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Item T2 BOARD OF COUNTY COMMISSIONERS Agenda Item Summary Meeting Date December 17, 2003 Division County Attorney AGENDA ITEM WORDING Public hearing of an ordinance authorizing the issuance by the County of Monroe not exceeding $5,000,000 in aggregate principal amount of taxable wastewater improvement assessment bonds for Stock Island area. ITEM BACKGROUND PREVIOUS RELEVANT BOCC ACTION BOCC granted approval to advertise at November 19, 2003 meeting for one public hearing. CONTRACT/AGREEMENTCHANGES STAFF RECOMMENDATIONS Approval. TOTAL COST BUDGETED Yes No COST TO COUNTY SOURCE OF FUNDS APPROVED BY: County Attorney _ OMB/Purchasing 0 Risk Management 0 DIVISION DIRECTOR APPROVAL:~~ JOHN R. LLI DOCUMENTATION: Included 0 To Follow 0 Not Required 0 AGENDA ITEM # /-:L MONROE COUNTY, FLORIDA TAXABLE WASTEWATER IMPROVEMENT ASSESSMENT BONDS (STOCK ISLAND AREA), SERIES 2004 ORDINANCE ENACTED DECEMBER 17,2003 TABLE OF CONTENTS PAGE ARTICLE I GENERAL SECTION 1.01. D EFINITI ONS.............................. ............................................................ 2 SECTION 1.02. AUTHORITY FOR ORDINANCE ....................................................... 8 SECTION 1.03. ORDINANCE TO CONSTITUTE CONTRACT ................................ 9 SECTION 1.04. FIND IN G S .. .............................................................................................. 9 SECTION 1.05. AUTHORIZATION OF CAPACITY RESERVATION AND IMPROVEMENTS; REIMBURSEMENT .........................................11 ARTICLE II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF BONDS SECTION 2.01. AUTHORIZATION AND DESCRIPTION OF BONDS .................12 SECTION 2.02. APPLICATION OF BOND PROCEEDS ...........................................12 SECTION 2.03. EXECUTION OF BONDS ...................................................................13 SECTION 2.04. A UTHENTICA TION ... ................... .................................. ...... .............. 13 SECTION 2.05. TEMPO RAR Y BONDS. .......................................... ......... .................... 14 SECTION 2.06. BONDS MUTILATED, DESTROYED, STOLEN OR LOST........ 14 SECTION 2.07. INTERCHANGEABILITY, NEGOTIABILITY AND TRANSFER ............. ............. ........................ .... ...... .... ......... ............. ...... 15 SECTION 2.08. FORM OF BONDS ................................................................................16 ARTICLE III REDEMPTION OF BONDS SECTION 3.01. SELECTION OF BONDS TO BE REDEEMED. .............................25 SECTION 3.02. NOTICE OF REDEMPTION ...................... .... ............... ...................... 25 SECTION 3.03. REDEMPTION OF PORTIONS OF BONDS ...................................26 SECTION 3.04. PAYMENT OF REDEEMED BONDS ...............................................26 ARTICLE IV SECURITY, SPECIAL FUNDS AND APPLICATION THEREOF SECTION 4.01. BONDS NOT TO BE INDEBTEDNESS OF ISSUER ....................27 SECTION 4.02. SECURITY FOR BOND .................. ...... ............................................... 2 7 SECTION 4.03. PROJECT FUND. ...................... ................................ ............... ............. 2 7 I ~"'-_..~ SECTION 4.04. FUNDS AND ACCOUNTS . .............. ......... ..................... .................... 2 8 SECTION 4.05. FLOW OF FUNDS ..... .......................................... ............... ..................28 SECTION 4.06. COVENANT TO BUDGET AND APPROPRIATE.........................32 SECTION 4.07. INVESTMENTS............... ......................................................................33 SECTION 4.08. SEP ARA TE ACCOUNTS .................. .................................................. 3 3 ARTICLE V ISSUANCE OF PARITY OBLIGATIONS; COVENANTS OF THE ISSUER SECTION 5.01. ISSUANCE OF PARITY OBLIGATIONS ........................................ 35 SECTION 5.02. BOOKS AND RECORDS ............... ........... ....... ...... ............. ...... ..........35 SECTION 5.03. ANNUAL AUDIT................. ...................... .................................. ......... 3 5 SECTION 5.04. NO IMPAIRMENT............. .... ........................................................ ....... 3 5 SECTION 5.05. ENFORCEMENT OF PAYMENT OF SPECIAL ASSES SMENT PROCEEDS....... ........................................... ..............35 SECTION 5.06. RE- ASSES SMENTS ................................... ....... ............................ ........36 SECTION 5.07. OTHER MONEyS................................................................................. 3 6 ARTICLE VI DEFAULTS AND REMEDIES SECTION 6.01. EVENTS OF DEF AUL T.......................................................................3 7 SECTION 6.02. REMEDIES..................................... ........................................................37 SECTION 6.03. DIRECTIONS TO RECEIVER AS TO REMEDIAL PROCEEDINGS..................................................................................... 3 8 SECTION 6.04. INSURER'S ACCESS TO REGISTRATION BOOKS....................38 SECTION 6.05. REMEDIES CUMULATIVE ...............................................................38 SECTION 6.06. WAIVER OF DEF AUL T......................................................................38 SECTION 6.07. APPLICATION OF MONEYS AFTER DEF AUL T.........................39 ARTICLE VII SUPPLEMENTAL ORDINANCES SECTION 7.01. SUPPLEMENTAL ORDINANCE WITHOUT CONSENT ............41 SECTION 7.02. SUPPLEMENTAL ORDINANCE WITH BONDHOLDERS' AND INSURER'S CONSENT .............................................................41 SECTION 7.03. AMENDMENT WITH CONSENT OF INSURER ONL Y..............43 ARTICLE VIll MISCELLANEOUS SECTION 8.01. D EFEASAN CE ....... ............................ ................................................... 44 11 SECTION 8.02. SALE OF BONDS ........... ............. ......... ................................ .......... ...... 45 SECTION 8.03. VALIDA TI ON........ ..... ........................................................................... 4 5 SECTION 8.04. SEVERABILITY OF INVALID PROVISIONS ...............................45 SECTION 8.05. REPEAL OF INCONSISTENT ORDINANCES AND RESO L UTI 0 NS ............... ............................................................. .........46 SECTION 8.06. EFFECTIVE DATE .................................................... ...........................46 11I _._~,- -~_.. ORDINANCE NO. 'ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZING THE ISSUANCE BY THE COUNTY OF NOT EXCEEDING $5,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF TAXABLE W ASTEW A TER IMPROVEMENT ASSESSMENT BONDS (STOCK ISLAND AREA), SERIES 2004 IN ORDER TO FINANCE THE ACQUISITION OF CERTAIN WASTEWATER TREATMENT CAPACITY AND VARIOUS COSTS RELATING TO THE ACQUISITION AND CONSTRUCTION OF CERTAIN WASTEWATER UTILITY CAPITAL IMPROVEMENTS ON STOCK ISLAND, INCLUDING THE REIMBURSEMENT OF CERTAIN EXPENDITURES PREVIOUSLY MADE BY THE COUNTY; PLEDGING THE MONEYS RECEIVED BY THE COUNTY FROM CERTAIN SPECIAL ASSESSMENTS UPON PROPERTY BENEFITED BY THE AFOREMENTIONED IMPROVEMENTS TO SECURE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON SAID BONDS; COVENANTING TO BUDGET AND APPROPRIATE LEGALLY AVAILABLE NON-AD VALOREM FUNDS TO PAY DEBT SERVICE ON THE BONDS IN THE EVENT THE SPECIAL ASSESSMENTS ARE INADEQUATE FOR SUCH PURPOSE; PROVIDING FOR THE RIGHTS OF THE HOLDERS OF SAID BONDS; AND PROVIDING FOR AN EFFECTIVE DATE FOR THIS ORDINANCE. BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, AS FOLLOWS: ARTICLE I GENERAL SECTION 1.01. DEFINITIONS. When used in this Ordinance, the following terms shall have the following meanings, unless the context clearly otherwise requires: "Act" shall mean Chapter 125, Florida Statutes, the Assessment Ordinance, and other applicable provisions oflaw. "Act of Bankruptcy" shall mean (1) the Issuer shall be adjudicated a bankrupt or become subject to an order for relief under federal bankruptcy law, (2) the Issuer shall institute any proceedings seeking an order for relief under federal bankruptcy law or seeking to be adjudicated as bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy or insolvency, (3) there shall be appointed a receiver, liquidator or similar official for the Issuer under any law relating to bankruptcy or insolvency, or (4) without the application, approval or consent of the Issuer, a receiver, trustee, examiner, liquidator or similar official shall be appointed for the Issuer, or a proceeding described in (2) above shall be instituted against the Issuer, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of thirty (30) consecutive days. The mere declaration of a state of financial emergency under Section 218.503, Florida Statutes, shall not, in and of itself, constitute an Act of Bankruptcy. "Amortization Installment" shall mean an amount designated as such pursuant to the provisions hereof or of a Supplemental Ordinance and set forth in and established with respect to any Term Bonds. "Annual Debt Service" shall mean, at any time, the aggregate amount in the then current Fiscal Year of (1) interest required to be paid on the Outstanding Bonds during such Fiscal Year, except to the extent that such interest is to be paid from deposits in the Interest Account made from Bond proceeds, (2) principal of Outstanding Serial Bonds maturing in such Fiscal Year, and (3) the Amortization Installments herein designated with respect to such Fiscal Year. "Assessment Account" shall mean the separate account in the Revenue Fund established pursuant to Section 4.04 hereof. 2 ..- ._.--~ "Assessment Ordinance" shall mean Ordinance No. 027-2003 of the Issuer enacted on July 15,2003, as amended and supplemented from time to time. "Assessment Resolution" shall mean, collectively, all resolutions adopted by the Issuer in connection with the imposition of the Assessments, as the same may be amended or supplemented from time to time. "Assessments" shall mean the special assessments lawfully levied by the Issuer in accordance with the Assessment Ordinance against properties specially benefited by the acquisition, construction and equipping of the Improvements. "Authorized Investments" shall mean any investments that are at the time they are made legal for investment of funds of the Issuer. "Authorized Issuer Officer" shall mean the Mayor, the County Administrator or the aerk, or their lawful designees, and when used in reference to any act or document also means any other person authorized by resolution of the Issuer to perform such act or sign such document. "Bond Counsel" shall mean Nabors, Giblin & Nickerson, P.A., or any other attorney at law or firm of attorneys, of nationally recognized standing in matters pertaining to the federal tax exemption of interest on obligations issued by states and political subdivisions, and duly admitted to practice law before the highest court of any state of the United States of America. "Bondholder" or "Holder" or "holder" or any similar term, when used with reference to a Bond or Bonds, shall mean any person who shall be the registered owner of any Outstanding Bond or Bonds as provided in the registration books of the Issuer. "Bonds" shall mean the Monroe County, Florida Taxable Wastewater Improvement Assessment Bonds (South Stock Island Area), Series 2004, issued pursuant to this Ordinance. "Business Day" shall mean any day other than (1) a Saturday or Sunday or a legal holiday on which banking institutions in the cities in which the principal offices of the Paying Agent or Registrar are located are required or authorized by law to remain closed or (2) a day on which the New York Stock Exchange is closed. "Capacity Contract" shall mean the Capacity Reservation and Infrastructure Contract, dated as of July 31, 2002, between the Issuer and the Utility, as amended and supplemented from time to time. 3 "Oerk" shall mean the Clerk of the Circuit Court for Monroe County, Florida and Ex-Officio Clerk of the Board of County Commissioners of Monroe County, Florida, or such other person as may be duly authorized to act on his or her behalf, including, but not limited to, any duly appointed Deputy City Clerk of the Issuer. "County Administrator" shall mean the County Administrator of the Issuer or such other person as may be duly authorized to act on his or her behalf. "Debt Service Fund" shall mean the Monroe County, Florida Taxable Wastewater Improvement Assessment Bonds (Stock Island Area), Series 2004 established pursuant to Section 4.04 hereof. "Defeasance Obligations" shall mean (1) cash, (2) Government Obligations, (3) evidences of ownership of proportionate interests in future interest and principal payments on Government Obligations held by a bank or trust company or custodian, under which the owner of the investment is the real party in interest and has the right to proceed directly and individually agaimt the obligor and the underlying Government Obligations are not available to any person claiming through the custodian or to whom the custodian may be obligated, or (4) Prerefunded Obligations. "Delinquent Assessments" shall mean, collectively, any and all installments of any Assessments which are paid after they are due. "Event of Default" shall mean any Event of Default specified in Section 6.01 of this Ordinance. "Expense Account" shall mean the separate account in the Revenue Fund established pursuant to Section 4.04 hereof. "Fiscal Year" shall mean the period commencing on October 1 of each year and continuing through the next succeeding September 30, or such other period as may be prescribed by law. "Government Obligations" shall mean direct, noncallable obligations of the United States of America. "Improvements" shall mean those wastewater utility capital improvements to the System to be made on South Stock Island, as described in and contemplated by the Capacity Contract and approved by the Issuer, as the same may be amended or supplemented from time to time. The Improvements shall be owned by the Utility. 