2000-072 Authorizes Note for $860,000 for RefinancingRefinances Fidelity Federal Bank Loan
Resolution 1999-24
• R1;:soLUTLON 3-ZOOo
A RESOLUTION OF THE VILLAOE COUNCIL, OF THE VLId.A(IE
OF NORTH PALM BEACH, FLORIDA; AUTHORIZINQ THE
ISSUANCE OF A NOTE OF THB VILLAGE 1N THE PRINCIPAL
AMOUNT OF S860,000 TO REFINANCE A PROMISSORY NOTE
OF THE VLLLAGB AND TO FINANCE VARIOUS CAPITAL
EXPENDITURES; PROVIDING THAT SUCH NOTE SHALL BE A
LIMITED OBLIGATION OF THB VILLAGE SECURED BY
FRANCHISE FEES AND PUBLIC SERVICE TAXES OF THE
VILLAGE; PROVIDING FOR THE RIGHTS, SBCURTI'Y AND
REMEDIES FOR THE OWNER OF SUCH NOTE; MAKINO
CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION
THBREWITH; AND PROVIDING AN EFFECTIVE RATE.
BE IT RY;SOLVED BY THE VILLAOE COUNCIL OF 1'HE VILLAOE OF NORTH PALM
BEACH, FLORIDA, THAT:
Section 1. All only for this Resolution. This Resolution IS adopted pursuant to the
provisions of Article VIII, Section 2 of the Conatimdon of the Stato of Florida, Chapter 166,
Florida Statutes, the Charter of the Village of North Palm Beach, Florida, and other applicable
provisions of law.
Section 2, j~j(igpg. The following words and phrases shall have the following meanings
when used luuein:
"Act" means Articla VII[. Section 2 and Article VA, 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.
'Busittoss pay" means arty day oxcept aqy Saturday or Sunday or day on which the Principal
Office of the Original Ptur:haser is closed.
"Clerk' means the duly appointed Village Clerk of the Lssuer, or any duly authorized dopury
thereof.
'Code" means the Internal Revemte Code of 1986, as amended, and aqy Treasury
Regulations, whether temporary. Proposed or final, promulgated thereunder or applicable thereto.
`Issuer" moans the Village of Nonh Palm Beach, Florida, a municipal corporation of the
• State of Florida.
"Mayor" insane the Mayor of the Issuer, or In his or her absence or inability to act, rho
Vice-Mayor of the Issuer.
• "Note" means the Note of We Issuer authorized by Section 4 hereof.
'Original Purchaser" means First Union National Bank.
"Owner` means the Person or Persons in whose name or names the Note shall be registett;d
on the books of the Tssuer kept for that purpose In accordance with provisions of this Resolution.
'Person' tttearu natural persons, &ms, ousts, estates, associations, corporations,
partrtetships and public bodies.
'Pledged Ravonues' means (i) ell fees derived by the Issuer from the granting of ftanchlses
to provide telephoce std telegraph service, electric ilglu and power facUities and facilities for rho
purchase, transmission, distribution and sale of natural gas within the Village (the 'Franchise
Fxs7, including, but not lia»ted to, those fees derived pursuant to Resolution No. 5-90 adopted
by the Village Council on March 8, 1980, Ordinance No. 1480; enacted by the Village Council
on July 24, 1980 and Ordmance No. 11-80, enacted by the Village Council on May 22, 1980 and
(ii) all of the proceeds derived by the Tssuor from the imposition of a tax on the purchase of
electricity, metered or bottled gas (natural liqu~ed petroleum gas or manufactured), pursuant to
the provisions of Section 166.231, Florida Statutes, as amended and aupplomented (the "Public
Service Tax's.
'Principal Office" means, with respect to the Original Purchaser, the office located at 1950
West Illllsboro Boulevard, I)cerfield Beach, Florida 33442 or such other office as the Original
Purchaser tray deslgttate to the Issuer la writing.
'Project' means various capital expenditures of the Village.
"Rafinatuxd Note' means the Promissory Note dated May 18,1999, in the principal amount
of 5800,000, tnado by the Issuer. aM payable t4 Fidelity Federal Savings Bank of Florida.
`Rcaohuion" means this Resolution, pursuant W which the Note is authorized to be issued,
iachtding any Supplemental Resolutions.
'Blatt" meatts the Stau 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. Reset 'ep to Clinsttmte a Ce tear . In consideration of the purchase and
socepwnce of rho Note authorized t0 be issued hereunder by those who at>a11 bo the Owners thereof
from titnt to time, this Resolution shall constitute a contract between the Issuer and tite Owners.
