HomeMy WebLinkAboutR-03-48RESOLUTION NO. R-03-48
A RESOLUTION AUTHORIZING THE ISSUANCE BY
THE CITY OF SEBASTIAN, FLORIDA OF $8,000,000 IN
AGGREGATE PRINCIPAL AMOUNT OF CITY OF
SEBASTIAN, FLORIDA STORMWATER UTILITY
REVENUE BONDS, SERIES 2003, TO FINANCE THE
COST OF CERTAIN CAPITAL IMPROVEMENTS
PROGRAMMED IN THE CITY'S STORMWATER
MASTER PLAN; PLEDGING THE PROCEEDS OF
STORMWATER UTILITY FEES IMPOSED BY THE CITY
TO SECURE PAYMENT OF THE PRINCIPAL OF AND
INTEREST ON SAID BONDS; PROVIDING FOR THE
RIGHTS OF THE HOLDERS OF SAID BONDS;
PROVIDING FOR THE ISSUANCE OF ADDITIONAL
BONDS; PROVIDING FOR CERTAIN ADDITIONAL
MATTERS IN RESPECT TO SAID BONDS; AND
PROVIDING FOR AN EFFECTIVE DATE FOR THIS
RESOLUTION.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
SEBASTIAN, FLORIDA:
ARTICLE I
GENERAL
SECTION1.01. DEFINITIONS. When used in this Resolution, the
following terms shall have the following meanings, unless the context clearly otherwise
requires:
"Accreted Value" shall mean, as of any date of computation with respect to any
Capital Appreciation Bond, an amount equal to the principal amount of such Capital
Appreciation Bond (the principal amount at its initial offering) plus the interest accrued
on such Capital Appreciation Bond from the date of delivery to the original purchasers
thereof to the Interest Date next preceding the date of computation or the date of
computation if an Interest Date, such interest to accrue at a rate not exceeding the legal
rate, compounded semiannually, plus, with respect to matters related to the payment upon
redemption or acceleration of the Capital Appreciation Bonds, if such date of
computation shall not be an Interest Date, a portion of the difference between the
Accreted Value as of the immediately preceding Interest Date and the Accreted Value as
of the immediately succeeding Interest Date, calculated based on the assumption that
Accreted Value accrues during any semi-annual period in equal daily amounts on the
basis of a 360-day year.
"Act" shall mean Chapter 166, Florida Statutes, Sections 403.0891 and 403.0893,
Florida Statutes, City Ordinance No. O-01-16, codified as Chapter 102, Article V of the
City of Sebastian Code of Ordinances, and other applicable provisions of law.
"Additional Bonds" shall mean the obligations issued at any time under the
provisions of Section 5.02 hereof on a parity with the Series 2003 Bonds.
"Additional Project" shall mean the acquisition and construction of such
properties, facilities and improvements as shall be permitted by the Act. This term is to
be broadly construed as including any lawful undertaking, including, without limitation,
joint ventures and acquisition of partial interests or contractual rights. The description of
such Additional Project shall be set forth in the Supplemental Resolution authorizing the
issuance of Bonds which shall finance the acquisition, construction and funding of such
Additional Project.
"Amortization Installment" shall mean an amount designated as such by
Supplemental Resolution of the Issuer and established with respect to the Term Bonds.
"Annual Debt Service" shall mean the aggregate amount of Debt Service on the
Bonds for each applicable Fiscal Year.
"Authorized Investments" shall mean any of the following, if and to the extent
that the same are at the time legal for investment of funds of the Issuer:
(1) Direct obligations of the United States of America (including obligations
issued or held in book-entry form on the books of the Department of the Treasury,
and CATS and TIGRS) or obligations the principal of and interest on which are
unconditionally guaranteed by the United States of America.
(2) Bonds, debentures, notes or other evidence of indebtedness issued or
guaranteed by any of the following federal agencies and provided such obligations
are backed by the full faith and credit of the United States of America (stripped
securities are only permitted if they have been stripped by the agency itself):
mo
U.S. Export-Import Bank (Eximbank)
Direct obligations or fully guaranteed certificates of beneficial
ownership
bo
Farmers Home Administration (FmHA)
Certificates of beneficial ownership
c. Federal Financing Bank
d. Federal Housing Administration Debentures (FHA)
eo
General Services Administration
Participation certificates
Government National Mortgage Association (GNMA
Mae")
GNMA - guaranteed mortgage-backed bonds
GNMA - guaranteed pass-through obligations
(not acceptable for certain cash-flow sensitive issues.)
or "Ginnie
go
U.S. Maritime Administration
Guaranteed Title XI financing
ho
U.S. Department of Housing and Urban Development (HUD)
Project Notes
Local Authority Bonds
New Communities Debentures U.S. government guaranteed
debentures
U.S. Public Housing Notes and Bonds - U.S. government guaranteed
public housing notes and bonds
(3) Bonds, debentures, notes or other evidence of indebtedness issued or
guaranteed by any of the following non-full faith and credit U.S. government
agencies (stripped securities are only permitted if they have been stripped by the
agency itself):
ao
Federal Home Loan Bank System
Senior debt obligations
b. Federal Home Loan Mortgage
Mac")
Participation Certificates
Senior debt obligations
Corporation (FHLMC or "Freddie
Co
Federal National Mortgage Association (FNMA or "Fannie Mae")
Mortgage-backed securities and senior debt obligations
d. Student Loan Marketing Association (SLMA or "Sallie Mae")
Senior debt obligations
e. Resolution Funding Corp. (REFCORP) obligations
Farm Credit System
Consolidated systemwide bonds and notes
(4) Money market funds registered under the Federal Investment Company Act
of 1940, whose shares are registered under the Federal Securities Act of 1933, and
having a rating by S&P of AAAm-G; AAA-m; or AA-m and if rated by Moody's
rated Aaa, Aal or Aa2.
(5) Certificates of deposit secured at all times by collateral described in (1)
and/or (2) above. Such certificates must be issued by commercial banks, savings
and loan associations or mutual savings banks. The collateral must be held by a
third party and the bondholders must have a perfected first security interest in the
collateral.
(6) Certificates of deposit, savings accounts, deposit accounts or money market
deposits which are fully insured by FDIC, including BIF and SAIF.
(7) Investment Agreements, including GIC's, Forward Purchase Agreements
and Reserve Fund Put Agreements acceptable to the Insurer.
(8) Commercial paper rated, at the time of purchase, "Prime - 1" by Moody's
and "A-1" or better by S&P.
(9) Bonds or notes issued by any state or municipality which are rated by
Moody's and S&P in one of the two highest rating categories assigned by such
agencies.
(10) Federal funds or bankers acceptances with a maximum term of one year of
any bank which has an unsecured, uninsured and unguaranteed obligation rating of
"Prime - 1" or "A3" or better by Moody's and "A-l" or "A" or better by S&P.
(11) Repurchase Agreements ("Repos") for 30 days or less must follow the
following criteria. Repos which exceed 30 days must be acceptable to the Insurer.
Repos provide for the transfer of securities from a dealer bank or securities firm
(seller/borrower) to a municipal entity (buyer/lender), and the transfer of cash
from a municipal entity to the dealer bank or securities firm with an agreement
that the dealer bank or securities firm will repay the cash plus a yield to the
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municipal entity in exchange for the securities at a specified date.
Repos must be between the municipal entity and a dealer bank or
securities firm
.Primary dealers on the Federal Reserve reporting dealer list
which are rated A or better by Standard & Poor's Corporation
and Moody's Investor Services, or
ii.
Banks rated "A" or above by Standard & Poor's Corporation
and Moody's Investor Services.
b. The written Repo contract must include the following:
i. Securities which are acceptable for transfer are:
(A) Direct U.S. governments, or
(B)
Federal agencies backed by the full faith and credit of
the U.S. government (and FNMA & FHLMC)
ii. The term of the Repo may be up to 30 days
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The collateral must be delivered to the municipal entity,
trustee (if trustee is not supplying the collateral) or third party
acting as agent for the trustee (if the trustee is supplying the
collateral) before/simultaneous with payment (perfection by
possession of certificated securities).
iv. Valuation of Collateral
(A) The securities must be valued weekly, marked-to-
market at current market price plus accrued interest
(B) The value of collateral must be equal to 104% of the
amount of cash transferred by the municipal entity to the
dealer bank or security firm under the Repo plus accrued
interest. If the value of securities held as collateral slips
below 104% of the value of the cash transferred by
municipality, then additional cash and/or acceptable securities
must be transferred. If, however, the securities used as
collateral are FNMA or FHLMC, then the value of collateral
must equal 105%.
c. Legal opinion which must be delivered to the municipal entity:
i. Repo meets guidelines under state law for legal investment of
public funds.
"Authorized Issuer Officer" shall mean the City Manager or his or her assignee,
and when used in reference to any act or document also shall mean any other person
authorized by resolution of the Issuer to perform such act or sign such document.
"Bond Amortization Account" shall mean the separate account in the Debt
Service Fund established pursuant to Section 4.04 hereof.
"Bond Counsel" shall mean Nabors, Giblin & Nickerson, P.A. or any other
attorney at law or firm of attorneys, of nationally recognized standing in matters
pertaining to the federal tax exemption of interest on obligations issued by states and
political subdivisions, and duly admitted to practice law before the highest court of any
state of the United States of America.
"Bond Year" shall mean the period commencing and ending on the dates
specified by Supplemental Resolution of the Issuer.
"Bondholder" or "Holder" or "holder" or any similar term, when used with
reference to a Bond or Bonds, shall mean any person who shall be the registered owner of
any Outstanding Bond or Bonds as provided in the registration books of the Issuer.
"Bond Insurance Policy" shall mean the municipal bond new issue insurance
policy or policies issued by an Insurer guaranteeing the payment of the principal of and
interest on any portion of the Bonds.
"Bonds" shall mean the Series 2003 Bonds, together with any Additional Bonds
issued pursuant to this Resolution and any Subordinated Indebtedness which accedes to
the status of Bonds pursuant to Section 5.04 hereof.
"Business Day" or "business day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions within the State are authorized by law to
remain closed.
"Capital Appreciation Bonds" shall mean those Bonds so designated by
Supplemental Resolution of the Issuer, which may be either Serial Bonds or Term Bonds
and which shall bear interest payable at maturity or redemption. In the case of Capital
Appreciation Bonds that are convertible to Bonds with interest payable prior to maturity
or prior to redemption of such Bonds, such Bonds shall be considered Capital
Appreciation Bonds only during the period of time prior to such conversion.
"City Manager" means the chief administrative officer of the Issuer.
"Clerk" shall mean the Clerk of the Issuer, or such other person as may be duly
authorized to act on his or her behalf.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations and rules thereunder in effect or proposed.
"Construction Fund" shall mean the fund established pursuant to Section 4.03
hereof.
"Cost" or "Costs", when used in connection with a Project, shall, to the extent
permitted by the Act, mean (1) the Issuer's cost of physical construction; (2) costs of
acquisition by or for the Issuer of such Project; (3) costs of land and interests therein and
the cost of the Issuer incidental to such acquisition; (4) the cost of any indemnity and
surety bonds and premiums for insurance during construction; (5) all interest due to be
paid on the Bonds and other obligations relating to the Project during, and if deemed
advisable by the Issuer, for up to one year after the end of, the construction period of such
Project; (6) engineering, legal and other consultant fees and expenses; (7) costs and
expenses of the financing incurred during, and if deemed advisable by the Issuer, for up
to one (1) year after the end of, the construction period for such Project, including audits,
fees and expenses of any Paying Agent, Registrar, Insurer, Credit Bank or depository; (8)
payments, when due (whether at the maturity of principal or the due date of interest or
upon redemption) on any indebtedness of the Issuer (other than the Bonds) incurred for
such Project; (9) costs of machinery or equipment required by the Issuer for the
commencement of operation of such Project; (10) other costs or expenses which may be
funded from proceeds of the Bonds pursuant to the Act; and (11) any other costs properly
attributable to such construction or acquisition, as determined by generally accepted
accounting principles and shall include reimbursement to the Issuer for any such items of
Cost heretofore paid by the Issuer and interest on any interfund loan related thereto. Any
Supplemental Resolution may provide for additional items to be included in the aforesaid
Costs.
"Credit Bank" shall mean as to any particular Series of Bonds, the Person (other
than an Insurer) providing a letter of credit, a line of credit or another credit or liquidity
enhancement facility, as designated in the Supplemental Resolution providing for the
issuance of such Bonds.
"Credit Facility" shall mean as to any particular Series of Bonds, a letter of
credit, a line of credit or another credit or liquidity enhancement facility (other than an
insurance policy issued by an Insurer), as approved in the Supplemental Resolution
providing for the issuance of such Bonds.
"Debt Service" shall mean, at any time, the aggregate amount in the then
applicable period of time of (1) interest required to be paid on the Outstanding Bonds
during such period of time, except to the extent that such interest is to be paid from
deposits in the Interest Account made from Bond proceeds, (2) principal of Outstanding
Serial Bonds maturing in such period of time, and (3) the Amortization Installments
herein designated with respect to such period of time. For purposes of this definition, (A)
all amounts payable on a Capital Appreciation Bond shall be considered a principal
payment in the year it becomes due, and (B) the amount on deposit in the Reserve
Account (or any subaccount thereof) on any date of calculation of Debt Service shall be
deducted from the amount of principal due at the final maturity of the Bonds which are
secured by such Reserve Account (or subaccount thereof) and in each preceding year
until such amount is exhausted.
"Debt Service Fund" shall mean the fund established pursuant to Section 4.04
hereof.
"Event of Default" shall mean any Event of Default specified in Section 6.01 of
this Resolution.
"Finance Director" shall mean the Finance Director of the Issuer.
"Fiscal Year" shall mean the period commencing on October 1 of each year and
continuing through the next succeeding September 30, or such other period as may be
prescribed by 1 aw.
"Fitch" shall mean Fitch Ratings and any assigns and successors thereto.
"Governing Body" shall mean the City Council of the City of Sebastian, Florida
or its successor in function.
"Initial Project" shall mean the acquisition, construction, and reconstruction of
capital improvements programmed in the City's Stormwater Master Plan and located
within the jurisdiction of the City of Sebastian, Florida, as more specifically described in
the plans and specifications on file or to be on file with the Issuer, with such changes,
deletions, additions or modifications to the enumerated improvements, equipment and
facilities, or such other improvements, as approved by the Governing Body in accordance
with the Act. A general description of the Initial Project is provided in Exhibit A
attached hereto.
"Insurer" shall mean, such Person as shall be in the business of insuring or
guaranteeing the payment of principal of and interest on municipal securities and whose
credit is such that, at the time of any action or consent required or permitted by the
Insurer pursuant to the terms of this Resolution, all municipal securities insured or
guaranteed by it are then rated, because of such insurance or guarantee, in one of the two
most secure grades by one of the Rating Age ncies.
"Interest Account" shall mean the separate account in the Debt Service Fund
established pursuant to Section 4.04 hereof.
"Interest Date" or "interest payment date" shall be such date or dates for the
payment of interest on a Series of Bonds as shall be provided by Supplemental
Resolution.
"Investment Earnings" shall mean all income derived from investment of
moneys in the funds and accounts established hereunder, other than the Rebate Fund.
