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HomeMy Public PortalAbout11-04 8,000,00 Capital Improvement Revenue and Revenue Refunding Bonds 1st Reading: MARCH`13, 2011 2nd Reading: APRIL 27, 2011 Public Hearing: APRIL 27, 2011 Adopted: APRIL 27, 2011 Effective Date: APRIL 28, 2011 Sponsored by City Manager ORDINANCE NO. 11-04 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA AUTHORIZING THE ISSUANCE AND SALE OF NOT TO EXCEED $8,000,000 CAPITAL IMPROVEMENT REVENUE AND REVENUE REFUNDING BONDS, SERIES 2011, IN ONE OR MORE SERIES, PURSUANT TO ORDINANCE NO. 94-7, FOR THE PURPOSE OF REFUNDING ALL OR A PORTION OF THE CITY'S CAPITAL IMPROVEMENT REVENUE BONDS, SERIES 1994 AND PAYING COSTS OF CERTAIN CAPITAL IMPROVEMENTS OF THE CITY; PROVIDING THAT DETAILS, TERMS AND OTHER MATTERS RELATING TO SERIES 2011 BONDS BE DETERMINED IN SUBSEQUENT RESOLUTIONS; AUTHORIZING CITY MANAGER TO ACT AS REGISTRAR AND PAYING AGENT; PROVIDING FOR INCORPORATION OF RECITALS; PROVIDING FOR CONFLICT AND REPEALER; PROVIDING FOR CODIFICATION AND SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the City of Opa-Locka, Florida (the "City"), pursuant to Ordinance No. 94- 7 enacted by the City Commission of the City of Opa-Locka, Florida (the "Commission") on March 28, 1994 (the "Original Ordinance" and as amended by this ordinance, the "Master Ordinance"), is authorized to issue Bonds, from time to time, to finance or refinance capital improvements of the City; and WHEREAS, capitalized terms used in this ordinance (the "2011 Ordinance") which are not defined shall have the meanings assigned to such terms in the Original Ordinance unless otherwise expressly provided or the context otherwise clearly requires; and WHEREAS, the Original Ordinance initially authorizes the City to issue, from time to time, Bonds in an aggregate principal amount not to exceed $10,000,000 for the purpose of MIAMI/4262698.3 1st Reading: MARCH 23, 2011 2nd Reading: APRIL 27, 2011 Public Hearing: APRIL 27, 2011 Adopted: APRIL 27, 2011 Effective Date: APRIL 28, 2011 Sponsored by City Manager ORDINANCE NO. 11-04 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA AUTHORIZING THE ISSUANCE AND SALE OF NOT TO EXCEED $8,000,000 CAPITAL IMPROVEMENT REVENUE AND REVENUE REFUNDING BONDS, SERIES 2011, IN ONE OR MORE SERIES, PURSUANT TO ORDINANCE NO. 94-7, FOR THE PURPOSE OF REFUNDING ALL OR A PORTION OF THE CITY'S CAPITAL IMPROVEMENT REVENUE BONDS, SERIES 1994 AND PAYING COSTS OF CERTAIN CAPITAL IMPROVEMENTS OF THE CITY; PROVIDING THAT DETAILS, TERMS AND OTHER MATTERS RELATING TO SERIES 2011 BONDS BE DETERMINED IN SUBSEQUENT RESOLUTIONS; AUTHORIZING CITY MANAGER TO ACT AS REGISTRAR AND PAYING AGENT; PROVIDING FOR INCORPORATION OF RECITALS; PROVIDING FOR CONFLICT AND REPEALER; PROVIDING FOR CODIFICATION AND SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the City of Opa-Locka, Florida (the "City"), pursuant to Ordinance No. 94- 7 enacted by the City Commission of the City of Opa-Locka, Florida (the "Commission") on March 28, 1994 (the "Original Ordinance" and as amended by this ordinance, the "Master Ordinance"), is authorized to issue Bonds, from time to time, to finance or refinance capital improvements of the City; and WHEREAS, capitalized terms used in this ordinance (the "2011 Ordinance") which are not defined shall have the meanings assigned to such terms in the Original Ordinance unless otherwise expressly provided or the context otherwise clearly requires; and WHEREAS, the Original Ordinance initially authorizes the City to issue, from time to time, Bonds in an aggregate principal amount not to exceed $10,000,000 for the purpose of MIAMI/4262698.3 paying costs of capital improvements of the City, all as may be specified or provided for in the subsequent resolution relating to the issuance of each such series of Bonds; and WHEREAS,on April 28, 1994, the City issued its Capital Improvement Revenue Bonds, Series 1994 (the "Series 1994 Bonds") under the authorization of the Original Ordinance in the aggregate principal amount of $8,000,000, of which $5,320,000 principal amount is currently Outstanding; and WHEREAS, the Commission desires to obtain a loan (the "Loan") for the purpose of refunding all or a portion of the Series 1994 Bonds and paying costs of certain capital improvements of the City described in Exhibit A hereto (collectively, the "Series 2011 Projects"); and WHEREAS,the Commission has determined at this time that it is in the best interests of the City and its residents to authorize the issuance of not to exceed $8,000,000 aggregate principal amount of City of Opa-Locka, Florida Capital Improvement Revenue and Revenue Refunding Bonds, Series 2011, in one or more Series, as additional parity Bonds under the provisions of the Master Ordinance, for the purpose of evidencing the Loan; and NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF OPA- LOCKA, FLORIDA HEREBY ORDAINS, that: SECTION 1. Recitals and Authority. (a) Recitals. The recitals contained in the foregoing "WHEREAS" clauses are incorporated as part of this 2011 Ordinance. (b) Authority. This 2011 Ordinance is enacted pursuant to the Constitution and laws of the State, including, Chapter 166, Florida Statutes, as amended (the"Act"). MIAMI/4262698.3 SECTION 2. Authorization to Issue Additional Parity Bonds. The Commission authorizes the issuance of not to exceed$8,000,000 aggregate principal amount of City of Opa-Locka, Florida Capital Improvement Revenue and Revenue Refunding Bonds, Series 2011, in one or more Series, as additional parity Bonds pursuant to Sections 201(b) and 304(h) of the Master Ordinance and the authority of the Act, for the purpose of refunding all or a portion of the Series 1994 Bonds and/or paying costs of the Series 2011 Projects, all as may be specified or provided for in the subsequent resolution relating to the issuance of the Series 2011 Bonds. The Series 2011 Bonds shall be issued to evidence the Loan. Proceeds of the Series 2011 Bonds, including investment earnings thereon, shall not be used to pay operational expenses of the City. SECTION 3. Details, Terms and Other Matters Relating to Series 2011 Bonds. In accordance with the Master Ordinance, all details, terms and other matters relating to additional parity Bonds shall be determined in the manner specified in a subsequent resolution relating to each Series of additional parity Bonds. SECTION 4. Registrar and Paying Agent. Notwithstanding anything in the Original Ordinance to the contrary, the City Manager of the City is authorized to act as Registrar and Paying Agent with respect to the Series 2011 Bonds. SECTION 5. Original Ordinance in Force. Except as supplemented by this 2011 Ordinance,the Original Ordinance and all terms and provisions of the Original Ordinance are and shall remain in full force and effect. SECTION 6. Further Acts. The officers and agents of the City are authorized and directed to take all actions and do all things required of them by the Original Ordinance and this 2011 Ordinance for the full, punctual and complete performance of all of the MIAMI/4262698,3 terms, covenants, provisions and agreements contained in the Original Ordinance and this 2011 Ordinance. SECTION 7. Headings Not Part of Qrdinance. Any headings preceding the Sections of this 2011 Ordinance shall be solely for convenience of reference and shall not constitute a part of this 2011 Ordinance,nor shall they affect its meaning, construction or effect. SECTION 8. Conflict. All ordinances or Code provisions in conflict herewith are hereby repealed. SECTION 9. Codification, This Ordinance shall be codified in the Code of Ordinances when the code is recodified. SECTION 10. Severability. In case any one or more of the provisions of this 2011 Ordinance shall for any reason be held to be illegal or invalid, such illegality or invalidity shall not affect the legality or enforceability of any other provision of this 2011 Ordinance. SECTION 11. Effective Date. This 2011 Ordinance shall become effective in accordance with law. PASSED AND ADOPTED this:Y7 day of (4 ,2011. /(0 // 'YRA TA LOR MA■ •R Attest to Deborah lrb City Clerk MIAMI/4262698.3 • .. oved as t. fornmnd 1-�a1 su- cy: // eph S. Geller 1.•wry. City Attorney I Moved by: TYDUS Seconded by: JOHNSON Commission Vote: 3-2 Commissioner Holmes: NO Commissioner Miller: NO Commissioner Tydus: YES Vice-Mayor Johnson: YES Mayor Taylor: YES EXHIBIT A SERIES 2011 PROJECTS Wastewater Collection System Environmental Cleanup Public Utilities Fueling Facility Environmental Cleanup Fleet Replacement Program Pumping Station Renovations (Sewer) Infiltration/Inflow Reduction Program Road/Street Improvements Pump Station Improvements Stormwater Utility and Drainage Improvements Roof Replacement Additional Water Meter Sites Canal Maintenance Park and Recreation Improvements Demolition of Abandoned Structures Public Sewer Utilities Improvements Water Distribution System Improvements 4784475 vI MIAM1/4262698.3 2ND I SUNDAY,APRIL 3,2011 ND MiamiHerald.com I THE MIAMI HERALD REACH US NEIGHBORHOOD NEWS EDITORIAL Suburban Editor •MIAMI Diana Kra11 and Harry •DORAL luminaria ceremony,food children in Chacraseca, Joan Chrissos Connick Jr.,attended and music entertainment. Nicaragua,l0 a.m.to 9 JAZZ SERIES RELAY FOR LIFE 305-376-2635 FEATURES MDC's New World School APPROACHING To get involved,call p.m.Saturday at Miami- jchrissosimMiamiHerald.com of the Arts while in high 305-779-2849,e-mail Do- Dade College Kendall HOMEGROWN PIANIST Editor school and has a master's The American Cancer ralRelay @gmail.com or go campus'Fred Shaw Plaza, Tere Figueras Negrete Miami Dade College's degree in music from the Society's Relay for Life of to wwwRelayForLife.org/ 11011 SW 104th St.The 305-376-3556 Arts and Philosophy de- University of Miami.The Doral will take place from DoralFL. event is free and features tfinueras:o MiamiHerald.com P Y Y P Reporters partment will continue its performance takes place 2 p.m.Saturday to 9 a.m. • games,food and tradition- series, Wolfson April J KENDALL Miami Gardens:Nadege Charles, Jazz at WOl Son at the Miami Dade Col- A rt110 at C Bermudez MDC FESTIVAL WILL al dances from the Cen- 305-376-4566,ncharles:'Miami Presents,noon Wednes- lege Wolfson Campus Park,3000 NW 87th Ave. tral American country. Herald.com;Hialeah/Miami Lakes: day,featuring jazz pianist auditorium,Room 1261, During the overnight HELP NICARAGUAN Donations will help the Laura eaMla iheral .com:, Martin Berjerano.The 300 NE Second Ave.,in event,teams form to raise KIDS fund education of 34 Nic- Iisenseea:MiamiHerald.com: I additional reporters:Oaiana concert is free and open downtown Miami.For funds for the treatment Imagination Federation araguan children in the Kucawca,954-538-7124, to the public. more information,contact and prevention of cancer Organization,a student rural area.For informa- Hines 305-37 1-2022 ald.7 92,Bea Berjerano,who has Dr.Michael Di Liddo at and create community organization,will host a tion on the event visit Hines 305-376-2022 ext.7192, J Y g bhines•@MiamiHerald.com performed with the Gram- 305-237-3930. awareness.The event will Festival of Dreams to www.imagination Youth Sports Editor my-winning Roy Haynes. include a candle-lighting raise money for school federation.org. Jose Cassola 305-376-3712 jcassola gMiamiHeraid.corn School News schaalnewsg MiamiHeraidcom fi,ilnPDade:305.3A.2222 Ytilt i Rur,.ard:951-524 m'5 ar Tio u a ncr+ride r OTHER CONTACTS �QI:S.�011i.. Advertising islullin a x i hcalli,unli3erah�� 305-376-501 for YOU in Calendar desk/listings newscalendar:a MiamiHerald.com .I 6`x . ■' '1 North NOTICE TO THE PUBLIC N N RTH MIAMI M»'' CITY OF OPA-LOCKA, FLORIDA F L O R I D A _Qie NOTICE IS HEREBY GIVEN that a public hearing will be held on Wednesday,April 13,2011 at 7:00 p.m.in the City Commission Chambers,777 Sharazad Boulevard,before the City Commission of the City of Opa-locka to consider the following ordinance: /. Full Cost Disclosure Report For Ili SECOND READING ORDINANCE/PUBLIC HEARING: If Solid Waste Management AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA AUTHORIZING THE ISSUANCE AND SALE OF NOT TO EXCEED $8,000,000 CAPITAL Fiscal Year 2010 IMPROVEMENT REVENUE AND REVENUE REFUNDING BONDS,SERIES 2011,IN ONE OR MORE SERIES,PURSUANT TO ORDINANCE NO.94-7,FOR THE PURPOSE OF REFUNDING (October 1,2009-September 30,2010) ALL OR A PORTION OF THE CITY'S CAPITAL IMPROVEMENT REVENUE BONDS,SERIES 1994 AND PAYING COSTS OF CERTAIN CAPITAL IMPROVEMENTS OF THE CITY;PROVIDING Pursuant to 62.708 Administrative Code and Chapter 409.7049 F.S. THAT DETAILS,TERMS AND OTHER MATTERS RELATING TO SERIES 2011 BONDS BE DETERMINED IN SUBSEQUENT RESOLUTIONS;AUTHORIZING THE CITY MANAGER TO ACT AS REGISTRAR AND PAYING AGENT;PROVIDING FOR INCORPORATION OF RECITALS; RESIDENTIAL SERVICES PROVIDING FOR CONFLICT AND REPEALER; PROVIDING FOR CODIFICATION AND SEVERABILITY;PROVIDING FOR AN EFFECTIVE DATE(first reading held on March 23,2011). Sponsored by C.M. Living Units Served Full Cost per Living Unit Additional information on the above item may be obtained in the Office of the City Clerk, Collection 12,333 $332.55 780 Fisherman Street,4'"Floor,Opa-locka,Florida.All interested persons are encouraged to attend this meeting and will be heard with respect to the public hearing. Disposal 12,333 $121.08 PURSUANT TO FS 286.0105:Anyone who desires to appeal any decision made by any board, Recycling 9,707 $ 42.20 agency,or commission with respect to any matter considered at such meeting or hearing will need a record of the