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HomeMy WebLinkAbout2005-47 • Final 12-20-OS RESOLUTION 2005-47 RESOLUTION AUTHORIZING THE ISSUANCE OF GENERAL OBLIGATION PUBLIC IMPROVEMENT BONDS IN AN AMOUNT NOT TO EXCEED $1,000,000 OF THE TOWN OF PULASKI AND A NOTE IN ANTICIPATION THEREOF, TO BE SOLD TO WACHOVIA BANK, NATIONAL ASSOCIATION, AND PROVIDING FOR THE FORM, DETAILS AND PAYMENT OF THE NOTE, AND AUTHORIZING CERTAIN RELATED ACTIONS The Council of the Town of Pulaski, Virginia (the "Council") has previously acquired an industrial park, pursuant to Section 15.2-1802 of the Code of Virginia of 1950, as amended (the "Code"), and is authorized to construct improvements to its real estate pursuant to Section 15.2-1800 (D) of the Code. The Council has determined it necessary and expedient to make improvements (the "Project") to the industrial park of the Town of Pulaski, Virginia (the "Town") and to issue general obligation bonds of the Town in an amount not to exceed $1,000,000 to provide funds, together with other available funds, to finance the costs of the Project. The Council expects to pay a portion of such costs before the bonds are issued and desires to finance that portion by the issuance of a note, in anticipation of the bond issue and the receipt of the proceeds from the sale of the bonds, in accordance with Section 15.2-2628 of the Public Finance Act of 1991 (Chapter 26, Title 15.2, Code of Virginia of 1950, as amended) (the "Act"). On December 20, 2005, the Council held a public hearing on the proposed bond issue and the bond anticipation note in accordance with Section 15.2-2606 of the Public Finance Act of 1991. BE IT RESOLVED BY THE COUNCIL OF THE TOWN OF PULASKI, VIIZGINIA: Section 1. Authorization of Bonds. Pursuant to the Constitution of Virginia and the Public Finance Act of 1991, there are hereby authorized to be issued general obligation bonds (the "Bonds") of the Town of Pulaski (the "Town") in a principal amount not to exceed $1,000,000 (the "Maximum Amount"), to provide funds to finance the cost of improvements to the industrial park of the Town (the "Project"). To the extent allowed under Section 15.2-2601 of the Public Finance Act of 1991 (Chapter 26, Title 15.2, Code of Virginia of 1950, as amended) (the "Act"), the Council of the Town (the "Council") hereby elects to issue the Bonds under the provisions of the Act without regard to the requirements, restrictions or other provisions contained in any charter or local or special act applicable to the Town. The form and detail of the Bonds and their award and issuance shall be in accordance with a resolution or resolutions to be adopted by the Council. • Section 2. Authorization of Note. It is hereby determined to be advisable, necessary and expedient for the Town to borrow an amount not to exceed the Maximum Amount in anticipation of the issuance of the Bonds and the receipt of proceeds from the sale of the Bonds. Pursuant to the Constitution of Virginia and the Act, there is hereby authorized to be issued and sold a bond anticipation note of the Town in a principal amount not to exceed the Maximum Amount (the "Note"). The Note shall be payable from the proceeds from the sale of the Bonds and any other funds lawfully available and appropriated for such purpose. The proceeds of the Bonds shall be used for no other purpose until the Note has been retired or provision for its retirement has been made. For the benefit of the holder of the Note, the Council agrees that the Town will take all steps necessary or desirable to meet the terms and conditions to have the Bonds issued and the proceeds from their sale available by the maturity date of the Note. To the extent permitted by Section 15.2-2601 of the Act, the Council hereby elects to issue the Note under the provisions of the Act without regard to the requirements, restrictions or other provisions contained in any charter or local or special act. Section 3. Details of the Note. (a) The Note shall be issued as a fully registered note without coupons. Each of the Mayor or Vice Mayor of the Town is authorized to establish the principal amount of the Note; provided, however, that the amount shall not exceed the Maximum Amount. (b) The Note shall bear interest from its dated date at the per annum rate and the principal of and the interest on the Note shall be due and payable on dates determined in accordance with (c) below. (c) Either of the Mayor or Vice Mayor of the Town is hereby authorized to determine and approve all of the other final details of the Note, including, but not limited to, its dated date, original principal amount, the interest rate or rates on the Note (which maybe calculated by reference to a LIBOR index) and payment dates of principal and interest, provided that the original principal amount of the Note shall not exceed the Maximum Amount, the interest rate shall not exceed twelve percent (12%) per annum, and the maturity date shall not be Later than five (5) years after its dated date. Such officer's determination and approval of the final details of the Note shall be evidenced conclusively by such officer's