"Issuer" shall mean the City of Sebastian, Florida.
"Maximum Annual Debt Service" shall mean the largest aggregate amount of
the Annual Debt Service becoming due in any Fiscal Year in which Bonds are
Outstanding.
"Maximum Interest Rate" shall mean, with respect to any particular Variable
Rate Bonds, a numerical rate of interest, which shall be set forth in the Supplemental
Resolution of the Issuer delineating the details of such Bonds, that shall be the maximum
rate of interest such Bonds may at any particular time bear.
"Mayor" shall mean the Mayor or Vice Mayor of the Issuer, and such other
person as may be duly authorized to act on his or her behalf.
"Moody's" shall mean Moody's Investors Service, and any assigns or successors
thereto.
"Net Stormwater Fee Revenue" shall mean Stormwater Fee Revenue less the
costs of operation and maintenance of the Sebastian Stormwater Utility.
"Non-Ad Valorem Revenues" shall mean all revenues of the Issuer derived from
any source whatsoever other than ad valorem taxation on real or personal property, which
are legally available to make the payments required herein, but only after provision has
been made by the Issuer for the payment of all essential or legally mandated services.
"Outstanding", when used with reference to Bonds and as of any particular date,
shall describe all Bonds theretofore and thereupon being authenticated and delivered
except, (1) any Bond in lieu of which another Bond or other Bonds have been issued
under agreement to replace lost, mutilated or destroyed Bonds, (2) any Bond surrendered
by the Holder thereof in exchange for another Bond or other Bonds under Sections 2.05
and 2.07 hereof, (3) Bonds deemed to have been paid pursuant to Section 8.01 hereof,
and (4) Bonds cancelled after purchase in the open market or because of payment at or
redemption prior to maturity.
"Paying Agent" shall mean for each Series of Bonds any paying agent for such
Series of Bonds appointed by or pursuant to this Resolution and its successor or assigns,
and any other Person which may at any time be substituted in its place pursuant to this
Resolution.
"Person" shall mean an individual, a corporation, a partnership, an association, a
joint stock company, a trust, any unincorporated organization, governmental entity or
other legal entity.
"Pledged Funds" shall mean (1) the Stormwater Fee Revenue and (2) until
applied in accordance with the provisions of this Resolution, all moneys, including
investments thereof, in the funds and accounts established hereunder, except (A) as for
the Rebate Fund, and (B) to the extent moneys on deposit in a subaccount of the Reserve
Account shall be pledged solely for the payment of the Series of Bonds for which it was
established in accordance with the provisions hereof.
"Prerefunded Obligations" shall rrean 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 (1) which are (A) not callable prior to maturity or (B)
as to which irrevocable instructions have been given to the fiduciary for such bonds or
other obligations by the obligor to give due notice of redemption and to call such bonds
for redemption on the date or dates specified in such instructions, (2) which are fully
secured as to principal, redemption premium, if any, and interest by a fund consisting
only of cash or United States Obligations, secured in the manner set forth in Section 8.01
hereof, which fund may be applied only to the payment of such principal of, redemption
premium, if any, and interest 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 the case may be, (3) as to which the principal of and interest on the
United States Obligations, which have been deposited in such fund along with any cash
on deposit in such fund, are sufficient, as verified by an independent certified public
accountant or other expert in such matters, to pay principal of, redemption premium, if
any, and interest on the bonds or other obligations on the maturity date or dates thereof or
on the redemption date or dates specified in the irrevocable instructions referred to in
clause (1) above, and (4) which are rated in the highest rating category (without regard of
gradations, such as "plus" or "minus" of such categories) of one of the Rating Agencies.
"Principal Account" shall mean the separate account in the Debt Service Fund
established pursuant to Section 4.04 hereof.
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"Project" shall mean the Initial Project and any Additional Project.
"Rating Agencies" shall mean Fitch, Moody's and Standard & Poor's.
"Rebate Fund" shall mean the Rebate Fund established pursuant to Section 4.04
hereof.
"Redemption Price" shall mean, with respect to any Bond or portion thereof, the
principal amount or portion thereof, plus the applicable premium, if any, payable upon
redemption thereof pursuant to such Bond or this Resolution.
"Refunding Securities" shall mean the United States Obligations and the
Prerefunded Obligations.
"Registrar" shall mean for each Series of Bonds any registrar for Bonds
appointed by or pursuant to this Resolution and its successors and assigns, and any other
Person which may at any time be substituted in its place pursuant to this Resolution.
"Reserve Account" shall mean the separate account in the Debt Service Fund
established pursuant to Section 4.04 hereof.
"Reserve Account Insurance Policy" shall mean the insurance policy or surety
bond deposited in the Reserve Account in lieu of or in partial substitution for cash on
deposit therein pursuant to Section 4.05(A)(4) hereof.
"Reserve Account Letter of Credit" shall mean an unconditional irrevocable
letter of credit or line of credit or other credit facility (other than a Reserve Account
Insurance Policy) deposited in the Reserve Account in lieu of or in partial substitution for
cash on deposit therein pursuant to Section 4.05(A)(4) hereof.
"Reserve Account Requirement" shall mean, as of any date of calculation for
the Reserve Account, an amount equal to the lesser of (1) Maximum Annual Debt
Service for all Outstanding Bonds secured thereby, (2) 125% of the average Annual Debt
Service for all Outstanding Bonds secured thereby, or (3) the maximum amount allowed
to be funded from proceeds of tax-exempt obligations and invested at an unrestricted
yield pursuant to the Code; provided, however, the Issuer may establish by Supplemental
Resolution a different Reserve Account Requirement for a subaccount of the Reserve
Account which secures a Series of Bonds pursuant to Section 4.05(A)(4) hereof. In
computing the Reserve Account Requirement in respect of a Series of Bonds that
constitutes Variable Rate Bonds, the interest rate on such Bonds shall be assumed to be
(A) if such Variable Rate Bonds have been Outstanding for at least 24 months prior to the
date of calculation, the highest average interest rate borne by such Variable Rate Bonds
for any 30-day period, and (B) if such Variable Rate Bonds have not been Outstanding
for at least 24 months prior to the date of calculation, the Bond Buyer Revenue Bond
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Index most recently published prior to the time of calculation. The time of calculation for
Variable Rate Bonds shall be each March 1.
"Resolution" shall mean this Resolution, as the same may from time to time be
amended, modified or supplemented by Supplemental Resolution.
"Revenue Fund" shall mean the Revenue Fund established pursuant to Section
4.04 hereof.
"Serial Bonds" shall mean all of the Bonds other than the Term Bonds.
"Series" shall mean all the Bonds delivered on original issuance in a simultaneous
transaction and identified pursuant to Sections 2.01 and 2.02 hereof or a Supplemental
Resolution authorizing the issuance by the Issuer of such Bonds as a separate Series,
regardless of variations in maturity, interest rate, Amortization Installments or other
provisions.
"Series 2003 Bonds" shall mean the Issuer's Stormwater Utility Revenue Bonds,
Series 2003 authorized pursuant to Section 2.02 hereof.
"Standard and Poor's" or "S&P" shall mean Standard and Poor's Ratings
Services, and any assigns and successors thereto.
"State" shall mean the State of Florida.
"Stormwater Fee Revenue" shall mean the moneys received by the Issuer (i.e.,
net of any credits) from the proceeds of the Stormwater Fees.
"Stormwater Fees" shall mean fees imposed by the Sebastian Stormwater Utility
pursuant to the Act.
"Stormwater Master Plan" shall mean the Master Stormwater Management Plan
prepared for the City by Camp Dresser & McKee Inc. and approved by the City on
March 12, 2003, as amended and supplemented.
"Stormwater Reserve Fund" shall mean the Stormwater Reserve Fund
established pursuant to Section 4.04 hereof.
"Subordinated Indebtedness" shall mean that indebtedness of the Issuer,
subordinate and junior to the Bonds, issued in accordance with the provisions of Section
5.01 hereof.
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"Supplemental Resolution" shall mean any resolution of the Issuer amending or
supplementing this Resolution enacted and becoming effective in accordance with the
terms of Sections 7.01, 7.02 and 7.03 hereof.
"Taxable Bond" shall mean any Bond which states, in the body thereof, that the
interest income thereon is includable in the gross income of the Holder thereof for federal
income taxation purposes or that such interest is subject to federal income taxation.
"Term Bonds" shall mean those Bonds which shall be designated as Term Bonds
hereby or by Supplemental Resolution of the Issuer and which are subject to mandatory
redemption by Amortization Installment.
"United States Obligations" shall mean obligations described in paragraphs (2)
and (4) of the definition of "Authorized Investments." "United States Obligations" shall
also include direct obligations of the United States Treasury, Treasury Receipts, CATS,
STRPS, TIGRS, Refcorp interest strips and similar securities and obligations of agencies
described in this definition; provided such obligations do not permit redemption prior to
maturity at the option of the obligor.
"Variable Rate Bonds" shall mean Bonds issued with a variable, adjustable,
convertible or other similar rate which is not fixed in percentage for the entire term
thereof at the date of issue.
The terms "herein," "hereunder," "hereby," "hereto," "hereof," and any similar
terms, shall refer to this Resolution; the term "heretofore" shall mean before the date of
adoption of this Resolution; and the term "hereafter" shall mean after the date of adoption
of this Resolution.
Words importing the masculine gender include every other gender.
Words importing the singular number include the plural number, and vice versa.
SECTION 1.02. AUTHORITY FOR RESOLUTION. This Resolution is
adopted pursuant to the provisions of the Act. The Issuer has ascertained and hereby
determined that adoption of this Resolution is necessary to carry out the powers, purposes
and duties expressly provided in the Act, that each and every matter and thing as to which
provision is made herein is necessary in order to carry out and effectuate the purposes of
the Issuer in accordance with the Act and to carry out and effectuate the plan and purpose
of the Act, and that the powers of the Issuer herein exercised are in each case exercised in
accordance with the provisions of the Act and in furtherance of the purposes of the Issuer.
SECTION1.03. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of any or all of the Bonds by those who
shall hold the same from time to time, the provisions of this Resolution shall be a part of
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the contract of the Issuer with the Holders of the Bonds and any Credit Bank and Insurer
and shall be deemed to be and shall constitute a contract between the Issuer and the
Holders from time to time of the Bonds and any Credit Bank and Insurer. The pledge
made in this Resolution and the provisions, covenants and agreements herein set forth to
be performed by or on behalf of the Issuer shall be for the equal benefit, protection and
security of the Holders of any and all of said Bonds and for the benefit, protection and
security of any Credit Bank and Insurer. All of the Bonds, regardless of the time or times
of their issuance or maturity, shall be of equal rank without preference, priority or
distinction of any of the Bonds over any other thereof except as expressly provided in or
pursuant to this Resolution.
SECTION 1.04. FINDINGS. It is hereby ascertained, determined and
declared:
(A) That the Issuer deems it necessary, desirable and in the best interests of the
health, safety and welfare of the Issuer and its inhabitants that Projects, from time to time,
be acquired and constructed.
(B) That such Projects shall be financed, in whole or in part, by the proceeds of
Bonds issued pursuant to this Resolution.
(C) That the estimated Pledged Funds will be sufficient to pay the principal of
and interest on the Bonds to be issued pursuant to this Resolution, as the same become
due, and all other payments provided for in this Resolution.
(D) That the principal of and interest on the Bonds to be issued pursuant to this
Resolution, and all other payments provided for in this Resolution will be paid solely
from the Pledged Funds provided herein; and the ad valorem taxing power of the Issuer
will never be necessary or authorized to pay the principal of and interest on the Bonds to
be issued pursuant to this Resolution and, except as otherwise provided herein, the Bonds
shall not constitute a lien upon any property of the Issuer.
SECTION 1.05. INITIAL PROJECT. The Issuer does hereby authorize the
acquisition and construction of the Initial Project.
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ARTICLE II
AUTHORIZATION, TERMS, EXECUTION AND
REGISTRATION OF BONDS
SECTION 2.01. AUTHORIZATION OF BONDS. This Resolution creates
an issue of Bonds of the Issuer to be designated as "City of Sebastian, Florida,
Stormwater Utility Revenue Bonds" which may be issued in one or more Series as
hereinafter provided. The aggregate principal amount of the Bonds which may be
executed and delivered under this Resolution is not limited except as is or may hereafter
be provided in this Resolution or as limited by the Act or by law.
The Bonds may, if and when authorized by the Issuer pursuant to this Resolution,
be issued in one or more Series, with such further appropriate particular designations
added to or incorporated in such title for the Bonds of any particular Series as the Issuer
may determine and as may be necessary to distinguish such Bonds from the Bonds of any
other Series. Each Bond shall bear upon its face the designation so determined for the
Series to which it belongs.
The Bonds shall be issued for such purpose or purposes; shall bear interest at such
rate or rates not exceeding the maximum rate permitted by law; and shall be payable in
lawful money of the United States of America on such dates; all as determined by
Supplemental Resolution of the Issuer.
The Bonds shall be issued in such denominations and such form, whether coupon
or registered; shall be dated such date; shall bear such numbers; shall be payable at such
place or places; shall contain such redemption provisions; shall have such Paying Agents
and Registrars; shall mature in such years and amounts; and the proceeds shall be used in
such manner; all as determined by Supplemental Resolution of the Issuer. The Issuer
may issue Bonds which may be secured by a Credit Facility or by a Bond Insurance
Policy of an Insurer all as shall be determined by Supplemental Resolution of the Issuer.
The Governing Body may delegate approval of the terms, details and sale of a Series of
Bonds to an Authorized Issuer Officer pursuant to Supplemental Resolution.
SECTION 2.02. AUTHORIZATION AND DESCRIPTION OF SERIES
2003 BONDS. A Series of Bonds entitled to the benefit, protection and security of this
Resolution is hereby authorized in the aggregate principal amount of $8,000,000 for the
principal purposes of paying or reimbursing the Costs of the Initial Project. Such Series
of Bonds shall be designated as, and shall be distinguished from the Bonds of all other
Series by the title, "City of Sebastian, Florida, Stormwater Utility Revenue Bonds, Series
2003."
15
The Series 2003 Bonds shall be dated as of the first day of the month in which
occurs the delivery of the Series 2003 Bonds to the purchaser or purchasers thereof or
such other date as may be set forth by Supplemental Resolution of the Issuer; shall be
issued as fully registered Bonds; shall be numbered consecutively from one upward in
order of maturity preceded by the letter "R"; shall be in such denominations and shall
bear interest at a rate or rates not exceeding the maximum rate permitted by law, payable
in such manner and on such dates; shall consist of such amounts of Serial Bonds, Term
Bonds, Variable Rate Bonds and Capital Appreciation Bonds; maturing in such amounts
and in such years not exceeding such period as may be permitted by the Act at the time of
issuance; shall be payable in such place or places; shall have such Paying Agents and
Registrars; and shall contain such redemption provisions; all as the Issuer shall provide
hereafter by Supplemental Resolution.