proceedings,and for that reason,may need to ensure that a verbatim record of the $495.83 proceedings is made,which record includes the testimony and evidence upon which the appeal may be based. DEBORAH S.IRBY,CMC CITY CLERK ORDINANCE NO. 94-7 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF OPA- LOCKA, FLORIDA AUTHORIZING THE ISSUANCE AND SALE IN ONE OR MORE SERIES OF ITS CAPITAL IMPROVEMENT REVENUE BONDS, SERIES 1994 IN THE AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED$10,000,000 TO ADVANCE REFUND THE CITY'S CAPITAL IMPROVEMENT REVENUE REFUNDING BONDS,SERIES 1991A OR TO FINANCE CERTAIN CAPITAL IMPROVEMENTS OF THE CITY, OR FOR BOTH SUCH PURPOSES,AND TO PAY THE COSTS OF ISSUANCE INCLUDING THE PREMIUMS FOR A BOND INSURANCE POLICY AND RESERVE ACCOUNT INSURANCE POLICY; AUTHORIZING THE ISSUANCE OF ADDITIONAL BONDS UPON THE CONDITIONS SET FORTH HEREIN AND THE ESTABLISHMENT OF THE TERMS AND SALE THEREOF BY SUPPLEMENTAL RESOLUTION;PROVIDING FOR THE RIGHTS AND SECURITY OF BONDS ISSUED PURSUANT TO THIS ORDINANCE; PROVIDING CERTAIN DETAILS OF THE SERIES 1994 BONDS; AUTHORIZING THE DISTRIBUTION OF A PRELIMINARY OFFICIAL STATEMENT; AUTHORIZING THE PURCHASE OF A BOND INSURANCE POLICY AND DEBT SERVICE RESERVE SURETY BOND FOR THE SERIES 1994 BONDS AND AUTHORIZING AGREEMENTS RELATING THERETO; REPEALING ORDINANCE NO. 94-1 IN ITS ENTIRETY AND RESCINDING RESOLUTION NO. 94-5447 IN ITS ENTIRETY; PROVIDING FOR SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, pursuant to the Constitution and the laws of the State of Florida, in particular Chapter 166, Florida Statutes, as amended from time to time(the "Act"), and pursuant to Article VII of the Charter of the City of Opa-locka, as amended, the City of Opa-locka, Florida(the "City") issued on October 2, 1985, $5,060,000 in aggregate principal amount of its Capital Improvement Revenue Bonds, Series 1985 (the "Series 1985 Bonds"); and WHEREAS, pursuant to the Act, the City of Opa-locka, Florida (the "City") issued on April 1, 1991, $5,275,000 in aggregate principal amount of its Capital Improvement Revenue Refunding Bonds, Series 1991A(the "Series 1991A Bonds"), of which$5,030,000 in aggregate principal amount remain outstanding, in order to advance refund the Series 1985 Bonds and to finance certain capital improvements to the City Hall of the City; and WHEREAS, the City desires to advance refund the Series 1991A Bonds in order to produce savings on the net present value of the debt service payable on the Series 1991A Bonds; and WHEREAS, the City desires to apply a portion of the proceeds of the Series 1994 Bonds to the purchase of certain investments, the principal of which and the earnings on which will be sufficient to pay when due, upon the maturity or earlier redemption thereof, all of the principal • , •r- , ' .f�, .r • ` , i _ :: .'• • , .1 WHEREAS, the City has determined, and hereby confirms, that there is a need for the expenditure of funds for one or more capital improvements listed in Exhibit A hereto; and WHEREAS, the City has determined that it is necessary and advisable to issue one or more series of revenue bonds and designated as Capital Improvement Revenue Bonds, Series 1994 (the "Series 1994 Bonds") for the purpose of (i) advance refunding the Series 1991A Bonds; (ii)paying the costs of certain capital improvements of the City; (iii)providing a Reserve Account Insurance Policy and Bond Insurance Policy for the Series 1994 Bonds; and (iv) paying the costs of issuing the Series 1994 Bonds; and WHEREAS, the City also desires to set forth the provisions pursuant to which it may issue additional Bonds on a parity with the Series 1994 Bonds and to make provision for the rights and security of the holders of the Bonds issued hereunder; and WHEREAS, the various terms of the sale of Series 1994 Bonds shall be established by subsequent proceedings of the City Commission of the City (the "Commission"); and WHEREAS, the following Table of Contents is provided for convenience of reference only and is not a substantive part of this Ordinance: TABLE OF CONTENTS ARTICLE I DEFINITIONS, AUTHORITY AND FINDINGS; - ORDINANCE CONSTITUTES A CONTRACT SECTION 101. DEFINITIONS 4 SECTION 102. AUTHORITY FOR THIS ORDINANCE AND THE BONDS 13 SECTION 103. FINDINGS 13 SECTION 104. ORDINANCE CONSTITUTES CONTRACT 14 ARTICLE II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF BONDS; THE 1994 PROJECT SECTION 201. AUTHORIZATION OF THE BONDS 15 SECTION 202. DESCRIPTION OF BONDS 15 SECTION 203. REDEMPTION PROVISIONS 16 SECTION 204. EXECUTION OF BONDS 17 SECTION 205. NEGOTIABILITY,REGISTRATION AND CANCELLATION 17 SECTION 206. BONDS MUTILATED, DESTROYED, STOLEN OR LOST 18 SECTION 207. PREPARATION OF DEFINITIVE BONDS; TEMPORARY BONDS 19 SECTION 208. FORM OF BONDS 19 SECTION 209. QUALIFICATION FOR THE DEPOSITORY TRUST COMPANY 19 -2- • EXIT B - RESERVE FUND SURETY GUIDELINES The City may satisfy the requirement (the "Reserve Account Requirement") to deposit a specified amount in the Debt Service Reserve Account (the "Reserve Fund") by the deposit of a Reserve Account, Insurance Policy or Account Letter of Credit as set forth below. The following requirements are incorporated in the Ordinance (the "Authorizing Document") in the event the Reserve Account Requirement is fulfilled by a deposit of such a credit instrument (other than such a credit instrument issued by the Series 1994 Bond Insurer) in lieu of cash: 1. A Reserve Account Insurance Policy issued to the Paying Agent (the "Fiduciary"), as agent of the bondholders,by a company licensed to issue a Insurance Policy guaranteeing the timely payment of debt service on the Bonds (a "municipal bond insurer") may be credited to the Debt Service Reserve Account to meet the Reserve Account Requirement if the claims paying ability of the issuer thereof shall be rated "AAA" or "Aaa" by S&P or Moody's, respectively. 2. A Reserve Account Insurance Policy issued to the Fiduciary, as agent of the bondholders, by an entity other than a municipal bond insurer may be credited to the Reserve Account to meet the Reserve Account Requirement if the form and substance of such instrument and the issuer thereof shall be approved by the Series 1994 Bond Insurer. 3. An unconditional irrevocable letter of credit issued to the Fiduciary, as agent of the bondholders, by a bank may be credited to the Debt Service Reserve Account to meet the Reserve Account Requirement if the issuer thereof is rated at least"AA" by S&P. Such letter of credit shall be payable in one or more draws upon presentation by the Paying Agent of a sight draft accompanied by its certificate that it then holds insufficient funds to make a required payment of principal or interest on the bonds. The draws shall be payable within two (2) days of presentation of the sight draft. The letter of credit shall be for a term of not less than three (3)years. The issuer of the letter of credit shall be required to notify the City and the Paying Agent, not later than 30 months prior to the stated expiration date of the letter of credit, as to whether such expiration date shall be extended, and if so, shall indicate the new expiration date. If such notice indicates that the expiration date shall not be extended, the City shall deposit in the Debt Service Reserve Account an amount sufficient to cause the cash or Permitted Investments on deposit in the Debt Service Reserve Account together with any other qualifying credit instruments, to equal the Debt Service Reserve Account Requirement on all outstanding Bonds, such deposit to be paid in equal installments on at least a semi-annual basis over the remaining term of such letter of credit, unless the Debt Service Reserve Account credit instrument is replaced by a Debt Service Reserve Account credit instrument meeting the requirements in any of 1-3 above. The letter of credit shall permit a draw in full not less than two (2) weeks prior to the expiration or termination of such letter of credit if the letter of credit has not been replaced or renewed. The Paying Agent is hereby directed to draw upon the letter of credit prior to B-i Paying Agent or the Debt Service Reserve Account is fully funded in its required amount. 4. The use of any Debt Service Reserve Account credit instrument pursuant to this paragraph shall be subject to receipt of an opinion of counsel acceptable to the Series 1994 Bond Insurer and in form and substance satisfactory to the Series 1994 Bond Insurer as to the due authorization, execution, delivery and enforceability of such instrument in accordance with its terms, subject to applicable laws affecting creditors' rights generally, and, in the event the issuer of such credit instrument is not a domestic entity, an opinion of foreign counsel in form and substance satisfactory to the Series 1994 Bond Insurer. In addition, the use of an irrevocable letter of credit shall be subject to receipt of an opinion of counsel acceptable to Financial Guaranty and in form and substance satisfactory to Financial Guaranty to the effect that payments under such letter of credit would not constitute avoidable preferences under Section 547 of the U.S. Bankruptcy Code or similar state laws with avoidable preference provisions in the event of the filing of a petition for relief under the U.S. Bankruptcy Code or similar state laws by or against the issuer of the bonds (or any other account party under the letter of credit). 5. The obligation to reimburse the issuer of a Debt Service Reserve Account credit instrument for any fees, expenses, claims or draws upon such Debt Service Reserve Account credit instrument shall be subordinate to the payment of debt service on the bonds. The right of the issuer of a Debt Service Reserve Account credit instrument to payment or reimbursement of its fees and expenses shall be subordinated to cash replenishment of the Debt Service Reserve Account, and, subject to the second succeeding sentence, its right to reimbursement for claims or draws shall be on a parity with the cash replenishment of the Debt Service Reserve Account. The Debt Service Reserve Account credit instrument 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 Debt Service Reserve Account credit instrument to reimbursement will be further subordinated to cash replenishment of the Debt Service Reserve Account to an amount equal to the difference between the full original amount available under the Debt Service Reserve Account credit instrument and the amount then available for further draws or claims. If (a) the issuer of a Debt Service Reserve Account credit instrument becomes insolvent or (b)the issuer of a Debt Service Reserve Account credit instrument defaults in its payment obligations thereunder or(c)the claims- paying ability of the issuer of the insurance policy or surety bond falls below a S&P "AAA" or a Moody's "Aaa" or (d) the rating of the issuer of the letter of credit falls below a S&P "AA", the obligation to reimburse the issuer of the Debt Service Reserve Account credit instrument shall be subordinate to the cash replenishment of the Debt Service Reserve Account. 6. If (a) the revolving reinstatement feature described in the preceding paragraph is suspended or terminated or(b) the rating of the claims paying ability of the issuer of the surety bond or insurance .•lic falls below a S&P "AAA" or a Moody's "Aaa" or (c) the rating of the issuer of the letter of credit falls below a S&P "AA", the City shall B-2 either (i) deposit into the Debt Service Reserve Account an amount sufficient to cause the cash or permitted investments on deposits in the Debt Service Reserve Account to equal the Debt Service Reserve Account Requirement on all outstanding Bonds, such amount to be paid over the ensuing five(5) years in equal installments deposited at least semi-annually or (ii) replace such instrument with a surety bond, insurance policy or letter of credit meeting the requirements in any of 1-3 above within six months of such occurrence. In the event (a) the rating of the claims-paying ability of the issuer of the surety bond or insurance policy falls below "A" or (b) the rating of the issuer of the letter of credit falls below "A" or (c) the issuer of the Debt Service Reserve Account credit instrument defaults in its payment obligations or (d) the issuer of the Debt Service Reserve Account credit instrument becomes insolvent, the City shall either (i) deposit into the Debt Service Reserve Account an amount sufficient to cause the cash or permitted investments on deposit in the Debt Service Reserve Account to equal to Debt Service Reserve Account Requirement on all outstanding Bonds, such amount to be paid over the ensuing year in equal installments on at least a monthly basis or(ii)replace such instrument with a surety bond, insurance policy or letter of credit meeting the requirements in any of 1-3 above within six (6) months of such occurrence. 7. Where applicable, the amount available for draws or claims under the Debt Service Reserve Account credit instrument may be reduced by the amount of cash or permitted investments deposited in the Debt Service Reserve Account pursuant to clause (i) of the preceding subparagraph 6. 