87-10 Not Signed v No Action Taken RESOLUTION NO. 87- 10
AN RESOLUTION PROVIDING FOR THE ACQUISITION AND
CONSTRUCTION OF CERTAIN WATER AND SEWER AND ROAD
AND DRAINAGE IMPROVEMENTS WITHIN THE CITY OF
ATLANTIC BEACH, FLORIDA; PROVIDING FOR THE ISSUANCE OF
NOT EXCEEDING $3,800,000 WATER AND SEWER AND ROAD AND
DRAINAGE IMPROVEMENT SPECIAL ASSESSMENT REVENUE
BONDS, SERIES 1987, OF THE CITY OF ATLANTIC BEACH,
FLORIDA, TO PAY THE COST OF SUCH IMPROVEMENTS;
PROVIDING FOR THE RIGHTS OF THE OWNERS OF SUCH BONDS;
PROVIDING FOR THE PAYMENT THEREOF; MAKING CERTAIN
OTHER COVENANTS AND AGREEMENTS IN CONNECTION
THEREWITH; AUTHORIZING VALIDATION; AUTHORIZING
RELATED ACTION; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, pursuant to the Act as herein defined, the City of Atlantic Beach,
Florida (the "City"), is empowered to make certain water and sewer capital improvements
and road and drainage improvements within the territorial limits of the City and to
provide for financing such improvements by the levy and collection of special assessments
upon the properties specially benefited thereby; and
WHEREAS, pursuant to the Act (hereinafter defined) the City has approved
the acquisition and construction of the Project, as hereinafter defined, and has
determined that it is in the best interests of the City to issue the Bonds described herein
to finance the Project (hereinafter defined) and to pledge the proceeds of the special
assessments levied upon the properties specially benefited by the Project to pay the
Bonds, NOW THEREFORE,
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF ATLANTIC
BEACH, FLORIDA:
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ARTICLE I
AUTHORITY; DEFINITIONS; THE PROJECT
Section 1.01. AUTHORITY FOR THIS RESOLUTION. This Resolution is
adopted pursuant to Chapter 170 and Chapter 166, Florida Statutes (1985), as amended,
Section 336.025, Florida Statutes (Supp. 1986), as amended, and other applicable
provisions of law (collectively, the "Act").
Section 1.02. DEFINITIONS. Words importing singular number shall
include the plural number in each case and vice versa, and words importing persons shall
include partnerships, corporations, trusts, and other entities. The following terms shall
have the following meanings herein:
"Amortization Installments" with respect to any Term Bonds of a series, shall
mean an amount so designated which is established for the Term Bonds of such series,
provided that (i) each such installment shall be deemed to be due on such interest or
principal maturity date of each applicable year as is fixed by subsequent ordinance or
resolution of the City and shall be a multiple of $5,000 and (ii) the aggregate of such
installments for such series shall equal the aggregate principal amount of Term Bonds of
such series authenticated and delivered on original issuance.
"Assessments" shall mean the special assessments including supplemental
assessments, levied upon the Benefited Property, as approved and confirmed by the City,
and recorded in the assessment roll, adopted pursuant to the Act, all pursuant to the
Assessments Resolutions.
"Assessments Liens" shall mean liens equal to the Assessments levied upon the
Benefited Property plus the interest accruing thereon, which liens are co-equal with the
lien of all state, county, district and municipal taxes and superior to all other liens, titles
and claims.
"Assessments Resolutions" shall mean Resolution Nos. 87-2, 87-4 and 87-
adopted by the City Commission of the City, relating to the Project and the Assessments.
"Benefited Property" shall mean all lots and lands adjoining and contiguous or
bounding and abutting upon the Project and listed on the special assessment roll approved
and confirmed by the City in the Assessments Resolutions.
"1987 Bonds" shall mean the Water and Sewer and Road and Drainage
Improvement Special Assessment Revenue Bonds, Series 1987, herein authorized to be
issued to pay the Costs of the Project.
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"Bonds" shall mean the 1987 Bonds and any Refunding Bonds or Parity Bonds
issued pursuant to the provisions of Sections 2.14 or 2.15 of this Resolution.
"Bondholder" or "holder" shall mean any Registered Owner of any Bond.
"Bond Interest Account" shall mean the account so designated created
pursuant to Section 2.11 of this Resolution.
"Bond Principal Account" shall mean the account so designated created
pursuant to Section 2.11 of this Resolution.
"Bond Redemption Account" shall mean the account so designated created
pursuant to Section 2.11 of this Resolution.
"Bond Registrar" or "Registrar" shall mean the officer of the City or the bank
or trust company which the City may from time to time designate to perform the duties
herein set forth for the Registrar of the 1987 Bonds.
"Bond Reserve Account" shall mean the account so designated created
pursuant to Section 2.11 of this Resolution.
"Bond Year" shall mean the one year period ending on the anniversary dates of
the maturity dates of the Bonds.
"Capitalized Interest" shall mean the amount of interest to become due and
payable on the Bonds during the construction period of the Project and for such reasonable
period thereafter as the City shall determine, or such other amount as the City shall deem
necessary or advisable, as shall be set forth in a Resolution of the City adopted at the
time of sale of the Bonds.
"City" shall mean the City of Atlantic Beach, Florida, a municipal corporation
of the State of Florida, or any successor thereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended, including
any temporary, proposed and final regulations promulgated pursuant thereto or pursuant
to any predecessor provisions of the Internal Revenue Code of 1954, as amended.
"Construction Fund" shall mean the fund so designated created pursuant to
Section 2.10 of this Resolution.
"Consulting Engineers" shall mean Bessent, Hammack & Ruckman, Inc. and
such other qualified engineers, having favorable repute or skill and experience, with
respect to the acts and duties to be provided to the City, as employed or retained by the
City to perform the acts and carry out the duties herein provided.
"Costs of the Projects" or "Costs" shall include those items of cost set forth in
Section 1.04 of this Resolution.
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"County" shall mean Duval County, Florida, a political subdivision of the State
of Florida, or any successor thereto.
"Debt Service Fund" shall mean the 1987 Special Assessment Debt Service
Fund, so designated created pursuant to Section 2.11 of this Resolution.
"Debt Service Reserve Requirement" shall mean an amount equal to the
Maximum Annual Debt Service Requirements on all Bonds then Outstanding or such lesser
amount as, in the opinion of nationally recognized bond counsel, is necessary to comply
with the provisions of Section 103 of the Code such that interest on the Bonds is excluded
from gross income for Federal income tax purposes.
"Electric Franchise Tax Revenues" means the revenues derived by the City
from the electric franchise granted to Jacksonville Electric Authority by the City
pursuant to Ordinance No. 40-86-14 of the City, as the same may from time to time be
extended or renewed.
"Governmental Obligations" shall mean direct obligations of, or obligations the
principal of and the interest on which are unconditionally guaranteed by, the United
States of America, and shall also include any certificates or any other evidence of an
ownership interest in the aforementioned obligations or in specified portions thereof
(which may consist of specified portions of interest thereon).
"Issuer" shall mean the City.
"Local Option Gas Tax Revenues" means the amounts distributed to the City
pursuant to Section 336.025, Florida Statutes (Supp. 1986) and derived from the local
option gas tax levied by the City of Jacksonville pursuant thereto.
"Maximum Annual Debt Service Requirement" for any series of Bonds, shall
mean the maximum annual Principal and Interest Requirements for the then current or
any future Bond Year during the remaining life of the Bonds.
"Outstanding" or "Outstanding Bonds" shall mean, as of any particular date,
the aggregate of all Bonds issued, authenticated and delivered under this Resolution,
except:
(1) Bonds cancelled after purchase in the open market or because of
payment at or redemption prior to maturity;
(2) Bonds in lieu of or in substitution for which other Bonds shall have
been issued, authenticated and delivered pursuant to this Resolution; and
(3) Bonds which are paid or for which provision for payment has been
made within the meaning of Section 2.17 hereof.
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"Parity Bonds" shall mean any bond issued pursuant to Section 2.15 hereof.
"Paying Agent" shall mean the bank or trust company which the City may from
time to time designate to serve as such under the Resolution.
"Pledged Funds" shall mean the proceeds of the Bonds until expended in
accordance with the provisions of this Resolution, the investment earnings on moneys held
in the funds and accounts under this Resolution, the Special Assessments Revenues, the
Electric Franchise Tax Revenues, and, to the extent herein provided, the Local Option
Gas Tax Revenues.
"Principal and Interest Requirements" for any Bond Year, as applied to the
Bonds, shall mean the sum of:
(a) the amount required to pay the interest on the Bonds then
Outstanding which is payable in such Bond Year, less any accrued or capitalized interest
on deposit in the Bond Interest Account and available for such purpose; and
(b) the amount required to pay the principal of the Bonds then
Outstanding either by virtue of maturing installments of principal or by virtue of
Amortization Installments which are payable in such Bond Year.
"Project" shall mean the acquisition and construction of certain water and
sewer improvements and road and drainage improvements, including, but not limited to,
the construction or reconstruction of water and/or sewer mains, laterals, and other
distribution facilities, roadways, and roadway drainage facilities, including the necessary
appurtenances thereto; all as more particularly set forth in the Assessments Resolutions.
"Record Date" shall mean the fifteenth day of the calendar month (whether or
not a business day) next preceding any interest payment date.
"Refunding Bonds" shall mean any bond of the City ranking on a parity with
the 1987 Bonds and any Parity Bonds which shall hereafter be issued pursuant to Section
2.14 hereof.
"Registered Owners" shall mean those persons whose names and addresses
appear on the registration books for the Bonds, at the point in time when registered
ownership of the Bonds is to be determined unless a contrary intent is clearly indicated by
the context, maintained by the Bond Registrar.
"Series 1987 Bond Amortization Account" shall mean the account so
designated created pursuant to Section 2.11 hereof.
"Special Assessments Revenues" shall mean the collections of Assessments
made by the City pursuant to the Assessments Resolutions from the properties listed in
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the special assessments rolls of the Project, including, in the case of property owners
electing to pay Assessments in installments, interest on the unpaid principal of
Assessments outstanding from time to time, and any and all rights to receive the same,
after deducting the costs of collecting delinquent Assessments.
"Term Bonds" shall mean Bonds maturing on a single date which are subject to
mandatory redemption from Amortization Installment deposits.
"Transportation Ratio" shall mean the proportion of total Costs of the Project
funded from the proceeds of the Bonds and incurred for road and roadway drainage
purposes.
Section 1.03. FINDINGS. It is hereby ascertained, determined and
declared that:
A. It is necessary and desirable to acquire and construct the Project, as
provided herein, in order to preserve and protect the public health, safety and welfare of
the inhabitants of the City.
B. The Cost of all or a part of the Project will be paid from the
proceeds of the issuance and sale of the Bonds herein authorized. All such Bonds and the
interest thereon will be payable from the Pledged Funds.