The principal of or Redemption Price, if applicable, on the Series 2003 Bonds are
payable upon presentation and surrender of the Series 2003 Bonds at the office of the
Paying Agent. Interest payable on any Series 2003 Bond on any Interest Date will be
paid by check or draft of the Paying Agent to the Holder in whose name such Bond shall
be registered at the close of business on the date which shall be the fifteenth day (whether
or not a business day) of the calendar month next preceding such Interest Date, or, at the
request and expense of such Holder, by bank wire transfer for the account of such Holder.
All payments of principal of or Redemption Price, if applicable, and interest on the Series
2003 Bonds shall be payable in any coin or currency of the United States of America
which at the time of payment is legal tender for the payment of public and private debts.
SECTION 2.03. EXECUTION OF BONDS. The Bonds shall be executed in
the name of the Issuer with the manual or facsimile signature of the Mayor and the
official seal of the Issuer shall be imprinted thereon, attested and countersigned with the
manual or facsimile signature of the Clerk. In case any one or more of the officers who
shall have signed or sealed any of the Bonds or whose facsimile signature shall appear
thereon shall cease to be such officer of the Issuer before the Bonds so signed and sealed
have been actually sold and delivered such Bonds may nevertheless be sold and delivered
as herein provided and may be issued as if the person who signed or sealed such Bonds
had not ceased to hold such office. Any Bond may be signed and sealed on behalf of the
Issuer by such person who at the actual time of the execution of such Bond shall hold the
proper office of the Issuer, although at the date of such Bond such person may not have
held such office or may not have been so authorized. The Issuer may adopt and use for
such purposes the facsimile signatures of any such persons who shall have held such
offices at any time after the date of the adoption of this Resolution, notwithstanding that
either or both shall have ceased to hold such office at the time the Bonds shall be actually
sold and delivered.
16
SECTION 2.04. AUTHENTICATION. No Bond of any Series shall be
secured hereunder or entitled to the benefit hereof or shall be valid or obligatory for any
purpose unless there shall be manually endorsed on such Bond a certificate of
authentication by the Registrar or such other entity as may be approved by the Issuer for
such purpose. Such certificate on any Bond shall be conclusive evidence that such Bond
has been duly authenticated and delivered under this Resolution. The form of such
certificate shall be substantially in the form provided in Section 2.08 hereof.
SECTION 2.05. TEMPORARY BONDS. Until the definitive Bonds of any
Series are prepared, the Issuer may execute, in the same manner as is provided in Section
2.03, and deliver, upon authentication by the Registrar pursuant to Section 2.04 hereof, in
lieu of definitive Bonds, but subject to the same provisions, limitations and conditions as
the definitive Bonds, except as to the denominations thereof, one or more temporary
Bonds substantially of the tenor of the definitive Bonds in lieu of which such temporary
Bond or Bonds are issued, in denominations authorized by the Issuer by Supplemental
Resolution, and with such omissions, insertions and variations as may be appropriate to
temporary Bonds. The Issuer, at its own expense, shall prepare and execute definitive
Bonds, which shall be authenticated by the Registrar. Upon the surrender of such
temporary Bonds for exchange, the Registrar, without charge to the Holder thereof, shall
deliver in exchange therefor definitive Bonds, of the same aggregate principal amount
and Series and maturity as the temporary Bonds surrendered. Until so exchanged, the
temporary Bonds shall in all respects be entitled to the same benefits and security as
definitive Bonds issued pursuant to this Resolution. All temporary Bonds surrendered in
exchange for another temporary Bond or Bonds or for a definitive Bond or Bonds shall
be forthwith cancelled by the Registrar.
SECTION2.06. BONDS MUTILATED, DESTROYED, STOLEN OR
LOST. In case any Bond shall become mutilated, or be destroyed, stolen or lost, the
Issuer may, in its discretion, issue and deliver, and the Registrar shall authenticate, a new
Bond of like tenor as the Bond so mutilated, destroyed, stolen or lost, in exchange and
substitution for such mutilated Bond upon surrender and cancellation of such mutilated
Bond or in lieu of and substitution for the Bond destroyed, stolen or lost, and upon the
Holder furnishing the Issuer and the Registrar proof of his ownership thereof and
satisfactory indemnity and complying with such other reasonable regulations and
conditions as the Issuer or the Registrar may prescribe and paying such expenses as the
Issuer and the Registrar may incur. All Bonds so surrendered or otherwise substituted
shall be cancelled by the Registrar. If any of the Bonds shall have matured or be about to
mature, instead of issuing a substitute Bond, the Issuer may pay the same or cause the
Bond to be paid, upon being indemnified as aforesaid, and if such Bonds be lost, stolen or
destroyed, without surrender thereof.
17
Any such duplicate Bonds issued pursuant to this Section 2.06 shall constitute
original, a:lditional contractual obligations on the part of the Issuer whether or not the
lost, stolen or destroyed Bond be at any time found by anyone, and such duplicate Bond
shall be entitled to equal and proportionate benefits and rights as to lien on the Pledged
Funds to the same extent as all other Bonds issued hereunder.
SECTION 2.07. INTERCHANGEABILITY, NEGOTIABILITY AND
TRANSFER. Bonds, upon surrender thereof at the office of the Registrar with a written
instrument of transfer satisfactory to the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing, may, at the option of the Holder thereof, be
exchanged for an equal aggregate principal amount of registered Bonds of the same
Series and maturity of any other authorized denominations.
The Bonds issued under this Resolution shall be and have all the qualities and
incidents of negotiable instruments under the law merchant and the Uniform Commercial
Code of the State of Florida, subject to the provisions for registration and transfer
contained in this Resolution and in the Bonds. So long as any of the Bonds shall remain
Outstanding, the Issuer shall maintain and keep, at the office of the Registrar, books for
the registration and transfer of the Bonds.
Each Bond shall be transferable only upon the books of the Issuer, at the office of
the Registrar, under such reasonable regulations as the Issuer may prescribe, by the
Holder thereof in person or by his attorney duly authorized in writing upon surrender
thereof together with a witten instrument of transfer satisfactory to the Registrar duly
executed and guaranteed by the Holder or his duly authorized attorney. Upon the transfer
of any such Bond, the Issuer shall issue, and cause to be authenticated, in the name of the
transferee a new Bond or Bonds of the same aggregate principal amount and Series and
maturity as the surrendered Bond. The Issuer, the Registrar and any Paying Agent or
fiduciary of the Issuer may deem and treat the Person in whose name any Outstanding
Bond shall be registered upon the books of the Issuer as the absolute owner of such Bond,
whether such Bond shall be overdue or not, for the purpose of receiving payment of, or
on account of, the principal or Redemption Price, if applicable, and interest on such Bond
and for all other purposes, and all such payments so made to any such Holder or upon his
order shall be valid and effectual to satisfy and discharge the liability upon such Bond to
the extent of the sum or sums so paid and neither the Issuer nor the Registrar nor any
Paying Agent or other fiduciary of the Issuer shall be affected by any notice to the
contrary.
The Registrar, in any case where it is not also the Paying Agent in respect to any
Series of Bonds, shall forthwith (A) following the fifteenth day prior to an interest
payment date for such Series; (B) following the fifteenth day next preceding the date of
first mailing of notice of redemption of any Bonds of such Series; and (C) at any other
time as reasonably requested by the Paying Agent of such Series, certify and furnish to
18
such Paying Agent the names, addresses and holdings of Bondholders and any other
relevant information reflected in the registration books. Any Paying Agent of any fully
registered Bond shall effect payment of interest on such Bonds by mailing a check to the
Holder entitled thereto or may, in lieu thereof, upon the request and at the expense of
such Holder, transmit such payment by bank wire transfer for the account of such Holder.
In all cases in which the privilege of exchanging Bonds or transferring Bonds is
exercised, the Issuer shall cause to be issued Bonds and the Registrar shall authenticate
and deliver such Bonds in accordance with the provisions of this Resolution. Execution
of Bonds by the Mayor and Clerk for purposes of exchanging, replacing or transferring
Bonds may occur at the time of the original delivery of the Series of which such Bonds
are a part. All Bonds surrendered in any such exchanges or transfers shall be held by the
Registrar in safekeeping until directed by the Issuer to be destroyed or returned by the
Registrar. For every such exchange or transfer of Bonds, the Issuer or the Registrar may
make a charge sufficient to reimburse it for any tax, fee, expense or other governmental
charge required to be paid with respect to such exchange or transfer. The Issuer and the
Registrar shall not be obligated to make any such exchange or transfer of Bonds of any
Series during the 15 days next preceding an Interest Date on the Bonds of such Series
(other than Capital Appreciation Bonds and Variable Rate Bonds), or, in the case of any
proposed redemption of Bonds of such Series, then, for the Bonds subject to redemption,
during the 15 days next preceding the date of the first mailing of notice of such
redemption and continuing until such redemption date.
The Issuer may elect to issue any Bonds as uncertificated registered public
obligations (not represented by instruments), commonly known as book-entry
obligations, provided it shall establish a system of registration therefor by Supplemental
Resolution.
SECTION 2.08. FORM OF BONDS. The text of the Bonds, except for
Capital Appreciation Bonds and Variable Rate Bonds, the form of which shall be
provided by Supplemental Resolution of the Issuer, shall be in substantially the following
form with such omissions, insertions and variations as may be necessary and/or desirable
and approved by the Mayor or the Clerk prior to the issuance thereof (which necessity
and/or desirability and approval shall be presumed by such officer's execution of the
Bonds and the Issuer's delivery of the Bonds to the purchaser or purchasers thereof):
19
No. R-
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF SEBASTIAN, FLORIDA
STORMWATER UTILITY REVENUE BOND,
SERIES
Interest Maturity Date of
Rate Date Original Issue CUSIP
Registered Holder:
Principal Amount;
The City of Sebastian, Florida, a municipal corporation duly organized and validly
existing under the laws of the State of Florida (the "Issuer"), for value received, hereby
promises to pay, solely from the Pledged Funds hereinafter described, to the Registered
Holder identified above, or registered assigns as hereinafter provided, on the Maturity
Date identified above, the Principal Amount identified above and to pay interest on such
Principal Amount from the Date of Original Issue identified above or from the most
recent interest payment date to which interest has been paid at the Interest Rate per
annum identified above on and of each year commencing
until such Principal Amount shall have been paid, except as the
provisions hereinafter set forth with respect to redemption prior to maturity may be or
become applicable hereto.
Such Principal Amount and interest and lhe premium, if any, on this Bond are
payable in any coin or currency of the United States of America which, on the respective
dates of payment thereof, shall be legal tender for the payment of public and private
debts. Such Principal Amount and the premium, if any, on this Bond, are payable, upon
presentation and surrender hereof, at the designated corporate trust office of
., ., , as Paying Agent. Payment of each
installment of interest shall be made to the person in whose name this Bond shall be
registered on the registration books of the Issuer maintained by
., as Registrar, at the close of business on the date which
20
shall be the fifteenth day (whether or not a business day) of the calendar month next
preceding each interest payment date and shall be paid by a check or draft of such Paying
Agent mailed to such Registered Holder at the address appearing on such registration
books or, at the request and expense of such Registered Holder, by bank wire transfer for
the account of such Holder.
This Bond is one of an authorized issue of Bonds in the aggregate principal
amount of $ (the "Bonds") of like date, tenor and effect, except as to maturity
date, interest rate, denomination and number, issued to finance the acquisition,
construction, and reconstruction of capital improvements programmed in the Issuer's
Stormwater Master Plan and located within the jurisdiction of the Issuer, under the
authority of and in full compliance with the Constitution and laws of the State of Florida,
particularly Chapter 166, Florida Statutes, Sections 403.0891 and 403.0893, Florida
Statutes, City Ordinance No. O-01-16, codified as Chapter 102, Article V of the City of
Sebastian Code of Ordinances, and other applicable provisions of law (the "Act"), and a
resolution duly adopted by the Governing Body of the Issuer on ,2003, as
amended and supplemented (the "Resolution"), and is subject to all the terms and
conditions of the Resolution.
This Bond and the interest hereon are payable solely from and secured by a lien
upon and a pledge of (1) the Stormwater Fee Revenue (as defined in the Resolution) and
(2) until applied in accordance with the provisions of the Resolution, all moneys,
including investments thereof, in certain of the funds and accounts established by the
Resolution, all in the manner and to the extent described in the Resolution (collectively,
the "Pledged Funds"). The Stormwater Fees subject to the lien and pledge provided in
the Resolution may be increased by the Issuer in accordance with the terms of the
Resolution.
It is expressly agreed by the Registered Holder of this Bond that the full faith and
credit of the Issuer, the State of Florida, or any political subdivision thereof, are not
pledged to the payment of the principal of, premium, if any, and interest on this Bond and
that such Holder shall never have the right to require or compel the exercise of any taxing
power of the Issuer, the State of Florida, or any political subdivision thereof, to the
payment of such principal, premium, if any, and interest. This Bond and the obligation
evidenced hereby shall not constitute a lien upon any property of the Issuer, but shall
constitute a lien only on, and shall be payable solely from, the Pledged Funds in
accordance with the terms of the Resolution. The Issuer may issue additional obligations
on parity with the Bonds in accordance with the terms of the Resolution.
Neither the members of the Issuer's City Council nor any person executing this
Bond shall be liable personally hereon or be subject to any personal liability or
accountability by reason of the issuance hereof.
21
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 THE FRONT SIDE HEREOF.
[This Bond is one of a Series of Bonds which were validated by judgment of the
Circuit Court of the Nineteenth Judicial Circuit of Florida, in and for Indian River
County, Florida, rendered on .]
This Bond shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Registrar.
IN WITNESS WHEREOF, the City of Sebastian, Florida has issued this Bond
and has caused the same to be executed by the manual or facsimile signature of the
Mayor and to be countersigned and attested by the manual or facsimile signature of the
Clerk and its official seal or a facsimile thereof to be affixed or reproduced hereon, all as
of the Date of Original Issue.
CITY OF SEBASTIAN, FLORIDA
22
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the Issue described in the within-mentioned
Resolution.
DATE OF AUTHENTICATION:
Registrar
By:
Authorized Officer
23
(Provisions on Reverse Side of Bond)
The transfer of this Bond is registrable in accordance with the terms of the
Resolution only upon the books of the Issuer kept for hat purpose at the designated
corporate trust office of the Registrar by the Registered Holder hereof in person or by his
attorney duly authorized in writing, upon the surrender of this Bond together with a
written instrument of transfer satisfactory to the Registrar duly executed by the
Registered Holder or his attorney duly authorized in writing, and thereupon a new Bond
or Bonds in the same aggregate principal amount shall be issued to the transferee in
exchange therefor, and upon the payment of the charges, if any, therein prescribed. The
Bonds are issuable in the form of fully registered Bonds in the denomination of $5,000
and any integral multiple thereof, not exceeding the aggregate principal amount of the
Bonds. The Issuer, the Registrar and any Paying Agent may treat the Registered Holder
of this Bond as the absolute owner hereof for all purposes, whether or not this Bond shall
be overdue, and shall not be affected by any notice to the contrary. The Issuer and the
Registrar shall not be obligated to make any exchange or transfer of the Bonds during the
15 days next preceding an interest payment date or, in the case of any proposed
redemption of the Bonds, then, for the Bonds subject to redemption, during the 15 days
next preceding the date of the first mailing of notice of such redemption.