4 -...,--....".. "Insurance Policy" shall mean any municipal bond insurance policy issued by an Insurer guaranteeing the scheduled payment of principal of and interest on the Bonds. "Insurer" shall mean, with respect to the Bonds, such person, if any, as shall be insuring or guaranteeing the payment of the principal of and interest on such series of Bonds, when due. "Interest Account" shall mean the separate account of the Debt Service Fund established pursuant to Section 4.04 hereof. "Issuer" shall mean Monroe County, Florida, a political subdivision of the State. "Maximum Annual Debt Service" shall mean the largest aggregate amount of the Annual Debt Service becoming due in any Fiscal Year in which Bonds are Outstanding, excluding all Fiscal Years which shall have ended prior to the Fiscal Year in which the Maximum Annual Debt Service shall at any time be computed. "Mayor" shall mean the Chair or Mayor of the Board of County Commissioners of the Issuer, and such other person as may be duly authorized to act on his or her behalf. "Moody's" shall mean Moody's Investors Service, and any assigns or successors thereto. "Non-Ad Valorem Funds" shall mean all revenues of the Issuer derived from any source whatsoever other than ad valorem taxation on real or personal property, which are legally available to make the payments required herein, but only after provision has been made by the Issuer for the payment of all essential or legally mandated services. "Outstanding," when used with reference to Bonds and as of any particular date, shall describe all Bonds theretofore and thereupon being authenticated and delivered except, (1) any Bond in lieu of which another Bond or other Bonds have been issued under agreement to replace lost, stolen, mutilated or destroyed Bonds under Section 2.06 hereof, (2) any Bond surrendered by the Holder thereof in exchange for another Bond or other Bonds under Sections 2.05 and 2.07 hereof, (3) Bonds deemed to have been paid pursuant to Section 8.01 hereof, and (4) Bonds cancelled after purchase in the open market or because of payment at or redemption prior to maturity. "Paying Agent" shall mean any paying agent for the Bonds appointed by or pursuant to Supplemental Ordinance and its successor or assigns, and any other Person which may at any time be substituted in its place pursuant to Supplemental Ordinance. 5 "Payment Date" shall mean each February 1 and August 1, or such other dates as may subsequently be determined by the Issuer pursuant to Supplemental Ordinance. "Person" shall mean an individual, a corporation, a partnership, an association, a joint stock company, a trust, any unincorporated organization or governmental entity. "Pledged Revenues" shall mean (1) the Special Assessments Proceeds, and (2) until applied in accordance with the provisions of this Ordinance, all moneys, including investments thereof, in the funds and accounts established hereunder. "Policy Costs" shall mean all amounts we from the Issuer to an issuer of a Reserve Account Insurance Policy or Reserve Account Letter of Credit as a result of a draw thereon. "Prepayments" shall mean any Assessments, or portions thereof, which shall be paid to the Issuer prior to the time the same becomes due. "Prerefunded Obligations" shall mean any bonds or other obligations of any state of the United States of America or of any agency, instrumentality or local governmental unit of any such state (1) which are (A) not callable at the option of the obligor prior to maturity or (B) as to which irrevocable instructions have been given to the fiduciary for such bonds or other obligations by the obligor to give due notice of redemption and to call such bonds for redemption on the date or dates specified in such instructions, (2) which are fully secured as to principal, redemption premium, if any, and interest by a fund consisting only of cash or Defeasance Obligations, secured in the manner set forth in Section 8.01 hereof, which fund may be applied only to the payment of such principal of, redemption premium, if any, and interest on such bonds or other obligations on the maturity date or dates thereof or the specified redemption date or dates pursuant to such irrevocable instructions, as the case may be, (3) as to which the principal of and interest on the Defeasance Obligations, which have been deposited in such fund along with any cash on deposit in such fund, are sufficient, as verified by an independent certified public accountant, to pay principal of, redemption premium, if any, and interest on the bonds or other obligations on the maturity date or dates thereof or on the redemption date or dates specified in the irrevocable instructions referred to in clause (I) above, and (4) which are rated in the highest rating category ofS&P or Moody's. "Principal Account" shall mean the separate account in the Debt Service Fund established pursuant to Section 4.04 hereof. "Project Fund" shall mean the Monroe County, Florida Taxable Wastewater Improvement hsessment Bonds (Stock Island Area), Series 2004 established pursuant to Section 4.03 hereof. 6 --- "Redemption Account" shall mean the separate account of the Debt Service Fund established pursuant to Section 4.04 hereof. "Redemption Price" shall mean, with respect to any Bond or portion thereof, the principal amount or portion thereof, plus the applicable premium, if any, payable upon redemption or prepayment thereof pursuant to such Bond or this Ordinance. "Registrar" shall mean any registrar for the Bonds appointed by or pursuant to Supplemental Ordinance and its successors and assigns, and any other Person which may at any time be substituted in its place pursuant to Supplemental Ordinance. "Reserve Account" shall mean the separate account in the Debt Service Fund established pursuant to Section 4.04 hereof. "Reserve Account Insurance Policy" shall mean an insurance policy or surety bond deposited in the Reserve Account in lieu of or in partial substitution for cash on deposit therein pursuant to Section 4.05(A)(3) hereof. "Reserve Account Letter of Credit" shall mean an unconditional irrevocable letter of credit or line of credit (other than a Reserve Account Insurance Policy) deposited in the Reserve Account in lieu of or in partial substitution for cash on deposit therein pursuant to Section 4.05(A)(3) hereof. "Reserve Account Requirement" shall mean, as of any date of calculation, an amount equal to the lesser of (1) Maximum Annual Debt Service for all Outstanding Bonds, (2) one hundred twenty-five percent (125%) of the average annual debt service for all Outstanding Bonds, or (3) such other amount as shall be designated by Bond Counsel as the maximum amount of Bond proceeds which may be deposited in the Reserve Account without subjecting the same to yield restriction or causing interest on any of the Bonds (other than taxable Bonds) to be included in gross income for purposes of federal income taxation. Pursuant to Supplemental Ordinance, the Reserve Account Requirement may be determined to be zero ($0.00) or an amount less than the amount set forth in this definition. "Ordinance" shall mean this Ordinance, as the same may from time to time be amended, modified or supplemented by Supplemental Ordinance. "Revenue Fund" shall mean the Monroe County, Florida Taxable Wastewater Improvement Assessment Bonds (Stock Island Area), Series 2004 Revenue Fund established pursuant to Section 4.04 hereof. "Serial Bonds" shall mean all of the Bonds other than Term Bonds. 7 "Special Assessment Proceeds" shall mean the proceeds of the Assessments lawfully collected by the Issuer, including the interest and penalties on such Assessments. Special Assessment Proceeds shall include moneys lawfully received by the Issuer on account of collection of Delinquent Assessments and Prepayments. Special Assessment Proceeds shall also include proceeds of any re-assessment pursuant to Section 5.06 hereof and any other amounts made available by the Issuer pursuant to Section 5.07 hereof. "S&P" shall mean Standard and Poor's, a Division of The McGraw-Hill Companies, and any assigns and successors thereto. "State" shall mean the State of Florida. "Supplemental Ordinance" shall mean any ordinance or resolution of the Issuer amending or supplementing this Ordinance adopted and becoming effective In accordance with the terms of Sections 7.01, 7.02 and 7.03 hereof. "System" shall mean any and all sewage collection, transmission, treatment and disposal facilities now owned and operated or hereafter owned and operated by the Utility, which System shall also include any and all improvements, extensions and additions thereto hereafter constructed or acquired, together with all property, real or personal, tangible or intangible, now or hereafter owned or used in connection therewith. "Term Bonds" shall mean those Bonds which shall be designated as Term Bonds pursuant to the provisions of a Supplemental Ordinance and which are subject to mandatory redemption by Amortization Installment. "Utility" shall mean KW Resort Utilities Corp., a Florida corporation, and its successors or asSIgnS. The terms "herein," "hereunder," "hereby," "hereto," "hereof," and any similar terms, shall refer to this Ordinance; the term "heretofore" shall mean before the date of adoption of this Ordinance; and the term "hereafter" shall mean after the date of adoption of this Ordinance. Words importing the masculine gender include every other gender. Words importing the singular number include the plural number, and vice versa. SECTION 1.02. AUTHORITY FOR ORDINANCE. This Ordinance IS enacted pursuant to the provisions of the Act. 8 "----..- SECTION 1.03. ORDINANCE TO CONSTITUTE CONTRACT. In consideration of the purchase and acceptance of any or all of the Bonds by those who shall hold the same from time to time, the provisions of this Ordinance shall be a part of the contract of the Issuer with the Holders of the Bonds, and shall be deemed to be and shall constitute a contract between the Issuer and the Holders from time to time of the Bonds. The pledge made in this Ordinance and the provisions, covemnts and agreements herein set forth to be performed by or on behalf of the Issuer shall be for the equal benefit, protection and security of the Holders of any and all of said Bonds and for the benefit, protection and security of any Insurer. For purposes of this Ordinance, any Insurer shall be a third party beneficiary. All of the Bonds, regardless of the time or times of their issuance or maturity, shall be of equal rank without preference, priority or distinction of any of the Bonds over any other thereof except as expressly provided in or pursuant to this Ordinance. SECTION 1.04. FINDINGS. It IS hereby ascertained, determined and declared that: (A) The Monroe County Comprehensive Plan requires the Issuer to meet State mandated wastewater collection, treatment and disposal standards by the year 2010. (B) The Issuer previously has determined that the most cost effective, efficient and practical way to meet the standards referred to in the immediately preceding paragraph is through the establishment of central wastewater service. (C) The Monroe County Sanitary Wastewater Master Plan identifies South Stock Island as the highest priority area for central wastewater service in the lower keys. (D) Centralized wastewater services currently are available only to a limited number of businesses and residences on South Stock Island. (E) The prevailing method of wastewater collection, treatment and disposal on South Stock Island currently is the utilization of cess pits and septic systems. (F) The prevailing method cf wastewater collection, treatment and disposal described in the immediately preceding paragraph is polluting near shore water around Stock Island and other parts of the Issuer, damaging the living coral reefs located around the Issuer, adversely affecting the health and welfare of the citizens of the Issuer and adversely affecting the Issuer's tourist based economy. (G) The Issuer is required to eliminate the use of cess pits and septic systems on South Stock Island and desires to make available to the residences and businesses of South Stock Island a central wastewater collection, treatment and disposal system. 