execution and delivery of the Note in accordance with this resolution. Section 4. Redemption. The Note shall be subject to prepayment in whole or in part at the option of the Town before its stated maturity at any time, without penalty or premium. Section 5. Execution of Note. The Note shall bear the manual signature of the Mayor or Vice Mayor of the Town and shall bear a manually impressed or imprinted facsimile of the seal of the Town, attested by the manual signature of the Clerk of the Town. In case any officer whose signature shall appear on the Note shall cease to be such officer before the delivery of the Note, such signature shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until such delivery. The Note may be signed by such persons as at the actual time of the execution thereof shall be the proper officers to sign the Note although at the date of the Note such persons may not have been such officers. Section 6. Form of Note. The Note shall be in substantially the form attached hereto as Exhibit A, with such variations, insertions and omissions as shall be consistent herewith, the execution and delivery of the Note constituting conclusive evidence that any variations, insertions, or omissions are consistent herewith. Section 7. Registrar. The Town Manager of the Town is hereby appointed Registrar for the Note. Section 8. Registration and Transfer. The Town shall cause books for the registration and transfer of the Note to be kept at the office of the Registrar, and the Town hereby instructs the Registrar to keep such books and to make such registrations and transfers under such reasonable regulations as the Town or the Registrar may prescribe. Transfer of the Note may be registered upon books maintained for that purpose at the office of the Registrar. Prior to due presentment for registration of transfer the Registrar shall treat the registered owner as the person exclusively entitled to payment of principal and interest and the exercise of all other rights and powers of the owner. • Upon surrender for transfer of the Note at such office, the Mayor and the Clerk shall execute and the Registrar shall deliver in the name of the transferee a new Note, subject in each case to such reasonable regulations as the Council or the Registrar may prescribe. If presented for transfer the Note (if so required by the Council or the Registrar) shall be accompanied by a written instrument or instruments of transfer in form and substance reasonably satisfactory to the Council and the Registrar, duly executed by the registered owner or by his duly authorized attorney-in-fact or legal representative. The Note may not be registered to bearer. Neither the Council nor the Registrar shall be required to issue or transfer the Note for a period of fifteen days next preceding the maturity date of the Note. The new Note delivered upon any transfer shall be a valid obligation of the Town, evidencing the same debt as the Note surrendered, shall be secured by this Resolution and entitled to all of the security and benefits hereof to the extent as the Note surrendered. Section 9. Cogs for Transfer. No service charge shall be made for any transfer of the Note, but the Council may require payment of a sum sufficient to cover any tax or other governmental charge that maybe imposed in relation thereto. • • Section 10. Sale and Award of Note; Disposition of Proceeds. (a) The proposal of Wachovia Bank, National Association, to purchase the Note for an amount equal to the principal amount of the Note is hereby determined, after mature consideration of the methods of sale of the Note and current conditions of the municipal bond market, to be in the best interest of the Town, and the Mayor or Vice Mayor of the Town is hereby authorized to award the Note to such bank on such terms and conditions as such officer may determine to be in the Town's best interest. Such officer's determination of the terms and conditions of the award of the Note shall be evidenced conclusively by such officer's execution and delivery of the Note in accordance with this resolution. The Mayor and Vice Mayor and the Clerk of the Town are hereby authorized and directed to take all proper steps to have the Note prepared and executed in accordance with the terms of this resolution and to be delivered to the Bank upon payment of the initial disbursement of principal of the Note. (b) Proceeds derived from the sale of the Note shall be paid to, or at the direction of, the Town Manager who shall promptly deposit the funds in a bank or other depository to the credit of the Town. Such proceeds shall be accounted for through a fund designated "Industrial Park Improvement Fund" (the "Improvement Fund"), to be applied to the costs of capital improvements (the "Project") to the industrial park of the Town and the costs of issuance of the Note. Withdrawals shall be made from the Improvement Fund only after the Town Manager or his designee has certified that the amount being • withdrawn from the Improvement Fund is being used to pay bona fide costs of the Project or bona fide costs of issuing the Note. (c) The Town