 1995, AS
SUPPLEMENTED BY ORDINANCE NO. 15-96-8, ENACTED ON
MARCH 11, 1996; PROVIDING FOR THE REFUNDING OF A
PORTION OF THE CITY'S OUTSTANDING UTILITIES SYSTEM
REVENUE BONDS, SERIES 1996; AUTHORIZING THE ISSUANCE
OF NOT EXCEEDING $20,000,000 UTILITIES SYSTEM REVENUE
REFUNDING BONDS, SERIES 2004, TO FINANCE THE COST
THEREOF; PROVIDING FOR THE PAYMENT OF SUCH BONDS
FROM THE PLEDGED REVENUES ON A PARITY WITH THE CITY'S
OUTSTANDING UNREFUNDED PORTION OF THE 1996 BONDS;
PROVIDING FOR THE USE AND APPLICATION OF THE PLEDGED
REVENUES; PROVIDING FOR THE RIGHTS AND REMEDIES OF,
AND MAKING CERTAIN COVENANTS AND AGREEMENTS WITH,
THE REGISTERED OWNERS OF SUCH BONDS; AMENDING THE
ORIGINAL ORDINANCE IN CERTAIN RESPECTS; PROVIDING FOR
THE SALE OF THE BONDS AT NEGOTIATED SALE; APPROVING
THE USE OF A PRELIMINARY OFFICIAL STATEMENT IN
CONNECTION WITH THE SALE OF THE BONDS; AUTHORIZING
THE DELIVERY OF A FINAL OFFICIAL STATEMENT;
AUTHORIZING AN UNDERTAKING TO PROVIDE CONTINUING
DISCLOSURE WITH RESPECT TO THE BONDS; PROVIDING FOR
THE DELEGATION TO THE CITY MANAGER OF THE AUTHORITY
TO AWARD AND DELIVER THE BONDS TO THE UNDERWRITER
WITHIN CERTAIN PARAMETERS SET FORTH HEREIN; AND
PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COMMISSION AND ON BEHALF OF THE
PEOPLE OF THE CITY OF ATLANTIC BEACH, FLORIDA:
ARTICLE I
STATUTORY AUTHORITY; DEFINITIONS, AND FINDINGS
SECTION 1.01. AUTHORITY FOR THIS ORDINANCE. This Ordinance is
enacted pursuant to the provisions of Chapter 166, Part II, Florida Statutes, the
Bond Ordinance (as herein defined); and other applicable provisions of law (the
"Act"), and is supplemental to the Bond Ordinance.
SECTION 1.02. DEFINITIONS. Capitalized terms used in this Ordinance, shall
have the following meanings, unless the context clearly requires otherwise. Words
importing singular number shall include the plural number in each case and vice
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versa, and words of one gender shall be deemed to include the other genders. In this
Ordinance:
"Act" shall mean Chapter 166, Florida Statutes; the Original Ordinance; and
other applicable provisions of law.
"Accounting Principles" means generally accepted accounting principles and
practices applicable to governmental entities, including those applicable to
governmentally owned and operated utility systems such as the System.
"Additional Parity Bonds" means any obligations hereafter issued pursuant to
the terms and conditions of the Ordinance and payable from the Pledged Revenues
on a parity with the outstanding Parity Bonds and the 2004 Bonds issued under
this Ordinance.
"Administrative Expenses" means the expenses of the various departments of
the City properly allocable to the System, as the case may be, under Accounting
Principles.
"Amortization Installment" shall mean, with respect to each maturity of Term
Bonds, the principal amounts (or Compounded Amounts) of such Term Bonds to be
retired in consecutive years by mandatory redemption from the applicable Bond
Amortization Account within the Sinking Fiend or, in the year in which such Term
Bonds are stated to mature, through payment at maturity, provided that (i) each such
installment shall be deemed to be due on the Interest Payment Date or Principal
Maturity Date of each applicable year and (ii) the aggregate of such installments for
each maturity shall equal the aggregate principal amount (or, if applicable, the
Compounded Amounts at maturity) of Term Bonds of such maturity delivered on
original issuance.
"Annual Information" has the meaning specified in Section 5.04(B) of the
Original Ordinance.
"Authorized Investments" means any obligations, deposit certificates, or other
evidences of indebtedness legal for the investment of funds of the City pursuant to the
laws of the State, subject to such restrictions or limitations thereon as may be
imposed by ordinance or resolution of the City (including any formal investment
policy established by the City) or by the terms of any Credit Facility.
"Banking Institution" mans a bank or trust company incorporated and doing
business under the laws of the United States (including laws relating to the District of
Columbia) or of any State, a substantial part of the business of which consists of
receiving deposits and making loans and discounts, or of exercising fiduciary powers
similar to those permitted to national banks under authority of the Comptroller of the
Currency, and which is subject by law to supervision and examination by State or
Federal authority having supervision over banking institutions.
"Bond Counsel" shall mean a firm of attorneys which is nationally recognized
as being experienced in matters relating to the validity of, and the state and federal
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income tax treatment of interest on, obligations of states and their political
subdivisions and whose opinions are generally accepted by purchasers of such
obligations, as selected by the City.
"Bond Registrar" shall mean the Banking Institution designated by the City to
maintain the registration books required to be maintained hereunder and to serve as
Paying Agent for purposes of making payments of principal of and interest on the
Bonds to the Registered Owners; provided that such Banking Institution shall have
trust powers.
"Bond Year" means the period beginning on the day immediately following each
Principal Maturity Date and ending on the next succeeding Principal Maturity Date
or any other annual period designated by the City.
"Bonds" shall mean, collectively, the outstanding Parity Bonds, the 2004
Bonds and any Additional Parity Bonds issued pursuant to the terms and
conditions of the Ordinance.
"Budgeted Renewal and Replacement Amount" means the amount specified in
the annual budget of the City to be necessary to be deposited into the Renewal and
Replacement Fund so that there shall be on deposit in such fund at the beginning
of the subsequent Fiscal Year an amount equal to the Renewal and Replacement
Fund Requirement.
"Business Day" means any day of the year on which banks in the City in
which the Paying Agent is located, are not required or authorized by law to remain
closed, and on which the Paying Agent and the New York Stock Exchange, Inc. are
open for business.
"Capital Facilities Charges" means any impact fees or charges which are
related to acquiring, constructing, equipping or expanding capacity and Facilities of
the System, including, but not limited to, excess capacity relating to the Facilities of
the System not used by then current consumers, if any, existing at the time of the
City's original acquisition of all or any portion of the System, and which are levied or
collected by the City on or from any governmental body, utility company, real estate
developer, or other Person, for the purpose of reserving capacity in the System,
connecting to the System, or paying or reimbursing any capital cost relating to such
acquisition, construction, expansion or equipping of excess and unused capacity of
the System or any expansion thereof, but excluding: (1) amounts received from the
sale of water or reuse water (2) amounts received for the treatment, acceptance or
disposal of wastewater; (3) meter installation fees and regular connection charges
not described above; and (4) other revenues constituting operating revenues (as any
of the foregoing items are more particularly described by the City with respect to the
System); in each case to the extent the same are lawfully available for the
acquisition and construction of Expansion Facilities and for the payment of Capital
Facilities Charges Debt Service Components.
"Capital Facilities Charges Debt Service Component" means, as of any
particular date of calculation, for any Series of Bonds, the dollar amount of Capital
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Facilities Charges determined by (1) multiplying the aggregate Debt Service
Requirements for such Series by the applicable Expansion Percentage, and (2)
subtracting from the product so obtained all amounts previously transferred from the
Capital Facilities Charges Fund to the applicable Sinking Fund, including the Bond
Amortization Accounts therein, pursuant to the provisions of Section 3.03 hereof.
"City" shall mean the City of Atlantic Beach, Florida, a municipal corporation
of the State.
"Code" shall mean the Internal Revenue Code of 1986, as amended, together
with the valid and applicable regulations and proposed and temporary regulations
thereunder, and, if applicable, under the Internal Revenue Code of 1954, as
amended, as the same may be in effect or amended from time to time, and any
successor provisions thereto.
"Commission" shall mean the City Commission, as the governing body of the
City.
"Compounded Amounts" shall mean, with respect to any Compounding
Interest Bonds, the amounts representing principal and interest on such
Compounding Interest Bonds from time to time at and prior to the maturity thereof in
accordance with a schedule of such amounts delivered at the original issuance of
such Bonds.
"Compounding Interest Bonds" shall mean Bonds, the interest on which (1)
shall be compounded periodically, (2) shall be payable only at maturity or redemption
prior to maturity, and (3) shall be determined by reference to the Compounded
Amounts.
"Consulting Engineers" shall mean such independent, qualified, and recognized -
consulting engineers, having a favorable reputation for skill and experience in the
planning, construction, operation and financial feasibility of facilities similar to that of
the System, at the time retained by the City to perform the acts and carry out the
duties as herein provided for such Consulting Engineers.
"Credit Facility" shall mean each policy of municipal bond insurance, an
irrevocable letter of credit, surety bond or other insurance or financial product which
guarantees timely payment of all or any portion of the principal of, premium, if any,
and interest on all or any portion of the Bonds.
"Credit Facility Issuer" shall mean each insurance company, bank, or other
organization which has provided a Credit Facility in connection with the issuance of
any Series of Bonds or any particular Bonds within a Series. A Credit Facility Issuer
of a Reserve Account Credit Facility must be an insurance company rated in the
highest rating category by any Rating Agency (and, if applicable, by A.M. Best &
Company) having a rating in effect as to such insurance company.
"Current Interest Paying Bonds" shall mean Bonds, the interest on which shall
be payable on a periodic basis.
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"Debt Service Requirement" shall mean, for any Bond Year, as applied to the
Bonds of any Series, the sum of:
(1) the amount required to pay the interest becoming due on the
Current Interest Paying Bonds during such Bond Year;
(2) the aggregate amount required to pay the principal becoming due
on Current Interest Paying Bonds for such Bond Year; provided that, for
purposes of this definition the stated maturity date of any Current Interest
Paying Term Bonds shall be disregarded and the Amortization Installments
applicable to such Current Interest Paying Term Bonds in such Bond Year
shall be deemed to mature in such Bond Year; and (3) the aggregate amount
required to pay the Maturity Amounts due on any Compounding Interest
Bonds maturing in such Bond Year; provided that for purposes of this
definition, the stated maturity date of any Compounding Interest Term Bonds
shall be disregarded and the Amortization Installments applicable to such
Compounding Interest Term Bonds in such Bond Year shall be deemed to
mature in such Bond Year.
