RESOLUTION NO. 14-R- A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MARION COUNTY, FLORIDA DIRECTING AND AUTHORIZING THE ACQUISITION OF SUBSTANTIALLY ALL OF THE REAL AND PERSONAL PROPERTY COMPRISING THE WATER ASSETS OWNED BY WINDSTREAM UTILITIES COMPANY IN MARION COUNTY, FLORIDA; FINDING THAT THE ACQUISITION IS IN THE PUBLIC INTEREST, IN CONFORMANCE WITH SECTION 125.3401, FLORIDA STATUTES, AND SERVES A PARAMOUNT PUBLIC PURPOSE; APPROVING RATES AND CHARGES; APPROVING AND AUTHORIZING THE CHAIR TO EXECUTE THE AGREEMENT OF PURCHASE AND SALE OF WATER ASSETS; APPROVING AND AUTHORIZING THE CHAIR TO EXECUTE THE WATER TANK LEASE AGREEMENT BETWEEN MARION COUNTY, FLORIDA, AND WINDSTREAM UTILITIES COMPANY; APPROVING AND AUTHORIZING THE CHAIR, VICE CHAIR, OR THEIR DESIGNEE TO EXECUTE ACQUISITION CLOSING DOCUMENTS AND SUCH AGREEMENTS AS MAY BE REQUIRED TO INITIATE SERVICE; AND PROVIDING FOR APPLICABILITY AND AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MARION COUNTY, FLORIDA, AS FOLLOWS: SECTION 1. AUTHORITY. Pursuant to Chapter 125, Florida Statutes, Marion County ( County ) has the power to acquire, own, improve, operate, and maintain water utility assets. SECTION 2. INCORPORATION BY REFERENCE. The Staff Report, including a description of the water assets of Windstream Utilities Company ( Windstream ) to be acquired by the County within Marion County, Florida (the Windstream Utility Assets or Utility Assets ), the most recent income and expense statement, the most recent available balance sheet, a description of the system s physical condition, a statement on the reasonableness of the price, a statement on customer impacts, a statement on additional investments required by the County and the County s ability and willingness to make these investments, a description of any alternatives to acquisition by the County, and a statement regarding the ability of the County to operate acquired systems, presented at this public hearing and filed with the Clerk are hereby incorporated herein by reference and made a part hereof (hereafter referred to as the Report ). The Report is attached hereto as Appendix 1. The Report is intended to be a statement demonstrating that the acquisition of the Utility Assets is in the public interest.
SECTION 3. FINDINGS. It is hereby ascertained, determined and declared: (A) Chapter 125, Florida Statutes, grants the County the power to acquire, own, operate, maintain, and improve water utility assets. (B) Windstream owns and operates certain water production, treatment, storage, transmission and distribution assets within the County. (C) The Board is required to hold a public hearing on the acquisition of the Windstream Utility Assets to ensure that such acquisition serves the public interest. A public hearing was held on April 15, 2014 and continued to May 6, 2014. This public hearing was duly advertised in Marion County. All interested persons had an opportunity to attend and participate and to file written comments. (D) County ownership of the Windstream Utility Assets will provide an opportunity for the County to: (1) address and balance the impact of growth with the need to provide and plan for quality water production, treatment, storage, transmission and distribution assets necessary to accommodate existing development and anticipated future growth, all in a manner concurrent with the demands for such facilities in the area, the requirements of state and federal mandates, and the demands of new development and local government s statutory responsibility to implement financially feasible comprehensive plans; (2) further develop a regional approach relative to the comprehensive supply, distribution, and treatment of water in the County; (3) seek economies of scale relative to operations, maintenance, customer service and management; (4) provide current and future users of the Utility Assets with cost efficient services at reasonable rates by a governmental entity; (5) ensure that the operation and maintenance of the Utility Assets is done in a proactive and environmentally responsible manner; (6) reduce inefficient expansion and extension of service capacities and avoid the proliferation of smaller treatment facilities and sites; (7) offer an opportunity for the County to coordinate the expansion, interconnection, and extension of facilities as a part of the County s larger community water system; 2
(8) accomplish a greater public use and increased public benefit which results from the ownership, operation and control of the Windstream Utility Assets by a governmental entity; and (9) enable the County to more effectively and efficiently plan and fulfill its comprehensive planning requirements as provided by law and assure that high quality, cost efficient water and wastewater utility services are available within the County. (E) On November 30, 1993, the Board duly adopted Resolution No. 93-R-292. Resolution No. 93-R-292, as supplemented and amended (the "Bond Resolution") to provide for the issuance of debt secured by net revenues of the County's water and wastewater system. (F) The purchase price of the Windstream Utility Assets will be paid by the County in quarterly installments (the "Installment Payments") in accordance with the Purchase Agreement (as defined herein). SECTION 4. DETERMINATION OF PUBLIC USE AND BENEFIT. (A) Based upon the legislative findings incorporated in Section 3, the Board of County Commissioners (the Board ) expressly determines that the acquisition of the Windstream Utility Assets by the County, pursuant to the terms of the Agreement of Purchase and Sale attached hereto as Appendix 2 ( the Purchase Agreement ), constitutes a paramount public purpose and is in the best interests of the health, safety, and welfare of the County, its inhabitants and affected ratepayers. (B) The acquisition of the Utility Assets and the entry into the