(INSERT REDEMPTION PROVISIONS)
Redemption of this Bond under the preceding paragraphs shall be made as
provided in the Resolution upon notice given by first class mail sent at least 30 days prior
to the redemption date to the Registered Holder hereof at the address shown on the
registration books maintained by the Registrar; provided, however, that failure to mail
notice to the Registered Holder hereof, or any defect therein, shall not affect the validity
of the proceedings for redemption of other Bonds as to which no such failure or defect
has occurred. In the event that less than the full principal amount hereof shall have been
called for redemption, the Registered Holder hereof shall surrender this Bond in
exchange for one or more Bonds in an aggregate principal amount equal to the
unredeemed portion of principal, as provided in the Resolution.
Reference to the Resolution and any and all resolutions supplemental thereto and
modifications and amendments thereof and to the Act is made for a description of the
pledge and covenants securing this Bond, the nature, manner and extent of enforcement
of such pledge and covenants, and the rights, duties, immunities and obligations of the
Issuer.
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
24
the laws and Constitution of the State of Florida applicable thereto, and that the issuance
of the Bonds does not violate any constitutional or statutory limitations or provisions.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
Insert Social Security or Other Identifying Number of Assignee
(Name and Address of Assignee)
the within Bond and does hereby irrevocably constitute and appoint
as attorneys to register the
transfer of the said Bond on the books kept for registration thereof with full power of
substitution in the premises.
Dated:
Signature guaranteed:
NOTICE: Signature(s) must be
guaranteed by an institution which is a
participant in the Securities Transfer Agent
Medallion Program (STAMP) or similar
program.
NOTICE: The signature to this
assignment must correspond with the name
of the Registered Holder 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 other identifying
number of such assignee must be supplied.
25
The following abbreviations, when used in the inscription on the face of the within Bond,
shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN--
as joint tenants with right of
survivorship and not as tenants
in common
UNIF TRANS MIN ACT --
(Cust.)
Custodian for
under Uniform Transfers to Minors Act of
(State)
Additional abbreviations may also be used though not in list above.
26
ARTICLE III
REDEMPTION OF BONDS
SECTION3.01. PRIVILEGE OF REDEMPTION. The terms of this
Article III shall apply to redemption of Bonds other than Capital Appreciation Bonds or
Variable Rate Bonds. The terms and provisions relating to redemption of Capital
Appreciation Bonds and Variable Rate Bonds shall be provided by Supplemental
Resolution.
SECTION3.02. SELECTION OF BONDS TO BE REDEEMED. The
Bonds shall be redeemed only in the principal amount of $5,000 each and integral
multiples thereof. The Issuer shall, at least 45 days prior to the redemption date (unless a
shorter time period shall be satisfactory to the Registrar) notify the Registrar of such
redemption date and of the principal amount of Bonds to be redeemed. For purposes of
any redemption of less than all of the Outstanding Bonds of a single maturity, the
particular Bonds or portions of Bonds to be redeemed shall be selected not more than 45
days prior to the redemption date by the Registrar from the Outstanding Bonds of the
maturity or maturities designated by the Issuer by such method as the Registrar shall
deem fair and appropriate and which may provide for the selection for ~edemption of
Bonds or portions of Bonds in principal amounts of $5,000 and integral multiples thereof.
If less than all of the Outstanding Bonds of a single maturity are to be redeemed,
the Registrar shall promptly notify the Issuer and Paying Agent (if the Registrar is not the
Paying Agent for such Bonds) in writing of the Bonds or portions of Bonds selected for
redemption and, in the case of any Bond selected for partial redemption, the principal
amount thereof to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. Notice of such redemption,
which shall specify the Bond or Bonds (or portions thereof) to be redeemed and the date
and place for redemption, shall be given by the Registrar on behalf of the Issuer, and (A)
shall be filed with the Paying Agents cf such Bonds, (B) shall be mailed first class,
postage prepaid, at least 30 days prior to the redemption date to all Holders of Bonds to
be redeemed at their addresses as they appear on the registration books kept by the
Registrar as of the date of mailing of such notice, and (C) shall be mailed, certified mail,
postage prepaid, at least 35 days prior to the redemption date to the registered securities
depositories and two or more nationally recognized municipal bond information services.
Failure to mail such notice to such depositories or services or the Holders of the Bonds to
be redeemed, or any defect therein, shall not affect the proceedings for redemption of
Bonds as to which no such failure or defect has occurred. Notice of optional redemption
of Bonds shall only be sent if the Issuer determines it shall have sufficient funds available
to pay the Redemption Price of and interest on the Bonds called for redemption on the
redemption date.
27
Each notice of redemption shall state: (1) the CUSIP numbers of all Bonds being
redeemed, (2) the original issue date of such Bonds, (3) the maturity date and rate of
interest borne by each Bond being redeemed, (4) the redemption date, (5) the Redemption
Price, (6) the date on which such notice is mailed, (7) if less than all Outstanding Bonds
are to be redeemed, the certificate number (and, in the case of a partial redemption of any
Bond, the principal amount) of each Bond to be redeemed, (8) that on such redemption
date there shall become due and payable upon each Bond to be redeemed the Redemption
Price thereof, or the Redemption Price of the specified portions of the principal thereof in
the case of Bonds to be redeemed in part only, together with interest accrued thereon to
the redemption date, and that from and after such date interest thereon shall cease to
accrue and be payable, (9) that the Bonds to be redeemed, whether as a whole or in part,
are to surrendered for payment of the Redemption Price at the principal office of the
Registrar at an address specified, and (10) the name and telephone number of a person
designated by the Registrar to be responsible for such redemption.
In addition to the mailing of the notice described above, each notice of redemption
and payment of the Redemption Price shall meet the following requirements; provided,
however, the failure to provide such further notice of redemption or to comply with the
terms of this paragraph shall not in any manner defeat the effectiveness of a call for
redemption if notice thereof is given as prescribed above:
(A) Each further notice of redemption shall be sent by certified mail or
overnight delivery service or telecopy to all registered securities depositories then in the
business of holding substantial amounts of obligations of types comprising the Bonds
(such depositories now being The Depository Trust Company, New York, New York,
Midwest Securities Trust Company, Chicago, Illinois and Philadelphia Depository Trust
Company, Philadelphia, Pennsylvania) and to two or more national information services
which disseminate notices of prepayment or redemption of obligations such as the Bonds
(such information services now being called Financial Information, Inc.'s "Daily Called
Bond Service," Jersey City, New Jersey, Kenny Information Service's "Called Bond
Service," New York, New York, Moody's "Municipal and Government," New York, New
York and Standard & Poor's "Called Bond Record," New York, New York).
(B) Each further notice of redemption shall be sent to such other Person, if any,
as shall be required by applicable law or regulation.
The notice of redemption described in this paragraph need not be given as
described above if the Bonds called for redemption are registered pursuant to a book-
entry-only system.
The Issuer may provide that a notice of redemption may be contingent upon the
occurrence of certain condition(s) and that if such condition(s) do not occur, the notice
will be rescinded; provided notice of rescission shall be mailed in the manner described
28
above to all affected Bondholders not later than three business days prior to the date of
redemption.
SECTION 3.04. REDEMPTION OF PORTIONS OF BONDS. Any Bond
which is to be redeemed only in part shall be surrendered at any place of payment
specified in the notice of redemption (with due endorsement by, or written instrument of
transfer in form satisfactory to the Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing) and the Issuer shall execute and the Registrar shall
authenticate and deliver to the Holder of such Bond, without service charge, a new Bond
or Bonds, of the same interest rate and maturity, and of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Bonds so surrendered.
SECTION3.05. PAYMENT OF REDEEMED BONDS. Notice of
redemption having been given substantially as aforesaid, the Bonds or portions of Bonds
so to be redeemed shall, on the redemption date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the Issuer shall
default in the payment of the Redemption Price) such Bonds or portions of Bonds shall
cease to bear interest. Upon surrender of such Bonds for redemption in accordance with
said notice, such Bonds shall be paid by the Registrar and/or Paying Agent at the
appropriate Redemption Price, plus accrued interest. All Bonds which have been
redeemed shall be cancelled by the Registrar and shall not be reissued.
29
ARTICLE IV
SECURITY, SPECIAL FUNDS AND APPLICATION THEREOF
SECTION 4.01. BONDS NOT TO BE INDEBTEDNESS OF ISSUER. The
Bonds shall not be or constitute general obligations or indebtedness of the Issuer as
"bonds" within the meaning of any constitutional or statutory provision, hat shall be
special obligations of the Issuer, payable solely from and secured by a lien upon and
pledge of the Pledged Funds in accordance with the terms of this Resolution. No Holder
of any Bond or any Credit Bank or Insurer shall ever have the right to compel the
exercise of any ad valorem taxing power to pay such Bond, or be entitled to payment of
such Bond from any moneys of the Issuer except from the Pledged Funds in the manner
provided herein.
SECTION4.02. SECURITY FOR BONDS. Except as otherwise lxovided
herein, the payment of the principal of or Redemption Price, if applicable, and interest on
the Bonds shall be secured forthwith equally and ratably by a pledge of and lien upon the
Pledged Funds; provided, however, a Series of Bonds may be further secured by a Credit
Facility or insurance policy of an Insurer in addition to the security provided herein; and
provided further that a Series of Bonds may be secured independently of any other Series
of Bonds by the establishment of a separate subaccount in the Reserve Account for such
Series of Bonds. Issuers of a Reserve Account Insurance Policy and Reserve Account
Letter of Credit shall be secured in accordance with the provisions hereof. The Issuer
does hereby irrevocably pledge the Pledged Funds to the payment of the principal of or
Redemption Price, if applicable, and interest on the Bonds in accordance with the
provisions hereof. The Pledged Funds shall immediately be subject to the lien of this
pledge without any physical delivery thereof or further act, and the lien of this pledge
shall be valid and binding as against all parties having claims of any kind in tort, contract
or otherwise against the Issuer.
SECTION 4.03. CONSTRUCTION FUND. The Issuer covenants and agrees
to establish a special fund in a bank, trust company or other entity in the State of Florida,
which is eligible under the laws of such State to receive funds of the Issuer, to be known
as the "City of Sebastian Stormwater Utility Revenue Bonds Construction Fund," which
shall be used only for payment of the Cost of the Projects. Moneys in the Construction
Fund, until applied in payment of any item of the Cost of a Project in the manner
hereinafter provided, shall be held in trust by the Issuer and shall be subject to a lien and
charge in favor of the Holders of the Bonds and for the further security of such Holders.
There shall be paid into the Construction Fund the amounts required to be so paid
by the provisions of this Resolution, and there may be paid into the Construction Fund, at
the option of the Issuer, any moneys received for or in connection with a Project by the
Issuer from any other source. The Issuer shall establish within the Construction Fund a
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separate account for each Project, the Cost of which is to be paid in whole or in part out
of the Construction Fund. The "Series 2003 Account" of the Construction Fund is hereby
established, from which Costs of the Initial Project shall be paid.
The proceeds of insurance maintained pursuant to this Resolution against physical
loss of or damage to a Project, or of contractors' performance bonds with respect thereto
pertaining to the period of construction thereof, shall be deposited into the appropriate
account of the Construction Fund.
Any moneys received by the Issuer from lhe State or from the United States of
America or any agencies thereof for the purpose of financing part of the Cost of a Project
may be deposited into the appropriate account of the Construction Fund and used in the
same manner as other Bond proceeds are used therein; provided that separate accounts or
subaccounts may be established in the Construction Fund for moneys received pursuant
to the provisions of this paragraph whenever required by Federal or State law.
The Issuer covenants that the acquisition, construction and installation of each
Project will be completed without delay and in accordance with sound engineering
practices. Except as otherwise specified in a Supplemental Resolution, the Issuer shall
make disbursements or payments from the Construction Fund to pay the Cost of a Project
upon the filing with the Clerk of certificates and/or documents signed by an Authorized
Issuer Officer, stating with respect to each disbursement or payment to be made: (A) the
item number of the payment, (B) the name and address of the Person to whom payment is
due, (C) the amount to be paid, (D) the account of the Construction Fund from which
payment is to be made, (E) the purpose, by general classification, for which payment is to
be made, and (F) that (1) each obligation, item of cost or expense mentioned therein has
been properly incurred, is in payment of a part of the Cost of a Project and is a proper
charge against the subaccount of the Construction Fund from which payment is to be
made and has not been the basis of any previous disbursement or payment, or (2) each
obligation, item of cost or expense mentioned therein has been paid by the Issuer, is a
reimbursement of a part of the Cost of a Project, is a proper charge against the account of
the Construction Fund from which payment is to be made, has not been theretofore
reimbursed to the Issuer or otherwise been the basis of any previous disbursement or
payment and the Issuer is entitled to reimbursement thereof. The Clerk shall retain all
such certificates and/or documents of the Authorized Issuer Officers for such period of
time as required by applicable law.
Notwithstanding any of the other provisions of this Section 4.03, to the extent that
other moneys are not available therefor, amounts in an account of the Construction Fund
with respect to any Series of Bonds shall be applied to the payment of principal and
interest on such Series when due.
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The date of completion of acquisition and construction of a Project shall be
determined by the Authorized Issuer Officer who shall certify such fact in writing to the
Governing Body. Promptly after the date of the completion of a Project, and after paying
or making provisions for the payment of all unpaid items of the Cost of such Project, the
Issuer shall deposit in the following order of priority any balance of moneys remaining in
the Construction Fund in (A) another account of the Construction Fund for which the
Authorized Issuer Officer has stated that there are insufficient moneys present to pay the
cost of the related Project, (B) the Reserve Account to the extent of a deficiency therein,
and (C) such other fund or account established hereunder as shall be determined by the
Governing Body, provided the Issuer has received an opinion of Bond Counsel to the
effect that such transfer shall not adversely affect the exclusion, if any, of interest on the
Bonds from gross income for purposes of federal income taxation.
SECTION4.04. FUNDS AND ACCOUNTS. The Issuer covenants and
agrees to establish with one or more banks, trust companies or other entities in the State
of Florida, which is eligible under the laws of such State to receive funds of the Issuer,
special funds to be known as the "City of Sebastian Stormwater Utility Revenue Bonds
Revenue Fund," the "City of Sebastian Stormwater Utility Revenue Bonds Debt Service
Fund," the "City of Sebastian Stormwater Utility Revenue Bonds Stormwater Reserve
Fund" and the "City of Sebastian Stormwater Utility Revenue Bonds Rebate Fund." The
Issuer shall maintain in the Debt Service Fund four accounts: the "Interest Account," the
"Principal Account," the "Bond Amortization Account," and the "Reserve Account."
Moneys in the aforementioned funds and accounts, other than the Rebate Fund, until
applied in accordance with the provisions hereof, shall be subject to a lien and charge in
favor of the Holders of the Bonds and for the further security of such Holders.
The Issuer may at any time and from time to time appoint one or more
depositories to hold, for the benefit of the Bondholders, any one or more of the funds,
accounts and subaccounts established hereby. Such depository or depositories shall
perform at the direction of the Issuer the duties of the Issuer in depositing, transferring
and disbursing moneys to and from each of such funds and accounts as herein set forth,
and all records of such depositary in performing such duties shall be open at all
reasonable times to inspection by the Issuer and its agent and employees. Any such
depositary shall be a bank or trust company duly authorized to exercise corporate trust
powers and subject to examination by federal or state authority, of good standing, and be
qualified under applicable State law as a depository.