8. If the City chooses the above described alternatives to a cash-funded Debt Service Reserve Account, any amounts owed by the City to the issuer of such credit instrument as a result of a draw thereof or a claim thereunder, as appropriate, shall be included in any calculation of debt service requirements required to be made pursuant to the Ordinance for any purpose, e.g., rate covenant or additional bonds test. 9. The Paying Agent is hereby required to ascertain the necessity for a claim or draw upon the Debt Service Reserve Account credit instrument and to provide notice to the issuer of the Debt Service Reserve Account credit instrument in accordance with its terms not later than three days (or such longer period as may be necessary depending on the permitted time period for honoring a draw under the Debt Service Reserve Account credit instrument) prior to each interest payment date. 10. Cash on deposit in the Debt Service Reserve Account shall be used (or investments purchased with such cash shall be liquidated and the proceeds applied as required) prior to any drawing on any Debt Service Reserve Account credit instrument. If and to the extent that more than one Debt Service Reserve Account credit instrument is held for the credit of in the Debt Service Reserve Account, drawings thereunder and repayments of costs associated therewith shall be made on a pro rata basis, calculated by reference to the maximum amounts available thereunder. B-3 ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF SECTION 301. BONDS ARE LIMITED AND SPECIAL OBLIGATIONS OF THE CITY 21 SECTION 302. BONDS SECURED BY PLEDGE OF PLEDGED FUNDS 21 SECTION 303. APPLICATION OF BOND PROCEEDS Z1 SECTION 304. COVENANTS OF THE CITY 23 ARTICLE IV CONCERNING THE FIDUCIARIES SECTION 401. FIDUCIARIES; APPOINTMENT AND ACCEPTANCE OF DUTIES 40 SECTION 402. RESPONSIBILITIES OF FIDUCIARIES 40 SECTION 403. EVIDENCE ON WHICH FIDUCIARIES MAY ACT 41 SECTION 404. COMPENSATION 41 SECTION 405. CERTAIN PERMITTED ACTS 41 SECTION 406. MERGER OR CONSOLIDATION 42 SECTION 407. AUTHENTICATION 42 SECTION 408. RESIGNATION OR REMOVAL OF PAYING AGENT AND APPOINTMENT OF SUCCESSOR 42 SECTION 409. VACANCY 42 ARTICLE V EXECUTION OF INSTRUMENTS BY BONDHOLDERS AND PROOF OF OWNERSHIP OF BONDS SECTION 501. PROOF OF EXECUTION OF DOCUMENTS AND OWNERSHIP 44 ARTICLE VI MISCELLANEOUS PROVISIONS SECTION 601. MODIFICATION OR AMENDMENT 46 SECTION 602. PROVISION OF INFORMATION TO SERIES 1994 BOND INSURER. 49 SECTION 603. SALE OF BONDS 49 SECTION 604. DISTRIBUTION OF PRELIMINARY OFFICIAL STATEMENT AUTHORIZED 49 SECTION 605. CAPITAL APPRECIATION BONDS;CAPITAL APPRECIATION AND INCOME BONDS 50 SECTION 606. UNCLAIMED MONEY 50 SECTION 607. REPEALING CLAUSE 50 SECTION 608. SEVERABILITY. 50 SECTION 609. TIME OF TAKING EFFECT 51 EXHIBIT A -SERIES 1994 PROJECT A-i EXHIBIT B -RESERVE FUND SURETY GUIDELINES B-1 [END OF TABLE OF CONTENTS] NOW THEREFORE, THE COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA HEREBY ORDAINS: -3- ARTICLE I DEFINITIONS, AUTHORITY AND FINDINGS; ORDINANCE CONSTITUTES A CONTRACT SECTION 101. DEFINITIONS. As used in this Ordinance, the following terms shall have the following meanings: "Accreted Value" shall mean as to any Capital Appreciation Bond, the original principal amount thereof plus interest accrued thereon which shall be calculated as of any determination date on the basis of a 360-day year consisting of twelve 30-day months compounded semi- annually on each interest compounding date commencing on the interest compounding date next succeeding the dated date of such Capital Appreciation Bonds to the date of maturity or of redemption prior to maturity of such Capital Appreciation Bonds or the date of determination. The Accreted Value with respect to any date other than an interest compounding date is the Accreted Value on the next preceding interest compounding date (or the dated date of such Capital Appreciation Bond for the period between such dated date and the initial interest compounding date for such Bond plus the percentage of the Accreted Value on the next succeeding interest compounding date derived by dividing the number of days from the next preceding interest compounding date (or the dated date of such Capital Appreciation Bond for the period between such dated date and the initial interest compounding date) for such Bond to the date of determination by the total number of days from the next succeeding interest compounding date (or the dated date of such Capital Appreciation Bond for the period between such dated date and the initial interest compounding date) for such Bond to the next succeeding interest compounding date. "Act" shall have the meaning ascribed to it in the recitals to this Ordinance. "Amortization Requirements" shall mean such moneys required to be deposited in the Bond Redemption Account for the purpose of the mandatory redemption or payment at maturity of any Term Bonds, the specific amounts and times of such deposits to be determined by subsequent proceedings of the Commission. "Annual Debt Service Requirement" for any Fiscal Year, as applied to the Bonds, shall mean the respective amounts which are needed to provide: (a) for paying the interest on all Bonds of such Series then Outstanding which is payable on each Interest Payment Date in such Fiscal Year, (b) for paying the principal of all Serial Bonds then Outstanding which is payable upon the maturity of such Serial Bonds in such Fiscal Year, and (c) for paying the Amortization Requirements, if any, payable in such Fiscal Year with respect to Term Bonds then Outstanding. -4- For the purposes of computing (a), (b) and (c) above, any principal, interest or Amortization Requirements due on October 1 in a Fiscal Year shall be deemed due in the preceding Fiscal Year. The following rules shall apply in determining the amount of the Annual Debt Service Requirement for any period: (a) In the case of Capital Appreciation Bonds, the principal and interest portions of the Accreted Value of Capital Appreciation Bonds becoming due at maturity or by virtue of an amortization requirement shall be treated as principal in the Fiscal Year in which Accreted Value is due and payable; (b) In the case of Capital Appreciation and Income Bonds, the principal and interest portions of the Accreted Value of Capital Appreciation and Income Bonds shall be treated as principal in the Fiscal Year in which Accreted Value is due and payable; (c) If all or a portion of the principal of or interest on any Bonds is payable from funds irrevocably set aside or deposited for such purpose, together with projected earnings thereon to the extent such earnings are projected to be from Permitted Investments, such principal or interest shall not be included in determining Annual Debt Service Requirements. "Appreciated Value" shall mean (i) as of any date of computation with respect to any Capital Appreciation and Income Bond up to the Interest Commencement Date the Appreciated Value shall be calculated in the same manner as Accreted Value as of such computation date and (ii)as of any date of computation on and after the Interest Commencement Date, the Appreciated Value shall equal the Accreted Value on the Interest Commencement Date. "Bond Counsel" means nationally recognized bond counsel. "Bondholder", "Holder", "Holder of Bonds" or"Owner" or any similar terms, shall mean any persons, who shall be the registered owner of any Outstanding Bond or Bonds. "Bonds" shall mean the Series 1994 Bonds authorized to be issued pursuant to this Ordinance, together with any additional parity Bonds hereafter issued pursuant to this Ordinance. "Bond Redemption Account" shall mean the Bonds Redemption Account of the Sinking Fund established pursuant to Section 304(d) hereof. "Capital Appreciation Bond" shall mean any Bond issued under this Ordinance as to which interest is compounded periodically on each of the periodic interest compounding dates designated for the compounding of interest and payable in an amount equal to the then current Accreted Value only at the maturity, earlier redemption or other payment date therefor, all as so designated by subsequent proceedings of the Commission relating to the issuance thereof, and which may be either a Serial Bond or a Term Bond. "Capital Appreciation and Income Bond" shall mean any Bond issued under this Ordinance as to which (i) accruing interest is not paid prior to the Interest Commencement Date -5- for such Bond (except upon redemption or acceleration of such Bond prior to the interest Commencement Date), but is compounded periodically on each of then periodic interest computation dates prior to the Interest Commencement Date for such Series of Capital Appreciation and Income Bond and (ii) after the Interest Commencement Date interest will be paid periodically based on the Appreciated Value of such Capital Appreciation and Income Bond on its Interest Commencement Date, all as so designated by subsequent proceedings of the Commission relating to the issuance thereof and which may be either a Serial Bond or a Term Bond. "Capital Improvement Fund" shall mean a fund created pursuant to and described in Section 304(c) hereof. "City" shall mean the City of Opa-locka, Florida, or any successor thereto. "City Clerk" shall mean the Clerk of the City or the officer succeeding to his or her principal functions. "City Manager" shall mean the City Manager of the City or his or her designee or the officer succeeding to his or her principal functions. "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated thereunder and applicable regulations promulgated under the Internal Revenue Code of 1954, as amended. "Commission" shall mean the Commission of the City. "County" shall mean Dade County, Florida. "Credit Facility" shall mean any irrevocable letter of credit, policy of municipal bond insurance, guaranty, surety bond, purchase agreement, credit agreement or similar facility in which the entity providing such facility irrevocably agrees to provide funds to make payment of the principal, of premium, if any, and interest on any of the Bonds, other than a Reserve Account Insurance Policy or a Reserve Account Letter of Credit. "Credit Facility Provider" shall mean the issuer of a Credit Facility. "Debt Service Reserve Account" shall mean the Debt Service Reserve Account of the Sinking Fund created pursuant to Section 304(d) hereof. "Defeasance Obligations" shall mean, to the extent permitted by law and to the extent not limited by agreement between the City and the issuer of any Credit Facility, 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, or defeased municipal bonds rated AAA by S&P or Aaa by Moody's (or any combination thereof). -6- "Escrow Agent" shall mean any bank or trust company or any successor bank or trust company appointed by the City to act as Escrow Agent under the particular Escrow Agreement. "Escrow Agreement" shall mean as to the Series 1991A Bonds the Escrow Deposit Agreement between the City and the Escrow Agent pursuant to which the City will escrow a portion of the proceeds of the Series 1994 Bonds in order to refund the Series 1991A Bonds presently outstanding and, as to any Bonds issued hereunder which are being defeased shall mean the Escrow Deposit Agreement relating thereto. "Escrow Fund" shall mean as to the Series 1991A Bonds the escrow fund established and maintained pursuant to the Escrow Agreement for the Series 1991A Bonds and as to any other defeased Bonds the escrow fund established for such defeased Bonds. "Fiduciaries" shall mean the Paying Agent, the Registrar and any trustee appointed and acting under this Ordinance. "Fiscal Year" shall mean that period commencing on October 1, and continuing to and including the next succeeding September 30, or such other annual period as may be prescribed by law or by the City in accordance with law. "Guaranteed Entitlement Revenues" shall mean the moneys received by the City each year from the State Revenue Sharing Trust Fund for Municipalities pursuant to Chapter 218, Part II, Florida Statutes, or any successor statutory provisions to the extent of the City's "guaranteed entitlement", as such term is defined in Section 218.21(6)(b), Florida Statutes. "Insurance Policy" shall mean the policy of municipal bond insurance issued by an Insurer pursuant to which the Insurer guarantees payment when due of the principal of and interest on any one or more particular Series of Bonds. "Insurer" shall mean with,respect to the Series 1994 Bonds, the Series 1994 Bond Insurer and as to any other one or more particular Series of Bonds, the entity undertaking to insure such Bonds through the issuance of an Insurance Policy. "Interest Account" shall mean the Interest Account of the Sinking Fund established pursuant to Section 304(d) hereof. "Interest Commencement Date" shall mean, with respect to any particular Capital Appreciation and Income Bond, the date (specified in the resolution providing for the issuance of such Bond, which date must be prior to the maturity date for such Bond) prior to which interest shall not be paid annually, but shall be accrued and compounded in calculating its Appreciated Value and from and after which interest accruing on the Appreciated Value of such Bond shall be payable semi-annually or otherwise on a periodic basis prior to maturity, with the first such payment date being the first Interest Payment Date succeeding such Interest Commencement Date. -7- "Interest Payment Date" shall mean for each Bond each date on which interest on such Bond is scheduled to be payable, as set forth in the proceedings of the City providing for the issuance of such Bond. "Mayor" shall mean the Mayor of the City or in the absence or disability of the Mayor of the City, the Vice Mayor of the City or other official succeeding to the principal functions of the Mayor or authorized to perform such functions