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HomeMy WebLinkAbout09-30-2004 Not Exceeding $7,100,000 City Of WS, FL Capital Improvement Revenue Notes, Series 2004BBROWN, GARGANESE, WEISS & UAGRESTA, P.A. Attorneys at Laiv Usher L. BrownOffices in Orlando Kissimmee, Debra S. Babb-Nutcher° Jeffrey P. Buak° Cocoa & Viera Joseph E. Blitch Suzanne D'Agresta° John U. Biedenharn, Jr. Anthony A. Garganese° John H. Ward' Victoria L. Cecil Lisa M. Fletcher Jeffrey S. Weiss Amy J. Goddard Katherine Latorre 'Board Certified Civil Trial Lawyer °Board Certified City, County & Local Government Law City Commission City of Winter Springs, Florida Akerman Senterfitt Orlando, Florida September 30, 2004 Bank of America Orlando, Florida Re: Not Exceeding $7,100,000 City of Winter Springs, Florida Capital Improvement Revenue Notes, Series 2004B Ladies and Gentlemen: Erin J. O'Leary J. W. Taylor Of Counsel We have acted as City Attorney in connection with the issuance by the City of Winter Springs, Florida (the "City") of its Not Exceeding $7,100,000 Florida Capital Improvement Revenue Note, Series 2004B, dated September 30, 2004 (the "Note"). In such capacity, we have examined originals or copies certified or otherwise identified to our satisfaction of: (i) City of Winter Springs Resolution No. 2004-47, adopted by the City Commission of the City on September 27, 2004 (the "Resolution") which Resolution among other matters authorized the issuance by the City of the Note and awarded the sale of the Note to Bank of America and (ii) that certain Loan Agreement dated as of September 30, 2004 between the City and Bank of America entered into in connection with the issuance of the Note (the "Loan Agreement"). Capitalized terms not defined herein shall have the meaning ascribed to them in the Resolution and Loan Agreement. In rendering the opinions set forth herein, we have also reviewed the Constitution and laws of the State of Florida, particularly Chapter 166, Florida Statutes, the City Charter, and such other laws, documents, proofs and proceedings as we have deemed necessary as a basis for the opinions hereinafter expressed. As to questions of fact material to our opinion, we have relied upon representations of the City contained in the Resolution by the City's City Commission and in the certified proceedings and other certifications of public officials furnished to us, without undertaking 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: firm@orlandolaw.net City Commission Akerman Senterfitt Bank of America October 1, 2004 Page 2 to verify the same by independent investigation. We have not undertaken independent audit, examination, investigation or inspection of such matters and have relied solely on the facts, estimates and circumstances described in such proceedings and certifications. We have assumed the genuineness of signatures on all documents and instruments, the authenticity of documents submitted as originals and the conformity to originals of documents submitted as copies. It is also understood that the undersigned firm and the City have relied on Akerman, Senterfitt for the issuance of legal advice and opinions regarding the Notes and Loan Agreement and other matters set forth in its opinions of even date. Wherever in this opinion a matter is limited by the term "to the best of our knowledge," such statement is deemed to refer to our actual knowledge and excludes imputed knowledge, and we disclaim any duty to verify the same by independent investigation. In giving the opinions expressed below, we do not purport to be experts in or generally familiar with or qualified to express legal opinions based on the laws of any jurisdiction (including but not limited to the laws of the United States) other than the State of Florida and the City of Winter Springs. Based on the foregoing, we are of the opinion that as of the date of this letter, that: 1. The City is a duly existing municipal corporation of the State of Florida (the "State") and had and has good right and lawful authority under the Constitution and laws of the State to adopt the Resolution and to enter into the Loan Agreement and to authorize and issue the Notes. The Resolution has been duly adopted by the City, the City has duly authorized the execution and delivery by the Mayor and the City Clerk of the Loan Agreement and the Resolution and the Loan Agreement are in full force and effect and constitute valid, legal and binding obligations of the City enforceable in accordance with their terms. 2. As to the referenced Notes, the City has duly performed all obligations to be performed by it as of this date pursuant to the Resolution and the Loan Agreement. 3. The Note has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery thereof, constitutes the valid and binding agreement of the City, enforceable in accordance with its terms, except that the binding effect and enforceability are subject to bankruptcy laws and other laws affecting creditors' rights and to the exercise of judicial discretion. 4. To the best of our knowledge, adoption of the Resolution, the execution and delivery of the Note and the Loan Agreement, and compliance with the provisions on the City Commission Akerman Senterfitt Bank of America October 1, 2004 Page 3 City's part contained therein, will not conflict with or constitute a breach of or default under any judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any such instrument, except as expressly provided in the Note and the Resolution. 5. To the best of our knowledge, the City is not in material breach of or material default under any applicable constitutional provision, law or administrative regulation of the State or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note resolution, agreement or other material instrument to which the City is a party or to which the City or any of its property or assets is otherwise subject, including the Resolution, which would have a material, adverse impact on the City's ability to perform its obligations under the Resolution and the Loan Agreement, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or event of default on the part of the City or the other parties thereto under any such instruments. 6. To the best of our knowledge, there is no action, suit proceeding, inquiry or investigation at law or in equity before or by any court, government agency, public board or body, pending or, to the best of our knowledge, threatened against or affecting the City, nor to the best of our knowledge is there any basis for such action, suit, proceedings, inquiry or investigation, wherein an unfavorable decision, ruling or finding would have a materially adverse effect upon the transactions contemplated by the Loan Agreement or the validity of the Note, and the Resolution. 7. All approvals, consents, authorizations and orders of any governmental authority or agency having jurisdiction in any matter which would constitute a condition precedent to the performance by the City of its obligations under the Resolution, the Note and the Loan Agreement have been obtained and are in full force and effect, except it is to be understood that any Hurricane Charley and Frances disaster relief funding that the City anticipates will be paid to the City from County, State, and Federal authorities and agencies (including State of Florida and FEMA) have not been finally approved ordelivered to the City. It is to be understood that the rights of the owners of the Note and the enforceability of the Note may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights and laws and equitable principles that may affect remedies or inductive or other equitable relief, and to the exercise of judicial discretion in appropriate cases. City Commission Akerman Senterfitt Bank of America October 1, 2004 Page 4 8. The Resolution has been duly and lawfully adopted and is in full force and effect, and is in full force and effect, and constitutes valid and biding obligation of the City, enforceable in accordance with its terms, except that the binding effect and enforceability are subject to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, readjustment of debt and other laws in effect from time to time affecting the rights of creditors generally and except to the extent that enforceability thereof may be limited by the application of principles of equity. The foregoing opinions are subject to the effect of, and restrictions and limitations imposed by or resulting from bankruptcy, insolvency, debt adjustment, moratorium, reorganization orother similar laws affecting creditors' rights and judicial discretion and the valid exercise of the sovereign police powers of the State of Florida and of the constitutional power of the United States of America. Our opinions expressed herein are predicted upon present law (and interpretations thereof), facts and circumstances, and we assume no affirmative obligation to update the opinions expressed herein if such laws (and interpretations thereof), facts or circumstances change after the date hereof. Very truly yours, BR N GARGANESE, WEISS & D'AGRESTA, P.A. By: Anthony A. Garganese, City Attorney, City of Winter Springs AAG/Img