Manager shall preserve at his office accurate records available at all times which show that the proceeds from the sale of the Note and investment earnings thereon were used for the purposes set forth in this section. Barring unforeseen circumstances, any balance of the original proceeds of the Note and investment earnings thereon remaining in the Improvement Fund upon the earlier of substantial completion of the Project or three years after the issuance date of the Note shall be used only for redemption of the Note. Section 11. Payment of Note; Pledge of Full Faith and Credit. (a) The Town shall pay promptly, as provided herein, the principal of and interest on the Note from the proceeds of the sale of the Bonds or other available funds. To the extent allowed by law, the proceeds from the sale of the Bonds are hereby pledged to the payment of the Note. (b) For the prompt payment of the principal of and premium, if any, and the interest on the Note as the same shall become due, the full faith and credit of the Town are hereby irrevocably pledged, and in each year while the Note shall be outstanding there shall be levied and collected in accordance with law an annual ad valorem tax upon all taxable property in the Town subject to local taxation sufficient in amount to provide for the payment of the principal of and premium, if any, and the interest on the Note as such principal, premium, if any, and interest shall become due, which tax • shall be without limitation as to rate or amount and in addition to all other taxes authorized to be • levied in the Town to the extent other funds of the Town are not lawfully available and appropriated for such purpose. Section 12. Maintenance ofTax-Exempt Status. (a) No Adverse Action. The Town shall not take any action that would adversely affect the exemption of interest on the Note from Federal income taxation. The Town shall, to the extent permitted by Virginia law, take all actions necessary to maintain the tax-exempt status of interest on the Note under Federal or Virginia law, including all actions necessary to comply with Section 103 or Sections 141 through 150 of the Internal Revenue Code of 1986, as amended (the "Code") or the regulations promulgated by the Treasury Department with respect thereto. Without limiting the generality of the foregoing, the Town shall comply with any provision of law which may require the Town at any time to rebate to the United States any part of the earnings derived from the investment of the gross proceeds of the Note, unless the Town receives an opinion of nationally recognized bond counsel that such compliance is not required to prevent interest on the Note from being includable in the gross income for Federal income tax purposes of the registered owners thereof under existing law. (b) Arbitrage/Investment: The Town shall not take or approve any action, investment or use of the proceeds of the Note that would cause the Note to bean "arbitrage bond" within the meaning of Section 148 of the Code and the regulations thereunder. The Town, barring unforeseen • circumstances, shall not request or approve the use of the proceeds of the Note other than in accordance with the Town's "non-arbitrage" certificate delivered at the time of the issuance of the Note. Section 13. Desi ation as Qualified Tax-Exempt Obligation. The Note is not a private activity bond and is hereby designated by the Council as a Qualified Tax-Exempt Obligation, as defined in Section 265(b)(3) of the Code. The Council hereby represents and covenants as follows: (i) The Council will in no event designate more than $10,000,000 of obligations as qualified tax-exempt obligations in the calendar year in which the Note is issued, for the purpose of Section 265(b)(3) of the Code; (ii) The Town, all its "subordinate entities," within the meaning of Section 265(b)(3) of the Code, and all entities which issue tax-exempt bonds on behalf of the Town and such subordinate entities have together not authorized to be issued more than $10,000,000 oftax-exempt obligations in the current calendar year (not including "private activity bonds," as defined in Section 141 of the Code, other than "qualified 501(c)(3) bonds," as defined in Section 145 of the Code), including the Note; (iii) Barring circumstances unforeseen as of the date of delivery of the Note, the Town will not issue tax-exempt obligations itself or approve the issuance of tax-exempt obligations of any of such other entities if the issuance of such tax-exempt obligations would, when • aggregated with all other tax-exempt obligations theretofore issued by the Town and such other entities in the current calendar year, result in the Town and such other entities having issued a total of more than $10,000,000 oftax-exempt obligations in such year (not including private activity bonds, other than qualified 501(c)(3) bonds), including the Note; and (iv) The Council has no reason to believe that the Town and such other entities will issue in the current calendar year tax-exempt obligations in an aggregate amount that will exceed such $10,000,000 limit; provided however, that