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HomeMy WebLinkAboutResolution_16-93/94_06/23/1994 RESOLUTION NO. 16 -93/94 i A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, FLORIDA, AUTHORIZING THE ISSUANCE OF THE VILLAGE'S IMPROVEMENT REVENUE REFUNDING BOND, SERIES 1994 IN THE AGGREGATE PRINCIPAL AMOUNT OF $1,365,000; PRESCRIBING THE FORM, TERMS AND DETAILS OF SUCH BOND; MAKING CERTAIN OTHER COVENANTS AND AGREEMENTS IN CONNECTION WITH THE ISSUANCE OF SUCH BOND; SPECIFYING THE USE OF THE PROCEEDS OF SUCH BOND AND THE SECURITY FOR THE PAYMENT THEREOF; AWARDING SUCH BOND TO JUPITER TEQUESTA NATIONAL BANK BY NEGOTIATED SALE; PLEDGING ALL FRANCHISE FEES AND OCCUPATIONAL LICENSE FEES OF THE VILLAGE AS SECURITY FOR SUCH BOND; DESIGNATING THE BOND AS A "QUALIFIED TAX - EXEMPT OBLIGATION" WITHIN THE MEANING OF SECTION 265(b) (3) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; MAKING CERTAIN OTHER COVENANTS AND CONTAINING CERTAIN OTHER PROVISIONS; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES WHEREAS, the VILLAGE OF TEQUESTA, FLORIDA (the "Issuer ") is authorized by the Constitution and laws of the State of Florida to borrow money and issue revenue bonds for municipal purposes; and WHEREAS, the Issuer has heretofore issued its Improvement • Revenue Bonds, Series 1979 in the original principal amount of $910,000 now outstanding in the amount of $580,000, which outstanding amount finally matures on October 1, 2004 (the "Refunded Bonds ,, ); and WHEREAS, the Issuer has determined to issue its Improvement Revenue Refunding Bond, Series 1994 in the aggregate principal amount of $1,365,000 (the "Bond "), to provide for the repayment of the Refunded Bonds and to provide funds for certain recreational facility and roadway improvements (the "Project ") to be undertaken by the Issuer; and WHEREAS, the Bond will be secured by an irrevocable first lien on and pledge of the Franchise Fees and Occupational License Fees (as hereinafter defined) of the Issuer; and WHEREAS, the Issuer deems that it is in its best financial interest that the Bond be sold at negotiated sale; and WHEREAS, the Issuer does not anticipate issuing in excess of $10,000,000 in tax- exempt obligations in 1994. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, FLORIDA: SECTION 1. DEFINITIONS Capitalized terms used herein and not otherwise defined herein shall have the following meanings: • "Bank" shall mean Jupiter Tequesta National Bank and its successors and assigns. "Designated Revenues" shall mean any additional non -ad valorem revenues which the Issuer has designated as such pursuant to Section 6. "Escrow Deposit Agreement" shall mean the Escrow Deposit Agreement in substantially the form set forth as Exhibit B hereto, between the Issuer and The Bank of New York Trust Company of Florida, N.A. "Franchise Fees" shall mean all sums accruing to the Issuer pursuant to the followings franchises: (i) the franchise granted Florida Public Utilities Company pursuant to Ordinance No. 14, enacted July 8, 1958; (ii) the franchise granted Palm Beach Cable Television Company pursuant to Ordinance No. 155, enacted October 21, 1969; as transferred to Adelphia Communications Corporation pursuant to Resolution No. 1 -86/87 and Resolution No. 11- 88/89; (iii) the franchise granted Florida Power & Light Company pursuant to Ordinance No. 331, enacted September 11, 1984; (iv) the franchise granted Southern Bell Telephone and Telegraph Company Pursuant to Ordinance No. 385, enacted July 13, 1989; (v) the franchise granted Nichols Sanitation, Inc. pursuant to Ordinance No. 463, enacted October 14, 1993 as implemented by the "Franchise For Recycling Collection Service" among the Issuer and Nichols • Sanitation, Inc., dated August 25, 1989, as amended by "Amendment to Franchise for Residential Curbside Recycling Collection Services" dated October 21, 1993 and "Amendment to Garbage, Yard and Other Trash Collection Franchise," dated October 21, 1993; and (vi) all extensions and modifications of said franchises and renewals thereof, and all similar franchises granted by the Issuer to others upon the expiration or termination of said franchises; and (vii) all other franchises granted by Issuer until the principal of, premium, if any, and interest on the Bond have been fully paid. "Improvement Revenue Bond Fund" shall mean the fund created pursuant to Section 6 hereof. "Issuer" shall mean the