in their absence or disability of the Mayor and Vice Mayor. "Maximum Annual Debt Service" shall mean, at any time and with respect to all of the Bonds or any particular Series of the Bonds (as appropriate), the greatest Annual Debt Service Requirement for the balance of the then current Fiscal Year or any succeeding Fiscal Year. "1985 Project" shall mean the capital improvements financed with the proceeds of the Series 1985 Bonds. "1994 Project" shall mean one or more of the capital improvements listed in Exhibit A hereto, and such other municipal capital improvement acquired with proceeds of the Series 1994 Bonds and investment monies therefrom pursuant to Section 303(c) of this Ordinance. "Ordinance" shall mean this Ordinance as the same may from time to time be amended and supplemented in accordance with the terms hereof. "Outstanding" when used with reference to the Bonds, shall mean all Bonds or particular Bonds as the context may require, as of any date of determination, all Bonds or particular Bonds theretofore authenticated and delivered except; (i) Bonds theretofore canceled by the Registrar or delivered to the Registrar for cancellation; (ii) Bonds which are deemed paid and no longer Outstanding as provided herein; (iii) Bonds in lieu of which other Bonds have been issued pursuant to the provisions hereof relating to Bonds destroyed, stolen or lost, unless evidence satisfactory to the Registrar has been received that any such Bond is held by a bona fide purchaser; and (iv) For purposes of any consent or other action to be taken hereunder by the Holders of a specified percentage of principal amount of all Bonds or particular Bonds as the context may require, Bonds held by or for the account of the City. "Paying Agent" shall mean any bank or trust company or any successor bank or trust company appointed by the City to act as Paying Agent hereunder. "Permitted Investments" shall mean, to the extent permitted by law and to the extent not limited by any agreement between the City and the issuer of any Credit Facility: -8- (1) Direct 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, provided, that the full faith and credit of the United States of America must be pledged to any such direct obligation or guarantee ("Direct Obligations"); (2) Direct obligations and fully guaranteed certificates of beneficial interest of the Export-Import Bank of the United States; consolidated debt obligations and letter of credit-backed issues of the Federal Home Loan Banks;participation certificates and senior debt obligations of the Federal Home Loan Mortgage Corporation ("FHLMCs"); debentures of the Federal Housing Administration; mortgage- backed securities (except stripped mortgage securities which are valued greater than par on the portion of unpaid principal) and senior debt obligations of the Federal National Mortgage Association ("FNMAs"); participation certificates of the General Services Administration; guaranteed mortgage-backed securities and guaranteed participation certificates of the Government National Mortgage Association("GNMAs");guaranteed participation certificates and guaranteed pool certificates of the Small Business Admini-17.ation; debt obligations and letter of credit-backed issues of the Student Loan Marketing Association; local authority bonds of the U.S. Department of Housing & Urban Development; guaranteed Title XI financings of the U.S. Maritime Administration;guaranteed transit bonds of the Washington Metropolitan Area Transit Authority; Resolution Funding Corporation securities. (3) Direct obligations of any state of the United States of America or any subdivision or agency thereof whose unsecured, uninsured and unguaranteed general obligation debt is rated, at the time of purchase, "A" or better by Moody's Investors Service and "A" or better by Standard & Poor's Corporation, or any obligation fully and unconditionally guaranteed by any state, subdivision or agency whose unsecured, uninsured and unguaranteed general obligation debt is rated, at the time of purchase, "A" or better by Moody's Investors Service and "A" or better by Standard & Poor's Corporation; (4) Commercial paper (having original maturities of not more than 270 days) rated, at the time of purchase, "P-1" by Moody's Investors Service and "A-1" or better by Standard & Poor's Corporation; (5) Federal Funds, unsecured certificates of deposit, time deposits or bankers acceptances (in each case having maturities of not more than 365 days) of any domestic bank including a branch office of a foreign bank which branch office is located in the United States, provided legal opinions are received to the effect that full and timely payment of such deposit or similar obligation is enforceable against the principal office or any branch of such bank, which, at the time of purchase, has a short-term "Bank Deposit" rating of"P-1" by Moody's and a "Short-Term CD" rating of "A-1" or better by S&P. -9- (6) Deposits of any bank or savings and loan association which has combined capital, surplus and undivided profits of not less than $3 million, provided such deposits are continuously and fully insured by the Bank Insurance Fund or the Savings Association Insurance Fund of the Federal Deposit Insurance Corporation; (7) Investments in money-market funds rated "AAAm" or "AAAm-G" by Standard & Poor's Corporation; (8) Repurchase agreements collateralized by Direct Obligations, GNMAs, FNMAs or FHLMCs with any registered broker/dealer subject to the Securities Investors' Protection Corporation jurisdiction or any commercial bank insured by the FDIC, if such broker/dealer or bank has an uninsured, unsecured and unguaranteed obligation rated "P-1" or"A3" or better by Moody's Investors Service, and "A-1" or "A-" or better by Standard & Poor's Corporation, provided: (a) a master repurchase agreement or specific written repurchase agreement governs the transaction; and (b) the securities are held free and clear of any lien by the Paying Agent or an independent third party acting solely as agent ("Agent") for the Paying Agent, and such third party is (i) a Federal Reserve Bank, (ii) a bank which is a member of the Federal Deposit Insurance Corporation and which has combined capital, surplus and undivided profits of not less than $50 million or (iii) a bank approved in writing for such purpose by all Credit Facility Providers, and the City and the Paying Agent shall have received written confirmation from such third party that it holds such securities, free and clear of any lien, as agent for the City and the Paying Agent; and (c) a perfected first security interest under the Uniform Commercial Code, or book entry procedures prescribed at 31 C.F.R. 306.1 et seq. or 31 C.F.R. 350.0 et seq. in such securities is created for the benefit of the City and the Paying Agent; and (d) the repurchase agreement has a term of 180 days or less, and the City and the Paying Agent will value the collateral securities no less frequently than weekly and will liquidate the collateral securities if any deficiency in the required collateral percentage is not restored within two business days of such valuation; and (e) the fair market value of the securities in relation to the amount of the repurchase obligation, including principal and interest, is equal to at least 103%. (9) Investment agreements, the issuer, form and substance of which are specifically approved by all Credit Facility Providers. -10- "Pledged Funds" shall mean, collectively, (i) the Guaranteed Entitlement Revenues and the Sales Tax Revenues, except for such portion thereof hereafter released from the pledge of this Ordinance pursuant to Section 302 hereof, and, (ii) except for moneys, securities and instruments in the Rebate Fund, all moneys, securities and instruments held in the Funds and Accounts created and established by this Ordinance. "Principal Account" shall mean the Principal Account of the Sinking Fund established pursuant to Section 304(d) hereof. "Principal Payment Date" shall mean for each Bond each date on which principal of such Bond is scheduled to be payable, as set forth in the proceedings of the City providing for the issuance of such Bond. "Project Account" shall, as to any issue of Bonds, mean the Project Account of the Project Fund established for such issue pursuant to Section 303 hereof. "Project Fund" shall mean a special fund created pursuant to and described in Section 303 hereof. "Purchasers" shall mean as to any Series of Bonds, the initial purchaser or purchasers of such Series of Bonds as provided in the resolution of the City providing for the sale of such Series of Bonds. "Registrar" shall mean the bank or trust company appointed by the City, located within or without the State of Florida, which shall maintain the registration books of the City and be responsible for the transfer and exchange of the Bonds, and which shall also be the Paying Agent for the Bonds. "Reserve Account" shall mean the Debt Service Reserve Account created pursuant to and described in Section 304(d) hereof. "Reserve Account Credit Facility" shall mean and include any Reserve Account Letter of Credit or Reserve Account Insurance Policy. "Reserve Account Insurance Policy" shall mean an insurance policy or surety bond or other financial guaranty, if any, issued to the Paying Agent in lieu of or in partial substitution for cash or securities on deposit in the Debt Service Reserve Account. The issuer providing such insurance, surety bond or financial guaranty shall be a municipal bond insurer rated, at the time of the deposit thereof in the Debt Service Reserve Account, in any of the three highest rating categories of either Moody's Investors Service, Inc. or any successors thereof or Standard & Poor's Corporation or any successors thereof; provided that so long as any Bonds insured by the Series 1994 Bond Insurer are outstanding, the same shall also meet the requirements set forth in Exhibit B hereto. "Reserve Account Letter of Credit" shall mean any irrevocable, transferable letter of credit deposited in the Debt Service Resenre Account in lieu of or in partial substitution for cash or securities on deposit therein. The issuer providing such letter of credit shall be a national -11- banking association, bank or trust company or branch thereof or a United States branch of a foreign bank rated, at the time of deposit into the Debt Service Reserve Account, in any of the three highest rating categories of either Moody's Investors Service, Inc. or any successors thereof or Standard &Poor's Corporation or any successors thereof; provided that so long as any Bonds insured by the Series 1994 Bond Insurer are outstanding, the same shall also meet the requirements set forth in Exhibit B hereto. "Reserve Account Requirement" means the lesser of(i) Maximum Annual Debt Service on all Outstanding Bonds or (ii) the sum of the Reserve Account Deposits for all issues (within the meaning of the Code)of Bonds, any portion of which are outstanding on the date as of which the Reserve Account Requirement is calculated. The Reserve Account Deposit which is required upon the issuance of any "issue" (as defined in the Code) of Bonds shall be the least of: (i) 10% of the proceeds (within the meaning of the Code) of such issue; (ii) 125% of average annual debt service on Bonds of such issue; (iii) the Maximum Annual Debt Service on Bonds of such issue; or (iv) the amount needed to be deposited in the Debt Service Reserve Account to cause the balance therein, immediately after the issuance of such Bonds (and the retirement or defeasance of any Bonds retired or defeased on the issuance date of such issue), to cause the balance in the Debt Service Reserve Account to equal the Maximum Annual Debt Service on all Bonds which are outstanding on such issuance date. "Sales Tax Revenues" shall mean the proceeds of the local government half-cent sales tax as defined, and described in, and distributed to the City under Part VI, Chapter 218, Florida Statutes, or any successor statutory provisions. "Sale Proceeds" shall mean any amounts actually or constructively received from the sale of Bonds, including amounts used to pay underwriters' discount and accrued interest other than pre-issuance accrued interest. "Serial Bond" shall mean any Bond which is not a Term Bond. "Series" shall mean all of the Bonds authenticated and delivered on original issuance and pursuant to this Ordinance or supplemental ordinance or resolution relating to such Bonds designated as a separate Series of Bonds, or any Bonds thereafter authenticated and delivered in lieu of or in substitution for such Bonds pursuant to Article II hereof, regardless of variations in maturity, interest rate or other provisions. "Series 1994 Bonds" shall mean the Series 1994 Bonds authorized to be issued under Section 201(a) of this Ordinance in the aggregate principal amount not to exceed $10,000,000. "Series 1994 Bond Insurance Policy" shall mean the municipal bond new issue insurance policy issued by the Series 1994 Bond Insurer that guarantees payment of the principal of and interest on the Series 1994 Bonds. -12- "Series 1994 Bond Insurer" shall mean Financial Guaranty Insurance Company, a New York stock insurance company or successor thereto "Series 1994 Reserve Account Insurance Policy" shall mean the Reserve Account Insurance Policy issued by the Series 1994 Bond Insurer upon the issuance of the Series 1994 Bonds. "Sinking Fund" shall mean the fund created pursuant to and described in Section 304(d) hereof. "State" shall