Backup Documents 05/22/2012 Item #11FI I F
ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board Office. The completed routing slip and original
documents are to be forwarded to the Board Office only after the Board has taken action on the item.)
ROUTING SLIP
Complete routing lines #I through #4 as appropriate for additional signatures, dates, and/or information needed. If the document is already complete with the
exception of the Chairman's signature, draw a line through routing lines #1 through #4, complete the checklist, and forward to Sue Filson (line #5).
Route to Addressee(s)
(List in routing order
Office
Initials
Date
1.
c
(Initial)
Applicable)
2.
May 22, 2012
Agenda Item Number
11 F
3.
Chairman, with the exception of most letters, must be reviewed and signed by the Office of the
4. Scott R. Teach, Deputy County Attorney
County Attorney
Number of Original
05.24.12
5 Ian Mitchell, BCC Executive Manager
Board of County Commissioners
Documents Attached
p
6. Minutes and Records
Clerk of Court's Office
� Li /V
PRIMARY CONTACT INFORMATION
(The primary contact is the holder of the original document pending BCC approval. Normally the primary contact is the person who created/prepared the executive
summary. Primary contact information is needed in the event one of the addressees above, including Sue Filson, need to contact staff for additional or missing
information. All original documents needing the BCC Chairman's signature are to be delivered to the BCC office only after the BCC has acted to approve the
item.
Name of Primary Staff
Scott R. Teach
Phone Number
(239) 252 -8400
Contact
c
(Initial)
Applicable)
Agenda Date Item was
May 22, 2012
Agenda Item Number
11 F
Approved by the BCC
Chairman, with the exception of most letters, must be reviewed and signed by the Office of the
Type of Document
Resolution No. 2012 -87 (Radio Road —
Number of Original
1
Attached
Davis Blvd. MSTU)
Documents Attached
INSTRUCTIONS & CHECKLIST
1: Forms/ County Forms/ BCC Forms/ Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05
« matter _number» /adocument_ number»
Initial the Yes column or mark "N /A" in the Not Applicable column, whichever is appropriate.
Yes
N/A (Not
c
(Initial)
Applicable)
1.
Original document has been signed /initialed for legal sufficiency. (All documents to be signed by the
SRT
Chairman, with the exception of most letters, must be reviewed and signed by the Office of the
County Attorney. This includes signature pages from ordinances, resolutions, etc. signed by the
County Attorney's Office and signature pages from contracts, agreements, etc. that have been fully
executed by all parties except the BCC Chairman and Clerk to the Board and possibly State
Officials.
2.
All handwritten strike - through and revisions have been initialed by the County Attorney's Office and
N/A
all other parties except the BCC Chairman and the Clerk to the Board
3.
The Chairman's signature line date has been entered as the date of BCC approval of the document or
SRT
the final negotiated contract date whichever is applicable.
4.
"Sign here" tabs are placed on the appropriate pages indicating where the Chairman's signature and
SRT
initials are required.
5.
In most cases (some contracts are an exception), the original document and this routing slip should be
SRT
provided to Ian Mitchell in the BCC office within 24 hours of BCC approval. Some documents are
time sensitive and require forwarding to Tallahassee within a certain time frame or the BCC's actions
are nullified. Be aware of your deadlines!
6.
The document was approved by the BCC on 05/22/12 and all changes made during the meeting
SRT
have been incorporated in the attached document. The County Attorney's Office has reviewed
the changes, if applicable.
7.
Please return one (1) CERTIFIED copy to Scott R. Teach, Deputy County Attorney. Please
SRT
charge costs to following cost center: 166 162 526.
1: Forms/ County Forms/ BCC Forms/ Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05
« matter _number» /adocument_ number»
11F
MEMORANDUM
Date: May 25, 2012
To: Scott Teach, Deputy County Attorney
County Attorney's Office
From: Ann Jennejohn, Deputy Clerk
Minutes & Records Department
Re: Resolution 2012 -87: Accepting BB &T's loan proposal to
finance the Radio Road MSTU Landscaping and Irrigation
Capital Improvement Project
Attached, per your request, is a certified copy of the resolution referenced above,
and the original accompanying documents, approved by the Board of County
Commissioners on Tuesday, May 22, 2012.
After further processing, please return a copy of the executed agreement to our
office for the Board's Official Record.
If you have any questions, please call me at 252 -8406.
Thank you.
Attachment
11 F
RESOLUTION NO. 2012 - 27
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA ACCEPTING A PROPOSAL FROM
BRANCH BANKING AND TRUST COMPANY TO PROVIDE A TERM
LOAN TO FINANCE COSTS OF VARIOUS CAPITAL
IMPROVEMENTS WITHIN THE RADIO ROAD, EAST OF SANTA
BARBARA BOULEVARD TO THE INTERSECTION OF RADIO
ROAD AND DAVIS BOULEVARD MUNICIPAL SERVICE TAXING
UNIT; APPROVING THE FORM OF A LOAN AGREEMENT WITH
BRANCH BANKING AND TRUST COMPANY; AUTHORIZING THE
ISSUANCE OF A PROMISSORY NOTE PURSUANT TO SUCH LOAN
AGREEMENT IN THE AGGREGATE PRINCIPAL AMOUNT OF NOT
EXCEEDING $649,000; AUTHORIZING SUCH NOTE TO BE
PAYABLE FROM AD VALOREM TAXES LEVIED IN AN AMOUNT
NOT TO EXCEED .5 MILLS ON ALL TAXABLE PROPERTY WITHIN
THE MSTU; DELEGATING CERTAIN AUTHORITY TO THE
CHAIRMAN OF THE BOARD AND OTHER OFFICERS OF THE
ISSUER; AUTHORIZING THE EXECUTION AND DELIVERY OF
OTHER DOCUMENTS IN CONNECTION THEREWITH;
AUTHORIZING THE ESTABLISHMENT OF A PROJECT ACCOUNT
WITH BRANCH BANKING AND TRUST COMPANY; AND
PROVIDING FOR AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA:
SECTION 1. FINDINGS. It is hereby ascertained, determined and
declared that:
(A) Pursuant to Resolution No. 2011 -192, adopted by the Board of County
Commissioners (the 'Board ") of Collier County, Florida (the "Issuer ") on October 25,
2011 (the "Referendum Resolution "), the Issuer ordered the holding of a bond
referendum election to determine if the qualified electors within the Radio Road, East of
Santa Barbara Boulevard to the Intersection of Radio Road and Davis Boulevard
Municipal Service Taxing Unit (the "MSTU ") would approve the issuance of not
exceeding $649,000 aggregate principal amount of limited general obligation bonds
payable from ad valorem taxes to be levied in an amount not to exceed .5 mills on all
taxable property within the MSTU for the principal purpose of financing costs of certain
landscaping and irrigation capital improvements within the MSTU (the 'Project ").
(B) On January 31, 2012, a bond referendum election (the "Bond Referendum
Election ") was held and the issuance of not exceeding $649,000 principal amount of
limited general obligation bonds payable from ad valorem taxes levied on all taxable
property within the MSTU in an amount not to exceed .5 mills was approved by a
majority of the qualified electors within the MSTU voting in said Bond Referendum
Election.
