Okaloosa County BOCC — August 19, 2014 — reading text

Resolution shall not be construed to require the establishment of any completely independent, self-balancing funds as such term is commonly defined and used in governmental accounting, but rather is intended solely to constitute an earmarking of certain revenues for certain purposes and to establish certain priorities for application of such revenues as herein provided. SECTION 4.09. PAYMENT COVENANT. The County covenants that it shall duly and punctually pay from the Pledged Revenues the principal of and interest on the Series 2014 Note at the dates and place and in the manner provided herein and in the Series 2014 Note according to the true intent and meaning thereof and all other amounts due under this Resolution. The County covenants to make timely sale and delivery of the Series 2014 Bonds in order to have funds available to pay the Series 2014 Note and the interest thereon as the same become due, and to apply the proceeds of the Series 2014 Bonds for such purpose. SECTION 4.10 SPECIAL COVENANT. In the event the Series 2014 Note is not paid in full on or before the Maturity Date, the County covenants and agrees to appropriate in its annual budget, by amendment, if necessary, from Non-Ad Valorem Funds lawfully available in each Fiscal Year, amounts sufficient to pay the principal and interest then due on the Series 2014 Note. Such covenant and agreement on the part of the County 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. Notwithstanding the foregoing covenant, the County does not covenant to maintain any services or programs, now provided or maintained by the County, which generate Non-Ad Valorem Funds. 18 Packet Pg. 770  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 County from pledging in the future its Non-Ad Valorem Funds, nor does it require the County to levy and collect any particular Non-Ad Valorem Funds, nor does it give the Holders from time to time of the Series 2014 Note a prior claim on the Non-Ad Valorem Funds as opposed to claims of general creditors of the County. 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 appropriate 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 amounts due on the Series 2014 Note in the manner described herein Non-Ad Valorem Funds and placing on the County 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 that the governing body of each county make appropriations for each fiscal year which, in any one 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 County or which are legally mandated by applicable law. 19 Packet Pg. 771  ARTICLE V COVENANTS OF THE COUNTY SECTION 5.01. BOOKS AND RECORDS. The County will keep books and records of the receipt of the Sales Tax Revenues and the funds and accounts established hereunder in accordance with generally accepted accounting principles, and the Holder of the Series 2014 Note shall have the right at all reasonable times to inspect the records, accounts and data of the County relating thereto. SECTION 5.02. ISSUANCE OF ADDITIONAL INDEBTEDNESS. The County will not issue any debt or obligation secured by a pledge of Sales Tax Revenues, other than the Outstanding Bonds, senior to or having any priority over the Series 2014 Note. No additional indebtedness, payable on a parity with the Series 2014 Note then Outstanding pursuant to this Resolution, shall be issued. SECTION 5.03 ANNUAL AUDIT. The County shall, immediately after the close of each Fiscal Year, cause the financial statements of the County to be properly audited by a recognized independent certified public accountant or recognized independent firm of certified public accountants, and shall require such accountants to complete their report on the annual financial statements in accordance with applicable law. The annual financial statement shall be prepared in conformity with generally accepted accounting principles. A copy of the audited financial statements for each Fiscal Year shall be furnished to the Series 2014 Noteholder promptly upon completion, but in no event later than 270 days after the end of the Fiscal Year. SECTION 5.04. NO IMPAIRMENT. The pledging of the Pledged Revenues in the manner provided herein shall not be subject to repeal, modification or impairment by any subsequent ordinance, resolution or other proceedings of the Board or the County. SECTION 5.05. FEDERAL INCOME TAX COVENANTS. The County covenants with the Holders from time to time of the Series 2014 Note that it shall not use the proceeds of such Series 2014 Note in any manner which would cause the interest on such Series 2014 Note to be included in gross income for purposes of federal income taxation to the extent not otherwise included therein on the date of issuance of the Series 2014 Note. The County covenants with the Holder of the Series 2014 Note that neither the County nor any Person under its control or direction will make any use of the proceeds of such Series 2014 Note (or amounts deemed to be proceeds under the Code) in any manner which would cause such Series 2014 Note to be an "arbitrage bond" within the meaning of Section 148 of the Code, and neither the County nor any other Person shall do any act or fail to do any act which would cause the interest on such Series 2014 Note to be included in gross income for purposes of federal income taxation. The County hereby covenants with the Holder of the Series 2014 Note that it will comply with all provisions of the Code necessary to maintain the exclusion of interest on the Series 2014 Note from gross income for purposes of federal income taxation, including, in particular, the 20 Packet Pg. 772 payment of any amount required to be rebated to the United States Treasury pursuant to the Code. SECTION 5.06. COLLECTION OF SALES TAX REVENUES. The County covenants to do all things necessary on its part to maintain its eligibility to participate in the distribution of the Sales Tax Revenues required by the Act. The County will proceed diligently to perform legally and effectively all steps required on its part in the levy and collection of Sales Tax Revenues and shall exercise all legally available remedies to enforce such collection now or hereafter available under State law. The County covenants to comply with all laws relating to (i) the Sales Tax Revenues and the collection thereof, and (ii) the construction of the respective Projects. The County shall comply with the provisions of the Bond Resolution relating to the levy, collection and application of the Sales Tax Revenues. SECTION 5.07. OTHER MONEYS. The County 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 Series 2014 Note. SECTION 5.08. ADDITIONAL COVENANTS WITH RESPECT TO THE SERIES 2014 NOTE. (A) The County hereby knowingly, voluntarily and intentionally waives any and all right it may have to a trial by jury in respect of any litigation (including, but not limited to, any claims, cross-claims or third-party claims) arising out of, under, or in connection with this agreement or the transactions contemplated herein. The County hereby certifies that no representative or agent of the Series 2014 Noteholder, nor the Series 2014 Noteholder's counsel has represented, expressly or otherwise that the Series 2014 Noteholder would not, in the event of such litigation, seek to enforce this waiver of right to jury trial provision. (B) The County will provide, within thirty (30) days of adoption, to the Series 2014 Noteholder a copy of the County’s annual budget and with any other information such Holder may reasonably request from time to time. (C) Promptly after the County becomes aware of the same, the County will notify the Series 2014 Noteholder of (a) any change in any material fact or circumstance represented or warranted by the County in this Resolution or in connection with the issuance of the Series 2014 Note, and (b) any default or event which, with notice or lapse of time or both, could become a default under the Resolution, specifying in each case the nature thereof and what action the County has taken, is taking and/or proposed to take with respect thereto. 21 Packet Pg. 773  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 the Series 2014 Note, when due. (B) The County shall default in the due and punctual performance of any other of the covenants, conditions, agreements and provisions contained in the Series 2014 Note or in this Resolution (other than defaults referenced in Section 6.01(A) and 6.01(C) hereof) on the part of the County 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 Holder of the Series 2014 Note. (C) An Act of Bankruptcy shall have occurred with respect to the County. (D) Any representation or warranty by the County to the Holders contained herein or in any certificate delivered at closing or in connection with the County's performance hereunder shall not be true and correct. Notice of any default by the County hereunder shall be given promptly to the Holders of the Series 2014 Note. SECTION 6.02. REMEDIES. Whenever any Event of Default referred to in Section 6.01 hereof shall have happened and be continuing, the Holder of the Series 2014 Note may take one or any combination of the following remedial steps: (A) Have reasonable access to and inspect, examine and make copies of the books and records and any and all accounts and data of the County during regular business hours; or (B) Take whatever action at law or in equity may appear necessary or desirable to collect the amounts then due and thereafter