Ordinance 96-01

AN ORDINANCE AUTHORIZING THE BORROWING OF NOT TO EXCEED $500,000 TO PROVIDE INTERIM FUNDS FOR THE PAYMENT OF OPERATING EXPENSES OF THE TOWN DURING THE CURRENT FISCAL YEAR AND 1997 FISCAL YEAR UNTIL RECEIPT OF TAX AND OTHER REVENUES; ACCEPTING THE PROPOSAL OF FIRST UNION NATIONAL BANK FOR SUCH LOAN; AUTHORIZING ISSUANCE OF TAX ANTICIPATION NOTES, SERIES 1996, OF THE TOWN OF FORT MYERS BEACH, FLORIDA; PLEDGING AD VALOREM TAXES TO BE RECEIVED BY THE TOWN AND FULL FAITH AND CREDIT OF THE TOWN TO THE REPAYMENT OF THE NOTES; SPECIFYING THE AUTHORITY FOR THIS ORDINANCE; PROVIDING DEFINITIONS; FINDINGS; ORDINANCE TO CONSTITUTE CONTRACT; AUTHORIZATION AND DESCRIPTION OF NOTES; EXECUTION AND AUTHENTICATION OF NOTES; NOTES MUTILATED, DESTROYED, STOLEN OR LOST; NEGOTIABILITY, REGISTRATION AND TRANSFER OF NOTES; FORM OF NOTES; GENERAL OBLIGATION OF TOWN; SINKING FUND; APPLICATION OF NOTE PROCEEDS; COVENANTS OF TOWN; ADDITIONAL COVENANTS FOR BENEFIT OF BANK; TAX COMPLIANCE; DEFEASANCE; EXECUTION OF DOCUMENTS; ACCEPTANCE OF COMMITMENT; REMEDIES; SEVERABIITY; REPEALING CLAUSE; AND PROVIDING AN EFFECTIVE DATE.

IT IS HEREBY ORDAINED BY THE TOWN OF FORT MYERS BEACH AS FOLLOWS:

SECTION 1. AUTHORITY FOR THIS ORDINANCE. This Ordinance is enacted pursuant to the provisions of Chapter 95-494, Laws of Florida, Chapter 166, Florida Statutes, and other applicable provisions of law.

SECTION 2. DEFINITIONS. The following terms shall have the following meanings herein, unless the text otherwise expressly requires:

“Act” means Chapter 95-494, Laws of Florida, and Chapter 166, Florida Statutes.

“Bank” means First Union National Bank of Florida, N.A., Fort Myers, Florida.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commitment” means the letter of the Bank, dated January 3, 1996, a copy of which is attached hereto as Exhibit A.

“ County” means Lee County, Florida, a political subdivision of the State.

“Current Fiscal Year” means the initial fiscal year of the Town commencing January 1, 1996, and ending September 30, 1996.

“Escrow Investments” means any of the following if and to the extent the same are at the time legal for investment of Town funds: (a) direct obligations of or obligations fully guaranteed by the United States of America; or (b) the Local Government Surplus Funds Trust Fund as described in Section 218.405, Florida Statutes.

“Holder” or “Noteholder” means the registered owner of a Note.

“LIBOR Rate” means the 30-day London InterBank Offered Rates, as published on the date of the applicable loan, for dollar deposits in same day funds in amounts comparable to the outstanding amount for which the interest rate is being determined.

“Maturity Date” means the date which the principal and interest on the Notes shall be due and payable, being December 31, 1996.

“Note” or “Notes” means one or more of the tax anticipation notes authorized by this Ordinance.

“Operating Budget” means the Board’s operating budget for the Current Fiscal Year, presently being prepared in accordance with the Act and the Board’s tentative operating budget for the 1997 Fiscal Year.

“Operating Costs” means expenses necessary for the operating of municipal government of the Town.

“Paying Agent” or “Note Registrar” means Town Manager of the Town.

“Pledged Revenues” means the receipts of ad valorem taxes collected by the Tax Collector of the County for the benefit of the Town during the 1997 Fiscal Year, and any other funds of the Town, from whatever source derived, legally available to pay the principal of and interest on the Notes.

“Register” means the books maintained by the Town Manager in which are recorded the names, and addresses of the Holders of the Notes.

“Regulations” means the income tax regulations promulgated by the Internal Revenue Service under Section 103 and Sections 141-150 of the Code, in effect from time to time.

“State” means the State of Florida.

“Town” means the Town of Fort Myers Beach Florida, a political subdivision of the State.

“Town Council” means Town Council, the governing body of the Town of Fort Myers Beach, Florida.

“1997 Fiscal Year” means the fiscal year of the Town commencing October 1, 1996, and ending September 30, 1997.