In calculating the Debt Service Requirement for any period for any Series of
Bonds, the City shall deduct from the amounts calculated in subparagraphs (1)
through (3) above: (a) any capitalized interest deposited into the applicable accounts
of the Sinking Fund for such period from the proceeds of the sale of such Bonds or
otherwise and (b) any Investment Earnings (i) received on moneys on deposit in or
transferred to the Sinking Fund and accounts established therein with respect to
such Series and (ii) required by the terms of the Ordinance to be retained in such
Sinking Fund.
"Defeasance Obligations" means:
(1) Federal Securities;
(2) obligations described in Section 103(a) of the Code, provision for the
payment of the principal of, premium, if any, and interest on which shall have been
made by the irrevocable deposit with a Banking Institution (which is a member of the
FDIC and which has a combined capital, surplus and undivided profits of not less
than $25,000,000) acting as a trustee or escrow agent for holders of such obligations,
of securities described in clause (1) above, the maturing principal of and interest on
which, when due and payable,, will provide sufficient moneys, without reinvestment,
to pay when due the principal of, premium, if any, and interest on such obligations,
and which securities described in clause (1) above are not available to satisfy any
other claim, including any claim of the trustee or escrow agent or of any person
claiming through the trustee or escrow agent or to whom the trustee or escrow agent
may be obligated, including in the event of the insolvency of the trustee or escrow
agent or proceedings arising out of such insolvency and which are rated "Aaa" by
Moody's and "AAA" by S&P; and
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(3) Such other obligations as shall be permissible for defeasance of any
Bonds pursuant to the Credit Facility in effect with respect to such Bonds.
"Escrow Deposit Agreement" means the agreement between the City and the
Escrow Holder, in form and substance approved by the City Manager at or prior to the
time of issuance of the 2004 Bonds, and providing for the deposit of a portion of the
proceeds of the 2004 Bonds in trust with the Escrow Holder for the purpose of making
payment of the principal, premium, if any, and interest on the Refunded Bonds.
"Escrow Holder" means the bank or trust company as the City Manager may
designate which may be located within or without the State to be selected prior to the
time of issuance of the 2004 Bonds to hold a portion of the proceeds of the sale of the
2004 Bonds in trust pursuant to the provisions of the Escrow Deposit Agreement and
to be applied to pay the principal of, premium, if any, and interest on the Refunded
Bonds.
"Expansion Facilities" means additions, extensions and improvements to the
System, together with all lands or interests therein, including plants, buildings,
machinery, pipes, mains, fixtures, equipment, franchises, rights to water, wastewater
or reuse water service and all property, real or personal, tangible or intangible,
heretofore or hereafter constructed or acquired in order to meet the increased
demand upon the System, whether actual or anticipated, created by new users
connecting to the System.
"Expansion Percentage" means, with respect to any Series of Bonds, the
fraction equal to that portion of the total aggregate Debt Service Requirements for
such Series that is attributable to Expansion Facilities, if any, as shall be determined
by the Independent Consultant.
"Event of Default" has the meaning set forth in Section 5.02 of the Original
Ordinance.
"Facilities" shall mean all of the physical assets of the System, and all parts
thereof, existing at the time of the adoption of this Ordinance, and also any physical
assets which may thereafter be added to the System, or any part thereof, by any
additions, replacements, betterments, extensions, improvements thereto; and
property of any kind or nature, real or personal, tangible or intangible, hereafter
constructed or acquired in connection with the System.
"Federal Securities" shall mean direct noncallable obligations of the United
States of America or obligations the timely payment when due of the principal of and
interest on which is fully and unconditionally guaranteed by the United States of
America.
"Financial Advisor" means an investment banking or financial advisory firm
which is nationally recognized as being experienced in financial matters related to
states and their political subdivisions, as selected by the City.
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"Fiscal Year" shall mean the. period commencing on October 1 of each year
and ending on the succeeding September 30, or such other period as may be
prescribed from time to time as the fiscal year for the City.
"Funds and Accounts" means the Revenue Fund, the Sinking Fund, (and
accounts therein), the Renewal and Replacement Fund, the Rate Stabilization Fund,
and the Project Fund all created pursuant to Section 3.03(A) of the Original
Ordinance.
"Gross Revenues" means all fees, rentals or other charges or other income
received by the City in connection with the System, or accruing to the City or to any
other board or agency of the City in control of the management and operation of the
System, all as calculated in accordance with Accounting Principles. Gross Revenues
include, without limitation, Investment Earnings on moneys in all funds and
accounts herein created or authorized, except any Project Fund and the Rebate Fund,
to the extent that Investment Earnings are required to be deposited into the Revenue
Fund herein created. Gross Revenues do not include Capital Facilities Charges,
Special Assessments, or Investment Earnings on either thereof.
"Independent Certified Public Accountants" shall mean such firm of certified
public accountants, not in the regular employ of the City, as shall be retained by the
City for the purpose of auditing the books and records relating to the Pledged
Revenues and performing such other functions as are specified in the Ordinance.
"Independent Consultant" shall mean such firm or firms, consisting of or
employing, registered professional engineers, architects, rate consultants, or other
professionals having a favorable reputation for the design, maintenance and operation
of facilities such as the System, not in the regular employ of the City, engaged by the
City to perform the tasks set forth to be performed by such Independent Consultant by
the provisions of the Ordinance or by other official action of the City, and shall
include, where applicable, the Consulting Engineers.
"Interest Payment Date" shall mean, with respect to any Series of Bonds, the
semiannual or other periodic dates on which interest is payable on the Current
Interest Paying Bonds, as determined by subsequent resolution of the Commission
adopted at or prior to the time of issuance of such Bonds.
"Investment Earnings" shall mean the interest, dividends, and the net of the
capital gains and losses received from the investment, purchase, and sale of
Authorized Investments held in, the various funds and accounts established pursuant
to the Ordinance.
"Issuance Expenses" means the fees and costs paid in connection with the
authorization, sale, and issuance of any Series of Bonds. Issuance Expenses include,
but are not necessarily limited to: (1) the fees and expenses of the Financial Advisor,
Bond Counsel and the Consulting Engineer related to (a) the preparation of the
preliminary and final Official Statements; (b) preparation of the Ordinance, and other
ordinances and resolutions supplemental hereto or in connection herewith; (c)
preparation of financing plans; (d) fees of investment bankers; (e) fees of verification
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agent; and (f preparation of the Engineer's Report, if any; (2) the cost of obtaining a
rating on such Bonds from a Rating Agency; (3) the cost of printing and distributing
the Official Statement for such Bonds; (4) the cost of printing and delivery of such
Bonds; and (5) the cost of obtaining consents and legal opinions necessary in
connection with the delivery of such Bonds. Issuance Expenses do not include (1)
amounts deposited into the Reserve Account; (2) the premium for any Credit Facility;
(3) discount upon the sale of Bonds; or (4) capitalized interest on Bonds, if any.
"Maximum Debt Service Requirement" shall mean, as of any particular date of
calculation, the Debt Service Requirement for the then current or any future Bond
Year which is greatest in dollar amount with respect to any particular Series of
Bonds, or all Bonds, as the case may be.
"MSRB" means the Municipal Securities Rulemaking Board.
"Net Revenues" means the Gross Revenues remaining after deducting only
Operating Expenses. Moneys deposited into the Rate Stabilization Fund shall be
excluded from Gross Revenues for the purposes of calculating Net Revenues
hereunder for the Fiscal Year in which such transfer into the Rate Stabilization Fund
occurs. Moneys on deposit in the Rate Stabilization Fund may be withdrawn at any
time and redeposited into the Revenue Fund, and such moneys shall be included in
Gross Revenues for the purpose of calculating Net Revenues for the Fiscal Year in
which such redeposit into the Revenue Fund occurs.
"NRMSIR" means a nationally -recognized municipal securities information
repository designated by the SEC for purposes of the Rule.
"Operating Expenses" means the current expenses, paid or accrued, of
operation, maintenance and repair of the System and its Facilities determined in
accordance with Accounting Principles. Operating Expenses include, without limiting
the generality of the foregoing, (i) Administrative Expenses, (ii) insurance premiums,
(iii) charges for the accumulation of appropriate reserves not annually recurrent but
which are such as may . reasonably be expected to be incurred in accordance with
Accounting Principles, and (iv) the cost of product and services purchased by the City
for resale to customers of the System in lieu of the production of such product and
services by the City directly. "Operating Expenses" shall not include any allowance for
depreciation, amortization or other similar non-cash expenses, except to the extent
expressly provided herein. In determining Operating Expenses, there shall not be
taken into account: (a) any gain or loss resulting from either the extinguishment or
refinancing of any Series of Bolds or other long-term indebtedness; (b) loss from the
sale; exchange or other disposition of capital assets not made in the ordinary course
of business; and (c) any capital expenditures for renewal, replacement, expansion or
acquisition of capital assets (including any deposits or reserves therefor).
"Ordinance" means, collectively, the Original Ordinance, this Ordinance, and
any ordinance and resolution amendatory hereof or supplemental hereto.
"Original Ordinance" shall mean Ordinance No. 15-95-7 enacted by the City
Commission on November 13, 1995, as supplemented by Ordinance No. 15-96-8,
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enacted on March 11, 1996, as supplemented.
"Outstanding" shall mean as applied to Bonds, as of any applicable time, all
Bonds which have been authenticated and delivered, or which are being delivered,
under the Ordinance, except:
(1) Bonds cancelled upon surrender, exchange or transfer, or
cancelled after purchase in the open market or because of payment at or
redemption prior to maturity;
(2) Bonds, or portions thereof, which are considered no longer
Outstanding pursuant to Section 6.04 of the Original Ordinance;
(3) Bonds, or portions thereof, which are deemed paid upon the
redemption or maturity thereof for which moneys sufficient to pay the maturity
amount or redemption price thereof have been deposited into the appropriate
accounts of the Sinking Fund by the City or in lieu of which other Bonds have
been issued under Section 2.06 or 2.07 hereof.
For purposes of voting, giving directions and granting consents, Bonds held by the
City or by an agent of the City shall not be deemed Outstanding.
