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HomeMy WebLinkAbout1983-101t RESOLU`T'ION N0. 83-101 A RESOLUTION PROVIDING FOR THE FINANCING OF THE ACQUISITION, CONSTRUCTION AND EQUIPPING OF CERTAIN CAPITAL IMPROVEMENTS CONSTITUTING INDUSTRIAL FACILI- TIES FOR THE FURNISHING OF WATER OR FOR THE COL- LECTION, STORAGE, TREATMENT, AND FINAL DISPOSITION OF SEWAGE, OR BOTH, TO BE OWNED AND OPERATED BY GENERAL DEVELOPMENT UTILITIES, INC.; AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $4,020,000 VARIABLE RATE DEMAND UTILITY REVENUE BONDS (GENERAL DEVELOPMENT UTILITIES, INC. PROJECT); PROVIDING FOR THE LOAN OF THE PROCEEDS FROM THE SALE OF SUCH BONDS TO THE BORROWER TO PAY THE COST OF THE PROJECT; PROVIDING FOR THE RIGHTS OF THE HOLDERS OF SUCH BONDS; PROVID- ING FOR THE PAYMENT THEREOF; MAKING CERTAIN OTHER COVENANTS AND AGREEMENTS IN CONNECTION WITH THE ISSUANCE OF SUCH BONDS; AND PROVIDING AN EFFECTIVE. DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, as follows: SECTION 1. AUTHORITY FOR THIS RESOLUTION. This resolution, here- inafter called "instrument," is adopted pursuant to the provisions of Chapter 159, Part II, Florida Statutes (the "Act"), and other applicable provisions of law. SECTION 2. DEFINITIONS. Unless the context otherwise requires, the terms used in this resolution shall have the meanings specified in the Trust Indenture (the "Indenture"), the Loan Agreement (the "Loan Agreement"), the Guarantee Agreement (the "Guarantee"), and the Remarketing Agreement (the "Remarketing Agreement"), attached hereto as Exhibits "A", "B", "C", and "D", respectively. SECTION 3. FINDINGS. It is hereby ascertained, determined and declared as follows A. Indian River County, Florida (the "Issuer"), is authorized by the Act to make and execute financing agreements, contracts, deeds and other instruments necessary or convenient for the purpose of facilitating the financing of the acquisition, construction and equipping of projects as defined in the Act, including machinery, equipment, land, rights in land and other appurtenances and facilities related thereto, to the end that the Issuer may be able to promote the economic growth of the State of Florida, increase opportunities for gainful employment and otherwise contribute to the welfare of the State of Florida and its inhabitants, and to finance the cost of such projects by the issuance of its revenue bonds. B. General Development Utilities, Inc., a Florida corporation (the "Bor- rower") wishes to finance the acquisition, construction and equipping of certain capital ^ ^*—P..stituting industrial facilities for the furnishing of water or for the collection, storage, treatment, and final disposition of sewage, or both (the "Project"). LK L -9/06/83-#218B Rev.9/15/83 Rev.9/16/83 -1- 0• C. The location of the Project in the Issuer's area of operation shall make a significant contribution to the economic growth of the area of operation of the Issuer, and shall provide gainful employment. The Project will constitute an "industrial or manufac- turing plant" within the meaning of the Act. D. The appropriate governmental entities and utility providers are capable of providing when needed all the necessary public facilities, utilities and services that will be necessary for the construction, operation, repair and maintenance of the Project and on account of any increase in population or other circumstances resulting from the Project. E. Adequate provision is made under the provisions of the Loan Agreement for the operation, repair and maintenance of the Project at the expense of the Borrower, and for the payment of the principal and premium, if any, and interest on the Bonds. F. The principal of and premium, if any, and interest on the Bonds and all payments required under the Loan Agreement and the Indenture shall be payable solely from the Trust Estate as defined in the Indenture, including the Guarantee, and the Issuer shall never be required to (i) levy ad valorem taxes on any property within its territorial limits to pay the principal of and premium, if any, and interest on the Bonds or to make any other payments provided for under the Loan Agreement and the Indenture; (ii) pay the same from any funds of the Issuer other than the Trust Estate, including the Guarantee; or (iii) require or enforce any payment or performance by the Borrower as provided by the Indenture or the Loan Agreement unless the Issuer's expenses in respect thereof shall be paid from moneys derived under the Loan Agreement or shall be advanced to the Issuer for such purpose, and the Issuer shall receive indemnity to its satisfaction. Such Bonds shall not constitute a lien upon any property owned by or situated within the territorial limits of the Issuer except the Trust Estate in the manner provided in the Loan Agreement and the Indenture. G. Giving due regard to the ratio of the Guarantor's and Borrower's current assets to their current liabilities, net worth, earning trends, coverage of all fixed charges, the nature of their business and the industry in which they are involved, their inherent stability, the guarantee of the Bonds by another financially responsible corporation, and all other factors determinative of the Guarantor's and Borrower's capabilities, financial and otherwise, of fulfilling its obligations consistently with the purposes of the Act, the Borrower is financially responsible and fully capable and willing to fulfill its obligations under the Loan