9 (H) Because the Utility has been granted an exclusive franchise by the Florida Public Service Commission to provide wastewater service to all of South Stock Island, in order to eliminate the use of cess pits and septic systems on South Stock Island and make available to the residences and businesses of South Stock Island a central wastewater collection, treatment and disposal system, the Issuer previ ously has entered into the Capacity Contract with the Utility. (I) Prior to entering the Capacity Contract, the Utility was not legally obligated to eliminate the cess pits and septic systems on South Stock Island or to construct the Improvements. (1) The Capacity Contract provides for the purchase and reservation of capacity in the System by the Issuer and the acquisition, construction and equipping of the Improvements by the Utility. (K) The Improvements will replace cess pits and septic systems on South Stock Island with a central wastewater collection, treatment and disposal system. (L) The purchase and reservation of capacity in the System by the Issuer and the acquisition, construction and equipping of the Improvements by the Utility in accordance wi th the provisions of the Capacity Contract will improve, maintain and protect the health, safety and welfare of the citizens of the Issuer and serves a paramount public purpose with an only incidental benefit to private persons, including the Utility. (M) The most efficient and fairest method of financing the Issuer's financial obligations under the Capacity Contract is by the issuance of Bonds secured by the Pledged Revenues and, in particular, the Special Assessment Proceeds, and, if required, by the Non-Ad Valorem Funds as provided herein. (N) The Assessment Ordinance was intended to grant to existing residences and businesses within South Stock Island that are mandatorily required to connect to the System the option and privilege to pay required capacity reservation fees in installments in the form of the Assessments. (0) The option and privilege for existing residences and businesses to pay capacity reservation fees otherwise due at time of mandatory connection in the form of the Assessments serves the pIblic interest by reducing the cost of the requirement for mandatory connection to the System which requirement is essential to protect the economy and fragile environment of the Issuer. (P) The principal of, Redemption Price, if applicable, and interest on the Bonds shall be paid from the Pledged Revenues and, if required, Non-Ad Valorem Funds, unless 10 otherwise paid by any Insurer. The Issuer shall never use or be required to use any ad valorem taxes for the payment of the Bonds. The Bonds shall not constitute a direct obligation of the Issuer or a pledge of its faith and credit, nor shall the Bondholders have any lien or encumbrance on any property in the Issuer other than the Pledged Revenues. SECTION 1.05. AUTHORIZA TION OF CAPACITY RESERVATION AND IMPROVEMENTS; REIMBURSEMENT. The Issuer does hereby authorize the purchase and reservation of capacity in the System and the acquisition, construction and equipping of the Improvements by the Utility, all in accordance with the provisions of the Capacity Contract. In connection therewith, the Issuer further authorizes the reimbursement of any costs previously incurred or amounts previously paid by the Issuer pursuant to the provisions of the Capacity Contract, subject to the prior approval of Bond Counsel. 11 ARTICLE II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF BONDS SECTION 2.01. AUTHORIZATION AND DESCRIPTION OF BONDS. This Ordinance creates an issue of bonds of the Issuer to be designated as "Monroe County, Florida, Taxable Wastewater Improvement Assessment Bonds (Stock Island Area), Series 2004," issued in the aggregate principal amount of not exceeding $5,000,000. The Bonds are issued for the principal purposes of providing for the purchase and reservation of capacity in the System by the Issuer and for the acquisition, construction and equippi ng of the Improvements by the Utility, all in accordance with the provisions of the Capacity Contract, funding the Reserve Account, if required, and paying certain costs of issuance incurred with respect to the Bonds. The Bonds shall be dated as of the fIrst day of the month in which occurs the delivery of the Bonds to the purchaser or purchasers thereof or such other date as may be set forth in or determined by Supplemental Ordinance of the Issuer, shall be issued as fully registered Bonds, shall be numbered consecutively from one upward in order of maturity preceded by the letter "R", shall be in such denominations and shall bear interest at a rate or rates not exceeding the maximum rate permitted by law, shall be payable in such manner and on such dates, maturing in such amounts and in such years, shall be payable in such place or places, shall have such Paying Agents and Registrars, shall have such Serial Bonds and Term Bonds, and shall contain such redemption provisions, all as the Issuer shall provide rereafter by or pursuant to the provisions of a Supplemental Ordinance. The principal of or Redemption Price, if applicable, on the Bonds are payable upon presentation and surrender of the Bonds at the office of the Paying Agent. Interest payable on any Born on any Payment Date will be paid by check or draft of the Paying Agent to the Holder in whose name such Bond shall be registered at the close of business on the date which shall be the fIfteenth day (whether or not a Business Day) of the calendar month rext preceding such Payment Date, or at the request of such Holder, by bank: wire transfer for the account of such Holder. All payments of principal of or Redemption Price, if applicable, and interest on the Bonds shall be payable in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. SECTION 2.02. APPLICA TION OF BOND PROCEEDS. Except as otherwise provided by Supplemental Ordinance of the Issuer, the proceeds derived from the sale of the Bonds, including accrued interest and premium, if any, shall, 12 __w ..__ ~ ,.,-"_.. simultaneously with the delivery of the Bonds to the purchaser or purchasers thereof, be applied by the Issuer as follows: (A) An amount representing accrued interest, if any, shall be deposited in the Interest Account and shall be used only for the purpose of paying the interest which shall thereafter become due on the Bonds. (B) An amount of Bond proceeds equal to the Reserve Account Requirement shall be deposited in the Reserve Account or, in the alternative, an amount of the Bond Proceeds sufficient to pay the premium for a Reserve Account Insurance Policy or Reserve Account Letter of Credit shall be paid to the issuer thereof. (C) An amount of the Bond proceeds shall be applied to the payment of costs and expenses relating to the issuance of the Bonds, including the premium for any Insurance Policy, to the extent such costs and expenses shall not be paid from the Project Fund (D) The balance of the Bond proceeds shall be deposited in the Project Fund or paid directly to the Issuer as reimbursement for amounts previously paid by the Issuer to purchase and reserve capacity in the System pursuant to the Capacity Contract. SECTION 2.03. EXECUTION OF BONDS. The Bonds shall be executed in the name of the Issuer with the manual or facsimile signature of the Mayor and the official seal of the Issuer shall be imprinted thereon, attested and countersigned with the manual or facsimile signature of the Clerk. In case anyone or more of the officers who shall have signed or sealed any of the Bonds or whose facsimile signature shall appear thereon shall cease to be such officer of the Issuer before the Bonds so signed and sealed have been actually sold and delivered, such Bonds may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such Bonds had not ceased to hold such office. Any Bond may be signed and sealed on behalf of the Issuer by such person who at the actual time of the execution of such Bond shall hold the proper office of the Issuer, although at the date of such Bond such person may not have held such office or may not have been so authorized. The Issuer may adopt and use for such purposes the facsimile signatures of any su;h persons who shall have held such offices at any time after the date of the adoption of this Ordinance, notwithstanding that either or both shall have ceased to hold such office at the time the Bonds shall be actually sold and delivered. SECTION 2.04. AUTHENTICA TION. No Bond shall be secured hereunder or entitled to the benefit hereof or shall be valid or obligatory for any purpose unless there shall be manually endorsed on such Bond a certificate of authentication by the 13 Registrar or such other entity as may be approved by the Issuer for such purpose. Such certificate on any Bond shall be conclusive evidence that such Bond has been duly authenticated and delivered under this Ordinance. The certificate shall be substantially in the form provided in Section 2.08 hereof. Notwithstanding the foregoing, the Issuer may act in the capacity of Registrar with respect to the Bonds and if the Issuer so acts the Bonds need not be authenticated. SECTION 2.05. TEMPORARY BONDS. Until the definitive Bonds are prepared, the Issuer may execute, in the same manner as is provided in Section 2.03 hereof, and deliver, upon authentication by the Registrar (if required pursuant to the provisions of Section 2.04) pursuant to Section 2.04 hereof, in lieu of definitive Bonds, but subject to the same provisions, limitations and conditions as the defmitive Bonds, except as to the denominations thereof, one or more temporary Bonds substantially of the tenor of the definitive Bonds in lieu of which such temporary Bond or Bonds are issued, in denominations authorized by the Issuer by Supplemental Ordinance, and with such omissions, insertions and variations as may be appropriate to temporary Bonds. The Issuer, at its own expense, shall prepare and execute definitive Bonds, which shall be authenticated by the Registrar. Upon the surrender of such temporary Bonds for exchange, the Registrar, without charge to the Holder thereof, shall deliver in exchange therefor defmitive Bonds, of the same aggregate principal amount and maturity as the temporary Bonds surrendered. Until so exchanged, the temporary Bonds shall in all respects be entitled to the same benefits and security as definitive Bonds issued pursuant to this Ordinance. All temporary Bonds surrendered in exchange for another temporary Bond or Bonds or for a defmitive Bond or Bonds shall be forthwith cancelled by the Registrar. SECTION 2.06. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case any Bond shall become mutilated, or be destroyed, stolen or lost, the Issuer may, in its discretion, issue and deliver, and the Registrar shall authenticate, a new Bond of like tenor as the Bond so mutilated, destroyed, stolen or lost, in exchange and substitution for such mutilated Bond upon surrender and cancellation of such mutilated Bond or in lieu of and substitution for the Bond destroyed, stolen or lost, and upon the Holder furnishing the Issuer and the Registrar proof of his ownership thereof and indemnity satisfactory to the Issuer, the Registrar and the Insurer, if any, and complying with such other reasonable regulations and conditions as the Issuer or the Registrar may prescribe and paying such expenses as the Issuer and the Registrar may incur. All Bonds so surrendered or otherwise substituted shall be cancelled by the Registrar. If any of the Bonds shall have matured or been called for redemption or be about to mature or be called for redemption, instead of issuing a substitute Bond, the Issuer may pay the same or cause the Bond to be paid, upon being indemnified as aforesaid, and if such Bonds be lost, stolen or destroyed, without surrender thereof. 14 -~--_.- Any such duplicate Bonds issued pursuant to this Section 2.06 shall constitute original, additional contractual obligations on the part of the Issuer whether or not the lost, stolen or destroyed Bond be at any time found by anyone, and such duplicate Bond shall be entitled to equal and proportionate benefits and rights as to lien on the Pledged Revenues to the same extent as all other Bonds issued hereunder. SECTION 2.07. INTERCHANGEABILITY, NEGOTIABILITY AND TRANSFER. Bonds, upon surrender thereof at the office of the Registrar with a written instrument of transfer satisfactory to the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing, may, at the option cf the Holder thereof, be exchanged for an equal aggregate principal amount of registered Bonds of the same maturity of any other authorized denominations. The Bonds issued under this Ordinance shall be and have all the qualities and incidents of negotiable instruments under the law merchant and the Uniform Commercial Code of the State of Florida, subject to the provisions for registration of transfer contained in this Ordinance and in the Bonds. So long as any of the Bonds shall remain Outstanding, the Issuer shall maintain and keep, at the office of the Registrar, books for the registration of transfer of the Bonds. The transfer of any Bond shall be registered only upon the books of the Issuer, at the office of the Registrar, under such reasonable regulations as the Issuer may prescribe, by the Holder thereof in person or by his attorney duly authorized in writing upon surrender thereof together with a written instrument of transfer satisfactory to the Registrar duly executed by the Holder or his duly authorized attorney with signature guaranteed. Upon the registration of transfer of any such Bond, the Issuer shall issue, and cause to be authenticated, in the name of the transferee a new Bond or Bonds of the same aggregate principal amount and maturity as the surrendered Bond. The Issuer, the Registrar and any Paying Agent or fiduciary of the Issuer may deem and treat the Person in whose name any Outstanding Bond shall be registered upon the books of the Issuer as the absolute owner of such Bond, whether such Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal or Redemption Price, if applicable, and interest on such Bond and for all other purposes, and all such payments so made to any