Resolution 2003-083RESOLUTION NO. 2003-83
RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA,
SUPPLEMENTING A RESOLUTION ENTITLED "A
RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA
AUTHORIZING THE ISSUANCE BY COLLIER COUNTY,
FLORIDA OF $120,000,000 IN AGGREGATE PRINCIPAL
AMOUNT OF COLLIER COUNTY, FLORIDA GAS TAX
REVENUE BONDS, SERIES 2003 IN ORDER TO PROVIDE
FUND S FOR THE PRINCIPAL PURPOSES OF FINANCING
THE COSTS OF VARIOUS TRANSPORTATION
IMPROVEMENTS WITHIN THE COUNTY AND
REFINANCING CERTAIN INDEBTEDNESS; PLEDGING
THE MONEYS RECEIVED BY THE COUNTY FROM THE
HEREIN DESCRIBED GAS TAX REVENUES TO SECURE
PAYMENT OF THE PRINCIPAL OF AND INTEREST ON
SAID BONDS; PROVIDING FOR THE RIGHTS OF THE
HOLDERS OF SAID BONDS; PROVIDING FOR THE
ISSUANCE OF ADDITIONAL BONDS; PROVIDING FOR
CERTAIN ADDITIONAL MATTERS IN RESPECT TO SAID
BONDS; AND PROVIDING FOR AN EFFECTIVE DATE
FOR THIS RESOLUTION"; PROVIDING CERTAIN TERMS
AND DETAILS OF THE COLLIER COUNTY, FLORIDA
GAS TAX REVENUE BONDS, SERIES 2003, INCLUDING
AUTHORIZING A NEGOTIATED SALE OF SAID BONDS;
DELEGATING CERTAIN AUTHORITY TO THE
CHAIRMAN FOR THE EXECUTION AND DELIVERY OF
THE HEREIN DESCRIBED PURCHA SE CONTRACT WITH
RESPECT THERETO; APPOINTING THE PAYING AGENT
AND REGISTRAR FOR SAID BONDS; AUTHORIZING
THE DISTRIBUTION OF A PRELIMINARY OFFICIAL
STATEMENT AND THE EXECUTION AND DELIVERY OF
AN OFFICIAL STATEMENT WITH RESPECT THERETO;
AUTHORIZING THE EXECUTION AND DELIVERY OF AN
ESCROW DEPOSIT AGREEMENT AND APPOINTMENT
OF AN ESCROW AGENT; ESTABLISHING A BOOK-
ENTRY SYSTEM OF REGISTRATION FOR THE BONDS;
AUTHORIZING MUNICIPAL BOND INSURANCE FOR
THE BONDS; AUTHORIZING A RESERVE ACCOUNT
INSURANCE POLICY WITH RESPECT TO THE BONDS;
AUTHORIZING THE EXECUTION AND DELIVERY OF A
CONTINUING DISCLOSURE CERTIFICATE; AND
PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA:
SECTION 1.
FINDINGS. It is hereby found and determined that:
(A) On the date of adoption hereof, the Board of County Commissioners (the
"Board") of Collier County, Florida (the "Issuer") duly adopted a resolution (the
"Resolution"), the title of which resolution is quoted in the title of this Supplemental
Resolution, for the purposes described therein, including authorizing the Issuer's Collier
County, Florida Gas Tax Revenue Bonds, Series 2003 (the "Series 2003 Bonds") in order to
finance a portion of the costs of certain capital improvements generally described in Exhibit
A thereto (the "Initial Project") and to refund the Issuer's Collier County, Florida Road
Improvement Refunding Revenue Bonds, Series 1995 (the "Prior Bonds").
(B) The Issuer deems it to be in its best interests to issue the Series 2003 Bonds for
the principal purposes of financing and/or reimbursing the Costs of the Initial Project and
refunding the Prior Bonds.
(C) The Prior Bonds are being refunded in order to achieve debt service savings
and/or restructure indebtedness. For the payment and refunding of said Prior Bonds, the
Issuer shall, as provided herein, deposit part of the proceeds derived from the sale of the
Series 2003 Bonds, together with other legally available moneys of the Issuer, in an escrow
deposit trust fund to purchase direct U.S. Treasury obligations (the "Federal Securities")
which shall be sufficient, together with investment earnings therefrom and a cash deposit,
to pay the Prior Bonds as the same become due and payable or are redeemed prior to
maturity, all as provided herein and the hereinafter defined Escrow Deposit Agreement.
Subsequent to the defeasance of the Prior Bonds, the Prior Bonds shall no longer be payable
from or secured by the moneys and revenues pledged therefor pursuant to the Prior
Resolution.
(D) Due to the potential volatility of the market for tax-exempt obligations such as
the Series 2003 Bonds and the complexity of the transactions relating to such Series 2003
Bonds, it is in the best interest of the Issuer to sell the Series 2003 Bonds by a negotiated
sale, allowing the Issuer to enter the market at the most advantageous time, rather than at a
specified advertised date, thereby permitting the Issuer to obtain the best possible price and
interest rate for the Series 2003 Bonds.