Agreement, including the obligation to make payments thereunder in the amounts and at the times required pursuant to the terms of the Loan Agreement and the obligation to operate, repair and maintain the Project at its own expense, and the Borrower is desirous of serving the purposes of the Act and is willing and capable of fully performing all other obligations and responsibilities imposed upon it pursuant to the provisions of the Loan Agreement. H. The payments to be made by the Borrower to the Trustee under the Loan Agreement will be sufficient to pay all principal of and interest on and premium, if any, for the Bonds, as the same shall become due, and to make all other payments required by the Loan Agreement and the Indenture. LKL-9/15/83-# 218BA -2- I. The costs to be paid from the proceeds of the Bonds will be costs of a project within the meaning of the Act. J. The interest on the Bonds will be exempt from federal income taxation under existing laws of the United States. SECTION 4. FINANCING OF THE PRO'?CT AUTHORIZED. The financing of the cost of the Project in the manner provided in the Loan Agreement is hereby authorized. SECTION 5. AUTHORIZATION OF BONDS. Obligations of the Issuer to be known as "Variable Rate Demand Utility Revenue Bonds (General Development Utilities, Inc. Project)" (the 'Bonds"), are hereby authorized to be issued in an aggregate principal amount not exceeding Four Thousand Twenty Hundred Thousand Dollars ($4,020,000), in the form and manner described in the Indenture. The Bonds shall be dated such date and mature in such years and amounts, will contain such redemption provisions, will bear interest at such rates (not exceeding the maximum interest rate permitted by the Act or by other applicable provision of law), and will be payable on such dates, as provided in the Indenture or by subsequent resolution of the Issuer adopted prior to the sale of each installment of the Bonds. The Issuer hereby declares its intent to issue and sell the Bonds all at one time or in installments from time to time. SECTION 6. AUTHORIZATION OF EXECUTION AND DELIVERY OF LOAN AGREEMENT. The Loan Agreement, in substantially the form thereof attached hereto as Exhibit B, with such changes, alterations and corrections as may be recommended by counsel to the Issuer and as may be approved by the Chairman and the Clerk of the Board of County Commissioners (the 'Board") of the Issuer, such approval to be presumed by their execution thereof, is hereby approved by the Issuer, and the Issuer hereby authorizes and directs said Chairman to execute and said Clerk to attest under the seal of the Issuer the Loan Agreement and to deliver to the Borrower the Loan Agreement, all of the provisions of which, when executed and delivered by the Issuer as authorized herein and by the Borrower duly authorized, shall be deemed to be a part of this instrument as fully and to the same extent as if incorporated verbatim herein. SECTION 7. TRUSTEE, REGISTRAR AND PAYING AGENT. The Trustee, Registrar and Paying Agent with respect to the Bonds herein authorized to be issued shall be BankAmerica `frust Company of New York, New York, New York. SECTION 8. AUTHORIZATION OF EXECUTION AND DELIVERY OF IN- DENTURE. As security for the payment of the principal of and premium, if any, and interest on the Bonds, pro rats and without preference of any one of the Bonds over any other thereof, the Indenture, in substantially the form thereof attached hereto as Exhibit A, with such changes, alterations and corrections as may be recommended by counsel to the Issuer and as may be approved by the Chairman and Clerk of the Board of the Issuer, such approval to be presumed by their execution thereof, is hereby approved by the Issuer, and the Issuer hereby authorizes and directs said Chairman to execute and said Clerk to attest under the seal of the Issuer the Indenture and to deliver to the Trustee the Indenture, all of the provisions of which, when executed and delivered by the Issuer as hcrein and by the Trustee duly authorized, shall be deemed to be a part of this instrument as fully and to the same extent as if incorporated verbatim herein. LKL-9/16/83-#218BA -3- i® The Issuer does hereby provide in the Indenture the terms, conditions, covenants, rights, obligations, duties and agreements to and for the benefit of the owners of the Bonds, the Issuer, the Borrower and the Trustee. SECTION 9. APPROVAL OF GUARANTEE, REMARKETING AGREEMENT AND LETTER OF CREDIT. The form of Guarantee Agreement attached hereto as Exhibit C, by the Borrower and General Developmrnt Corporation, jointly and severally, as Guarantors, to the Trustee and the Issuer, and the form of Remarketing Agreement, attached hereto as Exhibit D, naming Citibank, N.A., New York, New York as Remarket- ing Agent, each to be dated of even date with the Loan Agreement and the Indenture, are hereby accepted, and the Chairman and the Clerk of the Board of the Issuer are authorized and directed to execute and deliver the Guarantee Agreement and Remarket- ing Agreement, substantially in such form, with such changes, alterations and corrections as may be recommended by counsel to the Issuer and approved by the Chairman and Clerk of the Board, their approval to be evidenced by their execution thereof. As additional security for such Bonds the Borrower and General Development Corporation shall obtain a Letter of Credit as described in the Indenture. A form of such Letter of Credit is attached hereto