C. The Pledged Funds are not now pledged or encumbered in any
manner, other than as set forth herein.
D. The City has, pursuant to law, duly determined in the Assessments
Resolutions that each lot or parcel of Benefited Property will be specially benefited by
the Project in excess of the amounts of the Assessments to be levied thereon; and, prior
to the issuance of the Bonds, will duly equalize, approve, confirm and record the
Assessments Liens in a principal amount at least equal to the principal amount of Bonds to
be issued, and the Assessments Liens will be legal, valid and binding liens upon the
Benefited Property until paid.
E. All of the Costs of the Project payable from the proceeds of the
Bonds will be specially assessed upon the Benefited Property. The Assessments shall be
payable at the times and in the manner provided in the Assessments Resolutions.
F. The proceeds of the Bonds shall be used only to finance the Costs
of the Project to the extent that the Costs of the Project will be assessed against the
Benefited Property; and the proceeds of the Bonds shall not be used to finance the Costs
of the Project in an amount greater than the amount of the Assessments Liens.
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G. The estimated amount of Special Assessments Revenues to be
collected from the Benefited Property, together with investment income on moneys held
in all Funds and Accounts created hereunder, and the other Pledged Funds, will be
sufficient to pay the principal of and interest on the Bonds as the same become due and
payable.
H. The Bonds do not constitute a general obligation of the City within
the meaning of any constitutional, statutory or charter provision or limitation, and shall
be payable solely from the Pledged Funds. The City shall never be required or compelled
to levy ad valorem taxes on any property of or in the City to pay the principal of,
premium (if any) and interest on the Bonds or to make any of the required sinking fund,
reserve or other payments required by this Resolution, and such Bonds and the
indebtedness evidenced thereby shall not constitute a lien upon any property of or in the
City, but shall constitute a lien only upon the Pledged Funds.
Section 1.04. AUTHORIZATION OF CONSTRUCTION AND ACQUISITION
OF PROJECT. There is hereby authorized the construction and acquisition of the Project
pursuant to the Assessments Resolutions and the plans and specifications on file or to be
on file with the City. The Costs of such Project in addition to the items set forth in the
plans and specifications, may include, but need not be limited to, the acquisition of any
lands, rights of ways or interest therein or any other properties deemed necessary or
convenient therefor; engineering, legal and financing expenses, expenses for estimates of
costs and of revenues; expenses for plans, specifications and surveys; the fees of the fiscal
agents, financial advisors or consultants; operating costs incurred during construction;
administrative expenses relating solely to the engineering, design, construction and
acquisition of the Project and collection of Assessments, including salaries and reasonable
overhead of City's qualified in-house personnel; the capitalization of interest during
construction of the Project and for a reasonable period thereafter; the creation and
establishment of reasonable reserves for debt service; the discount on the sale of the
Bonds, if applicable; repayment of interim advances and indebtedness; and such other
costs and expenses as may be necessary or incidental to the financing herein authorized
and the construction and acquisition of the Project and the placing of same in operation.
Section 1.05. THIS RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the acceptance of the Bonds authorized to be issued hereunder by the
Registered Owners from time to time, this Resolution shall be deemed to be and shall
constitute a contract between the City and such Registered Owners. The covenants and
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agreements herein set forth to be performed by the City shall be for the equal benefit,
protection and security of the legal Registered Owners of any and all of the Bonds, all of
which shall be of equal rank and without preference, priority or distinction of any of the
Bonds over any other thereof, except as expressly provided therein and herein.
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ARTICLE II
BONDS
Section 2.01. AUTHORIZATION OF BONDS. Subject and pursuant to the
provisions hereof, obligations of the City to be known as "Water and Sewer and Road and
Drainage Improvement Special Assessment Revenue Bonds, Series 1987," herein defined as
the "1987 Bonds" are authorized to be issued in the aggregate principal amount of not
exceeding $3,800,000 (Three Million Eight Hundred Thousand Dollars).
Before the Bonds authorized to be issued pursuant to this Section shall be
delivered by the City, there shall be delivered to the purchasers of such Bonds the
following with respect to such Bonds:
(a) a copy, certified by the City Clerk, of the resolution of the City
specifying the redemption provisions, if any, the interest rate and maturity of each Bond,
approving the manner of sale and awarding the Bonds, directing the delivery of the Bonds
to or upon the order of the purchasers therein named upon payment of the purchase price
therein set forth and specifying such other matters as may be permitted by this
Resolution or deemed by the City to be reasonable and necessary, and not otherwise in
conflict with this Resolution;
(b) a certificate of the Finance Director specifying (i) the sum to be
paid from bond proceeds and deposited to the credit of the Bond Reserve Account which
shall, together with other funds, if any, so deposited, be equal to the Debt Service
Reserve Requirement, (ii) the amount of Capitalized Interest to be deposited in the Bond
Interest Account, and (iii) the amount to be deposited to the credit of the Construction
Fund;
(c) a copy, certified by the City Clerk, of this Resolution, as amended
or supplemented from time to time;
(d) an opinion of the City Attorney stating that the signer is of the
opinion that (i) the Project area has been duly and validly established and the Assessments
Liens are valid and enforceable liens on the Benefited Property, and (ii) the issuance of
the applicable installment of Bonds has been duly authorized and that all conditions
precedent to the delivery of the applicable installment of Bonds have been fulfilled.
Section 2.02. DESCRIPTION OF BONDS. The Bonds shall be designated
"R- " and numbered consecutively from one upward in order of authentication; shall be
in the denomination of $5,000 each or integral multiples thereof; shall be dated; shall bear
interest at such rate or rates not exceeding the maximum rate allowed by law, such
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interest to be payable semiannually on such dates and in such years and amounts; and shall
mature on such dates, in such years, and in such amounts, all as shall be fixed by
resolution of the City adopted prior to the delivery of the Bonds.
The Bonds shall be issued in fully registered form, without coupons; shall be
payable with respect to both principal, premium (if any), and interest at maturity, upon
presentation and surrender thereof on the date fixed for maturity or redemption thereof
at the office of the Paying Agent; shall be payable with respect to principal, premium (if
any) and interest in any coin or currency of the United States which at the time of
payment is legal tender for the payment of public or private debts; and shall bear interest
from their date of original issuance or from the most recent date to which interest has
been paid, until payment of the principal sum, payable in accordance with and pursuant to
the terms of the Bonds.
Interest on the Bonds shall be paid by check or draft mailed to the
Registered Owners, at their addresses as they appear on the Bond Register at the close of
business on the Record Date, irrespective of any transfer of the Bonds subsequent to such
Record Date and prior to such interest payment date, unless the City shall be in default in
the payment of interest due on such interest payment date. In the event of any such
default, such defaulted interest shall be payable to the Registered Owners at the close of
business on a special record date for the payment of defaulted interest as established by
notice mailed to the persons in whose names such Bonds are registered not less than
fifteen (15) days preceding such special record date. Such notice shall be mailed to the
person in whose name such Bond is registered at the close of business on the fifth (5th)
day preceding the date of mailing.
If the date for payment of the principal of, premium, if any, or interest on the
Bonds shall be a Saturday, Sunday, legal holiday or a day on which the banking institutions
in the city where the Paying Agent is located are authorized by law or executive order to
close, then the date for such payment shall be the next succeeding day which is not a
Saturday, Sunday or legal holiday or a day on which such banking institutions are
authorized to close, and payment on such date shall have the same force and effect as if
made on the nominal date of payment.
Section 2.03. EXECUTION OF BONDS. The Bonds shall be executed in the
name of the City by the Mayor and its City Manager and attested by the City Clerk, and
approved as to form, sufficiency and correctness by the City Attorney, either manually or
with his facsimile signature, and the official seal of the Issuer or a facsimile thereof shall
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be affixed thereto or reproduced thereon. The facsimile signatures of such officers may
be imprinted or reproduced on the Bonds. The Certificate of Authentication of the Bond
Registrar, hereinafter described, shall appear on the Bonds, and no Bond shall be valid or
obligatory for any purpose or be entitled to any security or benefit under this Resolution
unless such certificate shall have been duly executed on such Bond. The authorized
signature for the Bond Registrar shall be either manual or facsimile; provided however,
that at least one of the signatures appearing on the Bonds, shall at all times be a manual
signature. In case any officer whose signature shall appear on any Bonds shall cease to be
such officer before the delivery of such Bonds, such signature or facsimile shall
nevertheless be valid and sufficient for all purposes the same as if he had remained in
office until such delivery. Any Bonds may be signed and sealed on behalf of the City by
such person who at the actual time of the execution of such Bonds shall hold the proper
office with the City, although at the date of enactment of this Resolution such person
may not have held such office or may not have been so authorized.
Section 2.04. NEGOTIABILITY, REGISTRATION, TRANSFER AND
EXCHANGE.
A. Negotiability. The Bonds shall be and shall have all of the qualities and
incidents of negotiable instruments under the Uniform Commercial Code-Investment
Securities of the State of Florida, and each successive holder, in accepting any of the
Bonds shall be conclusively deemed to have agreed that such Bonds shall be and have all of
the qualities and incidents of negotiable instruments under the Uniform Commercial
Code-Investment Securities of the State of Florida.
B. Registration, Transfer and Exchange. There shall at all times be a Bond
Registrar for the Bonds. The Bond Registrar shall maintain the registration books of the
City and be responsible for the transfer and exchange of the Bonds. The City shall, prior
to the proposed date of delivery of the Bonds, by resolution designate a Bond Registrar
and Paying Agent. The Bond Registrar shall maintain the books for the registration of the
transfer and exchange of the Bonds in compliance with the Florida Registered Public
Obligations Act and an agreement to be executed between the City and the Bond
Registrar on or prior to the date of delivery of the Bonds. Such agreement shall set forth
in detail the duties, rights and responsibilities of the parties thereto.
All Bonds presented for transfer, exchange, redemption or payment (if so
required by the City), shall be accompanied by a written instrument or instruments of
transfer or authorization, in form and with guaranty of signature satisfactory to the City
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and the Registrar duly executed by the Registered Owner or by his duly authorized
attorney.
The Bonds may be transferred upon the registration books upon delivery of
such Bonds to the Bond Registrar, together with written instructions as to the details for
the transfer of such Bonds, along with the social security or federal employer identifi-
cation number of such transferee and, if such transferee is a trust, the name and social
security or federal employer identification numbers of the settlor and beneficiaries of the
trust, the date of the trust and the name of the trustee. No transfer of any Bond shall be
effective until entered on the registration books maintained by the Bond Registrar.
