HomeMy WebLinkAboutCity of Tamarac Resolution R-2016-109Temp. Reso. #12859
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MASTER UTILITY SYSTEM BOND RESOLUTION
RESOLUTION NO. R-2009-96, AS AMENDED AND RESTATED IN ITS ENTIRETY BY
RESOLUTION NO. R-2016- / C q
C
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TABLE OF CONTENTS
Page
Section 1.
Authority for this Resolution............................................................................................5
Section2.
Definitions...........................................................................................................................5
Section3.
Findings.............................................................................................................................17
Section 4.
Authorization of the 2016A Project and Refunding of Refunded 2009
Bonds..................................................................................................................................18
Section 5.
This Resolution to Constitute Contract.........................................................................18
Section 6.
Authorization of Bonds...................................................................................................18
Section 7.
Description of the Series 2016 Bonds.............................................................................19
Section8.
Execution of Bonds...........................................................................................................20
Section 9.
Authentication of Bonds..................................................................................................20
Section 10.
Exchange of Bonds...........................................................................................................21
Section 11.
Negotiability, Registration and Transfer of Bonds......................................................21
Section12.
Ownership of Bonds........................................................................................................21
Section 13.
Bonds Mutilated, Destroyed, Stolen or Lost.................................................................22
Section 14.
Provisions for Redemption.............................................................................................22
Section15.
Form of Bonds...................................................................................................................23
Section16.
Creation of Funds.............................................................................................................29
Section 17.
Application of Bond Proceeds........................................................................................30
Section 18.
Disbursements from Project Fund.................................................................................30
Section 19.
Special Obligations of Issuer...........................................................................................32
Section 20.
Covenants of the Issuer...................................................................................................32
Section 21.
Defaults; Events of Default and Remedies....................................................................46
Section 22.
Amending and Supplementing of Resolution without Consent of Holders
ofBonds.............................................................................................................................49
Section 23.
Amendment of Resolution with Consent of Holders of Bonds.................................50
Section24.
Defeasance.........................................................................................................................51
Section 25.
Section 26.
Governmental Reorganization.......................................................................................52
Additional Utility Functions
...........................................................................................53
Section 27.
Section 28.
Section 29.
Section 30.
Section 31.
Section 32.
Section 33.
Section 34.
Section 35.
Section 36.
Section 37.
Section 38.
Section 39.
Section 40.
E
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Utility Cost Containment Bonds....................................................................................53
QualifiedAgreements......................................................................................................53
Payments to Credit Facility.............................................................................................54
Capital Appreciation Bonds............................................................................................54
TaxCovenants...................................................................................................................54
Bond Anticipation Notes Authorized for Interim Financing.....................................55
Additional Rights to Insurers.........................................................................................56
Severability........................................................................................................................ 56
Saleof Bonds.....................................................................................................................56
GeneralAuthority............................................................................................................56
No Third Party Beneficiaries...........................................................................................56
NoPersonal Liability.......................................................................................................57
Amendment and Restatement; Repeal of Inconsistent Instruments .........................57
EffectiveDate....................................................................................................................58
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CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2016--/O
A RESOLUTION AMENDING AND RESTATING RESOLUTION
NO. R-2009-96 IN ITS ENTIRETY; AUTHORIZING THE
ISSUANCE OF NOT TO EXCEED $22,000,000 UTILITY SYSTEM
REFUNDING REVENUE BONDS, SERIES 2016A FOR THE
PURPOSE OF REFUNDING A PORTION OF THE
OUTSTANDING CITY OF TAMARAC, FLORIDA UTILITY
SYSTEM REFUNDING REVENUE BONDS, SERIES 2009 AND
FINANCING THE COST OF IMPROVEMENTS TO THE CITY'S
UTILITY SYSTEM, AND PAYING COSTS RELATED THERETO;
AND AUTHORIZING THE ISSUANCE OF NOT TO EXCEED
$5,000,000 UTILITY SYSTEM REFUNDING REVENUE BONDS,
SERIES 2016B (TAXABLE) FOR THE PURPOSE OF REFUNDING
A PORTION OF THE OUTSTANDING CITY OF TAMARAC,
FLORIDA UTILITY SYSTEM REFUNDING REVENUE BONDS,
SERIES 2009, AND PAYING COSTS RELATED THERETO;
PLEDGING CERTAIN NET REVENUES OF THE UTILITY
SYSTEM FOR THE PAYMENT OF SUCH BONDS; PROVIDING
FOR THE RIGHTS OF THE HOLDERS OF SUCH BONDS;
MAKING OTHER COVENANTS AND AGREEMENTS IN
CONNECTION THEREWITH; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Tamarac, Florida (the "Issuer")
previously adopted Resolution No. R-2009-96 on July 22, 2009 (the "Original Resolution"); and
WHEREAS, the Issuer then issued $14,020,000 of its Utility System Refunding Revenue
Bonds, Series 2009 (the "Series 2009 Bonds") to refinance certain indebtedness and to finance the
costs of improvements to the System (as such term is hereinafter defined) pursuant to the
Original Resolution; and
WHEREAS, all of such Series 2009 Bonds are insured by a financial guaranty insurance
policy issued by Assured Guaranty Corp. (the "2009 Insurer'); and
WHEREAS, the Issuer desires to make certain amendments to the Original Resolution;
"ITIl
WHEREAS, in accordance with Section 23 of the Original Resolution, attached hereto as
Exhibit A, the Issuer has obtained the prior written consent of the 2009 Insurer and by purchase
of the Series 2016 Bonds, the Series 2016 Bondholders shall be deemed to have consented to the
amendments included within this Resolution which amends and restates the Original Resolution,
1
Temp. Reso. #12859
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which amendments shall become effective upon the later of receipt of prior written consent of the
2009 Insurer and consent of at least 51% of the Holders of Bonds then Outstanding, which is
expected to occur not later than the issuance of the Series 2016 Bonds.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC,
FLORIDA:
Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the
provisions of Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 159,
Florida Statutes, Part I, Chapter 166, Part II, Florida Statutes, the municipal charter of the City of
Tamarac, Florida, and other applicable provisions of law (collectively, the "Act") and the
Original Resolution.
Section 2. Definitions. Unless the context otherwise requires, the terms used in this
Resolution shall have the meanings specified in this Section 2. Words importing singular
number shall include the plural number in each case and vice versa, and words importing
persons shall include firms and corporations.
"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 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.
"Acquired Obligations" shall mean cash, direct non -callable obligations of the United
States of America and securities fully and unconditionally guaranteed as to the timely payment
of principal and interest by the United States of America, to which direct obligation or
guarantee the full faith and credit of the United States of America has been pledged, Refcorp
interest strips, CATS, TIGRS, STRPS, defeased municipal bonds rated AAA by S&P or Aaa by
Moody's (or any combination thereof) or direct obligations or fully guaranteed certificates of
beneficial ownership of the U.S. Export -Import Bank, certificates of beneficial ownership of the
Farmers Home Administration, obligations of the Federal Financing Bank, participation
certificates of the General Services Administration, Guaranteed Title XI financings of the U.S.
Maritime Administration and project notes of the U.S. Department of Housing and Urban
Development.
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With respect to any Series of Bonds, the definition of Acquired Obligations set forth
above may be further limited as set forth in a Supplemental Resolution of the Issuer adopted
prior to the issuance of such Bonds.
"Additional Parity Obligations" shall mean additional obligations issued or incurred in
compliance with the terms, conditions and limitations contained herein and which (i) shall have
a lien on the Pledged Revenues equal to that of the Outstanding Bonds and any Parity Contract
Obligations, (ii) shall be payable from the Pledged Revenues on a parity with the Outstanding
Bonds and any Parity Contract Obligations, and (iii) shall rank equally in all other respects with
the Outstanding Bonds and any Parity Contract Obligations.
"Amortization Installment" shall mean an amount designated as such by Supplemental
Resolution of the Issuer and established with respect to any Term Bonds.
"Average Annual Bond Service Requirement" shall mean, as of each date on which a
Series of Bonds is issued, the total amount of Bond Service Requirement which is to become due
on all Bonds deemed to be Outstanding immediately after the issuance of such Series of Bonds
divided by the total number of years for which Bonds are deemed to be Outstanding, except
that with respect to any Bonds for which Amortization Installments have been established, the
amount of principal coming due on the final maturity date with respect to such Bonds shall be
reduced by the aggregate principal amount of such Bonds that are to be redeemed from
Amortization Installments to be made in prior Bond Years.
"Bond Anticipation Notes" shall mean notes described in Section 31 hereof of the Issuer
issued in anticipation of any Series of Bonds and shall be secured by, amongst other things, a
first lien on the proceeds of the Bonds for which such Bond Anticipation Notes were issued.
"Bond Counsel" shall mean Bryant Miller Olive P.A., or any other attorney at law or firm
of attorneys of nationally recognized standing in matters pertaining to the exclusion from gross
income for federal income tax purposes 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 Insurance Policy" shall mean the municipal bond new issue insurance policy or
policies issued by an Insurer guaranteeing the scheduled payment of principal of and interest
on any portion of such Series of Bonds when due as determined by Supplemental Resolution, if
any.
"Bond Service Fund" shall mean the Bond Service Fund created and established
pursuant to Section 16 of this Resolution.
"Bond Service Requirement" shall mean, for any Bond Year, at any time, the amount
required to be deposited in such Bond Year into the Bond Service Fund, as provided herein
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including any Reimbursement Obligations (any interest shall not include interest to the extent it
is to be paid from a direct subsidy payment expected to be received from the United States
Treasury relating to Build America Bonds issued pursuant to the Code, or any other interest
subsidy or similar payments made by the Federal government). In calculating such amount, the
Issuer shall subtract therefrom any amounts to be transferred from the Project Fund for the
purpose of paying interest on the Bonds. With respect to Variable Rate Bonds which are not
subject to a Qualified Agreement, if any, the interest rate used to calculate the Bond Service
Requirement shall be the higher of (i) the actual rate on the date of calculation, or if the
indebtedness is not yet outstanding, the initial rate (if established and binding), (ii) if the
indebtedness has been outstanding for at least twelve months, the average rate over the twelve
months immediately preceding the date of calculation, and (iii) if the indebtedness has been
outstanding for twelve months or less, (1) if interest on the indebtedness is excludable from
gross income under the applicable provisions of the Internal Revenue Code, the most recently
published Bond Buyer 25 Bond Revenue Index (or comparable index if no longer published)
plus fifty (50) basis points, or (2) if interest is not so excludable, the interest rate on direct U.S.
Treasury Obligations with comparable maturities plus fifty (50) basis points; provided,
however, that for purposes of any rate covenant measuring actual debt service coverage during
a test period, Variable Rate Bonds which are not subject to a Qualified Agreement shall be
deemed to bear interest at the actual rate per annum applicable during the test period. If Bonds
are Option Bonds, the date or dates of tender shall be disregarded, unless actually tendered and
not remarketed, and the stated maturity dates thereof shall be used for purposes of this
calculation. If the Issuer has entered into a Qualified Agreement with respect to Variable Rate
Bonds Outstanding hereunder or to be issued hereunder, the interest coming due on such
Variable Rate Bonds for purposes of this definition shall be deemed to be based upon the
synthetic fixed interest rate under the Qualified Agreement, without giving any regard to fees
and expenses incurred in connection with the purchase of a liquidity facility. If the Issuer has
entered into a Qualified Agreement with respect to certain Bonds Outstanding hereunder or to
be issued hereunder which have a fixed rate of interest, the interest coming due on such Bonds
for purposes of this definition shall be deemed to be based upon the assumptions described
above for Variable Rate Bonds, without giving any regard to fees and expenses incurred in
connection with the purchase of a liquidity facility.
"Bond Year" shall mean the period commencing on October 2 of the preceding year and
ending twelve months later on October 1.
"Bonds" shall mean (i) any Series 2009 Bonds not being refunded, (ii) the Series 2016
Bonds herein authorized to be issued, and (iii) any Additional Parity Obligations issued
hereafter in accordance with the provisions hereof.
"Build America Bond" shall mean any taxable bond issued by the Issuer pursuant to the
Code for which either (1) the Issuer receives direct subsidy payments in an amount equal to a
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percentage of the interest paid on such bond, or (2) the holder of such bond receives a tax credit
in an amount equal to a percentage of the interest paid on such bond.
"Capital Appreciation Bonds" shall mean the aggregate principal amount of the Bonds
that bear interest payable solely at maturity or upon redemption prior to maturity in the
amounts determined by reference to the Accreted Value, all as shall be determined by
Supplemental Resolution of the Issuer. In the case of Capital Appreciation Bonds that are
convertible to Bonds with interest payable prior to maturity or redemption of such Bonds, such
Bonds shall be considered Capital Appreciation Bonds only during the period of time prior to
such conversion.
"Capital Appreciation Income Bonds" shall mean those Bonds initially issued as Capital
Appreciation Bonds and which become Serial Bonds when the original issue amount and the
Accreted Value equals $5,000 principal amount or an integral multiple thereof as determined by
Supplemental Resolution of the Issuer.
"City Attorney" shall mean the City Attorney of the Issuer, or any assistant or deputy
City Attorney of the Issuer.
"City Clerk" shall mean the City Clerk of the Issuer, or any assistant or deputy City Clerk
of the Issuer.
"City Manager" shall mean the City Manager of the Issuer, or any assistant or deputy
City Manager of the Issuer.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the regulations
and rules thereunder in effect or proposed.
"Connection Fees" shall mean the charges imposed on those connecting to the System for
the actual cost of physically connecting into the System; provided, however, that "Connection
Fees" shall not include impact fees.
"Consulting Engineers" shall mean one or more independent, qualified and recognized
consulting engineers or firm of consulting engineers having favorable repute, skill and
experience with respect to the planning and operation of the System who shall be retained from
time to time by the Issuer.
"Contributions in Aid of Construction" shall mean any amount or item of money,
services, or property received by the Issuer, any portion of which is provided at no cost to the
System, which represents an addition or transfer to the capital of the System, and which is
utilized to offset the acquisition, improvement or construction costs of the System.
"Cost of Operation and Maintenance" of the System shall mean the then current
expenses, paid or accrued, in the operation, maintenance and repair of the System as calculated
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in accordance with generally accepted accounting principles, including, but not limited to,
general administrative and indirect labor costs, personal services, contractual services, repairs
and maintenance, and materials and supplies, but shall not include capital expenditures, any
reserve for renewals and replacements, any allowance for depreciation, any Bond Service
Requirement, any payments in lieu of taxes, franchise fees or other transfers.
"Credit Facility" or "Credit Facilities" shall mean either individually or collectively, as
appropriate, any bond insurance policy, surety bond, letter of credit, line of credit, guaranty or
other instrument or instruments that would enhance the credit of the Bonds.
"Credit Facility Issuer" or "Credit Facility Issuers" shall mean the provider or providers
of a Credit Facility or Credit Facilities.
"Director of Financial Services" shall mean the Director of Financial Services of the
Issuer, or any assistant or deputy Director of Financial Services of the Issuer.
"Federal Securities" shall mean direct obligations of the United States of America and
obligations the principal of and interest on which are unconditionally guaranteed by the United
States of America, none of which permit redemption prior to maturity at the option of the
obligor. Federal Securities shall also include direct obligations of the Treasury which have been
stripped by the Treasury itself, CATS, TIGRS and similar securities and the interest component
of Resolution Funding Corp. (REFCORP) strips which have been stripped by request to the
Federal Reserve Bank of New York in book entry form.
With respect to any Series of Bonds, the definition of Federal Securities set forth above
may be further limited as set forth in a Supplemental Resolution of the Issuer adopted prior to
the issuance of such Bonds.
"Financial Advisor" shall mean Larson Consulting Services, LLC, or any other
appropriately licensed financial advisor appointed from time to time by the Issuer.
"Fiscal Year" shall mean the period commencing on October 1 of each year and ending
on the next succeeding September 30 or such other annual period as may be prescribed by law
from time to time for the Issuer.
