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HomeMy WebLinkAboutResolution 251 Improvement Revenue Bonds RESOLUTION NO. 251 RESOLUTION AUTHORIZING AND PROVIDING FOR THE ISSUANCE OF $600,000 IMPROVEMENT REVENUE BONDS, SERIES 1979, OF THE CITY OF WINTER SPRINGS FOR THE PURPOSE OF FINANCING THE COST OF THE CON- STRUCTION AND ACQUISITION OF MUNICIPAL IMPROVE- MENTS IN SAID CITY; PROVIDING FOR THE RIGHTS OF THE HOLDERS OF SAID BONDS, AND PLEDGING THE PUBLIC SERVICE TAX AND FRANCHISE FEES TO THE PAYMENT THEREOF. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WINTER SPRINGS, FLORIDA: ARTICLE I STATUTORY AUTHORITY, FINDINGS AND DEFINITIONS 1. AUTHORITY OF THIS RESOLUTION. This resolution is adopted pursuant to the provisions of Chapter 72-718, Laws of Florida, Special Acts of 1972, as amended and supplemented, being the Charter of the City of Winter Springs, Chapter 166, Part II, Florida Statutes, and other applicable provisions of law.. 2. FINDINGS. It is hereby found and determined as follows: (A) That it is necessary and desirable and in the interests of the health, welfare and safety of the citizens and inhabitants of the City that there be constructed or acquired paving and drainage improvements in certain streets of the City, including other purposes necessary, incidental or appurtenant thereto (herein called "Municipal Improvements"). The Municipal Improvements described above shall be constructed and undertaken in accordance with plans and specifi- cations therefor prepared by Clark, Deitz and Associates, con- suIting engineers, of Sanford, Florida, at an estimated cost of not exceeding $600,000.. The cost of the constiuction of said Municipal Improvements shall be deemed to include, without being limited to, the acquisition of any lands or interest therein, engineering, financial and legal expenses, a reasonable reserve for debt service, expenses for plans, specifications and surveys, bond discount, if any, administrative expenses and such other expenses as may be necessary or incidental to the financing authorized by this Resolution, and the construction and acquisi- tion of the Municipal Improvements authorized by this Resolution and the placing of same in operation. (B) That pursuant to authority contained in Section 166.231, Florida Statutes, and other applicable provisions of law, the City of winter Springs did, under date of October 24, 1977, enact an ordinance levying a tax (hereinafter called "Public Service Tax"), on each and every sale of electricity, metered or bottled gas, water, local telegraph and telephone ser- vice within the corporate limits of the City; that it is deemed necessary and desirable to pledge the proceeds of the Public Service Tax to the payment of the principal of and interest on the Bonds to be issued pursuant to this resolution, and that no obligations of any kind are payable from said Public Service Tax, except that the City has outstanding its Revenue Note, dated December 12, 1978 (the "Outstanding Revenue Note") the payment of which is secured in part by a prior and senior lien on said Public Service Tax. (C) That pursuant to its Charter and other applicable provisions of law, the City of Winter Springs did, under date of May 3, 1971, as the Village of North Orlando (predecessor to said City of Winter Springs), enact an ordinance by which the City granted to the Florida Power Corporation, for a period of thirty years from July I, 1971, a franchise to construct, maintain and operate electric light and power facilities for the purpose of supplying electricity to the City and its inhabitants.. In con- sideration of the granting of said franchise and pursuant to said ordinance, said Florida Power Corporation, its legal represen- tatives, successors and assigns, is required to pay annually to said City, and the City has the power to levy and collect, an amount which added to the amount of all taxes, licenses and other impositions levied or imposed by the City on the Corporation for the preceding tax year, will equal six percent (6%) of the reve- nues of said Florida Power Corporation from the sale of electric energy in the City (hereinafter referred to as "Franchise Fees"); 2 that it is deemed necessary and desirable to pledge the proceeds of the Franchise Fees available for such purpose to the payment of the principal of and interest on the Bonds to be issued pur- suant to this Resolution, and that no obligations of any kind are payable from said Franchise Fees, or any part thereof, except to the payment of said Outstanding Revenue Note and except that the City has outstanding its Franchise Taxes Note, dated October 21, 1974, (herein called "Outstanding Franchise Fee Note") the payment of which is secured in part by a prior and senior lien on said Franchise Fees. (D) That the Public Service Tax and Franchise Fees (herein collectively called "Excise Taxes") hereinafter pledged to the payment of the principal of and interest on the Bonds to be issued pursuant to this Resolution w1ll be sufficient to pay the principal of and interest on all of the Bonds to be issued pursuant to this Resolution, and on the Outstanding Revenue Note and Outstanding Franchise Fee Note, and to make all reserve fund and other payments provided for in this Resolution. (E) That the principal of and interest on the Bonds to be issued pursuant to this Resolution and all of the sinking fund, reserve, and other payments provided for in this Resolution, will be paid solely from the Excise Taxes, and it will never be necessary or authorized to use the ad valorem taxing power of said City to pay the principal of and interest on the Bonds to be issued pursuant to this Resolution, or to make any of the sinking fund, reserve, or other payments provided for in this Resolution, and the Bonds to be issued pursuant to this Resolution shall not constitute a lien upon any properties whatsoever of, or in, the City. 3. RESOLUTION TO CONSTITUTE CONTRACT. In consideration of the acceptance of the Bonds authorized to be issued hereunder by those who shall hold the same from time to time, this Resolution shall be deemed to be and shall constitute a contract between the City and such Bondholders, and the covenants and agreements therein set forth to be performed by said City shall be for the equal benefit, protection and security of the legal holders of any and all of such Bonds and the coupons attached thereto, all of which shall be of equal rank and without pre- ference, priority or distinction of any of the Bonds or coupons over any other thereof except as expressly provided therein and herein. 