Resolution 2016-258/CWS 2016-02 RESOLUTION 2016-258'CWS RESOLUTION 2016-02
A RESOLUTION AUTHORIZING THE CURRENT
REFUNDING OF ALL OF THE COUNTY'S
OUTSTANDING STATE REVOLVING FUND LOANS IN
ORDER TO ACHIEVE DEBT SERVICE SAVINGS;
AUTHORIZING THE ISSUANCE OF A NOT
EXCEEDING $90,000,000 AGGREGATE PRINCIPAL
AMOUNT OF COLLIER COUNTY WATER-SEWER
DISTRICT WATER AND SEWER REFUNDING
REVENUE NOTE (SUBORDINATE), SERIES 2016 IN
ORDER TO EFFECT SUCH REFUNDING;
AUTHORIZING A NEGOTIATED SALE OF SAID BOND
PURSUANT TO THE PROPOSAL OF FLORIDA
COMMUNITY BANK, N.A.; DELEGATING CERTAIN
AUTHORITY TO THE CHAIRMAN IN CONNECTION
WITH THE APPROVAL OF THE TERMS AND DETAILS
OF SAID BOND; APPOINTING THE CLERK AS PAYING
AGENT AND REGISTRAR FOR SAID BOND; AND
PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA, ACTING AS THE EX-OFFICIO GOVERNING
BOARD OF THE COLLIER COUNTY WATER-SEWER DISTRICT:
SECTION 1. FINDINGS. It is hereby found and determined that:
(A) On July 30, 1985, the Board of County Commissioners of Collier County,
Florida (the "County"), acting as the ex-officio governing board (the "Governing Body")
of the Collier County Water-Sewer District (the "Issuer") duly adopted Resolution
No. CWS-85-5, as amended and restated by Resolution No. CWS-85-13 duly adopted on
December 26, 1985, as amended and supplemented (collectively, the "Bond Resolution"),
for the purposes described therein.
(B) The County has previously incurred various loans under the State of
Florida's State Revolving Fund Loan Program (the "SRF Loans") for the purpose of
financing and refinancing certain capital improvements to the System (as defined in the
Bond Resolution).
(C) The Bond Resolution allows for the issuance of Subordinate Indebtedness,
payable on a junior and subordinate basis with Bonds Outstanding (as such terms are
defined in the Bond Resolution) under the Bond Resolution and any subsequently issued
Additional Bonds, as defined in the Bond Resolution (collectively, the "Senior Bonds"),
for the purpose of current refunding of all of the outstanding SRF Loans.
(D) The Issuer deems it to be in its best interest to issue its Collier County
Water-Sewer District Water and Sewer Refunding Revenue Note (Subordinate),
Series 2016 (the "Series 2016 Note") for the principal purpose of currently refunding the
SRF Loans in order to achieve net present value debt service savings for the Issuer, which
Series 2016 Note shall be issued on a junior and subordinate basis in all respects to the
Senior Bonds.
(E) In response to a request for loan proposals distributed on behalf of the
Issuer by the Issuer's financial advisor, Public Financial Management, Inc. (the "Financial
Advisor"), to qualified financial institutions, Florida Community Bank, N.A. (including
any successors and assigns thereof, the "Purchaser") submitted a proposal (the
"Proposal") to the Issuer for the purchase of the Series 2016 Note which provides the
Issuer with the most beneficial terms and provisions for refunding the SRF Loans. A
copy of the Proposal is attached as Exhibit A hereto.
(F) Due to the potential volatility of the market for tax-exempt obligations such
as the Series 2016 Note and the complexity of the transactions relating to such
Series 2016 Note, it is in the best interest of the Issuer to sell the Series 2016 Note by a
negotiated sale to the Purchaser pursuant to the Proposal and the provisions hereof and of
the Bond Resolution, rather than at a specified advertised date, thereby permitting the
Issuer to obtain the best possible price, terms and interest rate for the Series 2016 Note.
(G) The Issuer hereby certifies that it is current in all deposits into the various
funds and accounts established by the Bond Resolution and all payments theretofore
required to have been deposited or made by the Issuer under the provisions of the Bond
Resolution have been deposited or made and the Issuer has complied with the covenants
and agreements of the Bond Resolution and is not currently in default under the Bond
Resolution.
(II) The Series 2016 Note shall not be or constitute a general obligation or
indebtedness of the Issuer as a "bond" within the meaning of any constitutional or
statutory provision but shall be a special obligation of the Issuer, payable solely from and
secured by a lien upon and pledge of the Pledged Funds (as defined in the Bond
Resolution) which lien and pledge shall be junior and subordinate in all respect to the
Senior Bonds.
SECTION 2. DEFINITIONS. When used in this resolution, the terms
defined in the Bond Resolution shall have the meanings therein stated, except as such
definitions shall be hereinafter amended and defined.
SECTION 3. AUTHORITY FOR THIS RESOLUTION. This resolution
is adopted pursuant to the provisions of the Act.
2
SECTION 4. AUTHORIZATION OF THE CURRENT REFUNDING
OF THE SRF LOANS; ACCEPTANCE OF PROPOSAL. (A) The Issuer hereby
authorizes the current refunding of the SRF Loans for the purpose of achieving net
present value debt service savings.