• Section 4. A3liherization of Nnte. Subject and pursuant to the provisions of this
Resolution, an obligation of the Issuer is herby authorized to be issued under aM scatted by this
Resolution, in the principal amount of 5860,000, for the purpose of providing fitnds to pay for
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• the Project and refinance the ltofinartccd Note. Because of the characteristics of the Notc,
prevailing market conditions, std additional savings to be realized from an expedldous sale of the
Note, it is in the best interest of the Issuer to accept the offer of the OrigitrU 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 rho lnfotmation required by
Section 216.385, Florida Statutes.
Seaton 5. Description of Nnte. The Note shall be dated the date of its execution and
delivery, which shall be November 13, 2000 unless another data is agreed upon by the Mayor and
the Original Purchaser, and chall have such other terms and provisions, including rho interest rate
and maturity date, as stated !n the form of Note attached hereto as Exhibit A. The Note is to be
in tbo form set forth on Exhibit A attached hereto. The Note shall be executed on behalf of the
Issuer with rho tnarntal 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
arc hereby authorized to execute and anent to the Noto on behalf of the Issuer.
Sedlon 6. RSgiStCittinn and I3xrhapgg nfj~[nL: Perc~ns Treated ag •~^ers. The Note is
int[ially registered to the Original Purchaser. So long as the Note shall remain unpaid, the Issuer
will keep books for the rcgisttatioa and transfer of rho Note. The Note shall be transferable only
upon such registration books.
The Person in whose name the Note shall be regrstorod 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. ]?gyment of Pripgj~) and TntPrer*.: Y im~t,Q~ Ohli~atinn, The Issuer promises
that it will promptly pay the principal of aM interest on rho Note at the place, on the dates and in
the manner provided therein according to the true latent and meaning hereof and thereof.
Nota+ithstanding arty other provision hereof, the principal of aM interest on tiro Note shall
be sectucd solely by and payable 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 Noto.
The Issuer cavettants that for so long as the Note shall rettutln unpaid, it will not repeal the
existing Franchise Feo agreements or modify such agreeanents so as to reduce the rate at which
such fees are levied as of this daft or otherwise modiiy such agreements in any manner so as to
impair or adversely affect the ability of the Issuer to levy and collect the Franchise Fees, and the
Village agrees that It will use iu host efforts to the extent permitted by law to assure that aqy
Franchise Fce agreement which expires prior t0 repayment of the Note will be renewed or
renegotiated on a basis comparable to the expiring agreement so as to produce the same or a higbei'
• level of fees as is obtained under the existing agreement. Further, tiro Issuer covenants that for
so long as tiro Note shall remain unpaid, it will contitnre to impose a Public Service Tax, and will
not amend or repeal the provisions of the resolutions and/or ordinances of the Issuer that impose
• the Public Service Tax as of the date hereof so as to reduce the rate at which the Public Service
Tax is collected, or otherwise modify the proceedings of the Issuer relevant to the Public Service
Tax in any manner so as to impair or adversely affect the ability of the Issuer to levy and collect
the PubUc Service Tax. To the extent permitted by law, the Issuer shall Impose a Public Service
Tax at such ran as shall, together with the Franchke Fees collected by the Issuer, be sufficient
to pay the principal of and interest on the Nou as the setae shall become due and payable. To the
extent permitted by law, the Issuer shall establish Franchise Fees Iri such amounts as shall,
together with the Public Service Tax, be sufficient to pay the principal of ant interest on the Note
as the same shall become due and payable. Chapur 2000-260, Laws of Florida (the
'Telecommunications Aa') may have repealed the authority of the Issuer to impose franchise fees
under Resolution No. 5-90 (Southern Z1eU Telephone and Telegraph), For purposes of applying
Secdon 54 of the Telecom+~~nt~9tionc Act to the Issuer, the Issuer shall treat ttte Note a9 if it wen
Issued prior to the enactment of the Telccommuaicadons Act and to the extent a like sum of
revetute received by the Issuer wou1Q be deemed under the Telecommunicatioas Act to replace the
Issuer's franchise fee under Resolution No. 5-90 (Southern BeU telephone and Telegraph) such
avenue shall, without further action of the Issuer become part of the Pledged Ravetntes hereunder.