(C) The Issuer distributed an Invitation to Bid dated February 23, 2012 (the
"Invitation to Bid "), to various financial institutions soliciting bids to provide the Issuer
with a fixed rate term loan to finance the costs of the Project.
(D) Branch Banking and Trust Company (the "Noteholder ") has submitted a
proposal to provide the Issuer with a fixed rate term loan to finance costs of the Project,
which proposal complies with the terms and provisions of the Invitation to Bid and is
attached hereto as Exhibit A.
(E) The Issuer deems it to be in its best interest to accept the proposal of the
Noteholder and to issue its Collier County, Florida Limited General Obligation Note
(Radio Road MSTU Project), Series 2012 (the "Note ") to the Noteholder for the principal
purpose of financing costs of the Project.
(F) The Note shall be issued pursuant to this Resolution and a Loan Agreement
to be executed between the Noteholder and the Issuer (the "Loan Agreement "), the form
of which is attached hereto as Exhibit B.
(G) Due to the present volatility and uncertainty of the market for tax - exempt
obligations such as the Note, it is in the best interest of the Issuer to sell the Note to the
Noteholder by a negotiated sale pursuant to the provisions hereof and of the Loan
Agreement, allowing the Issuer to choose the date of issuance of the Note rather than
issuing the Note on an advertised date, thereby permitting the Issuer to obtain the best
possible price, terms and interest rate for the Note.
(H) The Note shall be repaid solely from the ad valorem tax levied on all
taxable property within the MSTU in an amount not to exceed .5 mills (the "Limited Ad
Valorem Tax ") to pay the scheduled debt service on the Note as approved by the
qualified electors within the MSTU voting in the Bond Referendum Election, as provided
herein and in the Loan Agreement.
SECTION 2. DEFINITIONS. When used in this Resolution capitalized
terms not otherwise defined herein shall have the meanings set forth in the Loan
Agreement unless the context clearly indicates a different meaning.
2
The words "herein," "hereunder," "hereby," "hereto," "hereof," and any similar
terms shall refer to this Resolution. Words importing the singular number include the
plural number, and vice versa.
SECTION 3. AUTHORITY FOR THIS RESOLUTION. This
Resolution is adopted pursuant to Chapter 125, Florida Statutes, Article VII, Section 12
of the Florida Constitution, the Referendum Resolution, Ordinance No. 2009 -44, adopted
on July 28, 2009, as amended and supplemented, and other applicable provisions of law.
SECTION 4. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of the Note by the Noteholder, the
provisions of this Resolution shall be a part of the contract of the Issuer with the
Noteholder and shall be deemed to be and shall constitute a contract between the Issuer
and the Noteholder. The pledge made in this Resolution and the provisions, covenants
and agreements herein set forth to be performed by or on behalf of the Issuer shall be for
the benefit, protection and security of the Noteholder.
SECTION 5. AUTHORIZATION OF PROJECT; ESTABLISHMENT
OF PROJECT ACCOUNT. The acquisition, construction and equipping of the Project
is hereby authorized and approved. The Project Account (as defined in the Loan
Agreement) is authorized to be established with the Noteholder.
SECTION 6. ACCEPTANCE OF NOTEHOLDER'S PROPOSAL. The
Issuer hereby accepts the proposal of the Noteholder to provide the Issuer with a term
loan to finance costs of the Project. The proposal of the Noteholder attached hereto as
Exhibit A is hereby approved and accepted and the Chairman is hereby authorized and
directed to execute and deliver any documents or instruments that may be required in
connection with such acceptance. All actions taken with respect to such proposal prior to
the date hereof are hereby authorized and ratified.
SECTION 7. APPROVAL OF FORM OF LOAN AGREEMENT AND
NOTE. The Issuer hereby approves a loan from the Noteholder in the principal amount
of not exceeding $649,000. The Chairman, upon the advice of the Issuer's financial
advisor, Public Financial Management, Inc. (the "Financial Advisor "), is authorized and
directed to determine the specific principal amount of the loan prior to the issuance of the
Note; provided, however, such principal amount may not exceed $649,000. The Note
shall bear interest at an annual fixed rate of 3.44 %. Such interest rate shall be set forth in
the Loan Agreement and the Note. The Note shall be subject to prepayment as provided
in the Loan Agreement. The final maturity of the Note shall not be later than ten (10)
years from the date of issuance of the Note as authorized by the Bond Referendum
Resolution, such final maturity to be determined by the Chairman, upon the advice of the
Financial Advisor and the approval of the Noteholder. The terms and provisions of the
Loan Agreement, in substantially the form attached hereto as Exhibit B, are hereby
approved, with such changes, insertions and additions as the Chairman may approve. The
Issuer hereby authorizes the Chairman to execute and deliver, and the Clerk to attest and
affix the Issuer seal to, the Loan Agreement substantially in the form attached hereto as
Exhibit B, with such changes, insertions and additions as the Chairman may approve, his
execution thereof being evidence of such approval. In order to evidence the loan under
the Loan Agreement, it is necessary to provide for the execution and delivery of the Note.
The Issuer hereby authorizes the Chairman to execute and deliver, and the Clerk to attest
and affix the Issuer seal to, the Note substantially in the form attached to the Loan
Agreement, with such changes, insertions and additions as the Chairman may approve,
his execution thereof being evidence of such approval.
SECTION 8. LIMITED GENERAL OBLIGATION OF THE ISSUER.
The Note shall be a limited general obligation of the Issuer secured by and payable from
the Limited Ad Valorem Tax as provided in the Loan Agreement.
SECTION 9. GENERAL AUTHORITY. The Chairman and the Clerk
are authorized to execute and deliver such documents, instruments and contracts, whether
or not expressly contemplated hereby, and the other employees or agents of the Issuer are
hereby authorized and directed to do all acts and things required hereby or thereby as
may be necessary for the full, punctual and complete performance of all the terms,
covenants, provisions and agreements herein and therein contained, or as otherwise may
be necessary or desirable to effectuate the purpose and intent of this Resolution.
SECTION 10. REPEAL OF INCONSISTENT DOCUMENTS. All
ordinances, resolutions or parts thereof in conflict herewith are hereby superseded and
repealed to the extent of such conflict.
[Remainder of page intentionally left blank]
4
11F
SECTION 11. EFFECTIVE DATE. This Resolution shall become effective
immediately upon adoption.
nd
DULY ADOPTED this a01 day of May, 2012.
(SEAL)
All
- ` `L C
D ight
M1f''''�
By.
Approved as to Form and
Legal Sufficiency:
County Attorney
COLLIER COUNTY, FLORIDA
7-L4
Chairman, Board of County missioners
FRED W. COYLE
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Date
Data 6-1
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EXHIBIT A
Branch Banking and Trust Company Proposal
11F
10
BB &T Governmental Finance
255 S. Orange Ave., I Oh Floor
Orlando, FL 32801
(407) 241 -3570
Fax (877) 320 -4453
May 8, 2012
Mr. Steve Carnell
Purchasing/General Services Director
Collier County
3327 Tamiami Trail East
Naples, FL 34112
Dear Mr. Carnell:
Branch Banking and Trust Company ( "BB &T") is pleased to offer this proposal for the financing requested by
Collier County, FL ( "County ").
