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Resolution 035-1968RESOLUTION NO. 35 -1968 r WHEREAS, Monroe County, Florida has heretofore sold $2, 600, 000 Bridge Revenue Bonds, and WHEREAS, pursuant to a Resolution adopted by the Board of County Commissioners of Monroe County, Florida on November 14, 1967, the proceeds from the sale of said bonds set aside for construction purposes in accordance with said Resolution must be placed in a Construction Trust Fund, in a bank, and WHEREAS, said Board is required to name a bank which will enter into a Construction Trust Agreement, now, therefore, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, that Key West State Bank, a banking corporation orj4 nized and existing under the laws of the State of Florida located at Key West, Florida, be, and the same is hereby named as Trustee for the Construction Trust Fund, and the Mayor of Monroe County and Chairman of the Board be, and the Clerk of said Board be, and they are hereby authorized and directed to execute a Construction Trust Fund Agreement with said bank, a copy of which Agreement is attached hereto and made a part hereof. Dated May 24th , 1968. CONSTRUCTION TRUST FUND AGREEMENT WHEREAS, the County of Monroe, Florida, has heretofore authorized the issuance of $2, 600, 000 Bridge Revenue Bonds (hereinafter referred to as "Bonds") pursuant to a resolution adopted on November 14, 1967 (herein- after referred to as "Resolution"), and WHEREAS, the County in said Resolution has agreed to deposit the proceeds of said Bonds in a special fund to be known as the "Construction Trust Fund'! so as to insure the proper use of such Bond proceeds for the construction and acquisition of the bridge to be financed by the issuance of said Bonds, and WHEREAS, it is deemed necessary and desirable and in the best in- terest of the County that the proceeds of said Bonds be deposited in the Con- struction Trust Fund so as to insure their proper use, and WHEREAS, Key West State Bank, a banking corporation organized and existing under the laws of the State of Florida, located in Key West, Florida, has agreed to act as Trustee of said Construction Trust Fund, NOW, THEREFORE, IT IS AGREED, on the 24th day of May, A. D. 1968, between Monroe County, Florida (hereinafter referred to as "County"), party of the first part, and Key West State Bank, a banking corporation (here- inafter referred to as "Trustee"), party of the second part, that: SECTION 1. There is hereby created said Construction Trust Fund which shall be held as Trustee by said Key West State Bank, a banking cor- poration situated at Key West, Florida, which is hereby designated and ap- pointed as Trustee for such Construction Trust Fund. Such Construction Trust Fund shall consist of the proceeds derived from the sale of said $2, 600, 000 Bridge Revenue Bonds, dated September 1, 1967, heretofore sold and delivered, remaining after the deposit in the Interest Account in the Sinking Fund created by said Resolution, of accrued interest received from the sale of said Bonds, plus an additional amount of such proceeds which, - together with said accrued interest, will be equal to the amount of interest which will become due on said Bonds to and including twenty-four months after the date of the delivery of said Bonds. SECTION 2. The moneys in said Construction Trust Fund shall be held by the Trustee in trust and applied only to the payment of the cost of the con- struction and acquisition of said bridge in the manner provided in said Res- olution, which by reference is made a part hereof the same as if included verbatim herein. For the purpose of this Agreement, the cost of said construction and acquisition of said bridge shall be as defined in Section 1. 02 (F) of said Res- olution. SECTION 3. Payments to the person or persons, or firms or cor- porations entitled thereto, or to the County as provided hereafter, shall be made from said Construction Trust Fund by the Trustee upon the order of the County, but only upon the following conditions and upon receipt of the following: (a) A requisition of the County for such payment, duly executed on be- half of the County by the duly authorized official in charge of the construc- tion of said bridge. Such requisition shall state: (1) the amount requested; (2) the obligation for or on account of which the requisition is made, showing separately the total obligations, the amount already paid, if any, and the balance remaining to be paid; (3) the' person to whom the payment shall be made,. Such requisition shall certify: (1) that the item for which requisition is made has not been paid; (2.) that there are no vendors', mechanics' or other liens or rights to liens or conditional sales contracts on the property in respect to which