In all cases of the transfer of the Bonds, the Registrar shall enter the transfer
of ownership in the registration books and shall authenticate and deliver in the name of
the transferee or transferees a new fully registered Bond or Bonds of authorized
denominations of the same maturity and interest rate for the aggregate principal amount
which the Registered Owner is entitled to receive at the earliest practicable time in
accordance with the provisions of this Resolution. Any Bond or Bonds shall be
exchangeable for a Bond or Bonds of the same maturity and interest rate, in any
authorized denomination, but in a principal amount equal to the unpaid principal amount
of the Bond or Bonds presented for exchange. Bonds to be exchanged shall be surrendered
at the principal office of the Registrar, and the Bond Registrar shall deliver in exchange
therefor the Bond or Bonds which the Bondholder making the exchange shall be entitled to
receive. The City or the Bond Registrar may charge the Registered Owner of such Bond
for every such transfer or exchange, an amount sufficient to reimburse them for their
reasonable fees and for any tax, fee, or other governmental charge required to be paid
with respect to such transfer or exchange, and may require that such charge be paid
before any such new Bond shall be delivered.
All Bonds delivered upon transfer or exchange shall bear interest from such
date that neither gain nor loss in interest shall result from the transfer or exchange.
Section 2.05. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In
case any Bond shall become mutilated, or be destroyed, stolen or lost, the City may in its
discretion issue and deliver a new Bond of like tenor as the Bond so mutilated, destroyed,
stolen or lost, in exchange and substitution for such mutilated Bond upon surrender and
cancellation of such mutilated Bond or in lieu of and substitution for the Bond destroyed,
stolen or lost, and upon the holder furnishing the City proof of his ownership thereof and
satisfactory indemnity and complying with such other reasonable regulations and
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conditions as the City may prescribe and paying such expenses as the City may incur. All
Bonds so surrendered shall be cancelled by the Bond Registrar for the Bonds. If any of the
Bonds shall have matured or be about to mature, instead of issuing a substitute Bond, the
City may pay the same, upon being indemnified as aforesaid, and if such Bonds be lost,
stolen or destroyed, without surrender thereof.
Any such duplicate Bonds issued pursuant to this section shall constitute
original, additional contractual obligations on the part of the City whether or not the lost,
stolen or destroyed Bonds be at any time found by anyone, and such duplicate Bonds shall
be entitled to equal and proportionate benefits and rights as to lien on and source and
security for payment from the funds as hereinafter pledged, to the same extent as all
other Bonds issued hereunder.
Section 2.06. TEMPORARY BONDS. All Bonds issued and to be issued
under this Resolution may be initially issued in temporary form exchangeable for
definitive bonds when ready for delivery. The temporary bonds shall be of such
denomination as may be determined by the City, and may contain such references to any
of the provisions of this Resolution as may be appropriate. Every temporary bond shall be
executed by the City upon the same conditions and in substantially the same manner as
the definitive bonds. If the City issues temporary bonds it will execute and furnish
definitive bonds without delay and thereupon the temporary bonds shall be surrendered for
cancellation in exchange therefor at an office designated by the City, and the City shall
deliver in exchange for such temporary bonds an equal aggregate principal amount of
definitive bonds of authorized denominations. Until so exchanged, the temporary bonds
shall be entitled to the same benefits under this Resolution as definitive bonds issued and
delivered hereunder.
Section 2.07. PROVISIONS FOR REDEMPTION. The Bonds either (1) shall
be stated to mature in annual installments on such date, years and amounts as the City
shall determine by resolution prior to the sale of the Bonds, or (2) shall be stated to
mature in a single year with provision for mandatory redemption on annual or semiannual
dates from Amortization Installments, in such years and in such amounts as the City shall
determine by resolution prior to the sale of the Bonds, or (3) shall be stated to mature
pursuant to a combination of such principal payment methods as the City shall determine
by resolution prior to the sale of the Bonds. The Bonds shall be further subject to
mandatory redemption or redemption at the option of the City upon such terms as shall be
determined by resolution prior to the sale of the Bonds.
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The Bonds in denominations greater than $5,000 shall be deemed to be an
equivalent number of Bonds of the denomination of $5,000. In the event a Bond is of a
denomination greater than $5,000, a portion of such may be redeemed, but Bonds shall be
redeemed only in the principal amount of $5,000 or any integral multiple thereof. In the
event any of the Bonds or portions thereof are redeemable as aforesaid, notice thereof
identifying the Bonds or portions thereof to be redeemed will be given by the Bond
Registrar by publishing such redemption notice in a newspaper of general circulation
within the City and by mailing a copy of the redemption notice by first-class mail
(postage prepaid) to the Registered Owner of each Bond to be redeemed in whole or in
part at the address shown on the registration books. Such notice shall be published and
mailed, respectively, not more than thirty (30) days and not less than fifteen (15) days
prior to the date fixed for redemption. Failure to give such notice by mailing to any
Registered Owner of Bonds, or any defect therein, shall not affect the validity of any
proceeding for the redemption of the Bonds. All Bonds or portions thereof so called for
redemption will cease to bear interest after the specified redemption date provided funds
for their redemption are on deposit at the place of payment at that time.
Upon surrender of any Bond for redemption in part only, the City shall issue
and deliver to the Registered Owner thereof, the costs of which shall be paid by the City,
a new Bond or Bonds of authorized denominations in aggregate principal amount equal to
the unredeemed portion surrendered.
Whenever any Bonds shall be delivered to the Bond Registrar for cancellation,
upon payment of the principal amount thereof, or for replacement, transfer or exchange,
such Bonds shall be cancelled and, upon request of the City, destroyed by the Bond
Registrar. Counterparts of the certificate of destruction evidencing any such destruction
shall be furnished to the City.
Section 2.08. FORM OF BONDS. The text of the Bonds and the statement of
validation shall be in substantially the following forms with such omissions, insertions and
variations as may be necessary and desirable and authorized and permitted by this
Resolution or by any subsequent ordinance or resolution adopted prior to the issuance
thereof:
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(Form of Bond)
No. $
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF ATLANTIC BEACH
WATER AND SEWER AND ROAD AND DRAINAGE IMPROVEMENT
SPECIAL ASSESSMENT REVENUE BOND, SERIES 1987
Rate of Interest Maturity Date Date of Issue CUSIP
Registered Owner:
Principal Amount:
KNOW ALL MEN BY THESE PRESENTS, that the City of Atlantic Beach,
Florida, a municipal corporation of the State of Florida (hereinafter called "City"), for
value received, hereby promises to pay to the Registered Owner identified above, or
registered assigns, on the Maturity Date specified above, unless this Bond shall have been
called for earlier redemption and payment of the redemption price shall have been duly
made or provided for, the Principal Amount shown above solely from the revenues
hereinafter mentioned, and to pay solely from such revenues, interest on said sum from
the Date of Issue of this Bond or from the most recent interest payment date to which
interest has been paid, at the rate of interest per annum set forth above until payment of
such sum, such interest being payable , and semiannually thereafter
on the first day of and the first day of of each year. The
principal of and premium, if any, on this Bond are payable upon presentation and surrender
hereof on the date fixed for maturity or redemption at the office of
(the "Paying Agent") in , . The
interest on this Bond, when due and payable, shall be paid by check or draft mailed to the
person in whose name this Bond is registered, at his address as it appears on the Bond
Register, at the close of business on the Record Date or, in the case of payment after
default, a special record date, as provided in the Resolution hereinafter mentioned. All
amounts due hereunder shall be payable in any coin or currency of the United States which
is at the time of payment legal tender for the payment of public or private debts.
The Bond is one of a duly authorized issue of special assessment bonds of the
City designated Water and Sewer and Road and Drainage Improvement Special Assessment
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Revenue Bonds, Series 1987 (the "Series 1987 Bonds") authorized to be issued in the
aggregate principal amount of $3,800,000 (the "Bonds"). The Bonds have been authorized
to be issued to finance the cost of certain water and sewer and road and drainage
improvements located or to be located in the territorial limits of the City, including, but
not limited to the construction or reconstruction of water and/or sewer mains, laterals,
and other distribution facilities, roadways, roadway drainage facilities including the
necessary appurtenances thereto; all as more particularly set forth in plans and
specifications on file or to be on file with the City (the "Project") pursuant to the
authority of and in full compliance with the Constitution and Statutes of the State of
Florida, including particularly Chapter 170 and Part II of Chapter 166, Florida Statutes
(1985), as amended, Section 336.025, Florida Statutes (Supp. 1986), as amended, and other
applicable provisions of law (the "Act").
This Bond and the interest hereon are payable solely from and secured by a
lien upon and pledge of (i) the proceeds of the Bonds until expended in accordance with
the provisions of the Resolution, (ii) the investment earnings on moneys held in the funds
and accounts created under the Resolution, (iii) the revenues derived by the City from
special assessments (the "Assessments") levied against the properties specially benefitted
by the acquisition and construction of the Project, including interest payable on unpaid
portions thereof, after deducting the costs of collection of delinquent Assessments (the
"Special Assessments Revenues"), (iv) the Electric Franchise Tax Revenues, as defined in
the Resolution, and (v) to the extent provided in the Resolution, the Local Option Gas Tax
Revenues, as defined in the Resolution, all collectively referred to as the "Pledged
Funds", all in the manner provided in the Resolution.
The lien on and pledge of the Pledged Funds secures equally the Bonds of this
issue, and any Parity Bonds which may be issued from time to time under the Resolution.
This Bond does not constitute a general obligation of the City within the
meaning of any constitutional, statutory or charter provision or limitation, and shall be
payable solely from the sources provided herein and in the Resolution. 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 City to levy ad valorem taxes on any property of or in
the City for the payment of the principal of, premium (if any) and interest on this Bond or
the making of any sinking fund, reserve or other payments provided for in the Resolution.
It is further agreed between the City and the Registered Owner of this Bond that this
Bond and the indebtedness evidenced hereby shall not constitute a lien upon any property
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of or in the City, but shall constitute a lien only on the revenue sources provided herein
and in the Resolution, in the manner provided in the Resolution.
(Insert redemption provisions to be established by resolution duly adopted by
the City.)
Bonds in denominations greater than $5,000 Principal Amount shall be deemed
to be an equivalent number of Bonds of the denomination of $5,000 Principal Amount.
Notice of redemption identifying the Bonds or portions thereof to be redeemed will be
given by the Registrar as provided in the Resolution. All Bonds or portions thereof so
called for redemption will cease to bear interest after the specified redemption date
provided funds for their redemption are on deposit at the place of payment at that time.
Upon surrender of any Bond for redemption in part only, the City shall issue and deliver to
the Registered Owner thereof, the costs of which shall be paid by the Registered Owner, a
new Bond or Bonds of authorized denominations in aggregate principal amount equal to
the unredeemed portion surrendered.
(To be inserted where appropriate on face of bond: "Reference is hereby made
to the further provisions of this Bond set forth on the reverse side hereof, and such
further provisions shall for all purposes have the same effect as if set forth on this side.")
In and by the Resolution, the City has made certain covenants with the
Registered Owners of the Bonds of this issue for the terms of which reference is made to
the Resolution.
