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Resolution 053-1991 ~ " RESOLUTION NO. 053 -1991 A RESOLUTION AMENDING RESOLUTION NO. 341-1985 OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, ENTITLED: o c< c.: r' U' r-i "A RESOLUTION PROVIDING FOR THE ADVANCE REFUNDING OF THE OUTSTANDING IMPROVEMENT BONDS, SERIES 1980, OF MONROE COUNTY MUNICIPAL SERVICE DISTRICT, MONROE COUNTY, FLORIDA; AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $10,000,000 REFUNDING IMPROVEMENT BONDS, SERIES 1985, TO FINANCE THE COST THEREOF; RROVtDING FOR THE PAYMENT OF THE BONDS FROM ~PECPAL ASSESSMENTS LEVIED AGAINST BENEFITED PR~tRTY, AND CERTAIN OTHER FUNDS OF THE ~ DIStR~CT; MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE." 0.J 0.J ,.. -~, DULY ADOPTED ON DECEMBER 6, 1985, AS AMENDED, BY- MAKING CERTAIN CHANGES NECESSARY TO REFLECT ,---I AMENDMENT OF THE ASSESSMENT ORDINANCE, c' ) CONSTRUCTION OF A TRANSFER STATION AND OPERATION AND MAINTENANCE OF THE TRANSFER STATION BY WASTE MANAGEMENT, INC. OF FLORIDA, OR OTHER CONTRACTOR; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, the governing body of the Monroe County Municipal Service District: SECTION 1. AUTHORITY FOR THIS RESOLUTION. This resolution is adopted pursuant to Chapter 125, Florida Statutes, Chapter 8, Articles I, II and III of the Monroe County Code, and other applicable provisions of law. SECTION 2. FINDINGS. It is hereby ascertained, determined and declared that: A. The Board of County Commissioners of Monroe County, Florida (the "Governing Body"), sitting as the governing body of the Monroe County Municipal Service District, on December 6, 1985, duly adopted Resolution No. 341-1985 entitled: "A RESOLUTION PROVIDING FOR THE ADVANCE REFUNDING OF THE OUTSTANDING IMPROVEMENT BONDS, SERIES 1980, OF MONROE COUNTY MUNICIPAL SERVICE DISTRICT, MONROE COUNTY, FLORIDA; AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $10,000,000 REFUNDING IMPROVEMENT BONDS, SERIES 1985, TO FINANCE THE COST THEREOF; PROVIDING FOR THE PAYMENT OF THE BONDS FROM SPECIAL ASSESSMENTS LEVIED AGAINST BENEFITED PROPERTY, AND CERTAIN OTHER FUNDS OF THE DISTRICT; MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE." and subsequently "Resolution) . B. It is necessary and. desirable to amend the Resolution by making certain changes necessary to reflect (1) amendment of the ordinance of Monroe County (the "County") applicable to the Assessments, as defined in the Resolution, and (2) conversion of the Facilities, as defined in the Resolution, to a transfer station, and the operation and maintenance of the same and the removal of solid waste from the county by (i) Waste Management, Inc. of Florida ("WMF"), on behalf of the County, in accordance with certain contracts between the County and WMF for the design, construction, operation and maintenance of the transfer station by WMF (ii) or other contractor. C. Such changes do not materially adversely affect the security for payment of the Bonds, as defined in the Resolution; consequently, they do not require the consent of the Bondholders or MBIA, as defined in the Resolution. SECTION 3. AMENDMENTS TO RESOLUTION. The Resolution is amended in the following manner. A. Subsection 2D of the Resolution is hereby amended to read as follows: "D. 'Assessments' shall mean special assessments levied annually against real property within the area of the Issuer specially benefited by the Project and the furnishing of solid waste collection services within the area of the Issuer, including the interest on such special assessments." B. Subsection 2M of the Resolution is hereby amended to read as follows: "M. 'Cost of Operation and Maintenance' of the Facilities shall mean the current expenses, paid or accrued, of operation, maintenance and repair of the Facilities, and/or the payments made by the Issuer in accordance with an Operation and Maintenance Contract, as the case may be, as calculated in accordance with generally accepted accounting practice, including payments made by the Issuer to franchisee solid waste collectors and the routine cost of capping and/or lining landfills as amended the same (collectively, the 2 3247/MON~8002/AA4 required by federal and/or state law, but shall not include any reserves for renewals and replacements, extraordinary repairs or any allowance for depreciation. Such current expenses shall be reduced by the amount of ad valorem taxes, if any, levied and collected within the Issuer for such purposes." C. Subsection 2N of the Resolution is hereby amended to read as follows: "N. 'Facilities' shall mean the solid waste disposal facilities owned and operated by or on behalf of the Issuer for the disposal of solid waste collected within the area of the Issuer." D. The following new Subsections 2V and 2W are hereby added to the Resolution. The remaining subsections in Section 2 of the Resolution are renumbered accordingly. "v. 