4. DEFINITIONS. The following terms shall have the following meanings in this Resolution unless the text otherwise expressly requires: (A) "City" shall mean the City of winter Springs, Florida.. (B) "Act" shall mean the Charter of the City, being Chapter 72-718, Laws of Florida, Special Acts of 1972, and amend- ments thereof and supplements thereto, and Chapter 166, Part II, Florida Statutes.. (C) "Bonds" shall mean the $600,000 Improvement Revenue Bonds, Series 1979, initially authorized and issued pur- suant to this Resolution, and the interest coupons attached to said Bonds, and shall include any Additional Parity Bonds. (D) "Outstanding Revenue Note" shall mean the Revenue Note, dated December 12, 1978, or any renewal thereof. (E) "Outstanding Franchise Fee Note" shall mean the Franchise Taxes Note, dated October 21, 1974. (F) "Additional Parity Bonds" shall mean Bonds of the City hereafter authorized and issued pursuant to Section 18 of this Resolution on a parity with the $600,000 Improvement Revenue Bonds, initially authorized and issued pursuant to this Resolution. (G) "Holder of Bonds" or "Bondholder" or any similar term, shall mean any person who shall be the bearer or owner of any outstanding Bond or Bonds registered to bearer or not registered, or the registered owner of any outstanding Bond or Bonds which shall at the time be registered other than to bearer, or of any coupons representing interest accrued or to accrue on said Bonds. (H) "Fiscal Year" shall mean the period beginning with 4 and including October 1st of each year and ending with and including the next September 30th. (I) "Public Service Tax" shalt mean the tax levied and collected on utilities services furnished in the City pursuant to Section 166.231, Florida Statutes and an ordinance duly enacted by the City under date of October 24, 1977. (J) "Franchise Fees" shall mean any and all moneys received by the City from the Florida Power Corporation, its legal representatives, successors or assigns under the franchise granted pursuant to the Act and an ordinance duly enacted by the City as the former Village of North Orlando under date of May 3, 1971, and any and all moneys received by the City from the Florida Power Corporation, its legal representatives, successors or assigns, under any extension or renewal of said franchise or from any new franchise granting the right to construct, maintain and operate electric light and power facilities for the purpose of supplying electricity to the City or its inhabitants. (K) "Excise Taxes" shall mean, collectively the Public Service Tax and Franchise Fees, pledged to secure the payment of the principal of and interest on the Bonds as provided herein. (L) Words importing the singular number shall include the plural number in each case and vice versa, and words importing persons shall include firms and corporations. ARTICLE II AUTHORIZATION OF MUNICIPAL IMPROVEMENTS 5. IMPROVEMENTS AUTHORIZED. There is hereby authorized the construction or acquisition of the Municipal Improvements. Said Municipal Improvements shall be acquired, constructed and undertaken as rapidly as funds are available for such purposes, and the same shall be made in accordance with the plans and spe- cifications therefor as prepared by the consulting engineers and on file in the office of the City Clerk.. ARTICLE III AUTHORIZATION, TERMS, EXECUTION, REGISTRATION AND ISSUE OF BONDS 6. AUTHORIZATION OF BONDS. Subject and pursuant to the provisions of this Resolution, Bonds of the City of Winter Springs to be known as "Improvement Revenue Bonds, Series 1979", are hereby authorized to be issued in the aggregate principal amount of not exceeding Six Hundred Thousand Dollars ($600,000) for the purpose of financing the cost of the acquisition and construction of the Municipal Improvements as provided in this Resolution. 7. DESCRIPTION OF BONDS. The Bonds shall be dated April 1, 1979, shall be in the denomination of $5,000 each, may be issued in installments from time to time and each installment shall be numbered from 1 upward, and shall bear an identifying letter, shall bear interest at a rate or rates not exceeding the legal rate, payable semiannually on April 1 and October 1 of each year, and shall mature in numerical order, lowest numbers first, on April 1 in such years, not exceeding thirty-five years from their date, and in such amounts as shall be determined by sub- sequent resolution adopted prior to the delivery of said Bonds. The Bonds shall be redeemable prior to maturity upon such terms and conditions and at such prices as shall be deter- mined by subsequent resolution adopted prior to the delivery thereof. A notice of such intended redemption shall be published by the City at least once at least thirty days prior to the date of redemption in a financial paper published in the City of New York, New York. The Bonds shall be issued in coupon form, shall be payable with respect to both principal and interest in lawful money of the United States of America, at a bank or trust company to be designated by subsequent resolution adopted prior to the issuance of said Bonds, and shall bear interest from their date, payable in accordance with and upon surrender of the appurtenant interest coupons as they severally mature. 8. EXECUTION OF BONDS AND COUPONS. The Bonds shall be executed in the name of the City by its Mayor and its corporate seal or a facsimile thereof shall be affixed thereto or repro- duced thereon and attested by the City Clerk. The facsimile signatures of said Mayor and City Clerk may be imprinted or reproduced on said Bonds, provided, that either the Mayor or City Clerk shall manually apply his signature to said Bonds. In case anyone or more of the officers who shall have signed or sealed any of the Bonds shall cease to be such officer of the City before the Bonds so signed and sealed shall have been actually sold and delivered, such Bonds may nevertheless be sold and deli- vered as herein provided and may be issued as if the person who signed or sealed such Bonds had not ceased to hold such office. Any Bond may be signed and sealed on behalf of the City by such person as at the actual time of the execution of such Bonds shall hold the proper office in the City, although at the date of such Bonds such person may not have held such office or may not have been so authorized. The coupons to be attached to the Bonds shall be exe- cuted with the facsimile signatures of the present or any future Mayor and City Clerk of said City, and the validation certificate appearing on said Bonds shall be executed with the facsimile signature of the Mayor. The City may adopt and use for that pur- pose the facsimile signature of any of said persons who shall have held such offices at any time on or after the date of the Bonds, notwithstanding that he may have ceased to hold such office at the time when said Bonds shall be actually sold and delivered. 