"Fitch" shall mean Fitch Ratings, and any assigns or successors thereto.
"Gross Revenues" or 'Revenues" shall mean all income and earnings, including
Connection Fees, received by the Issuer or accrued to the Issuer from the ownership, use or
operation of the System and all parts thereof, including, without limitation, unencumbered,
non -ad valorem special assessments which are not pledged for the repayment of, or as security
for, any indebtedness of the Issuer, whether currently outstanding or hereafter issued, other
than the Bonds and which are legally available to be used as contemplated hereunder, moneys
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deposited from the Rate Stabilization Fund into the Revenue Fund in accordance with the terms
hereof, provided any moneys transferred from the Rate Stabilization Fund into the Revenue
Fund within 90 days following the end of a Fiscal Year may be designated by the Issuer as
Gross Revenues of such prior Fiscal Year, and shall also include investment income, if any,
earned on any fund or account created pursuant to this Resolution, except the Rebate Fund, all
as calculated in accordance with generally accepted accounting principles, and any payment
received by the Issuer as contemplated in Section 27 hereof, but "Gross Revenues" or 'Revenues"
shall not include any direct subsidy payments received from the United States Treasury relating
to Build America Bonds issued pursuant to the Code or any other interest subsidy or similar
payments made by the Federal government, non -ad valorem special assessments which are
pledged for the repayment of, or as security for, any indebtedness of the City, whether currently
outstanding or hereafter issued, other than the Bonds, proceeds from the sale or other
disposition of the System or any part thereof, condemnation awards or proceeds of insurance
received with respect to the System, moneys deposited to the Rate Stabilization Fund from the
Surplus Fund, including any moneys transferred from the Surplus Fund to the Rate
Stabilization Fund within 90 days following the end of a Fiscal Year which the Issuer
determines not to be Gross Revenues of such prior Fiscal Year, Contributions in Aid of
Construction, unrealized gains or losses from investments or any "utility project charge' or the
like as contemplated in Section 27 hereof.
"Holder" or 'Bondholders" or any similar term shall mean any persons who shall be the
registered owner of any Outstanding Bonds.
"Insurer" shall mean, with respect to any Series of Bonds, such Person, as specifically
designated by Supplemental Resolution, as shall be insuring or guaranteeing the scheduled
payment of principal of and interest on such Series of Bonds, when due.
"Interest Account" shall mean the special account of the same name created within the
Bond Service Fund.
"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 in the Bonds themselves.
"Issuer" or "City" shall mean the City of Tamarac, Florida.
"Maximum Bond Service Requirement" shall mean, as of any particular date of
calculation, the greatest amount of aggregate Bond Service Requirement for the then current or
any future Bond Year, except that with respect to any Bonds for which Amortization
Installments have been established, the amount of principal coming due on the final maturity
date with respect to such Bonds shall be reduced by the aggregate principal amount of such
Bonds that are to be redeemed from Amortization Installments which were to be made in prior
Bond Years.
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"Mayor" shall mean the Mayor or the Vice Mayor of the Issuer.
"Moody's" or "Moody's Investors Service" shall mean Moody's Investors Services, Inc.,
and any assigns or successors thereto.
"Net Revenues" of the System shall mean the Gross Revenues or Revenues, after
deduction of the Cost of Operation and Maintenance.
"Option Bonds" shall mean Bonds subject to tender for payment prior to their maturity
at the option of the Holder thereof.
"Outstanding" or "Bonds Outstanding" shall mean all Bonds which have been issued
pursuant to this Resolution, except:
(i) Bonds canceled after purchase in the open market or because of payment
at or redemption prior to maturity;
(ii) Bonds for the payment or redemption of which cash funds or Acquired
Obligations or any combination thereof shall have been theretofore irrevocably set aside
in a special account with an escrow agent (whether upon or prior to the maturity or
redemption date of any such Bonds) in an amount which, together with earnings on
such Acquired Obligations, will be sufficient to pay the principal of, interest on and any
redemption premium with respect to such Bonds at maturity or upon their earlier
redemption; provided that, if such Bonds are to be redeemed before the maturity
thereof, notice of such redemption shall have been given according to the requirements
of this Resolution or irrevocable instructions directing the timely publication of such
notice and directing the payment of the principal of and interest on all such Bonds at
such redemption dates shall have been given; and
(iii) Bonds which are deemed paid pursuant to this Resolution or in lieu of
which other Bonds have been issued under Sections 11 and 13 hereof.
"Parity Contract Obligation" shall have the meaning set forth in Section 28 hereof.
"Parity Contract Obligation Account" shall mean the special account of the same name
created within the Bond Service Fund.
"Paying Agent" shall mean any paying agent for Bonds appointed by or pursuant to a
Supplemental Resolution and its successors or assigns, and any other Person which may at any
time be substituted in its place pursuant to a Supplemental Resolution. Once appointed, no
resignation or removal of the Paying Agent shall become effective until a successor has been
appointed and has accepted the duties of Paying Agent. Each of the Insurers of Bonds, if any,
shall be furnished with written notice of the resignation or removal of the Paying Agent and the
appointment of any successor thereto.
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"Permitted Investments" shall mean investments permitted by applicable law and the
Issuer's written investment policy, if any, as may be further limited as set forth in a
Supplemental Resolution of the Issuer.
"Person" shall mean an individual, a corporation, a partnership, an association, a joint
stock company, a trust, any unincorporated organization or governmental entity.
"Pledged Revenues" shall mean (i) the Net Revenues of the System, and (ii) until applied
in accordance with this Resolution, the moneys on deposit in the various funds and accounts
created pursuant to this Resolution, except (A) as for the Rebate Fund, (B) to the extent moneys
therein shall be required to pay the Cost of Operation and Maintenance in accordance with the
terms hereof, and (C) to the extent moneys on deposit in a subaccount of the Reserve Fund or
the Project Fund shall be pledged solely for the payment of the Series of Bonds for which it was
established in accordance with the provisions hereof.
"Principal Account" shall mean the special account of the same name created within the
Bond Service Fund.
"Project" or "Projects" shall mean any actual, proposed or potential acquisition, addition,
extension, supplement, or replacement of the System or joint ownership of similar properties or
any interest therein or any right to use the capacity from any facilities or services thereof, or any
other lawful purpose related to the System, all as determined by the Issuer and in accordance
with plans and specifications on file or to be filed with the Issuer.
"2016A Project" shall mean the Project authorized to be financed with the proceeds of the
Series 2016A Bonds, consisting of the design, permitting, acquisition, construction and
reconstruction of water and sewer capital projects.
"Project Costs" shall mean all costs authorized to be paid from the Project Fund pursuant
to Section 18 hereof to the extent permitted under the laws of the State. It is intended that this
definition be broadly construed to encompass all costs, expenses and liabilities of the Issuer
related to the System which on the date of this Resolution or in the future shall be permitted to
be funded with the proceeds of any Series of Bonds pursuant to the laws of the State.
"Project Fund" shall mean the Project Fund created and established pursuant to Section
16 of this Resolution.
"Prudent Utility Practice" shall mean, in respect of any particular municipal utility
industry, any of the practices, methods and acts which, in the exercise of reasonable judgment,
in light of the facts, including but not limited to the practices, methods and acts engaged in or
approved by a significant portion of such utility industry prior thereto, known at the time the
decision was made, would have been expected to accomplish the desired result at the lowest
reasonable cost consistent with reliability, safety, and expedition. It is recognized that Prudent
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Utility Practice is not intended to be limited to the optimum practice, method or act to the
exclusion of all others, but rather is a spectrum of possible practices, methods or acts which
could have been expected to accomplish the desired result at the lowest reasonable cost
consistent with reliability, safety and expedition.
"Qualified Agreement" means, to the extent from time to time permitted pursuant to
law, any contract or contracts entered into in connection with Bonds under which payments are,
in whole or in part, based on interest rate, cashflow, or other basis desired by the Issuer,
including, without limitation, contracts commonly known as current or forward interest rate
swap or swaption agreements and interest rate floors or caps. Notwithstanding anything herein
to the contrary, "Qualified Agreement" shall not include goods and service supply contracts.
"Qualified Agreement Provider" means, an entity whose senior long term obligations,
other senior long term obligations or claims paying ability or whose payment obligations under
a Qualified Agreement are guaranteed by an entity whose senior long term debt obligations,
other senior unsecured long term obligations or claims paying ability are rated at the time of
execution of such Qualified Agreement either (i) at least as high as A3 by Moody's, and A- by
S&P, or the equivalent thereof by any successor thereto for so long as such rating agency is then
maintaining a rating on the Bonds Outstanding, or (ii) any such lower rating categories which
each such rating agency then maintaining a rating on the Bonds Outstanding indicates in
writing to the Issuer will not, by itself, result in a reduction or withdrawal of its rating on the
Bonds Outstanding that is in effect prior to entering into such Qualified Agreement.
"Qualified Independent Consultant" shall mean one or more qualified and recognized
independent consultants, having favorable repute, skill and experience with respect to the acts
and duties of the Qualified Independent Consultant to be provided to the Issuer, as shall from
time to time be retained by the Issuer to perform the acts and carry out the duties herein
provided for such consultants.
"Rate Stabilization Fund" shall mean the "Rate Stabilization Fund" established pursuant
to Section 16 of this Resolution.
"Rebate Amount" means the excess of the future value, as of a computation date, of all
receipts on nonpurpose investments (as defined in Section 1.148-1(b) of the Income Tax
Regulations) over the future value, as of that date, of all payments on nonpurpose investments,
all as provided by regulations under the Code implementing Section 148 thereof.
"Rebate Fund" shall mean the City of Tamarac Utility System Revenue Bonds Rebate
Fund established pursuant to Section 30 hereof.
"Rebate Year" shall mean, with respect to a particular Series of Bonds issued hereunder,
a one-year period (or shorter period from the date of issue) that ends at the close of business on
the day in the calendar year selected by the Issuer as the last day of a Rebate Year. The final
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Rebate Year with respect to a particular Series of Bonds issued hereunder, however, shall end
on the date of final maturity of that Series of Bonds.
"Record Date" shall mean each date that is on the 1511, day of the calendar month
immediately preceding an interest payment date on the Bonds.
"Redemption Account" shall mean the special account of the same name created within
the Bond Service Fund.
"Refunded 2009 Bonds" shall mean all or a portion of the Issuer's Series 2009 Bonds
authorized to be refunded hereby, to be specifically designated by Supplemental Resolution.
"Refunding Bonds" shall mean that amount of any Series of Bonds, the proceeds of
which will be applied to the refunding of any previously issued Bonds.
"Registrar" shall mean any registrar for the Bonds appointed by or pursuant to
Supplemental Resolution and its successors and assigns, and any other Person which may at
any time be substituted in its place pursuant to Supplemental Resolution. Once appointed, no
resignation or removal of the Registrar shall become effective until a successor has been
appointed and has accepted the duties of Registrar. The Insurers of Bonds shall be furnished
with written notice of the resignation or removal of the Registrar and the appointment of any
successor thereto.
"Reimbursement Obligation" shall have the meaning set forth in Section 29 hereof.
"Renewal, Replacement and Improvement Fund" shall mean the Renewal, Replacement
and Improvement Fund created and established pursuant to Section 16 of this Resolution.
"Reserve Fund" shall mean the Reserve Fund created and established pursuant to
Section 16 of this Resolution.
"Reserve Fund Insurance Policy" shall mean an insurance policy or surety bond
deposited in the Reserve Fund or a subaccount therein in lieu of or in substitution for cash on
deposit therein pursuant to Section 20(B)(2) hereof.
"Reserve Fund Letter of Credit" shall mean an unconditional irrevocable letter of credit
or line of credit (other than a Reserve Fund Insurance Policy) deposited in the Reserve Fund or
a subaccount therein in lieu of or in substitution for cash on deposit therein pursuant to Section
20(B)(2) hereof.
"Reserve Requirement" shall be the lesser of (i) the Maximum Bond Service Requirement
with respect to Bonds secured by the Reserve Fund, (ii) 125% of the Average Annual Bond
Service Requirement with respect to Bonds secured by the Reserve Fund, or (iii) the largest
amount as shall not adversely affect the exclusion of interest on the Bonds from gross income
Temp. Reso. #12859
Page 15
for Federal income tax purposes with respect to Bonds secured by the Reserve Fund; provided,
however, the Issuer may establish by Supplemental Resolution a different Reserve Requirement
for a subaccount of the Reserve Fund which secures one or more Series of Bonds pursuant to
Section 20(B)(2) hereof.
"Resolution" shall mean the Original Resolution, as amended and restated in its entirety
by this Resolution, as from time to time may be amended or supplemented by Supplemental
Resolution, in accordance with the terms hereof.
"Revenue Fund" shall mean the Revenue Fund created and established pursuant to
Section 16 of this Resolution.
"Serial Bonds" shall mean all of the Bonds other than Term Bonds.
"Series" or "Series of Bonds" or "Bonds of a Series" shall mean all Bonds designated as
being of the same Series issued and delivered on original issuance in a simultaneous
transaction, and any Bonds thereafter delivered in lieu thereof or in substitution therefor
pursuant to this Resolution.
"Series 2016 Bonds" shall mean, collectively, the Series 2016A Bonds and the Series 2016B
Bonds.
"Series 2016A Bonds" shall mean the Issuer's Utility System Refunding Revenue Bonds,
Series 2016A, the net proceeds of which will be primarily used to refund a portion of the
Refunded 2009 Bonds and to finance the 2016A Project.
"Series 2016B Bonds" shall mean the Issuer's Utility System Refunding Revenue Bonds,
Series 2016B (Taxable), the net proceeds of which will be primarily used to refund a portion of
the Refunded 2009 Bonds. The Series 2016B Bonds are Taxable Bonds.
"Sewer System" shall mean the complete sewer, wastewater and residential reuse
system now owned, operated and maintained by the Issuer and which the Issuer is, or shall be
responsible for maintaining, together with any and all acquisitions, improvements, extensions
and additions thereto, hereafter constructed or acquired, together with all lands or interests
therein, including plants, buildings, machinery, franchises, pipes, mains, fixtures, equipment
and all property, real or personal, tangible or intangible (including agreements for the
providing of such services), now or hereafter constructed and/or owned or used in connection
therewith.
"State" shall mean the State of Florida.
"S&P" shall mean S&P Global Ratings Inc. and any assigns and successors thereto.
Temp. Reso. #12859
Page 16
"Subordinated Debt" shall mean any obligations payable on a junior, inferior and
subordinate basis under Section 20(L) hereof. "Subordinated Debt" shall include, but shall not
be limited to, (i) Subordinated Contract Obligations, (h) payments to a Qualified Agreement
Provider pursuant to a Qualified Agreement which the Issuer has designated as Subordinated
Debt, (iii) Reimbursement Obligations, and (iv) any other obligations payable from any of the
Pledged Revenues on a junior, inferior and subordinate basis to the Bonds.
"Subordinated Debt Service Fund" shall mean the Subordinated Debt Service Fund.
"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 22 and 23 hereof.
"System" or "Utility System" shall mean, collectively, the Water System and the Sewer
System of the Issuer. Upon compliance with the provisions of Section 26 hereof, the term
"System" may be deemed to include other utility functions added to the System, including, but
not limited to, the acquisition, distribution and sale of natural gas, the providing of electricity,
the providing of cable television services, the providing of telecommunication services or other
utility functions that are authorized from time to time pursuant to the Act. Notwithstanding
the foregoing definition of the term System, (i) such term shall not include any properties or
interest in properties of the Issuer which the Issuer determines shall not constitute a part of the
System for the purpose of this Resolution, and (ii) such term shall not include the stormwater
system of the Issuer.
"Taxable Bond" shall mean any Bond (other than Build America Bonds) which states, in
the body thereof, that the interest income thereon is includable in the gross income of the
Holder thereof for federal income tax purposes or that such interest is subject to federal income
taxation. The Series 2016B Bonds are Taxable Bonds.