(1) Project: Financing of the County's Radio Road East MSTU Fixed Rate Term Loan
- Landscaping and Sprinkler System Capital Improvements
(2) Amount To Be Financed: Not to Exceed $649,000.00
(3) Interest Rates, Financing Terms and Corresponding Payments:
Term NBO Rate
10 years 3.44%
Principal and interest payments shall be due monthly as requested by the County. Interest will accrue on the
principal balance of the loan based on a 30/360 day count basis. Upon being awarded this transaction BB &T must
approve of the final amortization schedule.
The loan proceeds shall be required to be deposited on behalf of the County into a project fund account with
BB &T. Earnings on the project fund shall accrue to the benefit of the County for use on project costs or interest
payments.
The interest rate stated above is valid for a closing not later than June 1, 2012. Closing of the financing is
contingent upon completing documentation acceptable to BB &T and its counsel.
Remuneration for our legal review expenses and underwriting for this financing transaction shall be $3,000.00.
All applicable costs of counsel for the County and any other costs shall be the County's responsibility and separately
payable by the County.
The financing documents shall allow for the prepayment of the principal balance in whole on a scheduled
payment date with a I% prepayment penalty.
The financing documents shall also include a provision that will outline appropriate changes to be implemented
in the event that this transaction is determined to be taxable in accordance with the Florida State Statutes or the Internal
Revenue Service code. These provisions must be acceptable to BB &T.
The stated interest rate assumes that the County expects to borrow more than $10,000,000.00 in the calendar
year 2012 and that the financing shall comply with the IRS Code Sections 141, 148 and 149(e). BB &T reserves the right
to terminate its interest in this bid or to negotiate a mutually acceptable rate if the financing is not a qualified tax - exempt
financing.
I I F
(4) Financing Documents:
It shall be the responsibility of the County to retain and compensate counsel to appropriately structure the
financing documents according to Florida State statutes. BB &T shall also require the County to provide an unqualified
bond counsel opinion. BB &T and its counsel reserve the right to review and approve all documentation before closing.
(5) Security:
The loan will be secured by the ad valorem property tax receipts collected from the property owners within the
Radio Road East MSTU.
BB &T appreciates the opportunity to make this financing proposal and requests to be notified within ten days of
this proposal should BB &T be the successful proposer.
BB &T shall have the right to cancel this offer by notifying the County of its election to do so (whether or not
this offer has previously been accepted by the County) if at any time prior to the closing there is a material adverse
change in the County's financial condition, if we discover adverse circumstances of which we are currently unaware, if
we are unable to agree on acceptable documentation with the County or if there is a change in law (or proposed change in
law) that changes the economic effect of this financing to BB &T. We reserve the right to negotiate and /or terminate our
interest in this transaction should we be the successful proposer.
Please call me at (803) 251 -1328 with your questions and comments or contact Michael C. Smith in our Orlando,
FL office at:
255 South Orange Avenue
Orlando, FL 32801
Phone: 407.241.3570
Fax: 877.320.4453
Email: mcsmith((�bbandt.com
We look forward to hearing from you.
Sincerely,
BRANCH BANKING AND TRUST COMPANY
Andrew G. Smith
Senior Vice President
i1F
EXHIBIT B
Form of Loan Agreement
11F
LOAN AGREEMENT
BETWEEN
COLLIER COUNTY, FLORIDA
AND
BRANCH BANKING AND TRUST COMPANY
Dated as of June 1, 2012
11F
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITION OF TERMS
SECTION 1.01. DEFINITIONS ..................................................... ..............................1
SECTION 1.02. INTERPRETATION ........................................... ............................... 4
SECTION 1.03. TITLES AND HEADINGS ................................ ............................... 5
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS; SECURITY FOR
SERIES 2012 NOTE
SECTION 2.01.
REPRESENTATIONS BY THE COUNTY ....... ............................... 6
SECTION 2.02.
GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE NOTEHOLER ....... ............................... 7
SECTION 2.03.
TAX COVENANT .............................................. ............................... 7
SECTION 2.04.
LIMITED GENERAL OBLIGATIONS OF THE COUNTY ........... 7
SECTION 2.05.
CREATION OF SINKING FUND; PAYMENT COVENANT........ 8
SECTION 2.06.
PROJECT FUND ................................................ ............................... 8
ARTICLE III
DESCRIPTION OF NOTE; PAYMENT TERMS; OPTIONAL PREPAYMENT
SECTION 3.01. DESCRIPTION OF THE NOTE ...................... ............................... 10
SECTION 3.02. OPTIONAL PREPAYMENT ........................... ............................... 11
SECTION 3.03. ADJUSTMENTS TO INTEREST RATE ......... ............................... 11
ARTICLE IV
CONDITIONS FOR ISSUANCE OF THE NOTE
SECTION 4.01. CONDITIONS FOR ISSUANCE ..................... ............................... 13
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
SECTION 5.01. EVENTS OF DEFAULT .................................. ............................... 14
SECTION 5.02. REMEDIES ....................................................... ............................... 14
11F "
ARTICLE VI
MISCELLANEOUS
SECTION 6.01.
AMENDMENTS, CHANGES OR MODIFICATIONS TO
THEAGREEMENT .................................... ...............................
15
SECTION 6.02.
COUNTERPARTS ............................................ ...............................
15
SECTION6.03.
SEVERABILITY .............................................. ...............................
15
SECTION 6.04.
TERM OF AGREEMENT ................................ ...............................
15
SECTION 6.05.
NOTICE OF CHANGES IN FACT .................. ...............................
15
SECTION6.06.
NOTICES .......................................................... ...............................
15
SECTION 6.07.
NO THIRD -PARTY BENEFICIARIES ........... ...............................
16
SECTION 6.08.
APPLICABLE LAW ......................................... ...............................
16
SECTION 6.09.
INCORPORATION BY REFERENCE .............. .............................16
EXHIBIT A - FORM OF SERIES 2012 NOTE
EXHIBIT B - FORM OF REQUISITION
ii
11F i '
This LOAN AGREEMENT (the "Agreement ") is made and entered into as of
June 1, 2012, by and between COLLIER COUNTY, FLORIDA, a political subdivision
of the State of Florida (the "County "), and BRANCH BANKING AND TRUST
COMPANY, a banking organization duly organized and existing under the laws of the
state of North Carolina and authorized to do business in the State of Florida and its
successors and assigns (the "Noteholder ");
WITNESSETH:
WHEREAS, the County is authorized by provisions of the Chapter 125, Florida
Statutes, Article VII, Section 12 of the Florida Constitution, the Referendum Resolution
(as defined herein), the MSTU Ordinance (as defined herein) and other applicable
provisions of law to, among other things,, acquire, construct, equip, own, operate and
maintain various capital improvements and public facilities within the MSTU (as defined
herein) to promote the health, welfare and economic prosperity of the residents of the
County and the MSTU and to borrow money to finance the acquisition, construction and
equipping of such capital improvements and public facilities; and
WHEREAS, the County has various capital improvement needs and requirements
within the MSTU as described in the plans and specifications on file with the County, as
the same may be modified or amended from time to time (the "Project ") that are required
to be acquired, constructed and equipped in order to improve and maintain the health,
safety and welfare of the County and its inhabitants; and
WHEREAS, the Noteholder is willing to make a term loan to the County, and the
County is willing to incur such loan, pursuant to the terms and provisions of this
Agreement in an aggregate principal amount of $ to finance costs of the
Project and pay costs relating to the issuance of the hereinafter described Series 2012
Note.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
That the parties hereto, intending to be legally bound hereby and in consideration
of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows:
ARTICLE I
DEFINITION OF TERMS
SECTION 1.01. DEFINITIONS. The terms defined in this Article I shall, for
all purposes of this Agreement, have the meanings in this Article I specified, unless the
context clearly otherwise requires.