Village of Tequesta, a municipal corporation duly organized, existing and in good standing under the laws of the State of Florida. "Occupational License Fees" shall mean all sums accruing to the Issuer pursuant to Article II of Chapter 11 of the Code of Ordinances of the Issuer, relating generally to occupational license fees, including all amendments thereof and successor Code provisions thereto. "Pledged Revenues" shall mean the Franchise Fees, the Occupational License Fees, any Designated Revenues and all amounts • on deposit in the Improvement Revenue Bond Fund. -2- 7129M "Resolution" shall mean this resolution, authorizing the issuance of the Bond. SECTION 2. AUTHORIZATION OF BOND The Issuer is hereby authorized to issue its $1,365,000 aggregate principal amount Improvement Revenue Refunding . Bond, Series 1994 having the interest rate, maturity date, and other provisions as set forth in the form of bond attached hereto as Exhibit "A." The Bond shall be dated June 24, 1994 and shall mature July 1, 2009. SECTION 3. AWARD OF BOND The Issuer hereby determines that a negotiated sale of the Bond is in the best interest of the Issuer by reason of the specialized market for revenue bonds similar to the Bond. The sale of the Bond to the Bank is hereby authorized. The Bond shall be sold to the Bank at a price of par, said price to be payable to the Issuer in immediately available funds on the date of issuance of the Bond. SECTION 4. USE OF PROCEEDS Proceeds of the Bond in the amount of $430,434.00 shall be used by the Issuer, together with $183,206.00 of money held in the accounts established in connection with the Refunded Bonds, to repay the Refunded Bonds pursuant to the Escrow Deposit Agreement, and proceeds of the Bond in the amount of $934,566.00 shall be used by the Issuer to pay costs of issuance of the Bond and to finance the cost of the Project in accordance with plans and specifications on file with the Issuer. • SECTION 5. ESCROW DEPOSIT AGREEMENT The form of Escrow Deposit Agreement attached hereto as Exhibit B is hereby approved, and the Mayor is hereby authorized and directed for and in the name of the Issuer to execute, and the Village Clerk is authorized to attest and apply the seal of the Issuer to, the Escrow Deposit Agreement, with such changes, alterations or corrections thereto as shall be approved by the officials executing the same, such execution to constitute conclusive evidence of such approval. The Issuer hereby appoints The Bank of New York Trust Company of Florida, N.A. (the "Escrow Agent ") as Escrow Agent pursuant to the ,Escrow Deposit Agreement. The Issuer hereby irrevocably elects, effective upon and only upon the issuance of the Bond, that the Issuer's Improvement Revenue Bonds, Series 1979, maturing on October 1, 2004 shall be called for redemption on August 1, 1994 at a price of 103% of par, plus accrued interest to the redemption date. SECTION 6. SECURITY FOR BOND The principal of, premium, if any, and interest on the Bond shall be payable from the Pledged Revenues, and until spent by the Issuer, proceeds received by the Issuer from the sale of the Bond (the "Proceeds "). The payments shall be secured by an irrevocable lien on the Pledged Revenues, and until spent by the Issuer, the Proceeds, and the Issuer does • -3- 7129M hereby irrevocably pledge such Pledged Revenues and, until spent • by the Issuer, the Proceeds, to the payment of the principal of, premium, if any, and interest on the Bond. The lien of the holder of the Bond on the Pledged Revenues shall be senior and prior to the liens of the holders of any and all other obligations of the Issuer which are payable, in whole or in part, from the Pledged Revenues, regardless of whether such other obligations are issued or incurred simultaneous with or subsequent to the issuance of the Bond. In the event that the Franchise Fees and Occupational License Fees are reduced or eliminated by reason of a change in Florida law, technological obsolescence, or for any other reason the amount of the Franchise Fees and Occupational License Fees collected by the Issuer in any year should be less than 120% of the amount of principal and interest payable on the Bond in such year plus 100% of the principal and interest payable on any Junior Debt (as hereinafter defined) in such year, the Issuer shall designate one or more other lawfully and contractually available non ad- valorem