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Board of Trustees
Village of Tarrytown
Special Meeting No. 13
August 4, 2010
6:00 p.m.
PRESENT: Mayor Fixell, Trustees Butler, Hoyt, McGee, McGovern and Zollo; Administrator Blau; Treasurer Hart; Village Attorney Shumejda
ABSENT: Trustee Basher
Trustee McGovern moved, seconded by Trustee Butler and unanimously carried to open the Special Meeting.
Refunding Bond Resolution
Trustee McGee moved, seconded by Trustee Hoyt and unanimously carried to approve the following resolution:
REFUNDING BOND RESOLUTION OF THE VILLAGE OF TARRYTOWN, COUNTY OF WESTCHESTER, STATE OF NEW YORK, ADOPTED AUGUST 4, 2010, AUTHORIZING THE REFUNDING OF ALL OR A PORTION OF CERTAIN OUTSTANDING SERIAL BODNS OF SAID VILLAGE, STATING THE PLAN OF REFUNDING, AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $7,600,000 REFUNDING SERIAL BONDS OF THE VILLAGE AND MAKING CERTAIN OTHER DETERMINATIONS ALL RELATIVE THERETO
WHEREAS, the Village of Tarrytown, located in Westchester County, State of New York (the “Village”) previously issued $4,570,000 principal amount of Public Improvement Serial Bonds, Series 1997 (the “Series 1997 Bonds”) pursuant to a certificate of determination of the Village Treasurer of the Village (sometimes referred to herein as the ”Chief Fiscal Officer”), dated October 2, 1997, which Series 1997 Bonds are dated October 1, 1997 and matured or mature in annual installments on October 1 in each of the years 1998 to 2013, inclusive, as follows:
$90,000 in the year 1998;
$205,000 in the year 1999;
$215,000 in the year 2000,
$225,000 in the year 2001,
$235,000 in the year 2002,
$250,000 in the year 2003,
$265,000 in the year 2004,
$275,000 in the year 2005,
$290,000 in the year 2006,
$305,000 in the year 2007,
$325,000 in the year 2008,
$340,000 in the year 2009,
$360,000 in the year 2010,
$380,000 in the year 2011,
$395,000 in the year 2012, and
$415,000 in the year 2013;
WHEREAS, the Series 1997 Bonds were authorized pursuant to a serial bond resolutions duly adopted by the Board of Trustees of the Village for the objects or purposes described therein and delegated to the Chief Fiscal Officer the power to prescribe the terms, form and contents of and to sell and deliver such serial bonds of the Village; and
WHEREAS, $1,550,000 aggregate principal amount of the Series 1997 Bonds currently remain outstanding and unredeemed as of the date hereof; and
WHEREAS, the Village previously issued $7,954,000 principal amount of Public Improvement Serial Bonds, Series 2002A (the “Series 2002 Bonds”, and together with the 1997 Bonds, the “Refunded Bonds”) pursuant to a certificate of determination of the Village Treasurer of the Village, dated March 28, 2002, which Series 2002 Bonds are dated March 15, 2002 and matured or mature in annual installments on March 15 in each of the years 2003 to 2021, inclusive, as follows:
$269,000 in the year 2003,
$280,000 in the year 2004,
$290,000 in the year 2005,
$305,000 in the year 2006,
$320,000 in the year 2007,
$335,000 in the year 2008,
$355,000 in the year 2009,
$370,000 in the year 2010,
$385,000 in the year 2011,
$405,000 in the year 2012,
$430,000 in the year 2013,
$450,000 in the year 2014,
$465,000 in the year 2015,
$485,000 in the year 2016,
$510,000 in the year 2017
$535,000 in the year 2018,
$560,000 in the year 2019,
$585,000 in the year 2020, and
$620,000 in the year 2021;
WHEREAS, the Series 2002 Bonds were authorized pursuant to serial bond resolutions duly adopted by the Board of Trustees of the Village for the objects or purposes described therein and delegated to the Chief Fiscal Officer the power to prescribe the terms, form and contents of and to sell and deliver such serial bonds of the Village; and
WHEREAS, $5,800,000 aggregate principal amount of the Series 2002 Bonds currently remain outstanding and unredeemed as of the date hereof; and
WHEREAS, it is hereby determined to be in the public interest of the Village to refund (i) $1,550,000 of the said outstanding $4,570,000 aggregate principal amount Series 1997 Bonds maturing in 2010 and thereafter and (ii) $5,800,000 of the said outstanding $7,954,000 aggregate principal amount Series 2002 Bonds maturing in 2011 and thereafter, by the issuance of the refunding bonds authorized herein pursuant to Section 90.10 of the Local Finance Law; and
WHEREAS, such refunding will only be undertaken if it results in present value savings in debt service as required by Section 90.10 of the Local Finance Law;
NOW THEREFORE, THE BOARD OF TRUSTEES OF THE VILLAGE OF TARRYTOWN, NEW YORK, HEREBY RESOLVES, AS FOLLOWS:
Section 1. For the purpose of refunding the outstanding principal balance of the Refunded Bonds as more fully set forth in the Refunding Financial Plan (hereinafter defined), including providing moneys which, together with the interest earned from the investment of certain of the proceeds of the refunding bonds herein authorized shall be sufficient to pay: (i) the principal amount of the Refunded Bonds; (ii) the aggregate amount of the unmatured interest payable on the Refunded Bonds to and including the date on which any series of the Refunded Bonds which are callable are to be redeemed prior to their respective maturities in accordance with the Refunding Financial Plan (as hereinafter defined) and attached hereto as Exhibit B and made a part of this resolution; (iii) the costs and expenses incidental to the