The Village wUl not Issue any other obligations or incur any liability payable froth the
Pledged Revenues std having a right to paytnern therefrom that is prior to the right to repayment
therefrom of the Nou. Fwtltermore, the Issuer will not issue any other obligadons or ituatr any
liabiliy payable from the Pledged Revenues unless (i) there is no default with respect to payment
of the principal of or interest on the Nou or otherwise hereunder and (ii) one-half of the Pledged
Revenues collected by the Issuer during the 24 full months most troceady concluded preceding the
dau of issuance of such additional debt or incurrence of such additional Uabiliry shall be at least
1,5 times the maximum amount of principal and inurest or other form of payment scheduled to
be made with respect to the Issuer's Promissory Nou dated Match 16, 1999 in the original
principal amount of X600,000, the Issuer's Promissory Nou dated January 31, 19971n the original
principal amount of I;6,560,000, the Note, any other debt or liability of the Issuer that is sectued
by a lien upon or pledge of all or any portion of dte Pledged Revenues and such additional debt
or liability during any twelve month period afar the dau of issuance of such additional debt.
Section 8. COmDlig~g {inch Tex Re~iromeeu, The Issuer hereby coveatattcs and agrees,
for the betufit of the Otvncrs from time to tote of the Nou, to comply with the requirements
applicable to h contained in Section 103 and Part N of Subchapur B of Chapur 1 of the Code to
the extent necessary to preserve the exclusion of inurost on the Nou from gross inrxune for
fedctal income tax purposes, Specifically, without inunding to Ilmit in any way the generality of
the forgoing, the issuer covenants and agrees:
(1) to refrain from uslog proceeds of the Nou in a tnanaer that would cause tbo
Nou to be classified as a prlvau activity bond under Section 141(e) of the Code;
and
• (2) to refrain from taking any aetioa or omitting to take any action if such
action or omission would cause the Note to become an arbitrage bond under
Sccdon 103(b) and Section 148 of the Code.
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• The Issuer ttrdotstands that the forgoing covenants impose continuing obligations on the
Issuer to comply with the trgttiromeras of Section 103 and Pan IV of Subchapter B of Chapter 1
of the Code so long as such requirements are applicable. The Issuer reasonably oxpacta that the
aggregate face amount of aU tax~xempt bonds (other than private activity bonds) to be issued by
it during 2000 will not exceed SS,000,000. There steno entities that issue bonds on behalf of the
Issuer nor are there any subordinate etttitirs which issue tax~xetnpt bonds. The Issuer expects
that at least BS qb of the proceeds from the sale of the Note not used to refinance the Reflnancert
Note will be allocated to capital expenditures within the three year period beginning on rho date
of issuance of the Noto sad that the Issuer will within six months incur a substantiai binding
obligation to a third-parry to expend at least five percent of rho proceeds of the Note on such
capital projects, and that completion of the capital projects will proceed with duo diligence.
Section 9. ~. Thfa Resolution shall not be modiiled or amended in any respect
subsequent to rite issuance of the Note except witb the written consent of the Owner of the Nok.
Section 10. Limitation of Rights. With the exception of any rights heroin expressly
conferred, nothing expressed or tttondoned in or to be implied from this Resolution or rho 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 arty covenants,
conditions and provisions herein contained; this Resolution and eU of the covenants, condldoas
and provisions hereof being intended to be and being Por the sole and exclusive benefit of the
Issuer and the Owner.
Seaton 11. Note Mutilalgd 1)eatroye~. Stolen pr net III case the Note shall btx:ome
mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a now Note of like
tenor as the Note so mutUated, destroyed, stoles 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 lndetnnity reasonably satisfactory to
the Issuer and complying with such other reasonable reguladonc std conditions as tbo Issuer may
prescn'ba and paying such expanses as the Issuer may Incur. The Noto so surrendered shall be
cancelled.
Section 12. jm~~nc of Cgptract. The Issuer covenants with the Owner of tt-o Note
chat it will not, without the written consent of the Owner of the Note, enact any ordittsnce or
resolution which repeals, impairs or amends in any manner adverse to rho Owner the righu
granted to the Owner of the Note hereunder.