11F
"Act" shall mean Chapter 125, Florida Statutes, Article VII, Section 12 of the
Florida Constitution, the Referendum Resolution, the MSTU Ordinance and other
applicable provisions of law.
"Agreement" shall mean this Loan Agreement, dated as of June 1, 2012, between
the County and the Noteholder and any and all modifications, alterations, amendments
and supplements hereto made in accordance with the provisions hereof.
"Board" shall mean the Board of County Commissioners of Collier County,
Florida.
"Bond Counsel" shall mean Nabors, Giblin & Nickerson, P.A., Tampa, Florida
or any other attorney at law or firm of attorneys of nationally recognized standing in
matters pertaining to the federal tax exemption of interest on obligations issued by states
and political subdivisions and duly admitted to practice law before the highest court of
any state of the United States of America.
"Bond Referendum Election" shall mean the bond referendum election held on
January 31, 2012, with respect to the financing of the Project through the issuance of
bonds secured by the Limited Ad Valorem Tax.
"Business Day" shall mean any day other than a Saturday, Sunday or a day on
which the Noteholder is authorized or required to be closed.
"Chairman" shall mean the Chairman of the Board or, in his or her absence or
unavailability, the Vice Chairman of the Board.
"Clerk" shall mean the Clerk of the Circuit Court of Collier County, Florida and
Ex- Officio Clerk to the Board, or his duly authorized designee, including any duly
appointed Deputy Clerk.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
applicable rules and regulations.
"County" shall mean Collier County, Florida, a political subdivision of the State
of Florida.
"County Manager" shall mean the County Manager of the County, or his
authorized designee.
"Determination of Taxability" shall mean the circumstance of interest paid or
payable on the Note becoming includable for federal income tax purposes in the gross
income of the Noteholder as a consequence of any act, omission or event whatsoever and
regardless of whether the same was within or beyond the control of the County. A
Determination of Taxability will be deemed to have occurred upon (A) the receipt by the
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11F
County or the Noteholder of an original or a copy of an Internal Revenue Service
Technical Advice Memorandum or Statutory Notice of Deficiency or other official letter
or correspondence from the Internal Revenue Service which holds that any interest
payable on the Note is includable in the gross income of the Noteholder; (B) the issuance
of any public or private ruling of the Internal Revenue Service that any interest payable
on the Note is includable in the gross income of the Noteholder, or (C) receipt by the
County or the Noteholder of an opinion of Bond Counsel that any interest on the Note has
become includable in the gross income of the Noteholder for federal income tax
purposes. For all purposes of this definition, a Determination of Taxability will be
deemed to occur on the date as of which the interest on the Note is deemed includable in
the gross income of the Noteholder. 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.
"Financial Advisor" shall mean Public Financial Management, Inc., Naples,
Florida.
"Fiscal Year" shall mean the 12 -month period commencing on October 1 of any
year and ending on September 30 of the immediately succeeding year.
"Interest Payment Date" shall have the meaning ascribed thereto in Section
3.01(c) hereof.
"Interest Rate" shall mean a fixed interest rate equal to 3.44% per annum. The
Interest Rate is subject to adjustment upon the occurrence of certain events pursuant to
Section 3.03 hereof.
"Limited Ad Valorem Tax" shall mean the ad valorem tax levied on all taxable
property within the MSTU in an amount not to exceed .5 mills to pay the annual debt
service on the Note as approved by the qualified electors of the MSTU voting in the Bond
Referendum Election.
"Maturity Date" shall mean May 31, 2022.
"Maximum Corporate Tax Rate" shall mean the highest marginal United States
federal income tax rate applicable to the taxable income of corporations without regard to
any increase in tax designed to normalize the rate for all income at the highest marginal
tax rate, which as of the date hereof is 35 %.
"MSTU" shall mean the Radio Road, East of Santa Barbara Boulevard to the
Intersection of Radio Road and Davis Boulevard Municipal Service Taxing Unit, created
pursuant to the MSTU Ordinance.
"MSTU Ordinance" shall mean Ordinance No. 2009 -44, adopted on July 28,
2009, as amended and supplemented by Ordinance No. _, adopted on May 22, 2012.
11F
"Note" shall mean the Collier County, Florida Limited General Obligation Note
(Radio Road MSTU Project), Series 2012.
"Noteholder" shall mean Branch Banking and Trust Company, and its successors
and assigns.
"Pledged Funds" shall mean the proceeds of the Limited Ad Valorem Tax and,
until applied in accordance with the provisions of this Agreement, all moneys and
investments on deposit in the Project Fund and the Sinking Fund.
"Principal Payment Date" shall have the meaning ascribed thereto in Section
3.01(c) hereof.
"Project" shall mean the acquisition, construction and equipping of various
landscaping and irrigation capital improvements in the MSTU, as such improvements are
described in the plans and specifications on file or to be on file with the County, as the
same may be modified or amended from time to time.
"Project Fund" shall mean the Collier County, Florida Limited General
Obligation Note (Radio Road MSTU Project), Series 2012 Project Fund established in
Section 2.06 hereof.
"Referendum Resolution" shall mean Resolution No. 2011 -192, adopted by the
Board on October 25, 2011.
"Resolution" shall mean the resolution adopted by the Board on May 22, 2012,
which, among other things, authorized the execution and delivery of this Loan Agreement
and the issuance of the Note.
"Sinking Fund" shall mean the Collier County, Florida Limited General
Obligation Note (Radio Road MSTU Project), Series 2012 Sinking Fund established in
Section 2.05 hereof.
"State" shall mean the State of Florida.
"Tax Certificate" shall mean the Certificate as to Arbitrage and certain Other
Tax Matters to be executed by the County in connection with the issuance of the Note, as
such Certificate may be amended from time to time.
SECTION 1.02. INTERPRETATION. Unless the context clearly requires
otherwise, words of masculine gender shall be construed to include correlative words of
the feminine and neuter genders and vice versa, and words of the singular number shall
be construed to include correlative words of the plural number and vice versa. Any
capitalized terms used in this Agreement not herein defined shall have the meaning
ascribed to such terms in the Resolution. This Agreement and all the terms and
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I IF
provisions hereof shall be construed to effectuate the purpose set forth herein and to
sustain the validity hereof.