SECTION 3. FINDINGS. It is hereby found, determined and declared as follows:

A. Pursuant to Section 15.05 of the Town of Fort Myers Beach Charter and other provisions of law, the Town is authorized to borrow money necessary for the operation of municipal government until such time as a budget is adopted and revenues are raised in accordance with the provisions of the Act.

B. A Feasibility Study has been prepared reflecting the reasonable estimates of receipts and expenditures during the Current Fiscal Year and the 1997 Fiscal Year. It is estimated based on such estimates Town funds will be insufficient, at various times during the Current Fiscal Year and the 1997 Fiscal Year, to pay obligations of the Town.

C. It is necessary for the benefit of the Town and its citizens that the Town borrow to meet the disbursement requirements of the Operating Budgets through the issuance of its tax anticipation notes. Such tax anticipation notes will be retired from the Pledged Revenues anticipated to be received in accordance with the Operating Budgets.

D. The Notes shall be general obligations of the Town payable as to both principal and interest from, and secured by a lien upon and pledge of, the Pledged Revenues. The full faith and credit and taxing power of the Town will be pledged to the payment of the prinicipal of and the interest on the Notes.

E. It is estimated that the Pledged Revenues will be sufficient to pay the principal of and interest on the Notes when due.

F. The 20 “Bond-Buyer” Average Yield Indes (the “Index”) published immediately prior to the first day of January, 1996 was 5.44. One hundred and fifty basis points above the Index is 6.94, which rate is the statutory initial interest rate limit (the “Interest Rate Limit”) applicable to the Notes.

SECTION 4. ORDINANCE TO CONSTITUTE CONTRACT. In consideration of the acceptance of the Notes authorized to be issued hereunder, this Ordinance shall be deemed to be and shall constitute a contract between the Town and the Holders. The covenants and agreements herein set forth to be performed by the Town shall be for the equal benefit, protection and security of the Noteholders; all Notes delivered to the Bank hereunder shall be of equal rank and without preference, priority or distinction of any of such Notes over any other thereof, except as expressly provided therein and herein.

SECTION 5. AUTHORIZATION AND DESCRIPTION OF NOTES. For the purpose of financing the cost of obligations incurred in the ordinary operations of the Town during the Current Fiscal Year and the 1997 Fiscal Year, there are hereby authorized to be issued by the Town its Tax Anticipation Notes, Series 1996, in the aggregate principal amount not to exceed $500,000.

The Notes shall be dated the date of initial delivery thereof, shall be issued in the denomination of $5,000 each or integral multiples thereof, shall mature on December 31, 1996, shall be in fully registered form, and shall bear interest on the principal amount thereof from their date until the Maturity Date at the rate of interest determined as set forth in the form of the Note attached hereto as Exhibit B, provided that in no event shall the interest rate exceed the maximum rate allowed by law. Interest will be computed on an actual day basis over a 366-day year. The Notes may be prepaid prior to maturity in whole or in party of any date.

SECTION 6. EXECUTION AND AUTHENTICATION OF NOTES. The Notes shall be executed in the name of the Town by the Mayor or Vice Mayor of the Town, and attested and countersigned by the Town Manager and the corporate seal of the Town or a facsimile thereof shall be affixed thereto or reproduced thereon. The Notes may be signed and sealed on behalf of the Town by any person who at the actual time of the execution of such Notes shall hold such office in the Town, although at the date of such Notes such person may not have been so authorized. The Notes may be executed by the facsimile signatures of the Mayor or Vice Mayor and the Town Manager, so long as the Notes bear one manual signature.

There shall be a Certificate of Authentication of the Note Registrar of the Notes, and no Note shall be valid or obligatory for any purpose or be entitled to any security or benefit under the provisions of this Ordinance unless such certificate shall have been duly executed on such Note. The authorized signature for the Note Registrar shall be either manual or in facsimile; provided, however, that at least one of the above signatures, including that of the authorized signature for the Note Registrar, appearing on the Notes shall be a manual signature.

SECTION 7. NOTES MUTILATED, DESTROYED, STOLEN OR LOST. In case any Note in certificate form shall be mutilated, or be destroyed, stolen or lost, upon the Holder furnishing the Town proof of his ownership thereof and satisfactory indemnity and complying with such other reasonable regulations and conditions as the Town may prescribe and paying such expenses as the Town may incur, the Town shall issue and deliver a new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in lieu of or substitution for such mutilated Note, upon surrender of such mutilated Note, if any, to the Town and the cancellation thereof; provided however, if the Note shall have matured or be about to mature, instead of issuing a substitute Note, the Town may pay the same, upon being indemnified as aforesaid, and if such Note be lost, stolen or destroyed, without surrender thereof. Any Note surrendered under the terms of this section shall be cancelled by the Town Manager.