such Holder or upon his order shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid and neither the Issuer nor the Registrar nor any Paying Agent or other fiduciary of the Issuer shall be affected by any notice to the contrary. Any Paying Agent of any fully registered Bond shall effect payment of interest on such Bonds by mailing a check or draft to the Holder entitled thereto or may, in lieu 15 thereof, upon the request and at the expense of such Holder, transmit s-och payment by bank wire transfer for the account of such Holder. In all cases in which Bonds shall be exchanged or the transfer of Bonds shall be registered, the Issuer shall execute and the Registrar shall authenticate and deliver such Bonds in accordance with the provisions of this Ordinance. Execution of Bonds by the Mayor and Clerk for purposes of exchanging, replacing or registering the transfer of Bonds may occur at the time of the original delivery of the Bonds. All Bonds surrendered in any such exchanges or registration of transfer shall be held by the Registrar in safekeeping until directed by the Issuer to be cancelled by the Registrar. For every such exchange or registration of transfer, the Issuer or the Registrar may make a charge sufficient to reimburse it for any tax, fee, expense or other governmental charge required to be paid with respect to such exchange or registration of transfer. The Issuer and the Registrar shall not be obligated to make any such exchange or registration of transfer of Bonds during the fifteen (15) days next preceding a Payment Date on the Bonds, or, in the case of any proposed redemption of Bonds, then, during the fifteen (15) days next preceding the date of the first mailing of notice of such redemption and, in the case of the Bonds called for redemption, continuing until such redemption date. SECTION 2.08. FORM OF BONDS. The text of the Bonds shall be in substantially the following form with such omissions, insertions and variations, including any changes required for book-entry only registration of the Bonds, as may be necessary and/or desirable and approved by the Mayor or the Clerk: prior to the issuance thereof (which necessity and/or desirability and approval shall be presumed by such officer's execution of the Bonds and the Issuer's delivery of the Bonds to the purchaser or purchasers thereof): 16 No.R- $ UNITED STATES OF AMERICA STA TE OF FLORIDA MONROE COUNTY, FLORIDA TAXABLE WASTEWATER IMPROVEMENT ASSESSMENT BOND (STOCK ISLAND AREA), SERIES 2004 Interest Maturity Date of Rate Date Original Issue CUSIP - % '- ,- Registered Holder: Principal Amount: KNOW ALL MEN BY THESE PRESENTS, Monroe County, Florida, a political subdivision. of the State of Florida (the "Issuer"), for value received, hereby promises to pay, solely :from the moneys hereinafter described, to the Registered Holder identified above, or registered assigns as hereinafter provided, on the Maturity Date identified above, the Principal Amount identified above and to pay interest on such Principal Amount from the Date of Original Issue identified above or from the most recent interest payment date to which interest has been paid at the Interest Rate per annum identified above on 1 and I of each year, commencing I, _, until such Principal Amount shall have been paid, except as the provisions hereinafter set forth with respect to redemption prior to maturity may be or become applicable hereto. Interest on this Bond shall be computed on the basis of a 360- day year consisting of twelve 3D-day months. Such Principal Amount and interest and the premium, if any, on this Bond are payable in any coin or currency of the United States of America which, on the respective dates of payment thereof, shall be legal tender for the payment of public and private debts. Such Principal Amount and the premium, if any, on this Bond, are payable, upon presentation and surrender hereof, at the designated corporate trust office of , , , as Paying Agent. Payment of 17 each installment of interest shall be made to the person in whose name this Bond shall be registered on the registration books of the Issuer maintained by , , , as Registrar, at the close of business on the date which shall be the fifteenth day (whether or not a business day) of the calendar month next preceding each interest payment date and shall be paid by a check or draft of such Paying Agent mailed to such Registered Holder at the address appearing on such registration books or, at the request of such Registered Holder, by bank wire transfer for the account of such Holder. This Bond is one of an authorized issue of Bonds in the aggregate principal amount of $ (the "Bonds") of like date, tenor and effect, except as to maturity date, interest rate, denomination and number, issued for the principal purposes of providing moneys for the purchase and reservation of capacity in the System (as defined in the hereinafter defined Ordinance) by the Issuer and for the acquisition, construction and equipping of the Improvements (as defmed in the Ordinance) by the Utility (as defined in the Ordinance), all in accordance with the provisions of the Capacity Contract (as defined in the Ordinance), funding the Reserve Account (as defined in the Ordinance), if required, and paying certain costs of issuance incurred with respect to the Bonds, under the authority of and in full compliance with the Constitution and laws of the State of Florida, particularly Chapter 125, Florida Statutes, the Issuer's Ordinance No. 027-2003 of the Issuer enacted on July 15, 2003, as amended and supplemented from time to time, and other applicable provisions of law (the "Act"), and an ordinance duly adopted by the Board of County Commissioners of the Issuer on December 17, 2003, as the same may be amended and supplemented from time to time (the 'Ordinance"), and is subject to all the terms and conditions of the Ordinance. This Bond and the interest hereon are payable from and secured by a lien upon and a pledge of (1) the proceeds of certain special assessments levied and collected by the Issuer upon property benefited by the Improvements, as more particularly described in the Ordinance, and (2) until applied in accordance with the provisions of the Ordinance, all moneys, including investments thereof, in certain of the funds and accounts established by the Ordinance, all in the manner and to the extent described in the Ordinance (collectively, the "Pledged Revenues"). It is expressly agreed by the Registered Holder of this Bond that the full faith and credit of the Issuer, the State of Florida, or any political subdivision thereof, are not pledged to the payment of the principal of, premium, if any, and interest on this Bond and that such Holder shall never have the right to require or compel the exercise of any taxing power of the Issuer, the State of Florida, or any political subdivision thereof, to the payment of such principal, premium, if any, and interest. This Bond and the obligation evidenced hereby shall not constitute a lien upon any property of the Issuer or the Improvements, but shall constitute a lien only on, and shall be payable from, the Pledged Revenues. 18 -- ---.------.-.." Pursuant to the Ordinance, the Issuer has covenanted to appropriate in its annual budget, by amendment (including emergency amendment), if necessary, such amounts of Non-Ad Valorem Funds (as defined in the Ordinance), which are not otherwise pledged, restricted or encumbered, as shall be necessary to replenish amounts drawn from the Reserve Account, if any, in accordance with the provisions of the Ordinance or to pay scheduled debt service payments with respect to the bonds in accordance with the Ordinance in the event the Pledged Revenues shall be inadequate for such purpose. Such covenant to appropriate Non-Ad Valorem Funds is not a pledge by the Issuer of such Non-Ad Valorem Funds and is subject in all respects to the payment of obligations secured by a pledge of such Non-Ad Valorem Funds heretofore or hereafter entered into (including the payment of debt service on bonds or other debt instruments) and also to the payment of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of the Issuer or which are legally mandated by applicable law. This Bond is transferable in accordance with the terms of the Ordinance only upon the books of the Issuer kept for that purpose at the designated corporate trust office of the Registrar by the Registered Holder hereof in person or by his attorney duly authorized in writing, upon the surrender of this Bond together with a written instrument of transfer satisfactory to the Registrar duly executed by the Registered Holder or his attorney duly authorized in writing, and thereupon a new Bond or Bonds in the same aggregate principal amount shall be issued to the transferee in exchange therefor, and upon the payment of the charges, if any, therein prescribed. The Bonds are issuable in the form of fully registered Bonds in the denomination of $5,000 and any integral multiple thereof, not exceeding the aggregate principal amount of the Bonds. The Issuer, the Registrar and any Paying Agent may treat the Registered Holder of this Bond as the absolute owner hereof for all purposes, whether or not this Bond shall be overdue, and shall not be affected by any notice to the contrary. The Issuer and the Registrar shall not be obligated to make any exchange or transfer of the Bonds during the fifteen (15) days next preceding an interest payment date or, in the case of any proposed redemption of the Bonds, then, during the fifteen (15) days next preceding the date of the first mailing of notice of such redemption and, in the case of the Bonds called for redemption, continuing until such redemption date. [Insert Redemption Provisions] Redemption of this Bond under the preceding paragraphs shall be made as provided in the Ordinance upon notice given by first class mail sent at least thirty (30) days prior to the redemption date; provided, however, that failure to mail notice to the Registered Holder hereof, or any defect therein, shall not affect the validity of the proceedings for redemption of other Bonds as to vhich no such failure or defect has 19 occurred. In the event that less than the full principal amount hereof shall have been called for redemption, the Registered Holder hereof shall surrender this Bond in exchange for one or more Bonds in an aggregate principal amount equal to the unredeemed portion of principal, as provided in the Ordinance. Reference to the Ordinance and any and all resolutions supplemental thereto and modifications and amendments thereof and to the Act is made for a description of the pledge and covenants securing this Bond, the nature, manner and extent of enforcement of such pledge and covenants, the rights, duties, immunities and obligations of the Issuer. It is hereby certified and recited that all acts, conditions and things required i> exist, to happen and to be performed precedent to and in the issuance of this Bond, exist, have happened and have been performed, in regular and due form and time as required by the laws and Constitution of the State of Florida applicable thereto, and twt the issuance of the Bonds does not violate any constitutional or statutory limitations or provisions. Neither the members of the Board of County Commissioners of the Issuer nor the Mayor nor any person executing this Bond shall be liable personally hereon or be subject to any personal liability or accountability by reason of the issuance hereof. This Bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Registrar. IN WITNESS WHEREOF, Monroe County, Florida has issued this Bond and has caused the same to be executed by the manual or facsimile signature of the Mayor of the Board of County Commissioners of Monroe County, Florida and by the manual or facsimile signature of the Clerk of the Board and its official seal or a facsimile thereof to be affixed or reproduced hereon, all as of the Date of Original Issue. MONROE COUNTY, FLORIDA (SEAL) Mayor, Board of County Commissioners ATTESTED AND COUNTERSIGNED: Clerk, Board of County Commissioners 20 .......N APPROVED AS TO FORM AND LEGAL SUFFICIENCY: County Attorney's Office 21 CERTIFICATE OF AUTHENTICATION This Bond is ore of the Bonds of the issue described in the within-mentioned Ordinance. DATE OF AUTHENTICATION: Registrar By: Authorized Signatory 22 ASSIGNMENT FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto Insert SocIal Secunty or Other IdentItyIng Number of AsSIgnee (Name and Address of ASSIgnee) the within Bond and does hereby irrevocably constitute and appoint , as attorneys to register the transfer of the said Bond on the books kept for registration thereof with full power of substitution in the premises. Dated: Signature guaranteed: NOTICE: Signature must be guaranteed by an institution which is a NOTICE: The signature to this participant in the Securities Transfer assignment must correspond with the Agent Medallion Program (STAMP) or name of the Registered Owner as it similar program. appears upon the face of the within bond in every particular, without alteration or enlargement or any change whatever and the Social Security or other identifying number of such assIgnee must be supplied. 23 The following abbreviations, when used in the inscription on the face of the within Bond, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM -- as tenants in common TEN ENT -- as tenants by the entireties JT TEN -- as joint tenants with right of survivorship and not as tenants In common UNIF TRANS MIN ACT -- (Cost.) Custodian for under Uniform Transfer to Minors Act of (State ) Additional abbreviations may also be used though not in list above. 