"Parity Bonds" shall mean the unrefunded portion of the City's outstanding
Utility System Revenue Bonds, Series 1996.
"Person" or words importing persons shall mean firms, associations,
partnerships (including without limitation, general and limited partnerships), joint
ventures, societies, estates, trusts, corporations (including limited liability
corporations), public or governmental bodies, other legal entities and natural persons.
"Pledged Revenues" means (a) the
Charges, (c) the moneys on deposit in the
Earnings, and (e) the Special Assessments.
Net Revenues, (b) the Capital Facilities
Funds and Accounts, (d) the Investment
"Principal Maturity Date" shall mean, with respect to any series of Bonds, the
annual or other periodic date on which (i) principal matures on the Current Interest
Paying Bonds and (ii) Compounded Amounts are payable on Compounding Interest
Bonds, as determined by subsequent resolution of the Commission adopted at or
prior to the issuance of Bonds, and in each case including applicable dates on which
Amortization Installments are required to be applied to retire Term Bonds.
"Prohibited Payment" shall mean a payment, or an agreement to pay, to a
Person other than the United States of America, an amount that is otherwise
required to be paid to the United States of America through a transaction or series of
transactions that reduces the amount earned on an investment or deposit or that
results in a smaller profit or a larger loss on such investment or deposit than would
have resulted in an arm's length transaction in which yield on Bonds was not
relevant to either party to such investment or deposit.
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"Rating Agency" shall mean Fitch Investors Service, L.P. ("Fitch"), Moody's
Investors Service, Inc. ("Moody's"), or Standard and Poor's Ratings Services ("S&P") or
any thereof and their successors, if any is then maintaining a rating on any Series of
Bonds.
"Record Date" shall mean, for any Series, the fifteenth day of the month prior
to an Interest Payment Date for such Bonds, or such other date as may be specified
by subsequent resolution of the Commission.
"Redemption Date" shall mean, for any Bonds, the date specified on which
such Bonds are to be redeemed prior to the maturity thereof, whether at the option of
the City or by operation of the applicable Bond Amortization Account in the Sinking
Fund.
"Refunded Bonds" means a portion of the Utility System Revenue Bonds, Series
1996, dated March 1, 1996, outstanding at the time of issuance of the 2004 Bonds in
the principal amount of approximately $18,700,000,
"Refunding" means the program for refinancing the Refunded Bonds through
the issuance of the Series 2004 Bonds.
"Refunding Costs" - means but shall not necessarily be limited to: the cost of
payment of the principal of, premium, if specified, and interest on the Refunded
Bonds; expenses for estimates of costs and of revenues; the fees of fiscal agents,
financial advisors and consultants; administrative expenses; interest on the 2004
Bonds for a reasonable period of time after the date of delivery thereof; reasonable
reserves for the payment of Debt Service; discount upon the sale of the Series 2004
Bonds; the cost of purchasing any Credit Facility or Reserve Account Credit Facility;
Issuance Expenses; and such other expenses as may be necessary or incidental to the
financing authorized by this Ordinance, to the Refunding, and to the accomplishing
thereof; and reimbursement to the City for any sums expended for the foregoing
purposes in anticipation of the issuance of the 2004 Bonds.
"Registered Owner" or "Owner" shall mean any Person who shall be the owner
of any Outstanding Bond or Bonds as shown on the registration books maintained by
the Bond Registrar.
"Renewal and Replacement Fund Requirement" means an amount, determined
as of the beginning of each Fiscal Year, equal to (a) the lesser of (1) five percent (5%)
of the Gross Revenues received by the City in the immediately preceding Fiscal Year;
or (2)(a) $500,000, or (b) such other amount as shall be certified in writing by the
Consulting Engineers as necessary and desirable to provide immediately available
funds to pay capital costs of the System.
"Reserve Account Credit Facility" shall mean a policy of insurance, an
irrevocable letter of credit, surety bond or other insurance or financial product which
provides for payment of amounts equal to all or a portion of the, Reserve Account
Requirement in the event of an insufficiency of moneys in the Sinking Fund to pay
principal of and interest on any Series or installment of the Bonds, and which meets
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the criteria set forth in Section 3.03(G) of the Original Ordinance and shall include
any agreement between the City and the Credit Facility Issuer with respect to the
repayment of amounts advanced under any Reserve Account Credit Facility.
"Reserve Account Credit Facility Costs" shall mean the amounts the City is
required to pay to the Credit Facility Issuer as a result of a draw under a Reserve
Account Credit Facility or otherwise pursuant to such Reserve Account Credit Facility
or any related agreement.
"Reserve Account Credit Facility Coverage" shall mean the amount then
available to be paid to the Paying Agent under the terms of the Reserve Account
Credit Facility at any particular time.
"Reserve Account Requirement" means the lesser of (1) the Maximum Debt
Service Requirement for the Bonds then Outstanding, or (2) the maximum amount
allowed as a reasonably required reserve or replacement fund under Section 148 of
the Code.
"Reserve Account Value" shall mean the aggregate of the Reserve Account
Credit Facility Coverage and the value of moneys and Authorized Investments
credited to the Reserve Account. The values of such Authorized Investments are to be
calculated as provided herein.
"Rule" means Rule 15c2-12, as amended from time to time, promulgated by the
SEC.
"SEC" means the Securities and Exchange Commission.
"Serial Bonds" shall mean any Current Interest Paying or Compounding
Interest Bonds for the payment of the principal of which, at the maturity thereof, no
fixed mandatory sinking fund or bond redemption deposits are required to be made
prior to the 12 -month period immediately preceding the stated date of maturity of
such Serial Bonds.
"Series" shall mean a series of Bonds.
"SID" means an information depository designated from time to time by the
State.
"Sinking Fund" means_ the fund authorized, created, and established pursuant
to the provisions of Section 3.03(A) of the Original Ordinance.
"Special Assessments" means all the proceeds derived from special assessments
to be levied against the lands and real estate within the City to be specially benefited
by any Project, including interest and penalties on such assessments and any moneys
received upon the sale of tax certificates with respect to such lands and real estate
and upon the foreclosure of the liens of such assessments, to the extent that the City
has covenanted to deposit the proceeds received from the levy and collection of such
special assessments into the Special Assessment Fund for the payment of any Series;
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provided, however, that for purposes of the rate covenant set forth in Section 5.01(A)
and the test for the issuance of Additional Parity Bonds set forth in Section 5.01(G),
Special Assessments shall only include those Special Assessments which are (1) levied
on developed property, (2) collected pursuant to the uniform method pursuant to
Section 197.3632, Florida Statutes, and (3) in the aggregate, according to the final
assessment roll, are not greater than one-tenth (1/ 10) of the total assessed value of all
property against which such Special Assessments are levied.
"Specified Events" has the meaning set forth in Section 5.04(C) hereof.
"State" means the State of Florida.
"Stormwater System" means the facilities for the collection and drainage of
stormwater now owned, operated and maintained by the City, together with any and
all improvements, extensions and additions thereto, hereafter constructed or acquired,
together with all lands or interests therein, including plants, buildings, machinery,
franchises, pipes, mains, fixtures, equipment, and all property, real or personal,
tangible or intangible, now or hereafter owned or used in connection therewith.
"Subordinated Bonds" shall mean any obligations issued by the City and
payable from the Pledged Revenues subject and subordinate to the rights of the
Registered Owners of any Bonds issued pursuant to this Ordinance as to security for
payment from such Pledged Revenues and in all other respects, in accordance with the
provisions of this Ordinance.
"System" shall mean the combined and consolidated water and sewer system
now- owned, operated and maintained by the City, together with any and all
improvements, extensions and additions thereto, hereafter constructed or acquired,
together with all lands or interests therein, including plants, buildings, machinery,
franchises, pipes, mains, fixtures, equipment, and all property, real or personal
tangible or intangible, now or hereafter owned or used in connection therewith.
"Tax Compliance Certificate" means, with respect to any Series, the certificate
executed by an officer of the City responsible for the issuance of the Series, delivered
in connection with the issuance of such Series, relating to compliance by the City
with the requirements of the Code applicable to such Series, including any
investment instructions attached to such certificate.
"Term Bonds" shall mean the Current Interest Paying or Compounding Interest
Bonds all of which shall be stated to mature on one date and which shall be subject
to retirement by operation of the applicable Bond Amortization Account in the Sinldng
Fund herein established.
"Variable Rate Bonds" shall mean Bonds, the interest rate on which is subject
to adjustment at such times and in such manner as shall be determined prior to the
sale thereof.
"2004 Bonds" means the 2004 Bonds issued under the Original Ordinance and
this Ordinance.
4182 -0 -Ordinance 12
SECTION 1.03. INTERPRETATION. Any reference herein to the City, to the
Commission or to any member or officer of either, includes entities or officials
succeeding to their respective functions, duties or responsibilities pursuant to or by
operation of law or lawfully performing their functions.
Unless context clearly indicates otherwise, any reference to a section or
provision of the Constitution of the State or the Act, or to a section, provision or
chapter of the Laws of Florida or the United States of America, includes that section,
provision or chapter as amended, modified, revised, supplemented or superseded
from time to time; provided, that no amendment, modification, revision, supplement
or superseding section, provision or chapter shall be applicable solely by reason of
this provision, if it constitutes in any way an impairment of (1) the rights or
obligations of the City, its officers and employees, the members of the Commission of
the City, the Registrar, the Paying Agent, the Registered Owners, or any Credit
Facility Issuer; (2) the Bonds; or (3) any other instrument or document entered into in
connection .with any of the foregoing.
Unless the context indicates otherwise, words importing the singular number
include the plural number, and vice versa; the terms "hereof," "hereby," "herein,"
"hereto," "hereunder" and similar terms refer to this Ordinance; and the term
"hereafter" means after and the term "heretofore" means before the date of this
Ordinance.
SECTION 1.04. FINDINGS. It is hereby ascertained, determined, and declared
as follows:
(A) The City now owns, operates and maintains the System and derives and
will continue to derive revenues from rates, fees, and charges imposed and collected
for the services of the System.
(B) The City has previously enacted the Original Ordinance which
authorized improvements to the System and the Stormwater System and authorized
the issuance of the Refunded Bonds and the outstanding Parity Bonds.
(C) The City currently has outstanding the Refunded Bonds in the principal
amount of approximately $18,700,000.
(D) It is necessary and desirable and in the best interests of the City that the
City provide for the payment ,_of the Refunded Bonds by the issuance of the 2004
Bonds.
