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2012-28RESOLUTION NO. 2012-28 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA ACCEPTING THE PROPOSAL OF SUNTRUST BANK TO PROVIDE THE CITY WITH A LOAN IN A NOT TO EXCEED PRINCIPAL AMOUNT OF $9,885,000 TO REFINANCE THE COSTS OF ACQUISITION AND CONSTRUCTION OF VARIOUS CAPITAL IMPROVEMENTS AND TO PAY COSTS AND EXPENSES OF ISSUING SUCH DEBT; APPROVING THE FORM OF, AND AUTHORIZING THE EXECUTION AND DELIVERY OF, A LOAN AGREEMENT, INCLUDING A PROMISSORY NOTE ATTACHED THERETO IN ORDER TO EVIDENCE SAID LOAN; AUTHORIZING THE REPAYMENT OF THE SERIES 2012 NOTE UNDER THE LOAN AGREEMENT ONLY FROM NON -AD VALOREM FUNDS APPROPRIATED FOR SUCH PURPOSE; DELEGATING CERTAIN AUTHORITY TO THE CITY MANAGER AND CITY CLERK; AUTHORIZING THE EXECUTION AND DELIVERY OF OTHER DOCUMENTS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA: SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of the Act (as defined herein). SECTION 2. DEFINITIONS. When used in this Resolution, capitalized terms not otherwise defined herein shall have the meanings set forth in the Loan Agreement (as defined herein), unless the context clearly indicates a different meaning. "Act" shall mean the Florida Constitution, Chapter 166, Florida Statutes, the City's Charter, the Ordinance and other applicable provisions of law. "Bank" shall mean SunTrust Bank, and its successors and assigns. "Bank Proposal" shall mean the Bank's proposal dated June 8, 2012, attached hereto as Attachment A. "City" shall mean the City of Aventura, Florida. Resolution No. 2012 -28 Page 2 "City Clerk" shall mean the City Clerk of the City or such person's designee. "City Manager" shall mean the City Manager of the City or such person's designee. "Commission" shall mean the City Commission of the City. "Financial Advisor" shall mean Dunlap & Associates, Inc. "Invitation to Bid" shall mean the City's Invitation to Bid No. 12- 05 -21 -2 dated April 22, 2012. "Loan Agreement" shall mean the Loan Agreement to be executed between the City and the Bank, the form of which is attached hereto as Attachment B. "Mayor" shall mean the Mayor of the City or, in his or her unavailability or absence, the Vice Mayor of the City or such person's designee. "Non -Ad Valorem Funds" means all revenues of the City derived from any source whatsoever other than ad valorem taxation on real or personal property, which are legally available to pay principal of and interest on the Series 2012 Note. "Ordinance" means the Ordinance adopted by the Commission on June 14, 2012, authorizing the borrowing of money as required by Section 4.03(b) of the City Charter. "Refunded Debt" shall mean the obligations of the City pursuant to the Loan Agreement dated as of September 1, 2002 between the Florida Intergovernmental Finance Commission and the City. "Series 2012 Note" shall mean the Promissory Note to be executed by the City in favor of the Bank, the form of which is attached to the Loan Agreement as Attachment A. The words "herein," "hereby," "hereto," "hereof," and any similar terms shall refer to this Resolution. Words importing the singular number include the plural number, and vice versa. SECTION 3. FINDINGS. It is ascertained, determined and declared: (A) The Florida Intergovernmental Finance Commission (the "FIFC ") issued its Florida Intergovernmental Finance Commission Capital Revenue Bonds, 2002 Series A and loaned a portion of the proceeds thereof to the City pursuant to a Loan Agreement, 2 Resolution No. 2012 -28 Page 3 dated as of September 1, 2002, between the FIFC and the City (the "Refunded Debt Loan Agreement "). (B) The Refunded Debt was borrowed for the purpose of (a) financing the acquisition of the site for, and acquisition, construction and equipping of, a charter school owned by the City, and the completion of the construction and equipping of a community /recreation center, (b) paying capitalized interest on the Refunded Debt and (c) paying certain fees and costs incurred in connection with the foregoing and the issuance of the Refunded Debt, including premiums for an insurance policy and surety bond. (C) The City has determined that it is in its best interest to refinance the Refunded Debt in order to achieve debt service savings. (D) On April 22, 2012, the City issued its Invitation to Bid to provide the City with the necessary funds to refinance the Refunded Debt and pay costs of issuance. (E) In response