24 ARTICLE III REDEMPTION OF BONDS SECTION 3.01. SELECTION OF BONDS TO BE REDEEMED. The Bonds shall be redeemed only in the principal amount of $5,000 each and integral multiples thereof. The Issuer shall, at least thirty-five (35) days prior to the redemption date (unless a shorter time period shall be satisfactory to the Registrar), notify the Registrar of such redemption date and of the principal amount and maturities of Bonds to be redeemed. For purposes of any redemption of less than all of the Outstanding Bonds of a single maturity, the particular Bonds or portions of Bonds of such maturity to be redeemed shall be selected by the Registrar fixed not more than thirty-five (35) days prior to the redemption date by such trethod as the Registrar shall deem fair and appropriate and which may provide for the selection for redemption of Bonds or portions of Bonds in principal amounts of $5,000 and integral multiples thereof. If less than all of the Outstanding Bonds of a single maturity are to be redeemed, the Registrar shall promptly notify the Issuer in writing of the Bonds or portions of Bonds selected for redemption and, in the case of any Bond selected for partial redemption, the principal amount thereof to be redeemed. SECTION 3.02. NOTICE OF REDEMPTION. Except as otherwise provided herein, notice of such redemption, which shall specify the Bond or Bonds (or portions thereof) to be redeemed and the date and place for redemption, shall be given by the Registrar on behalf of the Issuer, and (A) shall be filed with the Paying Agent of the Bonds, (B) shall be mailed first class, postage prepaid, at least thirty (30) days prior to the redemption date to all Holders of Bonds to be redeemed at their addresses as they appear on the registration books kept by the Registrar, and (C) shall be mailed certified, postage prepaid, at least thirty (30) days prior to the redemption date to the registered securities depositories and to two or more nationally recognized municipal bond information services. Failure to mail notice to the Holders of the Bonds to be redeemed, or any defect therein, shall not affect the validity of the proceedings of redemption of such Bonds as to which no such failure or defect has occurred. Each notice of redemption shall state: (1) the CUSIP numbers of all Bonds being redeemed; (2) the original issue date of such Bonds; (3) the maturity date and rate of interest borne by each Bond being redeemed; (4) the redemption date; (5) the Redemption Price; (6) the date on which such notice is mailed; (7) if less than all Outstanding Bonds are to be redeemed, the certificate number (and, in the case of a partial redemption of any Bond, the principal amount) of each Bond to be redeemed; (8) that on such redemption date there shall become due and payable upon each Bond to be 25 redeemed the Redemption Price thereof, or the Redemption Price of the specified portions of the principal thereof in the case of Bonds to be redeemed in part only, together with interest accrued thereon to the redemption date, and that from and after such date interest thereon shall cease to accrue and be payable; (9) that the Bonds to be redeemed, whether as a whole or in part, are to be surrendered for payment of the redemption price at the principal office of the Registrar at an address specified; (10) the name and telephone number of a person designated by the Registrar to be responsible for such redemption; and (11) unless sufficient funds have been set aside by the Issuer for such purpose prior to the mai ling of the notice of redemption, that such redemption is conditioned upon the deposit of sufficient funds for such purpose on or prior to the date set for redemption; and provided, further, that such notice and the redemption set forth therein may be subject to the satisfaction of one or more additional conditions set forth therein. SECTION 3.03. REDEMPTION OF PORTIONS OF BONDS. Any Bond which is to be redeemed only in part shall be surrendered at any place of payment specified in the notice of redemption (with due endorsement by, or written instrument of transfer in form satisfactory to the Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing) and the Issuer shall execute and the Registrar shall authenticate and deliver to the Holder of such Bond, without service charge, a new Bond or Bonds, of the same interest rate and maturity, and of any authorized denomination as requested by such Holder, in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Bonds so surrendered. SECTION 3.04. PAYMENT OF REDEEMED BONDS. Notice of redemption having been given substantially as aforesaid, the Bonds or portions of Bonds so to be redeemed shall, on the redemption date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Issuer shall default in the payment of the Redemption Price) such Bonds or portions of Bonds shall cease to bear interest. Upon surrender of such Bonds for redemption in accordance with said notice, such Bonds shall be paid by the Paying Agent at the appropriate Redemption Price, plus accrued interest. Each check or other transfer of funds issued by the Paying Agent to pay the Redemption Price of Bonds being redeemed shall bear the CUSIP number or numbers of such Bonds and identify the payments applicable to each CUSIP number. All Bonds which have been redeemed shall be cancelled by the Registrar and shall not be reissued. 26 -- ------.~-----_._- ~---~ _.0_-' ARTICLE IV SECURITY, SPECIAL FUNDS AND APPLICATION THEREOF SECTION 4.01. BONDS NOT TO BE INDEBTEDNESS OF ISSUER. The Bonds shall not be or constitute general obligations or indebtedness of the Issuer as "bonds" within the meaning of any constitutional or statutory provision, but shall be special obligations of the Issuer, payable from and secured by a lien upon and pledge of the Pledged Revenues in accordance with the terms of this Ordinance. No Holder of any Bond shall ever have the right to compel the exercise of any ad valorem taxing power to pay such Bond, or be entitled to payment of such Bond from any moneys of the Issuer, except from the Pledged Revenues and, if required, Non-Ad Valorem Funds, in the manner provided herein. The Bonds shall also be payable from the Non-Ad Valorem Funds in accordance with, and to the extent required under, the provisions of Section 4.06 hereof. SECTION 4.02. SECURITY FOR BONDS. The payment of the principal of or Redemption Price, if applicable, and interest on the Bonds shall be secured forthwith equally and ratooly by a pledge of and lien upon the Pledged Revenues. The Issuer does hereby irrevocably pledge the Pledged Revenues to the payment of the principal of or Redemption Price, if applicable, and interest on the Bonds in accordance with the provisions hereof. In addition, the Issuer does hereby irrevocably pledge the Pledged Revenues to the payment of all Policy Costs due and owing to an issuer of a Reserve Account Insurance Policy or Reserve Account Letter of Credit; provided, however, such pledge shall be junior and subordinate in all respects to the pledge thereof granted with respect to payment of the Bonds. The Pledged Revenues shall immediately be subject to the lien of this pledge without any physical delivery thereof or further act, and the lien of this pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the Issuer. SECTION 4.03. PROJECT FUND. The Issuer covenants and agrees to establish a separate fund to be known as the "Monroe County, Florida Taxable Wastewater Improvement Assessment Bonds (Stock Island Area), Series 2004 Project Fund," which sInll be used only to allow for the acquisition and reservation of capacity in the System by the County and the acquisition, construction and equipping of the Improvements by the Utility, all in accordance with the Capacity Contract, including reimbursing the Issuer for certain expenditures previously made by the Issuer in purchasing and reserving capacity in the System in accordance with the Capacity Contract. Moneys in the Project Fund, until applied in accordance with the provisions hereof, shall be held in trust by the Issuer, and shall be subject to a lien and charge in favor of the Holders of the Bonds and for the further security of such Holders. 27 The Issuer shall make disbursements or payments from the Project Fund to pay for capacity in the System in accordance with the provisions of the Capacity Contract. The Issuer shall keep adequate records of such disbursements and payments and shall retain all of such records for at least three years from their dates. Notwithstanding any of the other provisions of this Section 4.03, to the extent that other moneys are not available therefor, amounts in the Project Fund shall be applied to the payment of principal and interest on Bonds, when due. Promptly after purchasing and reserving capacity in the System as contemplated by the Capacity Contract, the Issuer shall deposit any balance of moneys remaining in the Project Fund to the Interest Account or, upon receipt of an opinion of Bond Counsel, the Issuer may use any such balance for any lawful purpose. SECTION 4.04. FUNDS AND ACCOUNTS. The Issuer covenants and agrees to establish separate funds to be known as the 'Monroe County, Florida, Taxable Wastewater Improvement Assessment Bonds (Stock Island Area), Series 2004 Revenue Fund" and the" Monroe County, Florida, Taxable Wastewater Improvement Assessment Bonds (Stock Island Area), Series 2004 Debt Service Fund." The Issuer shall maintain in the Revenue Fund two accounts: the "Assessment Account" and the "Expense Account." The Issuer shall maintain in the Debt Service Fund four accounts: the "Interest Account," the "Principal Account," the "Reserve Account" and the "Redemption Account." Moneys in the aforementioned funds and accounts, until applied in accordance with the provisions hereof, shall be held in trust for and be subject to a lien and charge in favor of the Holders of the Bonds and for the further security of such Holders. The Issuer may at any time and from time to time appoint one or more depositories to hold amounts on deposit in the funds and accounts established hereunder. Such depositary or depositories shall perform at the direction of the Issuer the duties of the Issuer in depositing, transferring and disbursing moneys to and from each of such funds and accounts as herein set forth, and all records of such depositary in performing such duties shall be open at all reasonable times to inspection by the Issuer and its agent and employees. Any such depositary shall be a bank or trust company duly authorized to perform such responsibilities pursuant to applicable law. SECTION 4.05. FLOW OF FUNDS. (A) All Special Assessments Proceeds shall be deposited, as received, into the Assessment Account cf the Revenue Fund. Promptly upon receipt of moneys in the Assessment Account, the Issuer shall apply such moneys in the following manner and in the following order of priority: (1) Expense Account. The Issuer shall deposit into the Expense Account, amounts required for the payment or reimbursement of the Paying Agent's fees and 28 -~~.- expenses, any expenses incurred in connection with the collection of the Assessments or Delinquent Assessments or Prepayments and other administrative expenses relating to the Bonds or the Assessments; all such fees and expenses shall be limited to reasonable fees and expenses. Moneys on deposit in the Expense Account shall also be used to pay principal of and interest on the Bonds (whether at maturity or by redemption) in the event there is a deficiency in the Principal, Interest or Redemption Accounts and the moneys in the Reserve Account are insufficient to make up such deficiency. (2) Interest Account. The Issuer shall deposit or credit to the Interest Account of the Debt Service Fund the sum which, together with the balance in said Account, shall equal the interest on all Outstanding Bonds due or to become due on the next two subsequent Payment Dates. Moneys in the Interest Account shall be used for payment of interest on the Bonds when the same become due and payable. If, on the date two Business Days prior to a Payment Date, moneys in the Principal Account are insufficient to pay the principal of or Amortization Installment due on such Payment Date, the Issuer shall transfer from the Interest Account to the Principal Account such moneys in excess of the amount required to pay interest on the Bonds on such Payment Date as shall be needed to cure such deficiency. (3) Princioal Account. The Issuer shall deposit or credit to the Principal Account of the Debt Service Fund the sum which, together with the balance in said Account, shall equal the principal or Amortization Installment due or to become due on the Outstanding Bonds on the next subsequent principal Payment Date which shall be not greater than one year from the date such deposit shall be made to the Principal Account. Moneys in the Principal Account shall be used for the payment of principal of or Amortization Installment on the Bonds when the same become due and payable. In the event the Issuer shall determine that any moneys in the Principal Account shall not be required to pay the principal of Bonds coming due on the next subsequent principal Payment Date because such Bonds have been or shall be redeemed, the Issuer shall transfer such moneys