(E) It is in the best interest of the health, safety, and welfare of the City and
the inhabitants thereof that the City pledge the Pledged Revenues to the repayment of
the Bonds and the outstanding Parity Bonds, and the Pledged Revenues are not
currently pledged and encumbered in any manner other than to the outstanding
Parity Bonds and the Refunded Bonds, the lien on the Pledged Revenues of the
Refunded Bonds will be defeased and released upon the issuance of the 2004 Bonds.
4182 -0 -Ordinance 13
(F) The Pledged Revenues are estimated to be sufficient to pay all principal
of and interest on the outstanding Parity Bonds and the 2004 Bonds, as the same
become due, and to make all required sinking fund, reserve or other payments
required by this Ordinance.
SECTION 1.05. ORDINANCE CONSTITUTES A CONTRACT. In consideration
of the issuance of any Credit Facility or Reserve Account Credit Facility and in
consideration of the acceptance of the Bonds authorized to be issued hereunder by
those who shall be the Registered Owners of the same from time to time, the
Ordinance shall be deemed to be and shall constitute a contract between the City and
the Credit Facility Issuer and such Registered Owners, and the covenants and
agreements herein set forth to be performed by the City shall be for the equal benefit,
protection, and security of the Credit Facility Issuer and the Registered Owners of any
and all such 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 or herein.'
SECTION 1.06. ORDINANCE CAPTIONS AND HEADINGS. The captions and
headings in this Ordinance are solely for convenience of reference and in no way
define, limit or describe the scope or intent of any articles, sections, subsections,
paragraphs, subparagraphs or clauses hereof.
4182 -0 -Ordinance 14
ARTICLE II
AUTHORIZATION OF REFUNDING, AUTHORIZATION,
DESCRIPTION, DETAILS AND FORM OF BONDS
SECTION 2.01. AUTHORIZATION OF REFUNDING. The refunding of the
Refunded Bonds is hereby specifically authorized.
SECTION 2.02. AUTHORIZATION OF BONDS. Subject and pursuant to the
provisions of this Ordinance, obligations of the City to be known as "Utilities System
Revenue Refunding Bonds, Series 2004" are hereby authorized to be issued in the
aggregate principal amount of not exceeding Twenty Million Dollars ($20,000,000) for
the purpose of financing the Refunding.
SECTION 2.03. DESCRIPTION OF BONDS. The Bonds shall be numbered;
shall be in such denominations or maturity amounts; shall be dated as of the date of
their delivery or such other date prior to the date of their delivery; shall bear interest
at not exceeding the maximum rate allowed by law; payable on such dates; shall
mature on the first day of such month, in such years, not to exceed forty (40) years
from the date thereof, and in such amounts; and shall be issued as Current Interest
Paying Bonds, Compounding Interest Bonds, Variable Rate Bonds, Serial Bonds,
Term Bonds, or any combination thereof; all the foregoing as shall be determined by
subsequent action of the City Manager at or prior to the time of sale of the Bonds.
The Bonds shall be issued in fully registered form; shall be payable with
respect to principal at the office of the Bond Registrar, as Paying Agent, or such other
Paying Agent as shall be subsequently determined by the City; shall be payable in
lawful money of the United States of America; and shall bear interest from their date,
or from the most recent date to which interest has been paid, payable, in the case of
Current Interest Paying Bonds, by check or draft mailed on each Interest Payment
Date to the Registered Owner at his address as it appears upon the books of the Bond
Registrar as of 5:00 P.M. Eastern Time on the Record Date, and in the case of
Compounding Interest Bonds, at maturity upon presentation at the office of the Bond
Registrar; provided that, for any Registered Owner of one million dollars ($1,000,000)
or more in principal amount of Bonds, such payment shall, at the written request and
expense of such Registered Owner, be made by wire transfer to a Banking Institution
or by such other medium acceptable to the City and to such Registered Owner.
SECTION 2.04. EXECUTION OF BONDS. The Bonds shall be executed in the
name of the City by the Mayor or Vice -Mayor, and countersigned and attested by the
City Clerk or Deputy Clerk and the corporate seal of the City or Commission or
facsimile thereof shall be affixed thereto or reproduced thereon. The signatures of the
Mayor or Vice -Mayor and the City Clerk or Deputy Clerk may be manual or facsimile
signatures imprinted or reproduced thereon.
There shall be a Certificate of Authentication of the Bond Registrar on the
Bonds, and no Bond shall be valid or obligatory for any purpose or be entitled to any
security or benefit under the provisions of this Ordinance unless such certificate shall
4182 -0 -Ordinance 15
have been duly executed on such Bond. The authorized signature for the Bond
Registrar shall be either manual or in facsimile, provided, however, that at least one
of the above signatures, including that of the authorized signature for the Bond
Registrar, appearing on the Bonds shall be a manual signature.
In case any one or more of the officers who shall have signed or sealed any of
the Bonds shall cease to be such officer of the City before the Bonds so signed and
sealed shall have been actually sold and delivered, such Bonds may nevertheless be
sold and delivered as herein provided and may be issued as if the person who signed
or sealed such Bonds had not ceased to hold such office. Any Bond may be signed
and sealed on behalf of the City by such person is at the actual time of the execution
of such Bond shall hold the proper office in the City, although at the date of such
Bonds such person may not have held such office or may not have been so
authorized.
SECTION 2.05. NEGOTIABILITY AND REGISTRATION. The Bonds shall be
and have all the qualities and incidents of negotiable instruments under the Uniform
Commercial Code - Investment Securities Laws of the State of Florida, and. each
successive Registered Owner, in accepting any of said Bonds shall be conclusively
deemed to have agreed that the Bonds shall be and have all of the qualities and
incidents of such negotiable instruments.
There shall be a Bond Registrar, who may also be the paying agent for the
Bonds, which shall be a Banking Institution. The Bond Registrar shall be responsible
for maintaining the books for the registration of the transfer and exchange of the
Bonds. The City and the Bond Registrar may treat the Registered Owner of any Bond
as the absolute owner thereof for all purposes, whether or not such Bond shall be
overdue, and shall not be bound by any notice to the contrary.
All Bonds presented for transfer, exchange, redemption or payment (if so
required by the City or the Bond. Registrar) 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 City or the Bond Registrar, duly executed by
the Registered Owner or by his duly authorized attorney.
The Bond Registrar may charge the Registered Owner a sum sufficient to'
reimburse it or any expenses incurred in making any exchange or transfer after the
first such exchange or transfer following the initial delivery of the Bonds. The Bond
Registrar or the City may also require payment from the Registered Owner or his
transferee, as the case maybe, of a sum sufficient to cover any tax, fee or other
governmental charge that may be imposed in relation hereto. Such charges and
expenses shall be paid before any such new Bonds shall be delivered.
The City and the Bond Registrar shall not -be required (a) to issue, transfer or
exchange any Bonds during a period beginning at the opening of business on the
15th day next preceding either any Interest Payment Date or any date of selection of
Bonds or parts thereof to be redeemed and ending at the close of business on the
Interest Payment Date or day on which the applicable notice of redemption is given,
or (b) to transfer or exchange any Bonds selected or being called for redemption in
4182 -0 -Ordinance 16
whole or in part.
New Bonds delivered upon any transfer or exchange shall be valid obligations of
the City, evidencing the same debt as the Bonds surrendered, shall be secured by this
Ordinance, and shall be entitled to all of the security and benefits hereof to the same
extent as the Bonds surrendered.
The City may elect to use a book -entry or immobilization system for issuance
and registration of the Bonds of any Series, and the details of any such system shall
be as fixed prior to the time of issuance of such Bonds.
Whenever any Bond shall be delivered to the Bond Registrar for cancellation,
upon payment of the principal amount thereof, or for replacement, transfer or
exchange, such Bond shall be cancelled and destroyed by the Bond Registrar, and
counterparts of a certificate of destruction evidencing such destruction shall be
furnished to the City.
SECTION 2.06. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In
case any Bond shall become mutilated or be destroyed, stolen or lost, the Bond
Registrar may in its discretion issue and deliver a new Bond, of like tenor as the Bond,
so mutilated, destroyed, stolen or lost, either in exchange and substitution for such
mutilated Bond upon surrender and cancellation of such mutilated Bond or in lieu of
and substitution for the Bond destroyed, stolen or lost, upon the Registered Owner's
furnishing the Bond Registrar proof of his ownership hereof, furnishing satisfactory
indemnity in favor of both the City and the Bond Registrar, complying with such other
reasonable regulations and conditions as the Bond Registrar and City may prescribe,
and paying such expenses as the City may incur. All Bonds so surrendered shall be
cancelled. If any such Bonds shall have matured or are about to mature, instead of
issuing substitute Bond, the Bond Registrar may pay the same, upon compliance with
the foregoing conditions and requirements.
Any such duplicate Bonds issued pursuant to this Section shall constitute
original contractual obligations on the part of the City, whether or not any lost, stolen
or destroyed bonds are found and shall be entitled to equal and proportionate benefits
and rights with all other bonds of such Series issued hereunder as to lien on and
source and security for payment from the Pledged Revenues.
SECTION 2.07. TEMPORARY BONDS. Until Bonds in definitive form of any
Series are ready for delivery, the City may execute, and upon its request in writing, the
Bond Registrar shall authenticate and deliver in lieu of any thereof, and subject to the
same provisions, limitations and conditions, one or more printed, lithographed or
typewritten Bonds in temporary form, substantially of the tenor of the Bonds
hereinbefore described and with appropriate omissions, variations and insertions.
Until exchanged for Bonds in definitive form, such Bonds in temporary form
shall be entitled to the lien and benefit of this Ordinance. The City shall, without
unreasonable delay, prepare, execute and deliver to the Bond Registrar and
thereupon, upon the presentation and surrender of the Bonds in temporary form to
the Bond Registrar, the Bond Registrar shall authenticate and deliver, in exchange
4182 -0 -Ordinance 17
therefor, Bonds of the same Series and maturity, in definitive form in the authorized
denominations, and for the same aggregate principal amount, as the Bonds in
temporary form surrendered. The expense of such exchange shall be paid by the City
and there shall be made no charge therefor to any Registered Owner.
