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HomeMy WebLinkAboutResolution_32-98/99_04/08/1999 • RESOLUTION No. 32 -98/99 A RESOLUTION OF THE VILLAGE COUNCIL OF TEQUESTA, FLORIDA; AUTHORIZING THE ISSUANCE OF A NOTE OF THE TOWN IN THE PRINCIPAL AMOUNT OF $108,000 TO FINANCE THE ACQUISITION OF COMPUTER HARDWARE AND SOFTWARE; PROVIDING THAT SUCH NOTE SHALL BE A LIMITED OBLIGATION OF THE VILLAGE PAYABLE FROM NON -AD VALOREM REVENUES OF THE VILLAGE; PROVIDING FOR THE RIGHTS, SECURITIES AND REMEDIES FOR THE OWNER OF SUCH NOTE; MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, FLORIDA, THAT: Section 1. Authority for this Resolution This Resolution is adopted pursuant to the provisions of Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes, the Charter of the Village of Tequesta, Florida, and other applicable provisions of law. Section 2. Definitions The following words and phrases shall have the following meanings when used herein: "Act" means Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes, the Charter of the Issuer, and other applicable provisions of law. "Business Day" means any day except any Saturday or Sunday or day on which the Principal Office of the Original Purchaser is closed. "Clerk" means the duly appointed Village Clerk of the Issuer, or any duly authorized deputy thereof. "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. "Issuer" means the Village of Tequesta, Florida, a municipal corporation of the State of Florida. • "Mayor" means the Mayor of the Issuer, or in his or her absence or inability to act, the Vice -Mayor of the Issuer. "Non Ad Valorem Revenues" means any and all revenues of the Issuer which are not derived • by the Issuer from its imposition, levy and collection of ad valorem taxes on real and personal property in the jurisdiction of the Issuer and which are lawfully available for the payment of debt service on the Note. "Note" means the Note of the Issuer authorized by Section 4 hereof. "Original Purchaser" means Fidelity Federal Savings Bank of Florida. "Owner" means the Person or Persons in whose name or names the Note shall be registered on the books of the Issuer kept for that purpose in accordance with provisions of this Resolution. "Person" means natural persons, firms, trusts, estates, associations, corporations, partnerships and public bodies. "Principal Office" means, with respect to the Original Purchaser, the office located at 218 Datura Street, West Palm Beach, Florida 33401 or such other office as the Original Purchaser may designate to the Issuer in writing. "Project" means the acquisition of computer hardware and software. "Resolution" means this Resolution, pursuant to which the Note is authorized to be issued, including any Supplemental Resolutions. "State" means the State of Florida. "Supplemental Resolution" means any resolution amendatory or supplemental to this Resolution adopted by the Issuer in accordance with Section 9 hereof. 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 Owners thereof from time to time, this Resolution shall constitute a contract between the Issuer and the Owners. Section 4. Authorization of Note Subject and pursuant to the provisions of this Resolution, an obligation of the Issuer is hereby authorized to be issued under and secured by this Resolution, in the principal amount of $108,000, for the purpose of providing funds to pay for the Project. Because of the characteristics of the Note, prevailing market conditions, and additional savings to be realized from an expeditious sale of the Note, it is in the best interest of the Issuer to accept the offer of the Original Purchaser to purchase the Note at a private negotiated sale. Prior to the issuance of the Note the Issuer shall receive from the Original Purchaser the disclosure statement containing the information required by Section 218.385, Florida Statutes. Section 5. Description of Note The Note shall be dated the date of its execution and • delivery, which shall be April 9, 1999 unless another date is agreed upon by the Mayor and the Original Purchaser, and shall have such other terms and provisions, including the interest rate, 2 principal amount and maturity date, as stated in the form of Note attached hereto as Exhibit A. The Note is to be in substantially the form set forth on Exhibit A attached hereto, together with such changes as may be approved by the Mayor, such approval to be conclusively evidenced by the Mayor's execution of the Note. The Note shall be executed on behalf of the Issuer with the manual signature of the Mayor and shall have impressed thereon the official seal of the Issuer, and be attested with the manual signature of the Clerk, and the said Mayor and Clerk are hereby authorized to execute and attest to the Note on behalf of the Issuer. Section 6. Registration and Exchange of Note; Persons Treated as Owners The Note is initially registered to the Original Purchaser. So long as the Note shall remain unpaid, the Issuer will keep books for the registration and transfer of the Note. The Note shall be transferable only upon such registration books. 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 principal and interest on the Note shall be made only to or upon the written order of the Owner. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Note to the extent of the sum or sums so paid. Section 7. Payment of Principal and Interest; Limited Obligation The Issuer 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. • Notwithstanding any other provision hereof, the principal of and interest on the Note shall be payable from and secured solely by the Non Ad Valorem Revenues in the manner hereinafter provided and the Owner shall have no recourse to any other assets of the Issuer for payment of amounts due on the Note. The Issuer covenants that, so long as the Note shall remain unpaid, it will appropriate in its annual budget and by amendment, if required, from Non Ad Valorem Revenues lawfully available in each fiscal year, amounts sufficient to pay the principal of, premium, if any, and interest on the Note as the same shall become due. In the event that the amount previously budgeted for such purpose is at anytime insufficient to pay principal, premium, if any, and interest on the Note, the Issuer covenants to take immediate action to amend the budget for such fiscal year so as to budget and appropriate an amount sufficient from Non Ad Valorem Revenues to pay such debt service on the Note. Such covenants to budget and appropriate from Non Ad Valorem Revenues shall be cumulative to the extent not paid and shall continue until such Non Ad Valorem Revenues sufficient to make all required payments have been budgeted, appropriated and used to pay debt service on the Note. The Issuer further covenants that the obligation of the Issuer to include the amount of any principal, premium, if any, and interest on the Note in each of its annual budgets or amendments thereto and to pay such deficiencies from Non Ad Valorem Revenues so long as the Note is outstanding are entered into for the benefit of the Owners and may be enforced by them in any court of competent jurisdiction. • 3 Notwithstanding the foregoing covenants, the Issuer does not covenant to maintain any services or programs now provided or maintained by the Issuer which generate Non Ad Valorem Revenues. Such covenant to budget and appropriate does not create any lien upon or pledge of such Non Ad Valorem Revenues nor does it preclude the Issuer from pledging in the future its Non Ad Valorem Revenues, nor does it require the Issuer to levy and collect any particular Non Ad Valorem Revenues, nor does it give the Owners a prior claim on the Non Ad Valorem Revenues as opposed to claims of general creditors of the Issuer. However, the covenant to budget and appropriate in its general annual budget or amendments thereto for the purposes and in the manner stated herein shall have the effect of making available for payment of the Note the Non Ad Valorem Revenues of the Issuer, and of 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 166.241(3), Florida Statutes, which provides that the governing body of each municipality may not make appropriations for each fiscal year which, in any one year, which exceed the amount to be received from taxation or other revenue sources and which makes it unlawful for any officer of any municipal government to draw money from the treasury except in pursuants of an appropriation made by law. Section 8. Compliance with Tax Requirements The Issuer hereby covenants and agrees, for the benefit of the Owners from time to time of the Note, 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 from gross income for federal income tax purposes. Specifically, without intending to limit in any way the generality of the foregoing, the Issuer covenants and agrees: (1) 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 (2) 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 Issuer understands that the foregoing covenants impose continuing obligations on the Issuer 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 9. Amendment This Resolution shall not be modified or amended in any respect subsequent to the issuance of the Note except with the written consent of the Owner of the Note. Section 10. 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 Issuer and the Owner any legal or equitable right, remedy or claim under or with respect to this Resolution or any covenants, 4 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 Issuer and the Owner. Section 11. Note Mutilated, Destroyed, Stolen or host In case the Note shall become mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in exchange and in substitution for such mutilated Note, or in lieu of and in substitution for the Note destroyed, stolen or lost and upon the Owner furnishing the Issuer proof of ownership thereof and indemnity reasonably satisfactory to the Issuer and complying with such other reasonable regulations and conditions as the Issuer may prescribe and paying such expenses as the Issuer may incur. The Note so surrendered shall be cancelled. Section 12. Impairment of Contract. The Issuer covenants with the Owner of the Note that it will not, without the written consent of the Owner of the Note, enact any ordinance or resolution which repeals, impairs or amends in any manner adverse to the Owner the rights granted to the Owner of the Note hereunder. Section 13. Budget and Financial Information The Issuer shall provide the Owner of the Note with a copy of its annual budget and of its annual audited financial statements (each within thirty days of adoption or approval) and such other financial information regarding the Issuer as the Owner of the Note may reasonably request. The Issuer hereby covenants that it shall promptly • give written notice to the Owner of the Note of any litigation or proceeding which if determined adversely to the Issuer would adversely affect the security for the payment of the Note. Section 14. Defaults and Remedies A. Events of Default Each of the following is hereby defined as and declared to be and shall constitute an "Event of Default: " (i) If payment of the principal of or interest on the Note, whether at maturity or by prepayment or otherwise, shall not be made by the Issuer when the same shall become due and payable; or (ii) If the Issuer shall fail in the due and punctual performance of any of the other covenants, conditions, agreements and provisions contained in the Note or in this Resolution on the part of the Issuer to be performed and such failure shall continue for thirty (30) days after written notice specifying such failure, and requiring the same to be remedied, shall have been given to the Issuer by the Owner; or (iii) If the Issuer admits in writing its inability to pay its debts generally as they become due or files a petition in bankruptcy or if any