to the Redemption Account. Amounts accumulated in the Principal Account or Redemption Account with respect to any Amortization Installment (together with amounts accumulated in the Interest Account with respect to interest, if any, on the Term Bonds for which such Amortization Installment was established) may be applied by the Issuer, on or prior to the 35th day preceding the due date of such Amortization Installment, (a) to the purchase of Term Bonds of the maturity for which such Amortization Installment was established at a price not exceeding par plus accrued interest, or (b) to the redemption at the applicable Redemption Prices of such Term Bonds, if then redeemable by their terms at a price not exceeding par plus accrued interest. The applicable Redemption Price (or principal amount of maturing Term Bonds) of any Term Bonds so purchased or redeemed shall be 29 deemed to constitute part of the Principal Account or Redemption Account until such Amortization Installment date, for the purposes of calculating the amount of such Account. As soon as practicable after the 35th day preceding the due date of any Amortization Installment, the Issuer shall proceed to call for redemption on such due date, by causing notice to be given as provided in Section 3.02 hereof, Term Bonds of the maturity for which such Amortization Installment was established (except in the case of Term Bonds maturing on an Installment date) in such amount as shall be necessary to complete the retirement of the unsatisfied ballllce of such Amortization Installment. The Issuer shall payout of the Principal Account, the Redemption Account and the Interest Account to the appropriate Paying Agent, on or before the day preceding such redemption date (or maturity date), the amount required for the redemption (or for the payment of such Term Bonds then maturing), and such amount shall be applied by such Paying Agents to such redemption (or payment). All expenses in connection with the purchase or redemption of Term Bonds shall be paid ly the Issuer from the Expense Account. (4) Reserve Account. The Issuer shall next deposit into the Reserve Account a sum sufficient to maintain therein an amount equal to the Reserve Account Requirement. All deficiencies in the Reserve Account, whether the result of a withdrawal from the Reserve Account or a decrease in valuation, shall be restored within one year from the date of occurrence of such deficiency, whether such deficiency was caused by decreased market value or withdrawal (whether from cash or a Reserve Account Insurance Policy and Reserve Account Letter of Credit); provided, however, deficiencies resulting from a decrease in market value of investments in the Reserve Account must be remedied only if the market value of such investments is less than ninety-five percent (95%) of the Reserve Account Requirement on the immediately preceding date of valuation as provided in Section 4.07 hereof. Moneys in the Reserve Account shall be used only for the purposes of the payment of principal of or interest on the Bonds (whether at maturity or by redemption) in the event there is a deficiency in the Principal, Interest or Redemption Accounts for such purpose. However, whenever the moneys on deposit in the Reserve Account exceed the Reserve Account Requirement, such excess shall be deposited to the accounts and in the order of priority indicated for amounts on deposit in the Assessment Account of the Revenue Fund. Whenever the amount in the Reserve Account, together with the other amounts in the Debt Service Fund, are sufficient to fully pay all Outstanding Bonds in accordance with their terms (including principal or applicable Redemption Price and interest thereon), the funds on deposit in the Reserve Account may be transferred to the other accounts of the Debt Service Fund for the payment of the Bonds. Notwithstanding the foregoing provisions, in lieu of the required deposits into the Reserve Account the Issuer may cause to be deposited into the Reserve Account a 30 .-.,' _._,~.'... Reserve Account Insurance Policy and/or Resene Account Letter of Credit for the benefit of the Bondholders in an amount equal to the difference between the Reserve Account Requirement applicable thereto and the sums then on deposit in the Reserve Account, if any. In addition, the Issuer may at any time substitute any cash on deposit in the Reserve Account with such a Reserve Account Insurance Policy and/or Reserve Account Letter of Credit. Such Reserve Account Insurance Policy and/or Reserve Account Letter of Credit shall be held by and be payable to the Paying Agent (upon the giving of notice as required thereunder) on any principal payment date or interest payment date on which a deficiency exists which cannot be cured by moneys in any other fund or account held pursuant to this Ordinance and available for such purpose. Notwithstanding any provision herein to tbe contrary, the Issuer shall use all cash and investments on deposit in the Reserve Account prior to drawing on any Reserve Account Insurance Policy or Reserve Account Letter of Credit and shall repay all Policy Costs prior to replenishing the Reserve Account for any withdrawals of funds therefrom or any declines in the market value of investments therein. All Insurers (if any) must provide their prior consent to the use of any Reserve Account Insurance Policy or Reserve Account Letter of Credit. A Reserve Account Insurance Policy may not be used unless the claims paying ability of the issuer thereof is rated at least "AAA" by S&P or "Aaa" by Moody's. A Reserve Account Letter of Credit may not be used unless the issuance thereof is rated at least "AA" by S&P or "Aa" by Moody's. To the extent there is more than one Reserve Account Insurance Policy or Reserve Account Letter of Credit on deposit in the Reserve Account draws thereon shall be made on a pro rata basis. The provisions of any agreement executed in connection with the issuance of any such Reserve Account Insurance Policy or Reserve Account Letter of Credit shall be incorporated herein by reference and to the extent such provisions conflict with any provisions of this Ordinance, the provisions of such agreement shall control. The form of any such agreement shall be approved by Council. (5) Redemption Account. The balance of any funds remaining in the Assessment Account after the deposits and payments required by Sections 4.05(A)(1) through 4.05(A)(4) hereof shall be deposited into the Redemption Account. If, on the thirty-sixth (36th) day prior to any Payment Date, moneys in the Interest Account shall be insufficient to pay the interest on the Bonds coming due on such Payment Date, moneys in an amount equal to such insufficiency shall be transferred from the Redemption Account to the Interest Account. The Issuer may also reimburse itself from moneys in the Redemption Account for funds which it appropriated pursuant to Section 4.06 hereof, provided the Reserve Account is fully funded at the time of such reimbursement. Moneys in the Redemption Account shall be used for the payment of principal on the Bonds coming due as a result of redemption (other than by Amortization Installments) in accordance with the redemption provisions hereof and the redemption provisions of any 31 Supplemental Ordinance. Amounts in the Redemption Account which are used to redeem Term Bonds shall be credited against the next succeeding Amortization Installment which shall become due on such Term Bonds. (B) On or before the date established for payment of any principal of or Redemption Price, if applicable, or interest on the Bonds, the Issuer shall withdraw from the appropriate account of the Debt Service Fund sufficient moneys to pay such principal or Redemption Price, if applicable, and interest and deposit such moneys with the Paying Agent for the Bonds to be paid SECTION 4.06. COVENANT TO BUDGET AND APPROPRIATE. The Issuer covenants and agrees to appropriate in its annual budget, by amendment (including emergency amendment), if necessary, from Non-Ad Valorem Funds lawfully available in each Fiscal Year, amounts sufficient to pay all scheduled debt service on the Bonds or to replenish the Reserve Account to the extent of any deficiencies therein or to repay any Policy Costs due and payable in the event Pledged Revenues are insufficient for such purposes. Such covenant and agreement on the part of the Issuer to budget and appropriate such amounts of Non-Ad Valorem Funds shall be cumulative to the extent not paid, and shall continue until such Non-Ad Valorem Funds or other legally available funds in amounts sufficient to make all such required payments shall have been budgeted, appropriated and actually paid. The Issuer shall immediately commence the foregoing budget and appropriation process to pay scheduled debt service on the Bonds if on the 60th day prior to any Payment Date there are not sufficient moneys on deposit in the Interest Account and the Principal Account to pay all of the debt service that will be due and payable on such Payment Date or if there are any deficiencies in the Reserve Account or any Policy Costs then due and payable. The Issuer shall gi ve prompt notice to the Insurer, if any, if it is so required to commence such budget and appropriation process. Notwithstanding the foregoing covenant of the Issuer, the Issuer does not covenant to maintain any services or programs, now provided or maintained by the Issuer, which generate Non-Ad Valorem Funds. Such covenant to budget and appropriate does not create any lien upon or pledge of such Non-Ad Valorem Funds, nor does it preclude the Issuer from pledging in the future its Non-Ad Valorem Funds, nor does it require the Issuer to levy and collect any particular Non-Ad Valorem Funds, nor does it give the Bondholders a prior claim on the Non-Ad Valorem Funds as opposed to claims of general creditors of such Issuer. Such covenant to appropriate Non-Ad Valorem Funds is subject in all respects to the payment of obligations secured by a pledge of such Non-Ad Valorem Funds heretofore or hereinafter entered into (including the payment of debt service on bonds and other debt instruments). However, the covenant to budget and ~propriate in its general annual budget for the purposes and in the manner stated herein shall have the effect of making available for the payment of scheduled debt service on the Bonds or to replenish the 32 .~.".,.",..~- Reserve Account to the extent of any deficiencies therein or to repay any Policy Costs due and payable in the manner described herein Non-Ad Valorem Funds and placing on the Issuer a positive duty to appropriate and budget, by amendment, if necessary, amounts sufficient to meet its obligations hereunder; subject, however, in all respects to the restrictions of Section 129.07, Florida Statutes, which provides, in part, that the governing body of each county may only make appropriations for each fiscal year which, in anyone year, shall not exceed the amount to be received from taxation or other revenue sources; and subject, further, to the payment of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of the Issuer or which are legally mandated by applicable law. SECTION 4.07. INVESTMENTS. The Project Fund, the Revenue Fund and the Debt Service Fund shall be continuously secured in the manner by which the deposit of public funds is authorized to be secured by the laws of the State. Moneys on deposit in the Project Fund, the Revenue Fund and the Debt Service Fund, other than the Reserve Account, may be invested and reinvested in Authorized Investments maturing not later than the date on which the moneys therein will be needed. Moneys on deposit in the Reserve Account shall be invested in Authorized Investments of not greater than five (5) years' maturity. Moneys in the Interest Account representing accrued or capitalized interest shall be invested solely in direct obligations of the United Sutes of America and shall be held in trust for the Bondholders. Any and all income received by the Issuer from the investment of moneys in the Project Fund, the Assessment Account and the Reserve Account (to the extent the amount therein is less than the Reserve Account Requirement), shall be retained in such respective Fund or Account. Any and all income received by the Issuer from the investment of moneys in the Expense Account, the Principal Account and the Redemption Account shall be transferred to the A;sessment Account. Any and all income received by the Issuer from the investment of moneys in the Reserve Account (to the extent the amount therein is greater than the Reserve Account Requirement) shall be deposited into the Assessment Account. All investments on deposit in the Reserve Account shall be valued at the market value thereof, exclusive of accrued interest, (A) annually (on each September 30), and (B) upon any draw upon the Reserve Account. All other investments shall be valued at cost. Nothing mntained in this Ordinance shall prevent any Authorized Investments acquired as investments of or security for funds held under this Ordinance from being issued or held in book-entry form on the books of the Department of the Treasury of the United States. SECTION 4.08. SEPARATE ACCOUNTS. The moneys required to be accounted for in each of the foregoing funds and accounts established herein may be deposited in a single bank account, and funds allocated to the various funds and accounts established herein may be invested in a common investment pool, provided that adequate 33 accounting records are maintained to reflect and control the restricted allocation of the moneys on deposit therein and such investments for the various purposes of such funds and accounts as herein provided. The designation and establishment of the various funds and accounts in and by this Ordinance shall not be construed to require the establishment of any completely independent, self-balancing funds as such term is commonly defined and used in governmental accounting, but rather is intended solely to constitute an earmarking of certain revenues for certain purposes and to establish certain priorities for application of such revenues as herein provided. 