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HomeMy WebLinkAboutResolution 90-11 . .' i .r / / / f .. , I A RESOLUTION AMENDING A RESOLUTION ENTITLED: "A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AUTHORIZING THE REFUNDING OF CERTAIN PRESENTLY OUTSTANDING OBLIGATIONS OF THE CITY OF OCOEE, FLORIDA; AUTHORIZING THE ACQUISITION OF RIGHTS-OF-WAY, DESIGN, CONSTRUCTION, PAVING AND IMPROVEMENT OF CERTAIN STREETS AND INTERSECTIONS WITHIN AND WITHOUT THE CITY LIMITS OF THE CITY OF OCOEE, FLORIDA; AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $7,000,000 TRANSPORTATION REFUNDING AND IMPROVEMENT REVENUE BONDS OF THE CITY TO BE APPLIED TO REFUND THE PRINCIPAL, INTEREST, AND REDEMPTION PREMIUM, IF ANY, IN RESPECT TO SUCH PRESENTLY OUTSTANDING OBLIGA- TIONS AND TO FINANCE THE COST OF SUCH PROJECT; PLEDGING REVENUES DERIVED FROM THE LOCAL OPTION GAS TAX, THE PUBLIC SERVICE TAXES AND CERTAIN INVESTMENT EARNINGS FOR THE PAYMENT OF SAID BONDS; FURTHER PLEDGING AMOUNTS ON DEPOSIT IN THE DEBT SERVICE FUND AND THE CONSTRUCTION FUND CREATED PURSUANT TO THIS RESOLUTION; PROVIDING FOR THE RELEASE AND EXTINGUISHMENT OF THE LIEN ON SUCH PUBLIC SERVICE TAXES; MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; PROVIDING FOR THE SEVERABILITY OF INVALID PROVISIONS; PROVIDING FOR THE REPEAL OF ANY RESOLUTIONS IN CONFLICT WITH THE PROVISIONS OF THIS RESOLUTION; PROVIDING CERTAIN OTHER MATTERS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE." BY AMENDING SECTIONS 10, 16E, 18B(1) (d), 18C, 18E AND 29 THEREOF; AND PROVIDING AN EFFECTIVE DATE. RESOLUTION NO. 90-11 WHEREAS, the City of Ocoee, Florida (the "Issuer") on August 21, 1990, adopted Resolution No. 90-08 (the "Resolution") authorizing the issuance of not to exceed $7,000,000 Transportation Refunding and Improvement Revenue Bonds; and WHEREAS, the Issuer has determined that it is necessary to amend the Resolution. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. section 10 of the Resolution is hereby amended to read as follows: . SECTION 10. EXCHANGE OF SERIES 1990 BONDS. Any Series 1990 Bond, upon surrender thereof at the principal corporate trust office of the Registrar (or if the Clerk is the Registrar, at the office of the Clerk), together with an assignment duly executed by the Bondholder or his attorney or legal representative in such form as shall be satisfactory to the Registrar, may, at the option of the Bondholder, be exchanged for an aggregate principal 1 amount of Series 1990 Bonds equal to the principal amount and of the same maturity and type of the Series 1990 Bond or Series 1990 Bonds so surrendered. . The Registrar shall make provision for the exchange of Bonds at the principal corporate trust office of the Registrar (or if the Clerk is the Registrar, at the office of the Clerk). SECTION 2. section 16E of the Resolution is hereby amended to read as follows: E. The balance of the Series 1990 Bond proceeds after providing for the payments required by A, B, C and D above, shall be deposited to the "City of Ocoee Transportation Refunding and Improvement Revenue Bond Construction Fund" which fund is hereby created and established and which may be used for the purposes set forth herein. Such Construction Fund shall constitute a trust fund and shall be used solely (i) to pay the cost of the Series 1990 Project, including the reimbursement to the Issuer of moneys spent on the Series 1990 Project in anticipation of the sale of and the issuance of the Series 1990 Bonds and (ii) to make required deposits to the Debt Service Fund in the event sufficient funds are not on deposit therein on the required dates. The Issuer agrees and covenants to commence and proceed with reasonable diligence and in good faith to complete the construction of the Series 1990 Project. Upon the completion of the Series 1990 Project, excess moneys on deposi t in the Construction Fund may be used by the Issuer for any lawful purpose and shall be free from the pledge thereof and the lien thereon in favor of the Holders of the Bonds; provided that in the event the Issuer purposes to use amounts on deposit in the Construction Fund for other than a transportation project, as defined in Section 336.025(7), Florida Statutes, the Issuer shall have first received an opinion of Bond Counsel to the effect that such use will not in and by itself, cause the interest on the Series 1990 Bonds to be included in the