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233.2011 950,00 bonds replacement storage tank RESOLUTION AMENDING AND RESTATING ORIGINAL BOND RESOLUTION AND AUTHORIZING THE ISSUANCE OF UP TO $950,000 SERIAL BONDS OF THE TOWN OF QUEENSBURY TO PAY THE COST OF CLOSURE AND REPLACEMENT OF FUEL STORAGE TANKS; AND AUTHORIZING THE ISSUANCE OF UP TO $950,000 BOND ANTICIPATION NOTES OF THE TOWN FOR THE SAME PURPOSE RESOLUTION NO.: 233, 2011 INTRODUCED BY: Mr. Tim Brewer WHO MOVED ITS ADOPTION SECONDED BY: Mr. Anthony Metivier WHEREAS, the Town’s existing fiberglass reinforced plastic (“FRP”) underground fuel storage tanks were installed in approximately 1985, and the age of the tanks and the tendency of new alcohol additive fuels to reduce FRP tank life expectancy increase the risk of leakage from the tanks; and WHEREAS, the U.S. Environmental Protection Agency (“USEPA”) determined that the existing tanks are in violation of federal Underground Storage Tank regulations and has proposed an Expedited Enforcement Compliance Order and Settlement Agreement which requires correction of these violations; and WHEREAS, the Town has determined that it is advisable to replace the underground tanks in order to correct the violations and reduce the likelihood of tank leakage and costly site remediation; and th WHEREAS, on July 26, 2010 the Town Board adopted a Resolution (the “Original Bond Resolution”) authorizing the issuance of up to $450,000 in serial bonds and/or bond anticipation notes (the “Bonds/BANs”) for the purpose of paying the cost of the closure of the Town’s three existing underground fuel storage tanks and the acquisition, construction and installation of a fueling island in a different location with new aboveground storage tanks and surface spillage containment system, including related preliminary and incidental costs (the "Project"), and authorizing such specific object or purpose at a maximum estimated cost of $450,000; and th WHEREAS, on October 10, 2010 the Town issued its $450,000 Town of Queensbury Bond Anticipation Note, 2010 (Fuel Tanks Replacement Project) (the “Original BAN”) pursuant to the Original Bond Resolution; and WHEREAS, following the Board’s adoption of the Original Bond Resolution and issuance of the Original BAN, the Town was advised that the actual cost of the Project will exceed the maximum estimated cost of the Project stated in the Original Bond Resolution because (a) actual costs of certain professional services required for the Project have exceeded the amounts used in calculating the maximum estimated cost of the Project and (b) unanticipated petroleum contamination which must be remediated was discovered in the vicinity of the fuel tanks during the removal of the tanks; and , WHEREAS although some of the additional costs can be paid from the Town’s General Engineering Fund, an additional amount of Bonds/BANs is likely to be needed to pay the total increased cost of the Project; and WHEREAS, the Town Board wishes to amend the Original Bond Resolution to increase the authorized maximum estimated cost of the Project, revise the plan of financing the total estimated cost and increase the amount of Bonds/BANs authorized to be issued; NOW, THEREFORE, BE IT RESOLVED BY THE TOWN BOARD OF THE TOWN OF QUEENSBURY, WARREN COUNTY, NEW YORK, AS FOLLOWS: Section 1. The specific object or purpose for which the obligations authorized by this Resolution (the “Bond Resolution”) are to be issued is the closure of the three existing underground fuel storage tanks, including remediation of soil contamination, and the acquisition, construction and installation of a fueling island in a different location with new aboveground storage tanks and surface spillage containment system, including related preliminary and incidental costs (the "Project"), and such specific object or purpose is hereby authorized at a maximum estimated cost of Nine Hundred Eighty Thousand and 00/100 Dollars ($980,000.00). 2 The Town Supervisor is authorized and directed to execute any needed change orders he deems necessary to complete this Project (providing that the maximum estimated cost is not exceeded) and to make any and all transfers. The Town Board is authorized to make one or more short term loan(s) from the General Fund to pay expenses incurred for the Project after the date of the Original Bond Resolution but prior to issuance of the Bond/BAN. In addition, the Town Supervisor, the Town Budget Officer and Town Clerk are hereby authorized and directed to take all actions they deem necessary to effectuate this Resolution. Section 2. The plan for the financing of such maximum estimated cost is (a) the use of $30,000 from the Town’s General Engineering