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HomeMy WebLinkAboutO-144i ORDINANCE NO. 144. AN ORDINANCE TO AUTHORIZZE THE ISSUANCE AND SALE OF 79ENTY-TVIO THOUSAND DOLLARS ($22,000.00) OF NOTES OF THE TO,YN OF FAIRHOPE FOR THE PURPOSE OF PAYING THE COST OF PURCHASE AND INSTALLATION OF ONE 225 HP FAIRBANKS-MORSE MDDEL 32E14 DIESEL GENERATING SET AND EQUIPI- ENT, AT:D TO AUTHORIZE THE EXECUTION AND DELIVERY OF A MORTGAGE ON THE SAID EQUIPT,ZNT AND BUILDINGS HOUSING THE SA14E TO THE FIRST NATION- AL BANK OF MOBILE, AS TRUSTEE, TO SECURE PAYMENT OF THE SAID NOTES AND TO PLEDGE THE NET EARNINGS OF THE SAID EQUIP12NT FOR THE PAYTENT OF THE SAID NOTES, PRINCIPAL AND INTEREST, :"THEN AND AS THE SALE SHALL BECO12 DUE, AND IF SUCH NET REVENUE SHALL NOT BE SUFFICIENT TO PAY THE SAT., THEN TO PLEDGE A SUFFICIENT AMOUNT OF THE NET EARNINGS OF THE FAIR - HOPE ELECTRIC LIGHT & P071ER SYSTEIa PREVIOUSLY OvINED TO THE PAY1,1ENT OF THE SAID NOTES, PRINCIPAL AND IN- TEREST, WHEN AND AS THE SATE SHALL BECOTZ DUE. BE IT ORDAINED BY THE TO ,YN COUNCIL OF THE TO+TN OF FAIR - HOPE AS FOLLOWS: Section 1. That the generating equipment of the munici- pal light and power system of the Town of Fairhope being inadequate for the demands thereon, said Town of Fairhope, acting through and by its duly constituted officers, did heretofore purchase equipment for the same from the Fairbanks-ruorse Company, and did enter into a contract with them to pay therefor the sum of $18,896.00, and did also incur expenses in the installation and housing of the said equipment in the sum of $3,104.00, the said additional equipment consisting of the following described machinery: One 225 HP Fairbanks -Morse Model 32E14 Diesel Generating Set and equipment. The said equipment having been installed and housed in such manner as to constitute a complete separate unit from the other generating equipment previously owned by the said Town of Fairhope, so that the same can and will be operated as a separate unit in the production of electric energy and so that the earnings from the said unit can and will be kept separate from the earnings from the equipment previously owned by the Town of Fairhope, the Town of Fairhope is authorized and empowered to borrow money for the purpose of paying for the said equipment and the said installation and housing and to secure the same by a mortgage on the said property and to pledge the net re- ceipts from the operation of the said property and to pledge separ- ately the net,receipts from the operation of that part of the said system previously owned by said town. The town, after the issuance of the notes hereinafter authorized, being well within its consti- tutional debt limit. Section 2. That for the purpose of defraying the cost of the purchase, installation and housing of the aforesaid generating equipment purchased from Fairbanks -Morse Company as aforesaid, there be and is hereby authorized to be issued and sold forty (40) notes of the Town of Fairhope, each in the sum of 0550.00, payable to bearer, and to bear interest at the rate of 5 o per annum, payable on the 1st day of December, 1937, and semi-annually thereafter on the 1st day of Tune and December of each year, and to be numbered and maturing in amounts as follows: 2 Notes 1,2,3,4, each in the sum of .550.00, due on June 1, 1938; tr 5,6, 7,8, n It +i It It 550.00, " It June 1, 1939; It 9,10,11,12, tr it rt It It 550.002 r' It June 1, 1940; r' 13,14,15,16, It It If It It ,550.00, " r' June 19 1941; rt 17,18119120, tt rr n It It '550.00, '550.00, rt n June 1, 1942 ; It If 211,22,23,249 If It It It June 11 1943; 25,26,27,28, rt rt tt n tt550.00, rt r' June 1, 1944; It 29,30,31,32, tt It it n tt550.00, rt rt June 1, 1945; It 33,34,35,36, n It It rt It 550.00, It rr June 1, 1946; it 37138, 39,40, IT It it +► U50.00, It rt June 1, 1947. That such notes shall be executed by the Mayor in the name of the Town of Fairhope and shall be attested by the Clerk of the Town of Fairhope and shall bear the seal of the Town of Fairhope. There shall be attached to each note, coupons bearing the fac simile sig- nature of the Mayor for the interest on the said notes. The said note and the coupon attached thereto shall be substantially in words and figures as follows: �550.00 Fairhope, Ala., June 1, 1937. On or before lst day of June, 19 , after date, without grace, the Town of Fairhope promises to pay to the order of bearer the sum of Five Hundred Fifty Dollars (A550.00) for value received, in any coin or currency which on the date of payment hereof is le- gal tender for the payment of public and private debts, with inter- est from date at the rate of 5% per annum, interest payable on the lst day of December, 1937, and semi-annually thereafter on the lst day of June and December of each year