'Operation and Maintenance Contract' shall mean the Operations and Maintenance Agreement between the Issuer and WMF, dated August 1, 1990, or any other similar contract between the Issuer and another Operator with respect to operation and maintenance of the Facilities." "W. 'Operator' shall mean Waste Management, Inc. of Florida, its successors or assignees (collectively, 'WMF'), or any other person or entity which contracts with the Issuer for removal by such person or entity, of solid waste collected within the area of the Issuer." E. Subsection 16B(7) of the Resolution is hereby amended to read as follows: "(7) The Issuer shall next apply and deposit the money in the Revenue Fund into a special fund to be known as the 'Renewal and Replacement Fund,' which fund is hereby created and established. The Issuer shall deposit into such Renewal and Replacement Fund, in each year for the next 10 years (to and including the year 1995), the amount of $500,000, and thereafter such amount as shall be recommended by the Consulting Engineers and approved by the Board; provided, however, that as long as an Operation and Maintenance Contract is in effect, no deposit shall be required, unless and to the extent recommended by the 3 3Z47/MONS900Z/AA4 Consulting Engineers and approved by the Board. The money in the Renewal and Replacement Fund shall be used only for the purposes of paying the cost of extensions, enlargements or additions to, or the replacement of depreciable capital assets of, the Facilities and emergency repairs thereto, or landfill closure costs associated with the Facilities (including maintenance related to such closure), and to provide an adequate reserve for depreciation of all depreciable capital assets except such assets being acquired under lease-purchase financing; provided, however, that as long as an Operation and Maintenance Contract is in effect, any amount on deposit in the Renewal and Replacement Fund may be used to pay any portion of a payment or payments, or the sum of all payments, due to an Operator for the capital cost of constructing a transfer station or other facility necessary to implement the disposal of solid waste collected within the area of the Issuer. Such money on deposit therein shall also be used to implement the Reserve Account, if necessary, in order to prevent a default in the payment of the principal, Amortization Installments and interest on the Bonds. The money on deposit in such fund shall be withdrawn only upon the authorization of the Board." F. Subsection 16C of the Resolution is hereby amended to read as follows: "C. OPERATION AND MAINTENANCE. The Issuer will maintain, or cause to be maintained, the Facilities (currently in operation) and all parts thereof in good condition and will operate, or cause to be operated, the same in an efficient and economical manner, making, or causing to be made, such expenditures for equipment and for renewals, repairs and replacements as may be proper for the economical operation and maintenance thereof." G. Subsection 16D of the Resolution is hereby amended to read as follows: "D. ANNUAL BUDGET. The Issuer shall annually prepare and adopt within the time limits provided by law for the adoption of county budgets, a detailed budget of the estimated 4 3Z47/MON5~OOZ/AA4 expenditures for operation and maintenance of the Facilities during such next succeeding Fiscal Year; provided, however, that as long as an Operation and Maintenance Contract is in effect, such budget shall include any Operation and Maintenance Contract payment obligations of the Issuer and only those estimated expenditures for operation and maintenance of the Facilities which the Issuer is otherwise required to pay. No expenditures for the operation and maintenance of the Facilities shall be made in any Fiscal Year in excess of the amount provided therefor in such budget without a finding and recommendation by the duly authorized officer in charge thereof, or shall be made until the Board shall have approved such finding and recommendation. No such increased expenditures in excess of 10% of the amount provided therefor in such budget shall in any event be made except upon the further certification of the Consulting Engineer that such increased expenditures are necessary and essential to the continuance in operation of the Facilities. The Issuer shall mail copies of such annual budgets and all ordinances and resolutions authorizing increased expenditures for operation and maintenance to any Holder of Bonds who shall file his address with the Issuer and request in writing that copies of all such budgets and ordinances and resolutions be furnished him, and shall make available such budgets and all ordinances and resolutions authorizing increased expenditures for operation and maintenance of the Facilities at