such payment is to be made; and (b) If the payment is for work, materials, supplies, or equipment for the construction and acquisition of said bridge, or any part thereof, includ- ing payments to contractors, or for any purposes other than those specified in (c) and (d) hereof, a certificate of the Consulting Engineers certifying ap- proval of the requisition required in (a) above, and further certifying that -2- such obligation was properly incurred for the purposes stated in Section 2 hereof and is then due and unpaid, and that insofar as such obligation was incurred for work, materials, supplies or equipment, such work was ac- tually constructed or installed in or about said bridge, or such work, mater- ials, supplies or equipment were delivered at the site of said bridge for that purpose, or delivered for fabrication at the place approved by said Consult- ing Engineers, and that all work done and materials, supplies or equipment furnished for which such obligation was incurred are in their opinion in ac- cordance with the plans and specifications therefor, heretofore approved by the County. In addition to the above requirements, before making any payment from said Construction Trust Fund to the County for. contractors, builders, or materialmen, on account of the construction and acquisition of said bridge, the Trustee shall receive a written opinion of counsel (who may be counsel for the County), to the effect that no such part of the construction and acqui- sition of said bridge is located or is to be located on lands, including ease- ments and rights of way, other than lands, including easements and rights of way, good and marketable title to which is owned, or can be acquired, by the County in fee simple, or that the title which the said County has obtained, or can obtain, is sufficient for the purposes of such construction and acqui- sition and that such title cannot be divested so long as any of said Bonds of the County are outstanding and unpaid. In addition to the above requirements, no payment shall be made to any contractors or builders unless the County's Attorney shall certify that such contractors or builders shall have previously delivered to the County a bond or bonds executed by a qualified surety authorized to do business in the State of Florida, approved by the County and the Consulting Engineers, in an amount at least equal to the amount of such contracts, conditional for the due and faithful performance of the work, and providing in addition to all -3- ,P other conditions, that if the contractor or his or its sub -contractor or sub -contractors, fail to duly pay for any labor,., materials, team hire, sus- tenance, provisions,. provender or other supplies or consumed by such con- tractor or sub -contractors in performance of the work contracted to be done, the surety will pay the same, together with interest at the rate of 6% per annum, and that the surety shall indemnify and save harmless the County to the extent of any and all payments in connection with carrying out said contract which the County may be required to make, or the County's Attorney shall certify that, in lieu of furnishing as surety such bond or :bonds, such . contractors or builders have deposited with the County, direct obligations of the United States of America, in an amount equal to the amounts of such contracts, with the bond or bonds -of such contractors or builders, as secur- ity for the performance of such contracts. In addition to the above requirements, no payments shall be made to the County for any contractors or builders in excess of ninety per centum of the amount of such contracts unless the Trustee shall also receive the certificate of the duly authorized official in charge of said bridge and the Consulting Engineers that such contracts have been fully and completely per- formed by such contractors or builders. (c) If the payment is for legal and engineering expenses, expenses for financial or fiscal services, if any, expenses in connection with the issuance of said Bonds and advertisements in connection with the proceedings author- izing the issuance thereof, then the requisition referred to in sub -section (a) of this Section 3 shall be approved by resolution adopted by the County, and a certified copy of such resolution furnished to said Trustee before such payment is made to the County by the Trustee for such services and expenses. (d) If the payment is to the County for labor or other costs for the part of such construction made or work done directly for the County through its employees, or to reimburse the County for amounts paid by the County prior to the date of this Agreement for the cost of the construction and acquisition of said bridge, then the Trustee shall make such payment