thereafter, interest evidenced by coupon hereto attached, payable at the First National Bank of PLLobile. The parties to this instrument, whether maker, endorser, surety or guarantor, each for himself, hereby severally waive as to this debt, or any renewal thereof, all right to exemption under the Constitution and Laws of Alabama, as to personal property, and they each severally agree to pay all costs of collecting, or securing, or attempting to collect or secure this note, including a reasonable attorney's fee, whether the same be collected or secured by suit or otherwise. And the maker, endorser, surety or guarantor, of this note, severally waives demand, presentment, protest, notice of pro- test, suit and all other requirements necessary to hold them, and they agree that time of payment may be extended without notice to them of such extension. The bank at which this note is payable is hereby authorized to apply on or after maturity, to the payment of this debt any funds in said bank belonging to the maker, surety, endorser, guarantor, or any one of them, deposited therein for the purpose of paying this note. This note is one of a series of fort (40) notes, each in the sum of Five Hundred Fifty Dollars (I550.00), this day issued by the Town of Fairhope under Ordinance No. 144 adopted on the 24th day of May, 1937, for the purpose of defraying the cost of purchasing, installation and housing electric light and power generating equip- ment and is secured equally without preference one over the other by a first mortgage on the said property executed and delivered by the Town of Fairhope to the First National Bank of Mobile, as Trus- tee, for the benefit of the holders of the said notes, and is pay- able only, but equally without preference one over the other, out of the net earnings from the said generating equipment, and also only, but equally without preference one over the other, out of the net earnings from the entire Fairhope electric light and power system owned prior to the date of this instrument. In Witness Whereof, the Town of Fairhope has caused these presents to be executed in its name by the Mayor of the Town of Fair - hope, and the same to be attested by the Clerk of the said Town, and the corporate seal of the Town of Fairhope to be hereto affixed, on this the is day oZf J e, 1937. TOj`,-0F AIRHOPE • ALARA , Attest: By "' LU Its Mayor. Its Clerk. M No. On the day of , 19 , the Town of Fairhope will pay to bearer the sum of Thirteen and 75/100 Dollars (013.75) in any coin or currency which is then legal tender for the payment of public and private debts, at the First National Bank of Lobile, Alabama, out of the special fund set up under Ordinance No. 144 adopted by the Town of Fairhope on the 24th day of May, 1937, being interest then due on note No. issued under authority of the said ordinance and secured by a f rst mortgage to the First National Bank of Mobile, as Trustee, under the aforesaid ordinance. Mayo r. Section 3. That to secure the aforesaid notes there is hereby authorized to be executed and delivered to the First National Bank of Mobile, us Trustee, a first mortgage on the property herein- after described, which said mortgage shall be dated the lst day of June, 1937, and executed by the I%yor in the name of the Town of Fairhope, attested by the Clerk of the Town of Fairhope, and shall be substantially in words and figures as follows: KNOW ALL IMT BY THESE PRESENTS, that the Town of Fair - hope has, under authority of an ordinance duly adopted by the Town Council of the Town of Fairhope on the 24th day of May, 1937, and numbered 144, issued forty (40) notes, each in the sum of Five Hund- red Fifty Dollars ($550.00), numbered 1 to 40, both inclusive, dat- ed the lst day of June, 1937, payable to bearer at the First Nation- al Bank of Mobile, Mobile, Alabama, with interest at 5% per annum, interest payable on the lst day of December, 1937, and semi-annually thereafter on the lst day of June and December of each year, with coupons attached thereto, evidencing the interest on the said notes, which said notes are in the following form: ^9550.00 Fairhope, Ala., June 1, 1937. On or before lst day of June, 19 , after date, without grace, the Town of Fairhope promises to pay to the order of bearer the sum of Five Hundred Fifty Dollars (.1.,1550.00) for value received, in any coin or currency which on the date of payment hereof is legal tender for the payment of public and private debts, with interest from date at the rate of 5% per annum, interest payable on the lst day of December, 1937, and semi-annually thereafter on the lst day of June and December of each year thereafter, interest evidenced by coupon hereto attached, payable at the First National Bank of Mobile. The parties to this instrument, whether