Fund and (b) the issuance of up to $950,000 serial bonds and/or bond anticipation notes of the Town, hereby authorized to be issued pursuant to the New York Local Finance Law. The proceeds of the bonds or bond anticipation notes may be used to reimburse expenditures paid by the Town from other funds or otherwise on or after the date of adoption of the Original Bond Resolution. The Town may submit applications for grants and/or low interest loans and, to the extent that any such moneys are received, may apply such funds to the payment of principal and interest on the bonds or bond anticipation notes. Pursuant to Local Finance Law Section 107.00(d)(9), a down payment from current funds is not required. Section 3. It is hereby determined that the period of probable usefulness of the specific object or purpose is ten (10) years, pursuant to Sections 11(a)(35) and (88) of the Local Finance Law. It is hereby further determined that the maximum maturity of the serial bonds herein authorized will exceed five (5) years. Section 4. The faith and credit of the Town of Queensbury, Warren County, New York, are hereby irrevocably pledged for the payment of the principal of and interest on such obligations as they become due and payable. An annual appropriation shall be made in each year sufficient to pay the principal of and interest on such obligations becoming due and payable in such years. There shall annually be levied on all the taxable real property of the Town a tax sufficient to pay the principal of and interest on such obligations as they become due and payable. 3 Section 5. For the purpose of paying the cost of the Project, there are hereby authorized to be issued serial bonds of the Town up to a maximum amount of $950,000 the maximum maturity of which shall not exceed the ten (10) year period of probable usefulness set forth above and which shall mature on or before such date as measured from the date of the bonds or from the date of the first bond anticipation note issued in anticipation of the sale of such bonds, whichever date is earlier. The bonds may be issued in the form of a statutory installment bond. Section 6. There are hereby authorized to be issued bond anticipation notes for the specific object or purpose in an amount up to but not exceeding the $950,000 maximum amount of serial bonds authorized to be issued, in anticipation of the issuance and sale of the serial bonds authorized, including renewals of such bond anticipation notes. Section 7. Any bond anticipation notes shall be payable from the proceeds derived from the sale of the bonds or otherwise redeemed in the manner provided by Section 23.00 of the Local Finance Law. The faith and credit of the Town are hereby irrevocably pledged for the payment of the bond anticipation notes and the interest on them. Section 8. There are no bond anticipation notes outstanding which have been previously issued in anticipation of the sale of these bonds except for the $450,000 Town of Queensbury st Bond Anticipation Note, 2010 (Fuel Tanks Replacement Project) dated October 1, 2010 and st maturing October 1, 2011, which was issued pursuant to the Original Bond Resolution. The bond anticipation notes hereby authorized are not renewal notes. These bond anticipation notes will not be issued in anticipation of bonds for an assessable improvement. These notes shall mature at such time as the Town may determine and may be renewed from time to time, provided that in no event shall such notes or renewals extend more than one (1) year beyond the original date of issue except as permitted in the Local Finance Law. Section 9. Subject to the terms and conditions of this Resolution and of the Local Finance Law, and pursuant to the provisions of Sections 30.00, 50.00 and 56.00 to 60.00, inclusive, of the Local Finance Law, the power to authorize bond anticipation notes in anticipation of the issuance of the serial bonds authorized by this Resolution and the renewal of 4 these notes, and the power to prescribe the terms, form and contents of the serial bonds and bond anticipation notes and the power to sell and deliver the serial bonds and bond anticipation notes issued in anticipation of the issuance of the bonds is hereby delegated to the Town Supervisor, the Chief Fiscal Officer of the Town. The Town Supervisor is hereby authorized to sign any serial bonds and bond anticipation notes issued in anticipation of the issuance of the serial bonds and bond anticipation notes issued pursuant to this Resolution by manual or facsimile signature, and the Town Clerk is hereby authorized to affix or impress or imprint a facsimile of the seal of the Town to any of the serial bonds or bond anticipation notes and to