sources, if such exists, in an amount at least sufficient (such source(s) in such amount, the "Designated Revenues ") to cause the aggregate of the amount of such Designated Revenues and the Franchise Fees and Occupational License Fees collected in each year to equal 120% of the principal and interest payable on the Bond in such year plus 100% of the principal and interest payable on any debt payable therefrom in such year, and such Designated Revenues shall without further action be deemed • pledged to the - payment of principal and interest, on the Bond the same as the other Pledged Revenues. The Issuer further represents and warrants that it has, as of the date of adoption hereof, made no pledge of the Franchise Fees and Occupational License Fees, except to the extent pledged to the Refunded Bonds, and that it has not entered into any agreement or made any commitment to pledge the Franchise Fees and Occupational License Fees. The Issuer covenants that it shall not pledge the Pledged Revenues to the repayment of any obligations other than the Bond, nor shall it subject the Pledged Revenues to any lien .other than the lien hereby created to secure repayment of the Bond, without the prior written consent of the owner of the Bond. Any obligations of the Issuer hereafter incurred and payable from the Pledged Revenues ( "Junior Debt "), if applicable, shall contain an express provision to the effect that the right of such obligations to payment from such sources is fully subordinate to the_ lien and pledge hereby created in favor of the principal of, premium, if any, and interest on the Bond. The Issuer hereby creates and establishes an Improvement Revenue Bond Fund (herein, the "Fund "). Subject to the provisions of this Resolution, the Fund is hereby pledged as security for the payment of the Bond. The Issuer covenants that it shall, no later than the second business day after receipt, deposit all of the • proceeds of the Franchise Fees, Occupational License Fees and -4- 7129M Designated Revenues into the Fund. Moneys on deposit in the Fund may be invested in any legally permitted investment. Except as provided in the next succeeding sentence, as long as the Issuer is not in default in its payment obligations of the Bond, so long as there is on deposit in the Fund an amount sufficient to pay the remaining principal and interest scheduled to become due and payable on the Bond during the next twelve months, the Issuer may withdraw amounts for any lawful purpose. The Issuer shall not withdraw any moneys from the Fund if such withdrawal would adversely affect the Issuer's ability to pay debt service on the Bond as the same becomes payable, until the Bond has been paid in full. If the Bank holds the Fund, upon the occurrence of an event of default under this Resolution or the Bond, the Bank shall have a right of set -off without notice or consent against amounts in the Fund to pay amounts due on the Bond. SECTION 7. BUDGET Subject to and not in limitation of the provisions of Section 6 hereof, the Issuer shall budget and appropriate such sum from the Pledged Revenues in the Issuer's budget each year as may be necessary to pay the principal of and interest on the Bond becoming due in that year. SECTION 8. NO LEVY OF AD VALOREM TAXES REOUIRED The Bond shall be payable solely from the sources and in the manner described herein. No holder of the Bond shall ever have the right to compel the exercise of the ad valorem taxing power of the Issuer to pay the Bond or the interest thereon or be entitled to . payment of such principal and interest from any funds of the Issuer except as provided herein. SECTION 9. RESOLUTION TO CONSTITUTE CONTRACT In consideration of the acceptance of the Bond by those who shall hold the same from time to time, this Resolution shall be deemed to be and shall constitute a contract between the Issuer and such holders. The covenants and agreements herein set forth to be performed by the Issuer shall be for the benefit, protection and security of the legal holders of the Bond. SECTION 10. EXECUTION OF BONDS The Bond shall be executed in the name of the Issuer by the Mayor or Vice Mayor of the Issuer and countersigned and attested by the Village Clerk or Deputy Village Clerk, and the corporate seal of the Issuer shall be affixed thereto. SECTION 11. BOND MUTILATED DESTROYED STOLEN OR LOST In case the Bond shall become mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a new Bond of like tenor as the Bond so mutilated, destroyed, stolen or lost, in exchange and in substitution for such mutilated bond, or in lieu of and in substitution for the Bond destroyed, stolen or lost and upon the holder 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 -5- 7129M prescribe and paying such expenses as the Issuer may incur. The . Bond so surrendered shall be cancelled. If the Bond shall have finally matured or be about to finally mature, instead of issuing a substitute Bond, the Issuer may pay the same, upon being indemnified as aforesaid, and if such Bond is lost, stolen or destroyed, without surrender thereof. SECTION 12. ASSIGNABILITY The Village Clerk shall maintain a written record of ownership of the Bond. Ownership of the Bond may be transferred only upon such written record and with the written approval of the Issuer, which approval shall not be unreasonably withheld. SECTION 13. IMPAIRMENT OF CONTRACT The Issuer covenants with the holders of the Bond that it will not, without the written consent of the holder of the Bond, enact any ordinance or resolution which repeals, impairs or amends in any manner adverse. to the holder of the Bond the right or ability of the Issuer to collect the Franchise Fees or Occupational License Fees, or any rights of such holders or the security of the funds which may be pledged to the payment of the principal of and interest on the Bond. SECTION 14. INSTRUMENTS OF FURTHER ASSURANCE The officers, employees and agents of the Issuer are hereby authorized and directed to do all acts and things required for the full, punctual and complete performance of all the terms, covenants, provisions • and agreements of the Bond. SECTION 15. BANK QUALIFIED ISSUE The Issuer hereby designates the Bond to be a "qualified tax - exempt obligation" within the meaning of Section 265(b) of the Internal Revenue Code of 1986, as amended (the "Code "). The reasonably anticipated amount of tax - exempt obligations (other than obligations described in Section 265(b)(3)(C)(ii) of the Code) which will be issued by the Issuer during 1994 does not exceed $10,000,000. SECTION 16. TAX EXEMPTION The Issuer hereby covenants and agrees, for the benefit of the owner from time to time of the Bond, 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 Bond 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 to refrain from using proceeds of the Bond in a manner that would cause the Bond to be classified as a "private activity bond" under Section 141(a) of the Code and to take or refrain from taking any action necessary in order that the Bond shall not become an arbitrage bond under Section 103(b) and Section 148 of the Code. The Issuer is a governmental unit with general taxing powers, the Bond is not a "private activity bond" within the meaning of the Code, 95% or • more of the net proceeds of the Bond are to be used for local -6- 7129M governmental activities of the Issuer, and the aggregate face • amount of all tax- exempt bonds, other than private activity bonds and bonds issued to refund (other than to advance - refund (within the meaning of Section 149 of the Code)) any bond to the extent the amount of the refunding bond does not exceed the outstanding amount of the refunded bond, issued by the Issuer during 1994 is not reasonably expected to exceed $5,000,000. SECTION 17. SEVERABILTTV OF INVALID PROVISIONS: CONFLICTS: REPEALER If any one or more of the covenants, agreements or provisions of law contained herein 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 or provisions and shall in no way affect the validity of any of the other provisions hereof or of the obligation of the Issuer to make the payments required hereunder. All other resolutions or parts of resolutions in conflict or inconsistent herewith are hereby repealed. Upon payment of the Refunded Bonds, Resolution No. 10- 78/79, adopted July 24, 1979, Resolution No. 6- 79/80, adopted February 26, 1980 and Resolutions Nos. 8 -79/80 and 9- 79/80, adopted March 10, 1980, are, without further action, hereby repealed. • SECTION 17. ENFORCEMENT OF COLLECTIONS. The Issuer will diligently enforce and collect the Franchise Fees, Occupational License Fees and Designated Revenues, will take steps, actions and proceedings for the enforcement and collection of such Franchise Fees, Occupational License Fees and Designated