"Term Bonds" shall mean the Bonds other than Serial Bonds which shall be stated to
mature on one date, and shall have such Amortization Installments, as shall be determined by
Supplemental Resolution of the Issuer.
"Variable Rate Bonds" shall mean obligations issued with a variable, adjustable,
convertible or other similar rate which is not fixed in percentage at the date of issue for the
entire term thereof as shall be determined by Supplemental Resolution of the Issuer.
"Water System" shall mean the complete water system now owned, operated and
maintained by the Issuer or which is proposed to be acquired by and operated and maintained
by the Issuer and which the Issuer is, or shall be responsible for maintaining, together with any
and all acquisitions, improvements, extensions and additions thereto, hereafter constructed or
acquired, together with all lands or interests therein, including plants, buildings, machinery,
franchises, pipes, mains, fixtures, equipment and all property, real or personal, tangible or
Temp. Reso. #12859
Page 17
intangible (including agreements for the providing of such services), now or hereafter
constructed and/or owned or used in connection therewith.
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 3. Findings. It is hereby ascertained, determined and declared that:
(A) The Issuer currently owns, operates and maintains the System and derives
certain revenue from rates, fees, rentals and other charges made and collected for the services of
such System, which such revenues are not now pledged or encumbered in any manner except
in favor of the Series 2009 Bonds. The Refunded 2009 Bonds are to be refunded with proceeds of
the Series 2016A Bonds and Series 2016B Bonds and other legally available funds of the Issuer, if
any.
(B) The Issuer has determined that it is in the best interest of the health and welfare
of the residents of the Issuer and other users of the System to issue the Series 2016A Bonds for
the primary purpose of refunding a portion of the Refunded Series 2009 Bonds and financing
the costs of the 2016A Project and to issue the Series 2016B Bonds for the primary purpose of
refunding a portion of the Refunded 2009 Bonds.
(C) The costs associated with issuance of the Series 2016 Bonds shall be deemed to
include, but not limited be to, legal and financial advisory fees and expenses, engineering
expenses, fiscal expenses, underwriting fees and expenses, rating agency fees, expenses for
estimates of costs and of revenues, accounting expenses, escrow and verification fees and
expenses, municipal bond insurance premiums, if applicable, surety policy premiums, if
applicable, costs of printing, fees and expenses for the paying agent and registrar, accrued and
capitalized interest, if any, provisions for reserves, and such other fees and expenses as may be
necessary or incidental for the financing herein authorized.
(D) Furthermore, in order to modify and modernize certain of the bond covenants to
provide more financial flexibility, the Issuer desires to amend and restate the Original
Resolution.
(E) Any Series of Bonds, after the issuance of the Series 2016 Bonds, shall be issued
upon approval by Supplemental Resolution of the Issuer and compliance with the terms hereof.
The proceeds of any Series of Bonds shall be applied as provided in a Supplemental Resolution.
Temp. Reso. #12859
Page 18
(F) The principal of and interest and redemption premium on the Series 2016 Bonds
and all reserve and other payments contemplated hereunder shall be payable solely from the
Pledged Revenues on parity with the Series 2009 Bonds not being refunded, if any. The Issuer
shall never be required to levy ad valorem taxes on any real or personal property therein to pay
the principal of and interest on the Bonds herein authorized or to make any other payments
provided for herein. The Bonds shall not constitute a lien upon any properties owned by or
located within the boundaries of the Issuer or upon any property other than the Pledged
Revenues.
(G) The Pledged Revenues should be sufficient to pay all principal of and interest
and redemption premium on the Bonds to be issued hereunder, as the same become due, and to
make all required deposits or payments required by this Resolution.
Section 4. Authorization of the 2016A Project and Refunding of Refunded 2009
Bonds. The Issuer does hereby authorize the 2016A Project, and the refunding of the Refunded
2009 Bonds.
Section 5. This Resolution to Constitute Contract. In consideration of the
acceptance of the Bonds authorized to be issued hereunder by those who shall hold the same
from time to time, this Resolution shall be deemed to be and shall constitute a contract between
the Issuer and such Holders. The covenants and agreements herein set forth to be performed by
the Issuer shall be for the equal benefit, protection and security of the legal Holders of any and
all of the Bonds, all of which shall be of equal rank and without preference, priority or
distinction of any of the Bonds over any other thereof, except as expressly provided therein and
herein.
Section 6. Authorization of Bonds. Subject and pursuant to the provisions hereof,
obligations of the Issuer to be known as "Utility System Revenue Bonds" which may be issued
from time to time are hereby authorized to be issued. 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 herein or by
Supplemental Resolution of the Issuer.
Temp. Reso. #12859
Page 19
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, and, in the case of the Series 2016 Bonds,
by Section 7 hereof. The Issuer may issue Bonds which may be secured by a Credit Facility or
by a Bond Insurance Policy all as shall be determined by Supplemental Resolution of the Issuer.
Section 7. Description of the Series 2016 Bonds. The Series 2016A Bonds and the
Series 2016B Bonds are hereby authorized to be issued in the aggregate principal amounts of not
to exceed $22,000,000 and $5,000,000, respectively, with further details provided in a
Supplemental Resolution prior to their delivery.
The Series 2016A Bonds and the Series 2016B Bonds shall each be issued hereunder in
fully registered form without coupons; may be Capital Appreciation Bonds, Serial Bonds or
Term Bonds; shall be dated; shall be numbered consecutively from one upward in order of
maturity preceded by the letter "RA" and "RB," respectively, if Serial Bonds or Term Bonds, and
preceded by the letters "CABR" if Capital Appreciation Bonds; shall be in the denomination of
$5,000 each, or integral multiples thereof for the Serial Bonds and Term Bonds, and in $5,000
Accreted Values at maturity for the Capital Appreciation Bonds or in $5,000 multiples thereof,
or such other denominations as shall be approved by the Issuer in a Supplemental Resolution
prior to the delivery of such Bonds shall bear interest at such rate or rates not exceeding the
maximum rate allowed by State law, the actual rate to be approved by the governing body of
the Issuer prior to or upon the sale of such Bonds; such interest to be payable semiannually at
such times as are fixed by Supplemental Resolution of the Issuer if Serial Bonds or Term Bonds
or payable at maturity if Capital Appreciation Bonds, and shall mature annually on such date in
such years and such amounts as will be fixed by Supplemental Resolution of the Issuer prior to
or upon the sale of such Bonds, and may be issued with variable, adjustable, convertible or
other rates with original issue discounts and as zero coupon bonds; all as the Issuer shall
provide herein or hereafter by Supplemental Resolution.
Each Serial or Term Bond shall bear interest from the interest payment date next
preceding the date on which it is authenticated, unless authenticated on an interest payment
date, in which case it shall bear interest from such interest payment date, or, unless
authenticated prior to the first interest payment date, in which case it shall bear interest from its
date; provided, however, that if at the time of authentication, payment of any interest which is
due and payable has not been made, such Serial or Term Bond shall bear interest from the date
to which interest shall have been paid.
Unless otherwise set forth in a Supplemental Resolution adopted prior to the issuance of
a Series of Bonds, interest shall be calculated based upon a 360 day year consisting of 12-30 day
months.
Temp. Reso. #12859
Page 20
Each Capital Appreciation Bond shall bear interest only at maturity or upon redemption
prior to maturity in the amount determined by reference to the Accreted Value.
The principal of and the interest and redemption premium, if any, on such Bonds shall
be payable in any coin or currency of the United States of America which on the respective
dates of payment thereof is legal tender for the payment of public and private debts. The
interest on the Serial or Term Bonds shall be payable by the Paying Agent on each interest
payment date, or the first business day following an interest payment date if such interest
payment date is not a business day, to the person appearing on the registration books of the
Issuer hereinafter provided for as the registered Holder thereof, by check or draft mailed to
such registered Holder at his address as it appears on such registration books or by wire
transfer to Holders of $1,000,000 or more in principal amount of such Bonds. Payment of the
principal of all Serial or Term Bonds (reduced by any Amortization Installments previously
paid by the Issuer on any Term Bonds) and the Accreted Value with respect to the Capital
Appreciation Bonds shall be made upon the presentation and surrender of such Bonds as the
same shall become due and payable.
As long as any such Bonds are outstanding in book -entry form, the provisions of this
Resolution inconsistent with such system of book -entry registration shall not be applicable to
such Bonds, and the Issuer covenants to cause adequate records to be kept with respect to the
ownership of any Series of Bonds issued in book -entry form or the beneficial ownership of
bonds issued in the name of a nominee.
Section 8. Execution of Bonds. The Bonds in the form herein below set forth shall be
signed by, or bear the facsimile signature of the Mayor and City Manager and shall be attested
by, or bear the facsimile signature of, the City Clerk, shall be approved as to form by the City
Attorney, and a facsimile of the official seal of the Issuer shall be imprinted on the Bonds.
In case any officer whose signature or a facsimile of whose signature shall appear on any
Bonds shall cease to be such officer before the delivery of such Bonds, such signature or such
facsimile shall nevertheless be valid and sufficient for all purposes the same as if such Person
remained in office until such delivery. Any Bond may bear the facsimile signature of or may be
signed by such persons who, at the actual time of the execution of such Bond, shall be the
proper officers to sign such Bonds although, at the date of such Bond, such persons may not
have been such officers.
Section 9. Authentication of Bonds. Only such of the Bonds as shall have endorsed
thereon a certificate of authentication substantially in the form hereinbelow set forth, duly
executed by the Registrar, as authenticating agent, shall be entitled to any benefit or security
under this Resolution. No Bond shall be valid or obligatory for any purpose unless and until
such certificate of authentication shall have been duly executed by the Registrar, and such
certificate of the Registrar upon any such Bond shall be conclusive evidence that such Bond has
been duly authenticated and delivered under this Resolution. The Registrar's certificate of
Temp. Reso. #12859
Page 21
authentication on any Bond shall be deemed to have been duly executed if signed by an
authorized officer of the Registrar, but it shall not be necessary that the same officer sign the
certificate of authentication of all of the Bonds that may be issued hereunder at any one time.
Section 10. Exchange of Bonds. Any Bonds, upon surrender thereof at the
designated corporate trust office of the Registrar, together with an assignment duly executed by
the Bondholder or his attorney or legal representative in such form as shall be satisfactory to the
Registrar, may, at the option of the Bondholder, be exchanged for an aggregate principal
amount of Bonds of the same Series equal to the principal amount of the Bond or Bonds so
surrendered.
The Registrar shall make provision for the exchange of Bonds at the designated
corporate trust office of the Registrar.
Section 11. Negotiability, Registration and Transfer of Bonds. The Registrar shall
keep books for the registration of and for the registration of transfers of Bonds as provided in
this Resolution. The transfer of any Bonds may be registered only upon such books and only
upon surrender thereof to the Registrar together with an assignment duly executed by the
Bondholder or his attorney or legal representative in such form as shall be satisfactory to the
Registrar. Upon any such registration of transfer, the Issuer shall execute and the Registrar
shall authenticate and deliver in exchange for such Bond, a new Bond or Bonds registered in the
name of the transferee, and in an aggregate principal amount equal to the principal amount of
such Bond or Bonds so surrendered and of the same Series.
In all cases in which Bonds shall be exchanged, the Issuer shall execute and the Registrar
shall authenticate and deliver, at the earliest practicable time, a new Bond or Bonds of the same
type (e.g., Serial Bonds will be exchanged for Serial Bonds and Capital Appreciation Bonds will
be exchanged for Capital Appreciation Bonds) and of the same Series in accordance with the
provisions of this Resolution. All Bonds surrendered in any such exchange or registration of
transfer shall forthwith be canceled by the Registrar. The Issuer or the Registrar may make a
charge for every such exchange or registration of transfer of Bonds sufficient to reimburse it for
any tax or other governmental charge required to be paid with respect to such exchange or
registration of transfer, but no other charge shall be made to any Bondholder for the privilege of
exchanging or registering the transfer of Bonds under the provisions of this Resolution. Neither
the Issuer nor the Registrar shall be required to make any such exchange, registration or transfer
of Bonds after the Record Date.
Section 12. Ownership of Bonds. The person in whose name any Bond shall be
registered shall be deemed and regarded as the absolute owner thereof for all purposes, and
payment of or on account of the principal or redemption price of any such Bond, and the
interest on any such Bonds shall be made only to or upon the order of the registered owner
thereof or his legal representative. All such payments shall be valid and effectual to satisfy and
Temp. Reso. #12859
Page 22
discharge the liability upon such Bond including the premium, if any, and interest thereon to
the extent of the sum or sums so paid.
Section 13. 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, cause to be
executed, and the Registrar shall authenticate and deliver, a new Bond of like date and tenor as
the Bond so mutilated, destroyed, stolen or lost (e.g., Serial Bonds shall be issued in exchange
for Serial Bonds and Capital Appreciation Bonds shall be issued in exchange for Capital
Appreciation Bonds) 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 and the Registrar may prescribe and paying such expenses as the Issuer
and the Registrar may incur. All Bonds so surrendered shall be canceled by the Issuer. If any of
the Bonds shall have matured or be about to mature, instead of issuing a substitute Bond, the
Issuer may pay the same, upon being indemnified as aforesaid, and if such Bond be lost, stolen
or destroyed, without surrender thereof.
Any such duplicate Bonds issued pursuant to this Section 13 shall constitute original,
additional contractual obligations on the part of the Issuer whether or not the lost, stolen or
destroyed Bonds be at any time found by anyone, and such duplicate Bonds shall be entitled to
equal and proportionate benefits and rights as to lien on and source and security for payment
from the funds, as hereinafter pledged, to the same extent as all other Bonds issued hereunder.
Section 14. Provisions for Redemption. The Bonds shall be subject to redemption
prior to their maturity, at the option of the Issuer, at such times and in such manner as shall be
fixed by Supplemental Resolution of the Issuer prior to or at the time of sale of such Bonds. The
provisions of this Section may be modified as to any Series of Bonds by Supplemental
Resolution adopted prior to the issuance thereof.
Notice of such redemption shall, at least thirty (30) days prior to the redemption date, be
filed with the Registrar, and mailed by the Registrar on behalf of the Issuer, first class mail,
postage prepaid, to all Holders of Bonds to be redeemed at their addresses as they appear on
the registration books hereinbefore provided for on the Record Date, but failure to mail such
notice to one or more Holders of such Bonds, or any defect therein, shall not affect the validity
of the proceedings for such redemption with respect to Holders of Bonds to which notice was
duly mailed hereunder and no defect occurred. Such notice shall also be sent to the registered
securities depositories and two or more nationally recognized municipal securities information
repositories. Each such notice shall set forth the date fixed for redemption, the redemption
price to be paid and, if less than all of such Bonds, of one maturity are to be called, the
distinctive numbers of such Bonds to be redeemed and, in the case of Bonds to be redeemed in
part only, the portion of the principal amount thereof to be redeemed.
Temp. Reso. #12859
Page 23
Any notice of optional redemption given pursuant to this Section 14 may state that it is
conditional upon receipt by the Paying Agent of moneys sufficient to pay the redemption price,
plus interest accrued to the redemption date, or upon the satisfaction of any other condition, or
that it may be rescinded upon the occurrence of any other event, and any conditional notice so
given may be rescinded at any time before payment of such redemption price and accrued
interest if any such condition so specified is not satisfied or if any such other event occurs.
Notice of such rescission shall be given by the Paying Agent to affected Holders of such Bonds
as promptly as practicable upon the failure of such condition or the occurrence of such other
event.
Official notice of redemption having been given as aforesaid, such Bonds or portions of
Bonds 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 at the redemption price. Each check or other transfer of
funds issued by the Registrar for the purpose of the payment of the redemption price of Bonds
being redeemed shall bear the CUSIP number identifying, by issue and maturity, such Bonds
being redeemed with the proceeds of such check or other transfer. Installments of interest due
on or prior to the redemption date shall be payable as herein provided for payment of interest.