mean the State of Florida. "Term Bond" shall mean the Bonds of any Series and maturity which shall be stated to mature on one date and for the amortization of which payments are required to be made into the Bond Redemption Account in the Sinking Fund. "Variable Rate Bonds" shall mean Bonds, which may be either Serial Bonds or Term Bonds, issued with a variable, adjustable, convertible or other similar rate which is not fixed in percentage for the entire term thereof at the date of issue. Words importing singular number shall include the plural number in each case and vice versa, and words importing persons shall include firms and corporations. Words defined in Section 101 hereof that appear in this Ordinance in lower case form shall have the meanings ascribed to them in the definitions in Section 101 unless the context shall otherwise indicate. The words "Bond", "Owner", "Holder" and "person" shall include the plural as well as the singular number unless the context shall otherwise indicate. The word "person" shall include corporations and associations, including public bodies, as well as natural persons, unless the context shall otherwise indicate. The word "Bond" or "Bonds" and the words "revenue bond" or "revenue bonds" shall mean any Bond or Bonds or all of the Bonds, as the case may be, issued under the provisions of this Ordinance. The word "Ordinance" shall include this Ordinance and each ordinance supplemental hereto. Unless the context otherwise requires, references in this Ordinance to section numbers shall refer to sections of this Ordinance. SECTION 102. AUTHORITY FOR THIS ORDINANCE AND THE BONDS. This Ordinance is adopted pursuant to the provisions of the Act. The Bonds authorized herein are authorized by and are to be issued pursuant to this "home rule" ordinance under the authority of the Act, in lieu of being issued under alternative provisions for the issuance of bonds contained in the City Charter. SECTION 103. FINDINGS. It is hereby ascertained, determined and declared: (a) Under Section 336.025, Florida Statutes, the City is entitled to receive the Guaranteed Entitlement Revenues and under Chapter 218, Part IV, Florida Statutes, the City is entitled to receive the Sales Tax Revenues. (b) The principal of and interest on the Bonds and all required sinking fund, reserve and other payments shall be payable by the City solely from the Pledged Funds. -13- Neither the City, the County, or the State of Florida nor any political subdivision thereof or governmental authority or body therein shall ever be required to levy ad valorem taxes to pay the principal of or interest on the Bonds or to make any of the sinking fund, reserve or other payments required by this Ordinance or the Bonds, and the Bonds shall not constitute a lien upon any property owned by or situated within the corporate territory of the City, except as provided herein with respect to the Pledged Funds. (c) The estimated Pledged Funds will be sufficient to pay all principal of and interest on the Bonds to be issued hereunder, as the same become due, and to make all sinking fund, reserve or other payments required by this Ordinance. SECTION 104. ORDINANCE CONSTITUTES CONTRACT. In consideration of the acceptance of the Bonds authorized to be issued hereunder by those who shall own the same from time to time, this Ordinance shall be deemed to be and shall constitute a contract between the City and such Bondholders, and the covenants and agreements herein set forth to be performed by the City shall be for the equal benefit, protection and security of the owners of any and all of such Bonds, all of which shall be of equal rank and without preference, priority, or distinction of any of the Bonds over any other thereof except as expressly provided therein and herein. [END OF ARTICLE I] -14- ARTICLE II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF BONDS; THE 1994 PROJECT SECTION 201. AUTHORIZATION OF THE BONDS. (a) Series 1994 Bonds. Subject and pursuant to the provisions of this Ordinance, Bonds of the City to be known as Capital Improvement Revenue Refunding Bonds in one or more Series are hereby authorized to be issued in an aggregate principal amount not to exceed Ten Million Dollars ($10,000,000) for the purpose of providing funds to advance refund the Series 1991A Bonds or for the purpose of providing funds to pay the costs of the 1994 Project, or for both such purposes, and to pay certain costs of issuance of the Series 1994 Bonds including costs of any Reserve Account Insurance Policy and any Credit Facility for the Series 1994 Bonds. The Series 1994 Bonds may be issued all at one time or from time to time and may be dated, numbered, and designated all as shall be determined by subsequent resolution of the City. (b) Additional Bonds. The City is authorized to issue one or more Series of additional parity Bonds by subsequent resolution upon the conditions set forth in Section 304(h) hereof. (c) Terms of the Bonds. Subject to the limitations contained herein, the Bonds of each issue or Series shall be issued in such aggregate amount, shall be dated, shall mature on such dates and in such amounts, shall be in the form of Serial Bonds or Term Bonds or a combination thereof, shall have such Interest Payment Dates or interest compounding dates, shall bear interest at such rates, shall have such Amortization Requirements, shall be subject to redemption at such times, at such prices and pursuant to such notice provisions and shall be in such form (which shall include a Certificate of Authentication), as shall be determined by subsequent resolution of the City. SECTION 202. DESCRIPTION OF BONDS. Unless otherwise specified by the City by subsequent resolution, any Bonds issued pursuant to this Ordinance shall be issued in fully registered form and, if the Registrar issues notice of the availability of exchanging registered Bonds for coupon Bonds, in coupon form. If the Registrar receives an opinion of counsel of recognized standing in the field of law relating to municipal bonds to the effect that the issuance of any of the Bonds in coupon form will not adversely affect the exclusion from gross income for Federal income tax purposes of the interest on any of the Bonds, the Registrar may, at the written direction of the City, mail notice to the registered owners of the Bonds of the availability of exchanging registered Bonds and coupon Bonds. Registered Bonds may then be exchanged for an equal aggregate principal amount of coupon Bonds of the same Series and maturity of any authorized denomination and coupon Bonds may be exchanged for an equal aggregate principal amount in the manner provided in this Ordinance. The Bonds of each Series shall be dated as determined by or pursuant to subsequent resolution of the City relating to the issuance of such Series of Bonds; shall bear interest from their date at a rate not exceeding the maximum legal rate per annum, with interest mailed to the -15- registered Holder thereof on each Interest Payment Date by the Paying Agent at the address shown on the registration books of the City (held by the Registrar) at the close of business on the 15th day of the calendar month preceding an Interest Payment Date(in each case a "Regular Record Date"), except for(i) Capital Appreciation Bonds which shall accrue and pay interest as described under the defined terms Accreted Value and Capital Appreciation Bond and(ii)Capital Appreciation and Income Bonds which shall accrue and pay interest as described under the defined terms Appreciated Value and Capital Appreciation and Income Bond; shall be lettered and shall be numbered in such manner as determined by subsequent proceedings of the City relating to the issuance of such Series of Bonds; shall be in the denomination of$5,000 or any integral multiple thereof, except for(i)Capital Appreciation Bonds, which may be initially issued in any denomination so long as their Accreted Value at maturity shall be$5,000 or any integral multiple thereof and (ii) Capital Appreciation and Income.Bonds, which may be initially issued in any denomination so long as their Appreciated Value at the Interest Commencement Date shall be$5,000 or any integral multiple thereof; and shall mature on such dates, in such years and in such amounts, as determined by subsequent proceedings of the City relating to such Series of Bonds, but not to exceed any maximum maturity permitted by law. Notwithstanding anything in this paragraph to the contrary, any interest not punctually paid on an Interest Payment Date shall forthwith cease to be payable to the registered Holder on the Regular Record Date and may be paid to the registered Holder as of the close of business on a special record date for the payment of such defaulted interest to be fixed by the Paying Agent, notice of which shall be given by the Paying Agent not less than 10 days prior to such special record date to the registered Holders. The Bonds of each Series issued hereunder may be Serial Bonds or Term Bonds and may be Capital Appreciation Bonds or Capital Appreciation and Income Bonds and such other types of bonds as may be marketable from time to time, including, without limitation, taxable Bonds and Bonds issued in book entry form, as determined by subsequent resolution of the City. SECTION 203. REDEMPTION PROVISIONS. The Bonds of each Series may be subject to redemption prior to maturity at such times, at such redemption prices and upon such terms and upon such notice as may be specified by or provided for by delegation in the resolution of the City,"which provides for the details of the Bonds of such Series. Notice of the redemption of Series 1994 Bonds, other than mandatory sinking fund redemption and excepting any notice of redemption relating to Series 1994 Bonds that have been defeased in an advance refunding, shall be circulated only if sufficient funds have been deposited with the Paying Agent to pay the redemption price of the Series 1994 Bonds to be redeemed. Unless otherwise provided by subsequent resolution relating to any particular Series of Bonds notice of redemption shall be mailed by the Paying Agent to the Owners of all Bonds of a Series to be redeemed, by first class mail, postage prepaid, not less than thirty (30) days prior to the date of redemption of such Series of Bonds. In addition to any required redemption notice to Bondholders, the City may cause the Paying Agent to give, at the expense of the City, additional notice of redemption for Bonds being redeemed to registered securities depositories and to national information services that disseminate redemption notices at least 2 business days in advance of the notice mailed to holders of Bonds by sending notice to one or more depositories, such as Depository Trust Company of -16- New York, New York, Midwest Securities Trust Company of Chicago, Illinois, Pacific Securities Depository Trust Company of San Francisco, California, and Philadelphia Depository Trust Company of Philadelphia, Pennsylvania and to national information services such as Financial Information Inc.'s Daily Called Bond Service, Interactive Data Corporation's Bond Service,Kenny Information Service's Called Bond Service,Moody's Municipal and Government News Reports and Standard and Poor's Called Bond Record. In addition to the required notice of redemption, the City may publish notice of redemption one time in The Bond Buyer or in some other financial newspaper or journal which regularly carries notices of redemption of other obligations similar to the Bonds. Notwithstanding the foregoing notice provisions, failure to mail the required notice or any defect therein shall not affect the validity of any redemption proceedings of any Bond as to which such required notice of redemption has been properly given to the Holder thereof. SECTION 204. EXECUTION OF BONDS. The Bonds of each Series shall be executed in the name of the City by the Mayor, and the seal of the City or a facsimile thereof shall be affixed thereto or imprinted or reproduced thereon and attested by the City Clerk, either manually or with their facsimile signatures, except to the extent that applicable law requires that such signatures be manual. In case any one or more of the officers who shall have signed or sealed any of the Bonds shall cease to be such officer before the Bonds so signed and sealed shall have been actually sold and delivered, such Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed and sealed such Bonds had not ceased to hold such office. Any Bond may be signed and sealed on behalf of the City by such person as at the actual time of the execution of such Bond shall hold the proper office, although at the date of such Bonds such person may not have held such office or may not have been so authorized. The Bonds of each Series shall bear thereon a certificate of authentication, in the form set forth in the form of such Bonds, executed manually by the Registrar. Only such Bonds as shall bear therein such certificate of authentication shall be entitled to any right or benefit under this Ordinance and no Bond shall be valid or obligatory for any purpose until such certificate of authentication shall have been duly executed by the Registrar. Such certificate of the Registrar upon any Bond executed on behalf of the City shall be conclusive evidence that the Bond so authenticated has been duly authenticated and delivered under this Ordinance and that the Holder thereof is entitled to the benefits of this Ordinance. If the Bonds of