to the City's Invitation to Bid, the Bank submitted its proposal to provide the City with a loan in the principal amount of not to exceed $10,000,000 for the principal purpose of refinancing the Refunded Debt. (F) Pursuant to Resolution No. 2012 -26, adopted on June 5, 2012, the City ranked the Bank's Proposal as the top ranked proposal and authorized the City Manager to negotiate favorable terms and fees with the Bank. (G) The City Manager has negotiated favorable terms and fees with the Bank and, upon recommendation of the City's Financial Advisor, recommends the acceptance of the proposal with the Bank, in the form attached hereto as Attachment A. (H) The City has determined that is necessary, desirable and in the best interests of the City that the City issue its Promissory Note (the "Series 2012 Note ") in the principal amount of not to exceed $9,885,000 for the principal purpose of refinancing the Refunded Debt. (I) The City has determined that it is in the best interest of the health, safety and welfare of the City and the inhabitants thereof that the City covenant to budget and appropriate from its Non -Ad Valorem Funds in amounts sufficient to repay the principal of and interest on the Series 2012 Note when due as provided herein and in the Loan Agreement. The amounts borrowed under the Loan Agreement shall be repaid solely from Non -Ad Valorem Funds in the manner permitted under the Ordinance and to the 3 Resolution No. 2012 -28 Page 4 extent set forth in the Series 2012 Note and the Agreement and the ad valorem taxing power of the City will never be necessary or authorized to pay said amounts. (J) The Series 2012 Note shall not constitute a general obligation or indebtedness of the City as a "bond" within the meaning of any provision of the Constitution of the State, but shall be and is hereby declared to be a special, limited obligation of the City, the principal of and interest on which is payable solely from the Non -Ad Valorem Funds in the manner provided herein, and the principal of and interest on the Series 2012 Note and all other payments provided for herein will be paid solely from the Non -Ad Valorem Funds, and it will never be necessary or authorized to levy taxes on any real property of or in the City to pay the principal of or interest on the Series 2012 Note or other payments provided for herein. Furthermore, neither the Series 2012 Note nor the interest thereon shall be or constitute a lien upon any other property of or in the City. (K) The Series 2012 Note is hereby designated as a "qualified tax - exempt obligation" for purposes of Section 265(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code "). It is not reasonably anticipated that more than $10,000,000 of tax - exempt obligations (as defined in Section 265(b)(3) of the Code) will be issued by the City, or an entity issuing on behalf of the City whose obligations would be taken into consideration for the purposes of said Section 265(b)(3) of the Code, during calendar year 2012. SECTION 4. RESOLUTION TO CONSTITUTE CONTRACT. In consideration of the purchase and acceptance of the Series 2012 Note authorized to be issued pursuant to this Resolution and the Loan Agreement by those who shall be the Bank from time to time, this Resolution shall constitute a contract between the City and the Bank. SECTION 5. ACCEPTANCE OF PROPOSAL. The City Manager, on behalf of the City and in accordance with the terms of Resolution No. 2012 -26 adopted by the City on June 5, 2012 and in reliance on the advice of the City's Financial Advisor, has determined that the Bank's Proposal is in the best interest of the City considering the interest rate, term, costs and expenses, covenants, prepayment features and other terms contained therein, and that it complies in all respects with the Invitation to Bid. The City hereby accepts the Bank Proposal, attached as Attachment A hereto, to provide the City with a loan in the principal amount of not to exceed $10,000,000. SECTION 6. AUTHORIZING AND AWARD OF SERIES 2012 NOTE. The issuance by the City of the Series 2012 Note to secure the repayment of the Loan F11 Resolution No. 2012 -28 Page 5 being provided by the Bank in accordance with the terms of the Loan Agreement, to bear interest at a rate determined in accordance with the provisions of the Bank's Proposal and not exceeding the maximum legal rate per annum, to be payable, to mature, to be subject to redemption