directly to the or- -4- i der of the County upon being .furnished, in lieu of the documents referred to in (a) and (b) hereof, with a certified copy of a resolution adopted by the County describing the purposes for which such payment is to be made, and with the endorsed approval of- said resolution by the Consulting Engineers. SECTION 4. All original requisitions, certificates and opinions re- ceived by the Trustee as required herein, and evidence of payment, shall be retained in possession of the Trustee, subject at all reasonable times to the inspection of the County, said Consulting Engineers, the holders of said Bonds and the agents and representatives thereof. SECTION 5. When the construction and acquisition of said bridge pro- vided for in said Resolution has been fully completed, the Trustee shall be furnished with a certificate showing such completion and the date thereof, duly executed by the duly authorized official in charge of said bridge, and approved by the Consulting Engineers. Thereupon any balance in said Con- struction Trust Fund not reserved for the payment of -any remaining part of the cost of the construction and acquisition of said bridge, as defined in the Resolution, shall be paid to the County for deposit in the Reserve Account in the Sinking Fund created and established pursuant to said Resolution and used only for the purposes provided therein. SECTION 6 The Trustee accepts and agree.s. to execute the trust here- by created, but only upon the terms set forth in this Agreement, to all of which the parties hereto agree. SECTION 7. The Trustee may execute any of the trust powers hereof and perform the duties required by it, by or through attorneys, agents, or employees, and shall be entitled to advice of counsel concerning all matters of trust hereof and its duties hereunder. SECTION 8. The Trustee shall, upon the request of the County, evi- denced by resolution duly adopted, temporarily invest or reinvest any mon- eys in the Construction Trust Fund in direct obligations of the United States of America, or in time deposits in banks or trust companies represented by -5- certificates of deposit maturing not later than the dates on which such mon- eys will be needed for the purposes of such Fund as estimated by the Con- sulting Engineers. Said Trustee is hereby authorized to liquidate any of such investments or reinvestments whenever necessary to pay requisitions upon said Construction Trust Fund as provided herein. All interest or in- come earned upon ,any of said investments or reinvestments shall be cre- dited to and become a part of said Construction Trust Fund. SECTION 9. The Trustee shall be protected and shall incur no lia- bility.,in acting or proceeding in good faith upon any resolution, notice, tele- gram, request, consent, statement, -affidavit, voucher, bond or other paper or document which it shall in good faith believe to be genuine and to have been passed or;signed by the proper officers, agents or employees of the County, or to have been prepared and furnished pursuant to any of the pro- visions of this Agreement, and the Trustee shall be under no duty to make any investigation or inquiry as to any statements contained or matters re- ferred to in any such instrument, but may accept and rely upon the, same as conclusive evidence of the truth and accuracy of such statement. Upon the Trustee making the payments to be made by it from said Construction Trust Fund in accordance with the provisions hereof, such payments shall so far as concerns the Trustee be deemed to be legal and proper payments, and the Trustee shall be relieved of all responsibility with respect thereto and shall be liable only for proof of payment as provided herein. The Trustee shall not be responsible for the recitals in this Agreement, nor for the validity of this Agreement. The Trustee may accept a resolution of the County when certified by the Clerk of the Board under the seal of the Board to have been duly adopted. The Trustee shall not be under any liability for anything ari- sing out of this Agreement except for its own negligence, lack of good faith or wilful misconduct. SECTION 10. The Trustee may in good faith buy, sell, own, hold and deal in any of said. Bonds issued by the County and may join in any action M which any bondholder may be entitled to take with like effect as if the Trustee were not a party .to this Agreement. The T:. Estee may also engage in or be interested in any financial or other transaction with said County, or holder or holders of said Bonds secured hereby, or other obligations of the County, as freely as if it were not Trustee hereunder. SECTION 11. The Trustee may construe any of the provisions of this Agreement insofar as the same may appear to be ambiguous or incon- sistent with any other provision hereof; and any construction of any such provision thereof by the Trustee in good faith, shall be binding upon the parties hereof.