(B) The Issuer hereby accepts the Proposal of the Purchaser, a copy of which is
attached hereto as Exhibit A.
SECTION 5. AUTHORIZATION AND DESCRIPTION OF THE
SERIES 2016 NOTE. The Issuer hereby authorizes the issuance of a note in the
principal amount of not exceeding $90,000,000 to be known as the "Collier County
Water-Sewer District Water and Sewer Refunding Revenue Note (Subordinate),
Series 2016" (or such other designation as the Chairman may determine), for the
principal purpose of refunding, on a current basis, the SRF Loans. The specific principal
amount of the Series 2016 Note to be issued pursuant to this resolution shall be
determined by the Chairman, upon the advice of the Issuer's Financial Advisor, provided
such principal amount shall not exceed $90,000,000. The Series 2016 Note shall be
junior and subordinate in all respects as to lien on and source and security for payment
from the Pledged Funds with the Senior Bonds.
The Series 2016 Note shall be dated as of its date of issuance, or such other date as
the Chairman may determine, shall be issued in the form of one fully registered note in
the denomination of its outstanding principal amount. The Series 2016 Note shall bear
interest from its dated date at a fixed interest rate of 1.80% per annum (the "Interest
Rate"). The Interest Rate is subject to adjustment as provided in Sections 10 and 11
hereof. The Interest Rate shall be calculated on the basis of a 360-day year consisting of
twelve 30-day months. Interest on the Series 2016 Note shall be payable semi-annually
on January 1 and July 1 of each year (the "Interest Payment Dates"), commencing on
January 1, 2017. The Series 2016 Note shall be issued as a single term note with a final
maturity of July 1, 2029 and shall be subject to mandatory sinking fund redemption in
such principal amounts commencing on July 1, 2017 and on each July 1 thereafter
through the maturity date of the Series 2016 Note, as determined by the Chairman, upon
the advice of the Issuer's Financial Advisor, and approved by the Purchaser prior to the
issuance of the Series 2016 Note. The Series 2016 Note shall be sold on a negotiated
basis to the Purchaser at a purchase price equal to 100% of the aggregate principal
amount thereof. The Purchaser shall provide the Issuer with an executed Disclosure
Letter and Truth-in-Bonding Statement as required by Section 218.385, Florida Statutes,
prior to the issuance of the Series 2016 Note. The Interest Rate on the Series 2016 Note
shall comply in all respects with Section 215.84, Florida Statutes.
The Series 2016 Note shall be payable as to principal and interest by check or
draft, bank wire transfer or direct debit of a deposit account of the Issuer or in such other
manner as is agreed to between the Issuer and the holder of the Series 2016 Note in
3
whose name the Series 2016 Note shall be registered on the registration books maintained
by the Issuer as of the close of business on the fifteenth day (whether or not a business
day) of the calendar month next preceding an Interest Payment Date; provided, that the
registered owner of the Series 2016 Note shall present and surrender the Series 2016 Note
to the Issuer within a reasonable period of time after the final payment of the principal of
and interest on the Series 2016 Note has been made or shall otherwise provide evidence
that such Series 2016 Note has been cancelled. Principal of and interest on the Series
2016 Note shall be payable in any coin or currency of the United States of America,
which at the time of payment, are legal tender for the payment of public and private
debts. The Series 2016 Note shall be substantially in the form set forth in Exhibit B
hereto, with such changes, amendments, modifications, omissions and additions as may
be approved by the Chairman. Execution of the Series 2016 Note by the Chairman shall
be conclusive evidence of approval of any such changes.
SECTION 6. SECURITY FOR THE SERIES 2016 NOTE;
COVENANTS. (A) The Series 2016 Note shall not be or constitute a general obligation
or indebtedness of the Issuer as a "bond" within the meaning of any constitutional or
statutory provision, but shall be a special obligation of the Issuer, payable solely from and
secured solely by a lien upon and pledge of the Pledged Funds, on a junior or subordinate
basis in all respects to the Senior Bonds; provided, however, the Series 2016 Note shall
not be secured in any manner by the Reserve Account. The Purchaser shall never have
the right to compel the exercise of any ad valorem taxing power to pay such Series 2016
Note, or be entitled to payment of such Series 2016 Note from any moneys of the Issuer
or the County except from the Pledged Funds. The Issuer does hereby irrevocably pledge
the Pledged Funds to the payment of the principal of or Redemption Price, if applicable,
and interest on the Series 2016 Note, on a junior and subordinate basis to the Senior
Bonds and subject to the application thereof for the purposes and on the conditions
permitted by the Bond Resolution.
(B) So long as any amounts are due and owing by the Issuer to the Purchaser
with respect to the Series 2016 Note, all of the covenants of the Issuer set forth in
Article V of the Bond Resolution shall inure to the benefit of the Purchaser and shall be
considered incorporated herein by reference.
SECTION 7. REDEMPTION PROVISIONS. (A) The Series 2016 Note
may be redeemed in whole, or in part, on any date, with ten (10) days prior written notice
to the Purchaser, by payment in an amount equal to the principal amount to be prepaid
plus accrued interest thereon to the date of prepayment, without premium or penalty.