Any such duplicate Note issued pursuant to this section shall constitute an original, additional contractual obligation on the part of the Town whether or not, as to duplicate Notes, the lost, stolen or destroyed Note be at any time found by anyone, and such duplicate Note shall be entitled to equal and proportionate benefits and rights as to lien on and source and security for payment from the funds hereinafter pledged to the same extent as the other Notes issued hereunder.

SECTION 8. NEGOTIABILITY, REGISTRATION AND TRANSFER OF NOTES. All Notes shall be and shall have all the qualities and incidents of negotiable instruments under the Uniform Commercial Code-Investment Securities Laws of the State of Florida, and each successive Holder, in accepting any of the Notes, shall be conclusively deemed to have agreed that such Notes shall be and have all of the qualities and incidents of negotiable instruments thereunder.

There shall be a Registrar who shall be responsible for maintaining the Registrar. The Acting Town Manager shall be the initial Registrar. The person in whose name ownership of any Note is shown on the Register shall be deemed the Holder thereof by the Town the Registrar, and any notice to the contrary shall not be binding upon the Town or the Registrar. The Town and the Registrar may treat the Holder of any Note as the absolute owner thereof for all purposes, whether or not such Note shall be overdue, and shall not be bound by any notice to the contrary.

Ownership of Ntes may be transferred only upon the Register. Upon surrender to the Registrar for transfer or exchange of any Notes accompanied by an assignment or written authorization for exchange, whichever is applicable, duly executed by the Holder or his attorney duly authorized in writing, the Registrar shall deliver in the name of the Holder or the transferee or transferees, as the case may be, a new fully registered Note or Notes of authorized denominations and of the same maturity and interest rate and for the aggregate principal amount as the Notes surrendered.

All notes presented for transfer, exchange, redemption or payment (if so required by the Town or the Registrar) shall be accompanied by a written instrument or instruments of transfer or authorization for exchange, in form and with guaranty of signature satisfactory to the Town or the Registrar, duly executed by the Holder or by his duly authorized attorney.

The Town and the Registrar may charge the Holder a sum sufficient to reimburse them for any expenses incurred in making any exchange or transfer after the first such exchange or transfer following the delivery of such Notes. The Registrar or the Town may also require payment from the Holder or his transferee, as the case may be, of a sum sufficient to cover any tax, fee or other governmental charge that may be imposed in relation thereto. Such charges and expenses shall be paid before any such new Note shall be delivered.

New Notes delivered upon any transfer or exchange shall be valid obligations of the Town, evidencing the same debt as the Notes surrendered, shall be secured under this Ordinance, and shall be entitled to all of the security and benefits hereof to the same extent as the Notes surrendered.

Whenever any Note shall be delivered to the Registrar for cancellation, upon payment of the principal amount thereof, or for replacement, transfer or exchange, such Note shall be cancelled and destroyed by the Registrar, and counterparts or a certificate of destruction evidencing such destruction shall be furnished to the Town.

SECTION 9. FORM OF NOTES. The text of the Notes shall be in substantially the form of Exhibit B hereto, with such variations, omissions and insertions as may be necessary and desirable, and as may be authorized or permitted by this Ordinance or as may be approved in writing by the Mayor prior to the issuance thereof.

SECTION 10. GENERAL OBLIGATIONS OF TOWN. The Notes and the interest thereon constitute general obligations of the Town, payable from and secured by a lien upon and pledge of the Pledged Revenues in the manner provided herein.

SECTION 11. SINKING FUND. There is hereby established the “Town of Fort Myers Beach, Florida, Tax Anticipation Notes, Series 1996, Sinking Fund” (herein the “Sinking Fund”) to be held by the Town by the Town as a separate special fund for the benefit of the Noteholders; provided, that the cash required to be accounted for therein may be commingled with other funds of the Town so long as adequate accounting records are maintained to reflect and control the restricted purposes of such Sinking Fund money. The Sinking Fund shall constitute a trust fund of the Town for the sole benefit of the Holders, and the Holders are granted an express lien on the money and investments held in the Sinking Fund. The Town shall deposit sufficient money into the Sinking Fund no later than December 31, 1996, so that the balance on deposit therein will equal the amount of principal and interest becoming due on the Notes at maturity. If, on December 31, 1996, and continuously thereafter, there is not on deposit in the Sinking Fund

The foregoing ordinance was enacted by the Town Council upon a motion by Council Member Ted FitzSimons and seconded by Council Member Ray Murphy and, upon being put to a vote, the result was as follows:

Anita T. Cereceda aye

Ted FitzSimons aye

William (Rusty) Isler aye

Garr Reynolds absent

Ray Murphy aye

DULY PASSED AND ENACTED this 11^th day of March, 1996.

ATTEST: TOWN OF FORT MYERS BEACH

By: Marsha Segal George By: Anita T. Cereceda, Mayor

Approved as to form by:

Richard V. S. Roosa, Town Attorney