SECTION 2.08. BOND ANTICIPATION NOTES. In anticipation of the delivery
of the Bonds of any Series and receipt of the proceeds thereof, the City may issue
Bond Anticipation Notes. Provisions regarding the form of such Bond Anticipation
Notes and the security for any Bond Anticipation Notes shall be set forth in a
separate ordinance or resolution of the Commission adopted at or prior to the time of
sale of such Bond Anticipation Notes.
SECTION 2.09. PROVISIONS FOR REDEMPTION. The Bonds may be
redeemable, by operation of the applicable Bond Amortization Account or, at the
option of the City, as provided prior to the delivery of the Bonds; provided that no
optional redemption of Bonds may be effected at any time when there are
outstanding, unpaid obligations due and owing to a Credit Facility Issuer pursuant
to any Credit Facility or Reserve Account Credit Facility without the prior written
consent of the Credit Facility Issuer.
Not more than sixty (60) days or less than thirty (30) days prior to the
Redemption Date, notice of such redemption (i) shall be filed with the Bond Registrar,
and (ii) shall be mailed by first class mail, postage prepaid, to all Registered Owners of
Bonds to be redeemed at their addresses as they appear on the registration books
hereinabove provided for. Notice of Redemption of Bonds, other than by operation of
the Bond Amortization Account and other than pursuant to the application of
advanced refunding bond proceeds, shall be provided as set forth herein only from and
to the extent that funds sufficient to pay the redemption price and accrued interest
thereon are on deposit in the funds and accounts held by the Paying Agent and
available for such purpose on the date the notice of redemption is mailed. Interest
shall cease to accrue on any Bonds duly called for prior redemption on the
Redemption Date, if payment thereof has been duly provided. Failure of any Registered
Owner to receive notice properly provided shall not affect the validity of any such
proceedings for redemption or the cessation of the accrual of interest on any Bonds
called for redemption from and after the Redemption Date.
In addition to the foregoing notice, further notice shall be given as set out
below, but no defect in any such notice nor any failure to give all or any portion of
any notice shall in any manner defeat the effectiveness of a call for redemption with
respect to an Owner as to which notice is given as prescribed above.
Each further notice of redemption given hereunder shall contain the
information required above for an official notice of redemption plus: (i) the date of
original execution and delivery of the Bonds; (ii) the rate of interest borne by each
Bond being redeemed; (iii) the maturity date and CUSIP number of each Bond being
redeemed; and (iv) any other descriptive information needed to identify accurately the
Bonds being redeemed.
4182 -0 -Ordinance 18
Each further notice of redemption shall be sent at least thirty (30) days before
the redemption date by registered or certified mail or overnight delivery service (at the
expense of the addressee) to the Credit Facility Issuer and to all registered securities
depositories then in the business of holding substantial amounts of obligations of
types such as the Bonds (such depositories now being The Depository Trust Company
of New York, New York, New York; Midwest Securities Trust Company of Chicago,
Illinois; and Philadelphia Depository Trust Company of Philadelphia, Pennsylvania)
and to one or more national information services that disseminate notices of
redemption of obligations such as the Bonds (such as Financial Information, Inc.'s
Financial Daily Called Bond Service, Interactive Data Corporation's Bond Service,
Kenny Information Service's Called Bond Service and Standard &. Poor's Called Bond
Record) .
SECTION 2.10. FORM OF BONDS. The text of the Bonds shall be of
substantially the form of Exhibit A hereto, with such omissions, insertions, and
variations as may be necessary and desirable, and as may be authorized or permitted
by this Ordinance or by subsequent ordinance or resolution adopted prior to the
issuance thereof.
4182 -0 -Ordinance 19
ARTICLE III
BONDS NOT GENERAL OBLIGATION OF CITY;
PLEDGE OF REVENUES AND APPLICATION OF
PROVISIONS OF ORIGINAL ORDINANCE; AMENDMENT TO
ORIGINAL ORDINANCE; TAX COMPLIANCE AND REMEDIES
SECTION 3.01. BONDS NOT GENERAL OBLIGATION OF CITY. Neither the
Bonds nor the interest or premium, if any, thereon shall be or constitute general
obligations or indebtedness of the City as "bonds" within the meaning of the
Constitution of the State of Florida, but shall be payable from and secured solely by a
lien upon and a pledge of the Pledged Revenues as herein provided. No Registered
Owner or Owners of any Bonds issued hereunder shall ever have the right to compel
the exercise of the ad valorem taxing power of the City or taxation in any form of any
property therein to pay such Bonds or the interest or premium, if any, thereon or be
entitled to payment of such principal, premium, if any, and interest from any other
funds of the City except from the Pledged Revenues in the manner provided herein.
Neither the Bonds nor the interest or premium, if any, thereon shall have or be a lien
upon the System or the Stormwater System, or upon any property of or in the City,
other than the Pledged Revenues in the manner provided herein.
SECTION 3.02. BONDS SECURED BY PLEDGED REVENUES. The payment of
Debt Service on all the Bonds issued hereunder shall be secured forthwith equally
and ratably with the other Bonds solely by a lien upon and pledge of the Pledged
Revenues. The Pledged Revenues, in. an amount sufficient both to pay the principal of,
premium, if any, and interest on the Bonds herein authorized and to make the
payments into the Reserve Account and Sinking Fund and all other payments
provided for in this Ordinance are hereby irrevocably pledged in the manner stated
herein to such payment; provided that said pledge and lien may be released and
extinguished by defeasance as provided in Section 6.06 hereof. Notwithstanding the
foregoing, no provision hereof is intended to prohibit the payment of Debt Service
Requirements on any Bonds from, or the pledging to such payment of, any lawfully
available additional revenues, reserves, security, documents, obligations or sources of
funds.
SECTION 3.03. APPLICATION OF PLEDGED REVENUES PURSUANT TO
ORIGINAL ORDINANCE. All Pledged Revenues and all moneys held in the funds and
accounts established pursuant -to the Original Ordinance shall be held and applied for
the benefit of the Registered Owners of the 2004 Bonds in the same manner as provided
in Section 3.03 of the Original Ordinance, and all of the provisions of Section 3.03 shall
be deemed to be applicable to the 2004 Bonds in the same manner as to the outstanding
Parity Bonds and all other Bonds hereafter issued pursuant to the Original Ordinance.
SECTION 3.04. APPLICATION OF PROVISIONS OF ORIGINAL ORDINANCE.
The 2004 Bonds shall for all purposes be considered to be issued under and pursuant to
the provisions of the Original Ordinance, and all of the covenants of the City contained in
the Original Ordinance shall be deemed applicable to and for the benefit of the 2004
4182 -0 -Ordinance 20
Bonds to the same extent as to the outstanding Parity Bonds, excepting only the
provisions of Section 3.07 below. The Registered Owners of the 2004 Bonds shall have
all of the rights and privileges of the Registered Owners of the outstanding Parity Bonds.
SECTION 3.05. TAX COMPLIANCE. The City covenants that it will restrict the
use of the proceeds of the 2004 Bonds in such manner and to such extent, if any, as
may be necessary so that the 2004 Bonds will not constitute arbitrage bonds under
Section 148 of the Code. The City Manager or any other officer having responsibility for
the issuance of the 2004 Bonds shall give an appropriate certificate of the City, for
inclusion in the transcript of proceedings for the 2004 Bonds, setting ' forth the
reasonable expectations of the City regarding the amount and use of all the proceeds of
the 2004 Bonds, the facts, circumstances, and estimates on which they are based, and
other facts and circumstances relevant to the tax treatment of interest on the 2004
Bonds. Each such officer is further authorized to make or effect any election, selection,
choice, consent, approval, or waiver on behalf of the City with respect to the 2004
Bonds as the City is permitted or required to make or give under the federal income tax
laws, for the purposes of assuring, enhancing, or protecting favorable tax treatment or
characterization of the 2004 Bonds or interest thereon or assisting compliance with
requirements for that purpose, reducing the burden or expense of such compliance,
reducing the rebate amount or payments of penalties thereon, or making payments in
lieu thereof, or obviating such amounts or payments, as determined by such officer.
Any such action of such officer shall be in writing and signed by the officer.
The City covenants that it (a) will take or cause to be taken such actions
which may be required of it for the interest on the 2004 Bonds to be and remain
excluded from gross income for federal income tax purposes, and (b) will not take or
permit to be taken any actions which would adversely affect that exclusion, and that it,
or persons acting for it, will, among other acts of compliance, (i) apply the proceeds of
the 2004 Bonds to the governmental purpose of the borrowing, (ii) restrict the yield on
investment property acquired with those proceeds, (iii) make timely rebate or penalty
payments to the federal government, (iv) maintain books and records and make
calculations and reports, and (v) refrain from certain uses of proceeds, all in such
manner and to the extent necessary to assure such exclusion of that interest under the
Code. The City Manager and other appropriate officers are hereby authorized and
directed to take any and all actions, make calculations and rebate or penalty payments,
and make or give reports and certifications, as may be appropriate to assure such
exclusion of that interest.
SECTION 3.06. REMEDIES. The Events of Default ' and Remedies set forth in
the Original Ordinance shallapply to the 2004 Bonds the same as if fully set forth
herein.
SECTION 3.07. AMENDMENT TO ORIGINAL ORDINANCE. Section 5.01 (E)
of the Original Ordinance is hereby amended to read as follows:
"(E) Sale of the System. (1) The City hereby covenants not to sell, lease,
encumber or in any manner dispose of the System as a whole.
4182 -0 -Ordinance 21
(2) The foregoing provision notwithstanding, the City may sell or
dispose of, for fair market value, any properties or parts of the System which the
Consulting Engineer shall certify in writing are not necessary for the continued
operation of the System and that the sale or disposal of which will not adversely affect
the Net Revenues to be derived from the System to such an extent that the City will
fail to comply with the rate covenant contained in Section 5.01 (A) of the Original
Ordinance.
(3) The proceeds derived from any sale or disposal of any properties
or parts of the System as provided for in the above paragraph shall, in the discretion
of the City, be (i) deposited in the Renewal and Replacement Fund and used
exclusively for the purpose of paying the cost of extensions, enlargements or additions
to, or the replacement of capital assets of, the System and for unusual or
extraordinary repairs thereto, or (ii) for the purchase or retirement of Bonds then
outstanding. However, if the Consulting Engineer certifies that proceeds are
necessary for the purposes stated in part (i) above, such proceeds shall remain in the
Renewal and Replacement Fund until such certified requirements are satisfied, and
the proceeds shall not be used for any other purpose allowed by this Ordinance."