issuance of the refunding bonds hereinafter authorized, including without limitation, the development of the Refunding Financial Plan, costs and expenses of executing and performing the terms and conditions of the Escrow Contract (as hereinafter defined), and any securities supply contract, the premium with respect to any bond insurance policy or policies acquired with respect to the Refunding Bonds (as defined below), discount or compensation of underwriters, fees of bond counsel and financial advisors, rating agency fees, printing and service agency fees and expenses, and fees and charges of the Escrow Holder (as hereafter described); and (iv) the redemption premium, if any, to be paid on any series of the Refunded Bonds which are to be called prior to their respective maturities; there are hereby authorized to be issued in one or more series not exceeding $7,600,000 aggregate principal amount of refunding serial bonds of the Village pursuant to the provisions of Section 90.10 of
the Local Finance Law (the “Refunding Bonds”), it being anticipated that the amount of Refunding Bonds actually to be issued will be approximately $7,505,000 as provided in Section 4 hereof. The proposed principal amounts and dates of maturity of such Refunding Bonds are set forth in the Refunding Financial Plan attached hereto.
Section 2. It is hereby determined pursuant to Section 90.10 that:
(a) the maximum amount of the Refunding Bonds authorized to be issued pursuant to this resolution does not exceed the limitation imposed by subdivision 1 of paragraph (b) of Section 90.10 of the Local Finance Law with respect to each series of the Refunded Bonds;
(b) the maximum period of probable usefulness permitted by law at the time of the issuance of the Refunded Bonds for the objects or purposes for which the Refunded Bonds were issued is as shown in Exhibit A;
(c) the last installment of the Refunding Bonds will mature not later than expiration of the maximum period of probable usefulness of the objects or purposes for which the Refunded Bonds were issued, or in the alternative, the weighted average remaining period of probable usefulness of the objects or purposes (or classes of objects or purposes) financed with the Refunded Bonds, in accordance with the provisions of Section 90.10(c)(1) of the Local Finance Law;
(d) the estimated present value of the total debt service savings anticipated as a result of the issuance of the Refunding Bonds, computed in accordance with subparagraph (a) of subdivision 2 of paragraph b of Section 90.10 of the Local Finance Law is as shown in the Refunding Financial Plan described in Section 4 hereof, subject to changes in market interest rates;
Section 3. (a) The Village Treasurer is hereby authorized and directed to enter into an escrow contract (the “Escrow Contract”) with a bank or trust company located and authorized to do business in this State as the Village Treasurer shall designate (the “Escrow Holder”) for the purpose of having the Escrow Holder act, in connection with the Refunding Bonds, as the escrow holder to perform the services described in Section 90.10 of the Local Finance Law. In addition, the Escrow Contract may include a forward supply or purchase contract or agreement as part thereof or as a separate agreement for the provision of acquiring obligations of the United States of America or unconditionally guaranteed by the United States of America or other obligations or instruments qualified under Section
90.10 of the Local Finance Law or may be necessary for the completion of the Refunding Financial Plan. The Escrow Contract shall contain such terms and conditions as shall be necessary or required, including terms and conditions required for the completion of the Refunding Financial Plan, including provisions for the Escrow Holder, without further authorization or direction from the Board of Trustees of the Village, except as otherwise provided therein, including, without limitation, (i) to make all required payments of principal, interest and any redemption premiums to appropriate paying agents with respect to the Refunded Bonds, (ii) to pay costs and expenses incidental to the issuance of the Refunding Bonds, including the development of the Refunding Financial Plan, and of executing and performing the terms and conditions of the Escrow Contract by the Escrow Holder, (iii) at the appropriate time or times, to cause to be given on behalf of the Village in the manner provided by
law the notice of redemption authorized to be given pursuant to Section 8 hereof, and (iv) to invest the moneys held by the Escrow Holder pursuant to the terms of the Escrow Contract and consistent with the provisions of the Refunding Financial Plan. The Escrow Contract shall be irrevocable and shall constitute a covenant with the owners of the Refunding Bonds.