9. NEGOTIABILITY AND REGISTRATION. The Bonds shall be, and have all of the qualities and incidents of, negotiable instruments under the law merchant and the Laws of the State of Florida, and each successive holder, in accepting any of said Bonds or the coupons appertaining thereto, shall be conclusively deemed to have agreed that such Bonds shall be and have all of 8 the qualities and incidents of negotiable instruments under the law merchant and the Laws of the State of Florida, and each suc- cessive holder shall further be conclusively deemed to have agreed that said Bonds shall be incontestable in the hands of a bona fide holder for value in the manner provided hereafter in the form of said Bonds. The Bonds may be registered, at the option of the holder, as to principal only, at the office of the City Clerk of the City, such registration to be noted on the back of said Bonds in the space provided therefor. After such registration as to principal only, no transfer of the Bonds shall be valid unless made at said office by the registered owner, or by his duly authorized agent or representative and similarly noted on the Bonds, but the Bonds may be discharged from registration by being in like manner transferred to bearer and thereupon transferablity by delivery shall be restored. At the option of the holder, the Bonds may thereafter again from time to time be registered or transferred to bearer as before. Such registration as to prin- cipal only shall not affect the negotiability of the coupons which shall continue to pass by delivery. 10. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case any Bonds shall become mutilated or be destroyed, stolen or lost, the City may in its discretion issue and deliver a new Bond with all unmatured coupon attached of like tenor as the Bond and attached coupons, if any, so mutilated, destroyed, stolen or lost, in exchange and substitution for such mutilated Bond, upon surrender and cancellation of such mutilated Bond and attached coupons, if any, or in lieu of and substitution for the Bond and attached coupons, if any, destroyed, stolen or lost, and upon the holder furnishing the City proof of his ownership thereof and satisfactory indemnity and complying with such other reasonable regulations and conditions as the City may prescribe and paying such expenses as the City may incur. All Bonds and coupons so surrendered shall be cancelled by the City Clerk and held for the account of the City. If any such Bond or coupons shall have matured or be about to mature, instead of issuing a substituted Bond or coupon the City may pay the same, upon being indemnified as aforesaid, and if such Bond or coupon be lost, stolen or destroyed, without surrender thereof. Any such duplicate Bonds and coupons issued pursuant to this Section shall constitute original, additional contractual obligations on the part of the City, whether or not the lost, stolen or destroyed Bonds or coupons be at any time found by anyone, and such duplicate Bonds and coupons shall be entitled to equal and proportionate benefits and rights as to lien and source and security for payment from the Excise Taxes with all other Bonds and coupons issued hereunder. 11. FORM OF BONDS AND COUPONS. The text of the Bonds, coupons, validation certificate and provisions for registration shall be of substantially the following tenor, with such omissions, insertions and variations as may be necessary and desirable and authorized or permitted by this Resolution, or any subsequent resolution adopted prior to the issuance thereof: No. $5,000 UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF WINTER SPRINGS IMPROVEMENT REVENUE BOND, SERIES 1979 KNOW ALL MEN BY THESE PRESENTS that the City of Winter Springs, in Seminole County, Florida, for value received, hereby promises to pay to the bearer, or if this Bond be registered, to the registered holder as herein provided, on the first day of April, 19 , from the special funds hereinafter mentioned, the principal sum of FIVE THOUSAND DOLLARS ($5,000) with interest thereof at the rate of per centum ( %) per annum, payable semiannually on the 1st day of April and the 1st day of October of each" year upon the presen- tation and surrender of the annexed coupons as they severally fall due. Both principal of and interest on this Bond are payable in lawful money of the United States of America at This Bond is one of a duly authorized issue of Bonds in the aggregate principal amount of $600,000 of like date, tenor and effect, except as to number, interest rate and date of maturity, issued to finance the cost of the acquisition and construction of certain municipal improvements in the City under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including Chapter 72-718, Laws of Florida, Special Acts of 1972, as amended and supplemented, Chapter 166, Part II, Florida Statutes, and other applicable pro- visions of law; and a resolution duly adopted by the City Council of the City of Winter Springs on , 1979 (hereinafter called "Resolution"), and is subject to all of the terms and conditions of said Resolution. This Bond and the coupons appertaining hereto are payable solely from and secured by a lien upon and pledge of the proceeds of the Public Service Tax imposed by the City'on the purchase of certain utilities services within the corporate limits of the City, under the authority of Section 166.231, Florida Statutes, and pursuant to an ordinance enacted by the City on October 24, 1977, and the proceeds of Franchise Fees to be paid for a period of thirty (30) years from July 1, 1971, by the Florida Power Corporation, pursuant to an ordinance enacted by the former Village of North Orlando (predecessor to the City) on May 3, 1971, (such tax and fees, above described, are herein collectively referred to as "Excise Taxes") in the manner pro- vided in the Resolution. The lien of the holders of the Bonds of this issue on the proceeds of the Public Service Tax is junior and subordinate to the lien thereon of the holder of an outstanding Revenue Note, dated December 12, 1978 and the lien of such holders on the pro- ceeds of the Franchise Fees is junior and subordinate to the lien thereon of the holder of said Revenue Note and the holder of an outstanding Franchise Taxes Note issued by the City under date of October 21, 1974. This Bond does not constitute an indebtedness of the City within the meaning of any Constitutional, statutory or charter provisions or limitations. It is expressly agreed by the holder of this Bond, and the coupons appertaining hereto, that such' holder shall never have the right to require or compel the exer- cise of the ad valorem taxing power of said