all reasonable times to any Holder or Holders of Bonds or to anyone acting for and on behalf of such Holder or Holders." H. Subsection 16E of the Resolution is hereby amended to read as follows: "E. ASSESSMENT ORDINANCES OR RESOLUTIONS. The Issuer shall annually enact or adopt an assessment ordinance or resolution as required by the Act, and thereby will determine, fix, levy and collect such Assessments which, together with the other Pledged Funds, will always provide revenues in each year sufficient to pay 100% of the Maximum Bond Service Requirement on the Bonds and on all outstanding Additional Parity Obligations, 5 3247/MON59002/AA4 plus 100% of all reserve or other payments, including the Cost of Operation and Maintenance and deposits for renewals and replacements of the Facilities. Such Assessments shall not be reduced so as to be insufficient to provide revenues for such purposes; provided, however, that the Assessments shall be levied against the benefited property in proportion to the special positive benefits to be received from the Facilities, as determined by the Board, and the furnishing of solid waste disposal services to the residents of the Issuer, and shall never exceed in the aggregate the amount by which such property is determined to be benefited." I. Subsection 16H of the Resolution is hereby amended to read as follows: "H. NO MORTGAGE OR SALE OF THE FACILITIES. Except as provided herein or, with the consent of MBIA (if the Bonds are then covered by a municipal bond insurance policy issued by MBIA, and MBIA is not then in default under such policy), in any Operation and Maintenance Contract, the Issuer will not sell, lease, mortgage, pledge or otherwise encumber the Facilities, or any substantial part thereof. The foregoing provision notwithstanding, the Issuer shall have and hereby reserves the right to sell, lease or otherwise dispose of any of the property comprising a part of the Facilities which the Issuer shall hereafter determine, in the manner provided herein, to be no longer necessary, useful or profitable in the operation of the Facilities. Prior to any such sale, lease or other disposition of such property, if the amount to be received therefor is not in excess of $50,000, the duly authorized officer in charge thereof shall make a finding in writing determining that such property comprising a part of the Facilities is no longer necessary, useful or profitable in the operation thereof. If the amount to be received from such sale, lease or other disposition of the property shall be in excess of $50,000 but not in excess of $100,000, such officer shall first make a finding in writing determining that such property comprising a 6 3247/MON59002/AA4 part of the Facilities is no longer necessary, useful or profitable in the operation thereof, and the Board shall, by resolution duly adopted, approve and concur in the finding of such officer, and authorize such sale, lease or other disposition of the property. If the amount to be received from such sale, lease or other disposition of the property shall be in excess of $100,000 but not in excess of 10% of the value of fixed assets of the Facilities according to the most recent annual audit report, such officer shall first make a finding in writing determining that such property comprising a part of the Facilities is no longer necessary, useful or profitable in the operation thereof, and the Consulting Engineers shall make a finding that it is in the best interest of the Facilities that such property be disposed of, and the Board shall by resolution, duly adopted, approve and concur in the findings of such officer and of the Consulting Engineers, and shall authorize such sale, lease or other disposition of the property. No sale or other disposition of the property for a sum in excess of 10% of the value of the fixed assets of the Facilities according to the most recent annual audit and operating report shall be made unless the officer in charge of the Facilities and the Consulting Engineers shall make in writing the finding hereinabove referred to, and they shall further find that the estimated Assessments to be levied by the Issuer for the furnishing of the services of the Facilities and for the payment of the Bond Service Requirement on the Bonds in the 5 Fiscal Years immediately succeeding the sale or other disposition of such property will be not less than the amount required pursuant to Subsection E of this Section, and the Board shall by resolution, duly adopted, approve and concur in the finding of the officer and the Consulting Engineers, and shall authorize such sale or other disposition of the property. Anything in this Subsection H to the contrary notwithstanding, nothing herein shall restrict the Board from authorizing the sale of other disposition of any of the property 7 3247/MONSg002/AA4 comprising a