SECTION 1.03. TITLES AND HEADINGS. The titles and headings of the
articles and sections of this Agreement, which have been inserted for convenience of
reference only and are not to be considered a part hereof, shall not in any way modify or
restrict any of the terms and provisions hereof, and shall not be considered or given any
effect in construing this Agreement or any provision hereof or in ascertaining intent, if
any question of intent should arise.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS;
SECURITY FOR SERIES 2012 NOTE
SECTION 2.01. REPRESENTATIONS BY THE COUNTY. The County
represents, warrants and covenants that:
(a) The County is a duly created and validly existing political subdivision of
the State. Pursuant to the Resolution, the County has duly authorized the execution and
delivery of this Agreement, the performance by the County of all of its obligations
hereunder, and the issuance of the Note in the aggregate principal amount of not
exceeding $649,000.
(b) The County has complied with all of the provisions of the Constitution and
laws of the State, including the Act, and has full power and authority to enter into and
consummate all transactions contemplated by this Agreement or under the Note, and to
perform all of its obligations hereunder and under the Note and, to the best knowledge of
the County, the transactions contemplated hereby do not conflict with the terms of any
statute, order, rule, regulation, judgment, decree, agreement, instrument or commitment
to which the County is a party or by which the County is bound.
(c) The County is duly authorized and entitled to issue the Note and enter the
Agreement and, when issued in accordance with the terms of this Agreement, the Note
and the Agreement will each constitute legal, valid and binding obligations of the County
enforceable in accordance with their respective terms, subject as to enforceability to
bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting
creditors' rights generally, or by the exercise of judicial discretion in accordance with
general principles of equity.
(d) There are no actions, suits or proceedings pending or, to the best knowledge
of the County, threatened against or affecting the County, at law or in equity, or before or
by any governmental authority, that, if adversely determined, would materially impair the
ability of the County to perform the County's obligations under this Agreement or under
the Note.
(e) The County will furnish to the Noteholder within 210 days after the close
of each Fiscal Year a copy of the annual audited financial statements of the County,
including all standard statements for a Comprehensive Annual Financial Report, prepared
by a certified public accountant. The County shall also provide the Noteholder with a
copy of the annual budget of the County each year within 30 days of the final adoption of
such budget. With reasonable promptness the County shall provide such other data and
information as may be reasonably requested by the Noteholder from time to time, or in
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the alternative the County shall permit the Noteholder the right to inspect any and all of
the County books, records, and/or accountings as may reasonably be related to this Loan
Agreement.
SECTION 2.02. GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE NOTEHOLDER. The Noteholder hereby represents, warrants
and agrees that it is a banking organization duly organized and existing under the laws of
the state of North Carolina, authorized to do business in the State of Florida and
authorized to execute and deliver this Agreement and to perform its obligations
hereunder, and such execution and delivery will not constitute a violation of its charter,
articles of association or bylaws. Pursuant to the terms and provisions of this Agreement,
the Noteholder agrees to provide a term loan to the County as evidenced hereby and by
the Note for the purpose of financing costs of the Project and paying costs relating to the
issuance of the Note.
SECTION 2.03. TAX COVENANT. (a) In order to maintain the exclusion
from gross income for purposes of Federal income taxation of interest on the Note, the
County shall comply with each requirement of the Code applicable to the Note. In
furtherance of the covenant contained in the preceding sentence, the County agrees to
continually comply with the provisions of the Tax Certificate, which is incorporated fully
by reference herein, as a source of guidance for achieving compliance with the Code.
(b) The County shall make any and all rebate payments required to be made to
the United States Department of the Treasury in connection with the Note pursuant to
Section 148(f) of the Code.
(c) So long as necessary in order to maintain the exclusion from gross income
of interest on the Note for Federal income tax purposes, the covenants contained in this
Section shall survive the payment of the Note and the interest thereon, including any
payment or defeasance thereof.
(d) The County shall not take or permit any action or fail to take any action
which would cause the Note to be an "arbitrage bond" within the meaning of Section
148(a) of the Code.
SECTION 2.04. LINIITED GENERAL OBLIGATIONS OF THE
COUNTY. The faith, credit and taxing power of the County shall be and are hereby
pledged for the full and prompt payment of the principal of and interest on the Note;
provided, that such pledge is a limited obligation of the County which shall not exceed .5
mills of ad valorem taxes levied upon all taxable property within the MSTU. A direct
annual tax not in excess of .5 mills shall be levied upon all taxable property within the
MSTU to make such payments. The Noteholder shall never have the right to compel the
full faith, credit and taxing power of the County in amount greater than the Limited Ad
Valorem Tax. Provision shall be included and made in the annual budget and tax levy for
7
the levy of the Limited Ad Valorem Tax. Whenever the County shall, in any Fiscal Year,
have irrevocably deposited in the Sinking Fund any moneys derived from sources other
than the aforementioned Limited Ad Valorem Tax, said Limited Ad Valorem Tax may be
correspondingly diminished; but any such diminution must leave available an amount of
such Limited Ad Valorem Tax, after allowance for anticipated delinquencies in
collection, fully sufficient, with such moneys so deposited from other sources, to assure
the prompt payment of principal and interest falling due prior to the time that the
proceeds of the next annual Limited Ad Valorem Tax levy will be available. Such
Limited Ad Valorem Tax shall be levied and collected at the same time, and in the same
manner, as other ad valorem taxes of the County are assessed, levied and collected. The
Limited Ad Valorem Tax shall be levied and collected in accordance with all applicable
law, including, but not limited to, the Referendum Resolution. The County hereby
irrevocably pledges such Limited Ad Valorem Tax to the payment of the Note.
SECTION 2.05. CREATION OF SINKING FUND; PAYMENT
COVENANT. (a) There is hereby created the "Collier County, Florida Limited General
Obligation Note (Radio Road MSTU Project), Series 2012 Sinking Fund" which shall be
held in trust for the benefit of the Noteholder. Upon receipt, the County shall deposit or
credit to the Sinking Fund the proceeds of the Limited Ad Valorem Tax. Moneys in the
Sinking Fund shall be held in trust by the County and shall be subject to a lien and charge
in favor of the Noteholder and for the further security of such Noteholder.
(b) Moneys in the Sinking Fund shall be used solely for the purpose of paying
debt service on the Note coming due (whether by maturity, scheduled mandatory
redemption or otherwise). On or prior to each Interest Payment Date and Principal
Payment Date, the County shall withdraw from the Sinking Fund sufficient moneys to
pay such principal or interest on the Note. The County covenants that it shall duly and
punctually pay the principal of and interest on the Note at the dates and place and in the
manner provided herein and in the Note according to the true intent and meaning thereof
and all other amounts due under this Agreement.
(c) The County may invest moneys on deposit in the Sinking Fund in any
investments that are authorized by applicable law.
SECTION 2.06. PROJECT FUND. The County covenants and agrees to
establish a special fund to be known as the "Collier County, Florida Limited General
Obligation Note (Radio Road MSTU Project), Series 2012 Project Fund," which shall be
used only for payment of the costs of the Project. Moneys in the Project Fund, until
applied to payment of any costs of the Project in the manner hereinafter provided, shall
be subject to a lien and charge in favor of the Noteholder and for the further security of
such Noteholder. Moneys in the Project Fund shall be held in a deposit account
established by the County with the Noteholder. Moneys on deposit in the Project Fund
shall be invested in a money rate savings account. Any investment earnings with respect
to the Project Fund shall be retained therein and will accrue to the benefit of the County.