City, or the taxation of real estate in said City, for the payment of the principal of and interest on this Bond or the making of any sinking fund, reserve, or other payments provided for in the Resolution. It is further agreed between the City and the holder of this Bond that this Bond and the obligation evidenced thereby shall not consti- tute a lien upon any property of or in the City, but shall constitute a lien only on the Excise Taxes in the manner provided in said Resolution. (Insert Redemption Provisions) provided that a notice of such redemption shall have been published at least once at least thirty days prior to the date of redemption in a financial paper published in New York City, New 12 York. It is hereby certified and recited that all acts, con- ditions and things required to exist, to happen and to be per- formed precedent to and in the issuance of this Bond, exist, have happened and have been performed in regular and due form and time as required by the statutes and Constitution of the'State of Florida applicable thereto, and that the issuance of this Bond, and of the issue of Bonds of which this Bond is one, does not violate any Constitutional, statutory or charter limitation. This Bond, and the coupons appertaining thereto, is, and has all the qualities and incidents of, a negotiable instrument under the law merchant and the Laws of the State of Florida, and the original holder and each successive holder of this Bond, or of the coupons apertaining thereto, shall be conclusively deemed by his acceptance thereof to have agreed that this Bond and the coupons appertaining thereto shall be and have all the qualities and incidents of negotiable instruments under the law merchant and the Laws of the State of Florida. The original holder and each successive holder of this Bond, and of the coupons apper- taining hereto, shall be conclusively deemed to have agreed and consented to the following terms and conditions: (a) Title to this Bond, unless registered as herein pro- vided and to the annexed interest coupons, may be transferred by delivery in the manner provided for negotiable instruments payable to bearer in the law merchant and the Laws of the State of Florida; (b) Any person in possession of this Bond, unless registered as herein provided, or of the interest coupons hereunto appertaining, regardless of the manner in which he shall have acquired possession, is hereby authorized to represent him- self as the absolute owner hereof, and is hereby granted power to transfer absolute title hereto by delivery hereof to a bona fide purchaser, that is, to anyone who shall purchase the same for value (present or antecedent) without notice of prior defenses or equities or claims of ownership enforceable against his 13 transferrer; every prior taker or owner of this Bond, unless registered as herein provided, and of the annexed interest coupons, waives and renounces all of his equities and rights herein in favor of every such bona fide purchaser, and every such bona fide purchaser shall acquire absolute title hereto and to all rights represented hereby; and (c) The City may treat the bearer of this Bond, unless registered as herein provided, or of the interest coupons hereunto appertaining, as the absolute owner hereof for all pur- poses without being affected by any notice to the contrary. This Bond may be registered as to principal only in accordance with the provision endorsed hereon. IN WITNESS WHEREOF, the City of Winter Springs, Florida, has issued this Bond and has caused the same to be executed by the manual or facsimile signature of its Mayor, and its corporate seal or a facsimile thereof to be affixed hereto or imprinted hereon and attested by its City Clerk, by his manual or facsimile signature, and has caused the interest coupons hereto attached to be executed with the facsimile signatures of said officers, all as of the first day of April, 1979. CITY OF WINTER SPRINGS, FLORIDA By: Troy J. Piland Mayor (SEAL) Attest: Mary T. Norton City Clerk (FORM OF COUPON) No. $ On the first day of , 19 , (unless the Bond to which this coupon is attached shall have been duly called for redemption and provision for the payment of the redemption price duly made) the City of Winter Springs, Florida, will pay to the bearer from the special funds described in the Bond to-which this coupon is attached, the sum of Dollars ($ ), in lawful money of the United States of 14 America, upon presentation and surrender of this coupon, being six months interest then due on its Improvement Revenue Bond, Series 1979, dated April 1, 1979, No. CITY OF WINTER SPRINGS, FLORIDA By: Troy J. Piland Mayor ( SEA L ) Mary T. Norton C i ty Clerk VALIDATION CERTIFICATE This Bond is one of a series of Bonds which were vali- dated and confirmed by judgment of the Circuit Court for Seminole County, Florida, rendered on the day of , 1979. Mayor PROVISION FOR REGISTRATION This Bond may be registered in the name of the holder on the books to be kept by the City Clerk, as Registrar, or such other Registrar as may hereafter be duly appointed, as to prin- cipal only, such registration being noted hereon by such Registrar in the registration blank below after which no transfer shall be valid unless made on said books by the registered holder or attorney duly authorized and similarly noted in the registra- tion blank below, but it may be discharged from registration by being transferred to bearer after which it shall be transferable by delivery but it may be again registered as before. The registration of this Bond as to principal shall not restrain the negotiability of the coupons by delivery merely. Date of Registration In Whose Name Registered Signature of Registrar ARTICLE IV COVENANTS, SPECIAL FUNDS AND APPLICATION THEREOF 12. BONDS NOT TO BE INDEBTEDNESS OF THE CITY. Neither the Bonds nor coupons shall be or constitute an indebtedness of the City, but shall be payable solely from the Excise Taxes, as herein provided. No holder or holders of any Bonds issued hereunder, or of any coupons appertaining thereto, shall ever have the right to compel the exercise of the ad valorem taxing power of the City, or taxation in any form on any real property therein, to pay said Bonds or the interest thereon, or to be entitled to payment of such principal and interest from any other funds of the City except the Excise Taxes, as provided herein. The lien of the holders of said Bonds on the proceeds of the Public Service Tax is and shall be junior and subordinate to the lien thereon of the holder of the Outstanding Revenue Note and the lien of the holders of said Bonds on the proceeds of the Franchise Fees is and shall be junior and subordinate to the lien thereon of the holders of the