a Series have been validated, a validation certificate, in the form required by Chapter 75, Florida Statutes, on each of the Bonds of such Series shall be signed with the manual or facsimile signature of the City Clerk, and the City may adopt and use for that purpose the facsimile signature of any person who shall have been such City Clerk at any time on or after the date of the Bonds, notwithstanding that he or she may have ceased to be such City Clerk at the time when said Bonds shall be actually delivered. SECTION 205. NEGOTIABILITY,REGISTRATION AND CANCELLATION. At the option of the registered Holder thereof and upon surrender of any Bonds at the corporate trust office of the Registrar designated in such Bonds with a written instrument of transfer satisfactory -17- to the Registrar duly executed by the registered Holder or his duly authorized attorney-in-fact and upon payment by such Holder of any charges which the Registrar or the City may make as provided in this Section, the Bonds may be exchanged for Bonds of the same aggregate principal amount of the same Series and maturity of any other authorized denominations. The Registrar shall keep books for the registration of Bonds and for the registration of transfers of Bonds. The Bonds shall be transferable by the Holder thereof in person or by his attorney-in-fact duly authorized in writing only upon the books of the City kept by the Registrar and only upon surrender thereof together with a written instrument of transfer satisfactory to the Registrar (at the corporate trust office designated in such Bonds) duly executed by the Holder or his duly authorized attorney-in-fact. Upon the transfer of any such Bond, the City shall cause to be issued in the name of the transferee a new Bond or Bonds. The City, the Paying Agent and the Registrar may deem and treat the person in whose name any Bond shall be registered upon the books kept by the Register as the absolute Holder of such Bond, whether such Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of, premium, if any, and interest on such Bond as the same becomes due and for all other purposes. All such payments so made to any such Holder or upon his order shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid, and neither the City, the Paying Agent nor the Registrar shall be affected by any notice to the contrary. In all cases in which the privilege of exchanging Bonds or transferring Bonds is exercised, the City shall execute and the Registrar shall authenticate and deliver Bonds in accordance with the provisions of this Ordinance. All Bonds surrendered in any such exchanges or transfers shall forthwith be delivered to the Registrar and canceled by the Registrar in the manner provided in this Section. There shall be no charge for any such exchange or transfer of Bonds, but the Registrar shall require the payment of a sum sufficient to pay any tax, fee or other governmental charge required to be paid with respect to such exchange or transfer. Neither the City nor the Registrar shall be required (a) to transfer or exchange Bonds of any Series for a period of 15 days next preceding any selection of Bonds of such Series to be redeemed or thereafter until after the mailing of any notice of redemption relating to any Bonds of such Series; or (b) to transfer or exchange any Bonds of any Series called for redemption. All Bonds paid or redeemed, either at or before maturity shall be delivered to the Paying Agent when such payment or redemption is made, and such Bonds, together with all Bonds purchased by the City and surrendered to the Registrar for cancellation, shall thereupon be promptly canceled. Bonds so canceled may at any time be destroyed by the Registrar, who shall execute a certification of destruction by the signature of one of its authorized officers describing the Bonds so destroyed, and the executed certificate shall be filed with the City and the Registrar shall retain a record of such destruction. SECTION 206. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case any Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new replacement Bond of like Series, date, maturity, denomination and interest rate as the Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated Bond, such mutilated Bond shall first be surrendered to the City and, -18- Upon such payment or deposit in the amount and manner provided in this Section 304(1) and upon receipt of the opinion of Bond Counsel referred to below, such Bond shall be deemed to be paid and shall no longer be deemed to be Outstanding for the purposes of this Ordinance and all liability of the City with respect to said Bond shall cease, terminate and become completely discharged and extinguished, and the Holders thereof shall be entitled for payment solely out of the moneys or securities so deposited; provided that if the Bonds are defeased in the manner described in (ii) or (iii) above and if said Bonds do not mature and are not to be redeemed within the next succeeding sixty (60)days, the City shall have given the Paying Agent irrevocable instructions to give, as soon as practicable, a notice of defeasance to the Holders of said Bonds by first-class mail, postage prepaid, stating that moneys or monies and Defeasance Obligations have been deposited with the Paying Agent acting as escrow agent solely for the Holders of said Bonds and other Bonds being defeased, and the said Bonds are deemed to have been paid in accordance with this Section and stating such maturity or redemption date upon which moneys are to be available for the payment of the principal of and premium, if any, and interest on said Bonds. If any defeased Bond is to be redeemed prior to its final maturity, the City shall give irrevocable instructions to the Paying Agent to give timely notice of the call thereof for redemption. Notwithstanding the foregoing, all references to the discharge and satisfaction of Bonds shall include the discharge and satisfaction of any issue of Bonds, any portion of any issue of Bonds, any maturity or maturities of any issue of Bonds, any portion of a maturity of an issue of Bonds or any combination thereof. In the event that the principal or redemption price, as applicable and interest due on any Bond shall be paid by the issuer of a Credit Facility pursuant to the terms thereof, the assignment and pledge created hereunder and all covenants, agreements and other obligations of the City to the Bondholder shall continue to exist and the issuer of such Credit Facility shall be subrogated to the rights of such Bondholder. If any portion of the moneys deposited in an Escrow Fund for the payment of the principal of the redemption premium,if any, and interest on any Bond is not required to continue to be held in escrow for such purpose (as shown by the verification report referred to above or by a supplemental verification report), the City may use the amount of such excess free and clear of any trust, lien, security interest,pledge or assignment securing said Bond or otherwise existing under this Ordinance. As a condition to the defeasance of any Bond, the City shall deliver to the Paying Agent an opinion of Bond Counsel stating that the conditions set forth above have been complied with and that such Bond has been defeased as provided herein and, if the interest income on such Bond was intended to be excludable from the gross income of the Holder under the Code, also stating that the defeasance thereof, will not, of itself, cause the interest thereon to be or to become includable in the Holder's gross income. If any Escrow Fund is created hereunder, the Escrow Fund may be restructured by the substituting of cash and/or Defeasance Obligations for other cash and Defeasance Obligations, provided that (i) a new verification report of a certified public accountant is obtained verifying -38- the sufficiency of the Escrow Fund as herein provided, and (ii) a new opinion of Bond Counsel has been obtained, as above provided. At such times as all Bonds issued hereunder have been defeased, all amounts due all Credit Facility Providers have been paid and all amounts, including Policy Costs, due all issuers of Reserve Account Letters of Credit and Reserve Account Insurance Policies have been paid all amounts due the Fiduciaries for fees,expenses and indemnification and all rebate payments under Section 148(f)of the Code have been paid then the lien granted by this Ordinance on the Pledged Funds shall terminate and when all Bonds have been actually paid and retired this Ordinance shall be deemed to be repealed. (m) CONCERNING RESERVE ACCOUNT INSURANCE POLICIES,RESERVE ACCOUNT LETTERS OF CREDIT AND CREDIT FACILITIES. As long as any Reserve Account Insurance Policy or a Reserve Account Letter of Credit is in effect as a credit to the Debt Service Reserve Account, the City covenants that it will comply with the provisions of each such Reserve Account Insurance Policy and Reserve Account Letter of Credit and with the provisions of the reimbursement agreement or similar agreement with respect thereto. As long as any Bonds are secured by a Credit Facility, the City covenants to comply with the requirements and conditions imposed on the City by the issuer of the Credit Facility. Notwithstanding anything in this Ordinance to the contrary, the rights of any Credit Facility Provider(except to the rights of subrogation for payments made thereunder)shall remain in full force and effect only so long as such Credit Facility shall remain in effect and such Credit Facility Provider shall not be in default in its payment obligations to the holders of Bonds secured by such Credit Facility. The Paying Agent, by accepting the duties of Paying Agent shall be deemed to have agreed to give such notice and make draws of funds thereunder when needed to pay debt service on the Bonds secured thereby. [END OF ARTICLE III] -39- ARTICLE IV CONCERNING THE FIDUCIARIES SECTION 401. FIDUCIARIES; APPOINTMENT AND ACCEPTANCE OF DUTIES. The City hereby appoints First Union National Bank of Florida, Miami, Florida as Registrar and Paying Agent. The Registrar and Paying Agent shall signify its acceptance of the duties and obligation imposed upon it by this Ordinance by executing and delivering to the City a written acceptance thereof. Unless otherwise provided by a written agreement between the City and the Paying Agent, the corporate trust office of the Paying Agent designated in the Bonds of any Series shall be the office at which Bonds of such Series shall be delivered for the payment of the principal and redemption premium, if any, and at which Bonds of such Series shall be surrendered for transfer, exchange, or replacement and the offices at which the registration books for the Bonds shall be kept. SECTION 402. RESPONSIBILITIES OF FIDUCIARIES. The recital of facts herein and in the Bonds contained shall be taken as the statement of the City and no Fiduciary assumes any responsibility for the correctness of the same. No Fiduciary makes any representation as to the validity or sufficiency of this Ordinance, or of any supplemental ordinance or resolution or of any Bonds issued thereunder or as to the security afforded by this Ordinance, and no Fiduciary shall incur any liability in respect thereof. The Registrar shall, however, be responsible for its representation contained in its certificate of authentication of the Bonds. No Fiduciary shall be under any responsibility or duty with respect to the application of any moneys held by the City in accordance with the provision of this Ordinance. No Fiduciary shall be under any obligation or duty to perform any act which would involve it in expense (except as expressly provided herein) or which would cause it to incur any liability or to institute or defend any suit in respect thereof, or to advance any of its own moneys, unless properly indemnified. No Fiduciary shall be liable in connection with the performance of its duties hereunder except for its own negligence or willful misconduct. Moneys held by the Paying Agent for the Bonds which have become due shall not be invested for the benefit of the City and shall be held and used for the payment of debt service on the Bonds for which the deposit was made, subject to the provisions of Section 606 hereof. Except to the extent expressly provided herein, the Fiduciary shall have no duty to monitor or review the City's administration of the Pledged Funds or the City's compliance with any of the provisions hereof, other than the City's obligation to deposit moneys with the Paying Agent for the payment of Debt Service on the Bonds. However, the Paying Agent shall give immediate notice by telephone, properly confirmed by written notice, to the Series 1994 Bond Insurer and to each other Credit Facility Provider and to each issuer of a Reserve Account Letter of Credit or Reserve Account Insurance Policy of any failure of the City to make timely payments to the Paying Agent for the payment of Debt Service and within thirty (30) days of its receipt of notice or obtaining knowledge of any other default shall give written notice thereof to the Series 1994 Bond Insurer and to each other Credit Facility Provider and to each issuer of a Reserve Account Letter of Credit or Reserve Account Insurance Policy. When written notice is given, as above provided, written notice shall also be mailed to the Holders at their addresses as shown on the Register. -40- SECTION 403. EVIDENCE ON WHICH FIDUCIARIES MAY ACT. (a) Each Fiduciary, upon receipt of any