maker, endorser, surety or guarantor, each for himself, hereby severally waive as to this debt, or any renewal thereof, all right to exemption under the Constitution and Laws of Alabama, as to personal property, and they each severally agree to pay all costs of collecting, or securing, or attempting to collect or secure this note, including a reasonable attorney's fee, whether the same be collected or secured by suit or otherwise. And the maker, endorser, surety or guarantor, of this note, severally waives demand, presentment, protest, notice of pro- test, suit and all other requirements necessary to hold them, and they agree that time of payment may be extended without notice to them of such extension. The bank at which this note is payable is hereby authorized to apply on or after maturity, to the payment of this debt, any funds in said bank belonging to the maker, surety, endorser, guarantor, or any one of them, deposited therein for the purpose of paying this note. This note is one of a series of forty (40) notes, each in the sum of Five Hundred Fifty Dollars ($550.00), this day issued by the Town of Fairhope under Ordinance No. 144 adopted on the 24th day of May, 1937, for the purpose of defraying the cost of purchas- 4 ing, installation and housing electric light and power generating equipment and is secured equally without preference one over the other by a first mortgage on the said property executed and de- livered by the Town of Fairhope to the First National Bank of Mro- bile, as Trustee, for the benefit of the holders of the said notes, and is payable only, but equally without preference one over the other, out of the net earnings from the said generating equipment and also only, but equally without preference one over the other, out of the net earnings from the entire Fairhope electric light and power system owned prior to the date of this instrument. In Witness Whereof, the Town of Fairhope has caused these presents to be executed in its name by the Mayor of the Town of Fairhope, and the same to be attested by the Clerk of the said Town, and the corporate seal of the Town of Fairhope to be hereto affixed, on this the 1st day of June, 1937. Attest: Its Clerk. No. TO '"JN OF FAIRHOPE , ALABAI:A, By _ Its Mayor. .0 On the day of , 19 the Town of Fairhope will pay to bearer the sum of Th rteen aEff-h/100 Dollars ($13.75) in any coin or currency which is then legal tender for the payment of public and private debts, at the First National Bank in Mobile, Alabama, out of the special fund set up under Ordinance No. 144 adopted by the Town of Fairhope on the 24th day of T::ay, 1937, being interest then due on note No. issued under authority of the said ordinance and secured by a first mortgage to the First National Bank of Mobile, as Trustee, under the aforesaid ordinance. 1%yor. . And which said notes are numbered and mature in amounts as follows: Notes 1,2,3,4, each in the sum of t550.00, H50.00, due on June 19 1938; " 5,6,7,8, " " " r' " "550000 " " Jime 12 1939; tt 9,10,11,12, " " " " r' it itJune 11 1940; tt 139140159160 " " r' it it550:009 It 't June 13% 1941; it 17,18,19,201 " it it It 't 550.009 rt tt June 1, 1942; " 21922,23924, " it " tt " 550.00) t' " June 1, 1943; " 25028,27,28, " tt tt tt " 1 550.009 " tt June 11 1944; " 29130931932, " it tt tr it �550.00, " It June 11 1945; r' 33934, 35 , 36 , " tt tt tt it 550.000 1550.00,, " tt June 19 1946 ; " 37038,399402 " it tt it it tt " June 1, 1947; and that the Town of Fairhope desires to secure the same; NO,N THEREFORE, in consideration of the premises and of the sum of Five Dollars (ti5.00) to it in hand paid by the First National Bank of 11obile , as Trustee, the Town of Fairhope does hereby GRANT, BARGAIN, SELL and CONVEY unto the FIRST NATIONAL BANK of Mobile, as Trustee, the following described property, to -- wit: One 225 HP Fairbanks-14orse Model 32E14 Diesel Generating Set and equipment; Commencing at the Southwest corner of Lot 4 in Block 5 of Division 4 of the Fairhope Single Tax Corporation property in the Town of Fairhope, as per plat thereof 5 filed for record in the office of the Judge of Probate of Baldwin County, Alabama, on September 13, 1911; run thence East along the South line of the said lot 10 feet to the East side of Section Street, as now constructed and maintained; thence East along the said South line of said lot 16.8 feet to the Southwest corner of building owned by the Town of Fairhope; thence North along the West line of the said building 24 feet to the Northwest corner of said building; thence East 23� ft. for a be- ginning corner; thence East 14 ft.; thence North 28 ft. 32 in.; thence West 14 ft.; thence South 28 ft. 3j in. to the point of beginning. TO HAVE AND TO HOLD unto the said FIRST NATIONAL BANK of Mobile, as Trustee, its