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HomeMy Public PortalAboutRES 11/12RESOLUTION NO. 0 11- 12 A RESOLUTION OF THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, FLORIDA; AUTHORIZING BORROWING BY THE MUNICIPALITY OF THE PRINCIPAL AMOUNT OF NOT TO EXCEED $5,497,742 TO FINANCE THE COST OF THE PROJECT OF UNDERGROUNDING THE ELECTRIC, CABLE TELEVISION AND TELEPHONE UTILITY FACILITIES SERVING THE MUNICIPALITY DESCRIBED IN RESOLUTION NO. 011 -9; PROVIDING THAT SUCH DEBT SHALL NOT BE A GENERAL OBLIGATION OF THE TOWN BUT SHALL BE PAYABLE ONLY FROM SPECIAL ASSESSMENTS LEVIED BY THE TOWN PURSUANT TO RESOLUTION NO. 0 11 -11 AND CERTAIN OTHER MONIES AS PROVIDED HEREIN; MAKING CERTAIN COVENANTS AND AGREEMENTS; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, FLORIDA (the "Town ") THAT: Section 1. Authority for this Resolution. This Resolution is adopted pursuant to the provisions of Chapters 166 and 170, Florida Statutes, and other applicable provisions of law. Section 2. Definitions. The following words and phrases shall have the following meanings when used herein: "Authorized Investments" means any lawful investment. "Available Non Ad Valorem Revenues" means all Non Ad Valorem Revenues other than (i) any revenues which are restricted by a contract in existence on the date hereof, or created subsequent to the date hereof, from being used to pay principal and interest on the Note, (ii) any revenues which are prohibited by a general or special law of the State in existence on the date hereof from being used to pay principal and interest on the Note and (iii) any source of Non Ad Valorem Revenue which is created after the date hereof and which is prohibited by a general or special law of the State from being used to pay principal and interest on the Note. "Business Day" means any day except any Saturday, Sunday or day on which the owner of the Note is lawfully closed. "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. "Cost" means, with respect to the Project, any obligation or expense lawfully incurred by the Town. "Improvements" means any and all assets of the Town acquired, constructed, installed or otherwise comprising a part of the Project. "Mayor" means the Mayor or Vice -Mayor of the Town. "Non Ad Valorem Revenues" means all revenues of the Town not derived from ad valorem taxation. "Note" means the obligation of the Town authorized by Section 5 hereof. "Note Proceeds Fund" means the fund by that name established pursuant to Section 6 hereof. "Owner" means the Person in whose name or names the Note shall be registered on the books of the Town kept for that purpose in accordance with provisions of this Resolution. "Payment Fund" means the fund by that name established pursuant to Section 16 hereof. "Person" means natural persons, firms, trusts, estates, associations, corporations, partnerships and public bodies. 1 "Pledged Funds" means the amounts on deposit in the Note Proceeds Fund and the Payment Fund and the Special Assessments. "Project" means the placing of the electric, cable television and telephone utility facilities that serve the Town and its inhabitants underground as described in Resolution No. 011 -9 of the Town. "Qualified Public Depository" shall mean any qualified depository of public funds pursuant to the provisions of Chapter 280, Florida Statutes, the "Florida Security for Public Deposits Act," or any successor provision of law. "Resolution" means this Resolution, as amended and supplemented. "Special Assessments" means the special assessments levied and assessed by the Town pursuant to Resolution No. 011A I of the Town. "State" means the State of Florida. Section 3. Resolution to Constitute a Contract. In consideration of the purchase and acceptance of the Note authorized to be issued hereunder by those who shall be the Owner from time to time, this Resolution shall constitute a contract between the Town and the Owner. Section 4. Authorization of Note. An obligation of the Town to be known as "Promissory Note, Undergrounding Project" is hereby authorized to be issued in a principal amount not exceeding $5,497,742 for the purpose of providing funds to pay the Costs of the Project. Section 5. Description of Note. The Note shall be issued in registered form, shall be dated as of such date, shall mature on such date or dates within 21 years after the date of issuance, shall bear interest at such rate or rates not in excess of the maximum legal rate, shall be payable on such date or dates and in such manner, and shall be in such denomination or denominations as shall be provided by subsequent resolution of the Town Commission. Section 6. Application of Note Proceeds. The Town shall establish a separate account to be known as the " Undergrounding Project Note Proceeds Fund" (the "Note Proceeds Fund ") into which shall be deposited the proceeds from the sale of the Note (except such portion thereof as shall be necessary to pay interest on such Note which shall be deposited in the Payment Fund). Withdrawals from the Note Proceeds Fund shall be made to or at the direction of the Town and only for purposes of paying Costs of the Project. The Town's share of any liquidated damages or other monies paid by defaulting contractors or their sureties, and