gross income of the Holders of such Series 1990 Bonds for purposes of Federal income taxation. SECTION 3. section 18B (1) (d) of the Resolution is hereby amended to read as follows: . (d) The Issuer will initially provide for the Reserve Requirement for the Series 1990 Bonds by the purchase of a surety bond from MBIA pursuant to the terms of a Financial Guaranty Agreement between MBIA and the Issuer, the form of which shall be approved by subsequent resolution of the Issuer. The Issuer shall next deposit 2 . from moneys remaining in the Revenue Fund an amount, if any, required by each resolution authorizing the issuance of each series of Bonds into each subaccount within the Reserve Account. Any withdrawals from any subaccount in the Reserve Account shall be subsequently restored from the first moneys available in the Revenue Fund, on a pro rata basis as to all subaccounts in the Reserve Account, after all current applications and allocations to the Debt Service Fund, including all deficiencies for prior payments have been made in full. Notwithstanding any provision of this Resolution to the contrary, in no event shall the Issuer be required to deposit cash or moneys into any subaccount in the Reserve Account in an amount greater than that amount necessary to ensure that the difference between the Reserve Requirement for the series of Bonds for which such subaccount was established and the amounts on deposit in such subaccount on the date of calculation shall be restored not later than sixty (60) months after the initial date of such deficiency (assum- ing equal monthly payments into such account for such sixty (60) month period). The Issuer may provide that the difference between the amounts on deposit in such subaccount and the Reserve Requirement for such series of Bonds shall be an amount covered by obtaining bond insurance issued by a reputable and recognized munici- pal bond insurer, by a surety bond, by a letter of credit or any combination thereof or by such other form of credit enhancement as shall be approved by subsequent resolution of the Issuer authorizing the series of Bonds for which such subaccount is established. In the event a subaccount in the Reserve Account is funded with a combination of credit enhancements, any drawings will be on a pro rata basis. Such resolution may also provide for the substitution or replacement of such credit enhancement or of amounts on deposit in such subaccount. Moneys or other security on deposit in each respective subaccount in the Reserve Account shall only be applied for payment of principal of, redemption premium, if any, or interest on the Outstanding series of Bonds for which such subaccount was established and for no other series of Bonds. Investments on deposit in each subaccount in the Reserve Account shall be valued as determined by the resolution authorizing such series of Bonds for which such subaccount was established. Investments, if any, on deposit in the subaccount in the Reserve Account established for the Series 1990 Bonds shall be valued at cost. In the event of the refunding of any series of Bonds, the Issuer may withdraw from the subaccount within the Reserve Account for such series of Bonds, all or any portion of the amounts accumulated therein with respect to the Bonds being refunded and deposit such amounts as required by the resolution authorizing the refunding of such series of Bonds; provided that such withdrawal shall . 3 . not be made unless (a) immediately thereafter the Bonds being refunded shall be deemed to have been paid pursuant to section 28, and (b) the amount remaining in such subaccount after giving effect to the issuance of such refunding obligations and the disposition of the proceeds thereof shall not be less than the Reserve Requirement for any Bonds of that series then outstanding. Cash, if any, on deposit in the subaccount in the Reserve Account established for the Series 1990 Bonds will be drawn down completely before any demand is made on the surety bond. In the event it is necessary to draw on the surety bond, the Paying Agent will deliver a demand for payment at least three days prior to the date on which funds are required. The Paying Agent will maintain accurate records, verified by MBIA as to the amount available to be drawn under the surety bond and as to the amounts paid and owing to MBIA under the terms of the Financial Guaranty Agreement. Any