Upon surrender for any partial redemption of any such Bond, there shall be prepared for the
Holder a new Bond or Bonds of the same maturity in the amount of the unpaid principal of
such partially redeemed Bond. All such Bonds which have been redeemed shall be canceled
and destroyed by the Registrar and shall not be reissued.
Section 15. Form of Bonds. The text of the Bonds, together with the certificate of
authentication to be endorsed therein, shall be in substantially the following form, with such
omissions, insertions and variations as may be necessary, desirable, authorized or permitted by
this Resolution or by any Supplemental Resolution adopted prior to the issuance of a Series of
Bonds, or as may be necessary if such Bonds or a portion thereof are issued as Capital
Appreciation Bonds, Capital Appreciation Income Bonds, Option Bonds, Variable Rate Bonds,
or as may be necessary to comply with applicable laws, rules and regulations of the United
States and of the State in effect upon the issuance thereof.
[Remainder of page intentionally left blank]
E
Temp. Reso. #12859
Page 24
[FORM OF BOND]
No. R[A/B]-
UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF BROWARD
CITY OF TAMARAC
UTILITY SYSTEM [REFUNDING] REVENUE BONDS, SERIES [TAXABLE]
MATURITY DATE: INTEREST RATE: DATED DATE: CUSIP:
Registered Owner:
Principal Amount:
The City of Tamarac, Florida (hereinafter called the "Issuer") for value received, hereby
promises to pay to the order of the Registered Owner identified above or registered assigns, as
herein provided, on the Maturity Date identified above, upon the presentation and surrender
hereof at the designated corporate trust office of
Florida from the sources hereinafter mentioned, the Principal
Amount identified above in any coin or currency of the United States of America which on the
date of payment thereof is legal tender for the payment of public and private debts, and to pay,
solely from said sources, to the Registered Owner hereof by wire transfer or check transmitted
to the Registered Owner at his address as it appears on the Bond registration books of the Issuer
as it appears on the 15th day of the calendar month preceding the applicable interest payment
date, interest on said Principal Amount at the Interest Rate per annum identified above on each
April 1 and October 1 commencing 1, 20_ from the interest payment date next
preceding the date of registration and authentication of this Bond, unless this Bond is registered
and authenticated as of an interest payment date, in which case it shall bear interest from said
interest payment date, or unless this Bond is registered and authenticated prior to
in which event this Bond shall bear interest from
[Interest income on this Bond is includable in the gross income to the Registered Owner
for federal income tax purpose.] [Taxable Bond only].
(Insert Optional and/or Mandatory Redemption Provisions)
Notice of such redemption shall be given in the manner required by the Resolution (as
defined below).
Temp. Reso. #12859
Page 25
This Bond is one of an authorized issue of Bonds in the aggregate principal amount of
$ of like date, tenor and effect, except as to number, principal amount, maturity,
redemption provisions and interest rate, issued to , all in full compliance
with Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 159, Part I, Florida
Statutes, Chapter 166, Part II, Florida Statutes, the municipal charter of the City of Tamarac,
Florida, and other applicable provisions of law and Resolution No. R-2009-96 duly adopted by
the Issuer on July 22, 2009, as amended and restated in its entirety by Resolution No. R-2016-_
duly adopted by the Issuer on , 2016, as amended and supplemented (hereinafter
collectively called the 'Resolution") and is subject to all the terms and conditions of such
Resolution. All capitalized undefined terms used herein shall have the meaning set forth in the
Resolution.
[On parity with ] this Bond is payable solely from and secured by a pledge
of the Net Revenues of the System levied and collected by the Issuer, and the moneys in certain
funds and accounts created pursuant to the Resolution (collectively, the 'Pledged Revenues") in
the manner and to the extent provided in the Resolution. Reference is made to the Resolution
for more complete definition and description of the System and the Pledged Revenues.
This Bond does not constitute a general indebtedness of the Issuer within the meaning of
any constitutional, statutory or charter provision or limitation, and it is expressly agreed by the
Holder of this Bond that such Bondholder shall never have the right to require or compel the
exercise of the ad valorem taxing power of the Issuer or taxation of any real or personal
property therein for the payment of the principal of and interest on this Bond or the making of
any debt service fund, reserve or other payments provided for in the Resolution.
It is further agreed between the Issuer and the Holder of this Bond that this Bond and
the indebtedness evidenced thereby shall not constitute a lien upon the System, or any part
thereof, or on any other property of or in the Issuer, but shall constitute alien only on the
Pledged Revenues all in the manner provided in the Resolution.
The Issuer has covenanted, in the Resolution, to fix, establish, revise from time to time
whenever necessary, maintain and collect always such fees, rates, rentals and other charges for
the use of the products, services and facilities of the System which will always provide, Net
Revenues in each Fiscal Year sufficient to pay one hundred ten percent (110%) of the Bond
Service Requirement on all Outstanding Bonds in the applicable Bond Year.
In addition to compliance with the paragraph above, such Net Revenues in each Fiscal
Year shall also be sufficient to provide one hundred percent (100%) of the Bond Service
Requirement on all Outstanding Bonds in the applicable Bond Year, any amounts required by
the terms of the Resolution to be deposited into the Reserve Fund (including any subaccount
therein) or with any Credit Facility Issuer as a result of a withdrawal from the Reserve Fund
(including any subaccount therein), the Renewal, Replacement and Improvement Fund and
Temp. Reso. #12859
Page 26
debt service on other obligations payable from the Revenues of the System, and other payments,
and all allocations and applications of revenues in the Resolution required in such Fiscal Year.
Net Revenues will not be reduced so as to render them insufficient to provide revenues
for the purposes provided therefor by the Resolution.
The Issuer has entered into certain further covenants with the Holders of the Bonds of this issue
for the terms of which reference is made to the Resolution.
It is certified that this Bond is authorized by and is issued in conformity with the
requirements of the Constitution and Statutes of the State of Florida.
This Bond is and has all the qualities and incidents of a negotiable instrument under
Article 3 of the Uniform Commercial Code, the State of Florida, Chapter 673, Florida Statutes, as
amended.
The transfer of this Bond is registrable by the Bondholder hereof in person or by his
attorney or legal representative at the designated corporate trust office of the Registrar but only
in the manner and subject to the conditions provided in the Resolution and upon surrender and
cancellation of this Bond.
This Bond shall not be valid or become obligatory for any purpose or be entitled to any
benefit or security under the Resolution until it shall have been authenticated by the execution
by the Registrar of the certificate of authentication endorsed hereon.
[Remainder of page intentionally left blank]
L
Temp. Reso. #12859
Page 27
IN WITNESS WHEREOF, said City of Tamarac, Florida, by resolution duly adopted by
its City Commission, has caused this Bond to bear the signatures of its Mayor and City
Manager, to be attested by the signature of its City Clerk, to be approved as to form by the City
Attorney, and a facsimile of the official seal of the City to be affixed, impressed, imprinted,
lithographed or reproduced hereon, all as of the
(SEAL)
ATTESTED:
By:
L�a
City Clerk
APPROVED AS TO FORM:
By:
City AttorneyU
day of
CITY OF TAMARAC, FLORIDA
By: 11'
ayor
/Ci
*Manager
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds issued under the provisions of the within mentioned
Resolution.
Date of Authentication:
Registrar, as Authenticating Agent
0
Authorized Officer
Temp. Reso. #12859
Page 28
ASSIGNMENT AND TRANSFER
For value received the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of transferee)
the attached bond of the City of Tamarac, Florida, and does hereby constitute
and appoint, , attorney, to transfer the said Bond on the books kept for
Registration thereof, with full power of substitution in the premises.
Date:
Signature Guaranteed by
[member firm of the New York Stock
Exchange or a commercial bank or a trust
company.]
By: (manual or facsimile)
Authorized Officer
NOTICE: No transfer will be registered and
no new Bonds will be issued in the name of
the transferee, unless the signature to this
assignment corresponds with the name as it
appears upon the face of the within Bond in
every particular, without alteration or
enlargement or any change whatever and the
Social Security or Federal Employer
Identification Number of the transferee is
supplied.
[END OF FORM OF BOND]
�I
L
Temp. Reso. #12859
Page 29
Section 16. Creation of Funds. There are hereby created and established the
following funds and accounts, which funds and accounts shall be trust funds held by the Issuer
for the purposes herein provided and used only in the manner herein provided:
(A) The "City of Tamarac Utility System Revenue Fund" (hereinafter sometimes
called the 'Revenue Fund") to be held by the Issuer and to the credit of which deposits of Gross
Revenues shall be made as required by Section 20(A) hereof.
(B) The "City of Tamarac Utility System Bond Service Fund" (hereinafter sometimes
called the 'Bond Service Fund") to be held by the Issuer and to the credit of which deposits shall
be made as required by Section 20(B)(1) hereof. In such fund there shall be maintained the
following accounts: the Principal Account, the Interest Account, the Parity Contract Obligation
Account and the Redemption Account.
(C) The "City of Tamarac Utility System Reserve Fund" (hereinafter sometimes called
the 'Reserve Fund") to be held by the Issuer and to the credit of which deposits shall be made as
required by Section 20(B)(2) hereof. In such Fund, there may hereafter be established
subaccounts pursuant to Supplemental Resolution.
(D) The "City of Tamarac Utility System Subordinated Debt Service Fund"
(hereinafter sometimes called the "Subordinated Debt Service Fund") to be held by the Issuer
and to the credit of which deposits shall be made as required by Section 20(B)(3) hereof.
(E) The "City of Tamarac Utility System Renewal, Replacement and Improvement
Fund" (hereinafter sometimes called the 'Renewal, Replacement and Improvement Fund") to be
held by the Issuer and to the credit of which deposits shall be made as required by Section
20(B)(4) hereof.
(F) The "City of Tamarac Utility System Project Fund" (hereinafter sometimes called
the 'Project Fund") to be held by the Issuer and to the credit of which deposits shall be made as
required by Section 17 hereof. Within such fund there shall be created, established and
maintained separate accounts for each Series of Bonds. There is hereby created the Series 2016A
Project Account (hereafter the "Series 2016A Project Account") which shall be held solely for the
benefit of the Holders of the Series 2016A Bonds.
(G) The "City of Tamarac Utility System Rate Stabilization Fund" (hereinafter
sometimes called the 'Rate Stabilization Fund") to be held by the Issuer and to the credit of
which deposits may be made as required by Section 20(R) hereof.
(H) The "City of Tamarac Utility System Surplus Fund" (hereinafter sometimes called
the "Surplus Fund") to be held by the Issuer and to the credit of which deposits may be made as
required by Section 20(B)(6) hereof.
Temp. Reso. #12859
Page 30
The Revenue Fund, the Bond Service Fund (including the accounts therein), the Reserve
Fund (including any subaccounts that may hereafter be created therein pursuant to
Supplemental Resolution), the Renewal, Replacement and Improvement Fund, the Project
Fund, the Rate Stabilization Fund, the Surplus Fund and any other special funds herein
established and created shall be deemed to be held in trust for the purposes provided herein for
such funds. The money in all such funds shall be continuously secured in the same manner as
state and municipal deposits are authorized to be secured by the laws of the State of Florida.
The cash required to be accounted for in each of the funds and accounts described in this
Section 16 may be deposited in a single bank account, provided that adequate accounting
records are maintained to reflect and control the restricted allocation of the cash on deposit
therein for the various purposes of such funds and accounts as herein provided. The
designation and establishment of the various funds in and by this Resolution shall not be
construed to require the establishment of any completely independent, self -balancing funds as
such term is commonly defined and used in governmental accounting, but rather is intended
solely to constitute an earmarking of certain revenues and assets of the System for certain
purposes and to establish certain priorities for application of such revenues and assets as herein
provided.
The Issuer may at any time and from time to time appoint one or more depositaries to
hold, for the benefit of the Bondholders, any one or more of the funds, accounts and
subaccounts established hereby. Such depository or depositaries 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 having a combined capital, surplus and undivided profits aggregating not less
than fifty million dollars ($50,000,000).
Section 17. Application of Bond Proceeds. The proceeds, including accrued interest
and premium, if any, received from the sale of a Series of the Bonds shall be applied by the
Issuer simultaneously with the delivery of such Series of the Bonds to the purchaser thereof, as
provided in a Supplemental Resolution adopted at or prior to sale of such Series of the Bonds.
Section 18. Disbursements from Project Fund. Moneys on deposit from time to time
in the Project Fund shall be used to pay or reimburse the following Project Costs:
(A) Costs incurred directly or indirectly for or in connection with a Project or a
proposed or future Project or acquisition including, but not limited to, those for preliminary
planning and studies, architectural, legal, financial, engineering and supervisory services, labor,
services, materials, equipment, accounts receivable, acquisitions, land, rights -of -way,
improvements and installation;
Temp. Reso. #12859
Page 31
(B) Premiums attributable to all insurance required to be taken out and maintained
during the period of construction with respect to a Project to be acquired or constructed, the
premium on each surety bond, if any, required with respect to work on such facilities, and
taxes, assessments and other charges hereof that may become payable during the period of
construction with respect to such a Project;
(C) Costs incurred directly or indirectly in seeking to enforce any remedy against a
contractor or subcontractor in respect of any default under a contract relating to a Project or
costs incurred directly or indirectly in defending any claim by a contractor or subcontractor
with respect to a Project;
(D) Financial, legal, accounting, appraisals, title evidence and printing and engraving
fees, charges and expenses, and all other such fees, charges and expenses incurred in connection
with the authorization, sale, issuance and delivery of such Series of Bonds;
(E) Capitalized interest funded from Bond proceeds, if any, for a reasonable period
of time;
(F) Any other incidental and necessary costs including without limitation any
expenses, fees and charges relating to the acquisition, construction or installation of a Project,
and the making of extraordinary repairs, renewals and replacements, decommissioning or
retirement of any portion of the System, including the cost of temporary employees of the Issuer
retained to carry out duties in connection with the acquisition, construction or erection of a
Project and costs related to transition of such Project into ownership by the Issuer;
(G) Costs incurred directly or indirectly in placing any Project in operation in order
that completion of such Project may occur;
(H) Costs of acquiring an existing utility system from a Person, including but not
limited to the costs relating to any real estate transaction related thereto;
(I) Any other costs relating to the System authorized pursuant to a Supplemental
Resolution of the Issuer and permitted under the laws of the State subject to the prior written
approval of Bond Counsel; and
(J) Reimbursements to the Issuer for any of the above items hereinbefore paid by or
on behalf of the Issuer, to the extent deemed advisable by Bond Counsel.
Notwithstanding anything else in this Resolution to the contrary, in the Event of Default,
the trustee acting for the Holders of Bonds shall, to the extent there are no other available funds
held hereunder, use the remaining funds in the Project Fund to pay principal and interest on the
Series of Bonds to which such funds relate and were provided by.
Temp. Reso. #12859
Page 32
Section 19. Special Obligations of Issuer. The Bonds and any Parity Contract
Obligations shall not be or constitute general obligations or indebtedness of the Issuer as
"bonds" within the meaning of the Constitution of the State, but shall be payable solely from
and secured by a lien upon and a pledge of the Pledged Revenues as herein provided. No
Holder or Holders of any Bonds issued hereunder or Qualified Agreement Provider shall ever
have the right to compel the exercise of the ad valorem taxing power of the Issuer or taxation in
any form of any real or personal property therein, or to compel the Issuer to pay such principal
and interest from any other funds of the Issuer.
The payment of principal of and interest on the Bonds and any Parity Contract
Obligations shall be secured forthwith equally and ratably by, and the Issuer hereby grants to
the Bondholders and any Qualified Agreement Provider (to the extent set forth in the related
Qualified Agreement) an irrevocable lien on the Pledged Revenues, prior and superior to all
other liens or encumbrances on such Pledged Revenues and the Issuer does hereby irrevocably
pledge such Pledged Revenues to the payment of the principal of, redemption premium, if any,
and interest on the Bonds and any Parity Contract Obligations, for the reserves therefor and for
all other payments required hereunder. Such amounts hereby pledged and assigned shall
immediately be subject to the lien of this pledge without any further physical delivery thereof
or any 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, irrespective of
whether such parties have notice thereof.