SECTION4.05. DISPOSITION OF STORMWATER FEE REVENUE.
(A) Upon receipt, the Issuer shall promptly deposit the Stormwater Fee Revenue into the
Revenue Fund. The moneys in the Revenue Fund shall be deposited or credited on or
before the 25th day of each month, commencing in the month immediately following
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delivery of any of the Bonds to the purchasers thereof, or such later date as hereinafter
provided, in the following manner and in the following order of priority:
(1) Interest Account. The Issuer shall deposit or credit to the Interest
Account the sum which, together with the balance in said Account, shall equal the
interest on all Bonds Outstanding (except as to Capital Appreciation Bonds)
accrued and unpaid and to accrue to the end of the then current calendar month.
Moneys in the Interest Account shall be applied by the Issuer for deposit with the
Paying Agents to pay the interest on the Bonds on or prior to the date the same
shall become due. The Issuer shall adjust the amount of the deposit to the Interest
Account not later than a month immediately preceding any Interest Date so as to
provide sufficient moneys in the Interest Account to pay the interest on the Bonds
coming due on such Interest Date. No further deposit need be made to the Interest
Account when the moneys therein are equal to the interest coming due on the
Outstanding Bonds on the next succeeding Interest Date. In computing the
interest on Variable Rate Bonds which shall accrue during a calendar month, the
interest rate on such Variable Rate Bonds shall be assumed to be (A) if such
Variable Rate Bonds have been Outstanding for at least 24 months prior to the
commencement of such calendar month, the highest average interest rate borne by
such Variable Rate Bonds for any 30-day period, and (B) if such Variable Rate
Bonds have not been Outstanding for at least 24 months prior to the date of
calculation, the Bond Buyer Revenue Bond Index most recently published prior to
the commencement of such calendar month.
(2) Principal Account. Commencing no later than the month which is
one year prior to the first principal due date, the Issuer shall next deposit into the
Principal Account the sum which, together with the balance in said Account, shall
equal the principal amounts on all Bonds Outstanding due and unpaid and that
portion of the principal next due which would have accrued on such Bonds during
the then current calendar month if such principal amounts were deemed to accrue
monthly (assuming that a year consists of 12 equivalent calendar months having
30 days each) except for the Amortization Installments to be deposited pursuant to
Section 4.05(A)(3) hereof in equal amounts from the next preceding principal
payment due date, or, if there be no such preceding payment due date from a date
one year preceding the due date of such principal amount. Moneys in the
Principal Account shall be applied by the Issuer for deposit with the Paying
Agents to pay the principal of the Bonds on or prior to the date the same shall
mature, and for no other purpose. Serial Capital Appreciation Bonds shall be
payable from the Principal Account in the years in which such Bonds mature and
monthly payments into the Principal Account on account of such Bonds shall
commence in the month of the respective Bond Years in which such Bonds
mature. The Issuer shall adjust the amount of the deposit to the Principal Account
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not later than the month immediately preceding any principal payment date so as
to provide sufficient moneys in the Principal Account to pay the principal on
Bonds becoming due on such principal payment date. No further deposit need be
made to the Principal Account when the moneys therein are equal to the principal
coming due on the Outstanding Bonds on the next succeeding principal payment
date.
(3) Bond Amortization Account. Commencing in the month which is
one year prior to the first Amortization Installment due date, there shall be
deposited to the Bond Amortization Account the sum which, together with the
balance in such Account, shall equal the Amortization Installments on all Bonds
Outstanding due and unpaid and that portion of the Amortization Installments of
all Bonds Outstanding next due which would have accrued on such Bonds during
the then current calendar month if such Amortization Installments were deemed to
accrue monthly (assuming that a year consists of 12 equivalent calendar months
having 30 days each) in equal amounts from the next preceding Amortization
Installment due date, or, if there is no such preceding Amortization Installment
due date, from a date one year preceding the due date of such Amortization
Installment. Moneys in the Bond Amortization Account shall be used to purchase
or redeem Term Bonds in the manner herein provided, and for no other purpose.
The Issuer shall adjust the amount of the deposit to the Bond Amortization
Account on the month immediately preceding any Amortization Installment date
so as to provide sufficient moneys in the Bond Amortization Account to pay the
Amortization Installments becoming due on such date. Payments to the Bond
Amortization Account shall be on parity with payments to the Principal Account.
Amounts accumulated in the Bond Amortization Account with respect to
any Amortization Installment (together with amounts accumulated in the Interest
Account with respect to interest, if any, on the Term Bonds for which such
Amortization Installment was established) may be applied by the Issuer, on or
prior to the 60th day preceding the due date of such Amortization Installment, (a)
to the purchase of Term Bonds of the Series and maturity for which such
Amortization Installment was established, or (b) to the redemption at the
applicable Redemption Prices of such Term Bonds, if then redeemable by their
terms. Amounts in the Bond Amortization Account which are used to redeem
Term Bonds shall be credited against the next succeeding Amortization
Installment which shall become due on such Term Bonds. The applicable
Redemption Price (or principal amount of maturing Term Bonds) of any Term
Bonds so purchased or redeemed shall be deemed to constitute part of the Bond
Amortization Account until such Amortization Installment date, for the purposes
of calculating the amount of such Account. As soon as practicable after the 60th
day preceding the due date of any such Amortization Installment, the Issuer shall
34
proceed to call for redemption on such due date, by causing notice to be given as
provided in Section 3.03 hereof, Term Bonds of the Series and maturity for which
such Amortization Installment was established (except in the case of Term Bonds
maturing on a Amortization Installment date) in such amount as shall be necessary
to complete the retirement of the unsatisfied balance of such Amortization
Installment. The Issuer shall pay out of the Bond Amortization Account and the
Interest Account to the appropriate Paying Agents, on or before the day preceding
such redemption date (or maturity date), the amount required for the redemption
(or for the payment of such Term Bonds then maturing), and such amount shall be
applied by such Paying Agents to such redemption (or payment). All expenses in
connection with the purchase or redemption of Term Bonds shall be paid by the
Issuer from the Stormwater Reserve Fund.
(4) Reserve Account. There shall be deposited to the Reserve Account
an amount which would enable the Issuer to restore the funds on deposit in the
Reserve Account to an amount equal to the Reserve Account Requirement
applicable thereto. To the extent of any deficiencies in the Reserve Account
(including any amounts owing in regard to any Reserve Account Insurance Policy
or Reserve Account Letter of Credit) existing on the first day of each Fiscal Year,
moneys shall be transferred for such purposes pursuant to Section 4.09 hereof. All
deficiencies in the Reserve Account must be made up no later than 12 months
from the date such deficiency first occurred, whether such shortfall was caused by
decreased market value or withdrawal (whether from cash or a Reserve Account
Insurance Policy or Reserve Account Letter of Credit). On or prior to each
principal payment date and Interest Date for the Bonds (in no event earlier than the
25th day of the month next preceding such payment date), moneys in the Reserve
Account shall be applied by the Issuer to the payment of the principal of or
Redemption Price, if applicable, and interest on the Bonds to the extent moneys in
the Interest Account, the Principal Account and the Bond Amortization Account
shall be insufficient for such purpose, but only to the extent the moneys transferred
from the Stormwater Reserve Fund for such purposes pursuant to Section
4.04(A)(5) hereof shall be inadequate to fully provide for such insufficiency.
Whenever there shall be surplus moneys in the Reserve Account by reason of a
decrease in the Reserve Account Requirement or as a result of a deposit in the
Reserve Account of a Reserve Account Letter of Credit or a Reserve Account
Insurance Policy, such surplus moneys, to the extent practicable, shall be
deposited by the Issuer into the Stormwater Reserve Fund. The Issuer shall
promptly inform each Insurer of any draw upon the Reserve Account for purposes
of paying the principal of and interest on the Bonds.
Upon the issuance of any Series of Bonds under the terms, limitations and
conditions as herein provided, the Issuer shall fund the Reserve Account in an
35
amount at least equal to the Reserve Account Requirement. Such required
amount, if any, shall be paid in full or in part from the proceeds of such Series of
Bonds or may be accumulated in equal monthly payments to the Reserve Account
over a period of months from the date of issuance of such Series of Bonds, which
shall not exceed 36 months. In the event moneys in the Reserve Account are
accumulated as provided above, (a) the amount in said Reserve Account on the
date of delivery of the Additional Bonds shall not be less than the Reserve
Account Requirement on all Bonds Outstanding (excluding the Additional Bonds)
on such date, and (b) the incremental difference between the Reserve Account
Requirement on all Bonds Outstanding (excluding the Additional Bonds) on the
date of delivery of the Additional Bonds and the Reserve Account Requirement on
all such Bonds and the Additional Bonds shall be 50% funded upon delivery of the
Additional Bonds.
Notwithstanding the foregoing provisions, in lieu of or in substitution of the
required deposits into the Reserve Account, the Issuer may cause to be deposited
into the Reserve Account a Reserve Account Insurance Policy and/or Reserve
Account Letter of Credit for the benefit of the Bondholders in an amount equal to
the difference between the Reserve Account Requirement applicable thereto and
the sums then on deposit in the Reserve Account, if any. The Issuer may also
substitute a Reserve Account Insurance Policy and/or Reserve Account Letter of
Credit for cash on deposit in the Reserve Account upon compliance with the terms
of this Section 4.05(A)(4). Such Reserve Account Insurance Policy and/or
Reserve Account Letter of Credit shall be payable to the Paying Agent (upon the
giving of notice as required thereunder) on any Interest Date or redemption date
on which a deficiency exists which cannot be cured by moneys in any other fund
or account held pursuant to this Resolution and available for such purpose. The
issuer providing such Reserve Account Insurance Policy and/or Reserve Account
Letter of Credit shall be either (a) an insurer whose municipal bond insurance
policies insuring the payment, when due, or the principal of and interest on
municipal bond issues results in such issues being rated in one of the two highest
rating categories (without regard to gradations, such as "plus" or "minus" of such
categories) by two of the Rating Agencies, or (b) a commercial bank, insurance
company or other financial institution which has been assigned a rating by two of
the Rating Agencies in one of the two highest rating categories (without regard to
gradations, such as "plus" or "minus" of such categories). Any Reserve Account
Insurance Policy and/or Reserve Account Letter of Credit shall equally secure all
Bonds except to the extent a Series of Bonds is secured by a subaccount in the
Reserve Account which is pledged solely for the payment of such Series of Bonds
as provided in the last paragraph of this Section 4.05(A)(4).
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If two days prior to an interest or principal payment date, or such other
period of time as shall be required by the terms of the Reserve Account Insurance
Policy or Reserve Account Letter of Credit, the Issuer shall determine that a
deficiency exists in the amount of moneys available to pay in accordance with the
terms hereof interest and/or principal due on the Bonds on such date, the Issuer
shall immediately notify (a) the issuer of the applicable Reserve Account
Insurance Policy and/or the issuer of the Reserve Account Letter of Credit and
submit a demand for payment pursuant to the provisions of such Reserve Account
Insurance Policy and/or the Reserve Account Letter of Credit, (b) the Paying
Agent, and (c) the Insurer, if any, of the amount of such deficiency and the date on
which such payment is due.
In the event the Reserve Account contains both a Reserve Account
Insurance Policy or Reserve Account Letter of Credit and cash and separate
subaccounts have not been established in the Reserve Account, the cash shall be
drawn down completely prior to any draw on the Reserve Account Insurance
Policy or Reserve Account Letter of Credit. In the event more than one Reserve
Account Insurance Policy or Reserve Account Letter of Credit is on deposit in the
Reserve Account, amounts required to be drawn thereon shall be done on a pro-
rata basis. The Issuer agrees to pay all amounts owing in regard to any Reserve
Account Insurance Policy or Reserve Account Letter of Credit from the Pledged
Funds. Pledged Funds shall be applied in accordance with this Section 4.05(A)(4),
first, to reimburse the issuer of the Reserve Account Insurance Policy or Reserve
Account Letter of Credit for amounts advanced under such instruments, second,
replenish any cash deficiencies in the Reserve Account, and, third, to pay the
issuer of the Reserve Account Insurance Policy or Reserve Account Letter of
Credit interest on amounts advanced under such instruments. This Resolution
shall not be discharged or defeased while any obligations are owing in regard to a
Reserve Account Insurance Policy or Reserve Account Letter of Credit on deposit
in the Reserve Account. The Issuer agrees not to optionally redeem Bonds unless
all amounts owing in regard to a Reserve Account Insurance Policy or Reserve
Account Letter of Credit on deposit in the Reserve Account have been paid in full.
The Issuer may evidence its obligation to reimburse the issuer of any
Reserve Account Letter of Credit or Reserve Account Insurance Policy by
executing and delivering to such issuer a promissory note therefor; provided,
however, any such note (a) shall not be a general obligation of the Issuer the
payment of which is secured by the full faith and credit or taxing power of the
Issuer, and (b) shall be payable solely from the Pledged Funds in the manner
provided herein.
37
Any consent or approval of any Insurer described in this Section 4.05(A)(4)
shall be required only so long as there are Outstanding Bonds secured by a Bond
Insurance Policy issued by such Insurer which is in full force and effect and the
commitments of which have been honored by such Insurer. The term "Paying
Agent" as used in this Section 4.05(A)(4) may include one or more Paying Agents
for the Outstanding Bonds.
Whenever the amount of cash in the Reserve Account, together with the
other amounts in the Debt Service Fund, are sufficient to fully pay all Outstanding
Bonds in accordance with their terms (including principal or applicable
Redemption Price and interest thereon), the funds on deposit in the Reserve
Account may be transferred to the other Accounts of the Debt Service Fund for the
payment of the Bonds.
The Issuer may also establish a separate subaccount in the Reserve Account
for any Series of Bonds and provide a pledge of such subaccount to the payment
of such Series of Bonds apart from the pledge provided herein. To the extent a
Series of Bonds is secured separately by a subaccount of the Reserve Account, the
Holders of such Bonds shall not be secured by any other moneys in the Reserve
Account. Moneys in a separate subaccount of the Reserve Account shall be
maintained at the Reserve Account Requirement applicable to such Series of
Bonds secured by the subaccount; provided the Supplemental Resolution
authorizing such Series of Bonds may establish the Reserve Account Requirement
relating to such separate subaccount of the Reserve 3ccount at such level as the
Issuer deems appropriate. Moneys shall be deposited in the separate subaccounts
in the Reserve Account on a pro-rata basis. In the event the Issuer shall maintain a
Reserve Account Insurance Policy or Reserve Account Letter of Credit and
moneys in such subaccount, the moneys shall be used prior to making any
disbursements under such Reserve Account Insurance Policy or Reserve Account
Letter of Credit.
