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HomeMy WebLinkAboutR-98-39 RESOLUTION NO. R-98-39 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEBASTIAN, FLORIDA; AUTHORIZING THE ISSUANCE OF A NOTE OF THE CITY IN THE PRINCIPAL AMOUNT OF $3,268,890 TO FINANCE COSTS OF ROADWAY IMPROVEMENTS; PROVIDING THAT SUCH NOTE SHALL BE A LIMITED OBLIGATION OF THE CITY PAYABLE FROM THE MUNICIPAL FUEL TAX AND LOCAL OPTION FUEL TAX REVENUES OF THE CITY AS PROVIDED HEREIN; PROVIDING FOR THE RIGHTS, SECURITIES, AND REMEDIES FOR THE OWNER OF SUCH NOTE; MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, 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 City of Sebastian, 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 City 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 City of Sebastian, 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. "Note" means the Note of the Issuer authorized by Section 4 hereof. "Original Purchaser" means SunTrust Bank, South Florida, N.A. "Owner" or "Owners" 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. "Pledged Revenues" means (i) that portion of the amount received by the Issuer from the revenue sharing trust fund for municipalities pursuant to Part II, Chapter 218, Florida Statutes, constituting the "guaranteed entitlement" as defmed in Section 218.21(6), Florida Statutes, that is derived from the municipal fuel tax imposed pursuant to Section 206.41(1)(c), Florida Statutes, and transferred into the Revenue Sharing Trust Fund for Municipalities pursuant to Section 206.605(1) Florida Statutes and (ii) all amounts received by the Issuer as proceeds of the local option fuel tax imposed pursuant to Sections 336.025(1), 206.41(1)(e), and 206.87(1)(c), Florida Statutes and Chapter 209 of the Code of Ordinances of Indian River County, Florida. "Principal Office" means, with respect to the Original Purchaser, the office located at 222 Lakeview Avenue, Suite 305, West Palm Beach, Florida 33401 or such other office as the Original Purchaser may designate to the Issuer in writing. "Project" means the implementation of certain roadway improvements as determined from time to time by the Issuer, including the issuance of the Note. "Resolution" means this Resolution, pursuant to which the Note is authorized to be issued, including any Supplemental Resolutions adopted pursuant to Section 10 hereof. "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 10 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; Repayment of Refunded 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 $3,268,890, for the purpose of providing funds to pay the costs of 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 2 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. De.s.cription of Note. The Note shall be dated the date of its execution and delivery, which shall be August 27, 1998 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 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 shall be approved by the Mayor, such approval to be conclusively evidenced by the execution thereof by the Mayor. 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 Ohligation. 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 solely from the Pledged Revenues 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 for so long as the Note shall remain unpaid, it will take all lawful action necessary to insure that it remains eligible to receive amounts constituting the Pledged Revenues at the same or greater level as in effect on the date of this Resolution. Section 8. Additional Indehtedness. The Issuer will not issue any other obligations or incur any liability payable from the Pledged Revenues and having a right to payment therefrom that is prior to the right to repayment therefrom of the Note. Furthermore, the Issuer will not issue any other obligations or incur any liability payable from the Pledged Revenues unless (i) there is no Event of Default and (ii) one-half of the Pledged Revenues collected by the Issuer during the 24 full months most recently concluded preceding the date of issuance of such additional debt or incurrence of such additional liability shall be at least 1.30 times the maximum amount of principal and interest or other form of payment scheduled to be made with respect to 3 the Note and such additional debt or liability during any twelve month period after the date of issuance of such additional debt. Section 9. 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; and 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 10. 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 11. 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, 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 12. Note Mutilated, Destroyed, Stolen or Lost. 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 13. 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 4 which repeals, impairs or amends in any manner adverse to the Owner the rights granted to the Owner of the Note hereunder. Section 14. Budget and Financial Information. The Issuer shall provide the Owner of the Note with a copy of its annual budget 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 15. Events of Default; Remedies of Noteholder. The following shall constitute Events of Default: (i) if the Issuer fails to pay any payment of principal of or interest the Note as the same becomes due and payable; (ii) if the Issuer defaults in the performance or observance of any covenant or agreement contained in this Resolution or the Note (other set forth in (i) above) and fails to cure the same within thirty (30) days; (iii) filing of a petition by or against the Issuer relating to bankruptcy, reorganization, arrangement or readjustment of debt of the Issuer or for any other relief relating to the Issuer under the United States Bankruptcy Code, as amended, or any other insolvency act or law now or hereafter existing, or the involuntary appointment of a receiver or trustee for the Issuer, and the continuance of any such event for 90 days undismissed or undischarged. Upon the occurrence and during the continuation of any Event of Default, the Owner of the Note 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 thelssuer or by any officer thereof. Section 16. Severahility. 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 17. 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 18. Applicahle Provisions of Law. This Resolution shall be governed by and construed in accordance with the laws of the State. Section 19. 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," 5 "hereinafter" and other equivalent words refer to this Resolution and not solely to the particular portion in which any such word is used. Section 20. 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 21. Officers and Employees of the Issuer Exempt from Personal Liahility:. No recourse under or upon any obligation, covenant or agreement of this Resolution or the Note or for any claim based thereon or Qtherwise in respect thereof, shall be had against any Councilmember 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 Councilmembers 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 Councilmember 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 22. Authorizations. The Mayor and any Councilmember, 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 23. 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 1998 does not exceed $10,000,000. There are no entities which issue bonds on behalf of the Issuer and there are no subordinate entities 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." Section 24. Repealer. All resolutions or parts thereof in conflict herewith are hereby repealed. 6 Section 25. Effective Date. This Resolution shall take effect immediately u on its adoption. The foregoing Resolution was moved for a~on by Councilmember . r The motion was seconded by Councilmember . PA{)eU'\...- and, upon being put t the vote was as follows: Mayor Ruth Sullivan Vice Mayor Martha S. Wininger Councilmember Louise R. Cartwright Councilmember Chuck Neuberger Councilmember Larry Paul The Mayor thereupon declared this Resolution duly passed and adopted this 26th day of August, 1998. ATTEST: Approved as to Form and Consent: ~~~~%~ Tim Williams, Acting City Attorney ~ G:\19709\6\Resolution(2). wpd By: CITY OF SEBASTIAN ~gl /~ / '" I /' < ~./ /:M.-&r~. Ruth Sullivan, Mayor 7