Section 20. Covenants of the Issuer. For so long as any of the principal of and
interest on any of the Bonds shall be Outstanding and unpaid or until the Issuer has made
provision for payment of principal, interest and redemption premiums, if any, with respect to
the Bonds, as provided herein, the Issuer covenants with the Holders of any and all Bonds as
follows:
(A) REVENUE FUND. All Gross Revenues of the System shall, upon receipt thereof,
be deposited in the Revenue Fund. All deposits into such Revenue Fund shall be deemed to be
held in trust for the purposes herein provided and used only for the purposes and in the
manner herein provided.
(B) DISPOSITION OF REVENUES. All Net Revenues in the Revenue Fund shall be
disposed of monthly, but not later than the twenty-fifth (25th) day of each month commencing
in the month immediately following the delivery of the first Series of Bonds issued hereunder
only in the following manner and the following order of priority:
(1) The Issuer shall first deposit into the Bond Service Fund and credit to the
following accounts, in the following order (except that payments into the Interest
Account and the Parity Contract Obligations Account shall be on parity with each other,
and the payments into the Principal Account and the Redemption Account shall be on a
parity with each other), the following identified sums:
Temp. Reso. #12859
Page 33
(a) Interest Account: Taking into account actual and anticipated
earnings in the Interest Account of the Bond Service Fund within the current
Bond Year, such sum as will be sufficient to pay one -sixth (1/6th) of all interest
coming due on all Outstanding Bonds, on the next interest payment date;
provided, however, that monthly deposits of interest, or portions thereof, shall
not be required to be made to the extent that money on deposit within such
Interest Account is sufficient for such purpose. In the event the Issuer has issued
Variable Rate Bonds pursuant to the provisions hereof, Net Revenues shall be
deposited at such other or additional times and amounts as necessary to pay any
interest coming due on such Variable Rate Bonds on the next interest payment
date, all in the manner provided in a Supplemental Resolution of the Issuer. Any
monthly payment out of Net Revenues to be deposited as set forth above, for the
purpose of meeting interest payments for any Series of Bonds, shall be adjusted,
as appropriate, to reflect the frequency of interest payment dates applicable to
such Series. Moneys in the Interest Account may be used only for the purposes
set forth in this paragraph (a).
(b) Parity Contract Obligations Account: Taking into account the actual
and anticipated earnings in the Parity Contract Obligations Account in the Bond
Service Fund within the current Bond Year, a pro rata estimated amount necessary
to build up over time the amount of any Parity Contract Obligation which will next
be due and payable or reasonably expected to be due and payable under any
Qualified Agreement on the next payment date thereunder; provided, however,
that the monthly amount to be so deposited may be adjusted, as appropriate, to
reflect the frequency of payment dates thereunder (e.g., if such Parity Contract
Obligations are required to be paid semi-annually, the Issuer shall be required to
deposit monthly an amount which is estimated to equal one -sixth (1/6th) of the next
such payment). Moneys in the Parity Contract Obligations Account may be used
only for the purposes set forth in this paragraph (b).
(c) Principal Account: Taking into account actual and anticipated
earnings in the Principal Account of the Bond Service Fund within the current
Bond Year, such sum as will be sufficient to pay one -twelfth (1/12th) of the
principal amount of the Outstanding Bonds which will mature and become due
on such annual maturity dates beginning the month which is twelve (12) months
prior to the first principal maturity date; provided, however, that monthly
deposits for principal, or portions thereof, shall not be required to be made to the
extent that money on deposit within such Principal Account is sufficient for such
purpose. Any monthly payment out of Net Revenues to be deposited as set forth
above, for the purpose of meeting principal payments for any Series of Bonds,
shall be adjusted, as appropriate, to reflect the frequency of principal payment
Temp. Reso. #12859
Page 34
dates applicable to such Series. Moneys in the Principal Account may be used
only for the purposes set forth in this paragraph (c).
(d) Redemption Account: Taking into account actual and anticipated
earnings in the Redemption Account of the Bond Service Fund within the current
Bond Year, such sum as will be sufficient to pay one -twelfth (1/121h) of any
Amortization Installment established for the mandatory redemption of
Outstanding Bonds on such annual maturity date beginning the month which is
twelve (12) months prior to the first Amortization Installment date; provided,
however, that monthly deposits into the Redemption Account, or portions
thereof, shall not be required to be made to the extent that money on deposit in
the Redemption Account is sufficient for such purpose. Any monthly payment
out of Net Revenues to be deposited as set forth above, for the purpose of
meeting Amortization Installments for any Series of Bonds, shall be adjusted, as
appropriate, to reflect the frequency of dates established for Amortization
Installments applicable to such Series. The moneys in the Redemption Account
shall be used solely for the purchase or redemption of the Term Bonds payable
therefrom. The Issuer may at any time purchase any of said Term Bonds at
prices not greater than the then redemption price of said Term Bonds. If the
Term Bonds are not then redeemable prior to maturity, the Issuer may purchase
said Term Bonds at prices not greater than the redemption price of such Term
Bonds on the next ensuing redemption date. If Term Bonds are so purchased by
the Issuer, the Issuer shall credit the account of such purchased Term Bonds
against any current Amortization Installment to be paid by the Issuer. If the
Issuer shall purchase or call for redemption in any year Term Bonds in excess of
the Amortization Installment requirement for such year, such excess of Term
Bonds so purchased or redeemed shall be credited in such manner and at such
times as the Issuer shall determine. Moneys in the Redemption Account in the
Debt Service Fund may be used only for the purposes set forth in this paragraph
(d).
(2) To the extent that the amounts on deposit in the Reserve Fund (or any
subaccount therein) are less than the applicable Reserve Requirement, the Issuer shall
next make deposits into the Reserve Fund (or any subaccount therein) in the manner
described below from moneys remaining in the Revenue Fund. Any withdrawals from
the Reserve Fund (or any subaccount therein) shall be subsequently restored from the
first moneys available in the Revenue Fund, after all required current payments for Cost
of Operation and Maintenance as set forth above and all current applications and
allocations to the Bond Service Fund, including all deficiencies for prior payments have
been made in full. Notwithstanding the foregoing, in case of withdrawal from the
Reserve Fund (or any subaccount therein), in no event shall the Issuer be required to
deposit into the Reserve Fund (or any subaccount therein) an amount greater than that
Temp. Reso. #12859
Page 35
amount necessary to ensure that the difference between the applicable Reserve
Requirement and the amounts on deposit in the Reserve Fund (or any subaccount
therein) on the date of calculation shall be restored not later than sixty (60) months after
the date of such deficiency (assuming equal monthly payments into the Reserve Fund
(or any subaccount therein) for such sixty (60) month period).
Notwithstanding anything herein to the contrary, the Issuer may establish a
separate subaccount in the Reserve Fund for any one or more 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 one or more Series of Bonds is secured
separately by a subaccount of the Reserve Fund, the Holders of such Bonds shall not be
secured by any other moneys in the Reserve Fund or any other subaccount therein.
Moneys in a separate subaccount of the Reserve Fund shall be maintained at the Reserve
Requirement applicable to such Series secured by the subaccount; provided the
Supplemental Resolution or Supplemental Resolutions authorizing such Series of Bonds
may establish the Reserve Requirement relating to such separate subaccount of the
Reserve Fund at such level as the Issuer deems appropriate. Moneys shall be deposited
in the separate subaccounts in the Reserve Fund on a pro-rata basis.
In the event the Issuer shall maintain a Reserve Fund Insurance Policy or Reserve
Fund Letter of Credit and moneys in the Reserve Fund or any subaccount therein, the
moneys shall be used prior to making any disbursements under such Reserve Fund
Insurance Policy or Reserve Fund Letter of Credit.
Notwithstanding the foregoing, in lieu of or in substitution for the required
deposits into the Reserve Fund (or any subaccount therein), the Issuer may cause to be
deposited into the Reserve Fund (or any subaccount therein) a Reserve Fund Insurance
Policy and/or a Reserve Fund Letter of Credit in an amount equal to the difference
between the applicable Reserve Requirement and the sums then on deposit in the
Reserve Fund (or any subaccount therein) plus the amounts to be deposited therein
pursuant to the preceding paragraph.
In the event the Reserve Fund (or any subaccount therein) contains both a
Reserve Fund Insurance Policy or Reserve Fund Letter of Credit and cash, the cash shall
be drawn down completely prior to any draw on the Reserve Fund Insurance Policy or
Reserve Fund Letter of Credit. In the event more than one Reserve Fund Insurance
Policy or Reserve Fund Letter of Credit is on deposit in the Reserve Fund (or any
subaccount therein), amounts required to be drawn thereon shall be done on a pro-rata
basis calculated by reference to the maximum amounts available thereunder. The Issuer
agrees to pay all Reimbursement Obligations in regard to any Reserve Fund Insurance
Policy or Reserve Fund Letter of Credit from the Pledged Revenues. Pledged Revenues
shall be applied in accordance with this Section 20(B)(2), on a pro-rata basis, to pay
Temp. Reso. #12859
Page 36
Reimbursement Obligations to the issuer of the Reserve Fund Insurance Policy or
Reserve Fund Letter of Credit for amounts advanced under such instruments, replenish
any cash deficiencies in the Reserve Fund, and to pay the issuer of the Reserve Fund
Insurance Policy or Reserve Fund Letter of Credit interest on amounts advanced under
such instruments. Notwithstanding anything herein to the contrary, this Resolution
shall not be discharged or defeased while any Reimbursement Obligations are owing in
regard to a Reserve Fund Insurance Policy or Reserve Fund Letter of Credit on deposit
in the Reserve Fund. The Issuer agrees not to optionally redeem or exercise its rights to
an extraordinary mandatory redemption or refund Bonds unless all Reimbursement
Obligations owing in regard to a Reserve Fund Insurance Policy or Reserve Fund Letter
of Credit on deposit in the Reserve Fund have been paid in full.
If five (5) days prior to an interest payment date, principal payment date or date
an Amortization Installment is due or such other period of time as shall be established
pursuant to a Supplemental Resolution, the Issuer shall determine that a deficiency
exists in the amount of moneys available to pay in accordance with the terms hereof
interest, principal or Amortization Installment due on the Bonds on such date, the Issuer
shall immediately notify (1) the issuer of the applicable Reserve Fund Insurance Policy
and/or the issuer of the Reserve Fund Letter of Credit and submit a demand for payment
pursuant to the provisions of such Reserve Fund Insurance Policy and/or Reserve Fund
Letter of Credit, and (2) the Paying Agent of the amount of such deficiency and the date
on which such payment is due, and shall take all action to cause such issuer to provide
moneys sufficient to pay all amounts due on such interest payment date.
The Issuer may evidence its obligation to reimburse the issuer of any Reserve
Fund Letter of Credit or Reserve Fund Insurance Policy by executing and delivering a
reimbursement agreement therefore which evidences a Reimbursement Obligation;
provided, however, any reimbursement agreement (1) shall not be or create 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 (2) shall be payable or obligate the Issuer to pay solely
from the Pledged Revenues in a manner which is not inconsistent with the terms hereof.
Notwithstanding anything herein to the contrary, Reimbursement Obligations
relating to a Reserve Fund Insurance Policy or Reserve Fund Letter of Credit for any
fees, expenses, claims or draws upon such Reserve Fund Insurance Policy or Reserve
Fund Letter of Credit shall be subordinate to the payment of debt service on the Bonds
and to the payment of any Parity Contract Obligations. The right of the issuer of a
Reserve Fund Insurance Policy or Reserve Fund Letter of Credit to payment of
reimbursement of its fees and expenses shall be subordinated to cash replenishment of
the Reserve Fund, and subject to the second succeeding sentence, its right to
reimbursement for claims or draws shall be prior to the replenishment of the cash drawn
from the Reserve Fund. The Reserve Fund Insurance Policy or Reserve Fund Letter of
Temp. Reso. #12859
Page 37
Credit shall provide for a revolving feature under which the amount available
thereunder will be reinstated to the extent of any reimbursement of draws or claims
paid. If the revolving feature is suspended or terminated for any reason, the right of the
issuer of the Reserve Fund Insurance Policy or Reserve Fund Letter of Credit
reimbursement will be further subordinated to cash replenishment of the Reserve Fund
to an amount equal to the difference between the full original amount available under
the Reserve Fund Insurance Policy or Reserve Fund Letter of Credit and the amount
then available for further draws or claims.
If any Reserve Fund Letter of Credit or Reserve Fund Insurance Policy shall
terminate prior to the stated expiration date thereof, the Issuer agrees that it shall fund
the Reserve Fund over a period not to exceed twelve (12) months during which it shall
make consecutive equal monthly payments in order that the amount on deposit in the
Reserve Fund shall equal the Reserve Requirement; provided, the Issuer may obtain a
new Reserve Fund Letter of Credit or a new Reserve Fund Insurance Policy in lieu of
making the payments required by this paragraph.
Moneys in the Reserve Fund and subaccounts therein shall be used only for the
purpose of the payment of Amortization Installments, principal of, or interest on the
Outstanding Bonds secured thereby when the other moneys allocated to the Bond
Service Fund are insufficient therefor, and for no other purpose.
Permitted Investments on deposit in the Reserve Fund (or any subaccount
therein) shall be valued at fair value pursuant to generally accepted accounting
principles at least annually. In the event of the refunding of any Series of Bonds, the
Issuer may withdraw from the Reserve Fund or subaccount securing such Series, all or
any portion of the amounts accumulated therein with respect to the Bonds being
refunded and deposit such amounts as required by the Supplemental Resolution
authorizing the refunding of such Series of Bonds; provided that such withdrawal shall
not be made unless (a) immediately thereafter, the Bonds being refunded shall be
deemed to have been paid pursuant to the provisions hereof, and (b) the amount
remaining in the Reserve Fund (or any subaccount therein) after giving effect to the
issuance of such refunding obligations and the disposition of the proceeds thereof shall
not be less than the applicable Reserve Requirement for any Bonds then Outstanding
which are secured thereby.
(3) From the moneys remaining in the Revenue Fund, the Issuer shall next
deposit into the Subordinated Debt Service Fund an amount required to be paid as
provided in the resolution or agreement of the Issuer authorizing such Subordinated
Debt, but for no other purposes.
(4) The Issuer shall next apply and deposit monthly from the moneys
remaining on deposit in the Revenue Fund into the Renewal, Replacement and
Temp. Reso. #12859
Page 38
Improvement Fund, an amount at least equal to one -twelfth (1/12th) of five percent (5%)
of the Gross Revenues received during the immediately preceding Fiscal Year. The
moneys in the Renewal, Replacement and Improvement Fund shall be used only for the
purpose of paying the cost of extraordinary repairs, extensions, enlargements or
additions to, or the replacement of capital assets of the System or emergency repairs
thereto. Notwithstanding anything herein to the contrary, the minimum balance in the
Renewal, Replacement and Improvement Fund shall be an amount equal to five
hundred thousand dollars ($500,000), or such other amount as may be determined from
time to time by the Consulting Engineers. Funds on hand in the Renewal, Replacement
and Improvement Fund may be used to pay current Cost of Operation and Maintenance
to the extent moneys on deposit in the Revenue Fund are insufficient for such purposes.
The moneys on deposit in such fund may also be used to supplement the Reserve Fund
(or any subaccount therein), if necessary, in order to prevent a default in the payment of
the principal and interest on the Bonds.
(5) The Issuer may next make monthly transfers of remaining Gross
Revenues of the System to its General Fund as payments in lieu of taxes; provided,
however, such transfers in any Fiscal Year shall not exceed ten percent (10%) of Gross
Revenues of the System received by the Issuer during the immediately preceding Fiscal
Year.