(5) Stormwater Reserve Fund. The balance of any Stormwater Fee
Revenue shall be deposited in the Stormwater Reserve Fund and applied to the
payment, on or prior to each principal and interest payment date for the Bonds (in
no event earlier than the 25th day of the month next preceding such payment date),
into the Interest Account, the Principal Account and the Bond Amortization
Account when the moneys therein shall be insufficient to pay the principal of and
interest on the Bonds coming due. Moneys not required to meet such a deficiency
shall be deposited to the Reserve Account to make up any deficiency therein, and,
third, to the Rebate Fund to the extent moneys are required to be on deposit
therein. Thereafter, moneys in the Stormwater Reserve Fund may be applied to
purposes permitted by the Act, including but not limited to the cost of operating
38
and maintaining the Issuer's stormwater system, the cost of renewals and
replacements to the City's stormwater system, repayment of funds advanced by the
City pursuant to Section 4.09 hereof, the purchase or redemption of Bonds, the
payment of Subordinated Indebtedness; provided however, that none of such
moneys shall ever be used for the purposes provided in this Section 4.05(A)(5)
unless all payments required in Sections 4.04(A)(1) through 4.04(A)(4) hereof,
including any deficiencies for prior payments, have been made in full to the date
of such use.
(B) Whenever moneys on deposit in the Debt Service Fund are sufficient to
fully pay all Outstanding Bonds in accordance with their terms (including principal or
applicable Redemption Price and interest thereon), no further deposits to the Debt Service
Fund need be made. If on any payment date the Stormwater Fee Revenue is insufficient
to deposit the required amount in any of the funds or accounts or for any of the purposes
provided above, the deficiency shall be made up on the subsequent payment dates.
The Issuer, in its discretion, may use moneys in the Principal Account and the
Interest Account to purchase or redeem Bonds coming due on the next principal payment
date, provided such purchase or redemption does not adversely affect the Issuer's ability
to pay the principal or interest coming due on such principal payment date on the Bonds
not so purchased or redeemed.
(C) In the event the Issuer shall issue a Series of Bonds secured by a Credit
Facility, the Issuer may establish separate subaccounts in the Interest Account, the
Principal Account and the Bond Amortization Account to provide for payment of the
principal of and interest on such Series; provided payment from the Pledged Funds of one
Series of Bonds shall not have preference over payment of any other Series of Bonds.
The Issuer may also deposit moneys in such subaccounts at such other times and in such
other amounts from those provided in Section 4.05(A) as shall be necessary to pay the
principal of and interest on such Bonds as the same shall become due, all as provided by
the Supplemental Resolution authorizing such Bonds.
In the case of Bonds secured by a Credit Facility, amounts on deposit in the Debt
Service Fund may be applied as provided in the applicable Supplemental Resolution to
reimburse the Credit Bank for amounts drawn under such Credit Facility to pay the
principal of, premium, if any, and interest on such Bonds or to pay the purchase price of
any such Bonds which are tendered by the holders thereof for payment; provided such
Credit Facility shall have no priority over Bondholders or an Insurer to amounts on
deposit in the Debt Service Fund. Other payments due to a Credit Bank in relation to
obligations arising under its Credit Facility may be on parity with the Bonds as to source
of and security for payment to the extent provided in the Supplemental Resolution
relating thereto.
39
SECTION 4.06. REBATE FUND. Amounts on deposit in the Rebate Fund
shall be held in trust by the Issuer and used solely to make required rebates to the United
States (except to the extent the same may be transferred to the Issuer) and the
Bondholders shall have no right to have the same applied for debt service on the Bonds.
For any Series of Bonds for which the rebate requirements of Section 148(f) of the Code
are applicable, the Issuer agrees to undertake all actions required of it in its arbitrage
certificate related to such Series of Bonds, including, but not limited to:
(A) making a determination in accordance with the Code of the amount
required to be deposited in the Rebate Fund;
(B)
Fund;
depositing the amount determined in clause (A) above into the Rebate
(C) paying on the dates and in the manner required by the Code to the United
States Treasury from the Rebate Fund and any other legally available moneys of the
Issuer such amounts as shall be required by the Code to be rebated to the United States
Treasury; and
(D) keeping such records of the determinations made pursuant to this Section
4.06 as shall be required by the Code, as well as evidence of the fair market value of any
investments purchased with proceeds of the Bonds.
The provisions of the above-described arbitrage certificate may be amended
without the consent of any Holder, Credit Bank or Insurer from time to time as shall be
necessary, in the opinion of Bond Counsel, to comply with the provisions of the Code.
SECTION 4.07. INVESTMENTS. Moneys on deposit in the Construction
Fund, the Stormwater Reserve Fund and the Debt Service Fund shall be continuously
secured in the manner by which the deposit of public funds are authorized to be secured
by the laws of the State. Moneys on deposit in the Construction Fund, the Stormwater
Reserve Fund and the Debt Service Fund, other than the Reserve Account, may be
invested and reinvested in Authorized Investments maturing not later than the date on
which the moneys therein will be needed for the purposes of such fund or account.
Moneys on deposit in the Reserve Account may be invested or reinvested in Authorized
Investments which shall mature no later than ten years from the date of investment. All
investments shall be valued at cost; provided, that the amounts on deposit in the Reserve
Account shall be valued at the market price thereof. Investments in the Reserve Account
shall be valued by the Issuer on an amount basis of March 1 of each year.
Any and all income received by the Issuer from the investment of moneys in each
account of the Construction Fund, the Interest Account, the Stormwater Reserve Fund
and the Reserve Account (to the extent such income and the other amounts in the Reserve
40
Account does not exceed the Reserve Account Requirement applicable thereto), shall be
retained in such respective Fund or Account. Any and all income received by the Issuer
from the investment of moneys in the Reserve Account (only to the extent such income
and other amounts in the Reserve Account exceeds the Reserve Account Requirement),
the Principal Account and the Bond Amortization Account shall be deposited in the
Interest Account.
Nothing contained in this Resolution shall prevent any Authorized Investments
acquired as investments of or security for funds held under this Resolution from being
issued or held in book-entry form on the books of the Department of the Treasury of the
United States.
SECTION 4.08. SEPARATE ACCOUNTS. The moneys required to be
accounted for in each of the foregoing funds, accounts and subaccounts established
herein may be deposited in a single, non- exclusive bank account, and funds allocated to
the various funds, accounts and subaccounts 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 moneys on deposit therein and such
investments for the various purposes of such funds, accounts and subaccounts as herein
provided.
The designation and establishment of the various funds, accounts and subaccounts
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 for certain purposes and to establish certain priorities for application of
such revenues as herein provided.
SECTION 4.09. COVENANT TO BUDGET AND APPROPRIATE. The
Issuer covenants and agrees to appropriate in its annual budget, by amendment, if
necessary, from Non-Ad Valorem Revenues lawfully available in each Fiscal Year,
amounts sufficient to make up any deficiencies in the Reserve Account (including any
amounts owing in regard to any Reserve Account Insurance Policy or Reserve Account
Letter of Credit) existing on the first day of each Fiscal Year in the event Pledged Funds
are insufficient for such purpose. Such covenant and agreement on the part of the Issuer
to budget and appropriate such amounts of Non-Ad Valorem Revenues shall be
cumulative to the extent not paid, and shall continue until such Non-Ad Valorem
Revenues or other legally available funds in amounts sufficient to make all such required
deposits and payments shall have been budgeted, appropriated and actually paid or
deposited. Notwithstanding the foregoing covenant of the Issuer, the Issuer does not
covenant to maintain any services or programs, now provided or maintained by the
Issuer, which generate NomAd Valorem Revenues.
41
Such covenant to budget and appropriate does not create any lien upon or pledge
of such Non-Ad Valorem Revenues, nor does it preclude the Issuer from pledging in the
future its Non-Ad Valorem Revenues, nor does it require the Issuer to levy and collect
any particular NomAd Valorem Revenues, nor does it give the Bondholder a prior claim
on the Non-Ad Valorem Revenues as opposed to claims of general creditors of such
Issuer. Such covenant to appropriate Non-Ad Valorem Revenues is subject in all respects
to the payment of obligations secured by a pledge of such Non-Ad Valorem Revenues
heretofore cr hereinafter entered into (including the payment of debt service on bonds
and other debt instruments). However, the covenant to budget and appropriate in its
general annual budget for the purposes and in the manner stated herein shall have the
effect of making available for the above-described payments and deposits Non-Ad
Valorem Revenues and placing on the Issuer a positive duty to appropriate and budget,
by amendment, if necessary, amounts sufficient to meet such obligations hereunder;
subject, however, in all respects to the restrictions of Section 166.241(3), Florida
Statutes, which provides, in part, that it is unlawful for the governing body of a
municipality to expend or contract for expenditure or make appropriations in any fiscal
year which shall e~ceed the amount to be received from taxation and other revenue
sources in such fiscal year; and subject further, to the payment of services and programs
which are for essential public purposes affecting the health, welfare and safety of the
inhabitants of the Issuer or which are legally mandated by applicable law.
Notwithstanding the foregoing, such covenant to budget and appropriate shall be
released and no longer effective upon the filing with the Insurer of a statement of an
Authorized Issuer Officer and the Finance Director: (1) stating that the books and
records of the Issuer relating to the Net Stormwater Fee Revenue and Investment
Earnings have been examined by such Authorized Issuer Officer and the Finance
Director; (2) setting forth the amount of Net Stormwater Fee Revenue and Investment
Earnings received by the Issuer during the immediately prior two Fiscal Years; and (3)
stating that the amount of the Net Stormwater Fee Revenue and Investment Earnings
received during each of the immediately prior two Fiscal Years equals at least 1.30 times
the Maximum Annual Debt Service on all Bonds then Outstanding.
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ARTICLE V
SUBORDINATED INDEBTEDNESS, ADDITIONAL BONDS, AND COVENANTS
OF ISSUER
SECTION 5.01. SUBORDINATED INDEBTEDNESS. The Issuer will not
issue any other obligations, except under the conditions and in the manner provided
herein, payable from the Pledged Funds (or any portion thereof) or voluntarily create or
cause to be created any debt, lien, pledge, assignment, encumbrance or other charge
having priority to or being on a parity with the lien thereon in favor of the Bonds and the
interest thereon. The Issuer may at any time or from time to time issue evidences of
indebtedness payable in whole or in part out of the Pledged Funds and which may be
secured by a pledge of such Pledged Funds; provided, however, that such pledge shall be,
and shall be expressed to be, subordinated in all respects to the pledge of the Pledged
Funds created by this Resolution. The Issuer shall have the right to covenant with the
holders from time to time of any Subordinated Indebtedness to add to the conditions,
limitations and restrictions under which any Additional Bonds may be issued pursuant to
Section 5.02 hereof. The Issuer agrees to pay promptly any Subordinated Indebtedness
as the same shall become due.
SECTION 5.02. ISSUANCE OF ADDITIONAL BONDS. No Additional
Bonds, payable on a parity with the Bonds then Outstanding pursuant to this Resolution,
shall be issued except upon the conditions and in the manner herein provided. The Issuer
may issue one or more Series of Additional Bonds for any one or more of the following
purposes: (i) financing the Cost of a Project, or the completion thereof, or (ii) refunding
any or all Outstanding Bonds or of any Subordinated Indebtedness of the Issuer.
No such Additional Bonds shall be issued unless the following conditions are
complied with:
(A) Except as otherwise provided in Section 5.02(G) hereof, there shall have
been obtained and filed with the Issuer a statement of an Authorized Issuer Officer: (1)
stating that the books and records of the Issuer relating to the Stormwater Fee Revenue
and Investment Earnings have been examined by him; (2) setting forth the amount of
Stormwater Fee Revenue and Investments Earnings received by the Issuer during the
immediate prior Fiscal Year; and (3) stating that the amount of the Stormwater Fee
Revenue and Investment Earnings received during such prior Fiscal Year equals at least
1.35 times the Maximum Annual Debt Service on all Bonds then Outstanding and such
Additional Bonds with respect to which such statement is made.
(B) In the event the Issuer has increased the rate at which Stormwater Fees are
imposed and such increased rate was not in effect during the immediate prior Fiscal Year,
then for the purposes of determining whether there are sufficient Stormwater Fee
43
Revenue to meet the coverage test specified in Section 5.02(A) hereof, the Authorized
Issuer Officer shall adjust the amount of Stormwater Fee Revenue which were received
during such prior Fiscal Year to take into account the additional amount of Stormwater
Fee Revenue such increased rate would have generated if it had been in effect for such
prior Fiscal Year; provided, however, that such adjustment shall only be made if the rate
has been increased prior to the date the statement of the Authorized Issuer Officer
referred to in Section 5.02(A) hereof is made and such rate will remain in effect at least
until the final maturity of the Bonds Outstanding at the time of issuance of the Additional
Bonds.
(C) For the purpose of determining the Debt Service under this Section 5.02,
the interest rate on additional parity Variable Rate Bonds then proposed to be issued shall
be deemed to be the Bond Buyer Revenue Bond Index most recently published prior to
the sale of such Additional Bonds.
(D) For the purpose of determining the Debt Service under this Section 5.02,
the interest rate on Outstanding Variable Rate Bonds shall be deemed to be (1) if such
Variable Rate Bonds have been Outstanding for at least 24 months prior to the date of
sale of such Additional Bonds, the highest average interest rate borne by such Variable
Rate Bonds for any 30-day period, or (2) if such Variable Rate Bonds have not been
Outstanding for at least 24 months prior to the date of sale of such Additional Bonds, the
Bond Buyer Revenue Bond Index most recently published prior to the sale of such
Additional Bonds.
(E) Additional Bonds shall be deemed to have been issued pursuant to this
Resolution the same as the Outstanding Bonds, and all other covenants and other
provisions of this Resolution (except as to details of such Additional Bonds inconsistent
therewith) shall be for the equal benefit, protection and securing of the Holders of all
Bonds issued pursuant to this Resolution. Except as provided in Sections 4.02 and 4.05
hereof, all Bonds regardless of the time or times of their issuance, shall rank equally with
respect to their lien on the Pledged Funds and their sources and security for payment
therefrom without preference of any Bonds over any other.
(F) In the event any Additional Bonds are issued for the purpose of refunding
any Bonds then Outstanding, the conditions of this Section 5.02 hereof shall not apply,
provided that the issuance of such Additional Bonds shall result in a reduction of
aggregate debt service. The conditions of Section 5.02(A) hereof shall apply to
Additional Bonds issued to refund Subordinated Indebtedness and to Additional Bonds
issued for refunding purposes which cannot meet the conditions of this paragraph.
SECTION 5.03. BOND ANTICIPATION NOTES. The Issuer may issue
notes in anticipation of the issuance of Bonds which shall have such terms and details and
be secured in such manner, not inconsistent with this Resolution, as shall be provided by
resolution of the Issuer.
SECTION5.04. ACCESSION OF SUBORDINATED INDEBTEDNESS
TO PARITY STATUS WITH BONDS. The Issuer may provide for the accession of
Subordinated Indebtedness to the status of complete parity with the Bonds, if (A) the
Issuer shall meet all the requirements imposed upon the issuance of Additional Bonds by
Section 5.02 hereof, assuming, for purposes of said requirements, that such Subordinated
Indebtedness shall be Additional Bonds, and (B) the Reserve Account, upon such
accession, shall contain an amount equal to the Reserve Account Requirement in
accordance with Section 4.05(A)(4) hereof. If the aforementioned conditions are
satisfied, the Subordinated Indebtedness shall be deemed to have been issued pursuant to
this Resolution the same as the Outstanding Bonds, and such Subordinated Indebtedness
shall be considered Bonds for all purposes provided in this Resolution.