amounts owing to MBIA under the Financial Guaranty Agreement will be reimbursed before cash is replenished in the subaccount in the Reserve Account established for the Series 1990 Bonds. The Issuer agrees to payor to cause to be paid, solely from the Pledged Revenues (which pledge shall be junior, inferior and subordinate in all respects to the lien thereon in favor of the Holders of the Bonds and the holders of any Public Service Tax Obligations), all amounts, including interest due thereon, due MBIA under the terms of the Financial Guaranty Agreement. All such amounts due MBIA must be paid before this Resolution can be defeased pursuant to section 28 of this Resolution. There may be no optional redemption or refunding of Bonds or distribution of Pledged Revenues to the Issuer unless all amounts owed to MBIA under the terms of the Financial Guaranty Agreement have been paid. SECTION 4. section l8C of the Resolution is hereby amended to read as follows: . C. ISSUANCE OF OTHER OBLIGATIONS. The Issuer shall issue no bonds or obligations of any kind or nature payable from or enjoying a lien on the Pledged Revenues if such obligations have priority over the Series 1990 Bonds with respect to payment or lien, nor shall the Issuer create or cause or permit to be created any debt, lien, pledge, assignment, encumbrance or other charge having priority to or being on a parity with the lien of the Series 1990 Bonds upon said Pledged Revenues; provided, however, the Issuer may issue Additional Parity Obligations under the conditions and in the manner pro- vided in section 18D hereof and may issue Public Service 4 . Tax Obligations under the conditions and in the manner provided in Section 18E hereof. Any obligations of the Issuer, other than the Series 1990 Bonds, Additional Parity Obligations and Public Service Tax Obligations, which are payable from the Pledged Revenues shall contain an express statement that such obligations are junior and subordinate in all respect to the Bonds and the Public Service Tax Obligations as to lien on and source and security for payment from such Pledged Revenues. SECTION 5. section 18E of the Resolution is hereby amended to read as follows: E. ISSUANCE OF PUBLIC SERVICE TAX OBLIGATIONS. The Issuer may issue Public Service Tax Obligations which shall be payable on a parity with all Public Service Taxes required to be deposited to the Debt Service Fund hereunder upon the conditions and in the manner herein provided: (1) There shall be obtained and filed with the Issuer an opinion or a certificate of an independent certified public accountant to the effect that the historical Local Option Gas Taxes and Public Service Taxes (adjusted as provided below) received by the Issuer during (i) the Fiscal Year immediately preceding the Fiscal Year in which the Public Service Tax Obligations are proposed to be issued or (ii) two of the last three full Fiscal Years immediately preceding the Fiscal Year in which the Public Service Tax Obligations are proposed to be issued shall have been equal to not less than 135% of the Maximum Bond Service Requirement on all outstanding Bonds. . (2) There shall be obtained and filed with the Issuer an opinion or a certificate of an independent certified public accountant to the effect that the portion of the historical Public Service Taxes (adjusted as provided below) received by the Issuer during (i) the Fiscal Year immediately preceding the Fiscal Year in which the Public Service Tax Obligations are proposed to be issued or (ii) two of the last three Fiscal Years immediately preceding the Fiscal Year in which the Public Service Tax Obligations are proposed to be issued and not required to be used to provide the coverage require- ments set forth in (1) above shall have been equal to not less than 120% of the maximum annual debt service requirement on any outstanding Public Service Tax Obligations and the Public Service Tax obligations with respect to which such certificate is made. 5 . (3) The Local option Gas Tax and Public Service Taxes for such period may be adjusted to include the estimated Local option Gas Tax or Public Service Taxes, as applicable, as certified or opined to by an independent certified public accountant, that the Issuer would have received from areas that the Issuer has annexed prior to the issuance of the Public Service Tax Obligations and not fully reflected in such period. (4) The