proceeding shall be • instituted, with the consent or acquiescence of the Issuer, for the purpose of effecting a composition between the Issuer and its creditors or for the 5 purpose of adjusting the claims of such creditors, pursuant to any Federal • or state statute now or hereafter enacted. B. Declaration of Principal and Interest as Due Upon the occurrence of an Event of Default and at any time thereafter while such Event of Default shall continue, the Owner, by written notice to the Issuer, may declare the principal of the Note together with all accrued and unpaid interest thereon, if not already due, to be due and payable immediately and upon any such declaration the same shall become and be due and payable immediately, anything in this Resolution or in the Note to the contrary notwithstanding. C. Enforcement of Remedies Upon the occurrence of an Event of Default and at any time thereafter while such default shall continue, the Owner may proceed to protect and enforce all rights under and as permitted by this Resolution and the laws of the State of Florida by such means or appropriate judicial proceedings as shall be suitable or deemed by it most effective, including any actions, suit or special proceedings at law or in equity or in bankruptcy or by proceedings in the office of any board or officer having jurisdiction, or otherwise, whether for the specific performance of any covenant or agreement contained in this Resolution or in aid of execution of any power granted in this Resolution or by law or to enforce any other legal remedy vested in the holder of the Note by this Resolution or by said laws. D. Remedies not Exclusive: Effect of Waiver of Default; Effect of Abandonment of Proceedings or Adverse Determination The Owner shall be entitled to all the remedies and • benefits of this Resolution and as is and shall be provided by law, and nothing herein shall be construed to limit the rights or remedies of the Owner under any applicable statute that may now exist or be enacted hereafter. No remedy prescribed by this Resolution shall be exclusive of any other remedy or remedies so prescribed or be exclusive of other remedies now or hereafter existing at law or in equity or by statute 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 and may be exercised without exhausting and without regard to any other remedy. Every right, power and remedy conferred upon the Owner by this Resolution or by law or in equity may be exercised or enforced from time to time as may be deemed expedient. Section 15. 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 16. 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 Owner. Section 17. Applicable Provisions of Law This Resolution shall be governed by and • construed in accordance with the laws of the State. 6 Section 18. Rules of Interpretation Unless expressly indicated otherwise, references to sections or articles are to be construed as references to sections or articles of this instrument as originally executed. Use of the words "herein, " "hereby, " "hereunder, " "hereof, " "hereinbefore, " "hereinafter" and other equivalent words refer to this Resolution and not solely to the particular portion in which any such word is used. Section 19. 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 20. Officers and Employees of the Issuer 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 member of the Village Council of the Issuer, or any officer, agent or employee, as such, of the Issuer past, present or future, either directly or through the Issuer whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, it being expressly understood (a) that no personal liability whatsoever shall attach to, or is or shall be incurred by, the members of the Village Council of the Issuer, or the officers, agents, or employees, as such, of the Issuer, or any of them, under or by reason of the obligations, covenants or agreements contained in this Resolution or implied therefrom, and (b) that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such member of the Village Council of the Issuer, and every officer, agent, or employee, as such, of the Issuer 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 Issuer. Section 21. Authorizations The Mayor and any member of the Village Council, and such other officials and employees of the Issuer as may be designated by the Mayor are each designated as agents of the Issuer in connection with the issuance and delivery of the Note and are authorized and empowered, collectively or individually, to take all action and steps and to execute all instruments, documents, and contracts on behalf of the Issuer 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 22. Section 265 Designation Note The reasonably anticipated amount of tax - exempt obligations (other than obligations described in Clause (ii) of Section 265(b)(3)(C) of the Code) which have been or will be issued by the Issuer during 1999 does not exceed $10,000,000. There are no entities that are subordinate to the Issuer or that issue tax - exempt obligations on behalf of the Issuer. The Issuer hereby designates the Note as a "qualified tax - exempt obligation" for purposes of Section 265(b)(3)(B)(i) of the Code. The Issuer hereby covenants and agrees not to take any action or to fail to take any action if such action or failure would cause the Note to no longer be a "qualified tax - exempt obligation. " • 7 Section 23. Repealer All resolutions or parts thereof in conflict herewith are hereby • repealed. Section 24. E ffective D ate. This Resolution shall take effect immediately upon its adoption. THE FOREGOING RESOLUTION was offered by Councilmember who moved its adoption. The motion was seconded by Councilmember and upon being put to a vote, the vote was as follows: F OR ADOPTION AGAINST ADOP LOO • The Mayor thereupon declared the Resolution duly passed and adopted this 8th day of April, 1999. Mayor of Tequesta [SEAL] ATTEST: Village Clerk • 8