as Exhibit E, and is hereby approved, and the Trustee is requested to accept delivery of the Letter of Credit and to take action thereunder as provided therein and in the Indenture. SECTION 10. NO PERSONAL LIABILITY. No covenant, stipulation, obligation or agreement herein contained or contained in the Loan Agreement, the Remarketing Agreement, the Guarantee or the Indenture shall be deemed to be a covenant, stipulation, obligation or agreement of any member, agent or employee of the Issuer or its governing body in his individual capacity, and neither the members of the governing body of the Issuer nor any official executing the Bonds shall be liable personally thereon or be subject to any personal liability or accountability by reason of the issuance thereof. SECTION 11. NO THIRD PARTY BENEFICIARIES. Except as herein or in the Loan Agreement, the Remarketing Agreement, the Guarantee or the Indenture otherwise expressly provided, nothing in this instrument or in the Loan Agreement, the Remarketing Agreement, the Guarantee or the Indenture, expressed or implied, is intended or shall be construed to confer upon any person or firm or corporation other than the Issuer, the Borrower, the owners of the Bonds and the Trustee any right, remedy or claim, legal or equitable, under and by reason of this instrument or any provision thereof or of the Loan Agreement, the Remarketing Agreement, the Guarantee or the Indenture; this instrument, the Loan Agreement, the Remarketing Agreement, the Guarantee and the Indenture intended to be and being for the sole and exclusive benefit of the Issuer, the Borrower, the owners from time to time of the Bonds and the Trustee. SECTION 12. PREREQUISITES PERFORMED. All acts, conditions and things relating to the adoption of this instrument, to the issuance of the Bonds, and to the execution of the Loan Agreement, the Remarketing Agreement, the Guarantee and the Indenture, required of the Issuer by the Constitution or laws of the State of Florida to happen, exist and be performed precedent to the adoption hereof, and precedent to the issuance of the Bonds, and to the execution and delivery of the Loan Agreement, the Remarketing Agreement, the Guarantee and the Indenture, have happened, exist and have hnnn norfnrmPri as so required. LKL-9/15/83-# 218BA -4- •• SECTION 13. GENERAL AUTHORITY. The members of the governing body of the Issuer and its officers, attorneys, engineers or other agents or employees are hereby authorized to do all acts and things required of them by this instrument, the Loan Agreement, the Remarketing Agreement, the Guarantee or the Indenture, or desirable or consistent with the requirements hereof or such Loan Agreement, the Remarketing Agreement, the Guarantee or Indenture, for the full, punctual and complete performance of all the terms, covenants and agreements containr i in the Bonds, the Loan Agreement, the Remarketing Agreement, the Guarantee, the Indenture, and this instrument. SECTION 14. SALE OF BONDS. The Bonds shall be issued and sold at one time or in installments from time to time to such persons and upon such terms as shall be set forth and approved by subsequent resolution of the Issuer adopted prior to the sale of the applicable installment of the Bonds. SECTION 15. ARBITRAGE. The Issuer covenants that it will not direct the Trustee to make any investments pursuant to or under the Loan Agreement or the Indenture which could cause the Bonds to be "arbitrage bonds" within the meaning of Section 103(c)(2) of the Internal Revenue Code of 1954, as amended, and the applicable regulations issued thereunder. SECTION 16. THIS INSTRUMENT CONSTITUTES A CONTRACT. The Issuer covenants and agrees that this instrument shall constitute a contract between the Issuer and the owners from time to time of any of the Bonds then outstanding and that all covenants and agreements set forth herein and in the Loan Agreement, the Remarketing Agreement, the Guarantee and the Indenture to be performed by the Issuer shall be for the equal and ratable benefit and security of all owners of the Bonds without privilege, priority or distinction as to lien or otherwise of any of the Bonds over any other of the Bonds. SECTION 17. SEVERABILITY OF INVALID PROVISIONS. If any one or more of the covenants, agreements or provisions herein contained shall be held contrary to any express provisions of law or contrary to the policy of express law, through 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 Bonds issued hereunder. SECTION 18. REPEALING CLAUSE. All resolutions or parts thereof of the Issuer in conflict with the provisions herein contained are, to the extent of such conflict, hereby superseded and repealed. SECTION 19. EFFECTIVE DATE. This instrument shall take effect immediately upon its adoption. LKL-9/15/83-#218BA -5- The foregoing resolution was offered by Camnissioner Bowan who moved its adoption. The motion was seconded by CaRnissioner Lyons and, upon being put to a vote, the vote was as follows: Chairman Richard N. Bird - Absent Vice -Chairman Don C. Scurlock, Jr. - Aye Ccrimissioner Margaret C. Bowman - Aye Cannissioner Patrick B. Lyons - Aye Commissioner William C. Wodtke, Jr. - Absent PASSED AND APPROVED by the Board of County Commissioners of Indian River County, Florida, this 5th day of October, 1983. Attest.: C e- FRIDA WRIGHfi, Clerk I . • SMD ' • • •• INDIAN RIVER COUNTY, FWRIDA By Z,, C i DON C. SCURMCK, JR. (L/� Vice -Chairman Board of County Commissioners