notice, resolution, request, consent, order, certificate, report, opinion, bond, or other paper or document furnished to it pursuant to any provision of this Ordinance, shall examine such instrument to determine whether it conforms to the requirements of this Ordinance and shall be protected in acting upon any such instrument believed by it to be genuine and to have been signed or presented by the proper party or parties. Each Fiduciary may reasonably consult with counsel, who may or may not be of counsel to the City, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it under this Ordinance in good faith and in accordance therewith. The reasonable fees and expenses of such counsel shall constitute expenses of such Fiduciary that are subject to payment or reimbursement by the City hereunder. (b) Whenever any Fiduciary shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action under this Ordinance, such matter (unless other evidence in respect thereof be therein specifically prescribed) may be deemed to the conclusively proved and established by a certificate of the Mayor, the City Manager or the City Clerk, or the Chief Financial Officer of the City, and such certificate shall be full warrant for any action taken or suffered in good faith under the provision of this Ordinance upon the faith thereof; but in its discretion the Fiduciary may in lieu thereof accept other evidence of such fact or matter or may required such further or additional evidence as it my deem reasonable. (c) Except as otherwise expressly provided in this Ordinance, any request, order, notice or other direction required or permitted to be furnished pursuant to any provision thereof by the City to any Fiduciary shall be sufficiently executed in the name of the City by the Mayor, City Manager, the City Clerk or the Chief Financial Officer of the City. SECTION 404. COMPENSATION. The City shall agree with any Fiduciary by separate agreement to pay to such Fiduciary from time to time reasonable compensation for all services rendered under this Ordinance, and to pay all reasonable expenses, charges, counsel fees and expenses and other disbursements, including those of its attorneys, agents and employees, incurred in and about the performance of their powers and duties under this Ordinance. The City may also agree with any Fiduciary by separate agreement to indemnify, to the extent permitted by law, any Fiduciary for any and all of its reasonable fees, costs and expenses resulting from any claim, liability or the like incurred in and about the performance of its powers and duties under this Ordinance. Amounts paid for fees, expenses and indemnification shall be secured by a lien on amounts in the Capital Improvement Fund having the priority described in Section 304(d)(iii). Fees and expenses of any trustee appointed by the court incurred with respect to any event of default shall be established by order of said court and shall be paid prior to payments described in Section 304(d). SECTION 405. CERTAIN PERMITTED ACTS. Any Fiduciary, individually or otherwise, may become the owner of any Bonds, with the same right it would have if it were not a Fiduciary. To the extent permitted by law, any Fiduciary may act as depositary for, and permit any of its officers or directors to act as a member of, or in any other capacity with . •■ u . L . •.. 1■ . . . Z. 1 11 1 1 . t • I - . . - . . 1 . 1 reorganization growing out of the enforcement of the Bonds or this Ordinance, whether or not -41- any such committee shall represent the Holders of a majority in principal amount of the Bonds then Outstanding. SECTION 406. MERGER OR CONSOLIDATION. Any entity into which any Fiduciary may be merged or converted or with which it may be consolidated or any entity resulting from any merger, conversion or consolidation to which it shall be a party or any entity to which any Fiduciary may sell or transfer all or substantially all of its corporate trust business, shall automatically become successor Fiduciary, without the execution or filing of any paper or the performance of any further act, if it then meets the qualifications set forth in Section 409 hereof; if such successor does not meet the qualifications, a vacancy shall occur and Section 409 shall apply. SECTION 407. AUTHENTICATION. Bonds shall be authenticated by the Registrar upon initial issuance of the written direction of the City and upon subsequent exchange, transfer, replacement or partial redemption. In case of the Bonds contemplated to be issued under this Ordinance shall have been authenticated but not delivered, any successor Registrar may adopt the certificate of authentication of any predecessor Registrar so authenticating such Bonds and deliver such Bonds so authenticated; and in case any of the said Bonds shall not have been authenticated, any successor Registrar may authenticate such Bonds in the name of the predecessor Registrar, or in the name of the successor Registrar, and in all such cases such certificate shall be fully effective. SECTION 408. RESIGNATION OR REMOVAL OF PAYING AGENT AND APPOINTMENT OF SUCCESSOR. Any Fiduciary may at any time resign and be discharged of the duties and obligation created by this Ordinance by giving at least 60 days' written notice to the issuer of a Credit Facility, to each issuer of a Reserve Account Insurance Policy or Reserve Account Letter of Credit and to the City. Any Fiduciary may be removed at any time by an instrument filed with such Fiduciary and with copies filed with the issuer of each Credit Facility, Reserve Account Insurance Policy and Reserve Account Letters of Credit and signed by the Mayor or City Manager provided that all amounts payable such Fiduciary under Section 404 have been paid. No such resignation or removal shall become effective until a successor has been appointed and accepted the duties of such Fiduciary. SECTION 409. VACANCY. If at any time hereafter any Fiduciary shall resign, be removed, be dissolved, or otherwise become incapable of acting, or if the bank or trust company acting as any Fiduciary shall be taken over by any governmental official, agency, department or board, the position of Fiduciary shall thereupon become vacant. If the position of such Fiduciary shall become vacant for any of the foregoing reasons or for any other reason, the City promptly shall appoint a successor Fiduciary. The City shall give written notice to the issuer of each Credit Facility and to each issuer of a Reserve Account Insurance Policy or Reserve Account Letter of Credit of the appointment of any successor Fiduciary and shall promptly publish notice to the Holders of any such appointment once in each week for two (2) successive weeks in The Bond Buyer or other financial journal published in the Borough of Manhattan, City and State of New York and notice of such change of Fiduciary shall be mailed to the Holder of each Bond or such Bond's next Interest Payment Date. Such notice identify the Successor Fiduciary and the address at which Bonds are to be surrendered for payment, redemption, exchange and transfer. -42- , If no appointment of a successor Fiduciary shall be made pursuant to the foregoing provisions of this Section, the Holder of any Bond Outstanding hereunder or any retiring Fiduciary or the issuer of any Credit Facility, Reserve Account Letter of Credit or Reserve Account Insurance Policy may apply to any court of competent jurisdiction to appoint a successor Fiduciary. Such court may thereupon, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Fiduciary. Any Fiduciary hereafter,appointed shall be a bank or trust company authorized by law to exercise corporate trust powers and subject to examination by federal or state authority, of good standing and having at the time of its appointment a combined capital and surplus aggregate not less than Fifty Million Dollars ($50,000,000). In the event of the resignation or removal of any Fiduciary, such Fiduciary shall deliver any moneys held by it as Paying Agent and the registration books of for the Bonds to its successor. The name of the successor Fiduciary and address at which previously issued Bonds are to be surrendered for payment, redemption, transfer or exchange shall be stamped on any replacement Bonds issued upon partial payment, exchange or transfer. [END OF ARTICLE IV] r -43- ARTICLE V EXECUTION OF INSTRUMENTS BY BONDHOLDERS AND PROOF OF OWNERSHIP OF BONDS SECTION 501. PROOF OF EXECUTION OF DOCUMENTS AND OWNERSHIP. (a) Any request, direction, consent or other instrument in writing required by this Ordinance to be signed or executed by Bondholders may be in any number of concurrent instruments of similar tenor and may be signed or executed by such Bondholders in person or by their attorneys or legal representatives appointed by an instrument in writing. Proof of the execution of any such instrument and of the ownership of Bonds shall be sufficient for any purpose of this Ordinance and shall be conclusive in favor of the Fiduciary with regard to any action taken by it under such instrument if made in the following manner: (i) The fact and date of the execution by any person of any such instrument may be proved by the verification of any officer in any jurisdiction who, by the laws thereof, has power to take affidavits within such jurisdiction, to the effect that such instrument was subscribed and sworn to before him, or by an affidavit of a witness to such execution. Where such execution is in behalf of a person other than an individual, such verification shall also constitute sufficient approval of the authority of the signor thereof. (ii) The ownership of Bonds shall be proved by the registration books required to be maintained pursuant to the provisions of this Ordinance. Nothing contained in this Article shall be construed as limiting the Fiduciary to such proof, it being intended that the Fiduciary may accept any other evidence of the matters herein stated which it may deem sufficient. (b) If the City shall solicit from the Holders any request, direction, consent or other instrument in writing required or permitted by this Ordinance to be signed or executed by the Holders, the City may, at its option, fix in advance a record date for determination of Holders entitled to give each request, direction, consent or other instrument, but the City shall have no obligation to do so. If such a record date is fixed, such request, direction, consent or other instrument may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Bonds have authorized or agreed or consented to such request, direction, consent or other instrument, and for that purpose the Bonds shall be computed as of such record date. Notice of such record date shall be given to the Registrar; copies of such request, direction, consent or other instrument will be provided to the Registrar by the City. -44- (c) Any request, direction, consent or other instrument of the Holder of any Bond shall bind every future Holder of the same Bond in respect of anything done by the City or the Fiduciary, or both, in pursuance of such request, direction, consent or other instrument. [END OF ARTICLE V] -45- ARTICLE VI MISCELLANEOUS PROVISIONS SECTION 601. MODIFICATION OR AMENDMENT. (a) Except as otherwise provided in subsection (b) or (c)hereof, no adverse material modification or amendment of this Ordinance which term shall in this Article include any ordinance or resolution amendatory hereof or supplemental hereto, may be made without the consent in writing of(i) the Holders of more than fifty percent (50%) in aggregate principal amount of the Bonds then Outstanding or (ii) in case less than all of the several Series of Bonds then Outstanding are affected by the modification or amendment, the Holders of more than fifty percent (50%)in aggregate principal amount of the Bonds of each Series so affected and Outstanding at the time such consent is given (for such purposes the issuer of a Credit Facility shall be treated as the Holder of Bonds secured thereby so long as it has not defaulted under the Credit Facility) (b) No modification or amendment shall permit a change in the maturity of any Bonds or a reduction in the rate of interest thereon, or affecting the promise of the City to pay the principal of and interest on such Bond, as the same mature or become due, from the Pledged Funds, or reduce the percentage of Holders of Bonds required above for such modification or amendment, without the consent of the Holders of all the Bonds adversely affected thereby and the consent of the issuer of any Credit Facility securing such adversely affected Bonds. (c) This Ordinance may be amended, changed, modified and altered without the consent of either the Holders of Bonds or of the issuer of any Credit Facility or any Reserve Account Insurance Policy or any Reserve Account Letter of Credit (unless otherwise provided in any agreement of the City with such issuer): (1) to cure any ambiguity or formal defect or omission in this Ordinance or in any supplemental resolutions or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provisions contained herein; or (2) to grant to or confer upon the Bondholders any additional rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the Bondholders; or (3) to add to the conditions, limitations and restrictions on the issuance of Bonds under the provisions of this Ordinance, other conditions, limitation and restrictions thereafter to be observed; or (4) to add to the covenants and agreements of the City in this Ordinance other covenants and agreements thereafter to be