SECTION 5.05. RATES. The Issuer shall fix, establish, maintain and collect
Stormwater Fees, and revise the same from time to time, whenever necessary, so as to
always provide in each Fiscal Year Stormwater Fee Revenue and Investment Earnings
equal to at least 1.35% of the Annual Debt Service becoming due in each Fiscal Year;
provided such Stormwater Fee Revenue and Investment Earnings shall be adequate at all
times to pay in each Fiscal Year at least 100% of (1) the Annual Debt Service becoming
due in such Fiscal Year and (2) any amounts required by the terms hereof to be deposited
in the Reserve Account or with any issuer of a Reserve Account Letter of Credit or
Reserve Account Insurance Policy in such Fiscal Year.
If, in any Fiscal Year, the Issuer shall fail to comply with the requirements
contained in this Section 5.05, it shall review its Stormwater Fees and shall forthwith
commence to implement changes in order to comply with the requirements set forth in
this Section 5.05.
SECTION 5.06. BOOKS AND RECORDS. The Issuer will keep books and
records of the receipt of the Stormwater Fee Revenue in accordance with generally
accepted accounting principles, and any Credit Bank, Insurer, or Holder or Holders of
Bonds shall have the right at all reasonable times to inspect the records, accounts and data
of the Issuer relating thereto.
SECTION 5.07. ANNUAL AUDIT. The Issuer shall, immediately after the
close of each Fiscal Year, cause the financial statements of the Issuer to be properly
audited by a recognized independent certified public accountant or recognized
independent firm of certified public accountants, and shall require such accountants to
complete their report on the annual financial statements in accordance with applicable
law. The annual financial statement shall be prepared in conformity with generally
accepted accounting principles consistently applied. A copy of the audited financial
45
statements for each Fiscal Year shall be furnished to each Credit Bank or Insurer. The
Issuer shall be permitted to make a reasonable charge for furnishing such audited
financial statements.
SECTION 5.08. NO IMPAIRMENT. The pledging of the Pledged Funds in
the manner provided herein shall not be subject to repeal, modification or impairment by
any subsequent ordinance, resolution or other proceedings of the Governing Body, except
as otherwise provided herein.
SECTION 5.09. COLLECTION OF STORMWATER FEE REVENUE.
The Issuer will receive, collect and enforce the payment of Stormwater Fees in the
manner prescribed by the Act, this Resolution and all other applicable resolutions,
ordinances or laws, and will pay and deposit the proceeds of Stormwater Fees, as
received, in accordance with the terms hereof. Except to the extent the Issuer utilizes
other moneys pursuant to Section 5.11 hereof to pay debt service on the Bonds, or any
portion thereof, and the Issuer determines not to recover such other moneys, Stormwater
Fees will be levied to the full extent permitted by law.
SECTION 5.10. REVISION OF STORMWATER FEES. If all or any
portion of the Stormwater Fees shall be annulled, vacated or set aside by the judgment of
any court, or if the Issuer shall be satisfied that any such Stormwater Fee is so irregular or
defective that the same cannot be enforced or collected, or if the Issuer shall have omitted
to impose a Stormwater Fee when it might have done so, the Issuer shall either (A) take
all necessary actions required to impose new Stormwater Fees at a rate sufficient to
generate an equivalent amount of Stormwater Fee Revenue, or (B) in its sole discretion,
make up the amount of such Stormwater Fees from legally available moneys, which
moneys shall be utilized in accordance with the terms hereof. If any reimposed
Stormwater Fee shall be annulled, the Issuer shall impose and reimpose Stormwater Fees,
as aforesaid, until valid Stormwater Fees have been imposed.
SECTION 5.11. OTHER MONEYS. The Issuer may, in its sole discretion,
utilize other legally available moneys, in addition to the Pledged Funds, to pay the
principal of and interest on the Bonds.
SECTION 5.12. COVENANTS WITH CREDIT BANKS AND
INSURERS. The Issuer may make such covenants as it may, in its sole discretion,
determine to be appropriate with any Insurer, Credit Bank or other financial institution
that shall agree to insure or to provide for Bonds of any one or more Series credit or
liquidity support that shall enhance the security or the value of such Bonds. Such
covenants may be set forth in the applicable Supplemental Resolution and shall be
binding on the Issuer, the Registrar, the Paying Agent and all the Holders of Bonds the
same as if such covenants were set forth in full in this Resolution, provided such
covenants shall not diminish the security for any of the Bonds Outstanding.
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SECTION5.13. FEDERAL INCOME TAX COVENANTS; TAXABLE
BONDS. The Issuer covenants with the Holders of each Series of Bonds (other than
Taxable Bonds), that it shall not use the proceeds of such Series of Bonds in any manner
which would cause the interest on such Series of Bonds to be or become includable in
gross income for purposes of federal income taxation.
The Issuer covenants with the Holders of each Series of Bonds (other than Taxable
Bonds) that neither the Issuer nor any Person under its control or direction will make any
use of the proceeds of such Series of Bonds (or amounts deemed to be proceeds under the
Code) in any manner which would cause such Series of Bonds to be "arbitrage bonds"
within the meaning of the Code and neither the Issuer nor any other Person shall do any
act or fail to do any act which would cause the interest on such Series of Bonds to
become includable in gross income for purposes of federal income taxation.
The Issuer hereby covenants with the Holders of each Series of Bonds (other than
Taxable Bonds) that it will comply with all provisions of the Code necessary to maintain
the exclusion of interest on the Bonds from gross income for purposes of federal income
taxation, including, in particular, the payment of any amount required to be rebated to the
U.S. Treasury pursuant to the Code.
The Issuer may, if it so elects, issue one or more Series of Taxable Bonds the
interest on which is (or may be) includable in the gross income of the Holder thereof for
federal income taxation purposes, so long as each Bond of such Series states in the body
thereof that interest payable thereon is (or may be) subject to federal income taxation and
provided that the issuance thereof will not cause the interest on any other Bonds
theretofore issued hereunder to be or become subject to federal income taxation. The
covenants set forth in this Section 5.13 shall not apply to any Taxable Bonds.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. The following events shall each
constitute an "Event of Default":
(A) Default shall be made in the payment of the principal of Amortization
Installment, redemption premium or interest on any Bond when due. In determining
whether a payment default has occurred, no effect shall be given to payment made under
a Bond Insurance Policy.
(B) There shall occur the dissolution or liquidation of the Issuer, or the filing by
the Issuer of a voluntary petition in bankruptcy, or the commission by the Issuer of any
act of bankruptcy, or adjudication of the Issuer as a bankrupt, or assignment by the Issuer
for the benefit of its creditors, or appointment of a receiver for the Issuer, or the entry by
the Issuer into an agreement of composition with its creditors, or the approval by a court
of competent jurisdiction of a petition applicable to the Issuer in any proceeding for its
reorganization instituted under the provisions of the Federal Bankruptcy Act, as
amended, or under any similar act in any jurisdiction which may now be in effect or
hereafter enacted.
(C) The Issuer shall default in the due and punctual performance of any other of
the covenants, conditions, agreements and provisions contained in the Bonds or in this
Resolution on the part of the Issuer to be performed, and such default shall continue for a
period of 90 days after written notice of such default shall have been received from the
Holders of not less than 25% of the aggregate principal amount of Bonds Outstanding.
Notwithstanding the foregoing, the Issuer shall not be deemed to be in default hereunder
if such default can be cured within a reasonable period of time and if the Issuer in good
faith institutes appropriate curative action and diligently pursues such action until default
has been corrected; provided, however, no such curative action shall exceed 90 days
without the prior written consent of the Insurers.
SECTION 6.02. REMEDIES. Any Holder of Bonds issued under the
provisions of this Resolution or any trustee or receiver acting for such Bondholders 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 under the Laws of the State
of Florida, or granted and contained in this Resolution, and may enforce and compel the
performance of all duties required by this Resolution or by any applicable statutes to be
performed by the Issuer or by any officer thereof; provided, however, that no Holder,
trustee or receiver shall have the right to declare the Bonds immediately due and payable
without the consent of any affected Insurers.
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The Holder or Holders of Bonds in an aggregate principal amount of not less than
25% of the Bonds then Outstanding may by a duly executed certificate in writing appoint
a trustee for Holders of Bonds issued pursuant to this Resolution with authority to
represent such Bondholders in any legal proceedings for the enforcement and protection
of the rights of such Bondholders and such certificate shall be executed by such
Bondholders or their duly authorized attorneys or representatives, and shall be filed in the
office of the Clerk. Notice of such appointment, together with evidence of the requisite
signatures of the Holders of not less than 25% in aggregate principal amount of Bonds
Outstanding and the trust instrument under which the trustee shall have agreed to serve
shall be filed with the Issuer and the trustee and notice of such appointment shall be given
to all Holders of Bonds in the same manner as notices of redemption are given hereunder.
After the appointment of the first trustee hereunder, no further trustees may be appointed;
however, the Holders of a majority in aggregate principal amount of all the Bonds then
Outstanding may remove the trustee initially appointed and appoint a successor and
subsequent successors at any time.
SECTION6.03. DIRECTIONS TO TRUSTEE AS TO REMEDIAL
PROCEEDINGS. The Holders of a majority in principal amount of the Bonds then
Outstanding (or any Insurer insuring any then Outstanding Bonds) have the right, by an
instrument or concurrent instruments in writing executed and delivered to the trustee, to
direct the method and place of conducting all remedial proceedings to be taken by the
trustee hereunder, provided that such direction shall not be otherwise than in accordance
with law or the provisions hereof, and that the trustee shall have the right to decline to
follow any such direction which in the opinion of the trustee would be unjustly
prejudicial to Holders of Bonds not parties to such direction.
SECTION 6.04. REMEDIES CUMULATIVE. No remedy herein conferred
upon or reserved to the Bondholders is intended to be exclusive of any other remedy or
remedies, and each and every such remedy shall be cumulative, and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in equity or
by statute.
SECTION 6.05. WAIVER OF DEFAULT. No delay or omission of any
Bondholder to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver of any such default, or an
acquiescence therein; and every power and remedy given by Section 6.02 to the
Bondholders may be exercised from time to time, and as often as may be deemed
expedient. No Event of Default may be waived without the consent of each Insurer,
which has honored all its obligations under its Bond Insurance Policy.
SECTION 6.06. APPLICATION OF MONEYS AFTER DEFAULT. If an
Event of Default shall happen and shall not have been remedied, the Issuer or a trustee or
receiver appointed for the purpose shall apply all Pledged Funds (except as for amounts
49
in the subaccounts, if any, of the Reserve Account which shall be applied to the payment
of the Series of Bonds for which they were established) as follows and in the following
order:
(A) To the payment of the reasonable and proper charges, expenses and
liabilities of the trustee or receiver, Registrar and Paying Agent hereunder; and
(B) To the payment of the interest and principal or Redemption Price, if
applicable, then due on the Bonds (provided such payments are made in accordance with
applicable law), as follows;
(1) Unless the principal of all the Bonds shall have become due and
payable, all such moneys shall be applied:
FIRST: to the payment to the Persons entitled thereto of all installments of
interest then due, in the order of the maturity of such installments, and, if the
amount available shall not be sufficient to pay in full any particular installment,
then to the payment ratably, according to the amounts due on such installment, to
the Persons entitled thereto, without any discrimination or preference;
SECOND: to the payment to the Persons entitled thereto of the unpaid
principal of any of the Bonds which shall have become due at maturity or upon
mandatory redemption prior to maturity (other than Bonds called for redemption
for the payment of which moneys are held pursuant to the provisions of Section
8.01 of this Resolution), in the order of their due dates, with interest upon such
Bonds from the respective dates upon which they became due, and, if the amount
available shall not be sufficient to pay in full Bonds due on any particular date,
together with such interest, then to the payment first of such interest, ratably
according to the amount of such interest due on such date, and 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; and
THIRD: to the payment of the Redemption Price of any Bonds called for
optional redemption pursuant to the provisions of this Resolution.
(2) 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, with interest thereon as aforesaid, 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
over any other Bond, ratably, according to the amounts due respectively for
principal and interest, to the Persons entitled thereto wi thout any discrimination or
preference.
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(C) To the payment of all amounts owed to the Insurers not covered by
subsections (A) or (B) above.
SECTION 6.07. CONTROL BY INSURER. To the extent an Insurer makes
any payment of principal of or interest on Bonds in accordance with its Bond Insurance
Policy, such Insurer shall become subrogated to the rights of the recipients of such
payments in accordance with the terms of its Bond Insurance Policy. Upon the
occurrence and continuance of an Event of Default, an Insurer of a Series of Bonds, if
such Insurer shall not be in payment default under its Bond Insurance Policy, shall be
deemed to be the sole owner of such Bonds for purposes of (A) directing and controlling
the enforcement of all rights and remedies with respect to such Series of Bonds, including
any waiver of an Event of Default and removal of any trustee, and (B) exercising any
voting right or privilege or giving any consent or direction or taking any other action that
the Holders of such Bonds are entitled to take pursuant to this Article VI hereof. No
provision expressly recognizing or granting rights in or to an Insurer shall be modified
without the consent of such Insurer. An Insurer's rights under this Section 6.07 shall be
suspended during any period in which such Insurer is in default in its payment obligations
under its Bond Insurance Policy (except to the extent of amounts previously paid by such
Insurer and due and owing to such Insurer) and shall be of no force or effect if its Bond
Insurance Policy is no longer in effect or if the Insurer asserts that its Bond Insurance
Policy is not in effect or if the Insurer waives such rights in writing. The rights granted to
an Insurer under this Section 6.07 are granted in consideration of such Insurer issuing its
Bond Insurance Policy. The Issuer shall provide each Insurer immediate notice of any
Event of Default described in Section 6.01(A) hereof and notice of any other Event of
Default occurring hereunder within five days of the occurrence thereof. Each Insurer of
any Bonds hereunder shall be considered a third-party beneficiary to the Resolution with
respect to such Bonds.
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ARTICLE VII
SUPPLEMENTAL RESOLUTIONS
SECTION 7.01. SUPPLEMENTAL RESOLUTION WITHOUT
BONDHOLDERS' CONSENT. The Issuer, from time to time and at any time, may
adopt such Supplemental Resolutions without the consent of the Bondholders (which
Supplemental Resolution shall thereafter form a part hereof) for any of the following
purposes:
(A) To cure any ambiguity or formal defect or omission or to correct any
inconsistent provisions in this Resolution or to clarify any matters or questions arising
hereunder.
(B) To grant to or confer upon the Bondholders any additional rights, remedies,
powers, authority or security that may lawfully be granted to or conferred upon the
Bondholders.
(C) To add to the conditions, limitations and restrictions on the issuance of
Bonds under the provisions of this Resolution other conditions, limitations and
restrictions thereafter to be observed.
(D) To add to the covenants and agreements of the Issuer in this Resolution
other covenants and agreements thereafter to be observed by the Issuer or to surrender
any right or power herein reserved to or conferred upon the Issuer.