part of the Facilities, if the attorney for the Issuer shall render an opinion st,ating that the obligation of the Issuer to levy and collect the Assessments will not be materially adversely affected by reason of such sale or disposition. The proceeds derived from any such sale or other disposition of property shall be placed in the Renewal and Replacement Fund or used for the retirement of outstanding Bonds, in such proportions to be determined by the Board upon the recommendations of the officer in charge of the Facilities." I. Subsection 161 of the Resolution is hereby amended to read as follows: "I. INSURANCE. The Issuer will carry, or cause to be carried, adequate fire and windstorm insurance on all buildings and structures of the Facilities which are subject to loss through fire or windstorm, will carry adequate public liability insurance, and will otherwise carry insurance of all kinds and in the amounts normally carried in the operation of similar facilities and properties in Florida, except public liability insurance for which the Issuer may be a self-insurer in accordance with the laws of the State of Florida. Any such insurance shall be carried for the benefit of the Holders of the Bonds. All money received by the Issuer for losses under any of such insurance, except public liability, is hereby pledged by the Issuer as security for the Bonds, until and unless such proceeds are used to remedy the loss or damage for which such proceeds are received, either by repairing the property damaged or replacing the property destroyed as soon as practicable." J. Subsection 16K of the Resolution is hereby amended to read as follows: "K. DELINQUENT ASSESSMENTS. If the owner of any lot or parcel of land assessed shall be delinquent in the payment of any Assessment for a period of 90 days, then the Board shall record at the office of the Clerk of the Board, a notice of lien for such unpaid Assessment, and if such unpaid Assessment is not paid within 270 days of the due date, the Board shall declare the entire unpaid balance of such Assessment to be in default and, at 8 3247/MON59002/AA4 its own expense, shall cause such delinquent property to be foreclosed in the same manner now or hereafter provided by law for the foreclosure of mortgages on real estate, or otherwise as provided by law; however, the administrative staff of the Issuer shall assume the responsibility for monitoring the foregoing delinquency and default time periods with respect to each unpaid Assessment, and shall advise the Monroe County Attorney of any action taken in regard to notices of lien and declarations of default. The Monroe County Attorney shall not be required to file any foreclosure action unless (i) the amount due (including the aggregate amount due on any Assessments in default for which foreclosure actions have not been commenced) is at least $1,000 or (ii) the statute of limitations with respect to such foreclosure action is about to expire. Subject to the foregoing, if such foreclosure be not promptly filed and prosecuted, then any Bondholder may file and prosecute such foreclosure action in the name of the Issuer for the benefit of the Holders of all outstanding or unpaid Bonds and interest thereon. All money realized thereby shall be depositeq in the Revenue Fund and distributed as above provided. The Issuer further covenants, at its expense, to furnish to any Bondholder requesting the same, 60 days after the due date of each annual installment, a list of all delinquent installments, together with an annual audit of the Revenue Fund by a certified public accountant. In the event of any inconsistency between the provisions of this Section and Ordinance No. 033-1989 of the Issuer, as amended (collectively, the "Assessment Ordinance"), the provisions of the Assessment Ordinance, and any procedures lawfully elected thereunder by the Issuer, shall control, as long as such provisions so elected are at least as likely to result in collection of the unpaid Assessments as the provisions of this Section, without such election." K. Subsection 16L of the Resolution is hereby amended to read as follows: "L. FORECLOSURE OF shall be offered for sale for ASSESSMENT LIENS. If any property the nonpayment of any Assessment, 9 3247/MON5~002/AA4 ~ and no person or persons shall purchase the same for an amount equal to the full amount due on the Assessment (principal, interest and costS), the property shall then be purchased in the name of the Issuer for an amount equal to the balance due on the Assessment (principal, interest and costs), and the Issuer shall receive in its corporate name the title to the property for the benefit of the Holders of the Bonds. The Issuer shall have the power and shall lease or sell such property, and deposit all of the net proceeds of any such lease or sale into the Revenue Fund. Not less than 10 