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.
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"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.
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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
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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
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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.
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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