(E) To specify and determine the matters and things referred to in Sections
2.01, 2.02 or 2.09 hereof, including the issuance of Additional Bonds, and also any other
matters and things relative to such Bonds which are not contrary to or inconsistent with
this Resolution as theretofore in effect, or to amend, modify or rescind any such
authorization, specification or determination at any time prior to the first delivery of such
Bonds.
(F) To authorize Additional Projects or to change or modify the description of
the Initial Project or any Additional Project.
(G) To specify and determine matters necessary or desirable for the issuance of
Capital Appreciation Bonds or Variable Rate Bonds.
(H) To provide for the establishment of a separate subaccount or subaccounts in
the Reserve Account which shall independently secure one or more Series of Bonds
issued hereunder.
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(I) To revise the procedures provided in Section 4.05(A)(4) hereof pursuant to
which moneys are drawn on a Reserve Account Insurance Policy or Reserve Account
Letter of Credit and moneys are reimbursed to the provider of such Policy or Letter of
Credit.
(J) To make any other change that, in the opinion of the Issuer, would not
materially adversely affect the security for the Bonds. In making such determination, the
Issuer shall not take into consideration any Bond Insurance Policy.
SECTION 7.02. SUPPLEMENTAL RESOLUTION WITH
BONDHOLDERS' AND INSURER'S CONSENT. Subject to the terms and provisions
contained in this Section 7.02 and Section 7.01 and 7.03 hereof, the Holder or Holders of
not less than a majority in aggregate principal amount of the Bonds then Outstanding
shall have the right, from time to time, anything contained in this Resolution to the
contrary notwithstanding, to consent to and approve the adoption of such Supplemental
Resolutions hereto as shall be deemed necessary or desirable by the Issuer for the purpose
of supplementing, modifying, altering, amending, adding to or rescinding, in any
particular, any of the terms or provisions contained in this Resolution; provided,
however, that if such modification or amendment will, by its terms, not take effect so
long as any Bonds of any specified Series or maturity remain Outstanding, the consent of
the Holders of such Bonds shall not be required and such Bonds shall not be deemed to
be Outstanding for the purpose of any calculation of Outstanding Bonds under this
Section 7.02. Any Supplemental Resolution which is adopted in accordance with the
provisions of this Section 7.02 shall also require the written consent of the Insurer of any
Bonds which are Outstanding at the time such Supplemental Resolution shall take effect.
No Supplemental Resolution may be approved or adopted which shall permit or require,
without the consent of all affected Bondholders, (A) an extension of the maturity of the
principal of or the payment of the interest on any Bond issued hereunder, (B) reduction in
the principal amount of any Bond or the Redemption Price or the rate of interest thereon,
(C) the creation of a lien upon or a pledge of the Pledged Funds other than the lien and
pledge created by this Resolution or except as otherwise permitted or provided hereby
which materially adversely affects any Bondholders, (D) a preference or priority of any
Bond or Bonds over any other Bond or Bonds (except as to the establishment of separate
subaccounts in the Reserve Account provided in Section 4.05(A)(4) hereof), or (E) a
reduction in the aggregate principal amount of the Bonds required for consent to such
Supplemental Resolution. Nothing herein contained, however, shall be construed as
making necessary the approval by Bondholders or the Insurer of the adoption of any
Supplemental Resolution as authorized in Section 7.01 hereof.
If at any time the Issuer shall determine that it is necessary or desirable to adopt
any Supplemental Resolution pursuant to this Section 7.02, the Clerk shall cause the
Registrar to give notice of the proposed adoption of such Supplemental Resolution and
53
the form of consent to such adoption to be mailed, postage prepaid, to all Bondholders at
their addresses as they appear on the registration books. Such notice shall briefly set
forth the nature of the proposed Supplemental Resolution and shall state that copies
thereof are on file at the offices of the Clerk and the Registrar for inspection by all
Bondholders. The Issuer shall not, however, be subject to any liability to any Bondholder
by reason of its failure to cause the notice required by this Section 7.02 to be mailed and
any such failure shall not affect the validity of such Supplemental Resolution when
consented to and approved as provided in this Section 7.02.
Whenever the Issuer shall deliver to the Clerk an instrument or instruments in
writing purporting to be executed by the Holders of not less than a majority in aggregate
principal amount of the Bonds then Outstanding, which instrument or instruments shall
refer to the proposed Supplemental Resolution described in such notice and shall
specifically consent to and approve the adoption thereof in substantially the form of the
copy thereof referred to in such notice, thereupon, but not otherwise, the Issuer may
adopt such Supplemental Resolution in substantially such form, without liability or
responsibility to any Holder of any Bond, whether or not such Holder shall have
consented thereto.
If the Holders of not less than a majority in aggregate principal amount of the
Bonds Outstanding at the time of the adoption of such Supplemental Resolution shall
have consented to and approved the adoption thereof as herein provided, no Holder of
any Bond shall have any right to object to the adoption of such Supplemental Resolution,
or to object to any of the terms and provisions contained therein or the operation thereof,
or in any manner to question the propriety of the adoption thereof, or to enjoin or restrain
the Issuer from adopting the same or from taking any action pursuant to the provisions
thereof.
Upon the adoption of any Supplemental Resolution pursuant to the provisions of
this Section 7.02, this Resolution shall be deemed to be modified and amended in
accordance therewith, and the respective rights, duties and obligations under this
Resolution of the Issuer and all Holders of Bonds then Outstanding shall thereafter be
determined, exercised and enforced in all respects under the provisions of this Resolution
as so modified and amended.
SECTION 7.03. AMENDMENT WITH CONSENT OF INSURER ONLY.
For purposes of amending this Resolution pursuant to Section 7.02 hereof, an Insurer of
Bonds shall be considered the Holder of such Bonds which it has insured, provided such
Bonds, at the time of the adoption of the amendment, shall be rated by the Rating
Agencies which shall have rated such Bonds at the time such Bonds were insured no
lower than the ratings assigned thereto by such Rating Agencies on such date of being
insured. The consent of the Holders of such Bonds shall not be required if the Insurer of
such Bonds shall consent to the amendment as provided by this Section 7.03. At least 15
54
days prior to adoption of any amendment made pursuant to this Section 7.03, notice of
such amendment shall be delivered to the Rating Agencies rating the Bonds. Upon filing
with the Clerk of evidence of such consent the Insurer or Insurers as aforesaid, the Issuer
may adopt such Supplemental Resolution. After the adoption by the Issuer of such
Supplemental Resolution, notice thereof shall be mailed in the same manner as notices of
an amendment under Section 7.02 hereof.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. DEFEASANCE. If the Issuer shall pay or cause to be paid
or there shall otherwise be paid to the Holders of any Series of Bonds the principal or
Redemption Price, if applicable, and interest due or to become due thereon, at the times
and in the manner stipulated therein and in this Resolution, md the Issuer shall pay all
amounts owing to any issuer of a Reserve Account Letter of Credit or Reserve Account
Insurance Policy and all amounts owing to any Insurer, then the pledge of the Pledged
Funds, and all covenants, agreements and other obligations of the Issuer to the holders of
such Bonds, shall thereupon cease, terminate and become void and be discharged and
satisfied. In such event, the Paying Agents shall pay over or deliver to the Issuer all
money or securities held by them pursuant to the Resolution which are not required for
the payment or redemption of Bonds not theretofore surrendered for such payment or
redemption.
Any Bonds or interest installments appertaining thereto, whether at or prior to the
maturity or redemption date of such Bonds, shall be deemed to have been paid within the
meaning of this Section 8.01 if (A) in case any such Bonds are to be redeemed prior to
the maturity thereof, there shall have been taken all action necessary to call such Bonds
for redemption and notice of such redemption shall have been duly given or provision
shall have been made for the giving of such notice, and (B) there shall have been
deposited in irrevocable trust with a banking institution or trust company by or on behalf
of the Issuer either moneys in an amount which shall be sufficient, or Refunding
Securities verified by an independent certified public accountant to be in such amount
that the principal of and the interest on which when due will provide moneys which,
together with the moneys, if any, deposited with such banking institution or trust
company at the same time shall be sufficient, to pay the principal of or Redemption Price,
if applicable, and interest due and to become due on said Bonds on and prior to the
redemption date or maturity date thereof, as the case may be. Except as hereafter
provided, neither the Refunding Securities nor any moneys so deposited with such
banking institution or trust company nor any moneys received by such bank or trust
company on account of principal of or Redemption Price, if applicable, or interest on said
Refunding Securities shall be withdrawn or used for any purpose other than, and all such
moneys shall be held in trust for and be applied to, the payment, when due, of the
principal of or Redemption Price, if applicable, of the Bonds for the payment or
redemption of which they were deposited and the interest accruing thereon to the date of
maturity or redemption; provided, however, the Issuer may substitute new Refunding
Securities and moneys for the deposited Refunding Securities and moneys if the new
Refunding Securities and moneys are sufficient to pay the principal of or Redemption
Price, if applicable, and interest on the refunded Bonds.
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For purposes of determining whether Variable Rate Bonds shall be deemed to
have been paid prior to the maturity or the redemption date thereof, as the case may be,
by the deposit of moneys, or specified Refunding Securities and moneys, if any, in
accordance with this Section 8.01, the interest to come due on such Variable Rate Bonds
on or prior to the maturity or redemption date thereof, as the case may be, shall be
calculated at the Maximum Interest Rate; provided, however, that if on any date, as a
result of such Variable Rate Bonds having borne interest at less than the Maximum
Interest Rate for any period, the total amount of moneys and specified Refunding
Securities on deposit for the payment of interest on such Variable Rate Bonds is in excess
of the total amount which would have been required to be deposited on such date in
respect of such Variable Rate Bonds in order to satisfy this Section 8.01, such excess
shall be paid to the Issuer free and clear of any trust, lien, pledge or assignment securing
the Bonds or otherwise existing under this Resolution.
In the exent the Bonds for which moneys are to be deposited for the payment
thereof in accordance with this Section 8.01 are not by their terms subject to redemption
within the next succeeding 60 days, the Issuer shall cause the Registrar to mail a notice to
the Holders of such Bonds that the deposit required by this Section 8.01 of moneys or
Refunding Securities has been made and said Bonds are deemed to be paid in accordance
with the provisions of this Section 8.01 and stating such maturity or redemption date
upon which moneys are to be available for the payment of the principal of or Redemption
Price, if applicable, and interest on said Bonds. Failure to provide said notice shall not
affect the Bonds being deemed to have been paid in accordance with the provisions of
this Section 8.01.
Nothing herein shall be deemed to require the Issuer to call any of the Outstanding
Bonds for redemption prior to maturity pursuant to any applicable optional redemption
provisions, or to impair the discretion of the Issuer in determining whether to exercise
any such option for early redemption.
In the event that the principal of or Redemption Price, if applicable, and interest
due on the Bonds shall be paid by an Insurer or Insurers, such Bonds shall remain
Outstanding, shall not be defeased and shall not be considered paid by the Issuer, and the
pledge of the Pledged Funds and all covenants, agreements and other obligations of the
Issuer to the Bondholders shall continue to exist and such Insurer or Insurers shall be
subrogated to the rights of such Bondholders.
SECTION 8.02. CAPITAL APPRECIATION BONDS. For the purposes of
(A) receiving payment of the Redemption Price if a Capital Appreciation Bond is
redeemed prior to maturity, or (B) receiving payment of a Capital Appreciation Bond if
the principal of all Bonds becomes due and payable under the provisions of this
Resolution, or (C) computing the amount of Bonds held by the Holder of a Capital
Appreciation Bond in giving to the Issuer or any trustee or receiver appointed to represent
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the Bondholders any notice, consent, request or demand pursuant to this Resolution for
any purpose whatsoever, the principal amount of a Capital Appreciation Bond shall be
deemed to be its Accreted Value.
SECTION 8.03. SALE OF BONDS. The Bonds shall be issued and sold at
public or private sale at one time or in installments from time to time and at such price or
prices as shall be consistent with the provisions of the Act, the requirements of this
Resolution and other applicable provisions of law.
SECTION 8.04. SEVERABILITY OF INVALID PROVISIONS. If any
one or more of the covenants, agreements or provisions of this Resolution shall be held
contrary to any express provision of law or contrary to the policy of express law, though
not expressly prohibited, or against public policy, or shall for any reason whatsoever be
held invalid, then such covenants, agreements or provisions shall be null and void and
shall be deemed separable from the remaining covenants, agreements and provisions of
this Resolution and shall in no way affect the validity of any of the other covenants,
agreements or provisions hereof or of the Bonds issued hereunder.
SECTION 8.05. VALIDATION AUTHORIZED. To the extent deemed
necessary by Bond Counsel or desirable by the City Attorney, Bond Counsel is
authorized to institute appropriate proceedings for validation of the Bonds herein
authorized pursuant to Chapter 75, Florida Statutes.
SECTION8.06. REPEAL OF INCONSISTENT RESOLUTIONS. All
ordinances, resolutions or parts thereof in conflict herewith are hereby superseded and
repealed to the extent of such conflict.
SECTION 8.07. EFFECTIVE DATE. This Resolution shall take effect
immediately upon its adoption.
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The Mayor thereupon declared this Resolution duly passed and adopted on this
22nd day of October, 2003.
(SBAL) '-
ATTEST;
CITY OF SEBASTIAN, FLORIDA
Mayor
Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
City Attorney
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EXHIBIT A
DESCRIPTION OF INITIAL PROJECT
The Initial Project will consist of the acquisition, construction and reconstruction
of certain capital improvements as generally described below, programmed in the City:s
Stormwater Master Plan and located within the jurisdiction of the City of Sebastian,
Florida as more specifically described in the plans on file or to be on file with the City,
with such changes, deletions, additions or modifications to the enumerated
improvements, equipment and facilities, or such other improvements as approved by the
City Commission in accordance with the Act.
Wentworth Ditch Improvements
Design and construction of an approximate 100 foot extension of the ditch to the
west with the construction of a 48-inch culvert under Roseland Road.
Potomac Ditch Improvements
Design and construction of a connection of the Lake Hardee watershed to the
Potomac Ditch via a culvert crossing under Roseland Road.
Main Street/Twin Ditch Improvements
Design and removal of the existing berm between the existing "twin ditch" design,
maximizing the width of and deepening the channel to create a wet detention pond, and
construction of a control structure at the western end of the detention pond.
Periwinkle Drive Improvements
Design and construction of a three acre wet detention stormwater pond located in
the south central area of the City between Periwinkle Drive, Seashore Avenue and Ocean
Breeze Street and the construction of a new road crossing culvert under Ocean Breeze
Street.
Middle Stonecrop Improvements
Design and replacement of road crossings at Laconia Street, Bevan Drive and
Stonecrop Street and the excavation and reinforcement of the vertical walls of the ditch
from Laconia Street to Stonecrop Street.
A-1
Lower Stonecrop Improvements
Design and replacement of road crossing culverts under Clearbrook Street to the
west and under Laconia Street south of Gladiola as well as the purchase of land and the
construction of a 5.5 acre wet detention pond.
Collier Creek Canal Dredging Improvements
Design and dredging of the Collier Creek Canal north of CR512 to maximize
capacity for conversion to a wet detention system including necessary modifications of
associated structures and appurtenances.
A-2