It is hereby certified and recited that all acts, conditions and things required
to exist, to happen and to be performed precedent to and in the issuance of this Bond
exist, have happened and have been performed in regular and due form and time as
required by the laws and Constitution of the State of Florida applicable thereto, and that
the issuance of the Bonds of this issue does not violate any constitutional or statutory
limitations or provisions; further that the aggregate principal amount of Assessments
when and as levied, the proceeds of which are pledged to the payment of this Bond, are at
least equal to the aggregate principal amount of such Bonds of this issue and of all other
bonds payable therefrom.
This Bond shall have such attributes of negotiability as are provided for under
the Uniform Commercial Code-Investment Securities of the State of Florida.
Subject to the limitations and upon payment of the charges provided in the
Resolution, Bonds may be exchanged for a like aggregate Principal Amount of Bonds of
the same maturity or other authorized denominations and are transferable by the
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4
Registered Owner in person or by his attorney duly authorized in writing at the above-
mentioned office of the Registrar.
The City shall deem and treat the Registered Owner hereof as the absolute
owner hereof (whether or not this Bond shall be overdue) for the purpose of receiving
payment of or on account of principal hereof and interest due hereon and for all other
purposes, and the City shall not be affected by any notice to the contrary.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Resolution until the Certificate of
Authentication of Bond Registrar hereon shall have been executed by the Bond Registrar.
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IN WITNESS WHEREOF, the City of Atlantic Beach, Florida, has issued this
Bond and has caused the same to be executed by the manual or facsimile signatures of the
Mayor and City Manager, and attested by the City Clerk, and its official seal or a
facsimile thereof to be affixed, impressed, imprinted, lithographed or reproduced hereon,
all as of the day of
CITY OF ATLANTIC BEACH, FLORIDA
(SEAL)
Mayor
Attested:
City Manager
City Clerk
Approved as to Form and Correctness:
City Attorney
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CERTIFICATE OF AUTHENTICATION OF BOND REGISTRAR
This Bond is one of the Issue of the within described Bonds. The Rate of Interest,
Maturity Date, Registered Owner and Principal Amount shown above are correct in all
respects and have been recorded, along with the applicable federal taxpayer identification
number and the address of the Registered Owner, in the Bond Register maintained at the
principal offices of the undersigned.
Bond Registrar
Authorized Signature
Date of Authentication
The following abbreviations, when used in the inscription on the face of the
within Bond, shall be construed as though they were written out in full according to
applicable laws or regulations:
TEN COM - as tenants in UNIF GIF MIN ACT -
common (Cust.)
TEN ENT - as tenants by the Custodian for
entireties (Minor)
JT TEN - as joint tenants with under Uniform Gifts to Minors Act
right of survivor- of
ship and not as (State)
tenants in common
Additional abbreviations may also be used though not in list above.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned
(the "Transferor"), hereby sells, assigns, and transfers unto
(Please insert name and Social Security or Federal Employer
Identification number of assignee) the within Bond and all rights thereunder, and hereby
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.
Date:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed
by a member firm of the New York Stock
Exchange or a commercial bank or a trust
company.
NOTICE: No transfer will be registered and
no new Bond will be issued in the name of
the Transferee, unless the signature(s) to
this assignment corresponds with the name
as it appears upon the face of the within
Bond in every particular, without alteration
or enlargement or any change whatever and
the Social Security or Federal Employer
Identification Number of the Transferee is
supplied."
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Section 2.09. SECURITY FOR BONDS. The payment of the principal of
and interest on the Bonds shall be payable solely from and secured forthwith equally and
ratably by a pledge of and lien upon the Pledged Funds, and the City hereby grants to the
holders of the Bonds a first lien on and pledge of such Pledged Funds. Except as provided
in Section 2.14 and 2.15 hereof, the City covenants that, until all the Bonds authorized
and issued under the provisions of this Resolution and the interest thereon shall have been
paid or provision made for their payment, it will not create or permit to be created any
charge or lien on the Pledged Funds or the funds and accounts created hereunder ranking
equal with or prior to the pledge or lien securing the Bonds issued pursuant to this
Resolution.
Section 2.10. APPLICATION OF PROCEEDS OF BONDS. All moneys
received from the sale of the Bonds, including interest and premium, if any, shall be
applied by the City simultaneously with their delivery to the purchasers thereof, as
follows:
A. All accrued interest to the date of delivery of the Bonds and all
Capitalized Interest, if any, on the Bonds, shall be deposited to the credit of the Bond
Interest Account, hereinafter created, from which such interest will be paid.
B. Unless provided from other funds of the City on the date of issuance of
the Bonds, a sum equal to the Debt Service Reserve Requirement shall be deposited in the
Bond Reserve Account in the Debt Service Fund, herein created and established, and shall
be used only for the purposes provided therefor.
C. The balance of the moneys remaining after making all the deposits and
payments provided for above shall be deposited by the City into the Construction Fund
hereby created, and shall be withdrawn, used and applied by the City solely to the
payment of the Costs of the Project and purposes incidental thereto, as herein described
and set forth, and the City covenants and agrees to commence and proceed with
completion of the Project with due diligence after issuance of the Bonds.
Section 2.11. COVENANTS. The City covenants with the Registered
Owners of any and all of the Bonds for as long as any of the principal of and interest on
any of the Bonds shall be outstanding and unpaid, or until payment has been provided for
as herein permitted, or until there shall have been set apart in the Debt Service Fund a
sum sufficient to pay when due the entire principal of the Bonds remaining unpaid,
together with interest accrued or to accrue thereon, that:
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A. Creation of Debt Service Fund and Certain Accounts. The City hereby
creates a special fund designated "1987 Special Assessment Debt Service Fund" (herein
called the "Debt Service Fund"). Six separate accounts shall be created in the Debt
Service Fund and designated "Bond Interest Account," "Bond Principal Account," "Bond
Redemption Account," "Extraordinary Redemption Account," "Bond Reserve Account,"
and "Series 1987 Bond Amortization Account."
The moneys in each of said accounts shall be held in trust and applied as
hereinafter provided with regard to each such account and, pending such application, shall
be subject to a lien and charge in favor of the Registered Owners of the Bonds issued and
Outstanding under this Resolution and for the further security of such Registered Owners
until paid out or transferred as hereinafter provided.
B. Deposits in Debt Service Fund, Excess Moneys. The City covenants that
upon receipt, the Special Assessments Revenues will be deposited in the Debt Service
Fund to the credit of the following accounts in the following order:
(1) to the credit of the Bond Interest Account, such amounts as shall
be required, together with any balances held therein and available for the purpose, to pay
the interest on all Bonds then Outstanding and all interest accrued on such sums which
are past due, which are, will be or become payable during said Bond Year, taking into
account (i) accrued interest paid by the purchasers of the Bonds, if any, and (ii) available
Capitalized Interest, if any, and to pay fees, expenses and charges of the Paying Agent
and the administrative expenses of the City and interest on any such sums which are past
due;
(2) to the credit of the Bond Principal Account, such amounts as shall
be required, together with any balances held therein and available for the purpose, to pay
the total of the principal on all Bonds then Outstanding which will be or become payable
on the next ensuing Bond principal payment date during said Bond Year, plus interest
accrued on such sums which are past due;
(3) to the credit of the Series 1987 Bond Amortization Account, such
amounts, if any, as shall be required, together with any balances held therein and
available for the purpose, to pay the Amortization Installments on all 1987 Bonds then
Outstanding which will be or become callable for mandatory redemption during said Bond
Year;
(4) to the credit of the Bond Reserve Account, such amounts, if any,
as shall be required to increase the amount contained therein to an amount equal to the
Debt Service Reserve Requirement on all Bonds then Outstanding;
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(5) to the credit of the Extraordinary Redemption Account, (i) all
surplus moneys in the Construction Fund pursuant to Subsection G, (ii) all prepayments of
principal of Assessments resulting from foreclosure of Assessments Liens or from
payments in lieu of such foreclosure, or from other enforcement of collection remedies
and (iii) all other prepayments of principal of Assessments, including, but not limited to,
voluntary prepayment within thirty (30) days following completion of the Project such
funds to be used to effect extraordinary redemptions of Bonds in accordance with
extraordinary redemption provisions of the resolution to be adopted pursuant to Section
2.01; and
(6) to the credit of the Bond Redemption Account, (i) all Special
Assessments Revenues not required to be deposited in other accounts of the Debt Service
Fund pursuant to Subsections (1) through (5) of this Subsection B, (ii) all earnings on the
aforesaid accounts not required to be retained therein to bring the balances up to the
required levels, and (iii) any excess amounts standing to the credit of the Bond Reserve
Account from time to time, such funds to be used to effect special redemptions of Bonds
in accordance with the special redemption provisions of the resolution to be adopted
pursuant to Section 2.01 hereof.
C. Withdrawals from Debt Service Fund.
(1) On or before the date on which the same shall fall due, there shall be
withdrawn from the Bond Interest Account and the Bond Principal Account and deposited
with the Paying Agent in immediately available funds sufficient money for paying the
interest on and the principal of the Bonds as the same shall fall due: Moneys held for the
credit of the Extraordinary Redemption Account and the Bond Redemption Account shall
be held and applied to redeem 1987 Bonds in accordance with the Resolution referred to in
Section 2.01. Moneys held for the credit of the Bond Reserve Account shall be used for
the purpose of paying the Principal and Interest Requirements, or any part thereof, in any
Bond Year if the amounts in the accounts mentioned in clauses (1), (2), and (3) of
Subsection B shall be insufficient for their respective payment purposes, and for the
purpose of paying debt service upon final maturity of the Bonds.
(2) Moneys held for redemption of Bonds at a premium shall be transferred
to the Paying Agent immediately upon becoming available for such redemption. The City
shall certify such fact in writing to the Paying Agent prior to the giving of notice of such
redemption.
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(3) Any amount remaining to the credit of the Bond Redemption Account
after the special redemptions of Bonds referred to in Subsection B(6) shall be transferred
annually to the Bond Interest Account of the Debt Service Fund and applied to the next
interest payment on the Bonds simultaneously with the first deposit therein pursuant to
Subsection B(1) hereof.
D. Bond Amortization Accounts. The City shall establish as a part of the
Debt Service Fund a Series 1987 Bond Amortization Account and such other bond
amortization accounts for each series of Refunding Bonds and Parity Bonds as may be
directed in the supplemental resolution or resolution establishing such series. The City
shall use the bond amortization account for each series to purchase or redeem Term Bonds
of such series. If at any time all the Bonds of any series shall have been purchased,
redeemed or paid, the City shall make no further transfers to the bond amortization
account for such series and shall transfer any balance then in such account to the Bond
Redemption Account of the Debt Service Fund. Purchases and redemption out of such
bond amortization accounts shall be made as follows:
(1) Series 1987 Bond Amortization Account. The City shall apply the
Amortization Installments deposited to the Series 1987 Bond Amortization Account (less
any moneys applied to the purchase of Series 1987 Bonds pursuant to the next sentence
hereof) on the redemption dates established by the resolution described in Section 2.01
hereof, to the redemption by lot, in the amounts and the manner and on the dates set
forth in said resolution and in Article II hereof, of the Series 1987 Bonds then subject to
mandatory redemption, at a redemption price of 100% of the principal amount thereof.