(b) The proceeds, inclusive of any premium, from the sale of the Refunding Bonds, immediately upon receipt, shall be placed in escrow by the Village with the Escrow Holder pursuant to the terms of the Escrow Contract. All moneys held by the Escrow Holder shall be invested only in direct obligations of the United States of America, in obligations the principal of and interest on which are unconditionally guaranteed by the United States of America or in obligations or instruments qualified under Section 90.10 of the Local Finance Law, which obligations or instruments shall mature or be subject to redemption at the option of the Escrow Holder not later than the respective dates when such moneys will be required to make payments in accordance with the Escrow Contract and the Refunding Financial Plan. Any such moneys remaining
in the custody of the Escrow Holder after the performance in full of the Escrow Contract by the Escrow Holder shall be returned to the Village and shall be applied by the Village Treasurer to the payment of the principal of or interest on the Refunding Bonds then outstanding, to the payment of any amounts required to be paid to the United States of America in connection with the refunding of the Refunding Bonds or to the payment of or reimbursement for the costs of issuance or other administrative costs incurred in connection with the issuance of the Refunding Bonds. In connection with the investment of moneys held by the Escrow Holder under the Escrow Contract, the Village Treasurer is authorized to execute on behalf of the Village any forward purchase or supply contract for the purchase or supply of the securities described in this subsection (d) at a date subsequent to the delivery of the Refunding Bonds, as is needed to accomplish the purposes of the Refunding Financial Plan.
Section 4. The financial plan for the refunding authorized by this resolution (the “Refunding Financial Plan”), showing the sources and amounts of all moneys required to accomplish such refunding, the estimated present value of the total debt service savings and the basis for the computation of the aforesaid estimated present value of total debt service savings, are set forth in Exhibit B attached hereto and made a part hereof. The Refunding Financial Plan has been prepared based upon the assumption that the Refunding Bonds will be issued in the aggregate principal amount of $7,505,000 and will mature, be of such terms, and bear such interest as set forth in the Refunding Financial Plan. The Board of Trustees of the Village recognizes that the principal amount of the Refunding Bonds, the series,
maturities, terms, interest rate or rates borne by the Refunding Bonds, the provisions for redemption thereof prior to maturity and whether or not all of the Refunding Bonds will be insured, and the resulting present value savings are likely to vary from such assumptions and that the Refunding Financial Plan will likely vary from that attached hereto as Exhibit B. The Village Treasurer is hereby authorized and directed to determine the principal amount of the Refunding Bonds to be issued, the series and designation or designations thereof, the time or times of the sale thereof, the maturities and terms thereof, the provisions relating to the redemption of the Refunding Bonds prior to maturity, if any, the rate or rates of interest to be borne thereby, whether or not the Refunding Bonds will be insured in whole or in part or uninsured, and to prepare, or cause to be provided, a final Refunding Financial Plan, all in accordance herewith, and all powers in connection therewith may be
exercised by the Village Treasurer; provided, that the terms of the Refunding Bonds to be issued, including the rate or rates of interest borne thereby, shall comply with the requirements of Section 90.10 of the Local Finance Law. The Village Treasurer shall file a copy of a certificate determining the details of the Refunding Bonds and the final Refunding Financial Plan with the Village Clerk within ten (10) days after the delivery of the Refunding Bonds, as herein provided.