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If the Noteholder is no longer a "qualified public depository under Chapter 280,
Florida Statutes, the County may, in its sole discretion, immediately withdraw all of its
funds from the Project Fund and transfer them to another financial institution that
qualifies as a qualified public depository, without the necessity of providing a requisition
or requisitions as described below.
The County covenants that the acquisition, construction and equipping of the
Project will be completed without delay and in accordance with sound engineering
practices. Except as provided in the immediately succeeding paragraph, the County shall
only make disbursements or payments from the Project Fund to pay costs of the Project.
The County shall keep records of such disbursements and payments and shall retain all
such records for such periods of time as is required by applicable law. Except as
provided in the immediately succeeding paragraph, the County shall provide the
Noteholder with a fully executed requisition prior to the withdrawal of any funds from
the Project Fund for the payment of Project costs. Such requisition shall be substantially
in the form attached hereto as Exhibit B. The Clerk is authorized and directed to execute
and deliver such requisitions. The project manager for the Project is authorized and
directed to approve each requisition as to paragraphs 4 and 6 thereof.
Notwithstanding any of the other provisions of this Section 2.06, to the extent that
other moneys are not available therefor, amounts in the Project Fund shall be applied to
the payment of principal and interest on the Note.
The date of completion of the acquisition, construction and equipping of the
Project shall be filed by the County Manager with the County. Promptly after the date of
the completion of the Project, and after paying or making provisions for the payment of
all unpaid items of the costs of the Project, the County shall apply any balance of moneys
remaining in the Project Fund in the following order of priority: (A) to the Sinking Fund
to pay debt service on the Note, and (B) for any other lawful purpose; provided the
County has received an opinion of Bond Counsel to the effect that such application shall
not adversely affect the exclusion, if any, of interest on the Note from gross income for
purposes of federal income taxation.
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ARTICLE III
DESCRIPTION OF NOTE; PAYMENT TERMS;
OPTIONAL PREPAYMENT
SECTION 3.01. DESCRIPTION OF THE NOTE. (a) The County hereby
authorizes the issuance and delivery of the Note to the Noteholder which Note shall be in
an amount equal to THOUSAND AND 00 /100 DOLLARS
($ ) and shall be designated as the "Collier County, Florida Limited
General Obligation Note (Radio Road MSTU Project), Series 2012." The text of the Note
shall be substantially in the form attached hereto as Exhibit A, with such omissions,
insertions and variations as may be necessary and desirable to reflect the particular terms
of the Note. The provisions of the form of the Note are hereby incorporated in this
Agreement.
(b) The Note shall be dated the date of its delivery. The Note shall be executed
in the name of the County by the manual signature of the Chairman and the official seal
of the County shall be affixed thereto and attested by the manual signature of the Clerk.
In case any one or more of the officers, who shall have signed or sealed the Note, shall
cease to be such officer of the County before the Note so signed and sealed shall have
been actually delivered, such Series 2012 Note may nevertheless be delivered as herein
provided and may be issued as if the person who signed or sealed such Series 2012 Note
had not ceased to hold such office.
(c) The Note shall bear interest from its date of issuance at the Interest Rate
(calculated on a 30/360 day count basis) as the same may be adjusted pursuant to Section
3.03 hereof. Interest on the Note shall be payable monthly, commencing July 1, 2012,
and on the 1 st day of each month thereafter (each an "Interest Payment Date ") so long as
any amount under the Note remains outstanding. Principal on the Note shall be payable
monthly, commencing July 1, 2012, and on the 1st day of each month thereafter (each a
"Principal Payment Date "), through and including the Maturity Date. The aggregate
annual principal and interest payments shall be in substantially equal amounts determined
on approximately a level debt service basis and shall be set forth in the Note. The County
Manager is authorized to establish the final debt service schedule for the Note upon the
advice of the County's Financial Advisor and the agreement of the Noteholder.
(d) All payments of principal of and interest on the Note shall be payable in
any coin or currency of the United States which, at the time of payment, is legal tender
for the payment of public and private debts and shall be made to the Noteholder (i) in
immediately available funds or wire transfer, (ii) by delivering to the Noteholder no later
than the applicable Interest Payment Date or Principal Payment Date a check or draft of
the County, or (iii) in such other manner as the County and the Noteholder shall agree
upon in writing. If any Interest Payment Date or Principal Payment Date is not a
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Business Day, the corresponding payment shall be due on the next succeeding Business
Day. The County shall maintain registration books and records with respect to the
identity of the Noteholder and payments made thereto.
(e) Other than the fees referred to in Section 4.01(b) hereof, there will be no
Noteholder fees for the Note. Except as otherwise provided herein, the Noteholder shall
pay for all of its costs relating to servicing the Note.
SECTION 3.02. OPTIONAL PREPAYMENT. (a) The Note may be
prepaid on any Interest Payment Date, at the option of the County, from any moneys
legally available therefor, upon notice as provided herein, in whole but not in part, by
paying to the Noteholder the principal amount of the Note to be prepaid together with a
prepayment premium equal to 1.00% of the principal amount to be prepaid and unpaid
interest accrued on the amount of principal so prepaid to the date of such prepayment.
(b) Any prepayment of the Note shall be made on such Interest Payment Date
as shall be specified by the County in a notice delivered to the Noteholder not less than
ten (10) days prior thereto specifying the principal amount of the Note to be prepaid
(which shall be the entire outstanding principal amount) and the date of such prepayment.
Notice having been given as aforesaid, the outstanding principal of the Note stated in
such notice shall become due and payable on the date of prepayment stated in such
notice, together with the prepayment premium and interest accrued and unpaid to the date
of prepayment on the principal amount then being paid. If on the date of prepayment
moneys for the payment of the principal amount to be prepaid on the Note, together with
the prepayment premium and interest to the date of prepayment on such principal
amount, shall have been paid to the Noteholder as above provided, then from and after
the date of prepayment, interest on such prepaid principal amount of the Note shall cease
to accrue. If said money shall not have been so paid on the date of prepayment, such
principal amount of the Note shall continue to bear interest until payment thereof at the
Interest Rate.
SECTION 3.03. ADJUSTMENTS TO INTEREST RATE. (a) In the event
of a Determination of Taxability, the Interest Rate on the Note shall be immediately
increased to such rate as shall provide the Noteholder with the same rate of return that the
Noteholder would have otherwise received on the Note taking into account the increased
taxable income of the Noteholder of the Note as a result of such Determination of
Taxability (the "Adjusted Rate "); provided, however, such Adjusted Rate shall never
exceed the maximum rate allowable by law. Immediately upon a Determination of
Taxability, the County also agrees to pay to the Noteholder, the Additional Amount.
"Additional Amount" means (i) the difference between (A) interest on the Note for the
period commencing on the date on which the interest on the 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
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Note during the Taxable Period at the Interest Rate applicable to the Note prior to the
adjustment to the Adjusted Rate, plus (ii) any penalties, fines, fees, costs and interest
paid or payable by the Noteholder to the Internal Revenue Service by reason of such
Determination of Taxability.
(b) If the Maximum Corporate Tax Rate as applicable to the Noteholder
decreases or increases from 35 %, the Interest Rate otherwise borne by the Note shall be
increased or decreased, respectively, to the product obtained by multiplying the interest
rate otherwise borne by the Note by a fraction, the numerator of which is 1 minus the
Maximum Corporate Tax Rate as decreased or increased, as the case may be, and the
denominator of which is .65.