Unless otherwise agreed by the Issuer and the Purchaser, any prepayment in part shall be
applied to the then scheduled principal payments in inverse order.
(B) The Issuer shall not be required to provide the Purchaser with any notice
with respect to the payment of any scheduled principal payments.
4
SECTION 8. APPLICATION OF SERIES 2016 NOTE PROCEEDS.
The proceeds derived from the sale of the Series 2016 Note shall be applied by the Issuer
simultaneously with the delivery thereof as follows:
(A) A sufficient amount of Series 2016 Note proceeds, together with other
legally available moneys of the Issuer, shall be paid directly to the State of Florida on the
date of issuance of the Series 2016 Note in order to prepay the SRF Loans in full.
(B) A sufficient amount of the Series 2016 Note proceeds shall be applied to
the payment of costs and expenses relating to the issuance of the Series 2016 Note.
SECTION 9. APPOINTMENT OF PAYING AGENT AND
REGISTRAR. The Clerk is hereby designated Registrar and Paying Agent for the
Series 2016 Note.
SECTION 10. DETERMINATION OF TAXABILITY. (A) In the event
of a Determination of Taxability (as defined below), the Interest Rate on the Series 2016
Note shall be immediately increased to the Adjusted Rate (as defined in the immediately
succeeding sentence); provided, however, such Adjusted Rate shall never exceed the
maximum rate allowable by law. The "Adjusted Rate" shall mean that interest rate which
is determined by dividing the then current Interest Rate by the remainder of one (1)
minus the then maximum federal corporate income tax rate for the Purchaser. The
Purchaser will provide the Issuer with evidence of such determination upon request.
Immediately upon a Determination of Taxability, the Issuer agrees to pay to the
Purchaser on demand, the Additional Amount. "Additional Amount" means (i) the
difference between (a) interest on the Series 2016 Note for the period commencing on the
date on which the interest on the Series 2016 Note (or portion thereof) is deemed to have
lost its tax-exempt status and ending on the effective date of the adjustment of the Interest
Rate to the Adjusted Rate (the "Taxable Period") at a rate per annum equal to the
Adjusted Rate and (b) the aggregate amount of interest paid on the Series 2016 Note
during the Taxable Period at the Interest Rate applicable to the Series 2016 Note prior to
the adjustment to the Adjusted Rate, plus (ii) any penalties, fines, fees, costs and interest
paid or payable by the Series 2016 Bondholder to the Internal Revenue Service by reason
of such Determination of Taxability. This provision shall survive the repayment of the
Series 2016 Note until such time as the federal statute of limitations under which the
interest on the Series 2016 Note could be declared taxable under the Internal Revenue
Code has expired.
(B) For purposes of this Section 10, the term Determination of Taxability shall
have the meaning ascribed thereto as follows:
"Determination of Taxability" shall mean the circumstance of interest paid or
payable on the Series 2016 Note becoming includable for federal income tax purposes in
the gross income of the Purchaser as a consequence of any act or omission of the Issuer.
5
For all purposes of this definition, a Determination of Taxability will be deemed to occur
on the first date as of which the interest on the Series 2016 Note is deemed includable in
the gross income of the Purchaser. A Determination of Taxability shall not occur solely
in the event such interest is taken into account in determining adjusted current earnings
for the purpose of the alternative minimum income tax imposed on corporations.
SECTION 11. DEFAULT. The Events of Default set forth in Section 7.01
of the Bond Resolution shall apply with respect to the Series 2016 Note. In addition, it
shall be considered an Event of Default with respect to the Series 2016 Note: (A) to the
extent any representation or warranty made in writing by or on behalf of the Issuer in this
resolution, the Series 2016 Note or any documents executed in connection therewith shall
prove to have been false or incorrect in any material respect on the date made or
reaffirmed, or (B) if the Issuer fails to promptly remove any execution, garnishment or
attachment of such consequence as will materially impair the Issuer's ability to carry out
its obligations with respect to the Series 2016 Note. With respect to an Event of Default
described in Section 7.01(c) of the Bond Resolution, written notice from the Purchaser of
such an Event of Default shall be sufficient to trigger the 30-day cure period described
therein. After the occurrence of a payment default with respect to the Series 2016 Note,
the Interest Rate shall adjust to a rate equal to the lesser of(a) the maximum rate allowed
under applicable law, or (b) the Purchaser's prime lending rate as established from time to
time, plus 5.00%. The Purchaser shall give the Issuer notice of any such adjustment.
In the event of any of the foregoing Events of Default, the Purchaser may either at
law or in equity, by suit, action, mandamus or other proceedings in any court of
competent jurisdiction, protect and enforce any and all rights under the Laws of the State
of Florida, or granted and contained in this resolution, and may enforce and compel the
performance of all duties required by this resolution or by any applicable statutes to be
performed by the Issuer or by any officer thereof. Acceleration shall not be an allowable
remedy.