34 .-.~~_..- - .-"'..-. ---- '"^ ARTICLE V ISSUANCE OF PARITY OBLIGATIONS; COVENANTS OF THE ISSUER SECTION 5.01. ISSUANCE OF PARITY OBLIGATIONS. The Issuer shall not issue obligations payable on a parity with the Bonds unless it receives the prior written consent of all holders of the Bonds then Outstanding. SECTION 5.02. BOOKS AND RECORDS. The Issuer will keep books and records of the receipt of the Special Assessment Proceeds and the funds and accounts established hereunder in accordance with generally accepted accounting principles, and the Holder or Holders of Bonds shall have the right at all reasonable times to inspect the records, accounts and data of the Issuer relating thereto. SECTION 5.03. ANNUAL AUDIT. The Issuer shall, immediately after the close of each Fiscal Year, cause the fmancial statements of the Issuer to be properly audited by a recognized independent certified public accountant or recognized independent firm of certified public accountants, and shall require such accountants to complete their report on the annual financial statements in accordance with q>plicable law. The annual fmancial statements shall be prepared in conformity with generally accepted accounting principles. A copy of the audited financial statements for each Fiscal Year shall be furnished to any Insurer and to any Holder of $100,000 or more in aggregate principal amount of Bonds who shall have furnished his or her address to the Clerk and requested in writing that the same be furnished to him. The Issuer shall be permitted to make a reasonable charge to such Holder for furnishing such audited financial statements. SECTION 5.04. NO IMPAIRMENT. The pledging of the Pledged Revenues in the manner provided herein and the covenant to budget and appropriate moneys provided in Section 4.06 hereof shall not be subject to repeal, modification or impairment by any subsequent ordinance, resolution or other proceedings of the Council. SECTION 5.05. ENFORCEMENT OF PAYMENT OF SPECIAL ASSESSMENT PROCEEDS. The Issuer will receive, collect and enforce the payment of Special Assessment Proceeds in the manner prescribed by this Ordinance, the Assessment Ordinance, the Assessment Resolution and all other resolutions, ordinances or laws appertaining thereunto, and will pay and deposit the Special Assessment Proceeds, as received, into the Assessment Account of the Revenue Fund. Absent a default or delinquency in the payment of any Assessment, nothing herein shall require the prepayment of any installment due on an Assessment prior to its due date, except as otherwise provided by the Assessment Ordinance or the Assessment Resolution. 35 Assessments will be levied to the full extent permitted by law and the Assessment Ordinance and the Assessment Resolution. SECTION 5.06. RE-ASSESSMENTS. If any Assessment shall be either in whole or in part annulled, vacated or set a;ide by the judgment of any court, or if the Issuer shall be satisfied that any such Assessment is so irregular or defective that the same cannot be enforced or collected, or if the Issuer shall have omitted to make such Assessment when it might have done so, the Issuer shall either (A) take all necessary steps to cause a new Assessment to be made for the whole or any part of said improvement or against any property benefited by said improvement, or (B) in its sole discretion, make up the amount of such Assessment from legally available moneys, which moneys shall be deposited into the Assessment Account. In case such second Assessment shall be annulled, said Issuer shall obtain and make other Assessments until a valid Assessment shall be made. SECTION 5.07. OTHER MONEYS. The Issuer may, in its sole discretion, utilize other legally available moneys, in addition to the Pledged Revenues, to pay the principal of and interest on the Bonds. [Remainder of page intentionally left blank] 36 - --~-_..__._--'-----^^-'" ~-'-'-',~ ARTICLE VI DEFAULTS AND REMEDIES SECTION 6.01. EVENTS OF DEFAULT. The following events shall each constitute an "Event of Default": (A) Default shall be made in the payment of the principal of, redemption premium, if any, or interest on any Bond, when due. In determining whether a payment default has occurred, no effect shall be given to payments made under any Insurance Policy. (B) The Issuer shall default in the due and punctual performance of any other of the covenants, conditions, agreements and provisions contained in the Boros or in this Ordinance on the part of the Issuer to be performed, and such default shall continue for a period of thirty (30) days after written notice of such default shall have been received from the Holders of not less than twenty-five percent (25%) of the aggregate principal amount of Bonds Outstanding or the Insurer, if any. (C) An Act of Bankruptcy shall have occurred with respect to the Issuer. SECTION 6.02. REMEDIES. Any Holder of Bonds issued under the provisions of this Ordinance or any trustee or receiver acting for such Bondholders may, either at law or in equity, by suit, action, mandamus or other proceedings in any court of competent jurisdiction, protect and enforce any and all rights under the Laws of the State of Florida, or granted and contained in this Ordinance, and may enforce and compel the performance of all duties required by this Ordinance or by any applicable statutes to be performed by the Issuer or by any officer thereof; provided, however, no Holder shall have the right to declare the Bonds immediately due and payable. The Insurer, if any and so long as it is not in default under the applicable Insurance Policy, shall be entitled to direct and control the enforcement of rights and remedies with respect to the Bonds. The Holder or Holders of Bonds in an aggregate principal amount of not less than twenty-five percent (25%) of the Bonds then Outstanding may by a duly executed certificate in writing, appoint a trustee for Holders of Bonds issued pursuant to this Ordinance with authority to represent such Bondholders in any legal proceedings for the enforcement and protection of the rights of such Bondholders and such certificate shall be executed by such Bondholders or their duly authorized attorneys or representatives, and shall be filed in the office of the Clerk. Notice of such appointment, together with evidence of the requisite signatures of the Holders of not less than twenty-five percent (25%) in aggregate principal amount of Bonds Outstanding and the trust instrument under which the trustee shall have agreed to serve shall be filed with the Issuer and the trustee 37 and notice of appointment shall be given to all Holders of Bonds in the same manner as notices of redemption are given hereunder. After the appointment of the fIrst trustee hereunder, no further trustees may be appointed; however, the holders of a majority in aggregate principal amount of all the Bonds then Outstanding or the Insurer (provided the Insurer is not in default in its payment obligations under the Insurance Policy) may remove the trustee initially appointed and appoint a successor and subsequent successors at any time. Nothing in this paragraph shall supersede the right of the Insurer to direct and control the enforcement of rights and remedies with respect to the Bonds, provided the Insurer is not in default in its payment obligations under the Insurance Policy. SECTION 6.03. DIRECTIONS TO RECEIVER AS TO REMEDIAL PROCEEDINGS. In the event the Insurer, if any, is in default in its payment obligations under the Insurance Policy, the Holders of a majority in principal amount of the Bonds then Outstanding shall have the right, by an instrument or concurrent instruments in writing executed and delivered to any trustee or receiver appointed pursuant to Section 6.02 hereof, to direct the method and place of conducting all remedial proceedings to be taken by such trustee or receiver hereunder, provided that such direction shall not be otherwise than in accordance with law or the provisions hereof, and that the trustee or receiver shall have the right to decline to follow any such direction which in the opinion of the trustee or receiver would be unjustly prejudicial to Holders of Bonds not parties to such direction. SECTION 6.04. INSURER'S ACCESS TO REGISTRATION BOOKS. Upon the occurrence and continuance of an Event of Default which would require the Insurer, if any, to make payments under the Insurance Policy, the Insurer and its designated agent shall be provided with access to inspect and copy the registration books of the Issuer. SECTION 6.05. REMEDIES CUMULATIVE. No remedy herein conferred upon or reserved to the Bondholders or the Insurer, if any, is intended to be exclusive of any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. If any remedial action is discontinued or abandoned, the Bondholders and the Insurer shall be restored to their former positions. SECTION 6.06. WAIVER OF DEFAULT. No delay or omission of any Bondholder or the Insurer, if any, to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default, or an acquiescence therein; and every power and remedy given by this Article VI to the Bondholders or the Insurer may be exercised from time to time, and as often as may be deemed expedient. No waiver of an Event of Default shall be granted without obtaining the prior written consent of the Insurer. 38 ------_.- SECTION 6.07. APPLICATION OF MONEYS AFTER DEFAULT. If an Event of Default shall happen and shall not have been remedied, the Issuer, the Paying Agent or a trustee or receiver appointed for the purpose shall apply all Pledged Re venues and all moneys received pursuant to Section 4.06 hereof as follows and in the following order: A. To the payment of the reasonable and proper charges, expenses and liabilities of the trustee or receiver, Registrar and Paying Agent hereunder. B. To the payment of all costs and expenses necessary to collect Special Assessment Proceeds. C. To the payment of the interest and principal or Redemption Price, if applicable, then due on the Bonds, as follows: (1) Unless the principal of all the Bonds shall have become due and payable, all such moneys shall be applied: FIRST: to the payment to the Persons entitled thereto of all installments of interest then due, in the order of the maturity of such installments, and, if the amount available shall not be sufficient to pay in full any particular installment, then to the payment ratably, according to the amounts due on such installment, to the Persons entitled thereto, without any discrimination or preference; and SECOND: to the payment to the Persons entitled thereto of the unpaid principal of any of the Bonds which shall have become due at maturity or upon mandatory redemption prior to maturity (other than Bonds called for redemption for the payment of which moneys are held pursuant to the provisions of Section 8.01 of this Ordinance), in the order of their due dates, with interest upon such Bonds from the respective dates upon which they became due, and, if the amount available shall not be sufficient to pay in full Bonds due on any particular date, together with such interest, then to the payment first of such interest, ratably according to the amount of such interest due on such date, and then to the payment of such principal, ratably according to the amount of such principal due on such date, to the Persons entitled thereto without any discrimination or preference. (2) If the principal of all the Bonds shall have become due and payable, all such moneys shall be applied first to the payment of the principal and interest then due and unpaid upon the Bonds, with interest thereon as aforesaid, without preference or priority of principal over interest or of interest over principal, or of any installment of 39 interest over any other installment of interest, or of any Bond over any other Bond, ratably, according to the amounts due respectively for principal and interest, to the Persons entitled thereto without any discrimination or preference. [Remainder of page intentionally left blank] 40 -.-.. .