The City may apply moneys from time to time available in said Account to the purchase
of Series 1987 Bonds subject to mandatory redemption, at prices not higher than the
principal amount thereof, in lieu of redemption as aforesaid, provided that firm purchase
commitments are made before the notice of redemption would otherwise be required to be
given. In such event, the Amortization Installments for the period in which such Bonds
are purchased shall, for all purposes hereunder, be reduced by an amount equal to the
aggregate principal amount thereof, and the difference between the face amount of the
Bonds purchased and the purchase price (exclusive of accrued interest) shall be
transferred to the Bond Redemption Account.
Accrued interest on Bonds redeemed or purchased shall be paid from the Bond
Interest Account, provided that, in the case of a purchase prior to a mandatory
redemption date, the City, in its discretion, may pay such accrued interest from the Bond
LKL-03/06/87-95B-2548 -25-
Amortization Account pending maturity of investments in the Bond Interest Account in
the amount of accrued interest on purchased Bonds so paid from the Series 1987 Bond
Amortization Account.
(2) Bond Amortization Accounts for Other Series. The City shall apply the
amounts deposited in bond amortization accounts for other series of Bonds as provided in
the supplemental resolution establishing such series.
E. Moneys Held by Paying Agent to be Held in Trust: Unclaimed
Moneys. All moneys which shall have been withdrawn from the Debt Service Fund and
deposited with the Paying Agent for the purpose of paying any of the Bonds hereby
secured, either at the maturity thereof or upon call for redemption, shall be held in trust
for the Registered Owners of the Bonds for the payment of which such deposits were
made. Any moneys which shall be so set aside or deposited and which shall remain
unclaimed by the Registered Owners of such Bonds for a period of four (4) years after the
date on which the principal of such Bonds shall have become due and payable, either at
stated maturity or earlier redemption date (or such longer period as shall be required by
Florida law) shall be paid to the City or to such officer, board or body as may then be
required by law to receive the same, and thereafter the Registered Owners of such Bonds
shall look only to the City or to such officer, board or body, as the case may be, for
payment and then only to the extent of the amounts so received without any interest
thereon, and the Paying Agent shall have no responsibility with respect to any of such
moneys.
F. Creation of Construction Fund; Withdrawals. The City hereby creates a
special fund designated "Atlantic Beach Water and Sewer and Road and Drainage
Improvement Special Assessment Revenue Bonds, Series 1987 Construction Fund" (herein
called the "Construction Fund"). Moneys on deposit in the Construction Fund shall be used
to pay Costs of the Project as the same are incurred. The City Clerk of the City is
hereby authorized to pay the Costs of the Project, and the City shall be obligated to make
disbursements from the Construction Fund to pay such costs. The City Clerk shall
authorize such transfer only upon receipt of a requisition signed by the Consulting
Engineers certifying that the work to which the payment relates has been accomplished in
a manner satisfactory to the City and that the amount to be paid does not exceed the
obligation on account of which the payment is made. Such requisition shall identify the
portion of the Project to which it relates and shall state (a) the name and address of the
person or entity to whom the payment is to be made; (b) the amount to be paid; (c) the
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I
obligation on account of which the payment is to be made, showing the total obligation,
any amount previously paid, and the unpaid balance; (d) that the obligation was properly
incurred and is a proper charge against the Construction Fund; (e) that the amount
requisitioned is due and unpaid; and (f) that with respect to items covered in the
requisition, there are no vendors', mechanics', or other liens, bailment leases or
conditional sale contracts which should be satisfied or discharged before the payments as
requisitioned therein are made, or which will not be discharged by such payment.
G. Use of Funds Remaining in Construction Fund. Any amount remaining
to the credit of the Construction Fund established hereunder following the completion of
the Project shall be transferred to the credit of the Special Redemption Account and shall
be used to purchase or redeem Bonds on the first available redemption date; provided,
however, that the City shall retain in the Construction Fund the proceeds of surety bonds
or surety deposits which are to be used for repair or reconstruction of the Project.
H. Investment of Funds. Moneys held for the credit of any fund or account
established hereunder shall, as nearly as may be practicable, be invested and reinvested by
the City in
(a) Governmental Obligations;
(b) bonds, debentures, notes or other evidence of indebtedness payable in
cash issued by any one or a combination of any federal agencies whose obligations
represent full faith and credit of the United States of America;
(c) the following investments fully insured by the Federal Deposit Insurance
Corporation: (a) certificates of deposit, (b) savings accounts, (c) deposit accounts, or (d)
depository receipts of a bank;
(d) certificates of deposit, either in excess of FDIC insurance or without
FDIC insurance, properly secured at all times, by collateral security described in (a) and
(b) above or secured as required for a "qualified public depository" under the Florida
Security for Public Deposits Act. Such agreements are only acceptable with commercial
banks, savings and loans associations and mutual savings banks or other "qualified public
depository";
(e) commercial paper rated in the highest rating category by at least two
nationally recognized rating agencies or commercial paper backed by a letter of credit or
line of credit rated in the highest rating category;
(f) written repurchase agreements with any bank, savings institution or trust
company which is insured by the Federal Deposit Insurance Corporation or with any
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broker-dealer with retail customers which falls under Securities Investors Protection
Corporation protection, provided that such repurchase agreements are fully secured by (a)
above or obligations of any agency of instrumentality of the United States of America,
and provided further that (i) such collateral is held by the City in the trust funds
established hereunder or by any agent acting solely for the City during the term of such
repurchase agreement, (ii) such collateral is not subject to liens or claims of third parties,
(iii) such collateral has a market value (determined at least once every 14 days) at least
equal to the amount invested in the repurchase agreement plus accrued interest, (iv) the
City has a perfected first security interest in the collateral, (v) the agreement shall be for
a term not longer than 270 days, and (vi) the failure to maintain such collateral at the
level required in (iii) above will required the City to liquidate the collateral;
(g) Pre-refunded municipal obligations defined as follows: any bonds or
other obligations of any state of the United States of America or of any agency,
instrumentality or local governmental unit of any such state (i) which are not callable at
the option of the obligor prior to maturity or as to which irrevocable has been given by
the obligor to call such bonds or obligations on the date specified in the notice, (ii) which
are fully secured as to principal and interest and redemption premium, if any, by a fund
consisting only of cash or Federal Securities which fund may be applied only to the
payment of such principal of and interest and redemption premium, if any, on such bonds
or other obligations on the maturity date or dates thereof or the specified redemption
date or dates pursuant to such irrevocable instructions, as appropriate, (iii) which fund is
sufficient, as verified by an independent certified public accountant, to pay principal of
and interest and redemption premium, if any, on the bonds or other obligations described
in this paragraph (c) on the maturity date or date thereof or on the redemption date or
dates specified in the irrevocable instructions referred to in subclause (i) of this paragraph
(c), as appropriate and (iv) which are rated in the highest rating category of either
Standard (Sc Poor's Corporation or Moody's Investors Service, or any successor thereto.
(h) investments pursuant to the Investment of Local Government Surplus
Funds Act, being Part IV, Chapter 218, Florida Statutes.
Moneys held for the credit of the Construction Fund, the Local Option Gas Tax
Fund, the Franchise Fund, the Bond Interest Account, the Bond Principal Account, the
Special Redemption Account, the Bond Redemption Account and any Bond Amortization
Account shall be invested in obligations which shall mature or which shall be subject to
redemption by the holder thereof at the option of such holder not later than the date when
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the moneys held for the credit of said accounts will be required for the purposes intended.
Moneys held for the credit of the Bond Reserve Account shall be invested in obligations
which shall mature or which shall be subject to redemption by the holder thereof at the
option of such holder not later than ten years from the date of acquisition. Moneys held
for the credit of the Bond Reserve Account which in the aggregate exceed an amount
approved by Bond Counsel shall be invested in either (i) obligations having a yield that
does not exceed the yield of the Bonds determined in accordance with Section 148 of the
Code and based upon the market price of the obligation or (ii) obligations the interest on
which is excluded from gross income under Section 103 of the Code.
Obligations so purchased as an investment of moneys in any such fund or
account shall be deemed at all times to be a part of such fund or account, and the interest
accruing thereon and any profit realized from such investment shall be retained therein to
the extent necessary to bring such fund or account up to the required balance and to the
extent not so required shall be credited, in the order of priority established under
Subsection B hereof, to the various funds and accounts therein mentioned. Such
investments shall be valued annually not less than thirty (30) days prior to a principal
payment or Amortization Installment date at the then current market value thereof. The
City shall sell at the best price obtainable or present for redemption any obligations so
purchased whenever it shall be necessary so to do in order to provide moneys to meet any
payment or transfer from any such fund or account.
I. Depositaries and Security. All moneys received by the City under the
provisions of this Resolution shall be deposited with a bank depositary or depositaries,
shall be held in trust, shall be applied only in accordance with the provisions of this
Resolution and shall not be subject to lien or attachment by a creditor of the City.
All such funds shall be continuously secured in the same manner as City
deposits are required to be secured by the laws of the State of Florida.
J. Special Assessments Covenant. The City covenants that, so long as any
Bonds are outstanding, it will levy and collect the Assessments in the maximum amount
allowed by law.
K. Collection Method. The City covenants that, so long as any Bonds are
outstanding and so long as it shall be in compliance with the requirements thereof and of
other applicable provisions of law, it will collect the Special Assessments Revenues in the
manner provided for collection of ad valorem taxes pursuant to Chapter 197, Florida
Statutes (1985 and Supp. 1986), as amended. In the event that the Issuer shall fail to be or
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remain in compliance with such Chapter, the Issuer will collect the Special Assessments
Revenues as provided in the Act and in the Assessments Resolutions.
L. Amendments. The City covenants that, so long as any Bonds remain
outstanding, the City will not permit or make any amendment to the Act, this Resolution
or any resolution supplemental thereto authorizing obligations that would adversely affect
the rights of the Registered Owners of the Bonds, without compliance with the provisions
of Section 4.01 hereof.
M. Limited Private Benefit. The City hereby covenants that it will not
expend moneys from the Construction Fund which in the aggregate would cause 5% or
more of the proceeds of the Bonds to be expended for direct or indirect benefit or use of
any trade or business carried on by a person other than a governmental unit except where
such use constitutes use as a member of the general public, without an opinion of
Livermore Klein & Lott, P.A. or other nationally recognized bond counsel to the effect
that interest on the Bonds will continue to be excluded from gross income under the Code.