Section 13. Budget a FinanciAl Information. The Issues will eauso an 8udh to bo
cot»pleted of its books and accotints sad shall famish to the Owner of the Note audited year~Ad
financial statements of rho Issuer txrdfied by an Udependem certified public accountatu acceptable
to rho Owner to the effect that such audit has boon conducted in accordance with generally
accepted auditing standards and stating whether such financial statements present fairly in all
• material respects the financial position of the Issuer std the results of its operations end cash flows
for rho periods covered by the audit report, all in conformity with generally accepted accounting
principles applied on a consistent basis. The Issuer shall adopt an amtual budget as required by
• law. The Issuer shall provide the Owner of the Nore witlt (i) a copy of its anmral oporating budgot
for each fiscal year coding after September 30, 2000 and any capital improvement plan ("CIP")
promptly (but no later than 60 days) after it is adopted, In the case of the budget or prepatt:d, in
the csso of sny CIP, and pq hs audited financial statements for each fiscal yaer ondiug on and
after September 30, 2000 promptly upon the same becoming avat7abk and in all events within 180
days after the end thereof atxompanicd by s wrti5cato signed by sa authorized officer of the Issuer
stating whether the Issuer is in compliance with ell repreaeatations, warranties and covenants of
the Issuer in this Resohnion, in rho Nou and in the Loan Agreements, and if not, identifying the
aaturo of such non~ompliattce. Tha Issuer haroby covenants that it shall promptly give wtittan
oodce to Ute Owner of the Note of aryy lidgatioa or proceeding which if detetmiaed adversely to
the Issuer would adversely affect the securiry for the payment of Ute Noto.
Section 14. Remedies of Noteholder. Sbottld the Issuer default in airy obligation created
by this Resolution or the Note, the Owner of the Note may, in addition to aqy other ramedios 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 1?lorida, or granted or contained in this Resolution, and may enforce sad
compel the performance of al! duties required by this Resolution, or by any applicable statutes to
be perfortnod by the Issuer or by any officer thereof.
Section 1S. ~yr,~jljly. If airy provision of thin Resolution shall be held or deemed to
be or shall, in fact, be illegal, inoperative or unenforceable in any context, rho setae 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 aqy csso where the due date of intarost on or principal
of the Note is not a Business Aay, then payment of principal of interest need not be made on such
dale but may ba made on the text succeeding Business Aay, provided that credit for payments
made shall not be given until the paymen is actually received by rho Owner.
Betties 17. Appij@gbte Provisions of Iaw. This Resolution shall be governed by and
wttsrnted In accordance with the laws of the State.
Section 18. Rutes of Itst~preratinn. Unless axprassly Indicated otherwise, references
to sections or articles are to be construed as refetetues to sections or attkks of this iasttutnent as
originally executed. Use of the words "heroin," "hereby," 'hereunder, • 'het+eof," "heroittbofore, •
"hereinafter" std other eguivalem words rafor to Utls Resolution and not solely to the particular
portion is which any such word is used.
Section 19. !. The captions std headings in this Resolution are for convenience
only and in no way define, limit or describe tl18 scope or intent of any provisions or sections of
this Resolution.
• SeCtlen 20. Affioers and Rmnleyees of tl+e~ Lanier RYemmt Pmm perannnt L,inbiNty. NO
recourse under or upon airy obligation, covenant or agreement of this Resolution or the Note or
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• for arwy claim based thereon os otherwise in respect thereof, shall ba 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, it being expressly understood (a) that im personal UabUIry whatsoever shall
attach to, or is or shall be incurred by, the members of the Village CouncU of the Issuer, or the
officers, agents, or employees, as such, of the Issuer, or eay of them, under or by reason of the
obligations, covenants or agreements contained in this Resolution or IatpNed therefrom, and (b)
that any and all such personal IiabiUty, of, sad say and all sash 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, ate waived and released as a condition of, and as a considetatIon
for, the execution of this Resolution and the issuance of the Note on the part of the Issuer.
Serxloa 21. gythnri~AriotL. The Mayor and any member of the Village CowicA, and such
other officia4s and employees of the Issuer es may be designated by the Mayot ate each designated
as agents of the Iscuor in connection with the issuance and delivery of the Note atb 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 rho Note, and which are specifically authorized or
are not inconsistent with the terms and provisions of this Resolution.
Section 22. Section 2 5 Designation Note. The reasonably anticipated amount of
tax-sxcmpt obligations (other than obligations described in Clause (ii) of Secrlon 265(b)(3)(C) of
the Code) which have been or will be issued by the Issuer during 2000 does not exceed
X30,000,000. There are no entitles which are subordinate to or which issue obflgations on behalf
of the Issuer. The Issuer hereby designates the Note as a 'qualified tax-exempt obligation' for
purposes of Section 265(b)(3)(>1)(i) of the Cade. 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 23. )?~~. All resolutions or parts thereof is confUct herewith aro hereby
repealed.
Section 24. Effective Date. This Resolution shall take effect immediately upon its
adoption.
PASSED AND ADOPTID THIS 9TH DAY OF NOVEMB
~.
~~
MAY
EST:
• ~ GE CLERK C~~
(3:1067A8\169~Reaolu[ion(3).wpd 7