Outstanding Revenue Note and the Outstanding Franchise Fee Note. 13. BONDS SECURED BY PLEDGE OF EXCISE TAXES. All moneys collected by the City from the Excise Taxes, and not pre- viously pledged by the City to secure its presently Outstanding Revenue Note and its presently Outstanding Franchise Fee Note, and all moneys received on account thereof by the City, are hereby pledged to secure the payment of the principal of and interest on the Bonds, but only in the manner and to the extent provided in this Resolution. (A) All of the net proceeds of the Public Service Tax, as defined herein, as soon as the same are collected by the City shall be deposited forthwith in a separate special fund which is hereby created and established and designated the "City of winter Springs Public Service Tax Fund" (hereinafter called "Public Service Tax Fund). Said Fund shall be kept separate and apart from all other funds and accounts of the City and held with a bank or trust company and shall constitute a trust fund for the 16 purposes herein provided. The City does covenant and agree that so long as any of the Bonds are outstanding and unpaid, or payment thereof has not been duly provided for, it will not repeal the ordinance enacted October 24, 1977, levying the Public Service Tax, and will not amend or modify said ordinance in any manner so as to impair or adversely affect the power and obligation of the City to levy and collect the Public Service Tax, or impair or adversely affect in any manner the pledge of the Public Service Tax made herein, or the rights of the holders of the Bonds, or the rate or amount of the Public Service Tax. The City does further covenant and agree that so long as any of the principal of or interest on any of the Bonds shall be outstanding and unpaid, or payment thereof not duly provided for, it will levy and collect such Public Service Tax, to the extent necessary up to the maximum rate provided by law, as will always, together with other moneys available there- for, provide funds sufficient to pay, as the same shall become due, the principal of and interest on the Bonds, in addition to paying, as the same shall become due, all reserve fund and other payments provided for in this Resolution and all other obliga- tions and indebtedness payable out of said Public Service Tax. The City further expressly represents that it has legal and valid power to continue the levy and collection of the Public Service Tax until all the principal of and interest on the Bonds have been fully paid, notwithstanding that the legislative authority therefor may be repealed, amended or modified by the Legislature of Florida prior to such time; and said City further represents that the covenants entered into between the City and holders of the Bonds pursuant to this subsection (A) constitute a valid and legally binding contract between the City and such Bondholders not subject to repeal, impairment or modification by the City or the Legislature of the State of Florida. (B) All of the proceeds of the Franchise Fees, as defined herein, as soon as the same are collected by the City shall be forthwith deposited in the Excise Tax Fund created by 17 the Outstanding Franchise Fee Note Resolution and used first for the payment, to the extent necessary, of the Outstanding Franchise Fee Note. Thereupon, any remaining Franchise Fees shall be set aside and deposited into a separate special Fund which is hereby created and established and which shall be designated the "City of winter Springs Electric Franchise Fee Fund" (hereinafter called "Electric Franchise Fee Fund"). Said Fund shall be kept separate and apart from all other funds and accounts of the City and held with a bank or trust company and shall constitute a trust fund for the purposes herein provided.. The City does further covenant and agree that so long as any of the Bonds are outstanding and unpaid, or payment thereof has not been duly provided for, it will_not repeal the ordinance enacted May 3, 1971, granting the franchise to the Florida Power Corporation and levying said Franchise Fees, and will not amend or modify said ordinance in any manner so as to reduce the rate or amount of Franchise Fees levied thereunder, or impair or adversely affect the obligation of the Florida Power Corporation, or of its legal representatives, successors or assigns, to pay, or the power or obligation of the City to levy and collect said Franchise Fees, or impair or adversely affect in any manner the pledge of such Franchise Fees made herein, or the rights of holders of Bonds issued pursuant to this Resolution.. The City further expressly represents that it has legal and valid power to levy and continue to levy and collect said Franchise Fees in the manner provided in said ordinance enacted May 3, 1971, notwithstanding that the legislative authority con- tained in the Act may be repealed, amended or modified by the Legislature of Florida prior to such time; and said City further represents that the covenants entered into between the City and the holders of the Bonds pursuant to this subsection (B) consti- tute a valid and legally binding contract between the City and such Bondholders and are not subject to repeal, impairment or modification by the City or the Legislature of the State of Florida.. The City hereby covenants with the holders of the Bonds that, in the event it shall acquire the electric power and distribution facilities of the Florida Power Corporation within the City, pursuant to the provisions of the ordinance enacted May 3, 1971 or otherwise, or in the event it shall acquire, construct or operate an electric power and distribution system and the Franchise Fees are not available to the City to make the payments therefrom required pursuant to the provisions of this Resolution, the City will make payment from the net revenues first available to it from the operation of any such electric power and distribu- tion system so owned, acquired, constructed or operated by it of the amounts required to be paid from the Franchise Fees pursuant to the provisions of this Resolution. 