4182 -0 -Ordinance 22
ARTICLE IV
APPLICATION OF 2004 BOND PROCEEDS
SECTION 4.01. APPLICATION OF 2004 BOND PROCEEDS. All moneys
received from the sale of any or all of the 2004 Bonds shall be disbursed as follows:
(A) Accrued interest, if any, shall be deposited into the Sinking Fund and
applied to the interest coming due on the 2004 Bonds on the first Interest Payment
Date.
(B) An amount equal to the Reserve Account Requirement shall be
deposited into the Reserve Account; provided that this requirement may be satisfied
in whole or in part by the establishment of a Reserve Account Credit Facility for the
purpose of such Reserve Account.
(C) An amount necessary to pay the Issuance Expenses with respect to the
2004 Bonds will be paid within 30 days of closing from the proceeds of the 2004
Bonds.
(D) A sum specified in the Escrow Deposit Agreement which, together with
the other funds described in the Escrow Deposit Agreement to be deposited with the
Escrow Holder in escrow, and together with the investment income thereon, will be
sufficient to pay the principal of, interest and redemption premiums, if any, as
applicable, on the Refunded Bonds as the same shall become due or may be
redeemed, shall be deposited into the Escrow Account established by the Escrow
Deposit Agreement in the respective amounts sufficient for such purposes.
Simultaneously with the delivery of the Series 2004 Bonds, the City shall enter
into the Escrow Deposit Agreement which shall provide for the deposit of sums into
the Escrow Account established therein, and for the investment of such money in
appropriate Federal Securities so as to produce sufficient funds to make all of the
payments described in the first paragraph of this Section 4.01D. At the time of
execution of the Escrow Deposit Agreement, the City shall furnish to the Escrow
Holder appropriate documentation to demonstrate that the sums being deposited and
the investments to be made will be sufficient for such purposes.
4182 -0 -Ordinance 23
ARTICLE V
CONTINUING DISCLOSURE
SECTION 5.01. CONTINUING DISCLOSURE. (A) PROVISION OF ANNUAL
INFORMATION; AUDITED FINANCIAL STATEMENTS; AND NOTICES OF EVENTS.
The City hereby covenants, in accordance with the provisions of the Rule, to provide
or cause to be provided:
(1) to each NRMSIR and to any SID, (i) annual financial information
and operating data of the type described under the caption "Annual
Information" below for each Fiscal Year ending on or after September 30,
2005, not later than the following May 1, and (ii) when and if available,
audited financial statements for the City for each such Fiscal Year; and
(2) to each NRMSIR or to the MSRB and to the SID, in a timely
manner, notice of (i) any Specified Event if that Specified Event is material, (ii)
the City's failure to provide the Annual Information on or prior to the date
specified above, (iii) any change in the Fiscal Year, (iv) the City's failure to
appropriate funds to meet costs to be incurred to provide the foregoing
information, and (v) the termination of the City's obligations to provide the
foregoing information.
The City expects that (a) annual financial statements of the City shall be prepared and
audited, (b) any such audited statements shall be available together with the Annual
Information, and (c) the accounting principles to be applied in the preparation of those
financial statements shall be generally accepted accounting principles as
recommended from time to time by the Governmental Accounting Standards Board. In
the event that the audited annual general purpose financial statements of the City are
not available by the date on which the Annual Information shall be provided, the City
will provide unaudited financial statements of the City by the date specified and
audited financial statements when available.
(B) ANNUAL INFORMATION. Annual Information to be provided by the City
shall consist of: (a) the annual general purpose financial statements of the City; and
(b) summary of revenues, expenses and debt service coverage consistent with the.
presentation of such information in the Official Statement for the 2004 Bonds.
(C) SPECIFIED EVENTS. Specified Events shall include the occurrence of
the following events, within the' meaning of the Rule, with respect to the Bonds:
principal and interest payment delinquencies; non-payment related defaults;
unscheduled draws on debt service reserves reflecting financial difficulties;
unscheduled draws on credit enhancements reflecting financial difficulties;
substitution of credit or liquidity providers, or their failure to perform; adverse tax
opinions or events affecting the tax-exempt status of the Bonds; modifications to
rights of holders of Bonds; Bond calls; defeasances; release, substitution, or sale of
property securing repayment of the Bonds; and rating changes. In furtherance of the
4182 -0 -Ordinance 24
foregoing, however, holders should understand that the sale or other transfer of real
property subject to the Special Assessments is not included in the listed events. The
City shall not be required to undertake to track the sale or other transfer of any such
real property or make any notification in the event any such sale or other transfer
may occur.
(D) AMENDMENTS. The City reserves the right to amend this Section as
may be necessary or appropriate to achieve its compliance with any applicable federal
securities law or rule, to cure any ambiguity, inconsistency or formal defect or
omission, and to address any change in circumstances arising from a change in legal
requirements, change in law, or Change in the identity, nature, or status of the City,
or type of business conducted by the City. Any such amendment shall be made only
in a manner consistent with the Rule and interpretations thereof by the SEC. Annual
Information containing any amended operating data or financial information shall
explain, in narrative form, the reasons for any such amendment and the impact of the
change on the type of operating data or financial information being provided. The
provisions of Section 6.07 of this Ordinance shall not apply to amendments made to
this Section.
(E) REMEDY FOR BREACH. The covenants contained in this Section 5.01,
as amended, relating to the City's continuing disclosure requirements shall be solely
for the benefit of the holders and beneficial owners from time to time of the Bonds.
Holders and beneficial. owners, to the extent permitted by law and equity, shall have
the right, and shall be limited to the right, upon any breach of such covenant by the
City and to the exclusion of any other remedy' for that breach that otherwise would be
available, to institute and maintain, or to cause to be' instituted and maintained,
proceedings at law or in equity to obtain the specific performance by the City of its
obligations under such covenant. An individual holder or beneficial owner shall not
be entitled to institute or maintain proceedings to challenge the sufficiency of any
pertinent filing that is made.
(F) NON -APPROPRIATION. The performance by the City of its obligations
under this Section 5.04, relating to the City's continuing disclosure requirements
shall be subject to the availability of funds and their annual appropriation to meet
costs the City would be required to incur to perform such obligations.
(G) TERMINATION. The obligations of the City under this Section 5.01,
relating to the City's continuing disclosure requirements shall remain in effect only
for such period that (1) such covenant is required by the Rule, (2) the Bonds are
outstanding in accordance with their terms, and (3) the City remains an obligated
person with respect to the Bonds within the meaning of the Rule. The obligation of
the City to provide the Annual Information and notices of the events described above
shall terminate, if and when the City no longer remains such an obligated person.
(H) SEPARATE BOND REPORT NOT REQUIRED. Additionally, the
requirements of this Section 5.01 do not necessitate the preparation of any separate
annual report addressing only the Bonds. These requirements may be met by the
filing of a combined bond report or the City's Comprehensive Annual Financial
Report; provided, such report includes all of the required information and is available
4182 -0 -Ordinance 25
by May 1. Additionally, the City may incorporate any information provided in any
prior filing with each NRMSIR or included in any final official statement of the City;
provided, such final official statement is filed with the MSRB.
4182 -0 -Ordinance 26
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. SALE OF 2004 BONDS; DELEGATION OF AUTHORITY AND
DESIGNATION OF BOND REGISTRAR AND PAYING AGENT. (a) The City hereby
finds, determines and declares that the timing and size of the issue and complexity of
the financing plan for the 2004 Bonds, and current rapidly changing bond market
conditions require that the sale of the 2004 Bonds be negotiated at private sale rather
than offered by competitive bid at public sale in order to assure the necessary
flexibility to change the maturities, redemption features and yields necessary to obtain
the most favorable terms in the bond market and to assure timely receipt of funds to
refund the Refunded Bonds at the most advantageous savings to the City. The
negotiated sale of the 2004 Bonds to A.G. Edwards & Sons, Inc. and J.P. Morgan
Securities Inc., the underwriters previously selected by the City, pursuant to a bond
purchase contract in the form approved by the City Manager, the City Attorney, the
Financial Advisor and Bond Counsel is hereby authorized pursuant to Section
218.385, Florida Statutes.
(b) In order to assure timely sale of the 2004 Bonds in an uncertain
economic environment, the City Manager is authorized to negotiate with the
underwriters the final pricing terms to be included in the bond purchase contract,
with the advice and assistance of the Financial Advisor, subject to all of the following
guidelines and parameters:
(1) the aggregate principal amount of 2004 Bonds to be sold
shall not exceed $20,000,000 and shall not exceed the amount needed to refund the
Refunded Bonds and to pay the Issuance Costs.
(2) the net present value savings to the City shall not be less
than 3.00%.
(3) the all -in true interest cost to the City for the 2004 Bonds
shall not exceed 6.00% per annum.
(4) the underwriters' gross spread shall be approved by the
City Manager with the advice and assistance of the Financial Advisor and shall not
exceed $5.00 per $1,000 of 2004 Bonds sold.
(5) the final maturity of the 2004 Bonds shall not be later than
October 1, 2025.
(c) The 2004 Bonds shall be dated, shall be in denominations, shall
be in the form of current interest bonds which bear interest at the rates, mature on
the dates and in the amounts, and shall be redeemable, all as set forth in the bond
purchase contract.
4182 -0 -Ordinance 27
(d) The Paying Agent and Registrar for the 2004 Bonds shall be Wells
Fargo Bank, N.A., Jacksonville, Florida.
(e) The Credit Facility Issuer for the 2004 Bonds shall be designated
by the City Manager with the advice and assistance of the Financial Advisor after bids
have been solicited from Credit Facility Issuers.
SECTION 6.02. APPROVAL OF OFFICIAL STATEMENTS FOR 2004
BONDS. The use of a preliminary and final Official Statement relating to the 2004
Bonds, in the form as shall hereafter be approved by the City Manager acting on
behalf of the City, such approval to be evidenced by his execution thereof, is hereby
authorized and approved in connection with marketing of the 2004 Bonds. The City
Manager is hereby authorized to certify that the preliminary Official Statement is
"deemed final" as of its date for purposes of, and except for certain omissions
permitted by, SEC Rule 15c2-12. The Mayor -Commissioner, City Manager and
Finance Director are hereby authorized to execute the final Official Statement and to
deliver same to the underwriters. Use by the underwriters of the preliminary Official
Statement in marketing the 2004 Bonds is hereby approved.