SECTION 12. REPORTING FINANCIAL INFORMATION. As soon as
available, but not later than 210 days following the end of each Fiscal Year, the Issuer
shall provide the Purchaser with the County's annual audited financial statements
prepared and certified by an independent certified public accountant reasonably
acceptable to the Purchaser to the effect that such audit has been conducted in accordance
with generally accepted auditing standards and stating whether such financial statements
present fairly in all material respects the financial position of the County and the results
of its operations (including the System) and cash flows for the periods covered by the
audit report, all in conformity with generally accepted accounting principals applied on a
consistent basis. Such financial statements shall include a balance sheet and statement of
revenues, expenditures and changes in fund balances. The Issuer shall provide the
Purchaser with the County's annual budget within 30 days of adoption and no later than
45 days after the commencement of the corresponding Fiscal Year and shall provide the
6
Purchaser with other information relating to the Series 2016 Note or the security with
respect thereto upon reasonable request.
SECTION 13. ADDITIONAL COVENANTS. (A) To the extent the
Issuer shall determine that it has any rebateable arbitrage with respect to the Series 2016
Note under the Code or the applicable federal tax regulations, it shall deposit such
amounts in the Rebate Fund and shall otherwise comply with the provisions of Section
5.21 of the Bond Resolution.
(B) So long as the Series 2016 Note is outstanding, the Issuer shall fix, establish
and maintain such rates and collect such fees, rates or other charges for the products,
services and facilities of its System, and revise the same from time to time, whenever
necessary, as will always provide in each Fiscal Year, Pledged Funds (after payment of
Annual Debt Service on the Senior Bonds) adequate at all times to pay in each Fiscal
Year at least one hundred fifteen percent (115%) of the annual debt service on the Series
2016 Note and all other outstanding Subordinated Indebtedness becoming due in such
Fiscal Year.
(C) So long as the Series 2016 Note is outstanding, the Issuer shall comply in all
respects with the provisions of Section 6.02 of the Bond Resolution with respect to the
issuance of Additional Bonds. The Issuer shall not issue any other Subordinated
Indebtedness on parity with the Series 2016 Note unless the Pledged Funds (after
deducting the Maximum Annual Debt Service for the Senior Bonds) for the immediately
preceding Fiscal Year or any 12 months out of the immediately preceding 24 months is
equal to at least one hundred fifteen percent (115%) of the maximum annual debt service
on the Series 2016 Note, any other then outstanding Subordinated Indebtedness and the
proposed Subordinated indebtedness. The Issuer shall not issue any Subordinated
Indebtedness that has a prior or superior lien on the Pledged Funds to the Series 2016
Note without the prior written consent of the Purchaser.
(D) So long as the Series 2016 Note is outstanding, the Issuer shall apply Gross
Revenues in accordance with Section 4.05 of the Bond Resolution and, specifically, shall
make debt service payments on the Series 2016 Note pursuant to Section 4.05(B)(6)
thereof.
(E) So long as the Series 2016 Note is outstanding, the Issuer shall provide
advance notice to the Purchaser of any proposed amendments to the Bond Resolution.
SECTION 14. TRANSFER. The Purchaser may sell, transfer or assign the
Series 2016 Note in whole only to an "accredited investor" under Regulation D
promulgated under the Securities Act of 1933, as amended, or a "qualified institutional
buyer" under Rule 144A promulgated under the Securities Act of 1933, as amended;
provided, however, the Purchaser may transfer the Series 2016 Note to an affiliate of the
7
Purchaser without restriction. The Purchaser shall notify the Issuer and the Clerk of any
sale, transfer or assignment of the Series 2016 Note.
Notwithstanding the foregoing, the Purchaser may sell participations in the Series
2016 Note to any number of Participants as long as the Purchaser complies with all
applicable securities laws.
SECTION 15. WAIVER OF JURY TRIAL; APPLICABLE LAW AND
JURISDICTION. (A) To the extent permitted by applicable law, the Issuer, knowingly,
voluntarily and intentionally waives any right it may have to a trial by jury in respect of
any litigation based on, or arising out of, under or in connection with this resolution, the
Series 2016 Note or any agreement contemplated to be executed in connection with this
resolution or any course of conduct, course of dealing, statements (whether verbal or
written) or actions of the Issuer or the Purchaser.
(B) The substantive laws of the State of Florida shall govern this resolution, the
Series 2016 Note or any agreement contemplated to be executed in connection with this
resolution. The Issuer submits to the jurisdiction of Florida courts and federal courts and
agrees that venue for any suit concerning this resolution shall be in Collier County,
Florida and the Middle District of Florida.
SECTION 16. GENERAL AUTHORITY. The members of the Governing
Body of the Issuer, the County Manager, the Clerk and the officers, attorneys and other
agents or employees of the Issuer are hereby authorized to do all acts and things required
of them by this resolution or the Bond Resolution, or desirable or consistent with the
requirements hereof or the Bond Resolution for the full punctual and complete
performance of all the terms, covenants and agreements contained herein or in the
Series 2016 Note and the Bond Resolution and each member, employee, attorney and
officer of the Issuer and the Clerk is hereby authorized and directed to execute and
deliver any and all papers and instruments and to be and cause to be done any and all acts
and things necessary or proper for carrying out the transactions contemplated hereunder.
In the event the Chairman is absent or unavailable to perform any function or duty
hereunder the Vice-Chairman is hereby authorized to perform any and all of such
functions or duties. Bond Counsel and the Issuer's Financial Advisor are hereby
authorized and directed to take all action necessary and desirable to carryout the intent
and purposes of this resolution.