successors and assigns. And the said Town of Fairhope does for itself, its successors and assigns, covenant with the said First National Bank of Mobile, as Trustee, its suc- cessors and assigns, that it is lawfully seized in fee simple of said premises; that they are free from all encumbrances and that it has a good right to sell and convey the same as aforesaid; that it is in the quiet and peaceable possession of the same; that it will and its successors and assigns, shall warrant and defend the same to the said First National Bank of Mobile, as Trustee, its successors and assigns, forever, against the lawful claims of all persons. The intent and purpose of this instrument is to secure the payment of the notes above described equally without preference one over the other when and as the same shall become due, principal and interest, and the said Town of Fairhope does hereby covenant and agree with the said First National Bank of Mobile, Trustee, and with the holders of the aforesaid notes, that it will keep the aforesaid property insured against loss or damage by fire for the full insur- able value thereof, with loss, if any, payable to the said First National Bank of Mbile, as Trustee, for the benefit of the holders of the aforesaid notes, and that it will also keep the said property insured against storm in a sum not less than fifty per cent. (50%) of the value thereof, with loss, if any, payable to the said First National Bank of Hobile, as Trustee, for the benefit of the holders of the said notes. The Town of Fairhope does further contract and agree with the said First National Bank of T,:obile, as Trustee, and with the hold- ers of the said notes, that it will keep the earnings from the proper- ty herein described and conveyed separate from the earnings of the electric light and power system owned prior to the acquisition of the aforesaid property, and after deducting the cost of operating, maintaining and repairing the same, will apply such net earnings to the payment of the aforesaid notes, principal and interest, equally without preference one over the other, and for this purpose will de- posit the same in the First National Bank of Mobile, as Trustee, for the purpose of paying the said notes, principal and interest, as aforesaid, when and as the same shall become due, and this instrument does hereby authorize the said First National Bank of Mobile to pay the said notes, principal and interest, when and as the same shall become due out of and only out of any funds deposited with it for the purpose of paying the aforesaid notes, principal and interest. In the event the net earnings from the aforesaid property shall be insufficient to pay the said notes, principal and interest, when and as the same shall become due, then the said Town of Fair - hope does further contract and agree that it will apply so much of the net earnings from the light and power system owned previous to the purchase of the aforesaid property as shall be necessary to make up any such deficit from the net earnings of the property hereinabove described. 0 It is expressly understood and agreed, however, that no part of the general fund of the Town of Fairhope, or of any special fund raised by taxes or otherwise for specific purposes, shall ever be chargeable with the payment of the notes above described, or with any expenses or disbursements incurred or made by said Trustee, or any holder or holders of any of said notes, pursuant or incident to any of the provisions hereof, it being the intent and purpose, agreement and understanding between the Town of Fairhope, the First National Bank of t.�Dbile, as Trustee, and the holders of the said notes that the same shall be paid only out of the net earnings from the property hereinabove described if the net earnings shall be sufficient to pay the same, and if the net earnings shall not be sufficient to pay the same, then any deficit shall be paid only out of the net earnings of the light and power system owned by the Town of Fairhope prior to the acquisition of the aforesaid property. PROVIDED ALWAYS, and these presents are upon the express condition that if the said Town of Fairhope shall well and truly pay the aforesaid notes, principal and interest, when and as the same shall become due, then these presents shall cease, determine and be null and void, otherwise to remain in full force and effect. But in the event the said Town of Fairhope shall be and be- come in default in the payment of the said notes, or any one of them, principal or interest, for the period of ninety (90) days, then the owner or holder of the said notes so in default may at his option, by written request addressed to the First National Bank of Mobile, as Trustee, and to the Town of Fairhope, require the First National Bank of