attest such seal by manual or facsimile signature. If executed by facsimile signature, such obligation shall be authenticated by the manual countersignature of the Town Supervisor or a designated fiscal agent. The Town Supervisor, as Chief Fiscal Officer of the Town, is authorized to execute and deliver any documents and to take such other action as may be necessary and proper to carry out the intent of the provisions of this Resolution. Section 10. The exact date of issuance of the bonds and/or notes and the exact date upon which they shall become due and payable shall be fixed and determined by the Chief Fiscal Officer, provided, however, that the maturity of the notes or renewals shall not exceed one (1) year from the date of issue except as permitted by the Local Finance Law. Section 11. The Chief Fiscal Officer shall prepare the bonds and/or notes and sell them in accordance with the provisions of the Local Finance Law including, but not limited to, the provisions of Section 169.00, if applicable, and at such sale shall determine the interest rate to be borne by such bonds and/or notes, and whether fixed or variable. The Town Board authorizes the Chief Fiscal Officer to establish substantially level annual debt service for the repayment of the Bonds if he believes it is in the best interests of the Town. The Town Board authorizes the Chief Fiscal Officer to issue such serial bonds in the form a statutory installment bond. Section 12. If issued, the bonds and/or notes shall be in registered form, and shall bear interest at the determined rate. 5 Section 13. The Chief Fiscal Officer shall deliver the bonds and/or notes to the purchaser only against a certified check or other immediately available funds. The proceeds of the sale of the bonds and/or notes shall be deposited and/or invested as required by Section 165.00 of the Local Finance Law, and the power to invest the proceeds of sale is hereby delegated to the Chief Fiscal Officer and the power to invest in any instruments described in Section 165.00 is expressly granted. Section 14. To the extent that it is permitted to do so under the Internal Revenue Code of 1986, as amended (the "Code"), the Town hereby designates the bonds and/or notes as "qualified tax-exempt obligations" under Section 265(b)(3) of the Code. The Town hereby covenants that it will (i) take all actions on its part necessary to cause interest on the bonds and/or notes to be excluded from gross income for purposes of Federal income taxes and (ii) refrain from taking any action which would cause interest on the bonds and/or notes to be included in gross income for purposes of Federal income taxes. Section 15. The Town of Queensbury is a town wholly or partially within the Adirondack Park. However, State lands subject to taxation within the Town's boundaries are assessed at less than thirty percent (30%) of the total taxable assessed valuation of the Town, so permission of the State Comptroller to issue the bonds and/or notes is not required under Local Finance Law Section 104.10(3). Section 16. Miller, Mannix, Schachner & Hafner, LLC, Glens Falls, New York, is hereby designated bond counsel. Section 17. This Resolution is subject to permissive referendum pursuant to Article 7 of Town Law and Section 35 of Local Finance Law, and shall not take effect until such time as provided. The Town Clerk is hereby authorized and directed to post and publish the notice required for Resolutions subject to permissive referendum. Section 18. The validity of these serial bonds and bond anticipation notes may be contested only if: 6 (1) These obligations are authorized for an object or purpose for which the Town is not authorized to expend money, or (2) The provisions of law which should be complied with at the date of publication of this Resolution 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 (3) Such obligations are authorized in violation of the provisions of the State Constitution. Section 19. This Resolution or a summary thereof shall be published in the Glens Falls Post Star, which has been designated as the official newspaper of the Town, together with a notice of the Town Clerk in substantially the form provided in Section 81.00 of the Local Finance Law. Section 20. This Resolution shall take effect immediately. Section 21. The question of the adoption of this Resolution was duly put to a vote on roll call which resulted as follows: th Duly adopted this 25 day of July, 2011, by the following vote: AYES : Mr. Montesi, Mr. Strough, Mr. Brewer, Mr. Stec, Mr. Metivier NOES : None ABSENT: None The Resolution was declared duly adopted by a vote of not less than two-thirds (2/3) of the full membership of the Town Board. 7