SECTION 6.03. EXECUTION OF BOND PURCHASE CONTRACT AND
AUTHORIZATION OF ALL OTHER NECESSARY ACTION. The City Manager is
hereby authorized and directed to execute, and the City Clerk is authorized to attest,
the bond purchase contract and to deliver the bond purchase contract to the
underwriters, and the Mayor -Commissioner and the City Clerk are authorized to
execute and attest the 2004 Bonds when prepared, and deliver the same to the
underwriters upon payment of the purchase price and pursuant to the conditions
stated in the bond purchase contract. The Mayor -Commissioner, City Manager, City
Clerk, City Attorney, Financial Advisor, and Bond Counsel are each designated agents
of the Issuer in connection with the issuance and delivery of the 2004 Bonds, and are
authorized and empowered, collectively or individually, to take all action and steps to
execute and deliver any and all instruments, documents or contracts on behalf of the
City which are necessary or desirable in connection with the execution and delivery of
the 2004 Bonds and which are not inconsistent with the terms and provisions of this
Ordinance and other actions relating to the 2004 Bonds heretofore taken by the City,
including, without limitation, a registrar/ paying agent agreement, a DTC Letter of
Representations, commitments for a Credit Facility and a Reserve Account Credit
Facility, and the Escrow Deposit Agreement.
SECTION 6.04. NOTICES TO CREDIT FACILITY ISSUER; CREDIT
FACILITY ISSUER DEEMED SOLE BONDOWNER AND A PARTY IN INTEREST.
Whenever a Credit Facility Issuer shall be providing a Credit Facility with respect to
any Bonds issued hereunder, such Credit Facility Issuer shall be entitled to receive
and shall be provided by certified mail all notices and reports which are required
herein to be prepared and to be sent or made available to Registered Owners. of such
Bonds and a full transcript of any proceedings relating to the execution of any
supplemental ordinance or resolution hereto. Notwithstanding any other provisions of
this Ordinance to the contrary, the Credit Facility Issuer shall be deemed to be the
sole Registered Owner of all Bonds insured by it for purposes of exercising rights,
consents or remedies granted under this Ordinance. For any amendment or
4182 -0 -Ordinance 28
modification of the Ordinance for which a Credit Facility Issuer shall consent in
replacement of the Registered Owners, notice of such amendment or modification
along with a copy of such supplemental ordinance or resolution shall be sent to the
Rating Agencies at least twenty (20) days prior to the enactment of such amendment
or modification.
Any provision of this Ordinance to the contrary notwithstanding, if under any
provision hereof any action is to be taken only with the consent or approval of a
Credit Facility Issuer, and if at the time such consent or approval would otherwise be
called for such Credit Facility Issuer is not in compliance with its payment obligations
of or is contesting its obligations under its Credit Facility, then the rights of such
Credit Facility Issuer to any consent or approval hereunder shall be suspended while
any such noncompliance or contest is ongoing.
Except as expressly provided herein to the contrary, neither the City nor the
Paying Agent shall take the Credit Facility into effect in determining whether the
rights of Registered Owners are adversely affected by actions taken pursuant to the
terms and provisions of the Ordinance.
The Credit Facility issuer shall be included as a party in interest and as a party
entitled to notify the Paying Agent or any trustee or the City to intervene in judicial
proceedings that affect the Bonds or the security therefor. The trustee, the Paying
Agent and the City shall be required to accept notice of default from the Credit
Facility Issuer.
SECTION 6.05. NO RECOURSE. No recourse shall be had for the payment of
the principal of, premium, if any, and interest on the Bonds, or for any claim based
thereon or on this Ordinance, against any present or former member or officer of the
Commission or any person executing the Bonds.
SECTION 6.06. DEFEASANCE. Notwithstanding the foregoing provisions of
this Ordinance, if, at any time, the City shall have paid all amounts due and owing to
any Credit Facility Issuer and shall have paid, or shall have made provision for
payment of, the principal, interest and redemption premiums, if any, with respect to
any Bonds, then, and in that event, the pledge of and lien on the Pledged Revenues in
favor of the Registered Owners of such Bonds shall be no longer in effect. For
purposes of the preceding sentence, deposit of noncallable Defeasance Obligations in
irrevocable trust with a Banking Institution for the sole benefit of the Registered
Owners of such Bonds, in respect to which such Defeasance Obligations the principal
and interest received will be sufficient, without reinvestment, based on the report of
an Independent Certified Public Accountant, to make timely payment of the principal
of, interest, and redemption premiums, if any, on such outstanding Bonds designated
to be defeased, and receipt of an opinion of Bond Counsel to the effect that such
deposit has no adverse effect on the exclusion from gross income for federal income
tax purposes of interest on the Bonds, shall be considered "provision for payment".
Nothing herein shall be deemed to require the City to call any of the Outstanding
Bonds for redemption prior to maturity pursuant to any applicable optional
redemption provisions, or to impair the discretion of the City in determining whether
to exercise any such option for early redemption. Notwithstanding the foregoing,
4182 -0 -Ordinance 29
amounts paid by a Credit Facility Issuer shall not be deemed paid for the purposes of
this Section and shall remain due and owing hereunder until paid in accordance with
the Ordinance.
SECTION 6.07. MODIFICATION OR AMENDMENT. (A) The City, from time to
time and at any time and without the consent or concurrence of any Registered
Owners, may adopt an ordinance or resolution amendatory hereof or supplemental
hereto, if the provisions of such supplemental or amendatory 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:
(1) to make any changes or corrections in this Ordinance which the City
shall have been advised by legal counsel are required for the purpose of curing
or correcting any ambiguity or defect or inconsistent provision or omission or
mistake or manifest error contained herein, or to insert in this Ordinance
such provisions clarifying matters or questions arising hereunder as are
necessary or desirable;
(2) to add additional covenants and agreements of the City for the
purpose of further securing the payment of the Bonds;
(3) to surrender any right, power or privilege reserved to or conferred
upon the City by the terms hereof;
(4) to confirm by further assurance any lien, pledge or charge
created or to be created by the provisions hereof;
(5) 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;
(6) to assure compliance with the Code;
(7) to provide such changes which, in the opinion of the City, based
upon such certificates and opinions of the Independent Consultant,
Independent Certified Public Accountant, Bond Counsel, financial advisors or
other appropriate advisors as the City may deem necessary or appropriate, will
not materially adversely affect the security of the Registered Owners.
(8) to modify any of the provisions of this Ordinance in any other
respects, provided that -such modification shall not be effective (a) with respect
to the Bonds Outstanding at the time such amendatory or supplemental
resolution is adopted or (b) shall not be effective (i) until the Bonds
Outstanding at the time such amendatory or supplemental resolution is
adopted shall cease to be Outstanding, or (ii) until the Registered Owners
thereof consent thereto.
(B) The foregoing provisions notwithstanding, (1) no consent of any
Registered Owners shall be required with respect to modification or amendment with
4182 -0 -Ordinance 30
respect to Bonds as to which a Credit Facility (other than a Reserve Account Credit
Facility) is in place and to which modification or amendment the Credit Facility Issuer
has provided its prior written consent and (2) no modification or amendment (other
than as described in paragraphs (1) and (2) of clause (A) above) shall be effective with
respect to any Bonds as to which a Credit Facility is effective without the prior written
consent to such modification or amendment of the Credit Facility Issuer.
(C) The foregoing provisions of Sections 6.07(A) and (B) notwithstanding, no
modification or amendment shall permit a change in the maturity of such Bonds, a
reduction in the rate of interest thereon, a reduction in the amount of the principal
obligation represented thereby or a reduction in the redemption premium required to
be paid in connection with any optional redemption thereof; nor shall any
modification or amendment either affect the unconditional promise of the City to pay
the principal of and interest on the Bonds, as the same shall become due, or reduce
the percentage of Registered Owners of Bonds above required to consent to such
material modifications or amendments, without the consent of the Registered Owners
of all such Bonds.
(D) Other than as provided above, no modification or amendment of this
Ordinance or of any ordinance or resolution amendatory hereof or supplemental
hereto may be made without the consent in writing of the Registered Owners of fifty-
one percent (51%) or more in principal amount of the Bonds then Outstanding and
affected by such modification or amendment.
(E) The foregoing provisions shall not apply to amendments to Section 5.04
hereof.
SECTION 6.08. PAYMENTS DUE AND ACTS REQUIRED TO BE DONE ON
DAYS WHICH ARE NOT BUSINESS DAYS; TIME. (A) In any case where any payment
of Debt Service is required to be paid on a date which is not a Business Day, then
such payment need not be made on such date, but shall be made on the next
succeeding Business Day, with the same force and effect as if made on the date fixed
for such payment, and no interest shall accrue on such payment for the period after
such date if such payment is made on such next succeeding Business Day.
(B) In any case where any act is required or any notice is required to be
given hereunder on any day other than a Business Day, then such act shall be done
or such notice shall be given on the next succeeding Business Day, with the same
force and effect as if such act had been performed or such notice had been given on
the date required.
(C) All times for the making of any payment or the performance of any act,
as provided in this Ordinance means the local time prevailing in the City unless some
other time is expressly provided for.
SECTION 6.09. SEVERABILITY OF INVALID PROVISIONS. If any one or
more of the covenants, agreements or provisions of this Ordinance should be held to
be contrary to any express provision of law or to be contrary to the policy of express
law, though not expressly prohibited, or to be against public policy, or should for any
4182 -0 -Ordinance 31
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, and in no way affect the validity of, all the other
provisions of this Ordinance or of the Bonds.
SECTION 6.10. REPEALING CLAUSE. All ordinances of the City, or parts
thereof, in conflict with the provisions of this Ordinance are to the extent of such
conflict, hereby superseded and repealed.
SECTION 6.11. EFFECTIVE DATE. This Ordinance shall take effect
immediately upon its adoption; provided that Section 3.07 hereof shall not become
effective until the prior written consent thereto has been delivered to the City by MBIA
Insurance Corporation, the Credit Facility Issuer for the Refunded Bonds and the
outstanding Parity Bonds.
PASSED AND ADOPTED by the City Commission of the City of Atlantic Beach,
Florida at a regular meeting duly called and held this 8th day of November, 2004.