14. DISPOSITION OF MONEYS IN PUBLIC SERVICE TAX FUND. All moneys at any time on deposit in the Public Service Tax Fund shall be disposed of by the City on or before the fifteenth day of each month commencing in the month immediately following the delivery of the Bonds, only in the following manner and order of priority: (a) Moneys in the Public Service Tax Fund shall first be used and applied to the extent necessary, together with other funds of the City, for the payment of principal and interest on the Outstanding Revenue Note. (b) From the moneys in said Public Service Tax Fund the City shall next apportion and set apart and deposit into a spe- cial separate trust fund to be held with a bank or trust company which is hereby created and established and designated "1979 Bond Sinking Fund" (hereinafter called "Sinking Fund") such sums as will be sufficient to pay (a) one-sixth (liG) of all interest becoming due on the Bonds on the next semiannual interest payment date, and one-twelfth (1/12) of the amount of Bonds which will become due and payable on the next principal maturity date, together with any deficiencies for prior payments. In- the event the period between the date of delivery of the Bonds and the first interest and principal maturity dates is less than six (6) months and twelve (12) months, respectively, then the monthly payments shall be increased prorata accordingly. (c) Moneys remaining in the Public Service Tax Fund shall next be applied by the City to maintain a Reserve Account in the Sinking Fund, which Reserve Account is hereby created and established, in an amount equal to the largest amount of prin- cipal and interest which will mature and become due on the Bonds in any ensuing fiscal year, which sum shall initially be depo- sited therein from the proceeds of sale of the Bonds. Any withdrawals from the Reserve Account shall be sub- sequently restored from the first moneys available in the Public Service Tax Fund after all required current payments for the Sinking Fund (including all deficiencies- in prior payments) have been made in full. Moneys in the Reserve Account shall be used only for the purpose of the payment of maturing principal of or interest on the Bonds when the other moneys in the Sinking Fund are insuf- ficient therefor, and for no other purpose. (d) Upon the issuance of any Additional Parity Bonds under the terms, limitations and conditions as are herein pro- vided, the payments into the Sinking Fund shall be increased in such amounts as shall be necessary to make the payments for the principal of, interest on and reserves for such Additional Parity Bonds on the same basis as hereinabove provided with respect to the Bonds initially issued under this Resolution. The City shall not be required to make any further payments into the Sinking Fund or into the Reserve Account in the Sinking Fund when the aggregate amount of money in both the Sinking Fund and the Reserve Account therein are at least equal to the total amount of principal of and interest on the Bonds then outstanding. (e) Thereafter, any moneys remaining in the Public Service Tax Fund may be used by the City for any lawful purpose; provided, however, that deposits shall continue to be made into the Sinking Fund, and the Reserve Account therein, from said Public Service Tax Fund in each month in each year until there has been deposited therein in each year from such Public Service Tax Fund and from the Electric Franchise Fee Fund (as hereinafter provided) an amount sufficient to pay all interest maturing on the Bonds on the next succeeding October 1 and April 1, the prin- cipal amount of said Bonds maturing on the next April 1, and any deficiencies in the Reserve Account. 15. DISPOSITION OF MONEYS IN ELECTRIC FRANCHISE FEE FUND. (a) All moneys on deposit in the Electric Franchise Fee Fund shall be used, on or before the fifteenth (15th) day of August in each year while any of the Bonds shall remain outstanding and unpaid, for the deposit into the Sinking Fund of such amounts which, together with the amounts theretofore depo- sited therein from the Public Service Tax Fund, will equal the amount of interest maturing and becoming due on all the Bonds on the next succeeding October I and April I and the amount of prin- cipal maturing on the Bonds on the next succeeding April 1; and for the deposit into the Reserve Account of the amount of any deficiency therein. (b) Thereafter on the sixteenth (16th) day of August in each year any funds remaining on deposit in the Electric Franchise Fee Fund may be used by the City for any lawful pur- pose. (c) Upon the issuance of any Additional Parity Bonds under the terms, limitations and conditions as are herein pro- vided, the payments into the Sinking Fund from the Electric Franchise Fee Fund shall be increased in such amounts as shall be necessary to make the payments for the principal of, interest on and reserves for such Additional Parity Bonds on the same basis as hereinabove provided with respect to the Bonds initially issued under this Resolution. 16. APPLICATION OF FUNDS AND SECURITY FOR AND INVESTMENT THEREOF. (a) Moneys in the Sinking Fund shall be used only for the payment of maturing principal of and interest on the Bonds and Additional Parity Bonds. Moneys in the Reserve Account shall be used only for the purpose of the payment of maturing principal of or interest on the Bonds and Additional Parity Bonds when the moneys in the Sinking Fund are insufficient therefor, and for no other purpose.. The Sinking Fund and the Reserve Account shall consti- tute trust funds for the purposes herein provided and the moneys therein shall be continuously secured in the manner provided by the laws of the State of Florida for securing deposits of state and municipal funds. (b) Moneys held in the Public Service Tax Fund, in the Electric Franchise Fee Fund and in the Sinking Fund (except the Reserve Account therein) may be invested by the City in direct obligations of the United States of America or in time deposits evidenced by bank certificates of deposit which mature not later than one (1) day prior to the date upon which such moneys will be needed for the purposes of such Funds. (c) Moneys held in the Reserve Account may be invested by the City in direct obligations of the United States of America or in time deposits evidenced by bank certificates of deposit which mature not later than the final maturity date of the Bonds. (d) All income from the investment of moneys in the Public Service Tax Fund, the Franchise Fee Fund and the Sinking Fund shall be deposited into the Sinking Fund and used within thirteen (13) months of the date of such deposit for the payment of principal and interest on the Bonds and the amounts so depo- sited shall reduce the amounts required to be deposited into the Sinking Fund pursuant to Sections 14 and 15 hereof. All income from the investment of moneys in the Reserve Account in the Sinking Fund may, at the discretion of the City, either remain in the Reserve Account until the maximum required amount is on deposit therein, or may be used by the City for any lawful purpose. Moneys on deposit in the Funds and accounts aoove men- tioned may be commingled for investment purposes. The designation and establishment of the various Funds 22 and accounts in and by this Resolution shall not be construed to require the establishment of any completely independent, self-balancing funds as such term is commonly defined and used in governmental accounting, but rather is intended solely to consti- tute an earmarking of the Excise Taxes for certain purposes and to establish certain priorities for application of such Excise Taxes as herein provided. 