SECTION 17. MODIFICATION OR AMENDMENT OF THIS
RESOLUTION. No modification or amendment of this resolution or of any resolution
amendatory thereof or supplemental thereto, which would have an adverse effect on the
Purchaser may be made without the consent in writing of the Purchaser.
SECTION 18. SEVERABILITY AND INVALID PROVISIONS. If any
one or more of the covenants, agreements or provisions herein contained shall be held
8
contrary to any express provision of law or contrary to the policy of express law, though
not expressly prohibited or against public policy, or shall for any reason whatsoever be
held invalid, then such covenants, agreements or provisions shall be null and void and
shall be deemed separable from the remaining covenants, agreements or provisions and
shall in no way affect the validity of any of the other provisions hereof or of the Series
2016 Note.
SECTION 19. RESOLUTION TO CONTINUE IN FORCE. The Bond
Resolution and all the terms and provisions thereof are and shall remain in full force and
effect.
SECTION 20. EFFECTIVE DATE. This resolution shall become effective
immediately upon its adoption.
DULY ADOPTED, in Regular Session this 15th day of November, 2016.
ATTEST: BOARD OF COUNTY COMMISSIONERS'
DWIGHT E. BROCK, CLERK COLLIER COUNTY, FLORIDA, AS THE EX-
OFFICIO GOVERNING BOARD OF THE
COLLIER COUNTY WATER-SEWER
DISTRICT
r
By: By: /' -
<ltd.&
it puty Clerk Chairman
Appr ve s t, form
and 1 gala
- i 1
Jeffre t A latz ow
ii
Distritk A!`Iorney
9
EXHIBIT A
PROPOSAL OF THE PURCHASER
I
EXHIBIT A
.44cB
FLORIDA COMMUNITY BANK
October 13, 2016
Joseph Bellone
Collier County Water and Sewer District
i osephbelloneAcolliergov.net
Sergio Masvidal
PFM Financial Advisors LLC
masvidals(c�pfm.com
Nicklas Rocca
PFM Financial Advisors LLC
roccan@pfm.com
RE: Collier County Water-Sewer District Refunding Revenue Bond, Series 2016
Gentlemen:
Florida Community Bank,N.A.a national banking association("Bank"and/or"FCB")is pleased to consider a financing
arrangement(the"Facility")for the Collier County Water-Sewer District,(the"District),the basic terms and conditions of
which are set forth below. The proposed Facility is subject to the satisfactory completion of FCB's customary due
diligence,underwriting and receipt of credit approval.
Borrower: Collier County Water-Sewer District(the"District")
Facility: Non-Bank Qualified Tax Exempt Term Note
Amount: $97,000,000(not to exceed)
Purpose: The proceeds of the Note will be used by the District to refund all of the District's outstanding
State Revolving Fund Loans and to pay the cost of issuance.
Term: The term of the Note will be approximately 13 years from the date of the closing, fully
amortizing with a final stated maturity of July 1,2029.
Collateral: The payment of principal and interest on the Note will be secured by a pledge of and junior,
inferior, and subordinate lien upon (1)the Net Revenue of the District's Water and Sewer
System and(2)certain charges imposed by the District on Persons.
Repayment: Semi-Annual interest payments on the 1st of each January and July, commencing on January 1,
2017. Principal will be due annually on the 1st of each July,commencing July 1,2017.
Interest Rate: The interest rate would be fixed at 1.80 percent. This rate will be held until November 17,2016. In
the event the closing is delayed past this date,the rate will be reset 3 days prior to closing and would
be indexed to 65 percent of the prevailing Ten(10)Year Treasury Constant Maturity plus 68 basis
points with a floor of 1.80 percent. The Treasury Constant Maturity will be as published by the
Federal Reserve(http://www.federalreserve.gov/releases/h15/update/).
1
FloridaCommunityBank.com It,EMMA I Ma
Pre-payment. The District may prepay and redeem the Notes,in whole or part,at any time or from time to time,
without penalty or premium,by paying to the Bank all or a part of the principal amount of the Note
to be repaid,together with the unpaid interest accrued on the amount of principal so prepaid to the
date of such prepayment. Each prepayment and redemption of such Notes shall be made on such
date and in such principal amount as shall be specified by the District in a written notice delivered
to the Bank not less than ten days prior thereto specifying the principal amount to be prepaid and
the date of such prepayment.
Fees: The District is responsible for all legal and out of pocket expenses associated with the proposed
financings.The Bank will be represented by Greenspoon Marder Law,whose fee will be fixed at
$10,000.
Covenants: For so long as any of the principal amount of or interest on the proposed Notes are
outstanding or any duty or obligation of the District contemplated under the proposed Note
remain unpaid or unperformed,the Bank shall be entitled to the Covenants of the Issuer as
defined in that certain Resolution No.CWS-85-5 of the District duly adopted on July 30, 1985
as amended,restated and supplemented and as may be amended,restated and supplemented
by the District thereafter.