CITY OF ATLANTIC BEACH, FLORIDA
ATTEST:
137
d6rnlnao(gt�v� -
City Clerk
4182 -0 -Ordinance 32
No. R-1
EXHIBIT A
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF ATLANTIC BEACH
UTILITIES SYSTEM REVENUE REFUNDING BOND, SERIES 2004
[FORM OF FIRST PARAGRAPH OF CURRENT INTEREST PAYING BOND]
DATE OF
RATE OF INTEREST MATURITY DATE ORIGINAL ISSUE CUSIP
October 1, December , 2004
REGISTERED OWNER: Cede & Co.
PRINCIPAL AMOUNT:
KNOW ALL MEN BY THESE PRESENTS, that the City of Atlantic Beach, Florida
(the "City"), for value received, hereby promises to pay to the Registered Owner
designated above, or registered assigns, solely from the special funds hereinafter
mentioned, on the Maturity Date specified above, the Principal Amount shown above,
upon presentation and surrender hereof at the corporate trust office of Wells Fargo
Bank, N.A., Jacksonville, Florida, as Bond Registrar and Paying Agent, and to pay
solely from such funds, interest thereon from the date of this Bond or from the most
recent Interest Payment Date to which interest has been paid, whichever is applicable,
at the Rate of Interest per annum set forth above such interest to the maturity or prior
redemption hereof being payable on April 1, 2005, and thereafter on April 1 and
October 1 of each year by check or draft mailed to the Registered Owner at his address
as it appears, at 5:00 P.M. Eastern Time on the fifteenth day of the month preceding
the applicable interest payment date, on the registration books of the City kept by the
Bond Registrar; provided, that for any Registered Owner of One Million Dollars
($1,000,000) or more in principal amount of Bonds, such payment shall, at the written
request and at the expense of such Registered Owner, be by wire transfer or other
medium acceptable to the City and to such Registered Owner. The principal of,
premium, if any, and interest on this Bond are payable in lawful money of the United
States of America.
4182 -0 -Ordinance 33
[FORM OF FIRST PARAGRAPH OF COMPOUNDING INTEREST BOND]
PRINCIPAL AMOUNT AT
DATE OF ISSUANCE PER $5,000
RATE OF INTEREST ORIGINAL DATE MATURITY AMOUNT CUSIP
December ,2004
REGISTERED
OWNER:
MATURITY AMOUNT:
KNOW ALL MEN BY THESE PRESENTS, that the City of Atlantic Beach, Florida
(the "City'), for value received, hereby promises to pay to the Registered Owner
designated. above, or registered assigns, solely from the special funds hereinafter
mentioned, on the Maturity Date specified above, the Maturity Amount shown above,
upon presentation and surrender hereof at the corporate trust office of Wells Fargo
Bank, N.A., Jacksonville, Florida, as Bond Registrar and Paying Agent; provided, that
for any Registered Owner of One Million Dollars ($1,000,000) or more in principal
amount of Bonds, such payment shall, at the written request and at the expense of
such Registered Owner, be by wire transfer or other medium acceptable to the City
and to such Registered Owner. The Maturity Amount and premium, if any, of this
Bond are payable in lawful money of the United States of America.
[FORM OF REMAINING PARAGRAPHS FOR ALL BONDS]
This Bond is payable from and secured solely by a lien upon and pledge of (i)
the Net Revenues to be derived from the operation of the System, (ii) Capital Facilities
Charges, (iii) (iii) the moneys on deposit in the Funds and Accounts, (iv) certain
Investment Earnings, and (v) the Special Assessments (collectively, the "Pledged
Revenues"), all as defined and provided in Ordinance No. 15-95-7 of the City, duly
enacted on November 13, 1995, as supplemented by Ordinance No. 15-96-8, duly
enacted on March 11, 1996, and Ordinance No. 15-04-10, duly enacted on November
22, 2004 (collectively, the "Ordinance") hereinafter referred to on a parity with the
City's outstanding Parity Bonds. This Bond does not constitute a general obligation
or indebtedness of the City, and it is expressly agreed by the Registered Owner of this
Bond that such Registered Owner shall never have the right to require or compel the
exercise of the ad valorem taxing power of the City, or the taxation of any property of
or in the City, for the payment of the principal of and interest on this Bond or for the
making of any sinking fund, reserve or other payments provided for in said
Ordinance.
It is further agreed between the City and the Registered Owner of this Bond,
that this Bond and the obligation evidenced hereby shall not constitute a lien upon
the System or any part thereof, or on any other property of or in the City, but shall
4182 -0 -Ordinance 34
constitute a lien only on the Pledged Revenues, in the manner provided in the
Ordinance.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
BOND APPEARING ON THE REVERSE SIDE HEREOF AND SUCH FURTHER
PROVISIONS SHALL HAVE THE SAME FORCE AND EFFECT AS IF SET FORTH ON
THE FACE HEREOF.
It is hereby certified and recited that all acts, conditions and things required
to be performed to exist and to happen precedent to and in connection with the
issuance of this Bond, have been performed exist and have happened in regular and
due form and time as required by the laws and Constitution of the State of Florida
applicable thereto, and that the issuance of this Bond, and the issue of Bonds of
which this Bond is one, does not violate any constitutional or statutory limitation.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Ordinance until the Certificate of
Authentication hereon shall have been executed by the Bond Registrar.
IN WITNESS WHEREOF, the City of Atlantic Beach, Florida has issued this
Bond and has caused the same to be executed by the Mayor or the Vice -Mayor of the
City, either manually or with his facsimile signature, and the corporate seal of said
City or City Commission, or a facsimile thereof to be affixed hereto or imprinted or
reproduced hereon, and the foregoing attested by the manual or facsimile signature
of the City Clerk of the City, all as of the day of December, 2004.
CITY OF ATLANTIC BEACH, FLORIDA
(SEAL)
Mayor
ATTEST:
City Clerk
4182 -0 -Ordinance 35
BOND REGISTRAR'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the within -mentioned
Ordinance.
INAMEI
As Bond Registrar
:A
Authorized Signature
Date of Authentication: December , 2004
4182 -0 -Ordinance 36
(MATERIAL APPEARING ON REVERSE OF BONDS)
This Bond is one of an authorized issue of Bonds, originally issued in the
aggregate principal amount of $ , of like date, tenor and effect, except
as to number, interest rate, and date of maturity, issued to refund a portion of the
City's outstanding Utilities System Revenue Bonds, Series 1996 of the City previously
issued to finance improvements to the System, under the authority of and in full
compliance with the Constitution and Statutes of the State of Florida, including
particularly Chapter 166, Part II, Florida Statutes, and other applicable provisions of
law, and the Ordinance, and is subject to all the terms and conditions of said
Ordinance. Capitalized terms used herein shall have the meaning specified in the
Ordinance.
The Bonds are issuable only as fully registered Bonds in the denominations or
Maturity Amounts of $5,000 or integral multiples thereof. This Bond is transferable
and exchangeable for Bonds of other authorized denominations at the office of the
Bond Registrar, by the Registered Owner or. by a person legally empowered to do so,
upon presentation and surrender hereof to the Bond Registrar together with a request
for exchange or an assignment signed by the Registered Owner or by a person legally
empowered to do so in a form satisfactory to the Bond Registrar, all subject to the
terms, limitations and conditions provided in the Ordinance. No charge will be made
for transfer or exchange, but the City or the Bond Registrar may require payment of
an amount sufficient to cover any tax or other governmental charge payable in
connection therewith. The City and the Bond Registrar may deem and treat the
Registered Owner as the absolute owner of this Bond for the purpose of receiving
payment of or on account of principal or interest and for all other purposes, and
neither the City nor the Bond Registrar shall be affected by any notice to the contrary.
The City has entered into certain covenants with the Registered Owners of the
Bonds of this issue for the terms of which reference is made to said Ordinance. In
particular, the City has reserved the right to issue additional obligations payable from
and secured by a lien upon and pledge of the Pledged Revenues on a parity with the
outstanding Parity Bonds and the Bonds of this issue and series, upon compliance
with certain conditions set forth in the Ordinance. The City has also reserved the
right to defease the lien of the Bonds of this issue upon the Pledged Revenues upon
making provision for payment of the Bonds as provided in the Ordinance.
The Bonds maturing in the years to are not subject to redemption
prior to their stated dates of maturity. The Bonds maturing on October, 20_ and
thereafter are redeemable prior to maturity, at the option of the City, in inverse order
of maturity, and by lot within maturity if less than a full maturity, from any moneys
legally available therefor, at a redemption price, expressed as a percentage of the
principal amount of the Bonds so redeemed, if redeemed during the following periods:
4182 -0 -Ordinance 37
Redemption Period
JBoth dates inclusive) Redemption Price (%j
(INSERT TABLE)
The Bonds maturing in the year are subject to mandatory redemption prior
to maturity by lot at a redemption price of par plus accrued interest to the date of
such redemption on October 1 of each year in the years and amounts as follows:
Year Amount Year Amount
(INSERT TABLE)
Notice of such redemption shall be given in the manner provided in the
Ordinance.
This Bond is and has all the qualities and incidents of a negotiable instrument
under the Uniform Commercial Code -Investment Securities Laws of the State of
Florida, and the Registered Owner and each successive Registered Owner of this Bond,
shall be conclusively deemed by his acceptance hereof to have agreed that this Bond
shall be and have all the qualities and incidents of negotiable instruments under the
laws of the State of Florida.
STATEMENT OF INSURANCE
[INSERT STATEMENT OF INSURANCE, IF ANY]
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
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF TRANS MIN ACT --
(Cust.)
Custodian for
under Uniform Transfers to Minors Act of
(State)
Additional abbreviations may also be used though not in list above.
4182 -0 -Ordinance 38
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned
(the "Transferor"), hereby sells, assigns, and transfers unto
insert name and Social Security or Federal Employer Identification number of
assignee) the within Bond and all rights thereunder, and hereby irrevocably
constitutes and appoints
(the "Transferee") as attorney to register the transfer of the within Bond on the books
kept for registration thereof, with full power of substitution in the premises.
Dated
Signature Guaranteed:
Signature shall be made by a guarantor
institution participating in the Securities
Transfer Agent Medallion Program or in
such other guarantor program
acceptable to the Registrar.
NOTE: The signature(s) on this assignment
must correspond with the name of the
Registered Owner as it appears upon the face
of the within bond in every particular, without
alteration or enlargement or any change
whatever.
4182 -0 -Ordinance 39