17. ISSUANCE OF OTHER OBLIGATIONS PAYABLE OUT OF EXCISE TAXES. The City will not hereafter issue any other obligations, except upon the conditions and in the manner hereinafter provided in Section 18, payable from the Excise Taxes, nor voluntarily create or cause to be created any debt, lien, pledge, assignment, encumbrance or any other charge having priority to or being on a parity with the lien of the Bonds, and the interest thereon, upon any of the Excise Taxes pledged as security therefor in this Resolution. Any other obligations issued by the City, in addi- tion to the Bonds authorized by this Resolution and and Additional Parity Bonds hereafter issued as provided by this Resolution, shall contain an express statement that such obligations are junior and subordinate in all respects to the Bonds issued pur- suant to this Resolution as to lien on and source and security for payment from the Excise Taxes. The City specifically covenants and agrees with the Holders of the Bonds that it will not hereafter issue any addi- tional parity obligations pursuant to the provisions of the pro- ceedings which authorized the Outstanding Revenue Note or under the proceedings which authorized the Outstanding Franchise Fee Note. 18. ISSUANCE OF ADDITIONAL PARITY BONDS. No Additional Parity Bonds, payable on a parity from the proceeds of the Excise Taxes with the Bonds, shall be issued after the issuance of any of the Bonds, except for the construction and acquisition of lawful municipal improvements, and except upon the following conditions and in the manner herein provided: (a) There shall have been obtained and filed with the City a statement of an independent certified public accountant of suitable experience and responsibility: (a) stating that the books and records of the City relating to the collection and receipt of Excise Taxes pledged for the Bonds have been examined by him; (b) setting forth the amount of Excise Taxes, as defined herein, received by the City for any twelve (12) consecutive calendar months period out of the eighteen (18) complete calendar months period immediately preceding the date of sale of such Additional Parity Bonds with respect to which such statement is made; (c) stating that such Excise Taxes for such twelve (12) consecutive month period will equal at least 1.30 times the largest amount of principal of and interest which will mature and become due in any ensuing Fiscal Year on (i) all Bonds and all Additional Parity Bonds, if any, then outstanding, (ii) the Additional Parity Bonds with respect to which such statement is made, and (iii) any other prior or junior lien obligations out- standing payable from such Excise Taxes. (b) Each resolution authorizing the issuance of Additional Parity Bonds will recite that all of the covenants herein contained will be applicable to such Additional Parity Bonds. (c) The City shall not be in default in performing any of the covenants and obligations assumed hereunder, and all payments herein required to have been made into the Funds and accounts, as provided hereunder, shall have been made to the full extent required. 19. COVENANTS OF THE CITY. So long as any of the prin- cipal of or interest on any of the Bonds shall be outstanding and unpaid the City covenants as follows: (A) REMEDIES. Any Holder of Bonds, or of any coupons pertaining thereto, issued under the provisions of this Resolution, or any trustee acting for such Bondholders in the manner hereinafter provided, may, either at law or in equity, by suit, action, mandamus or other proceeding in any court of com- petent jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted and contained in this Resolution, and may enforce and compel the performance of all duties required by this Resolution or by any applicable sta- tutes to be performed by the City or by any officer thereof, including the fixing, charging, collecting and disbursing of the Excise Taxes. The Holder or Holders of Bonds in an aggregate principal amount of not less than twenty-five percent (25%) of the Bonds issued pursuant to this Resolution then outstanding may, by a duly executed certificate in writing, appoint a trustee for Holders of Bonds issued pursuant to this Resolution with authority to represent such Bondholders in any legal proceeding for the enforcement and protection of the rights of such Bondholders. Such certificate shall be-executed by such Bondholders or their duly authorized attorneys or representatives and shall be filed in the office of the City Clerk. (B) BOOKS, RECORDS AND INSPECTION. The City will keep books and records in which complete and correct entries shall be made in accordance with standard principles of accounting of all transactions relating to the collection and disbursement of the Excise Taxes and any holder of a Bond or Bonds issued pursuant to this Resolution shall have the right at all reasonable times to inspect said records, accounts and data of the City relating thereto. (C) ANNUAL AUDIT. The City shall also, at least once a year, within 120 days after the close of its Fiscal Year, cause the books, records and accounts relating to the Excise Taxes to be properly audited by a recognized independent firm of certified public accountants and shall make generally available the report of such audits to any Holder or Holders of Bonds.. Such audits shall contain a complete report of the application of all Excise Taxes, a schedule of reserves and investments, and a certificate by the auditors stating no default on the part of the City of any covenant herein has been disclosed by reason of the audit. The auditors selected shall be changed at any time by a written 25 request signed by a majority of the Holders of the Bonds or their duly authorized representatives. A copy of such annual audit shall regularly be made available to any Holder of any Bonds who shall have requested in writing that a copy of such reports be made available for his examination. (D) ENFORCEMENT OF COLLECTIONS. The City will dili- gently enforce and collect all Excise Taxes and take all steps, actions and proceedings for the enforcement and collection of such Excise Taxes which shall become delinquent to the full extent permitted or authorized by the Act and by the laws of the State of Florida. (E) ARBITRAGE. No use will be made of the proceeds of the Bonds which, if reasonably expected on the date of issuance of the Bonds, would cause