Financial
Reporting Audited Financial Statements-The District shall cause an audit to be completed of its books
and accounts and shall furnish to the Bank within 210 days after the end of each fiscal year
audited year-end financial statements of the Authority certified by an independent certified
public accountant acceptable to the Bank to the effect that such audit has been conducted in
accordance with generally accepted auditing standards and stating whether such financial
statements present fairly in all material respects the financial position of the District and the
results of its operations and cash flows for the periods covered by the audit report, all in
conformity with generally accepted accounting principles applied on a consistent basis. Such
financial statements shall include a balance sheet and statement of revenues, expenditures
and changes in fund balances, with comparative figures to the prior year and including a
comparison of actual results to budgeted projections.
Annual Budget. The District shall adopt an annual budget as required by law. The District
shall provide the Bank with a copy of its annual operating budget for each fiscal year not
later than 45 days after the commencement thereof.
Events of
Default: An"Event of Default" shall be deemed to have occurred under this Agreement if:
a) the District shall fail to make any payment of the principal of or interest on the Note after the
same shall become due and payable,whether by maturity,or otherwise;or
b) the District shall default in the performance of or compliance with any term or covenant
contained in the Loan Documents, which default or noncompliance shall continue and not be
cured within thirty(30)days after(i)notice thereof to the District by the Bank;or(ii)the Bank
is notified of such noncompliance or should have been so notified,whichever is earlier;or
c) any representation or warranty made in writing by or on behalf of the District in any Loan
Document shall prove to have been false or incorrect in any material respect on the date made
or reaffirmed;or
d) the District admits in writing its inability to pay its debts generally as they become due or files
a petition in bankruptcy or makes an assignment for the benefit of its creditors or consents to
the appointment of a receiver or trustee for itself;or
e) the District is adjudged insolvent by a court of competent jurisdiction , or it is adjudged
bankrupt on a petition in bankruptcy filed by or against the District, or an order,judgment or
decree is entered by any court of competent jurisdiction appointing,without the consent of the
District, a receiver or trustee of the District or of the whole or any part of its property, and if
2
Florida ommunityBank.com clerm I F
the aforesaid adjudications, orders,judgments or decrees shall not be vacated or set aside or
stayed within 90 days from the date of entry thereof;or
f) the District shall file a petition or answer seeking reorganization or any arrangement under the
federal bankruptcy laws or any other applicable law or statute of the United States of America
or the State of Florida;or
g) failure by the District promptly to remove any execution, garnishment or attachment of such
consequence as will materially impair its ability to carry out its obligations.
Default Rate: The "default rate of interest" shall be the lesser of five percentage points in excess of the Bank's
Prime Rate of interest charged at the time of the Monetary Default or the maximum legal interest
rate.The default rate of interest shall only apply for interest during the period of time between when
the Monetary Default occurs and when it is cured by the District.
Interest Rate
Adjustments: In the event the interest on the Loan becomes subject to federal income tax due to actions or inactions
of the District,the interest rate will convert to the taxable rate during that period. The taxable rate
will be calculated by dividing the current non-bank qualified tax-exempt rate by 1 minus the
effective federal tax rate. In addition, the District shall make the Bank whole for any interest,
penalties,and additions to tax suffered by the Bank.
Conditions of
Lending: The obligations of the Bank to lend hereunder are subject to the following conditions precedent:
a) Documents are and shall be true and correct to the best of the District's knowledge at the time
of closing.
b) On the closing date the District shall be in compliance with all the terms and provisions set
forth in the Loan Documents on its part to be observed or performed,and no Event of Default
nor any event that, upon notice or lapse of time or both, would constitute such an Event of
Default,shall have occurred and be continuing at such time.
c) On or prior to the closing date, the Bank shall have received the following supporting
documents, all of which shall be satisfactory in form and substance to the Bank (such
satisfaction to be evidenced by the execution of the Notes by the Bank): (i) the opinion of
counsel to the District, regarding the due authorization, execution, delivery, validity and
enforceability of the Agreement and the Note,the District's power to incur the debt evidenced
by the Note, the due adoption and enforceability of the Note Resolution and the due creation
and existence of the District and to the effect that the Note is excluded from gross income for
federal income tax purposes and is exempt from State excise tax on documents, and(ii)such
additional supporting documents as the Bank may reasonably request.
d) No material and adverse changes shall have occurred in the financial condition of the District.
f) The Bank shall not be required to enter into the proposed Credit Accommodation until the
completion of all due diligence inquiries,receipt of approvals from all requisite parties and the
execution and receipt of all necessary documentation reasonably acceptable to the Bank and its
counsel. The Bank complies with the US Patriot Act of 2001 (the "Act"), including, but not
limited to; those sections relating to customer identification, monitoring and reporting of
suspicious activities,and the prevention of money laundering.This Act mandates that we verify
certain information about the borrower and any guarantor while processing the Credit
Accommodation request. Furthermore, certain assumptions are made for this proposal which,
if altered, could affect the overall credit approval and or the terms of the proposed Credit
Accommodation.
Waiver of
Jury Trial District and Bank knowingly,intentionally,and voluntarily waive any right which any of them may
have to a trial by jury in connection with any matter directly or indirectly relating to any loan
3
FloridaCommunityBank.com VehFaic
document executed in connection herewith or any other matter arising from the relationship between
Bank and District.