- ARTICLE VII SUPPLEMENTAL ORDINANCES SECTION 7.01. SUPPLEMENTAL ORDINANCE WITHOUT CONSENT. The Issuer, from time to time and at any time, may adopt such Supplemental Ordinances without the consent of the Bondholders or the Insurer (which Supplemental Ordinance shall thereafter form a part hereof) for any of the following purposes: (A) To cure any ambiguity or formal defect or omission or to correct any inconsistent provisions in this Ordinance or to clarify any matters or questions arising hereunder in a manner consistent with the provisions of this Ordinance. (B) To grant to or confer upon the Bondholders any additional rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the Bondholders. (C) To add to the conditions, limitations and restrictions on the issuance of Bonds under the provisions of this Ordinance other conditions, limitations and restrictions thereafter to be observed. (D) To add to the covenants and agreements of the Issuer in this Ordinance other covenants and agreements thereafter to be observed by the Issuer or to surrender any right or power herein reserved to or conferred upon the Issuer. (E) To specify and determine the matters and things referred to in Sections 2.01 or 5.01 hereof, and also any other matters and things relative to such Bonds which are not contrary to or inconsistent with this Ordinance as theretofore in effect, or to amend, modify or rescind any such authorization, specification or determination at any time prior to the first delivery of such Bonds. (F) To achieve compliance with any applicable federal securities law and applicable regulations thereunder. (G) To make any other change that, in the opinion of the Issuer, would not materially adversely affect the security for the Bonds. SECTION 7.02. SUPPLEMENTAL ORDINANCE WITH BONDHOLDERS' AND INSURER'S CONSENT. Subject to the terms and provisions contained in this Section 7.02 and Sections 7.01 and 7.03 hereof, the Holder or Holders of not less than a majority in aggregate principal amount of the Bonds then Outstanding shall have the right, from time to time, anything contained in this Ordinance other than in 41 this Section 7.02 to the contrary notwithstanding, to consent to and approve the adoption of such Supplemental Ordinance or Ordinances hereto as shall be deemed necessary or desirable by the Issuer for the purpose of supplementing, modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Ordinance; provided, however, that if such modification or amendment will, by its terms, not take effect so long as any Bonds of any specified maturity remain Outstanding, the consent of the Holders of such Bonds shall not be required and such Bonds shall not be deemed to be Outstanding for the purpose of any calculation of Outstanding Bonds under this Section 7.02. Any Supplemental Ordinance which is adopted in accordance with the provisions of this Section 7.02 shall also require the written consent of the Insurer, if any. No Supplemental Ordinance may be approved or adopted which shall permit or require (A) an extension of the maturity of the principal of or the payment of the interest on any Bond issued hereunder, (B) reduction in the principal amount of any Bond or the Redemption Price or the rate of interest thereon, (C) the creation of a lien upon or a pledge of the Pledged Revenues other than the lien and pledge created by this Ordinance or any other lien or pledge permitted by the terms of this Ordinance which materially adversely affects any Bondholders, (D) a preference or priority of any Bond or Bonds over any other Bond or Bonds, or (E) a reduction in the aggregate principal amount of the Bonds required for consent to such Supplemental Ordinance. Nothing herein contained, however, shall be construed as making necessary the approval by Bondholders of the adoption of any Supplemental Ordinance as authorized in Section 7.01 hereof. If at any time the Issuer shall determine that it is necessary or desirable to adopt any Supplemental Ordinance pursuant to this Section 7.02, the Clerk shall cause the Registrar to give notice of the proposed adoption of such Supplemental Ordinance and the form of consent to such adoption to be mailed, postage prepaid, to all Bondholders at their addresses as they appear on the registration books, and to the Insurer, if any. Such notice shall briefly set forth the nature of the proposed Supplemental Ordinance and shall state that copies thereof are on file at the offices of the Clerk and the Registrar for inspection by all Bondholders and the Insurer. The Issuer shall not, however, be subject to any liability to any Bondholder by reason of its failure to cause the notice required by this Section 7.02 to be mailed and any such failure shall not affect the validity of such Supplemental Ordinance when consented to and approved as provided in this Section 7.02. Whenever the Issuer shall deliver to the Clerk an instrument or instruments in writing purporting to be executed by the Holders of not less than a majority in aggregate principal amount of the Bonds then Outstanding, which instrument or instruments shall refer to the proposed Supplemental Ordinance described in such notice and shall specifically consent to and approve the adoption thereof in substantially the form of the copy thereof referred to in such notice, thereupon, but not otherwise, the Issuer may 42 . ^"- -.,....., adopt such Supplemental Ordinance in substantially such form, without liability or responsibility to any Holder of any Bond, whether or not such Holder shall have consented thereto. If the Holders of not less than a majority in cggregate principal amount of the Bonds Outstanding at the time of the adoption of such Supplemental Ordinance shall have consented to and approved the adoption thereof as herein provided, no Holder of any Bond shall have any right to object to the adoption of such Supplemental Ordinance, or to object to any of the terms and provisions contained therein or the operation thereof, or in any manner to question the propriety of the adoption thereof, or to enjoin or restrain the Issuer from adopting the same or from taking any action pursuant to the provisions thereof. Upon the adoption of any Supplemental Ordinance pursuant to the provisions of this Section 7.02, this Ordinance shall be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Ordinance of the Issuer and all Holders of Bonds then Outstanding shall thereafter be determined, exercised and enforced in all respects under the provisions of this Ordinance as so modified and amended. SECTION 7.03. AMENDMENT WITH CONSENT OF INSURER ONLY. If the Insurer, if any, is not in default in its payment obligations under its Insurance Policy, and the Bonds, at the time of the hereinafter described amendment, shall be rated by the rating agencies which shall have rated the Bonds at the time such Bonds were issued no lower than the ratings assigned thereto by such rating agencies on the date of being issued, the Issuer may enact one or more Supplemental Ordinances permitted by Section 7.02 hereof amending all or any part of Articles I, II, III, IV, V and VI hereof with the written consent of the Insurer. The consent of the Holders of any Bonds shall not be necessary. Prior to adoption of any such amendment, notice of such amendment shall be sent to S&P. The i>regoing right of amendment, however, does not apply to any amendment that deprive s the Holders of any Bond of the right to payment of the Bonds from, and their lien on, the Pledged Revenues or of the right to payment of the Bonds from moneys made available pursuant to Section 4.06 hereof. Upon filing with the Clerk of evidence of such consent the Insurer as aforesaid, the Issuer may adopt such Supplemental Ordinance. After the adoption by the Issuer of such Supplemental Ordinance, notice thereof shall be mailed in the same manner as notice of an amendment under Section 7.02 hereof. [Remainder of page intentionally left blank] 43 ARTICLE VIII MISCELLANEOUS SECTION 8.01. DEFEASANCE. If the Issuer shall pay all Policy Costs then due and payable and payor cause to be paid or there shall otherwise be paid to the Holders of all Bonds the principal or Redemption Price, if applicable, and interest due or to become due thereon, at the times and in the manner stipulated therein and in this Ordinance, then the pledge of the Pledged Revenues, and all covenants, agreements and other obligations of the Issuer to the Bondholders, shall thereupon cease, terminate and become void and be discharged and satisfied. In such event, the Paying Agent shall pay over or deliver to the Issuer all money or securities held by it pursuant to the Ordinance which are not required for the payment or redemption of Bonds not theretofore surrendered for such payment or redemption. Any Bonds or interest installments appertaining thereto, whether at or prior to the maturity or redemption date of such Bonds, shall be deemed to have been paid within the meaning of this Section 8.01 if (A) in case any such Bonds are to be redeemed prior to the maturity thereof, there shall have been taken all action recessary to call such Bonds for redemption and notice of such redemption shall have been duly given or provision shall have been made for the giving of such notice, (B) there shall have been deposited in irrevocable trust with a banking institution or trust company by or on behalf of the Issuer either moneys in an amount which shall be sufficient, or Defeasance Obligations, which in either case shall be verified by an independent certified public accountant to be in such amount that the principal of and the interest on which when due will provide moneys which, together with the moneys, if any, deposited with such banking institution or trust company at the same time shall be sufficient, to pay the principal of or Redemption Price, if applicable, and interest due and to become due on said Bonds on and prior to the redemption date or maturity date thereof, as the case may be, and (C) the Issuer and the Insurer shall receive an opinion of Bond Counsel to the effect that refunded Bonds are defeased in accordance with this Section 8.01 and, therefore, are no longer Outstanding under this Ordinance. Except as hereafter provided, neither the Defeasance Obligations nor any moneys so deposited with such banking institution or trust company nor any moneys received by soch banking institution or trust company on account of principal of or Redemption Price, if applicable, or interest on said Defeasance Obligations shall be withdrawn or used for any purpose other than, and all such moneys shall be held in trust for and be applied to, the payment, when due, of the principal of or Redemption Price, if applicable, of the Bonds for the payment or redemption of which they were deposited and the interest accruing thereon to the date of maturity or redemption; provided, however, the Issuer may substitute new Defeasance Obligations and moneys for the deposited Defeasance Obligations and moneys if the new Defeasance Obligations and moneys are 44 --. .- "..~" verified by an independent certified public accountant as being sufficient to pay the principal of or Redemption Price, if applicable, and interest on the refunded Bonds. In the event the Bonds for which moneys are to be deposited for the payment thereof in accordance with this Section 8.01 are not by their terms subject to redemption within the rext succeeding sixty (60) days, the Issuer shall cause the Registrar to mail a notice to the Holders of such Bonds that the deposit required by this Section 8.01 of moneys or Defeasance Obligations has been made and said Bonds are deemed to be paid in accordance with the provisions of this Section 8.01 and stating such maturity or redemption date upon which moneys are to be available for the payment of the principal of or Redemption Price, if applicable, and interest on said Bonds. Nothing herein shall be deemed to require the Issuer to call any of the Outstanding Bonds for redemption prior to maturity pursuant to any applicable optional redemption provisions, or to impair the discretion of the Issuer in determining whether to exercise any such option for early redemption. In the event that the principal of or Redemption Price, if applicable, and interest due on the Bonds shall be paid by the Insurer, such Bonds shall remain Outstanding, shall not be defeased and shall not be considered paid by the Issuer, and the Insurer shall be subrogated to the rights of such Bondholders. SECTION 8.02. SALE OF BONDS. The Bonds shall be issued and sold at public or private sale at one time or in installments from time to time and at such price or prices as shall be consistent with the provisions of the Act, the requirements of this Ordinance and other applicable provisions of law. SECTION 8.03. VALIDATION. The County Attorney is hereby authorized and directed to institute appropriate proceedings for validation of the Bonds pursuant to Chapter 75, Florida Statutes. Bond Counsel, Nabors, Giblin & Nickerson, P.A. is hereby authorized to assist the County Attorney in all matters relating to such validation proceedings. SECTION 8.04. SEVERABILITY OF INVALID PROVISIONS. If any ore or more of the covenants, agreements or provisions of this Ordinance shall be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements and provisions of this Ordinance and shall in no way affect the validity of any of the other covenants, agreements or provisions hereof or of the Bonds issued hereunder. 45 SECTION 8.05. REPEAL OF INCONSISTENT ORDINANCES AND RESOLUTIONS. All ordinances, resolutions or parts thereof in conflict herewith are hereby superseded and repealed to the extent of such conflict. SECTION 8.06. EFFECTIVE DATE. This Ordinance shall take effect immediately upon its enactment. PASSED AND ENACTED by the Board of County Commissioners of Monroe County, Florida, at a Regular Meeting of said Board held on the 17th day of December, 2003. Mayor Spehar - Mayor Pro Tern Nelson - Commissioner McCoy - Commissioner Neugent - Commissioner Rice - BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA (SEAL) Attest: DANNY L. KOLHAGE, Clerk By: By: Deputy Clerk Mayor/Chairperson MONROE COUNTY ATTORNEY (j. ~~ AS TO FORM: Oi)2L~ JOHN R. COLLINS fOUNTb ATTORNEY Dale f Lor {J '> 46 ,.-...--- u~,_,.,_