N. Bonds Not Pledge of Faith and Credit of City. Nothing contained in the
Bonds or in this Resolution shall be construed as pledging the faith and credit or taxing
power of the City or as creating any debt of the City payable other than from the
Pledged Funds and, as to the Series 1987 Bonds, and the adoption of this Resolution and
the issuance of Bonds hereunder shall not directly or indirectly or contingently obligate
the City to levy or to pledge any taxes whatsoever therefor.
O. Covenant Not to Decrease Assessments. The City covenants not to
decrease the Assessments against the Benefited Property after the assessment roll
described in the Assessments Resolutions is confirmed by the City, except as required by
law.
P. No Inconsistent Action. The City covenants that no contract or
contracts will be entered into or any action taken by the City which shall be inconsistent
with the provisions of this Resolution.
Q. Other Revenues. Notwithstanding anything to the contrary set forth
herein, nothing in this Resolution shall be construed as preventing the City from
voluntarily depositing to the credit of any account in the Debt Service Fund moneys
received from any legally available source other than those mentioned or provided for in
this Resolution.
R. Affirmative Action. The City covenants that it will take all lawful
actions necessary or required to prevent the impairment of or adverse effects on, in any
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manner, the pledge of and lien on the Pledged Funds made herein or the rights of the
Registered Owners of the Bonds. The City shall be unconditionally and irrevocably
obligated to take all lawful action necessary or required to continue to entitle the City to
receive the Pledged Funds in amounts and at rates sufficient to pay the principal of,
premium, if any, and interest on the Bonds and to make the other payments provided for
herein.
S. Remedies. (1) Upon the occurrence of any Event of Default, any
Registered Owner of Bonds, may, either at law or in equity, by suit, action, mandamus or
other proceedings in any court of competent jurisdiction, protect and enforce any and all
rights, including the right to the appointment of a receiver, existing under the laws of the
State of Florida, or granted and contained herein, and may enforce and compel the
performance of all duties herein required or by any applicable statutes to be performed by
the City or by any officer thereof.
(2) Nothing herein, however, shall be construed to grant to the Registered
Owner of Bonds any lien on any real property of or in the City, except the Assessments
Liens.
(3) It shall be an Event of Default under this Resolution if the City shall:
(a) fail to deposit with the Paying Agent on the due date thereof
sufficient funds to pay when due maturing principal of and premium, if any, and interest
on the Bonds;
(b) fail to deposit or pay within ten (10) days after the due date
thereof any other required deposit or payment under this Resolution; or
(c) fail to comply with any other covenant made in this Resolution,
which failure shall continue for more than thirty (30) days.
(4) Any money received by the Paying Agent pursuant to this Subsection S
shall be applied in the following order, at the date or dates fixed by the Paying Agent and,
in case of the distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Bonds and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
(a) Unless the principal of all the Bonds shall have become due and payable,
all such money shall be applied:
First: to the payment to the persons entitled thereto of all interest then due
and payable on the Bonds in the order in which such installments became due and payable,
and if the amount available shall not be sufficient to pay in full any particular
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4
installment, then to the payment, ratably, according to the amounts due on such
installment, to the persons entitled thereto, without any discrimination or preference
except as to any difference in the respective rates of interest specified in the Bonds;
Second: to the payment to the persons entitled thereto of the unpaid principal
of any of the Bonds which shall have become due and payable (other than Bonds called for
redemption for the payment of which moneys are held pursuant to the provisions of this
Resolution, and, if the amount available shall not be sufficient to pay in full the principal
of the Bonds, then to the payment of such principal, ratably, according to the amount of
such principal due on such date, to the persons entitled thereto without any discrimination
or preference;
Third: to the payment of past due fees, expenses and charges of the Paying
Agent and the administrative expenses of the City and unpaid interest thereon;
(b) If the principal of all the Bonds shall have become due and payable, all
such moneys shall be applied to the payment of the principal and interest then due and
unpaid upon the Bonds without preference or priority of principal over interest, or of
interest over principal, or of any installment of interest over any other installment of
interest, or of any Bond ratably according to the amounts due respectively for principal
and interest and to the persons entitled thereto without any discrimination or preference
except as to any difference in the respective rates of interest specified in the Bonds.
(6) Whenever moneys are to be applied by the Paying Agent pursuant to the
provisions of this Subsection S, such moneys shall be applied by the Paying Agent at such
times, and from time to time, as the Paying Agent in its sole discretion shall determine,
having due regard to the amount of such moneys available for application and the
likelihood of additional moneys becoming available for such application in the future; the
deposit of such moneys with the Paying Agent, or otherwise setting aside such moneys, in
trust for the proper purpose shall constitute proper application by the Paying Agent; and
the Paying Agent shall incur no liability whatsoever to the City, any Bondholder or any
other person for any delay in applying any such moneys, so long as the Paying Agent acts
with reasonable diligence, having due regard to the circumstances, and ultimately applies
the same in accordance with such provisions of this Resolution as may be applicable at the
time of application by the Paying Agent. Whenever the Paying Agent shall exercise such
discretion in applying such moneys, it shall fix the date (which shall be an interest
payment date unless the Paying Agent shall deem another date more suitable) upon which
such application is to be made and upon such date interest on the amounts of principal of
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4
I
Bonds, if any, to be paid on such date shall cease to accrue. The Paying Agent shall give
such notice as it may deem appropriate of the fixing of any such date, and shall not be
required to make payment to the Registered Owner of any unpaid Bond until such Bond
shall be surrendered to the Paying Agent for appropriate endorsement, or for cancellation
if fully paid.
T. Local Option Gas Tax Fund and Franchise Fund. The City shall deposit
immediately upon receipt all Local Option Gas Tax Revenues into a Local Option Gas Tax
Fund, a trust fund hereby created and established, and all Electric Franchise Revenues
into a Franchise Fund, a trust fund hereby created and established. On each interest
payment date, the City shall transfer into the Bond Interest Account, the Bond Principal
Account and each Bond Amortization Account sufficient moneys to make up any
deficiencies in such accounts, to permit deposits to be made with the Paying Agent for
paying all interest on and principal of the Bond then due, whether by maturity or
mandatory redemption. Such transfers shall be made first from the Local Option Gas Tax
Fund (but only in an amount not exceeding the product of the Transportation Ratio times
the total principal of and interest on the Bonds then due) and second from the Franchise
Fund. On the first day of each Bond Year, moneys in each such Fund not needed on the
preceding day for the foregoing purposes may be transferred out of such Funds and applied
for any other lawful purpose (limited, in the case of Local Option Gas Tax Revenues, to
the purposes specified in Section 336.025, Florida Statutes (Supp. 1986), as amended).
U. Computation of Transportation Ratio. On each interest payment date
prior to completion of the Project, and on the first interest payment date thereafter, the
Consulting Engineer shall compute and certify to the City Clerk the Transportation Ratio,
utilizing actual costs of the Project incurred to date and estimated future costs yet to be
incurred, if any, with respect to each portion of the Project.
Section 2.12. COVENANTS OF CITY BINDING ON CITY SUCCESSORS; NO
PERSONAL LIABILITY. All covenants, stipulations, obligations and agreements of the
City contained in this Resolution shall be deemed to be covenants, stipulations,
obligations and agreements of the City to the full extent authorized or permitted by law,
and all such covenants, stipulations, obligations and agreements shall be binding upon the
successor or successors thereof from time to time and upon any officer, board, body or
commission to whom or to which any power or duty affecting such covenants, stipulations,
obligations and agreements shall be transferred by or in accordance with law.
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Except as otherwise provided in this Resolution, all rights, powers and
privileges conferred and duties and liabilities imposed upon the City by the provisions of
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I
this Resolution shall be exercised or performed by the City or by such officers, board,
body or commission as may be required by law to exercise such powers or to perform such
duties.
No covenants, stipulation, obligation or agreement herein contained shall be
deemed to be a covenant, stipulation, obligation or agreement of any present or future
member of the City Commission or officer, agent or employee of the City in his individual
capacity, and neither the members of the City Commission nor any official of the City
executing the Bonds shall be liable personally on the Bonds or be subject to any personal
liability or accountability by reason of the issuance thereof.
Section 2.13. FUNDS. The cash required to be accounted for in each of the
funds established herein may be deposited in a single bank account, and funds allocated to
the various accounts established herein may be invested in a common investment pool,
provided that adequate accounting records are maintained to reflect and control the
restricted allocation of the cash on deposit therein for the various purposes of such funds
as herein provided.
The designation and establishment of the various funds in and by this
Resolution shall not be construed to require the establishment of any completely
independent, self-balancing funds as such term is commonly defined and used in
governmental accounting, but rather is intended solely to constitute an earmarking of
certain revenues and assets of the Project for certain purposes and to establish certain
priorities for application of such revenues and assets as herein provided.
Section 2.14. REFUNDING BONDS. There may be issued under and secured
by this Resolution, subject to the conditions hereinafter provided in this Section,
Refunding Bonds of the City in addition to the Bonds authorized under Section 2.01 for the
purpose of providing funds for refunding all or any portion of the Outstanding Bonds of any
one or more series, including inter alia, the payment of the principal or redemption price
thereof and any interest which will accrue on such Bonds to the redemption date or stated
maturity date or dates and any expenses in connection with such refunding.
The Refunding Bonds issued pursuant to this Section shall be stated to mature
in such installments and upon such dates and may be made redeemable at such times and
prices all as the City shall determine by supplemental resolution prior to the issuance of
the Refunding Bonds. The Refunding Bonds shall be executed and issued substantially in
the form and manner hereinabove set forth, with such appropriate changes, additions and
omissions as shall be set forth in the supplemental resolution, mentioned above.
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Before the Refunding Bonds issued under the provisions of this Section shall be
delivered by the City, there shall be delivered to the original purchasers of such
Refunding Bonds the following:
(a) a copy, certified by the City Clerk of the supplemental resolution
described in this Section;
(b) a copy, certified by the City Clerk, of the resolution of the City
awarding sale of such Refunding Bonds, specifying the interest rate of each of such
Refunding Bonds and directing the delivery of such Refunding Bonds to or upon the order
of the purchasers therein named upon payment of the purchase price therein set forth;
(c) a certificate of an independent certified public accountant stating either
(i) that the Principal and Interest Requirement on all Outstanding Bonds after such
refunding will be equal to or less than the Principal and Interest Requirement on all
Outstanding Bonds immediately prior to such refunding, in each Bond Year, or (ii) that the
Special Assessments and all investment income anticipated to be received in each Bond
Year will be at least equal to 120% of the Principal and Interest Requirement becoming
due in such Bond Year on the Bonds, after reduction for the Principal and Interest
Requirements on Bonds projected to be retired by early redemption, and including the
Parity Bonds to be issued;
(d) an opinion of the City Attorney stating that the signer is of the opinion
that (i) all actions necessary to confirm the additional Assessments, if any, necessary to
enable the City to deliver the certificate required by (c) above, as valid and enforceable
liens on the Benefited Property have been taken, and (ii) the issuance of such Refunding
Bonds have been duly authorized and that all conditions precedent to the delivery of such
Refunding Bonds have been fulfilled; and
(e) such documents as shall be necessary to show that provision has been
duly made in accordance with the provisions of this Resolution for the payment or
redemption of all of the Bonds to be refunded.