Florida Community Bank appreciates the opportunity to submit this Proposal and looks forward to your favorable
response, Please understand that this letter is not a formal commitment to extend a loan by the Bank,but is merely intended
for discussion purposes only in order to provide you with the basic terms and conditions of our proposal,which are outlined
above. In the event FCB is selected as the provider,a Letter of Commitment will be provided within 10 days of notice of
said selection, The terms and conditions outlined in this Proposal are in effect until November 17,2016. If you have any
questions or need additional information,please do not hesitate contacting me at(239)552-1819.
Respectfully,
Jim Mitchell,SVP LeeAnn Kirwin
Director of Public Finance Vice President
Florida Community Bank Florida Community Bank
2325 Vanderbilt Beach Road 2325 Vanderbilt Beach Road
Naples,FL 34109 Naples,FL 34109
(239)552-1819 (239)552-1879
jmitchell®feb1923.com lkirwin@fcb1923.com
Agreed to and accepted this day of ,2016.
BORROWER: Collier County Water-Sewer District
Signature:
Name:
Title:
4
FloridaCommunity8ank.com
EXHIBIT B
FORM OF SERIES 2016 NOTE
EXHIBIT B
$
UNITED STATES OF AMERICA
STATE OF FLORIDA
COLLIER COUNTY WATER-SEWER DISTRICT
WATER AND SEWER REFUNDING REVENUE NOTE (SUBORDINATE),
SERIES 2016
Date of
Interest Rate Maturity Date Original Issue CUSIP
1.80% July 1, 2029 November 17, 2016 None
Registered Holder: FLORIDA COMMUNITY BANK,N.A.
Principal Amount: THOUSAND AND 00/100 DOLLARS
The Collier County Water-Sewer District, a political subdivision created and existing
under and by virtue of the laws of the State of Florida (the "Issuer"), which is located in
Collier County, Florida (the "County"), for value received, hereby promises to pay, solely
from the Pledged Funds hereinafter described, to the Registered Holder identified above, or
registered assigns as hereinafter provided, on the Maturity Date identified above, or upon
earlier mandatory redemption as provided below, the Principal Amount identified above and
to pay interest on such Principal Amount from the Date of Original Issue identified above or
from the most recent interest payment date to which interest has been paid at the Interest
Rate per annum identified above (subject to adjustment as herein provided) on January 1 and
July 1 of each year (the "Interest Dates"), commencing January 1, 2017, until such Principal
Amount shall have been paid. Interest shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
Such Principal Amount and interest on this Note are payable in any coin or currency
of the United States of America which, on the respective dates of payment thereof, shall be
legal tender for the payment of public and private debts. Payment of each installment of
principal and interest shall be made to the person in whose name this Note shall be registered
on the registration books of the Issuer maintained by the Clerk of the Board of County
Commissioners of Collier County, Florida, acting as the ex-officio Clerk of the Governing
Board of the Issuer, as Registrar, on the date which shall be the fifteenth day (whether or not
a business day) of the calendar month next preceding each interest payment date by check or
draft, bank wire transfer or direct debit of a deposit account of the Issuer, or in such other
manner as is agreed to between the Issuer and the Registered Holder; provided that the
Registered Holder of this Note shall present and surrender this Note to the Issuer within a
reasonable period of time after the final payment of the principal of and interest on this Note
has been made or shall provide evidence that this Note has been canceled.
This Note is issued for the principal purpose of refunding all of the County's loans
under the State of Florida's State Revolving Fund Loan Program, under the authority of and
in full compliance with the Constitution and laws of the State of Florida and Resolution
No. CWS-85-5 duly adopted by the Board of County Commissioners of Collier County,
Florida, acting as the Governing Board of the Issuer, on July 30, 1985, as restated, amended
and supplemented (the "Bond Resolution"), and pursuant to Resolution No. / CWS
Resolution No. adopted on November 15, 2016 (the "2016 Resolution") authorizing
the issuance of this Note.
This Note and the interest hereon are payable solely from and secured by a lien upon
and a pledge of(i) the Net Revenues (as defined in the Bond Resolution) to be derived from
the operation of the System (as defined in the Bond Resolution), (ii) the System
Development Fees (as defined in the Bond Resolution), (iii) the Special Assessment
Proceeds (as defined in the Bond Resolution), and (iv) until applied in accordance with the
provisions of the Bond Resolution, all moneys, including investments thereof, in certain
funds and accounts established by the Bond Resolution (collectively, the "Pledged Funds");
PROVIDED, HOWEVER, SUCH LIEN AND PLEDGE SHALL BE JUNIOR AND
SUBORDINATE IN ALL RESPECTS TO THE BONDS (AS DEFINED IN THE BOND
RESOLUTION) THAT ARE OUTSTANDING UNDER THE BOND RESOLUTION AND
ANY SUBSEQUENTLY ISSUED ADDITIONAL BONDS, AS DEFINED IN THE BOND
RESOLUTION (COLLECTIVELY, THE "SENIOR BONDS"), and subject in each case to
the application thereof for the purposes and on the conditions permitted by the Bond
Resolution. It is expressly agreed by the Registered Holder of this Note that the full faith and
credit of Collier County, Florida (the "County") is not pledged to the payment of the
principal of and interest on this Note and that such Holder shall never have the right to
require or compel the exercise of any taxing power of the County to the payment of such
principal and interest. The Issuer has no ad valorem taxing power. This Note and the
obligation evidenced hereby shall not constitute a lien upon the System or any other property
of the Issuer or the County, but shall constitute a lien only on, and shall be payable solely
from, the Pledged Funds. This Note is issued on a junior and subordinate basis to the Senior
Bonds as to the lien on and pledge of the Pledged Funds. The Issuer may issue other
obligations on a senior basis to this Note as provided in the Bond Resolution.