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ARTICLE IV
CONDITIONS FOR ISSUANCE OF THE NOTE
SECTION 4.01. CONDITIONS FOR ISSUANCE. (a) In connection with
the issuance of the Note, the Noteholder shall not be obligated to purchase the Note
pursuant to this Agreement unless at or prior to the issuance thereof the County delivers
to the Noteholder the following items in form and substance acceptable to the
Noteholder:
(i) A fully executed Tax Certificate;
(ii) A copy of a completed and executed Form 8038 -G to be filed with
the Internal Revenue Service;
(iii) An opinion of Bond Counsel in form and substance to the effect that
(A) the Note has been duly authorized by the County and is an enforceable
obligation in accordance with its terms (enforceability of it may be subject to
standard bankruptcy exceptions and the like), and (B) interest on the Note shall be
excludable from gross income for federal income tax purposes, will not be treated
as a preference item for purposes of computing the alternative minimum tax and is
not taken into account in determining the adjusted current earnings for the purpose
of computing the alternative minimum tax on certain corporations (as defined for
federal tax purposes);
(iv) An opinion of the County Attorney in form and substance
reasonably acceptable to the Noteholder; and
(v) Such additional certificates, instruments and other documents as the
Noteholder, Bond Counsel, or the County Attorney may deem necessary or
appropriate.
(b) The County shall deposit an amount of the proceeds of the Note equal to
$ to the Project Fund to pay costs of the Project in accordance with
Section 2.06 hereof. The remaining proceeds of the Note shall be applied to pay costs of
issuing the Note, including, but not limited to, an amount equal to $3,000 for the fee and
expenses for counsel to the Noteholder and the Noteholder's credit review fee.
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ARTICLE V
EVENTS OF DEFAULT; REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. An "Event of Default" shall be
deemed to have occurred under this Agreement if.
(a) The County shall fail to make timely payment of principal or interest then
due with respect to the Note;
(b) Any representation or warranty of the County contained in Article II of this
Agreement shall prove to be untrue in any material respect;
(c) Any covenant of the County contained in this Agreement shall be breached
or violated for a period of thirty (30) days after the County's notice of such breach or
violation, unless the Noteholder shall agree in writing, in its sole discretion, to an
extension of such time prior to its expiration; and
(d) There shall occur the dissolution or liquidation of the County, or the filing
by the County of a voluntary petition in bankruptcy, or the Board by the County of any
act of bankruptcy, or adjudication of the County as a bankrupt, or assignment by the
County for the benefit of its creditors, or appointment of a receiver for the County, or the
entry by the County into an agreement of composition with its creditors, or the approval
by a court of competent jurisdiction of a petition applicable to the County in any
proceeding for its reorganization instituted under the provisions of the Federal
Bankruptcy Act, as amended, or under any similar act in any jurisdiction which may now
be in effect or hereafter amended.
SECTION 5.02. REMEDIES. If any event of default shall have occurred and
be continuing, the Noteholder or any trustee or receiver acting for the Noteholder 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 Agreement, and may enforce and compel the
performance of all duties required by this Agreement or by any applicable statutes to be
performed by the County or by any officer thereof, including, but not limited to, specific
performance. No remedy herein conferred upon or reserved to the Noteholder is intended
to be exclusive of any other remedy or remedies, and each and every such remedy shall
be cumulative, and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. AMENDMENTS, CHANGES OR MODIFICATIONS TO
THE AGREEMENT. This Agreement shall not be amended, changed or modified
without the prior written consent of the Noteholder and the County.
SECTION 6.02. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which, when so executed and delivered, shall be an
original; but such counterparts shall together constitute but one and the same Agreement,
and, in making proof of this Agreement, it shall not be necessary to produce or account
for more than one such counterpart.
SECTION 6.03. SEVERABILITY. If any clause, provision or section of this
Agreement shall be held illegal or invalid by any court, the invalidity of such provisions
or sections shall not affect any other provisions or sections hereof, and this Agreement
shall be construed and enforced to the end that the transactions contemplated hereby be
effected and the obligations contemplated hereby be enforced, as if such illegal or invalid
clause, provision or section had not been contained herein.
SECTION 6.04. TERM OF AGREEMENT. This Agreement shall be in full
force and effect from the date hereof and shall continue in effect as long as the Note is
outstanding.
SECTION 6.05. NOTICE OF CHANGES IN FACT. Promptly after the
County becomes aware of the same, the County will notify the Noteholder of (a) any
change in any material fact or circumstance represented or warranted by the County in
this Agreement or in connection with the issuance of the Note, and (b) any default or
event which, with notice or lapse of time or both, could become a default under the
Agreement, specifying in each case the nature thereof and what action the County has
taken, is taking and/or proposed to take with respect thereto.
SECTION 6.06. NOTICES. Any notices or other communications required
or permitted hereunder shall be sufficiently given if delivered personally or sent
registered or certified mail, postage prepaid, to Collier County, Florida, Collier County
Government Complex, 3299 Tamiami Trail East, Naples, FL 34112 -5746, Attention:
County Manager, and to the Noteholder, Branch Banking and Trust Company, 5130
Parkway Plaza Blvd., Building No. 9, Charlotte, North Carolina 28217, Attention:
Account Administration/Municipal, or at such other address as shall be furnished in
writing by any such party to the other, and shall be deemed to have been given as of the
date so delivered or deposited in the United States mail.
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SECTION 6.07. NO THIRD -PARTY BENEFICIARIES. This Agreement
is for the benefit of the County and the Noteholder and their respective successors and
assigns, and there shall be no third -party beneficiary with respect thereto.
SECTION 6.08. APPLICABLE LAW. The substantive laws of the State of
Florida shall govern this Agreement.
SECTION 6.09. INCORPORATION BY REFERENCE. All of the terms
and obligations of the Resolution are hereby incorporated herein by reference as if said
Resolution was fully set forth in this Agreement and the Note.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first set forth herein.
COLLIER COUNTY, FLORIDA
(SEAL)
Chairman, Board of County Commissioners
ATTEST:
Deputy Clerk
Approved as to Form and Legal Sufficiency:
01
County Attorney
BRANCH BANKING AND TRUST
COMPANY
By:
Title: Assistant Vice President
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EXHIBIT A
$ .00
UNITED STATES OF AMERICA
STATE OF FLORIDA
COLLIER COUNTY, FLORIDA
LIMITED GENERAL OBLIGATION NOTE (RADIO ROAD MSTU PROJECT)
SERIES 2012
Interest Final
Rate Date of Issuance Maturi1y Date
3.44% June 1, 2012 May 31, 2022
KNOW ALL MEN BY THESE PRESENTS, that Collier County, Florida (the
"County "), for value received, hereby promises to pay to the order of Branch Banking
and Trust Company, or its successors or assigns (the "Noteholder "), the principal sum of
THOUSAND AND 00 /100 DOLLARS ($ .00)
pursuant to that certain Loan Agreement by and between the Noteholder and the County,
dated as of May _, 2012 (the "Agreement "), and to pay interest on the outstanding
principal amount hereof from the Date of Issuance set forth above, or from the most
recent date to which interest has been paid, at the Interest Rate per annum (calculated on
a 30/360 day count basis) identified above (subject to adjustment as provided in the
Agreement) on July 1, 2012, and the 1st day of each month thereafter (each an "Interest
Payment Date "), so long as any amount under this Note remains outstanding. Principal
of this Note shall be payable on July 1, 2012, and the 1st day of each month thereafter,
through and including the Maturity Date identified above. The repayment schedule for
this Note is set forth on Appendix I attached hereto. The principal and interest on this
Note is payable in any coin or currency of the United States of America which, at the
time of payment, is legal tender for the payment of public and private debts.