Mobile, as Trustee, to sell the property hereinabove de- scribed at public outcry, for cash, to the highest bidder, during the legal hours of sale, in front of the court house door of Bald- win County, Alabama, after giving notice of the time place and terms of sale, by publication once a week for eight (8) consecutive weeks in any newspaper published in Baldwin County, Alabama, and the proceeds to apply, first, to the costs of sale, including a reason- able attorney's fee, then to the notes hereby secured equally and pro -ratably without preference one over the other, whether the same be due or not, and any balance to pay over to the Town of Fairhope, The First National Bank of Mobile, as Trustee, its agent or attor- ney, is authorized to conduct any sale held hereunder and to make conveyance to the purchaser in the name of the Town of Fairhope, us its attorney in fact, and any and all things lawfully done in the premises the Tov,rn of Fairhope hereby ratifies and confirms. The said First National Bank of Mobile, individually or as Trustee, or all or any one or more of the holders of the said notes may bid and purchase at any sale held hereunder as though a stranger to this in- strument. It shall not be necessary to have the aforesaid property at the place of sale. If at any time before the actual sale of the property un- der the powers above given the Town of Fairhope shall pay the note or notes in default, principal and interest, then such foreclosure proceedings shall thereby be stayed, but a foreclosure may be had for any subsequent default or defaults. If the town shall not insure the property as herein pro- vided, the said First National Bank of Mobile, as Trustee, at the request of the holder of any one of the said notes, shall, without notice to the Town of Fairhope, proceed to sell the property herein - above described under the powers herein given, but in the event in- surance shall be taken out and policy delivered to the First Nation- al Bank, as Trustee, before the date of sale, then the sale shall be stayed. Except as herein expressly provided to the contrary, no remedy or right herein conferred upon or reserved to the Trustee or note holders is intended to be exclusive of any other right or remedy, but each and every right -or remedy shall be cumulative and shall be 7 in addition to every other remedy or right given hereunder and now or hereafter existing in law or in equity. No delay or omission to exercise any remedy or right accruing on default shall impair any such right or remedy, or shall be construed to be a waiver of any such default or acquiescence therein, nor shall it affect any subsequent default of the same of whatever nature, but every such remedy or right may be exercised from time to time and as often as deemed expedient by the holder of the notes secured hereby. In case of any suit or proceeding in any way affecting or relating to the property herein conveyed, wherein the Trustee or note holders shall be a party or parties, reasonable costs and charges, including at- torney's fees, in and about said suit or proceeding shall be allowed to the Trustee and note holders and charged as cost in such proceed- ings, and shall be a further charge and lien upon the aforesaid prop- erty and secured hereby. The Trustee shall be under no obligation to recognize any person, firm or corporation as a holder or owner of any of the notes secured hereby unless and until the note claimed to be owned is pro- duced to the Trustee. ' Said Trustee shall not be answerable for any default or misconduct of any agent or attorney employed by it in and about the execution of this trust, if such agent or attorney shall have been seledted with reasonable care, or for anything whatever in connection with this trust, except wilful misconduct or gross negligence, itself or its employee or attorneys., It shall be under no obligation to take any action toward the execution or enforcement of any trust hereby created, which in its opinion shall be likely to involve it in any expense or liability, unless one or more of the holders of the notes hereby secured shall, as often as requested by the Trustee, pay said Trustee such expenses or the amount of such liability, or furnish it satisfactory indemnity against such expense or liability, nor to defend any suit or proceeding brought against it by reason of its being Trustee hereunder unless indemnity satisfactory to it is furnished by the Town of Fairhope or the holders of the notes secured hereby. The Trustee shall be entitled to be reimbursed for any and all proper outlay of every sort and nature by it incurred in the discharge of this trust, or in defense of uny suit or proceed- ing brought against it as Trustee hereunder, and to receive a reas- onable compensation for any duty that