if the Town receives an opinion of nationally recognized bond counsel that compliance with any covenant set forth in (i) or (iii) above is not required for the Note to be a qualified tax-exempt obligation, the Town need not comply with such restriction. Section 14. Non-Arbitrage and Other Certificates. The Mayor, Vice Mayor and the Town Manager are each authorized to execute appropriate certificates setting forth, among other things, the expected use and investment of the proceeds of the Note and containing such covenants as maybe necessary in order to comply with the provisions of the Internal Revenue Code of 1986, as amended (the "Code"), including the provisions of Section 148 of the Code and applicable regulations related to "arbitrage bonds." Such certificates may also contain certain elections with regard to the Code and such officers are hereby authorized to make such elections on behalf of the Town and the Council. Section 15. Reimbursement. It is hereby found and declared that the Council reasonably • expects to reimburse capital expenditures made with respect to the Project ("Expenditures" with proceeds of the Note. The maximum principal amount of the Note expected to be issued for the Project is $1,000,000. The Town will make a reimbursement allocation, which is a written allocation that evidences the use of proceeds of the Note to reimburse an Expenditure, no later than 18 months after the latter of (a) the date on which the Expenditure is paid or (b) the Project is placed in service or abandoned, but in no event more than three (3) years after the date on which the Expenditure is paid. It is recognized that exceptions are available for certain "preliminary expenditures", costs of issuance, certain de minimis amounts, expenditures by "small issuers" and expenditures for construction projects of at least five years. This resolution is intended to constitute the "official intent" of the Council under Section 1.150-2 of the regulations promulgated under the Internal Revenue Code of 1986, as amended. Section 16. Contract with Noteholder. The provisions of this resolution shall constitute a contract between the Town and the holder of the Note for so long as the Note is outstanding. Section 17. Authority of Officers and Agents. The officers and agents of the Town shall do all acts and things required by them of this resolution and the Note for the complete and punctual performance of all the terms, covenants and agreements contained therein. The appropriate officers of the Town are further authorized and empowered to take such other action as they may consider necessary or desirable to carry out the intent and purpose of this resolution, and the issuance of the . Note. • Section 18. Limitation of Liability of Officials of Town. No covenant, condition or agreement contained herein shall be deemed to be a covenant, agreement or obligation of an officer, employee or agent of the Town in his or her individual capacity, and no officer of the Town executing the Note shall be liable personally on the Note or be subject to any personal liability or accountability by reason of the issuance thereof. No officer, employee or agent of the Town shall incur any personal liability with respect to any other action taken by him or her pursuant to this resolution, provided he or she acts in good faith. Section 19. Conditions Precedent. Upon the issuance of the Note, all acts, conditions and things required by the Constitution and statutes of the Commonwealth of Virginia or this resolution to have happened, exist and to have been performed precedent to or in the issuance of the Note shall have happened, exist and have been performed. Section 20. Headings. Any headings in this resolution are solely for convenience of reference and shall not constitute a part of the resolution nor shall they affect its meaning, construction or effect. Section 21. Severability. If any court of competent jurisdiction shall hold any provision of this resolution to be invalid and unenforceable, such holding shall not invalidate any other provision hereof. • Section 22. Effective Date. This resolution shall take effect immediately. Section 23. Filing of Resolution. The Clerk is hereby authorized and directed to see to the prompt filing of a certified copy of this resolution with the Circuit Court of Pulaski County, Virginia. • • EXHIBIT A FORM OF NOTE UNITED STATES OF AMERICA COMMONWEALTH OF VIRGINIA TOWN OF PULASKI Bond Anticipation Note Dated: December , 2005 The Town of Pulaski, a political subdivision of the Commonwealth of Virginia (the "Town"), for value received, hereby promises to pay to Wachovia Bank, National Association, or registered assigns, the principal sum equal to the aggregate amount of principal advances shown on the attached Certificate of Principal Advances, but not to exceed the sum of ONE MILLION AND 00/ 100 DOLLARS ($1,000,000) • and to pay to the registered owner hereof interest on the unpaid principal from the date of each principal advance shown on the attached Certificate of Principal Advances until payment of the entire principal sum at a rate equal to 50 basis