Local option Gas Tax and the Public Service Taxes for such period may be adjusted to include the estimated Local Option Gas Tax or Public Service Taxes, as applicable, as certified or opined to by an independent certified public accountant, that the Issuer would have received during such period due to increase in the rate or rates or a modification in the method of distribution of such taxes effected during such period and not fully reflected in such period. (5) An independent certified public accountant shall certify or opine at the time of issuance of the Public Service Tax Obligations that no Event of Default, as defined in section 19, exists hereunder. No Public Service Tax obligations with interest pay- able at a variable rate may be issued without the consent of MBIA so long as the Municipal Bond Insurance Policy with respect to the Series 1990 Bonds shall be in effect and MBIA shall not be in default thereunder. No Public Service Tax Obligations may be issued which include the power to accelerate the principal of and the redemption premiums, if any, on such Public Service Tax Obligations for so long as Bonds shall be Outstanding under this Resolution. Upon the release and extinguishment of the lien created hereunder on the Public Service Taxes, as more fully set forth in Section 18K hereof, this section shall be of no further force and effect. SECTION 6. section 29 of the Resolution is hereby amended to read as follows: . SECTION 29. TAX COVENANT. No use will be made of the proceeds of the Series 1990 Bonds which, if such use were reasonably expected on the date of issuance of the Series 1990 Bonds, would cause the same to be "arbitrage bonds" within the meaning of the Internal Revenue Code of 1986, as amended. The Issuer at all times while the 6 . Series 1990 Bonds and the interest thereon are outstand- ing will comply with the requirements of the Internal Revenue Code of 1986, as amended, and any valid and applicable rules and regulations promulgated thereunder necessary to maintain the exclusion of the interest on the Series 1990 Bonds from federal gross income including the creation of any rebate funds or other funds and/or accounts required in that regard. The Issuer shall at all times do and perform all acts and things permitted by law and this Resolution which are necessary or desirable in order to assure that interest paid on the Series 1990 Bonds will be excluded from gross income for federal income tax purposes and shall take no action that would result in such interest not being excluded from gross income for federal income tax purposes. In order to insure compliance with the rebate provisions of section 148(f) of the Code with respect to the Series 1990 Bonds the Issuer hereby creates the Rebate Fund to be held by the Issuer. The Rebate Fund need not be maintained if the Issuer shall have received an opinion of Bond Counsel to the effect that failure to create the Rebate Fund shall not adversely affect the exclusion of interest on such Series 1990 Bonds from gross income for purposes of Federal income taxation. Moneys in the Rebate Fund shall not be considered Pledged Revenues and shall not be pledged in any manner for the benefit of the holders of the Series 1990 Bonds. Moneys in the Rebate Fund (including earnings and deposits therein) shall be held for future payment to the united States Government as required by the united States Treasury Regulations and as set forth in instructions of Bond Counsel delivered to the Issuer upon issuance of the Series 1990 Bonds. Notwithstanding any provision of this Resolution to the contrary, to the extent the Issuer is required to make deposits to the Rebate Fund, such amounts may be taken from any fund or account created hereunder. SECTION 7. Except as amended by this resolution, Resolution No. 90-08 shall remain in full force and effect. SECTION 8. The provisions of this resolution shall take effect immediately upon its passing. . 7 I L~____ . . PASSED AND ADOPTED by the City Commission of the City of Ocoee, Florida, on this 3~ day of August, 1990. ATTEST: Ci~~ (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, APPROVED AS TO FORM AND LEGALITY, this 30""'- day of August, 1990 FOLEY & LARDNER, VAN DEN BERG, GAY, BURKE, WILSON & ARKIN APPROVED: CITY OF OCOEE, FLORIDA ~aYor APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON August 30, 1990 - UNDER AGENDA ITEM NO.JL ~ 8