(6) The balance of any moneys remaining in the Revenue Fund after the
above required payments have been made shall be deposited into the Surplus Fund and
may be used for any lawful purpose of the System; provided, however, so long as the
amount on deposit in the Surplus Fund exceeds $5,000,000 (after giving effect to the
proposed interfund loan or loans), the Issuer may make an interfund loan or loans for
purposes of financing the Issuer's various non -System capital improvements to the
extent permitted by law and approved by the City Commission following a
recommendation from the City Manager and Financial Services Director, and only if all
current payments, including any deficiencies for prior payments, have been made in full
and the Issuer is in full compliance with all the covenants and provisions of this
Resolution.
(C) INVESTMENTS. Moneys in any fund or account created hereunder may be
invested and reinvested in Permitted Investments which mature not later than the dates on
which the moneys on deposit therein will be needed for the purpose of such fund. All income
on such investments, except as otherwise provided, shall be deposited in the respective funds
and accounts from which such investments were made and be used for the purposes thereof
unless and until the maximum required amount (or, with respect to the Project Fund, the
amount required to acquire, construct and erect the Project) is on deposit therein, and thereafter
shall be deposited in the Revenue Fund.
Temp. Reso. #12859
Page 39
In determining the amount of any of the payments required to be made pursuant to this
Section 20(C), credit may be given for all investment income accruing to the respective funds
and accounts described herein, except as otherwise provided.
(D) OPERATION AND MAINTENANCE. The Issuer will maintain the System and
all parts thereof in good condition and will operate the same in an efficient and economical
manner, making such expenditures for equipment and for renewals, repairs and replacements
as may be proper for the economical operation and maintenance thereof.
(E) RATE COVENANT. The Issuer will fix, establish, revise from time to time
whenever necessary, maintain and collect always such fees, rates, rentals and other charges for
the use of the products, services and facilities of the System which will always provide, Net
Revenues in each Fiscal Year sufficient to pay one hundred ten percent (110%) of the Bond
Service Requirement on all Outstanding Bonds in the applicable Bond Year.
In addition to compliance with the paragraph above, Net Revenues in each Fiscal Year
shall also be sufficient to provide one hundred percent (100%) of the Bond Service Requirement
on all Outstanding Bonds in the applicable Bond Year, any amounts required by the terms
hereof to be deposited into the Reserve Fund (including any subaccount therein) or with any
Credit Facility Issuer as a result of a withdrawal from the Reserve Fund (including any
subaccount therein), the Renewal, Replacement and Improvement Fund and debt service on
other obligations payable from the Revenues of the System, and other payments, and all
allocations and applications of revenues herein required in such Fiscal Year.
Net Revenues shall not be reduced so as to render them insufficient to provide revenues
for the purposes provided therefor by this Resolution.
(F) BOOKS AND ACCOUNTS; AUDIT. The Issuer shall keep proper books, records
and accounts, separate and apart from all other records and accounts, showing correct and
complete entries of all transactions of the System, and the Holders of any of the Bonds or any
duly authorized agent or agents of such Holders shall have the right at any and all reasonable
times to inspect such books, records and accounts. The Issuer shall cause, within two hundred
seventy (270) days following the close of each Fiscal Year of the Issuer, an audit of such books,
records and accounts to be made by an independent firm of certified public accountants.
Copies of each such audit report shall be placed on file with the Issuer and be made
available at reasonable times for inspection by Holders of the Bonds.
(G) DISPOSITION OF SYSTEM.
The System may be sold or otherwise disposed of as a whole or substantially as a whole,
only if the net proceeds to be realized, together with other moneys available for such purpose,
shall be sufficient to fully retire all of the Outstanding Bonds issued pursuant to this Resolution
Temp. Reso. #12859
Page 40
and all interest thereon to their respective dates of maturity or earlier redemption dates and to
make any termination payments required under any Qualified Agreement. The proceeds from
such sale or other disposition of the System shall immediately be deposited first in the Bond
Service Fund and then in the Subordinated Debt Service Fund and shall be used only for the
purpose of paying Parity Contract Obligations, and paying the principal of and interest on the
Bonds and Subordinated Debt as the same shall become due, or the redemption of callable
Bonds and Subordinated Debt, or the purchase of Bonds and Subordinated Debt at a price not
greater than the redemption price of said Bonds and Subordinated Debt, or, if the Bonds or
Subordinated Debt are not then redeemable prior to maturity, at prices not greater than the
redemption price of such Bonds or Subordinated Debt on the next ensuing redemption date.
The foregoing provision notwithstanding, the Issuer shall have and hereby reserves the
right to sell, lease, exchange or otherwise dispose of any of the tangible property or ownership
interest in tangible property comprising a part of the System in the following manner, if any one
of the following conditions exist: (a) such property is not necessary for the operation of the
System or (b) such property is not useful in the operation of the System or (c) such property is
not profitable in the operation of the System.
Prior to any sale, lease, exchange or other disposition of said property:
(1) if the amount to be received therefor is not in excess of one-half (1/2) of one
percent (1%) of the value of the gross plant investment in the System, the officer of the Issuer
charged with the normal acquisition, construction, operation, maintenance and repair of the
portion of the System for which disposition is sought, may determine that such property
comprising a part of such System is either no longer necessary, useful or profitable in the
operation thereof.
(2) if the amount to be received therefor is in excess of one-half (1/2) of one percent
(1%) of the value of the gross plant investment in the System, the officer of the Issuer charged
with the normal acquisition, construction, operation, maintenance and repair of the portion of
the System for which disposition is sought and the Consulting Engineers shall each first make a
finding in writing determining that such property comprising a part of such System is either no
longer necessary, useful or profitable in the operation thereof, and the Issuer shall, by resolution
duly adopted, approve and concur in the finding of such authorized officer and the Consulting
Engineers.
The net proceeds realized from such disposal of a part of the System shall be deposited
in the Renewal, Replacement and Improvement Fund to the extent necessary to make the
amount on deposit therein equal to the amount then required to be on deposit therein; and any
additional moneys not needed for said fund shall be used for any capital expenditures in
connection with the System or the purchase or redemption of Outstanding Bonds.
Temp. Reso. #12859
Page 41
Notwithstanding any other provision of this Section 20(G) or this Resolution to the
contrary, except for the initial paragraph of this Section 20(G), the Issuer may sell, lease,
exchange or otherwise dispose of tangible property or an ownership interest in tangible
property comprising a part of the System provided the duly authorized officer charged with the
normal acquisition, construction, operation, maintenance and repair of the portion of the
System for which disposition is sought, and the Qualified Independent Consultant each make a
finding in writing, adopted and confirmed by resolution of the Issuer, determining that (i) such
sale, lease, exchange or other disposition will not materially impair or restrict the Issuer's ability
to realize Gross Revenues in compliance with the requirements therefor as set forth herein, and
(ii) such sale, lease, exchange or other disposition is in the economic best interests of the Issuer.
Notwithstanding any other provision of this Section 20(G) or this Resolution to the
contrary, the Issuer may transfer ownership and/or operation of all or a portion of the System to
any public body authorized by the laws of the State to own and/or operate such System on an
installment sale basis provided that the Issuer (i) has received an opinion of Bond Counsel
stating the federal income tax exemption of the interest on the Bonds (not including taxable
Bonds) will not be affected and has received an opinion of Bond Counsel stating that such sale
is not prohibited by any applicable Florida law, and (ii) the Issuer adopts a resolution to the
effect that, based upon such certificates and opinions of its Consulting Engineers, independent
certified public accountants, Bond Counsel, Financial Advisor or other Qualified Independent
Consultant as the Issuer shall deem necessary, desirable or appropriate, such transfer will not
materially adversely affect the rights of the Holders of the Bonds.
(H) INSURANCE. The Issuer shall provide protection for the System both in
accordance with the requirements of all agreements, if any, to which the Issuer may at the time
be a party with respect to joint ownership of properties by the Issuer with others which is part
of the System, and in accordance with Prudent Utility Practice. Said protection may consist of
insurance, self-insurance and indemnities. The Issuer will keep, or cause to be kept, the works,
plants and facilities comprising the properties of the System insured, and will carry such other
insurance against fire and other risks, accidents or casualties at least to the extent and of the
kinds that insurance is usually carried by utilities operating like properties. Any insurance shall
be in the form of policies or contracts for insurance with insurers of good standing, shall be
payable to the Issuer and may provide for such deductibles, exclusions, limitations, restrictions,
and restrictive endorsements customary in policies for similar coverage issued to entities
operating properties similar to the properties of the System. Any self-insurance shall be in the
amounts, manner and of the type provided by entities operating properties similar to the
properties of the System. In the event of any loss or damage to the System covered by
insurance, the Issuer will, with respect to each such loss, promptly repair, reconstruct or replace
the parts of the System affected by such loss or damage to the extent necessary to the proper
conduct of the operation of the business of the System in accordance with Prudent Utility
Practice, shall cause the proceeds of such insurance to be applied for that purpose to the extent
required therefor, and pending such application, shall hold the proceeds of any insurance
Temp. Reso. #12859
Page 42
policy covering such damage or loss in trust to be applied for that purpose to the extent
required therefor. Any excess insurance proceeds received by the Issuer may be used by the
Issuer for any lawful purpose. Notwithstanding the foregoing or any provisions of this
Resolution to the contrary, the Issuer shall not be required to maintain insurance with respect to
facilities for which insurance shall not be available at reasonable cost or for facilities which, in
accordance with Prudent Utility Practice, are not customarily insured.
(I) NO FREE SERVICE. To the extent permitted by law, so long as any Bonds are
Outstanding, the Issuer shall not furnish or supply the facilities, services and commodities of
the System either free of charge or for a nominal charge to any person, firm or corporation,
public or private, including the Issuer's departments, agencies and instrumentalities which avail
themselves of the services of the System. To the extent permitted by law, the Issuer shall
promptly enforce the payment of any and all accounts owing to the Issuer and delinquent, by
discontinuing service or by filing suits, actions or proceedings, or by both discontinuance of
service and filing suit.
(J) MANDATORY CUT OFF. To the extent permitted by law, the Issuer shall
establish a written policy consistent with sound business judgment for the disconnection from
the System of any customer who fails to pay for services rendered by the System, and shall
enforce such policy diligently and fairly.
(K) ENFORCEMENT OF COLLECTIONS. The Issuer will diligently enforce and
collect the rates, fees and other charges for the services and facilities of the System and will take
all steps, actions and proceedings for the enforcement and collection of such rates, charges and
fees as shall become delinquent to the full extent permitted or authorized by law; and will
maintain accurate records with respect thereof. All such fees, rates, charges and revenues shall,
as collected, be held in trust to be applied as herein provided.
(L) OPERATING BUDGET. The Issuer shall annually, prior to commencement of
each of its Fiscal Years, prepare and adopt a budget of the estimated expenditures for the
operation and maintenance of the System during such next succeeding Fiscal Year. In the event
that electronic copies of the budgets are not available on the Issuer's official website, and upon
reasonable request in writing by any Holder or Holders of Bonds or anyone acting for and on
behalf of such Holder or Holders, the Issuer shall mail copies of such annual budgets (including
any amendments thereto) to such Holder or Holders of Bonds or to anyone acting for and on
behalf of such Holder or Holders who shall file his/her address with the Issuer. Bondholders
shall pay reasonable actual cost of printing and mailing of such copies.
(M) MANDATORY CONNECTIONS; NO COMPETING SYSTEM. So long as service
is in fact available as reasonably determined by the Issuer, the Issuer will, to the full extent
permitted by law, require all lands, buildings and structures within the area being served by the
System, to connect with and use such facilities within one year after notification. To the extent
permitted by law, the Issuer will not grant a franchise for the operation of any competing utility
Temp. Reso. #12859
Page 43
system or systems within the area served by the System until all Bonds issued hereunder,
together with the interest thereon, and premium, if any, have been paid in full.
Notwithstanding the foregoing, the Issuer shall not be required to duplicate services being
provided by private or public utilities in the area being served by such private or public utilities
on the date of issuance of the first Series of Bonds hereunder. In addition, the Issuer shall not be
prohibited from allowing other private or public utilities to provide water or sewer services
within the area being served by the System, if the Issuer shall not be providing such service in
such area on that date. Nothing herein shall be deemed to constitute the approval of the Issuer
for any private or public utility (other than the System) to provide any services within the
boundaries of the Issuer or within the area being served by the System or within any other area
of the Issuer.
(N) SUPERVISORY PERSONNEL. The Issuer, in operating the System, will employ
or designate, as manager, one or more of its qualified employees, or an independent contractor,
who have demonstrated ability and experience in operating similar facilities, and will require
all such employees or independent contractors, as the case may be, who may have possession of
money derived from the operation of the System to be covered by a fidelity bond, written by a
responsible indemnity company in amounts fully adequate to protect the Issuer from loss.
(0) PAYMENT OF TAXES, ASSESSMENTS AND OTHER CLAIMS. The Issuer shall
from time to time duly pay and discharge, or cause to be paid and discharged, all taxes,
assessments and other governmental charges, or payments in lieu thereof, lawfully imposed
upon the properties constituting the System or the Gross Revenues when the same shall become
due, as well as all lawful claims for labor and materials and supplies which, if not paid, might
become a lien or charge upon such properties or any part thereof, or upon the Gross Revenues
or which might in any way impair the security of the Bonds, except assessments, charges or
claims which the Issuer shall in good faith contest by proper legal proceedings.
(P) ISSUANCE OF OTHER OBLIGATIONS. The Issuer shall issue no bonds or
obligations of any kind or nature payable from or enjoying a lien on the Pledged Revenues if
such obligations have priority over the Bonds or any Parity Contract Obligations with respect to
payment or lien, nor shall the Issuer create or cause or permit to be created any debt, lien,
pledge, assignment, encumbrance or other charge having priority to or being on a parity with
the lien of the Bonds and any Parity Contract Obligations upon said Pledged Revenues.
Notwithstanding any other provision in this Section 20(P), the Issuer may issue Additional
Parity Obligations under the conditions and in the manner provided herein. Any obligations of
the Issuer, other than the Bonds and any Parity Contract Obligations, which are payable from
the Pledged Revenues shall contain an express statement that such obligations are junior and
subordinate in all respects to the Bonds and any Parity Contract Obligations as to lien on and
source and security for payment from such Pledged Revenues.
Temp. Reso. #12859
Page 44
(Q) ISSUANCE OF ADDITIONAL PARITY OBLIGATIONS. No Additional Parity
Obligations shall be issued after the issuance of the Series 2009 Bonds herein authorized,
except upon the conditions and in the manner hereinafter provided:
(1) There shall have been obtained and filed with the Clerk a certificate of the
Director of Financial Services stating: (a) that the books and records of the Issuer relative
to the System and the Net Revenues have been reviewed by the Director of Financial
Services; and (b) that the amount of the Net Revenues derived for any consecutive
twelve (12) months out of the preceding thirty (30) months preceding the date of
issuance of the proposed Additional Parity Obligations (the "Test Period") adjusted as
provided in paragraphs (2), (3), (4), (5) and/or (6) below, is equal to and not less than
110% of the Maximum Bond Service Requirement becoming due in any Bond Year
thereafter on (A) all Bonds issued under this Resolution, if any, then Outstanding, and
(B) on the Additional Parity Obligations with respect to which such certificate is made.
(2) Upon recommendation of the Qualified Independent Consultants, the
Net Revenues certified pursuant to (b) in the previous paragraph may be adjusted for
purposes of this Section 20(Q) by including: (a) 100% of the additional Net Revenues
which in the opinion of the Qualified Independent Consultant would have been derived
by the Issuer from rate increases adopted before the Additional Parity Obligations are
issued, if such rate increases had been adopted before the issuance of the Additional
Parity Obligations, and (b) 100% of the additional Net Revenues estimated by the
Qualified Independent Consultant to be derived during the first full twelve month
period after the facilities of the System are extended, enlarged, improved or added to
with the proceeds of the Additional Parity Obligations with respect to which such
certificate is made.