it may perform at any time in the discharge of this trust, or in the defense of such proceedings, and all such fees, compensation and disbursements, including reason- able attorney's fees, shall constitute a first lien on the property above described and secured hereby. In every case in which notice or request is required by this instrument to be given, such notice or request, if addressed to the party to whom notice is required to be given, shall be sufficient. The First National Bank of r"obile, as Trustee, will re- ceive such funds as the Town of Fairhope is required hereunder to deposit with it for the payment of the aforesaid notes, Principal and interest, and will apply the same to the payment of the said notes, principal and interest, when and as the same shall become due, but it shall be in no manner held liable beyond the funds so deposited with it, it being expressly understood and agreed that it shall not be responsible for the failure on the part of the Town of Fairhope to deposit any funds with it. IN ,7ITNESS VMREOF, the Town of Fairhope has caused these presents to be executed by Howard Ruge, its Mayor, and attested by George Morgan, its Clerk, and its corporate seal to be hereto at- tached, on this the 1st day of June, 1937. TOWN OF FAIRFOPE, AURA;' , Attes � By l� p Its Liayor. Its Clerk. 0 And shall be acknowledged in the form prescribed by law. Section 4. That the Town of Fairhope will and its of- ficers and employes are hereby directed and required to keep the net earnings from the property herein described separate from the net earnings of the municipal light and power system owned by the town previous to the acquisition of the property described in this ordinance, and to apply the same to the payment of the notes issued under authority of this ordinance, principal and interest, when and as the same shall become due, and for this purpose shall deposit the same from time to time with the First National Bank of L'.obile, as Trustee. Section 5. That in the event the net earnings from the property described in this ordinance shall be insufficient to pay the notes issued hereunder when and as the same shall become due, principal and interest, then the said Town of Fairhope hereby pledges that it will apply to the payment of said notes out of the net earnings of the municipal light and power system owned by the Town prior to the acquisition of the property described in this or- dinance, such sum as shall be necessary to make up any such deficit in the payment of said notes, principal and interest. Section 6. The MaLyor and the Town Clerk are authorized, empowered and directed to execute the notes and mortgage securing the same herein provided for, and to sell the aforesaid notes at not less than par, and to apply the proceeds thereof to the payment of the purchase price of the aforesaid property and to the cast of installation and housing of the same, and to the cost of drafting, printing, issuing and selling said notes, and if there shall remain any surplus over and above the amount necessary to pay the purchase price, installation and housing, such surplus shall be deposited in the First National Bank of MDbile, as Trustee, to be used in the pay- ment of the said notes, principal and interest, when and as the same shall become due. Section 7. The sections and provisions of this ordinance are severable, and if any section or provision of this ordinance or of the instruments issued hereunder shall be held invalid, it shall not invalidate the remaining sections and provisions if sufficient thereof shall remain to effect the purpose of this ordinance. Section 8. The Town of Fairhope covenants and agrees with the holders of the notes issued hereunder that it vrill operate the said generating equipment described in the mortgage authorized to be executed hereby in an efficient and economic manner, and that It will charge such rates for the energy thereby generated that the net earnings therefrom will be sufficient to pay the said notes when and as they shall become due. In the event it shall not so oper- ate the same and charge such rates, the holder of uny one of said notes in default may apply to a court of competent jurisdiction for the appointment of a receiver, who shall take over the same and oper- ate such generating equipment for the benefit of the holders of said notes until such time as the same shall be paid in full. The pro- visions of this section shall not be construed to give any such re- ceiver possession, authority or jurisdiction over any property or equipment not covered by said mortgage. Section 9. This ordinance shall be known and may be cited as "GENERATING EQUIPMENT PURCHASE 11ORTGAGE ORDII`TAr10E N0. 144, APPROVED PLAY 24, 1937t'. Approved Attes / iL Clerk, this May 24, 1937. 4/ mayor.