days prior to the filing of any foreclosure action as herein provided, the Issuer shall cause written notice thereof to be mailed to any designated agents of the Holders of the Bonds. Not less than 30 days prior to the proposed sale of any lot or tract of land acquired by foreclosure by the Issuer, it shall give written notice thereof to such representatives. The Issuer agrees that it shall be required to take the measures provided by law for sale of property acquired by it as trustee for the Bondholders within 30 days after the receipt of the request therefor signed by the Holders of not less than 15% of the aggregate principal amount of the outstanding Bonds. In the event of any inconsistency between the provisions of this Section and the Assessment Ordinance, the provisions of the Assessment Ordinance, and any procedures lawfully elected thereunder by the Issuer, shall control, as long as such provisions so elected are at least as likely to result in payment of an amount equal to the unpaid Assessments (principal, interest and costS) as the provisions of this Section, without such election." L. Subsection 16N of the Resolution is hereby amended to read as follows: "N. CONSULTING ENGINEERS. If the Issuer is required to operate and maintain, or supervise the operation and maintenance of, any portion of the Facilities, the Issuer will annually retain an independent Consulting Engineer or engineering firm having a favorable reputation for skill and experience for the design, construction and operation of facilities of comparable size and character as the Facilities, for the purpose of 10 3247/MON5g002/AA4 . providing the Issuer competent engineering counsel affecting the economical and efficient operation of the Facilities and in connection with the making of capital improvements and renewals and replacements of the Facilities. The Issuer may, however, employ additional engineers at any time with relation to specific engineering and operation problems arising in connection with the System. The Issuer shall, at least every 2 years, cause to be prepared by the Consulting Engineers, a report or survey with respect to the management of the Facilities, the sufficiency of the Assessments for services of the Facilities, the proper maintenance of the properties of the Facilities and the necessity for capital improvements and recommendations therefor. To the extent within the competence of the Consulting Engineers, such a report or survey shall also show any failure of the Issuer to perform or comply with the covenants herein contained. In making such report or survey, the Consulting Engineers shall accept official statements of the independent certified public accountants. Copies of each report or survey shall be placed on file with the Issuer and shall be open to the inspection of any Holder of Bonds or other interested parties." M. Subsection 160 of the Resolution is hereby amended to read as follows: "0. NO COMPETING FACILITIES. Except as may be provided in the Act or, with the consent of MBIA (if the Bonds are then covered by a municipal bond insurance policy issued by MBIA, and MBIA is not then in default under such policy), in an Operatlon and Maintenance Contract, the Issuer will not grant, renew or cause, consent to, or allow the granting, renewal, extension or expansion of any franchise or permit to any person, firm, corporation or body, or agency or instrumentality whatsoever, for the furnishing of services similar to those of the Facilities to or within the boundaries of the Issuer (excluding the boundaries of the City of Key West)." N. Subsection 16R of the Resolution is hereby amended to read as follows: 11 3247/MON5i002/AA4 "R. MANAGER OF FACILITIES. The Issuer in operating the Facilities or administering an Operation and Maintenance contract, will employ a manager of demonstrated ability." SECTION 4. SEVERABILITY OF INVALID PROVISIONS. If any one or more of the provisions contained in this resolution shall be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such provisions shall be null and void and shall be deemed separable from the remaining provisions, and shall in no way affect the validity of any of the other provisions hereof. SECTION 5. REPEALING CLAUSE. All resolutions or parts thereof of the Governing Body in conflict with the provisions contained in this resolution are, to the extent of such conflict, hereby superseded and repealed. SECTION 6. EFFECTIVE DATE. This resolution shall take effect immediately upon its adoption. Adopted FEBRUARY 20, 1991. Mayor Harvey Mayor Pro Tern London Commissioner Cheal Commissioner Jones Commissioner Stormont Yes Yes Yes Yes Yes - BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By \.U-:~.,~: ,__ ~ -- Mayor ~~ (Seal) Attest: DANNY L. KOLHAGE, Clerk ~~-J7/;'r. cler ' APPROVED AS TO FORM AND LEGAL SUFFICIENCY B 12 3247/MON59002/AA4