- SECTIONN 12. The Trustee may resign and be discharged of the trust created by this.-, Agreement, by executing an -instrument in writing, ,resigning such trust, specifying the date when such resignation shall take effect, and filing the,samewith the Clerk of the Board not. less than sixty (60) days be- fore the date specified in such instrument when such resignation shall take effect. Such resignation shall take effect on the day specified in such instru- ment unless previously a successor Trustee: shall be appointed as herein- after provided,- in which event such resignation shall take effect immediately upon the appointment of such successor Trustee. SECTION 13. Any Trustee hereunder may be removed at any time by an instrument in writing, appointing a successor to the Trustee so removed, filed with the Trustee at least sixty (60) days before the removal is to be- come effective,;; signed by the Chairman and,; Clerk of said Board. SECTION,, 14. In case at any time the ;Trustee, or any Trustee here- inafter appointed, shall resign, or shall be removed, or be dissolved or if its property or affairs shall be taken under the control of any state or fed- eral court or administrative body because of insolvency or bankruptcy, or for any other reason, a vacancy shall forthwith and ipso facto exist in the office of the Trustee and a successor may be appointed by the County. -7- W r— • .,,SECTION 15. In case at any time the Trustee shall resign and no appointment of a successor Trustee shall be made pursuant to the foregoing provisions of this Agreement prior to the date specified in the notice of re- signation as the date when such resignation shall take effect, the retiring Trustee may forthwith apply to a court of competent jurisdiction for the ap- pointment of a successor Trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribed, appoint a successor Trustee. SECTION 16. Any successor Trustee appointed hereunder shall exe- cute, acknowledge and deliver to the County an instrument accepting such appointment hereunder, and thereupon such successor Trustee, without any further act, deed or conveyance, shall become duly vested with all the estates, property, rights, powers, trusts, duties and obligations of its pre- decessors in the trust hereunder, with like effect as if originally named Trustee herein. Upon request of such Trustee, the Trustee ceasing to act and the County shall execute and deliver an instrument transferring to such successor Trustee all the estates, properties, rights, powers and trusts hereunder of the Trustee so ceasing to act, and the Trustee so ceasing to act shall pay over to the successor Trustee all moneys at the time held by it hereunder. SECTION 17. Any corporation into which any Trustee hereunder may be merged or with which it may be'consolidated, or any corporation resulting from any merger or consolidation to which any Trustee hereunder shall be a party, shall be the successor Trustee under this Agreement without the exe- cution or filing of any paper or further act on the part of the parties hereto, anything herein to the contrary notwithstanding. SECTION 18. This Agreement shall be deemed to have been, and is made for the benefit of the holders from time to time of said $2, 600, 000 Bridge Revenue Bonds of Monroe County, Florida, dated September 1, 1967, and shall be enforceable by any of the holders thereof in the manner provided in said Resolution. SECTION 19. Subject to the lien of the Trustee for its proper fees and expenses, the holders of said Bonds shall have a lien on all moneys in the Construction Trust Fund until paid out and applied in accordance with this Agreement and said Resolution. IN WITNESS WHEREOF, the Board of County Commissioners of Monroe County, Florida has caused its seal to be affixed hereto, and these presents to be signed by the Mayor of Monroe County and Chairman of said Board, and attested by the Clerk of said Board, and the said Key West State Bank, a banking corporation located in Key West, Florida, has caused its corporate seal 'tto be affixed hereto, and these presents to be signed by its Executive Vice, -President and attested by its Cashier, all as of the day and year hereinabove set forth. f MONROE COUNTY, FLORIDA (SEAL) By Mayor of Monroe County and Chairman of the Board of County Commissioners of Monroe County, Florida. ATTEST: Clerk of the Circuit Court of Monroe County; Florida and ex officio Clerk'. of the Board of County Commissioners of Monroe County, Florida. KEY WEST STATE BANK, Trustee By John M. Koenig, Executive Vice-Pres. (SEAL) ATTEST: Jean E. Collins, Cashier.