and to have such other characteristics as are provided in the Loan Agreement; and secured by a covenant of the City to budget and appropriate from legally available Non -Ad Valorem Funds each year monies sufficient to pay the principal and interest on such Series 2012 Note as set forth in the Loan Agreement, is hereby authorized and approved. Because of the characteristics of the Series 2012 Note and prevailing market conditions, it is in the best interest of the City to negotiate with the Bank to purchase the Series 2012 Note at a private negotiated sale. Prior to the issuance of the Series 2012 Note the City shall receive from the Bank the disclosure required by Section 218.385, Florida Statutes. SECTION 7. APPROVAL OF FORM OF LOAN AGREEMENT AND SERIES 2012 NOTE. The Loan Agreement, in substantially the form attached hereto as Attachment B, is hereby approved. The City hereby authorizes the City Manager and the City Clerk to execute and deliver on behalf of the City the Loan Agreement, with such changes, insertions and additions as the City Manager may approve, their execution thereof being evidence of such approval. In order to evidence the Loan under the Loan Agreement it is necessary to provide for the execution of the Series 2012 Note. The City hereby authorizes the City Manager and the City Clerk to execute and deliver on behalf of the City the Series 2012 Note in substantially the form attached to the Loan Agreement as Attachment A, with such changes, insertions and additions as the City Manager may approve, their execution thereof being evidence of such approval. SECTION 8. LIMITED OBLIGATION. The obligation of the City to repay the Series 2012 Note under the Loan Agreement is a limited and special obligation payable from Non -Ad Valorem Funds solely in the manner and to the extent set forth in the Loan Agreement and shall not be deemed a pledge of the faith and credit or taxing power of the City and such obligation shall not create a lien on any property whatsoever of or in the City. SECTION 9. AUTHORIZING OF REFINANCING. The refinancing of the Refunded Debt is hereby authorized by the Commission. The Mayor, City Manager, City Attorney, City Clerk, City staff, the Financial Advisor and the City's bond counsel, are each hereby authorized to take all action necessary in connection with the refinancing of the Refunded Debt. SECTION 10. FEASIBILITY STUDY. Prior to the issuance of any debt by the City, Section 4.10 of the City's Charter requires (A) the approval of five City 5 Resolution No. 2012 -28 Page 6 Commissioners, and (B) the receipt by the City Commission of a feasibility study from the City Manager and the Finance Director concluding that sufficient revenues are available to repay the indebtedness and that the funds are being borrowed for a valid public purpose. On April 19, 2012, June 5, 2012 and June 14, 2012, the City Manager and Finance Director presented information to the City Commission which satisfies the feasibility study requirements. Further, on each said date, at least five City Commissioners approved the issuance of the Series 2012 Note. SECTION 11. GENERAL AUTHORIZATION. The Mayor, the City Manager, the City Clerk, the Finance Director and other employees or agents of the City are authorized to execute and deliver such documents, instruments and contracts, and are authorized and directed to do all acts and things required by this Resolution as may be necessary to effectuate the purpose and intent of this Resolution. SECTION 12. REPEAL OF INCONSISTENT DOCUMENTS. All ordinances, resolutions or parts of each in conflict with this Resolution are superseded and repealed to the extent of such conflict. SECTION 13. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. The foregoing Resolution was offered by Commissioner Joel, who moved its adoption. The motion was seconded by Vice Mayor Holzberg and upon being put to a vote, the vote was as follows: Commissioner Zev Auerbach yes Commissioner Bob Diamond yes Commissioner Billy Joel yes Commissioner Michael Stern absent Commissioner Luz Weinberg yes Vice Mayor Teri Holzberg yes Mayor Susan Gottlieb yes C Resolution No. 2012 -28 Page 7 PASSED AND ADOPTED this 14th day of June, 2012. eTTRCT- APPROVED AS TO FORM AND LEGAL SUFFICIENCY: n �=d p?) "4`n- CITY ATTORNEY 7 SAN GOTTLIEB, MAYOR Resolution No. 2012 -28 Page 8 ATTACHMENT A BANK PROPOSAL Resolution No. 2012 -28 Page 9 ATTACHMENT B FORM OF LOAN AGREEMENT