Section 5. The faith and credit of the Village are hereby irrevocably pledged to the payment of the principal of and interest on the Refunding Bonds as the same respectively become due and payable. An annual appropriation shall be made in each year sufficient to pay the principal of and interest on the Refunding Bonds becoming due and payable in such year. To the extent that the same are not paid from other sources, there shall be annually levied on all the taxable real property in the Village a tax sufficient to pay the principal of and interest on the Refunding Bonds as the same become due and payable.
Section 6. Proceeds from the sale of the Refunding Bonds, including any accrued interest and, together with interest earned thereon, which shall be required for the payment of the principal of and interest on the Refunded Bonds, including any redemption or call premiums, in accordance with the Refunding Financial Plan, shall be irrevocably committed and pledged to such purpose and the owners of the Refunded Bonds shall have a lien upon such moneys and the investments thereof held by the Escrow Holder. The pledge and lien provided by this resolution shall become valid and binding upon the issuance of the Refunding Bonds and the moneys and investments held by the Escrow Holder shall immediately be subject thereto without any further act. Such pledge and lien shall be valid and binding against all parties having claims
of any kind in tort, contract, equity, at law or otherwise against the Village irrespective of whether such parties have notice thereof. Neither this resolution, the Escrow Contract, nor any other instrument relating to such pledge and lien, needs to be filed or recorded.
Section 7. In accordance with the terms of the Refunded Bonds and the provisions of Section 53.00 and of paragraph (h) of Section 90.10 of the Local Finance Law, the Village hereby elects to call in and redeem each Refunded Bond, which the Village Treasurer shall determine to be refunded at the earliest call date available. The sum to be paid therefor on such redemption date shall be the par value thereof plus the redemption premium, if any, and the accrued interest to such redemption date. The Escrow Holder is hereby authorized and directed to cause notice of such call for redemption to be given in the name of the Village in the manner and within the times provided in the issuance proceedings for the Refunded Bonds. Such notice of redemption shall be in substantially the form attached to the Escrow Contract. Upon the
issuance of the Refunding Bonds, the election to call in and redeem the applicable portion of the callable Series 1997 Bonds and the Series 2002 Bonds and the direction to the Escrow Holder to cause notice thereof to be given as provided in this paragraph shall become irrevocable, provided that this paragraph may be amended from time to time as may be necessary in order to comply with the notice requirements of paragraph (a) of Section 53.00 of the Local Finance Law, or any successor law thereto. It is hereby determined that with respect to the series of Refunded Bonds to be called in and redeemed as provided in this Section 7, it is to the financial advantage of the Village not to charge, impose and collect or receive from registered owners of the Refunded Bonds mailing, shipping, insurance or other similar charges in connection with such redemption or calls. Accordingly, pursuant to paragraph (c) of Section 70.00 of the Local Finance Law, no such charges shall be so charged,
collected or received by the Chief Fiscal Officer, as fiscal agent.
Section 8. The Refunding Bonds shall be sold at a public sale using a notice of sale, or at the election of the Village Treasurer, at a private sale by negotiation, in either case to a purchaser (the “Purchaser”) for a purchase price to be determined by the Village Treasurer, plus accrued interest from the date of the delivery of and payment for the Refunding Bonds, subject to the approval of the terms and conditions of such sale by the State Comptroller as may be required by subdivision 2 of paragraph f of Section 90.10 of the Local Finance Law. If sold at a public sale, the Village Treasurer is hereby authorized to conduct such public sale in accordance with the provisions of the Local Finance Law and all other applicable statutes and regulations, and to make all final decisions with respect to or
arising out of such public sale. After the Refunding Bonds have been duly executed, they shall be delivered by the Village Treasurer to the Purchaser in accordance with the notice of sale or a purchase contract between the Village and the Purchaser, which shall be in form and substance satisfactory to the Village Treasurer.
Section 9. The Board of Trustees of the Village hereby appoints the law firm of Cahill/Wink LLP, of New York, New York, as bond counsel in connection with the issuance and sale of the Refunding Bonds. The Board of Trustees of the Village hereby appoints the firm of Capital Markets Advisors, LLC of Hopewell Junction, New York, as financial advisor in connection with the issuance and sale of the Bonds. The Board of Trustees of the Village is hereby authorized to appoint an Escrow Holder, as that term is referred to herein, at a future date.