points below the "LIBOR Market Index Rate," as defined below, as in effect from time to time, and the interest rate on this note shall adjust on the same day that a change in the LIBOR Market Index Rate occurs; provided, however, that in no event shall the interest rate on this note exceed twelve percent (12%) per annum. For purposes hereof, "LIBOR Market Index Rate," for any day, is the rate for 1 month U.S. dollar deposits as reported on Telerate page 3750 as of 11:00 a.m., London time, on such day, or if such day is not a London business day, then the immediately preceding London business day (or if not so reported, then as determined by the registered owner of this note from another recognized source or inter bank quotation). Interest shall be computed on the basis of a 365-day year for the actual number of days in the applicable period. Commencing and continuing semiannually thereafter on 1 and 1 in each year, the amount of interest accrued on this note shall be due and payable. If not sooner paid, the principal of and accrued but unpaid interest on this note shall be due and payable on .Any payment on this note shall be applied first to interest accrued to such payment date and then to principal. Principal and interest shall be payable in lawful money of the United States of America to the registered owner. Upon final payment, this note shall be surrendered to the Town Manager, Pulaski, Virginia, who has been appointed Registrar, for cancellation. ~t ~ • This note is subject to prepayment in whole or in part at the option of the Town before its stated maturity at any time, without penalty or premium. This note is issued pursuant to the Constitution and applicable statutes of the Commonwealth of Virginia, including the Public Finance Act of 1991 (Chapter 26, Title 15.2, Code of Virginia of 1950, as amended) (the "Act") and a resolution duly adopted under the Act by the Council of the Town on December 20, 2005 (the "Resolution"). This note is issued in anticipation of the issuance of general obligation bonds in an amount not to exceed $1,000,000 (the "Bonds") and the receipt of proceeds from the sale of the Bonds. The Bonds have been duly authorized by the Resolution. A copy of the Resolution is on file at the office of the Registrar. Reference is hereby made to the Resolution and any amendments to it for the provisions, among others, describing the terms and conditions upon which this note is issued, the rights and obligations of the Town and the rights of the holder of this note. Both principal of and interest on this note are payable from ad valorem taxes to be levied without limitation as to rate or amount on all property in the Town subject to taxation to pay the installments of principal and interest on this note to the extent other funds of the Town are not lawfully available and appropriated for such purpose, and the full faith and credit of the Town are pledged therefore. • The Council of the Town has designated this note as a "Qualified Tax-Exempt Obligation" for purposes of Section 265 of the Internal Revenue Code of 1986, as amended. This note shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia. All acts, conditions and things required by the Constitution and statutes of the Commonwealth of Virginia to happen, exist or be performed precedent to and in the issuance of this note have happened, exist and have been performed, and this note, together with all other indebtedness of the Town, is within every debt and other limit prescribed by the Constitution and statutes of the Commonwealth of Virginia. IN WITNESS WHEREOF, the Town of Pulaski has caused this note to be signed by the manual signature of its Mayor, its seal to be impressed on it and attested by the manual signature of its Clerk, and this note to be dated the date stated above. (SEAL) TOWN OF PULASKI, VIRGINIA By: Mayor, Town of Pulaski c ATTEST: Clerk, Town of Pulaski CERTIFICATE OF PRINCIPAL ADVANCES • The amount and date of principal advances not to exceed the face amount hereof shall be entered hereon by the holder of this bond, when the proceeds of each such principal advance are delivered to the Town. Amount Date Authorized Signature The undersigned Clerk of the Council of the Town of Pulaski (the "Council"), hereby certifies that the foregoing constitutes a true and correct copy of a resolution adopted at a meeting of the Council held on December 20, 2005. I hereby further certify that such meeting was a regularly scheduled meeting and that, during the consideration of the foregoing resolution, a quorum was present. I further certify that the minutes of such meeting reflect the attendance of the members and the voting on the foregoing resolution as follows: Member Attendance Vote Charles L. Wade, Mayor Present Not Applicable Jeffrey S. Worrell Present Aye John T. Bolen Present Aye Bettye H. Steger Present Aye Lane R. Penn Present Aye Daniel Talbert, Jr. Present Aye Joel B. Burchett, Jr. Present Aye WITNESS MY HAND and the seal of the Council of the Town of Pulaski, Virginia, this _ day of December, 2005. (SEAL) W:~DAI'~012012 BAN Authorizing Resolution.doc Clerk