Water Tank Lease Agreement and other operations agreements (electric, telephone, materials and supplies), as may be necessary, is reasonable and necessary to cost effectively and efficiently transition services from private ownership to governmental ownership and provide service to the Windstream service area, and will provide a greater public use and increased public benefit than provided under Windstream s existing operations. SECTION 5. PUBLIC INTEREST DETERMINATION OF PURCHASE. In making the public interest determination concerning the transactions contemplated by the County relating to the acquisition of the Utility Assets, the Board has considered numerous factors, including but not limited to the following matters: (A) (B) (C) (D) Windstream s most recently available income and expense statement(s); Windstream s most recently available balance sheet(s); Windstream s existing rate base for regulatory purposes; The general physical condition of the Windstream Utility Assets; 3
(E) The reasonableness of the purchase price; (F) The impacts of the contemplated acquisition on utility customers served by the Windstream Utility Assets, both positive and negative; (G) Any additional investment required and the ability and willingness of the County to make that investment; (H) The alternatives to the contemplated acquisition and the potential impact on utility customers if the Windstream Utility Assets are not acquired by the County; and (I) The ability of the County to provide and maintain high quality and cost effective utility service. SECTION 6. APPROVAL OF AGREEMENT OF PURCHASE AND SALE BY AND BETWEEN WINDSTREAM UTILITIES COMPANY AND MARION COUNTY, FLORIDA. The Agreement of Purchase and Sale By and Between Windstream and the County, submitted to this duly called public meeting and attached hereto as Appendix 2 is hereby approved. The Chair, or a designee, is hereby authorized to execute the Purchase Agreement. SECTION 7. APPROVAL OF THE WATER TANK LEASE AGREEMENT BY AND BETWEEN MARION COUNTY, FLORIDA AND WINDSTREAM UTILITIES COMPANY. The Water Tank Lease Agreement by and between the County and Windstream submitted to this duly called public meeting and attached hereto as Appendix 3, be and the same is hereby approved. The Chair, or a designee, is hereby authorized to execute the Water Tank Lease Agreement. SECTION 8. APPROVAL OF RATES. The schedule of rates and charges effective as of the date of the closing of the purchase of the Windstream Utility Assets shall be those rates currently in effect and being charged to customers currently being served by the County Utilities Department pursuant to Ordinance No. 09-05 and County Resolution 09-R-87, and are attached hereto as Appendix 4. Such rates, fees and charges are hereby approved and adopted as of such closing. SECTION 9. APPROVAL OF ACQUISITION DOCUMENTS. The Chair, Vice Chair, or their designee, are hereby authorized and directed to execute and deliver all documents, papers, agreements, and instruments (collectively, the Acquisition Documents ) and take all actions necessary and proper to effect the acquisition of the Windstream Utility Assets and initiation of water service by the County. Execution of the Acquisition Documents by the Chair, Vice Chair, or their designee, shall be deemed to be conclusive evidence of approval of such Acquisition Documents. All of the provisions of the Acquisition Documents, when executed and delivered by the County, as authorized herein, shall be deemed to be a part of this Resolution as fully and to the same extent as if incorporated verbatim herein. 4
SECTION 10. PAYMENT OF INSTALLMENT PAYMENTS. The Installment Payments shall be made solely from Net Revenues of the System (as such terms are defined in the Bond Resolution) and shall not constitute a general obligation debt of the County or a pledge of the faith and credit of the County. The Installment Payments shall in all respects be treated as payments on "Subordinated Indebtedness" as defined in and in accordance with the provisions of the Bond Resolution the payment of such expressly subordinate to the payment of all Bonds (as defined in the Utilities Bond Resolution) issued at any time pursuant to the Utilities Bond Resolution and any Subordinated Indebtedness issued prior to the date hereof. Notwithstanding the foregoing, Windstream shall have a subordinated lien on the annual Net Revenues of the System equal to the unpaid balance of the Installment Payments. Said lien shall be subordinate to the Bonds described above and any other parity bonds issued in the future payable from the Net Revenues of the System. SECTION 11. COVENANTS RELATED TO INSTALLMENT PAYMENTS. (A) Events of Default. In accordance with Section 3 of the Purchase Agreement, the County acknowledges that an event of default under the Bond Resolution shall constitute an event of default under the Installment Payments. (B) Rate Covenant. The County covenants to fix, establish and maintain such rates, and collect such fees, rates or other charges for the product, services and facilities of the System, and revise the same from time to time, whenever necessary, as will always provide in each Fiscal Year, Net Revenues adequate to pay at least 100% of the interest and principal on all Bonds and all Subordinated Indebtedness, including the Installment Payments, becoming due in such Fiscal Year. SECTION 12. APPLICABILITY AND EFFECTIVE DATE. This Resolution shall be liberally construed to effect the purposes hereof and shall take effect immediately upon its adoption. 5
PASSED AND DULY ADOPTED at the meeting of the Board of the County Commission of Marion County, Florida on the day of, 2014. BOARD OF COUNTY COMMISSIONERS OF MARION COUNTY, FLORIDA (SEAL) Carl Zalak, III, Chairman ATTEST: David R. Ellspermann, Clerk of the Circuit Court and Ex-Officio Clerk of the Board of County Commissioners 6