all proceeds of insurance compensating for damages to the Project or portion thereof to be paid from the proceeds of the Note, during the period of construction, shall be deposited in the Note Proceeds Fund to be used to pay Costs of the Project. The Town may invest funds in the Note Proceeds Fund in Authorized Investments, and the earnings from any such investment shall be retained in the Note Proceeds Fund. When the Costs of the Project to be paid from the Note Proceeds Fund have been paid in full, all funds remaining in the Note Proceeds Fund shall be deposited in the Payment Fund and the Note Proceeds Fund shall be closed. Section 7. Execution of Note. The Note shall be executed in the name of the Town with the manual signature of the Mayor. It is not necessary for the seal of the Town to be applied to the Note. Section 8. Sale of Note. The Note shall be sold pursuant to applicable law in such manner and upon such terms as the Town shall provide by resolution adopted any time prior to the issuance of the Note. 2 Section 9. Negotiability, Registration and Exchange. The Note shall be and shall have all the qualities and incidents of a negotiable instrument under the laws of the State of Florida. The Note shall be registered as to both principal and interest upon books kept by the Town Clerk. The Note shall be transferable only upon such registration books. Upon surrender for transfer of the Note at the office of the Town Clerk, duly endorsed for transfer (or accompanied by an assignment duly executed) by the Owner or the Owner's attorney - in -fact duly authorized in writing, the Town shall execute and deliver in the name of the transferee a new Note, of like tenor and for the same aggregate principal amount as that of the Note surrendered. The person in whose name the Note shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of the principal of and the interest on the Note shall be made only to or upon the order of the Owner thereof or its legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon the Note including the interest thereon to the extent of the sum or sums so paid. Section 10. Note Mutilated, Destroyed, Stolen or Lost. In case the Note shall become mutilated, or be destroyed, stolen or lost, the Town shall issue and deliver a new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in exchange and substitution for such mutilated Note, upon surrender and cancellation of such mutilated Note, or in lieu of and in substitution for the Note destroyed, stolen or lost, and upon the Owner furnishing the Town satisfactory indemnity and complying with such other reasonable regulations and conditions as the Town may prescribe, and paying such expenses as the Town may incur. All Notes so surrendered shall be cancelled by the Town Clerk. If any the Note shall have matured or be about to mature, instead of issuing a substitute Note the Town may pay the same, upon being indemnified as aforesaid, and if such Note be lost, stolen or destroyed, without surrender thereof. Section 11. Issuance of Other Obligations. The Town covenants and agrees that it will not issue any obligations other than the Note payable from or secured by the Pledged Funds, whether such obligations are secured by a lien and pledge prior to, on a parity with, or subordinate to the lien and pledge in favor of the Note, except with the consent of the Owners at the time of issuance of such additional obligations. Section 12. Modification or Amendment. After the issuance of the Note hereunder, no material modification or amendment of this Resolution may be made without the consent in writing of the Owner of the Note. Section 13. PayMent of Principal and Interest, Obligation. The Town promises that it will promptly pay the principal of and interest on the Note at the place, on the dates and in the manner provided therein according to the true intent and meaning hereof and thereof, provided that the principal of and interest on the Note is payable solely from the Pledged Funds and Available Non Ad Valorem Revenues, and nothing in the Note or in this Resolution shall be construed as pledging any other funds or assets of the Town to such payment or authorizing such payment to be made from any other source. The Town is not and shall not be liable for the payment of the principal of and interest on the Note or for the performance of any pledge, obligation or agreement for payment undertaken by the Town hereunder from any property other than the Pledged Funds and Available Non Ad Valorem Revenues. No Owner of the Note shall have any right to resort to legal or equitable action to require or compel the Town to levy and collect any tax or special assessment or to keep any tax or special assessment in force, except for the Special Assessments, to pay principal or interest on the Note or to make deposits to the Payment Fund. The Town covenants that, so long as the Note shall remain unpaid or any other amounts are owed by the Town under the Note, it will appropriate in its annual budget, by amendment, if required, from the Pledged Funds and Available Non Ad Valorem Revenues, amounts sufficient to pay the principal of and interest on the Note as the same shall become due. In the event that the amount previously budgeted for such