(3) Upon recommendation of the Qualified Independent Consultants, if the
Additional Parity Obligations are to be issued for the purpose of acquiring an existing
water system and/or sewer system and/or any other utility system in accordance with
Section 26 hereof, the Net Revenues certified pursuant to Section 20(Q)(1)(b) may be
adjusted by including: 100% of the additional estimated Net Revenues which in the
written opinion of the Qualified Independent Consultants will be derived from the
acquired facilities during the first full 12-month period after the issuance of such
Additional Parity Obligations (the Qualified Independent Consultants' report shall be
based on the actual operating revenues of the acquired utility for a recent 12-month
period adjusted to reflect the Issuer's ownership and the Issuer's rate structure in effect
with respect to the System at the time of the issuance of the Additional Parity
Obligations).
(4) Upon recommendation of the Qualified Independent Consultants, if the
number of connections as of the first day of the month in which the proposed Additional
Temp. Reso. #12859
Page 45
Parity Obligations are to be issued exceeds the average number of such connections
during such twelve (12) consecutive month period, then the Net Revenues certified
pursuant to Section 20(Q)(1)(b) may be adjusted to include the Net Revenues which
would have been received in such twelve (12) consecutive months if those additional
connections had also been connected to the System during all of such twelve (12)
consecutive months.
(5) Upon recommendation of the Qualified Independent Consultant, if the
Issuer shall have entered into a contract, which contract shall be for a duration of not
less than the final maturity of the proposed Additional Parity Obligations, with any
public body, whereby the Issuer shall have agreed to furnish services for the collection,
treatment or disposal of sewage or agreed to furnish services in connection with any
water system or any other utility system, then the Net Revenues certified pursuant to
Section 20(Q)(1)(b) may be increased (to the extent such amounts were not reflected in
such Net Revenues) by the minimum amount which the public body shall guarantee to
pay in any one year for the furnishing of services by the Issuer, after deducting from
such payment the estimated Cost of Operation and Maintenance attributable in such
year to such services.
(6) Upon recommendations of the Qualified Independent Consultants, if
there is an estimated increase in Net Revenues to be received by the Issuer as a result of
additions, extensions or improvements to the System during the period of three (3) years
following the completion of such additions, extensions or improvements financed with
the proceeds of Bonds or Additional Parity Obligations, then the Net Revenues derived
from the System certified pursuant to Section 20(Q)(1)(b) may be increased by fifty
percent (50%) of the average annual additional Net Revenues calculated for such three
year period.
(7) The Issuer need not comply with the provisions of paragraph (1) of this
Section 20(Q) if and to the extent the Additional Parity Bonds to be issued are refunding
bonds, if the Issuer shall cause to be delivered a certificate of the Director of Financial
Services of the Issuer setting forth the Maximum Annual Debt Service Requirement (i)
for the Bonds then Outstanding and (ii) for all Series of Bonds to be immediately
Outstanding thereafter and stating that the Maximum Annual Debt Service Requirement
pursuant to (ii) above is not greater than that set forth pursuant to (i) above.
Furthermore, the Issuer need not comply with the provisions of paragraph (1) of this
Section 20(Q) if and to the extent the Additional Parity Bonds to be issued legally
defease all theretofore Outstanding Bonds.
(8) The Issuer need not comply with the provisions of paragraph (1) of this
Section 20(Q) if and to the extent the Bonds to be issued are for the purpose of providing
any necessary additional funds required for completion of any improvements to the
Temp. Reso. #12859
Page 46
System ("Completion Bonds") if originally financed with the proceeds of Bonds;
provided that such Completion Bonds for which the Issuer need not comply with the
provision of such paragraph (1) of this Section 20(Q) may not exceed 10% of the total
principal amount of Bonds estimated to be required for such improvements to the
System at the time of issuance of the initial Series of Bonds to finance such
improvements.
(9) The Director of Financial Services of the Issuer shall have certified that
the Issuer is not in default in the carrying out of any of the obligations assumed under
this Resolution and no event of default shall have occurred under this Resolution and
shall be continuing, and all payments required by this Resolution to be made into the
funds and accounts established hereunder shall have been made to the full extent
required.
(10) The Supplemental Resolution authorizing the issuance of the Additional
Parity Obligations shall recite that all of the covenants contained herein will be
applicable to such Additional Parity Obligations.
(R) RATE STABILIZATION FUND. The Issuer may transfer into the Rate
Stabilization Fund such moneys which are on deposit in the Surplus Fund as it deems
appropriate. The Issuer may transfer such amount of moneys from the Rate Stabilization Fund
to the Revenue Fund as it deems appropriate; provided, however, that 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), moneys in the Rate Stabilization Fund shall be
applied for the payment into the Interest Account, the Parity Contract Obligation Account, the
Principal Account and the Redemption Account when the moneys therein are insufficient to
pay the principal of and interest on the Bonds coming due and to pay any Parity Contract
Obligations, but only to the extent moneys transferred from the Surplus Fund and Renewal,
Replacement and Improvement Fund for such purposes pursuant to Sections 20(B)(4) and
20(B)(5) hereof, shall be inadequate to fully provide for such insufficiency.
Section 21. Defaults; Events of Default and Remedies. Except as provided below, if
any of the following events occur, it is hereby defined as and declared to be and to constitute an
"Event of Default:"
(A) Default in the due and punctual payment of any interest on the Bonds;
(B) Default in the due and punctual payment of the principal of and premium, if
any, on any Bond, at the stated maturity thereof, or upon proceedings for redemption thereof,
(C) Default in the performance or observance of any other of the covenants,
agreements or conditions on the part of the Issuer contained in this Resolution or in the Bonds
and the continuance thereof for a period of thirty (30) days after written notice to the Issuer
Temp. Reso. #12859
Page 47
given by the Holders of not less than twenty-five percent (25%) of aggregate principal amount
of Bonds then Outstanding (provided, however, that with respect to any obligation, covenant,
agreement or condition which requires performance by a date certain, if the Issuer performs
such obligation, covenant, agreement or condition within thirty (30) days of written notice as
provided above, the default shall be deemed to be cured);
(D) Failure by the Issuer promptly to remove any execution, garnishment or
attachment of such consequence as will materially impair its ability to carry out its obligations
hereunder; or
(E) Any act of bankruptcy or the rearrangement, adjustment or readjustment of the
obligations of the Issuer under the provisions of any bankruptcy or moratorium laws or similar
laws relating to or affecting creditors' rights.
The term "default" shall mean default by the Issuer in the performance or observance of
any of the covenants, agreements or conditions on its part contained in this Resolution, any
Supplemental Resolution or in the Bonds, exclusive of any period of grace required to constitute
a default or an "Event of Default" as hereinabove provided.
Notwithstanding the foregoing, the occurrence of any default under a Qualified
Agreement, including without limitation failure on the part of the Issuer to pay Parity Contract
Obligations or to pay a termination fee under a Qualified Agreement, shall not be construed as or
deemed to constitute an "Event of Default" hereunder; rather, such occurrence shall be remedied
pursuant to such Qualified Agreement and applicable legal and equitable principles taking into
account the parity status as to lien on Pledged Revenues which the counterparty to such Qualified
Agreement enjoys as to Parity Contract Obligations only, relative to that of the Bondholders and
their rights to payments hereunder.
For purposes of Section 21(A) and (B) hereof, no effect shall be given to any payments
made under any Bond Insurance Policy.
Any Holder of Bonds issued under the provisions hereof or any trustee acting for the
Holders of such Bonds may, either at law or in equity, by suit, action, mandamus or other
proceedings in any court of competent jurisdiction, protect and enforce any and all rights,
including the right to the appointment of a receiver, existing under State or federal law, or
granted and contained herein, and may enforce and compel the performance of all duties
required herein or by any applicable law to be performed by the Issuer or by any officer thereof.
Nothing herein, however, shall be construed to grant to any Holder of the Bonds any
lien on any property of the Issuer, except the Pledged Revenues.
The foregoing notwithstanding:
Temp. Reso. #12859
Page 48
(i) No remedy conferred upon or reserved to the Bondholders is intended to
be exclusive of any other remedy, but each remedy shall be cumulative and shall be in
addition to any other remedy given to the Bondholders hereunder.
(ii) No delay or omission to exercise any right or power accruing upon any
default or Event of Default shall impair any such right or power or shall be construed to
be a waiver of any such default or acquiescence therein, and every such right and power
may be exercised as often as may be deemed expedient.
(iii) No waiver of any default or Event of Default hereunder by the
Bondholders shall extend to or shall affect any subsequent default or Event of Default or
shall impair any rights or remedies consequent thereon.
(iv) Acceleration of the payment of principal of and interest on the Bonds
shall not be a remedy hereunder in the case of an Event of Default.
Upon the occurrence of an Event of Default, and upon the filing of a suit or other
commencement of judicial proceedings to enforce the rights of the Bondholders under this
Resolution, the Bondholders shall be entitled, as a matter of right, to the appointment of a
receiver or receivers of the System and the funds pending such proceedings, with such powers
as the court making such appointment shall confer.
Notwithstanding any provision of this Resolution to the contrary, for all purposes of this
Section 21, except the giving of notice of any Event of Default to the Holder of the Bonds, any
Insurer shall be deemed to be the Holder of the Bonds it has insured.
On the occurrence of an Event of Default, to the extent such rights may then lawfully be
waived, neither the Issuer nor anyone claiming through or under it, shall set up, claim or seek
to take advantage of any stay, extension or redemption laws now or hereafter in force, in order
to prevent or hinder the enforcement of this Resolution, and the Issuer, for itself and all who
may claim through or under it, hereby waives, to the extent it may lawfully do so, the benefit of
all such laws and all right of redemption to which it may be entitled.
Within 30 days of knowledge thereof, both the Issuer and the Paying Agent shall
provide notice to any and all Insurers of Bonds, if any, of the occurrence of any Event of
Default.
The respective Insurers of Bonds, if any, shall be included as a party in interest and as a
party entitled to (i) notify the Issuer or any applicable receiver of the occurrence of an Event of
Default, and (ii) request the receiver to intervene in judicial proceedings that affect the Bonds or
the security therefor. The receiver is required to accept notice of default from each Insurer of
Bonds.
Temp. Reso. #12859
Page 49
Anything in this Resolution to the contrary notwithstanding, upon the occurrence and
continuance of an Event of Default, the Insurers of Bonds, if any, in default shall be entitled to
control and direct the enforcement of all rights and remedies granted to the Bondholders under
this Resolution, and the Insurers of Bonds, if any, in default shall also be entitled to approve all
waivers of events of default.
Section 22. Amending and Supplementing of Resolution without Consent of Holders
of Bonds. The Issuer, from time to time and at any time and without the consent or concurrence
of any Holder of any Bonds, may adopt a Supplemental Resolution amendatory hereof or
supplemental hereto if the provisions of such Supplemental Resolution shall not materially
adversely affect the rights of the Holders of the Bonds then Outstanding, for any one or more of
the following purposes:
(A) To make any changes or corrections in this Resolution as to which the Issuer
shall have been advised by Bond Counsel that are required for the purpose of curing or
correcting any ambiguity or defective or inconsistent provisions or omission or mistake or
manifest error contained in this Resolution, or to insert in this Resolution such provisions
clarifying matters or questions arising under this Resolution as are necessary or desirable;
(B) To add additional covenants and agreements of the Issuer for the purpose of
further securing the payments of the Bonds and any Parity Contract Obligations;
(C) To surrender any right, power or privilege reserved to or conferred upon the
Issuer by the terms of this Resolution;
(D) To confirm, as further assurance, any lien, pledge or charge or the subjection to
any lien, pledge or charge, created or to be created by the provisions of this Resolution;
(E) To grant to or confer upon the Holders or any Qualified Agreement Provider any
additional right, remedies, powers, authority or security that lawfully may be granted to or
conferred upon them;
(F) To assure compliance with federal "arbitrage" provisions in effect from time to
time;
(G) To provide such changes as may be necessary in order to adjust the terms hereof
(but not including the provisions of Section 20(E) and Section 20(Q) hereof) so as to facilitate the
issuance of Variable Rate Bonds, Option Bonds, the execution of any Qualified Agreement, or to
obtain a Credit Facility;
(H) To provide for the combination of the System with any other utility provided the
conditions set forth in Section 26 hereof are satisfied;
Temp. Reso. #12859
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(I) To provide for the transfer of the ownership and/or operation of the System
pursuant to a governmental reorganization as set forth in Section 25 hereof;
(J) To facilitate the issuance of utility cost containment bonds by some legal entity
other than the Issuer to be secured by a "utility project charge" or the like as contemplated in
Section 27 hereof; or
(K) To modify any of the provisions of this Resolution in any other aspects provided
that such modifications shall not be effective until after the Bonds Outstanding at the time such
Supplemental Resolution is adopted shall cease to be Outstanding, or until the holders thereof
consent thereto pursuant to Section 23 hereof, and any Bonds issued subsequent to any such
modification shall contain a specific reference to the modifications contained in such
Supplemental Resolution.
Except for Supplemental Resolutions providing for the issuance of Bonds pursuant
hereto, the Issuer shall not adopt any Supplemental Resolution authorized by the foregoing
provisions of this Section unless, in the opinion of Bond Counsel, the adoption of such
Supplemental Resolution is permitted by the foregoing provisions of this Section.
Notwithstanding anything else in this Resolution to the contrary, any amendment or
supplement to this Resolution, with the exception of the Supplemental Resolution relating to
the issuance of Additional Parity Obligations, shall be subject to the prior written consent of
each of the Insurers of the Bonds, if any. Each of the Insurers of the Bonds shall be provided
with a full transcript of all proceedings relating to the execution of any such amendment or
supplement.
Section 23. Amendment of Resolution with Consent of Holders of Bonds. Except as
provided in Section 22 hereof, no material modification or amendment of this Resolution or of
any resolution supplemental hereto shall be made without the consent in writing of the Holders
of fifty-one percent (51%) or more in the principal amount of the Bonds of each Series so
affected and then Outstanding and any Qualified Agreement Provider. For purposes of this
Section, to the extent any Bonds are insured by a Bond Insurance Policy or are secured by a
Credit Facility and such Bonds are then rated in as high a rating category as the rating category
in which such Bonds were rated at the time of initial issuance and delivery thereof by either
S&P, Moody's or Fitch or successors and assigns, then the consent of the Insurer or Insurers of
such Bond Insurance Policy or the issuer or issuers of such letter of credit shall be deemed to
constitute the consent of the Holder of such Bonds. No modification or amendment shall
permit a change in the maturity of such Bonds or a reduction in the rate of interest thereon or in
the amount of the principal obligation thereof or reduce the percentage of the Holders of the
Bonds required to consent to any material modification or amendment hereof without the
consent of the Holder or Holders of all such obligations. For purposes of the immediately
preceding sentence, the issuer or issuers of a Bond Insurance Policy or a Credit Facility shall not
consent on behalf of the Holders of the Bonds. No amendment or supplement pursuant to this
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Section 23 (but not including Section 22 hereof) shall be made without the consent of each of the
Insurers of Bonds.
Notwithstanding anything else in this Resolution to the contrary, any amendment or
supplement to this Resolution, with the exception of the Supplemental Resolution relating to
the issuance of Additional Parity Obligations, shall be subject to the prior written consent of
each of the Insurers of the Bonds. Any rating agency rating the Bonds must receive notice of
each amendment and a copy thereof at least fifteen (15) days in advance of its execution or
adoption. Each of the Insurers of the Bonds shall be provided with a full transcript of all
proceedings relating to the execution of any such amendment or supplement.