Neither the members of the governing board of the Issuer nor any person executing
this Note shall be liable personally hereon or be subject to any personal liability or
accountability by reason of the issuance hereof.
The Registered Holder may only sell, transfer or assign this Note in whole only
to an "accredited investor" under Regulation D promulgated under the Securities Act
of 1933, as amended, or a "qualified institutional buyer" under Rule 144A promulgated
under the Securities Act of 1933, as amended; provided, however, the Registered
Holder may transfer this Note to an affiliate of the Registered Holder without
restriction. The Registered Holder shall notify the Issuer and the Clerk of any sale,
transfer or assignment of this Note.
2
This Note may be redeemed in whole, or in part, on any date, with ten (10) days prior
written notice to the Registered Holder by payment in an amount equal to the principal
amount to be prepaid plus accrued interest thereon to the date of prepayment, without
premium or penalty. Unless otherwise agreed by the Issuer and the Registered Holder, any
prepayment in part shall be applied to the then scheduled principal payments in inverse
order.
This Note is subject to mandatory sinking fund redemption prior to maturity, on
July 1, 2017 and on each July 1 thereafter, at a redemption price equal to the principal
amount of such Note or portions thereof to be redeemed, plus interest accrued thereon to the
date of redemption, on July 1, in the following years and in the following principal amounts:
Year Principal Amount
2017 $
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029*
*Maturity
No notice of redemption shall be required to be given with respect to the mandatory
sinking fund redemption provisions set forth above.
The interest rate is subject to adjustment in accordance with the provisions of
Sections 10 and 11 of the 2016 Resolution.
All payments by the Issuer pursuant to this Note shall apply first to accrued interest,
then to other charges due the Registered Holder, and the balance thereof shall apply to the
principal sum due.
The Issuer to the extent permitted by law hereby waives presentment, demand, protest
and notice of dishonor.
Reference to the 2016 Resolution, the Bond Resolution and any and all resolutions
supplemental thereto and modifications and amendments thereof and to the Act is made for a
description of the pledge and covenants securing this Note, the nature, manner and extent of
3
enforcement of such pledge and covenants, the rights, duties, immunities and obligations of
the Issuer.
It is hereby certified and recited that all acts, conditions and things required to exist,
to happen and to be performed precedent to and in the issuance of this Note, exist, have
happened and have been performed, in regular and due form and time as required by the Act
(as defined in the Bond Resolution), and that the issuance of this Note does not violate any
constitutional or statutory limitations or provisions.
IN WITNESS WHEREOF, the Collier County Water-Sewer District has issued this
Note and has caused the same to be executed by the manual signature of the Chairman of the
Board of County Commissioners of Collier County, Florida, acting as the Ex-Officio
Chairman of the Governing Board of the Issuer and by the manual signature of the Clerk of
the Board of County Commissioners of Collier County, Florida, acting as the Ex-Officio
Clerk of the Governing Board of the Issuer and its corporate seal to be affixed hereon.
COLLIER COUNTY WATER-SEWER
DISTRICT
(SEAL)
Chairman of the Board of County Commissioners
of Collier County, Florida, acting as the Ex-
Officio Chairman of the Governing Board of the
Collier County Water-Sewer District
ATTEST:
Clerk of the Board of County
Commissioners of Collier County,
Florida, acting as the Ex-Officio
Clerk of the Governing Board of the
Collier County Water-Sewer District
Approved as to form
and legality:
Jeffrey A. Klatzkow
County Attorney
4
ASSIGNMENT
FOR VALUE RECEIVED,the undersigned sells, assigns and transfers unto
Insert Social Security or Other Identifying Number of Assignee
(Name and Address of Assignee)
the within Note and does hereby irrevocably constitute and appoint
, as attorneys to register the transfer of the said Note
on the books kept for registration thereof with full power of substitution in the premises.
Dated:
Signature guaranteed:
NOTICE: Signature must be guaranteed by
an institution which is a participant in the
Securities Transfer Agent Medallion Program NOTICE: The signature to this assignment
(STAMP)or similar program. must correspond with the name of the
Registered Holder as it appears upon the face
of the within Note in every particular, without
alteration or enlargement or any change
whatever and the Social Security or other
identifying number of such assignee must be
supplied.
5
The following abbreviations, when used in the inscription on the face of the within
Note, shall be construed as though they were written out in full according to applicable laws
or regulations:
TEN COM-- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF TRANS MIN ACT -
(Cult.)
Custodian for
under Uniform Transfers to Minors Act of
(State)
Additional abbreviations may also be used though not in list above.
6