This Note is issued under the authority of and in full compliance with Chapter
125, Florida Statutes, Article VII, Section 12 of the Florida Constitution, the Referendum
Resolution (as defined in the Agreement) the MSTU Ordinance (as defined in the
Agreement) and other applicable provisions of law, and a resolution duly adopted by the
Board of County Commissioners of the County on May 22, 2012 (the "Resolution "), as
such Resolution may be amended and supplemented from time to time, and is subject to
all terms and conditions of the Resolution and the Agreement. Any capitalized term used
in this Note and not otherwise defined shall have the meaning ascribed to such term in the
Agreement. This Note is being issued to finance costs of certain landscaping and
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irrigation capital improvements within the Radio Road, East of Santa Barbara Boulevard
to the Intersection of Radio Road and Davis Boulevard Municipal Service Taxing Unit
(the "MSTU ").
In accordance with the terms of the Agreement and the Resolution, the County has
made a limited pledge of its faith, credit and taxing power for the full and prompt
payment of the principal of and interest on this Note. A direct annual tax shall be levied,
not in excess of .5 mills, upon all taxable property within the MSTU to make such
payments. Provision shall be included and made in the annual budget and tax levy for the
levy of such taxes, which tax shall be levied and collected at the same time, and in the
same manner, as other ad valorem taxes of the County are assessed, levied and collected.
This Note shall bear interest at the Interest Rate identified above on a 30/360 day
count basis. Such Interest Rate is subject to adjustment as provided in Section 3.03 of the
Agreement. The Noteholder shall provide to the County upon request such
documentation to evidence the amount of interest due with respect to the Note upon any
such adjustment.
Notwithstanding any provision in this Note to the contrary, in no event shall the
interest contracted for, charged or received in connection with this Note (including any
other costs or considerations that constitute interest under the laws of the State of Florida
which are contracted for, charged or received) exceed the maximum rate of interest
allowed under the State of Florida as presently in effect.
All payments made by the County hereon shall apply first to fees, costs, late
charges and accrued interest, and then to the principal amount then due on this Note.
This Note may be prepaid on any Interest Payment Date, at the option of the
County, from any moneys legally available therefor, in whole but not in part, by paying
to the Noteholder the outstanding principal amount thereof to be prepaid, together with a
prepayment premium of 1.00% of the principal amount to be prepaid and the unpaid
interest accrued on the amount of principal so prepaid to the date of such prepayment.
Any prepayment of this Note shall be made on such date as shall be specified by the
County in a notice delivered to the Noteholder not less than ten (10) days prior thereto
specifying the principal amount of this Note to be prepaid (which shall be the entire
outstanding principal amount) and the date of such prepayment, all in accordance with
the provisions of the Agreement. All of the prepayment provisions contained in Section
3.02 of the Agreement shall apply with respect to this Note.
This Note shall be and have all the qualities and incidents of a negotiable
instrument under the commercial laws and the Uniform Commercial Code of the State of
Florida, subject to any provisions for registration and transfer contained in the
Agreement. So long as any of this Note shall remain outstanding, the County shall
maintain and keep books for the registration and transfer of this Note.
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IN WITNESS WHEREOF, the County caused this Note to be signed by the
manual signature of the Chairman of the Board of County Commissioners of the County
and the seal of the County to be affixed hereto or imprinted or reproduced hereon, and
attested by the manual signature of the Clerk of the Circuit Court and Ex- Officio Clerk to
the Board of County Commissioners, and this Note to be dated the Date of Issuance set
forth above.
COLLIER COUNTY, FLORIDA
(SEAL)
Chairman, Board of County Commissioners
ATTESTED:
Clerk of the Circuit Court for Collier
County, Florida and Ex- Officio Clerk
of the Board of County Commissioners
Approved as to form and legal sufficiency:
County Attorney
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Appendix I
Repayment Schedule for the
COLLIER COUNTY, FLORIDA
LIMITED GENERAL OBLIGATION NOTE (RADIO ROAD MSTU PROJECT),
SERIES 2012
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EXHIBIT B
Form of Requisition
11F
[Please submit on Collier County Clerk's office letterhead]
[Date]
Ms. Trina Britt
tmbritt@bbandt.com
Project Specialist
BB &T Governmental Finance
5130 Parkway Plaza Boulevard, Building 9
Charlotte, North Carolina 28217
Re: Collier County, Florida Limited General Obligation Note (Radio Road
MSTU Project), Series 2012 ( "Note ") - Requisition for Payment of
Project Costs
Dear Ms. Britt:
Pursuant to the terms and conditions of the Loan Agreement between Collier
County, Florida (the "County ") and Branch Banking and Trust Company, dated as of
May , 2012 (the "Loan Agreement "), the County requests the disbursement of funds
from the Project Account established pursuant to the Loan Agreement for the following
costs ( "Project Costs "):
Requisition Payment
Number Amount Method Payee Payment Instructions
# $ Wire Collier County, Bank
Florida ABA#
Acct#
Ref#
A summary of vendor invoices, along with copies of such invoices or spreadsheet
detailing such invoices, are attached for your review.
The County makes this requisition pursuant to the following representations:
1. To date, the County has timely complied with all of its obligations under
the Loan Agreement and the Note.
2. The purpose of this disbursement is for partial payment on the Project
described in and provided for under the Loan Agreement.
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3. The requested disbursement has not been subject to any previous
requisition.
4. No notice of any lien, right to lien or attachment upon, or claim affecting
the right to receive payment of, any of the moneys payable herein to any of the persons,
firms or corporations named herein has been received, or if any notice of any such lien,
attachment or claim has been received, such lien, attachment or claim has been released
or discharged or will be released or discharged upon payment of this requisition.
S. No Event of Default is continuing under the Loan Agreement or the Note,
and no event or condition exists which, with notice, or lapse of time, or both, would
become an Event of Default.
6. The amount remaining in the Project Account described above will, after
payment of the amount set forth in this requisition, together with other amounts paid by
the County, be sufficient to pay all remaining applicable Project Costs relating to the
Project as currently estimated, including amounts representing retainage.
7. According to our records, the aggregate dollar amount disbursed for Project
Costs relating to the Project (including any delivery date expenses disbursed at closing, if
any, and the amount requested in this Requisition) is $
8. The undersigned by executing this Requisition is certifying that the
undersigned is authorized to do so on behalf of the County.
9. All capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Loan Agreement.
Approved as to Paragraphs 4 and 6:
By:
Name:
Title:
COLLIER COUNTY, FLORIDA
By:
Name:
Title:
IM
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