Section 24. Defeasance. The covenants and obligations of the Issuer shall be defeased
and discharged under terms of this Resolution as follows:
(A) If the Issuer shall pay or cause to be paid, or there shall otherwise be paid, to any
Qualified Agreement Provider any and all Parity Contract Obligations and to the Holders of all
Bonds the principal, redemption premium, if any, and interest due or to become due thereon, at
the times and in the manner stipulated herein, then the pledge of the Pledged Revenues and all
covenants, agreements and other obligations of the Issuer to any Qualified Agreement Provider
and the Bondholders shall thereupon cease, terminate and become void and be discharged and
satisfied. If the Issuer shall pay or cause to be paid, or there shall otherwise be paid, to any
Qualified Agreement Provider any and all Parity Contract Obligations and to the Holders of
any Outstanding Bonds the principal, redemption premium, if any, and interest due or to
become due thereon, at the times and in the manner stipulated herein, such Parity Contract
Obligations and such Bonds shall cease to be entitled to any lien, benefit or security under this
Resolution, and all covenants, agreements and obligations of the Issuer to any Qualified
Agreement Provider and the Holders of such Bonds shall thereupon cease, terminate and
become void and be discharged and satisfied.
(B) The Bonds, redemption premium, if any, and interest due or to become due for
the payment or redemption of which moneys shall have been set aside and shall be held in trust
(through deposit by the Issuer of funds for such payment or redemption or otherwise) at the
maturity or redemption date thereof shall be deemed to have been paid within the meaning and
with the effect expressed in paragraph (A) of this Section 24. Subject to the provisions of
paragraph (C) and (D) of this Section 24, any Outstanding Bonds shall, prior to the maturity or
redemption date thereof, be deemed to have been paid within the meaning and with the effect
expressed in paragraph (A) of this Section if (i) in case any of said Bonds are to be redeemed on
any date prior to their maturity, the Issuer shall have given to the escrow agent instructions
accepted in writing by the escrow agent to notify Holders of Outstanding Bonds in the manner
required herein of the redemption of such Bonds on said date, and (ii) there shall have been
deposited with the escrow agent either moneys in an amount which shall be sufficient, or
Acquired Obligations (including any Acquired Obligations issued or held in book -entry form
Temp. Reso. #12859
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on the books of the Department of the Treasury of the United States) the principal of and the
interest on which when due will provide moneys which, together with the moneys, if any,
deposited with the escrow agent at the same time, shall be sufficient, to pay when due the
principal of and premium, if any, and interest due and to become due on said Bonds on or prior
to the redemption date or maturity date thereof, as the case may be. In the event of a
defeasance pursuant to clause (ii) above, the Issuer shall cause to be delivered a verification
report of an independent nationally recognized certified public accountant. If a forward supply
contract is employed in connection with the refunding, (i) such verification report shall
expressly state that the adequacy of the escrow to accomplish the refunding project relies solely
on the initial escrowed investments and the maturing principal thereof and interest income
thereon and does not assume performance under or compliance with the forward supply
contract, and (ii) the applicable escrow agreement shall provide that in the event of any
discrepancy or difference between the terms of the forward supply contract and the escrow
agreement and this Resolution, the terms of the escrow agreement and this Resolution shall be
controlling.
(C) For purposes of determining whether Variable Rate Bonds shall be deemed to
have been paid prior to the maturity or redemption date thereof, as the case may be, by the
deposit of moneys, or Acquired Obligations and moneys, if any, in accordance with paragraph
(B) of this Section 24, the interest to come due on such Variable Rate Bonds on or prior to the
maturity date or redemption date thereof, as the case may be, shall be calculated assuming that
interest thereon will accrue at the maximum rate of interest such Variable Rate Bonds may bear
pursuant to the Supplemental Resolution authorizing the issuance thereof, or the maximum rate
permitted by law if such Supplemental Resolution provides no maximum rate of interest.
(D) Option Bonds shall be deemed to have been paid in accordance with the second
sentence of paragraph (B) of this Section 24 only if, in addition to satisfying the requirements of
clauses (i) and (ii) of such sentence, there shall have been deposited with the escrow agent
moneys in an amount which shall be sufficient to pay when due the maximum amount of
principal of and redemption premium, if any, and interest on such Bonds which could become
payable to the Holders of such Bonds upon the exercise of any options provided to the Holders
of such Bonds; provided, however, that if, at the time a deposit is made with the escrow agent
pursuant to paragraph (B) of this Section 24, the options originally exercisable by the Holder of
an Option Bond are no longer exercisable, such Bond shall not be considered an Option Bond
for purposes of this paragraph (D). If any portion of the moneys deposited with the escrow
agent for the payment of the principal of and redemption premium, if any, and interest on
Option Bonds is not required for such purpose, the escrow agent shall, if requested by the
Issuer, pay the amount of such excess to the Issuer free and clear of any trust, lien, security
interest, pledge or assignment securing said Bonds or otherwise existing under the Resolution.
Section 25. Governmental Reorganization. Notwithstanding any other provisions of
this Resolution, this Resolution shall not prevent any lawful reorganization of the governmental
Temp. Reso. #12859
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structure of the Issuer, including a merger or consolidation of the Issuer with another public
body or the transfer of a public function of the Issuer to another public body, provided that any
reorganization which affects the System shall provide that the System shall be continued as a
single enterprise and that any public body which succeeds to the ownership and operation of
the System shall also assume all rights, powers, obligations, duties and liabilities of the Issuer
under this Resolution and pertaining to all Bonds and any Qualified Agreement.
Section 26. Additional Utility Functions. The Issuer may expand the utility functions
of the System as they exist on the date hereof as permitted in the definition of "System"
contained herein, provided that the Issuer has received the prior written consent of the Insurer,
if any, (provided the Insurer is not in default of its obligations under its Credit Facility), and
adopted resolutions of the Issuer to the effect that, based upon such certificates and opinions of
its Consulting Engineers, independent certified public accountants, Bond Counsel, Financial
Advisor or other Qualified Independent Consultants as the Issuer shall deem necessary,
desirable or appropriate, the addition of such utility functions (a) will not impair the ability of
the Issuer to comply with the provisions of this Resolution, and (b) will not materially adversely
affect the rights of the Holders of the Bonds.
Section 27. Utility Cost Containment Bonds. Pursuant to section 163.09, Florida
Statutes, notwithstanding anything herein to the contrary, (i) if permitted by applicable law, the
Issuer may in the future cause or permit the creation of a property right referred to as a "utility
project charge" or the like, levied on customers of the System as a separate charge on the utility
bill, to secure utility cost containment bonds or other indebtedness issued or incurred by an
interlocal agency or limited liability company in order to finance or refinance a utility project of
the Issuer or the System; (ii) revenues from a utility project charge shall not constitute a Gross
Revenue of the Issuer or the System for any purpose, including any dedication, commitment, or
pledge of revenue, receipts, or other income that the Issuer or the System has made or will make
for the security of any of its obligations; and (iii) if the Issuer or the System shall hold the money
collected in trust from such utility project charge, such money shall not become a Gross
Revenue by virtue of possession by the Issuer or the System.
Section 28. Qualified Agreements. Any payments received by the Issuer from a
Qualified Agreement Provider shall constitute Gross Revenues hereunder. Any payments to a
Qualified Agreement Provider under a Qualified Agreement so designated by the Issuer, can
constitute Parity Contract Obligations or Subordinated Debt. Notwithstanding the foregoing,
termination payments, indemnification payments, or other fees to be paid by the Issuer to a
Qualified Agreement Provider under a Qualified Agreement and which do not constitute
regularly scheduled payments determined by reference to interest on a notional amount may
only constitute Subordinated Debt, and may not constitute Parity Contract Obligations.
The Issuer may enter into one or more Qualified Agreements with respect to one or
more Series of Bonds (or portions thereof); provided, however, that if such Qualified Agreement
Temp. Reso. #12859
Page 54
is not entered into at the time of initial issuance of the Series of Bonds to which it relates, the
requirements of Section 20(Q)(1) hereof must be met, applying the same as if $1.00 in principal
amount of Additional Parity Bonds is being issued as of the effective date of such Qualified
Agreement.
Section 29. Payments to Credit Facility. In connection with any Bonds, the Issuer
may obtain or cause to be obtained one or more Credit Facilities and agree with any Credit
Facility Issuer to reimburse such issuer directly for amounts paid under the terms of such
Credit Facility, together with interest thereof; provided, however, that no obligation to
reimburse a Credit Facility Issuer shall be created, for purposes of this Resolution, until
amounts are paid under such Credit Facility. Such payments are referred to herein as
"Reimbursement Obligations." Any Reimbursement Obligation may be secured by a pledge of
and a lien on the Pledged Revenues on a subordinate basis to the lien created herein in favor of
the Holders of the Bonds and any Qualified Agreement Provider. Any such Reimbursement
Obligation shall be deemed to be a part of the Series to which the Credit Facility which gave rise
to such Reimbursement Obligation relates. Payments to reimburse the issuer of a Credit Facility
shall constitute Subordinated Debt.
Section 30. Capital Appreciation Bonds. For the purposes of (i) receiving payment of
the redemption price of a Capital Appreciation Bond if redeemed prior to maturity, (ii)
computing Bond Service Requirement, and (iii) computing the amount of Holders required for
any notice, consent, request or demand hereunder for any purpose whatsoever, the principal
amount of a Capital Appreciation Bond shall be deemed to be its Accreted Value.
Section 31. Tax Covenants.
(A) 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 the gross income
of the Holder thereof for federal income tax purposes.
(B) 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 Section 148 of the Code and neither the Issuer nor any other Person shall do any
act or fail to do any act which would cause the interest on such Series of Bonds to become
includable in the gross income of the Holder thereof for federal income tax purposes.
(C) 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 the gross income of the Holder thereof for federal
Temp. Reso. #12859
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income tax purposes, including, in particular, the payment of any amount required to be
rebated to the U.S. Treasury pursuant to the Code.
(D) The Issuer hereby covenants with the Holders of each Series of Build America
Bonds that it will comply with all provisions of the Code necessary to maintain the status of
such bonds as Build America Bonds within the meaning of the Code. In the case of Build
America Bonds for which the Issuer irrevocably elects to receive a refundable credit from the
United States Treasury, the Issuer covenants to comply with all provisions of the Code
necessary to maintain the status of such bonds as "qualified bonds" within the meaning of the
Code.
(E) 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 tax 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 includable in the gross income of the Holder thereof for federal income tax purposes.
The covenants set forth in paragraphs (A), (B) and (C) above shall not apply to any Taxable
Bonds.
(F) There is hereby created and established a fund to be known as the "City of
Tamarac Utility System Revenue Bonds Rebate Fund" (the 'Rebate Fund"), and a separate
account therein for each Series of Bonds. The Issuer shall deposit into the appropriate account
in the Rebate Fund, from investment earnings on moneys deposited in the other funds and
accounts created hereunder, or from any other legally available funds of the Issuer, an amount
equal to the Rebate Amount for such Rebate Year. The Issuer shall use such moneys deposited
in the appropriate account in the Rebate Fund only for the payment of the Rebate Amount to
the United States as required by this Section 30. In complying with the foregoing, the Issuer
may rely upon any instructions or opinions from Bond Counsel.
If any amount shall remain in the Rebate Fund after payment in full of all Bonds issued
hereunder that are not Taxable Bonds and after payment in full of the Rebate Amount to the
United States in accordance with the terms hereof, such amounts shall be available to the Issuer
for any lawful purpose.
The Rebate Fund shall be held separate and apart from all other funds and accounts of
the Issuer, shall not be impressed with a lien in favor of the Bondholders and the moneys
therein shall be available for use only as herein provided.
Section 32. Bond Anticipation Notes Authorized for Interim Financing. Pursuant to
authority granted by Section 215.431, Florida Statutes, the Issuer is authorized to issue Bond
Anticipation Notes (which may include Grant Anticipation Notes for all purposes of this
Section 32) in one or more series, from time to time for the purposes authorized by this
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Resolution, and for the purpose of obtaining interim financing. Prior to the sale of Bonds
authorized by this Resolution, the Issuer may issue its Bond Anticipation Notes as provided
herein and as provided in Section 215.431, Florida Statutes. Any such Bond Anticipation Notes
authorized by the Issuer shall be issued upon the adoption of a resolution by the Issuer
specifying the amount of Bond Anticipation Notes to be issued, the series designation, the
maturity of such Bond Anticipation Notes, the denomination, date and the rate of interest which
shall be borne by such Bond Anticipation Notes which shall not be at a rate greater than the
highest rate authorized by law. Any such Bond Anticipation Notes issued may be sold in the
manner provided by Section 215.431, Florida Statutes and shall satisfy all other requirements
contained therein, including those related to the maturity of such Bond Anticipation Notes.
Section 33. Additional Rights to Insurers. All notices required to be given to any
party hereunder shall also be given to the Insurer, if any. Pursuant to one or more
Supplemental Resolutions, the Issuer may provide additional rights, covenants, agreements and
restrictions relating to any Insurer and any Bond Insurance Policy.
Section 34. Severability. If any one or more of the covenants, agreements or
provisions of this Resolution should be held contrary to any express provision of law or
contrary to the policy of express law, though not expressly prohibited, or against public policy,
or shall for any reason whatsoever be held invalid or shall in any manner be held to adversely
affect the validity of the Bonds, then such covenants, agreements or provisions shall be null and
void and shall be deemed separate from the remaining covenants, agreements or provisions of
this Resolution or of the Bonds issued hereunder.
Section 35. Sale of Bonds. The Bonds may 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 requirements of this Resolution and other applicable provisions of
law.
Section 36. General Authority. The members of the City Commission of the Issuer
and the Issuer's officers, attorneys and other agents and employees are hereby authorized to
perform all acts and things required of them by this Resolution or desirable or consistent with
the requirements hereof for the full, punctual and complete performance of all of the terms,
covenants and agreements contained in the Bonds and this Resolution, and they are hereby
authorized to execute and deliver all documents which shall be required by Bond Counsel to
effectuate the sale of the Bonds to said initial purchasers.
Section 37. No Third Party Beneficiaries. Except such other Persons as may be
expressly described herein, in the Bonds, or in a Qualified Agreement, nothing in this
Resolution, or in the Bonds, expressed or implied, is intended or shall be construed to confer
upon any Person, other than the Issuer and the Holders, any right, remedy or claim, legal or
equitable, under and by reason of this Resolution or any provision hereof, or of the Bonds or
any Qualified Agreement, all provisions hereof and thereof being intended to be and being for
Temp. Reso. #12859
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the sole and exclusive benefit of the Issuer and the Persons who shall from time to time be the
Holders and any Qualified Agreement Provider.
Section 38. No Personal Liability. Neither the members of the City Commission of
the Issuer, any person executing the Bonds, any other charter employees, nor employees of the
Issuer shall be personally liable therefor or be subject to any personal liability or accountability
by reason of the issuance thereof.
Section 39. Amendment and Restatement; Repeal of Inconsistent Instruments.
Resolution No. R-2009-96 previously adopted by the City Commission of the Issuer is hereby
amended and restated in its entirety. All other resolutions or parts or resolutions in conflict
herewith are hereby repealed to the extent of such conflict.
1
J
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Section 40. Effective Date. This Resolution shall become effective upon such time as
(i) its adoption, (ii) the Issuer is in receipt of written consent of the 2009 Insurer, and (iii) the
Issuer is in receipt of evidence of 51% Bondholder consent.
PASSED AND ADOPTED 11th day of October, 2016.
CITY OF TAMARAC, FLORIDA
to /'
HARRY DRESSLEI� , AYOR
i
ATTEST:
PATRICIA TEUF , CMC
CITY CLERK
RECORD OF COMMISSION VOTE:
MAYOR DRESSLER
e
DIST 1:
COMM. BUSHNELL,-
DIST 2:
COMM. GOMEZ
DIST 3:
VICE MAYOR GLASSER
DIST 4:
COMM. PLACKO
L—'~
I HEREBY CERTIFY THAT I HAVE
APPROVED THIS RESOLUTION
AS TO FORM
&q� A,
40 -
SAMUEL S. GORE
CITY ATTORNEY
1
EXHIBIT A
2009 INSURER CONSENT TO AMENDMENTS
1
1
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