the same to be "arbitrage bonds" within the meaning of the Internal Revenue Code of 1954. The City at all times while the Bonds and interest thereon are outstanding will comply with the requirements of Section l03(c) of the Internal Revenue Code of 1954 and any valid and applicable rules and regulations promulgated thereunder.. ARTICLE V APPLICATION OF BOND PROCEEDS 20. APPLICATION OF BOND PROCEEDS. All moneys received from the sale of the Bonds to be initially issued under the pro- visions of this Resolution shall be disbursed and applied as hereinafter provided. (A) All accrued interest received upon the delivery of the Bonds shall be deposited in the Sinking Fund. (B) An amount equal to the largest amount of principal and interest which will mature and become in any ensuing fiscal year on the Bonds shall be deposited into the Reserve Account in the Sinking Fund. (C) The balance of the proceeds of sale of the Bonds shall be deposited by the City in a special fund in a bank or trust company and designated the "Construction Fund", and shall only be used for and applied by the City solely to the payment of the cost of the Municipal Improvements, as provided in this Resolution, and for no other purpose. If for any reason the moneys in said Construction Fund, or any part thereof, are not necessary for, or are not applied to the purposes provided in this Resolution, then such unapplied proceeds shall be deposited by the City, upon certification by the consulting engineers that the Municipal Improvements have been completed and that such surplus proceeds are not needed for the payment of the cost thereof, in the Reserve Account in the Sinking Fund to the extent necessary to restore said Account to its maximum and thereafter any remaining balance shall be deposited into the Sinking Fund, held therein and used solely for the purpose of said Fund. All such proceeds of the sale of the Bonds shall be and constitute trust funds for the above purposes and there is hereby created a lien upon such moneys, until so applied, in favor of the Holders of the Bonds. Such proceeds of sale of the Bonds, pending their use in the manner in this Resolution provided, may be temporarily invested by the City in direct obligations of the United States of America or in bank Certificates of Deposit maturing not later than the dates upon which such moneys will be needed. The income from such investments shall remain in said Construction Fund. ARTICLE VI MISCELLANEOUS PROVISIONS 21. MODIFICATION OR AMENDMENT. No material modifica- tion or amendment of this Resolution or of any resolution amen- datory hereof or supplemental hereto, may be made without the consent in writing of the holders of two-thirds or more in prin- cipal amount of the Bonds then outstanding; provided, however, that no modification or amendment shall permit a change in the maturity of such Bonds or a reduction in the rate of interest thereon, or in the amount of the principal obligation or affecting the unconditional promise of the City to levy and collect the Excise Taxes, as herein provided, or to pay the prin- cipal of and interest on the Bonds as the same shall become due from the Excise Taxes, without the consent of the Holders of all such bonds. 22. SEVERABILITY OF INVALID PROVISIONS. If anyone or more of the covenants, agreements or provisions of this Resolution shall be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions, and in no way affect the validity of all the other provisions of this Resolution or of the Bonds or coupons issued hereunder. 23. ISSUANCE AND SALE OF BONDS. The Bonds authorized to be issued by this Resolution shall be issued and sold in such manner and at such price or prices consistent with the provisions of this Resolution, as the City Council shall hereafter determine by resolution. 24. DEFEASANCE. If, at any time, the City shall have paid, or shall have made provision for payment of, the principal, interest and redemption premiums, if any, with respect to the Bonds, then, and in that event, the pledge of and lien on the Excise Taxes in favor of the holders of the Bonds shall be no longer in effect. For purposes of the preceding sentence, depo- sit of United States Government Securities or bank certificates of deposit fully secured as to principal and interest by United States Government Securities (or deposit of any other securities or investments which may be authorized by law from time to time and sufficient under such law to effect such a defeasance) in irrevocable trust with a banking institution or trust company, for the sole benefit of the Bondholders, in respect to which such United States Government Securities or certificates of deposit, the principal of which, together with the income therefrom, will be sufficient to make timely payment of the principal, interest, and redemption premiums, if any, on the outstanding Bonds, shall be considered "provision for payment". Nothing herein shall be deemed to require the City to call any of the outstanding Bonds for redemption prior to maturity pursuant to any applicable optional redemption provisions, or to impair the discretion of the City in determining whether to exercise any such option for early redemption. 25. ISSUANCE OF BONDS NOT TO AFFECT POWER OF CITY TO LEVY SPECIAL ASSESSMENTS. The issuance of the Improvement Revenue Bonds, Series 1979, pursuant to this Resolution shall not be deemed a waiver of, or affect in any manner the power and right of the City to levy and collect special assessments against the owners of any lands or real estate specially benefited by the improvements authorized by this Resolution, and the City expressly reserves the right to levy and collect such special assessments in the manner provided by law. The proceeds of such special assessments shall not, however, be deemed to be pledged to the payment of the principal of or interest on the Bonds issued pursuant to this Resolution. 26. VALIDATION. The City Attorney be and he is hereby authorized and directed to institute appropriate proceedings in the Circuit Court for Seminole County, Florida, for the valida- tion of said Bonds, and the proper officers of the City are hereby authorized to verify on behalf of the City any pleadings in such proceedings.. 30 Upon the validation of the Bonds pursuant to such pro- ceedings, there shall be printed upon each such Bond prior to the delivery thereof, and over the facsimile signature of the Mayor, a validation certificate in substantially the form hereinabove set forth. 27. TIME OF TAKING EFFECT. This Resolution shall take effect immediately upon its passage. PASSED AND ADOPTED THIS 27th DAY OF FEBRUARY, 1979. CITY OF WINTER SPRINGS By: Troy J. Piland, Mayor ATTEST: Mary T. Norton CITY CLERK