Section 10. Each of the Refunding Bonds authorized by this resolution shall contain the recital of validity prescribed by Section 52.00 of the Local Finance Law and the Refunding Bonds shall be general obligations of the Village, payable as to both principal and interest by a general tax upon all the taxable real property within the Village, without limitation as to rate or amount.
Section 11. The Village Treasurer, pursuant to Sections 50.00, 90.00, 90.10 and 168.00 of the Local Finance Law, and all other officers, employees and agents of the Village are hereby authorized and directed for and on behalf of the Village to execute and deliver all certificates and other documents, perform all acts and do all things required or contemplated to be executed, performed or done by this resolution or any document or agreement approved hereby, including to correct or amend the documents and certificates authorized to complete the transactions contemplated by this resolution.
Section 12. All other matters pertaining to the terms, issuance and sale of the Refunding Bonds consistent with the provisions of Section 90.10 of the Local Finance Law shall be determined by the Village Treasurer and the powers in connection therewith not otherwise heretofore delegated thereto are hereby delegated to the Village Treasurer.
Section 13. The Village Treasurer is further authorized to take such actions and execute such documents as may be necessary to ensure the continued status of the interest on the Refunding Bonds as excludable from gross income for federal income tax purposes pursuant to Section 103 of the Internal Revenue Code of 1986, as amended (the “Code”) and, if applicable, to designate the Refunding Bonds authorized by this resolution as “qualified tax-exempt obligations” in accordance with Section 265 of the Code.
Section 14. For the benefit of the holders and beneficial owners from time to time of the obligations, the Village agrees, in accordance with and as an obligated person with respect to the obligations under, Rule 15c2-12 promulgated by the Securities Exchange Commission pursuant to the Securities Exchange Act of 1934 (the “Rule”), to provide or cause to be provided such financial information and operating data, financial statements and notices, in such manner, as may be required for purposes of the Rule. In order to describe and specify certain terms of the Village’s continuing disclosure agreement for that purpose, and thereby to implement that agreement, including provisions for enforcement, amendment and termination, the Village Treasurer is authorized and directed to sign and deliver, in
the name and on behalf of the Village, the commitment authorized by subsection 6(c) of the Rule (the “Commitment”), to be placed on file with the Village Clerk, which shall constitute the continuing disclosure agreement made by the Village for the benefit of holders and beneficial owners of the obligations in accordance with the Rule, with any changes or amendments that are not inconsistent with this bond resolution and not substantially adverse to the Village and that are approved by the Village Treasurer on behalf of the Village, all of which shall be conclusively evidenced by the signing of the Commitment or amendments thereto. The agreement formed collectively by this paragraph and the Commitment, shall be the Village’s continuing disclosure agreement for purposes of the Rule, and its performance shall be subject to the availability of funds and their annual appropriation to meet the costs the Village would be required to incur to perform thereunder. The Village Treasurer of
the Village is further authorized and directed to establish procedures in order to ensure compliance by the Village with its continuing disclosure agreement, including the timely provision of information and notices. Prior to making any filing in accordance with the agreement or providing notice of the occurrence of any material event, the Village Treasurer of the Village shall consult with, as appropriate, the Village Attorney and bond counsel or other qualified independent special counsel to the Village. The Village Treasurer of the Village, acting in the name and on behalf of the Village, shall be entitled to rely upon any legal advice provided by such Village Attorney or bond counsel or other qualified independent special counsel in determining whether a filing should be made.
Section 15. When this refunding bond resolution takes effect, the Village Clerk shall cause the same, or a summary thereof, to be published together with a notice in substantially the form prescribed by Section 81.00 of the Local Finance Law in The Journal News, a newspaper having a general circulation in the Village. The validity of the Refunding Bonds authorized by this bond resolution may be contested only if such obligations are authorized for an object or purpose, or class of object or purpose, for which the Village is not authorized to expend money, or the provisions of law which should have been complied with as of the date of publication of this bond resolution, or such summary thereof, are not substantially complied with, and an action, suit or proceeding contesting such validity is commenced within
twenty (20) days after the date of such publication, or if such obligations are authorized in violation of the provisions of the Constitution of the State of New York.
Section 17. This bond resolution shall take effect immediately upon its adoption by the Board of Trustees of the Village.
Trustee McGovern moved, seconded by Trustee McGee and unanimously carried that the Special Meeting be adjourned. Meeting was adjourned at 6:10 p.m.
Respectfully submitted,
Michael S. Blau
Village Administrator
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