When the items mentioned above shall have been delivered to the original
purchasers of the Refunding Bonds described in the supplemental resolution mention in
clause (a) of this Section and when such Refunding Bonds to or upon the order of the
purchasers named in the award resolution mentioned in clause (b) of this Section, but only
upon receipt of the purchase price of such Refunding Bonds.
Simultaneously with the delivery of such Refunding Bonds, the City shall
withdraw from the Bond Interest Account and the Bond Principal Account, respectively,
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an amount equal to the aggregate amount deposited to the credit of such Accounts under
Section 2.11 hereof on account of the interest on the Bonds to be refunded payable on the
next interest payment date of such Bonds and on account of the principal of the serial
Bonds to be refunded maturing on the next maturity date, and shall also withdraw from
the Bond Amortizations Account established with respect to such series of Bonds, an
amount equal to the aggregate amount deposited to the credit of such Account pursuant
to Section 2.11 on account of the principal of any Term Bonds to be refunded subject to
mandatory redemption on the next mandatory redemption date. The total amount so
withdrawn, the proceeds of such Refunding Bonds (including accrued interest and any
premium) and any other moneys provided for such purpose, shall be applied by the City as
follows:
(1) any accrued interest received as part of the proceeds of such Refunding
Bonds shall be deposited to the credit of a special account in the Bond Interest Account
for application to the first interest due on such Refunding Bonds;
(2) an amount which, together with any income which shall be derived from
the investment of such amount pursuant to this clause (2), shall be sufficient to pay, when
and as due, the principal of and the interest and redemption premium (if any) on the Bonds
to be refunded shall be deposited by the City to the credit of a special fund, appropriately
designated, to be held in trust by an escrow agent to be designated by the City for the
sole and exclusive purpose of paying such principal, redemption premium and interest; and
moneys held for the credit of such Fund shall, as nearly as may be practicable and
reasonable, be invested and reinvested at the direction of the chief financial officer of
the City in Governmental Obligations which shall mature, or which shall be subject to
redemption without penalty or discount by the holder thereof at the option of such holder,
not later than the respective dates when the moneys held for the credit of such Fund will
be required for the purposes intended;
(3) an amount sufficient for such purposes shall be applied to, or set aside
for, the payment of all cost and expenses in connection with the preparation, issuance and
sale of the Refunding Bonds; and
(4) any balance of such proceeds shall be deposited to the credit of the Bond
Redemption Account created by Section 2.11 hereof.
Section 2.15. ISSUANCE OF PARITY BONDS TO PAY ADDITIONAL
COSTS OF PROJECTS; APPLICATIONS OF PROCEEDS. There may be issued under and
secured by this Resolution, subject to the conditions hereinafter provided in this Section,
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Parity Bonds of the City in addition to the Bonds authorized under Sections 2.01 and 2.14
of this Article. Such Parity Bonds may be issued for the purpose of providing funds
necessary to complete payment of the Costs of the Projects.
The Parity Bonds shall be stated to mature on such date in such years and in
such amounts or shall be stated to mature in a single year with provision for mandatory
redemption from sinking fund installments on such date, in such years and in such amounts
or a combination of such principal payment methods and may be made redeemable at such
times and prices all as the City shall determine by supplemental resolution prior to the
sale of the Parity Bonds. The supplemental resolution shall also designate the paying
agents and bond registrar for the Parity Bonds. The Parity Bonds shall be executed and
issued substantially in the form and manner hereinabove set forth, with such appropriate
changes, additions and omissions as shall be set forth in the supplemental resolution
mentioned above.
Before the Parity Bonds issued under the provisions of this Section shall be
delivered by the City, there shall be delivered to the original purchasers of such Parity
Bonds the following:
(a) a copy, certified by the Clerk of the City, of the supplemental resolution
which shall further include a brief and general description of purpose for which the Parity
Bonds are to be issued;
(b) a copy, certified by the Clerk of the City, of the ordinance or resolution
of the City approving the manner of sale and awarding such Parity Bonds, specifying the
interest rate of each such Parity Bonds and directing the delivery of such Parity Bonds to
or upon the order of the purchasers therein named upon payment of the purchase price
therein set forth;
(c) a certificate of the City Clerk specifying the amount, if any, of the bond
proceeds to be deposited to the credit of the Bond Reserve Account (which amount,
together with the amount already on deposit therein, shall at least equal the Debt Service
Reserve Requirement on all Bonds to be Outstanding after the issuance of such Parity
Bonds), and the amount, if any, of the bond proceeds to be deposited to the credit of the
Bond Interest Account as Capitalized Interest;
(d) a certificate of the chief financial officer of the City stating that there
are no defaults existing under this Resolution; and
(e) a certificate of an independent certified public accountant stating that
the Special Assessment Revenues and all investment income anticipated to be received in
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4
each Bond Year will be at least equal to 120% of the Principal and Interest Requirement
becoming due in such Bond Year on the Bonds, after reduction for the Principal and
Interest Requirement on Bonds projected to be retired by early redemption, and including
the Parity Bonds to be issued; and
(f) an opinion of the City Attorney stating that the signer is of the opinion
that (i) all actions necessary to confirm the additional Assessments, if any, necessary to
enable the City to deliver the certificate required by (e) above, as valid and enforceable
liens on the Benefited Property have been taken, and (ii) issuance of such Parity Bonds has
been duly authorized and that all conditions precedent to the delivery of such Parity
Bonds have been fulfilled.
When the items described above shall have been delivered to the original
purchasers of the Parity Bonds described in the supplemental resolution mentioned in
clause (a) of this Section and when such Parity Bonds shall have been executed as required
by this Resolution, the City shall deliver such Parity Bonds to or upon the order of the
purchasers named in the award resolution mentioned in clause (b) of this Section, but only
upon receipt of the purchase price of such Parity Bonds.
Simultaneously with the delivery of the Parity Bonds, the City shall apply the
proceeds thereof as follows:
(1) The amount received as accrued interest and Capitalized Interest, if any,
on such Parity Bonds shall be deposited to the credit of the Bond Interest Account.
(2) The amount to be deposited to the credit of the Bond Reserve Account
shall be deposited therein.
(3) The balance of such proceeds shall be deposited to the credit of the
Construction Fund.
Section 2.16. TAX COVENANTS. A. The City covenants not to take or
cause or permit to be taken, or fail to take or cause or permit to fail to be taken, any
action which would result in the interest payable on the Bonds being includable in gross
income of the Registered Owners of the Bonds for Federal income tax purposes. The
principal proceeds of the sale of the Bonds shall be devoted to and used with due diligence
for the completion of the Project, in accordance with this Resolution and any
supplemental resolution adopted by the City. The City also certifies and further
covenants with the purchasers and Registered Owners of the Bonds from time to time
Outstanding that so long as any of the Bonds remain Outstanding, moneys on deposit in
any fund or account in connection with the Bonds, whether or not such moneys were
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4
derived from the proceeds of the sale of the Bonds or from any other sources, will not be
used in a manner which will cause such Bonds to be "arbitrage bonds" within the meaning
of Section 148 of the Code and any lawful regulations promulgated or proposed
thereunder.
B. The City covenants that the aggregate face amount of all tax-exempt
bonds (other than private activity bonds) issued by the City and all subordinate units
thereof during the calendar year in which the 1987 Bonds are issued is not reasonably
expected to exceed $5,000,000.
C. For purposes of paragraph (B) of Sections 902(b)(3) of the Code, the 1987
Bonds are hereby designated as "qualified tax-exempt obligations."
Section 2.17. DEFEASANCE. If, at any time, (1) the City shall pay, cause
to be paid, or make provision for payment, to the Registered Owners of the Bonds the
principal, premium, if any, and interest to become due thereon at the times and in the
manner stipulated therein and herein, and (2) the fees and expenses of the Paying Agent
and Registrar shall have been paid, then the Bonds shall no longer be deemed to be
Outstanding under the provisions of this Resolution. If the City shall pay, cause to be
paid, or make provision for payment, to the Registered Owners of all Outstanding Bonds
of a particular series, or of a particular maturity within a series, the principal, premium,
if any, and interest to become due thereon at the times and in the manner stipulated
therein and herein, such Bonds shall no longer be deemed to be Outstanding under the
provisions of this Resolution. In such event, the pledge of and lien on the Pledged Funds
in favor of the Registered Owners of such Bonds shall be no longer in effect. For purposes
of this Section, deposit of Governmental Obligations or bank certificates of deposit fully
secured as to principal and interest by Government Obligations (or deposit of any other
securities or investments which may be authorized by law from time to time and
sufficient under such law to effect such a defeasance) or tax exempt bonds described in
Section 103 of the Code, having a rating of AAA by either Moody's Investors Service or
Standard and Poor's Corporation, in irrevocable trust with a banking institution or trust
company, for the sole benefit of the Registered Owners of such Bonds, in respect to which
such Governmental Obligations or certificates of deposit or tax exempt bonds, the
principal of which, together with the income thereon, will be sufficient to make timely
payment of the principal, interest, and redemption premiums, if any, on the outstanding
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
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pursuant to any applicable optional redemption provisions or from moneys in the Bond
Redemption Account or the Special Redemption Account, or to impair the discretion of
the City in determining whether to exercise any such option for early redemption. If such
Bonds are to be redeemed prior to the maturity thereof, notice of such redemption shall
have been duly given as provided in this Resolution or arrangements shall have been made
for the giving thereof. Governmental Obligations will be considered sufficient if said
investments, with interest, mature and bear interest in such amounts and at such times as
will assure sufficient cash to pay currently maturing interest and to pay principal and
redemption premiums, if any, when due on the Bonds without rendering the interest on any
Bonds includable in gross income under the Code. For the purpose of this Section,
Governmental Obligations shall mean and include only such Governmental Obligations
which shall not be subject to redemption prior to their maturity other than at the option
of the holder thereof.
Section 2.18. SALE OF BONDS. The Bonds shall be issued and sold in such
manner and at such price or prices consistent with the Act and the requirements of this
Resolution all at one time or in installments, from time to time, as shall be hereafter
determined by resolution of the City.
Section 2.19. VALIDATION AUTHORIZED. The attorney for the City and
bond counsel are authorized in their discretion to prepare and file proceedings to validate
the Bonds in the manner provided by law, and the proper officers of the City are hereby
authorized to verify on behalf of the City any pleadings in such proceedings.