purpose is ever insufficient to pay such principal and interest on the Note, the Town covenants to take action to amend its budget as soon as reasonably practicable so as to budget and appropriate an amount from the Pledged Funds and Available Non Ad Valorem Revenues sufficient to pay such debt service on the Note. The covenant to 3 budget and appropriate does not create a lien upon or pledge of the Available Non Ad Valorem Revenues. Such covenants to budget and appropriate from Pledged Funds and Available Non Ad Valorem Revenues shall be cumulative to the extent not paid and shall continue until Pledged funds and Available Non Ad Valorem Revenues sufficient to make all required payments have been budgeted, appropriated and used to pay such debt service on the Note. Notwithstanding the foregoing covenant, the Town does not covenant to maintain any service or programs now provided or maintained by the Town which generate Non Ad Valorem Revenues (other than the Special Assessments). Section 14. Compliance with Tax Requirements. The Town hereby covenants and agrees, for the benefit of the Owners from time to time, to comply with the requirements applicable to it contained in Section 103 and Part IV of Subchapter B of Chapter 1 of the Code to the extent necessary to preserve the exclusion of interest on the Note and Bonds from gross income for federal income tax purposes. Specifically, without intending to limit in any way the generality of the foregoing, the Town covenants and agrees: (1) to pay to the United States of America from the funds and sources of revenues pledged to the payment of the Note to the extent legally available, and from any other legally available funds, at the times required pursuant to Section 148(f) of the Code, the excess of the amount earned on all non - purpose investments (as defined in Section 148(f)(6) of the Code) (other than investments attributed to an excess described in this sentence) over the amount which would have been earned if such non - purpose investments were invested at a rate equal to the respective yield on the Note, plus any income attributable to such excess (the 'Rebate Amount "); (2) to maintain and retain all records pertaining to and to be responsible for making or causing to be made all determinations and calculations of the Rebate Amount and required payments of the Rebate Amount as shall be necessary to comply with the Code; (3) to refrain from using proceeds of the Note in a manner that would cause the Note to be classified as a private activity bond under Section 141(a) of the Code; and (4) to refrain from taking any action or omitting to take any action if such action or omission would cause the Note to become an arbitrage bond under Section 103(b) and Section 148 of the Code. The Town understands that the foregoing covenants impose continuing obligations on the Town to comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the Code so long as such requirements are applicable. Section 15. Note Secured by Lien on Pledged Funds. The payment of the principal of and interest on the Note shall be secured by a pledge of and lien upon the Pledged Funds. Section 16. Note Payment Fund. The Town shall establish with a Qualified Public Depository a fund to be designated "Undergrounding Project Payment Fund." All Special Assessments shall be deposited into the Payment Fund promptly upon receipt. Moneys in the Payment Fund shall be used solely to pay principal and interest on the Note when due. The Payment Fund shall be a completely independent, self - balancing fund as such term is commonly defined and used in governmental accounting, and the money required to be accounted for in the Payment Fund may not be commingled with any other moneys of the Town. Investments in the Payment Fund shall mature not later than the date needed to make debt service payments on the Note. Section 17. Books and Records. The Town shall keep an accurate record of the levy and the collection of the Special Assessments which books, records and accounts shall be kept separate and apart from all other books, records and accounts of the Town. Such record shall be open to the inspection of the Owners and their agents and representatives at all reasonable times. At any and all reasonable times the Owners, and their duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect any and all books and records of the Town pertaining to the Special Assessments and the Note, and to make such rd copies and memoranda from and with regard thereto as may be desired, in accordance with the provisions of the applicable public record laws of the State. Section 18. Annual Audit. The Town shall, within 270 days after the end of each Fiscal Year, or such earlier date as may be required by law, cause the books, records and accounts relating to the Town for the preceding Fiscal Year to be properly audited by an independent firm of certified public accountants. Such audits shall contain a complete report of operations of the Town and shall contain a certificate of the auditors disclosing any default on the part of the Town of any covenant herein that has been disclosed by reason of such audit, or stating that no such default has been disclosed. A copy of such annual audit shall be furnished