observed by the City or to surrender any right or power herein reserved to or conferred upon the City; or -46- (5) to permit the issuance of Bonds, the interest on which is intended to be excludable from gross income for Federal income tax purposes under the Code to the Holders thereof in coupon form, if as a condition precedent to the adoption of such supplemental resolution, there shall be delivered to the City an opinion of counsel of recognized standing relating to municipal bonds to the effect that the issuance of Bonds in coupon form is then permitted by law and that the issuance of such Bonds in coupon form would not cause interest on such Bonds to be included in gross income for Federal income tax purposes under the Code to the Holders thereof; or (6) to qualify the Bonds or any of the Bonds for registration under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended; or (7) to qualify this Ordinance as an "indenture" under the Trust Indenture Act of 1939, as amended; or (8) to make such changes as may be necessary to adjust the terms hereof so as to facilitate the issuance of Capital Appreciation Bonds, Capital Appreciation and Income Bonds and such other Bonds as may be marketable from time to time; or (9) to permit Bonds to be issued in book entry form with or without physical bonds; or (10) to make such changes as may be necessary to comply with the provisions of the Code relating to the exclusion of interest on the Bonds from gross income thereunder; or (11) to make such changes as may evidence the right and interest herein of an issuer of a Credit Facility that secures any Series of Bonds; or (12) to make such changes as may facilitate the issuance or incurrence of Alternative Parity Debt; or (13) to make such changes as may facilitate the release of a portion of the Guaranteed Entitlement Revenues or the Sales Tax Revenues from the pledge of this Ordinance pursuant to Section 302 hereof. In addition, without the consent of the holders, but with the prior written consent of all Credit Facility Providers and all issuers of Reserve Account Letters of Credit and Reserve Account Insurance Policies, this Ordinance may be amended to permit the issuance of Variable Rate Bonds and to provide for an assumed interest rate thereon which is to be used to calculate the Annual Debt Service Requirement and Maximum Annual Debt Service. If at any time the City shall so request in writing, the Registrar shall cause a notice of a proposed amendment requiring the consent of Bondholders under Section 605(a) or (b) to be -47- mailed,postage prepaid, to all Holders of Bonds then Outstanding which are required to consent (in the case of Bonds except with respect to which the Credit Facility Provider is entitled to vote in lieu of the Holders thereof as provided in Section 605(a)) at their addresses as they appear on the registration books. Notices under Section 605(b) shall be mailed to both Holders and Credit Facility Providers which are entitled to vote thereof. Such notice shall briefly set forth the nature of the proposed amendment and shall state that a copy thereof is on file at the office of the Registrar (at which the Register is kept) for inspection and shall be accompanied by a consent form. The Registrar shall not, however, be subject to any liability to any Bondholder or Credit Facility Providers by reason of its failure to mail the notice required by this Section, and any such failure shall not affect the validity of such amendment when consented to or approved as provided in this Section. Whenever, at any time after the date of the mailing of such notice, the Fiduciary shall deliver to the City Clerk consent forms or other instrument or instruments purporting to be executed by the Holders (including issuers of Credit Facilities which are deemed Holders) of at least a majority in aggregate principal amount of the Bonds then Outstanding, which instrument or instruments shall refer to the proposed amendments described in such notice and shall specifically consent to and approve the adoption thereof, and the City Clerk shall deliver to the Mayor a certificate signed by the City Clerk that the Holders of such required percentage of Bonds have filed such consents, the City Commission may adopt such amendments in substantially such form without liability or responsibility to any Holder of any Bond or Credit Facility Providers, whether or not such Holder or Credit Facility Providers shall have consented thereto. It shall not be necessary for the consent of the Holders or Credit Facility Providers to approve the particular form of any proposed amendment,but it shall be sufficient if such consent shall approve the substance thereof. A copy of any amendment to this Ordinance consented to by any Credit Facility Provider shall be mailed by the City or, at the direction of the City, by the Fiduciary to Standard&Poor's Corporation and Moody's Investors Service, Inc., or to their respective successors. If the required percentage of Holders (or Credit Facility Providers, or both) in aggregate principal amount of the Bonds of each Series as affected and Outstanding at the time of the enactment or adoption of such amendment shall have consented to and approved the enactment or adoption thereof as required by Section 605(a) or (b) as applicable, no Holder or Credit Facility Provider shall have any right to object to the enactment or adoption of such amendment, or to object to any of the terms and provisions therein contained, or the operation thereof, or in any manner to question the propriety of the enactment or adoption thereof, or to enjoin or restrain the City from enacting or adopting the same or from taking any action pursuant to the provisions thereof. Upon the issuance of any additional parity Bonds, the consent of the Holders thereof shall be deemed given if the underwriters or other initial purchasers thereof consent in writing to such amendment and the nature of the amendment effected by such amendment is disclosed in the official statement or other offering document pursuant to which such additional parity Bonds is offered and sold to the public. -48- (d) In determining whether any amendment or supplement hereto has a material adverse affect on the rights of any of the holders, neither the City nor any Fiduciary shall take into account the existence of any Credit Facility, including, but not limited to the Series 1994 Bond Insurance Policy. Any amendment or supplement to this Ordinance pursuant to Subsection 601(a) or 601(c)(11), (12)or(13) shall be subject to the prior written consent of the Series 1994 Bond Insurer. Any rating agency rating the Series 1994 Bonds must receive notice of each amendment and a copy thereof at least 15 days in advance of its adoption. If any amendment or supplement hereto relates to any Bonds which are guaranteed or secured by any Credit Facility, the Credit Facility Provider which issued such Credit Facility shall be furnished a full transcript of all proceedings relating to such amendment or supplement. SECTION 602. PROVISION OF INFORMATION TO SERIES 1994 BOND INSURER. So long as any Bonds which are insured by the Series 1994 Bond Insurer have not been retired, the City shall provide to the Series 1994 Bond Insurer with the following information: (a) Within 180 days after the end of each of the City's Fiscal Years, a copy of the city's budget for the new year, annual audited financial statements, a statement of the amount on deposit in the Debt Service Reserve Account as of the last valuation and if not presented in the audited financial statements, a statement of each of the Pledged Funds pledged to payment of Bonds in each such Fiscal Year; (b) a copy of any official statement or other disclosure, if any, prepared in connection with the issuance of additional debt, whether or not it is on parity with the Series 1994 Bonds within thirty (30) days after the sale thereof; (c) Notice of any draw upon or deficiency due to market fluctuation in the amount, if any, on deposit in the Debt Service Reserve Account; (d) Notice of the redemption, other than mandatory sinking fund redemption, of any of the Series 1994 Bonds, including the principal amount, maturities and CUSIP numbers thereof; and (e) Such additional information as the Series 1994 Bond Insurer may reasonably request from time to time. SECTION 603. SALE OF BONDS. Except as otherwise provided in Section 202 with respect to the Series 1994 Bonds, the Bonds shall be issued and sold at one time or from time to time and at such price or prices consistent with the provisions of the Act and the requirements of this Ordinance as the City shall hereafter determine by resolution. SECTION 604. DISTRIBUTION OF PRELIMINARY OFFICIAL STATEMENT • AUTHORIZED. Howard Gary & Company on behalf of itself and any additional underwriters so designated in a subsequent resolution (the "Underwriters") is hereby authorized to distribute a preliminary official statement relating to the Series 1994 Bonds in such form as shall be -49- satisfactory to the City Manager and the City Attorney. The City Manager is hereby authorized to certify that such preliminary official statement is deemed final for the purposes of Rule 15c2- 12 promulgated under the Securities Exchange Act of 1934. SECTION 605. CAPITAL APPRECIATION BONDS;CAPITAL APPRECIATION AND INCOME BONDS. (a) For the purposes of (i) receiving payment of the redemption price if a Capital Appreciation Bond is redeemed prior to maturity, or (ii) computing the amount of Bonds held by the registered owner of a Capital Appreciation Bond in giving to the City any notice, consent, request or demand pursuant to this Ordinance for any purpose whatsoever, the principal amount of a Capital Appreciation Bond shall be deemed to be its Accreted Value. (b) For the purpose of (i) receiving payment of the redemption price if a Capital Appreciation and Income Bond is redeemed prior to maturity, or (ii) computing the amount of Bonds held by the registered owner of a Capital Appreciation and Income Bond in giving to the City any notice, consent, request or demand pursuant to this Ordinance for any purpose whatsoever, the principal amount of a Capital Appreciation and Income Bond shall be deemed to be its Appreciated Value. SECTION 606. UNCLAIMED MONEY. Notwithstanding any provisions of this Ordinance, any money held by the Paying Agent for the payment of the principal or redemption price of, or interest on, any Bond which remains unclaimed for two (2) years after such principal, redemption price or interest payment became due and payable (whether at maturity or upon call for redemption), shall be repaid to the City by the Paying Agent free from the provisions of this Ordinance, and all liability of the City and of the Paying Agent with respect to such money shall thereupon cease and become unenforceable; provided, however, that at least thirty (30) days before the repayment of such money to the City as aforesaid, the City shall publish at least once in The Bond Buyer or other financial journal published in New York, New York, a notice, in such form as may be deemed appropriate by the City identifying the Bonds to which such unclaimed money relates, and setting forth the provisions relating to the repayment to the City of such unclaimed money. SECTION 607. REPEALING CLAUSE. Ordinance No. 94-1 is hereby repealed in its entirety and is superseded hereby. Resolution 94-5447 is hereby rescinded in its entirety. All other ordinances and resolutions or parts thereof in conflict with the provisions herein contained are, to the extent of such conflict, hereby superseded, repealed and rescinded. SECTION 608. SEVERABILITY. In case any section or provision of this Ordinance or any covenant, agreement, stipulation, obligation, act or action, or part thereof, made, assumed, entered into or taken under this Ordinance, or any application thereof, is held to be illegal or invalid for any reason, or is inoperable at any time, that illegality, invalidity or inoperability shall not affect the remainder thereof or any other section or provision of this Ordinance or any other covenant, agreement, stipulation, obligation, act or action, or part thereof, made, assumed, entered into or taken under this Ordinance, all of which shall be -50- .T ...,,r i - _ F._— _ * t a; 4 :1,` ed and enforced at the time as if the illegal, invalid or inoperable portion were not - , x• ed therein. Any illegality, invalidity or inoperability shall not affect any legal, valid and we section, provision, covenant, agreement, stipulation, obligation, act, action, part or '_ s all of which shall be deemed to be effective, operative, made, assumed, entered into ..1 don, .. : en in the manner and to the full extent permitted by law from time to time. '-'7'f'''' -- SECTION 609. TIME OF TAKING EFFECT. This Ordinance shall become effective : .7.-'- with law. . ' r-�rdance '-, T- This Ordinance enacted after motion, second and roll call vote as follows: _ . - First Reading Second Reading --.f'1' -="°�' Commissioner Kelley `1 Commissioner Kelley V Commissioner Miller .1 Commissioner Miller "`t` °-. Commissioner Allen Commissioner Allen _i____ Vice Mayor Barrett JM Vice Mayor Barrett ass Mayor Ingram �! Mayor Ingram Y - • - Dated: j?",;7.-nr , 1994 • 7' CITY COMMISSION OF '" THE CITY OF OPA-L I C • , FLORIDA 4gadirt:WI . , ,--5--ATTEST: t _: `may.: I i I -. / // s is 1 ::City Clerk ,rL is L. Approved as to form and i iency: -{/t. 0 , Patricia C. Ellis, Esquire i i,''' City of Opa-locka Attorney i S1- i r,_