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ARTICLE III
MISCELLANEOUS
Section 3.01 MODIFICATION OR AMENDMENT. (a) No material adverse
modification or amendment of this Resolution or of any resolution, ordinance or resolution
amendatory hereof or supplemental hereto, may be made without the consent in writing of
the Registered Owners of two-thirds or more in principal amount of the Bonds then
outstanding, provided, however, that no modification or amendment shall permit a change
in the maturity of such Bonds or a reduction in the rate of interest thereon, or in the
amount of the principal amount of the Bonds then outstanding, or affecting the
unconditional promise of the City to pay the principal of and interest on the Bonds as the
same shall come due from the Pledged Funds or reduce the percentage of the Registered
Owners of the Bonds required to consent to any material modification or amendment
hereof without the consent in writing of the Registered Owners of all such Bonds.
Section 3.02 CONSENT BY REGISTERED OWNERS OF BONDS; PROOF OF
OWNERSHIP OF BONDS. Any request, direction, consent or other instrument in writing
required or permitted by this Resolution to be signed or executed by Registered Owners of
Bonds may be in any number of concurrent instruments of similar tenor and may be signed
or executed by such Registered Owners in person or by agent appointed by an instrument
in writing. Proof of the execution of any such instrument and of the ownership of Bonds
shall be sufficient for any purpose of this Resolution, if made in the following manner:
(a) The fact and date of the execution by any person of any such instrument
may be proved by the verification of any officer in any jurisdiction who, by the laws
thereof, has power to take affidavits within such jurisdiction, to the effect that such
instrument was subscribed and sworn to before him or by an affidavit of a witness to such
execution. Where such execution is by an officer of a corporation or association or a
member of a partnership on behalf of such corporation, association or partnership such
verification or affidavit shall also constitute sufficient proof of his authority.
(b) The ownership of the Bonds shall be proved by the registration books
kept under the provisions of Section 2.04 of this Resolution.
Section 3.03 NOTICE TO CITY. Any notice, demand, direction, request or
other instrument authorized or required by this Resolution to be given to or filed with the
City shall be deemed to have been sufficiently given or filed for all purposes of this
Resolution if and when sent by registered mail, return receipt requested, to the City
Clerk.
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Section 3.04 SUCCESSION OF OFFICER OF ISSUER; PERFORMANCE OF
DUTIES. In the event that the office of any officer of the City mentioned in this
Resolution shall be abolished or any two or more of such offices shall be merged or
consolidated, or in the event of a vacancy in any such office by reason of death,
resignation, removal from office or otherwise, or in the event any such officer shall
become incapable of performing the duties of this office by reason of sickness, absence
from the City or otherwise, all powers conferred and all obligations and duties imposed
upon such officer shall be performed by the officer succeeding to the principal functions
thereof or by the officer upon whom such powers, obligations and duties shall be imposed
by law.
Section 3.05 MERGER OF PAYING AGENT; VACANCY. Any bank or trust
company with or into which any Paying Agent may be merged or consolidated, or to which
the assets and business of such Paying Agent may be sold, shall be deemed the successor
of such Paying Agent for the purposes of this Resolution. If the position of any Paying
Agent shall become vacant for any reason, the City shall immediately appoint a bank or
trust company as Paying Agent to fill such vacancy.
Section 3.06 PAYING AGENT ENTITLED TO DEAL IN BONDS. Any bank
or trust company acting as Paying Agent under this Resolution, and its directors, officers,
employees or agents, and any member of the City or officer, employee or agent of the
City, may in good faith buy, sell, own, hold and deal in any of the Bonds issued under the
provisions of this Resolution and may join in any action which any Registered Owner of
Bonds may be entitled to take with like effect as if such bank or trust company were not a
Paying Agent under this Resolution or as if such member of the City or officer, employee
or agent of the City did not serve in such capacity.
Section 3.07 BENEFIT OF RESOLUTION LIMITED. Except as herein
otherwise expressly provided, nothing in this Resolution express or implied is intended or
shall be construed to confer upon any person, firm or corporation other than the City and
the Registered Owners of the Bonds issued under and secured by this Resolution any right,
remedy or claim, legal or equitable, under or by reason of this Resolution or any provision
thereof, this Resolution and all its provisions being intended to be and being for the sole
and exclusive benefit of the City, and the Registered Owners from time to time of the
Bonds and Notes issued hereunder.
Section 3.08 SEVERABILITY OF INVALID PROVISIONS. If any one or
more of the covenants, agreements or provisions herein contained shall be held contrary
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to any express provision of law or contrary to the policy of express law, though not
expressly prohibited, or against public policy, or shall for any reason whatsoever be held
invalid, then such covenants, agreements or provisions shall be null and void and shall be
deemed separable from the remaining covenants, agreements or provisions and shall in no
way affect the validity of any of the other provisions hereof or of the Bonds issued
hereunder.
Section 3.09 CHOICE OF LAW. The Bonds are issued and this Resolution is
adopted with the intent that the laws of the State of Florida shall govern their
construction.
Section 3.10 SUCCESSORS AND ASSIGNS. All the covenants, promises and
agreements in this Resolution contained by or on behalf of the City shall bind and inure to
the benefit of its successors and assigns, whether so expressed or not.
Section 3.11 HEADINGS FOR CONVENIENCE ONLY. The descriptive
headings in this Resolution are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
Section 3.12 FURTHER ACTION. The proper officers of the City are
hereby authorized, empowered and directed to take all such further action and to execute
such additional documents as they deem advisable to carry out the purposes of this
Resolution.
Section 3.13 REPEALING CLAUSE. All ordinances or resolutions or parts
thereof of the City in conflict with the provisions herein contained are, to the extent of
such conflict, hereby superseded and repealed.
Section 3.14 EFFECTIVE DATE. This Resolution shall take effect im-
mediately upon its adoption.
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ARTICLE IV
PAYING AGENT
Section 4.1. Paying Agent Agreement. The City shall enter into a Paying
Agent Agreement with the Paying Agent for the Series 1987 Bonds in which the Paying
Agent agrees to perform the duties specified in the Resolution. The Mayor and City Clerk
are authorized and directed to execute and deliver on behalf of the City the Paying Agent
Agreement. The term of employment of the Paying Agent shall commence with the date
of issuance of the first installment of the Series 1987 Bonds and terminate after all Bonds
are no longer Outstanding, and payment has been made of all principal of, premium, if
any, and interest on the Bonds. The Paying Agent shall designate to the City and its
principal corporate office from which its duties hereunder will be performed. The Paying
Agent shall keep such books and records as shall be consistent with prudent industry
practice and make such books and records available for inspection by the City and at all
reasonable times.
The Paying Agent shall be a bank or trust company qualified to act as such,
shall be authorized by law to perform all duties imposed upon it by this Resolution, and
shall have a capital stock, surplus and retained earnings aggregating at least $50,000,000.
The Paying Agent may at any time resign and be discharged of the duties and obligations
created by this Resolution by giving at least sixty (60) days notice to the City. Such
resignation shall not take effect, however, until a successor shall be appointed, or until
one year after the expiration of the sixty (60) day notice period, whichever occurs first.
The Paying Agent may be removed at any time, at the direction of the City, by an
instrument, signed by the Mayor and filed with the City and the Paying Agent. Such
removal shall not take effect, however, until the successor shall be appointed.
Section 4.2 Paying Agent and Registrar. The provisions of this Section
4.2 shall apply severally to the person acting as Paying Agent, or Registrar (collectively
herein referred to as "Agent"), whether or not the same person or different persons shall
from time to time serve as such hereunder.
(A) Agent shall be responsible for performing such duties and only such
duties as are specifically set forth in this Resolution and no implied covenants or
obligations shall be read into this Resolution against the Agent.
(B) The Agent may execute any of the powers hereunder and perform any of
its duties directly or by or through attorneys, agents, receivers or employees and the
Agent shall not be responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder.
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(C) The Agent shall not be responsible for any recital herein, or in the Bonds,
or for the validity of the adoption by the City of this Resolution or of any supplements
thereto or instruments of further assurance, or for the sufficiency of the security for the
Bonds issued hereunder or intended to be secured hereby.
(D) The Agent may consult with counsel and the advice of such counsel shall
be full and complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(E) The Agent shall not be accountable for the use of any Bonds authenti-
cated and properly delivered hereunder. The Agent may become the Registered Owners
of Bonds secured hereby with the same rights which it would have if not the Agent.
(F) The Agent shall be protected in acting upon any notice, request, consent,
certificate, order, affidavit, letter, telegram or other paper or document reasonably
believed to be genuine and correct and to have been signed or sent by the proper person or
persons.
(G) As to the existence or nonexistence of any fact or as to the sufficiency
or validity of any instrument, paper or proceeding, the Agent shall be entitled to rely in
good faith upon a certificate of the Mayor of the City as sufficient evidence of the facts
therein contained.
(H) The permissive right of the Agent to do things enumerated in this
Resolution shall not be construed as a duty and it shall not be answerable for other than
its negligence, or willful misconduct.
(I) Notwithstanding anything elsewhere in this Resolution contained, the
Agent shall have the right, but shall not be required, to demand, in respect of the
authentication of any Bonds, the withdrawal of any cash, or any action whatsoever within
the purview of this Resolution, any showings, certificates, opinions, appraisals or other
information, or corporate action by the Agent deemed desirable for the purpose of
establishing the right of the City to the authentications of any Bonds, the withdrawal of
any cash or the taking of any other action by the Agent.
(J) All moneys received by the Agent shall, until used or applied or invested
as herein provided, be held in trust for the purposes for which they were received but need
not be segregated form other funds except to the extent required herein. The Agent shall
be under no liability for interest on any moneys received hereunder except such as may be
agreed upon.
(K) The City agrees to pay to the Agent from time to time compensation for
all services rendered by it hereunder and to pay and reimburse the Agent for all advances,
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counsel fees and other expenses reasonably and necessarily made or incurred by the Agent
in connection with services rendered hereunder. Upon an event of default under this
Resolution, the Agent shall have a lien with right of payment subordinate to payment on
account of principal of and interest on any Bond upon the Pledged Funds for the foregoing
fees, charges and expenses incurred by it.
(L) Any bank or trust company with or into which the Agent may be merged
or consolidated, or to which the assets and business of the Agent may be sold, shall be
deemed the successor of such Agent for the purposes of this Resolution. The Registrar
may at any time resign and be discharged of the duties and obligations created by this
instrument by giving at least 60 days' written notice to the City. The Registrar may be
removed at any time by an instrument filed with such Registrar and signed by the City.
(M) In the event of the resignation or removal of any Paying Agent, such
Paying Agent shall pay over, assign and deliver any moneys or securities held by its as
Paying Agent to its successor.
(N) It is understood that the Agent is being appointed as Agent for the City
and is subject to the direction of the City with respect to the performance of its duties
and obligations hereunder.
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Adopted this day of , 1987.
Approved as to form and correctness:
CITY OF ATLANTIC BEACH, FLORIDA
City Attorney Mayor
Attest:
City Clerk
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