Revenues as shall become delinquent to the full extent permitted or authorized by law, and will maintain accurate records with respect thereto. SECTION 19. BUDGET AND FINANCIAL INFORMATION The Issuer shall demonstrate in each annual budget that there are sufficient proceeds of the Franchise Fees, Occupational Fees and Designated Revenues, if any, to pay the principal of, premium, if any, and interest on the Bond as the same becomes due and payable. The Issuer shall provide the owner of the Bond with a copy of its annual budget and such other financial information regarding the Issuer as the owner of the Bond may reasonably request within a reasonable period of time after the request is made. The Issuer shall maintain books of account in accordance with generally accepted accounting principles, and shall cause the same to be audited by a certified public accountant within 180 days after the end of each fiscal year of the Issuer. The Issuer shall send the owner of the Bond a copy of its audited annual financial statements within 20 days after acceptance of the same by the Issuer. In addition, when the Issuer provides the owner a copy of its audit, the Issuer shall provide the owner a certificate of the accountant auditing such financial statements stating whether in • -7- 7129M the course of the accountant's preparation of such financial • statements, the accountant became aware of information which lead the accountant to believe that the Issuer was in default hereunder or under the Bond, and if so, providing details of the nature and extent of such matters giving rise to such belief. The Issuer hereby covenants that it shall promptly give written notice to the owner of the Bond of any event constituting a default under the Bond, this Resolution, or any of the other documents pursuant to which the Bond was issued, or of any event, which, with the passage of time or the giving of notice, or both, would become such an event of default, or of any litigation or proceeding which if determined adversely to the Issuer would adversely affect the security for the payment of the Bond. SECTION 20. REMEDIES OF BONDHOLDER Should the Issuer default in any obligation created by this Resolution or the Bond, the owner of the Bond may, in addition to any other remedies set forth in this Resolution or the Bond, 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 Issuer or by any officer thereof. The Issuer hereby agrees with the owner of the Bond that the filing of any bankruptcy or insolvency proceeding under any federal or state law by or against the Issuer which is not dismissed with prejudice • within 30 days of such filing shall give the owner of the Bond the right to exercise any of the remedies provided to them under this Section. SECTION 21. MODIFICATION OR AMENDMENT Except as provided in the next sentence, no modification or amendment of this Resolution or of any resolution amendatory hereof or supplemental hereto may be made without the consent in writing of the owner of the Bond. This Resolution may be amended, changed, modified and altered without the consent of the owner of the Bond, (i) to cure any ambiguity, correct or supplement any provision contained herein ,which may be defective or inconsistent with any other provisions contained herein, (ii) to provide other changes which will not adversely affect the interests of the owners of the Bond, or (iii) to maintain the exclusion of interest on the Bond from gross income for federal income tax purposes. SECTION 22. ADDITIONAL AUTHORIZATION The Mayor, the Village Manager, the Finance Director and any other proper official of the Issuer are hereby authorized and directed to execute and deliver any and all documents and instruments and to do and to cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated by this Resolution. SECTION 23. EFFECTIVE DATE This Resolution shall take • -8- 7129M effect immediately upon its adoption. THE FOREGOING RESOLUTION was offered by Councilmember _Ui11 Lam - L, __Bur_ckax , who moved its adoption. The motion was seconded by Councilmember Enrl L. Collings and upon being put to a vote, the vote was as follows: F OR A DDaPTI N AGAINST ADOPTION AtiL iam_ E. Bur ckaz t d osenh N. Canretta Earl i._ Collings -Ron-T— `, a a i 1 _ The Mayor thereupon declared the Resolution duly passed and adopted this 23rd day of June, 1994. Mayor of Tequesta [ SEAL 1 ATTEST: Village Cle -9- 7129M