by the Town to the Owner. Section 19. Completion and Maintenance of Project. After the issuance of the Note, the Town will complete the Project and maintain the same in such manner as shall not impair the Town's ability to lawfully levy the Special Assessments. All Improvements will be owned by the Town or another political subdivision of the State and all Improvements shall be available for use by the general public on the same basis, subject only to conditions imposed by the Town or another political subdivision of the State as may be necessary to protect the health, safety and general welfare of the Town and its inhabitants, visitors, property owners and workers or to protect such Improvements from damage, misuse, or destruction. The Town shall observe and perform all of the terms and conditions contained in the Act, and shall comply with all valid acts, rules, regulations, orders and directions of any legislative, executive, administrative or judicial body applicable to the Project. Section 20. Limitation of Rights. With the exception of any rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Note is intended or shall be construed to give to any Person other than the Town and the Owners any legal or equitable right, remedy or claim under or with respect to this Resolution or any covenants, conditions and provisions herein contained; this Resolution and all of the covenants, conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the Town and the Owners. Section 21. Severability. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not affect any other provision herein or render any other provision (or such provision in any other context) invalid, inoperative or unenforceable to any extent whatever. Section 22. Business Days. In any case where the due date of interest on or principal of the Note is not a Business Day, then payment of principal or interest need not be made on such date but may be made on the next succeeding Business Day, provided that credit for payments made shall not be given until the payment is actually received by the Owners. Section 23. Applicable Provisions of Law. This Resolution shall be governed by and construed in accordance with the laws of the State. Section 24. Captions. The captions and headings in this Resolution are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Resolution. Section 25. Officers and Employees of the Town Exempt from Personal Liability_. No recourse under or upon any obligation, covenant or agreement of this Resolution or the Note or for any claim based thereon or otherwise in respect thereof, shall be had against any officer, agent or employee, as such, of the Town, past, present or future, it being expressly understood (a) that the obligation of the Town under this Resolution is solely a corporate one, limited as provided herein , (b) that no personal liability whatsoever shall attach to, or is or shall be incurred by, the officers, agents, or employees, as such, of the Town, or any of them, under or by reason of the obligations, covenants or agreements contained in this Resolution or implied therefrom, and (c) that any and all such personal liability of, and any and all such rights and claims against, every such officer, agent, or employee, as such, of the Town under or by reason of the obligations, covenants or agreements contained in this Resolution, or implied therefrom, are waived and released as a condition of, and as a consideration for, the execution of this Resolution and the issuance of the Note on the part of the Town. 5 Section 26. Authorizations. The Mayor, the Town Clerk, and all other officials and employees of the Town are authorized and empowered, collectively or individually, to take all action and steps that are necessary or desirable in connection with the execution and delivery of the Note and which are specifically authorized or are not inconsistent with the terms and provisions of this Resolution. Section 27. Impairment of Contract. The Town covenants with the Owners that it will not, without the written consent of the Owners, enact any resolution which repeals, impairs or amends in any manner adverse to the Owner the rights granted to the Owners hereunder. Section 28. Remedies of Owners. Should the Town default in any obligation created by this Resolution or the Note, the Owners may, in addition to any other remedies set forth in this Resolution or the Note, either at law or in equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted or contained in this Resolution, and may enforce and compel the performance of all duties required by this Resolution, or by any applicable statutes to be performed by the Town or by any officer thereof. Section 29. Repealer. All resolutions or parts thereof in conflict herewith are hereby repealed. Section 30. Effective Date. This Resolution shall take effect immediately upon its adoption. Section 31. Validation. John Randolph and Mark Raymond are hereby authorized and directed to commence a proceeding for the validation of the Note under Chapter 75, Florida Statutes. PASSED AND ADOPTED by the Town Commission of the Town of Gulf Stream, Florida, this 30th day of June, 2011. �.- � MAYOR (SEAL) ATTEST: TOWN CLERK Co TOWN OF GULF STREAM, FLORIDA COMMISSIONER COMMISSIONER