(E) The Issuer anticipates receiving a favorable offer to purchase the Series 2003
Bonds from Morgan Stanley & Co. Incorporated, A.G. Edwards & Sons, Inc. and Raymond
James & Associates, Inc. (collectively, the "Underwriters"), all within the parameters set
forth herein.
(F) Inasmuch as the Board desires to sell the Series 2003 Bonds at the most
advantageous time and not wait for a scheduled Board meeting, so long as the herein
described parameters are met, the Issuer hereby determines to delegate the award and sale
of the Series 2003 Bonds to the Chairman within such parameters.
(G) The Resolution provides that the Series 2003 Bonds shall mature on such dates
and in such amounts, shall bear such rates of interest, shall be payable in such places and
shall be subject to such redemption provisions as shall be determined by Supplemental
Resolution adopted by the Issuer; and it is now appropriate that the Issuer set forth the
parameters and mechanism to determine such term s and details, which terms and details shall
be set forth in the hereinafter defined Purchase Contract.
SECTION 2. DEFINITIONS. When used in this Supplemental Resolution,
the terms defined in the Resolution shall have the meanings therein stated, except as such
definitions may be hereinafter amended or defined.
SECTION 3. AUTHORITY FOR THIS SUPPLEMENTAL
RESOLUTION. This Supplemental Resolution is adopted pursuant to the provisions of the
Act and the Resolution.
SECTION 4. DESCRIPTION OF THE SERIES 2003 BONDS. As provided
in Section 2.02 of the Resolution, the Issuer has heretofore authorized the issuance of a
Series of Bonds in the aggregate principal amount of not exceeding $120,000,000 to be
known as the "Collier County, Florida Gas Tax Revenue Bonds, Series 2003," for the
principal purposes of financing the Costs of the Initial Project and refunding the Prior Bonds.
The aggregate principal amount of the Series 2003 Bonds to be issued pursuant to the
Resolution shall be determined by the Chairman provided such aggregate principal amount
does not exceed $120,000,000. The Series 2003 Bonds shall be dated as of their date of
delivery or such other date as the Chairman may determine, shall be issued in the form of
fully registered Bonds in the denomination of $5,000 or any integral multiple thereof, shall
be numbered consecutively from one upward in order of maturity preceded by the letter "R",
shall bear interest from the dated date determined therefor, payable semi-annually, on June 1
and December 1 of each year (the "Interest Dates"), commencing on June 1, 2003 or such
other dates as may be determined by the Chairman.
The Series 2003 Bonds shall bear interest at such rates and yields, shall mature on
June 1 of each of the years and in the principal amounts corresponding to such years, and
shall have such redemption provisions as determined by the Chairman subject to the
conditions set forth in Section 5 hereof. All of the terms of the Series 2003 Bonds will be
included in a Purchase Contract which shall be in substantially the form attached hereto and
made a part hereof as Exhibit A (the "Purchase Contract"). The Chairman is hereby
authorized to execute the Purchase Contract in substantially the form attached hereto as
Exhibit A with such modifications as he deems appropriate upon satisfaction of the
conditions described in Section 5 hereof.
SECTION 5. CONDITIONS TO EXECUTION OF PURCHASE
CONTRACT. The Purchase Contract shall not be executed by the Chairman until such time
as all of the following conditions have been satisfied:
(A) Receipt by the Chairman of a written offer to purchase the Series 2003 Bonds
by the Underwriters substantially in the form of the Purchase Contract attached hereto as
Exhibit A, said offer to provide for or demonstrate, among other things, (i) not exceeding
$120,000,000 aggregate principal amount of Series 2003 Bonds, (ii) an underwriting discount
(including management fee and all expenses) not in excess of 0.7% of the par amount of the
Series 2003 Bonds, (iii) a true interest cost of not more than 5.50% per annum, and (iv) the
maturities of the Series 2003 Bonds, with the final maturity being not later than June 1,2023.
(B) With respect to any optional redemption terms for the Series 2003 Bonds, the
first call date may be no later than June 1, 2013 and no call premium may exceed 2% of the
par amount of that portion of the Series 2003 Bonds to be redeemed. Term Bonds may be
established with such Amortization Installments as the Chairman deems appropriate.
(C) Receipt by the Chairman of a disclosure statement and a truth-in-bonding
statement of the Underwriters dated the date of the Purchase Contract and complying with
Section 218.385, Florida Statutes.
(D) Receipt by the Chairman of a good faith deposit from the Underwriters in an
amount not less than 1.0% of the par amount of the Series 2003 Bonds.
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Upon satisfaction of all the requirements set forth in this Section 5, the Chairman is
authorized to execute and deliver the Purchase Contract containing terms complying with the
provisions of this Section 5. The Chairman may rely upon the advice of the Issuer's Financial
Advisor as to satisfaction of the above-described conditions.
SE CTION 6. REDEMPTION PROVISIONS FOR SERIES 2003 BOND S.
The Series 2003 Bonds may be redeemed prior to their respective maturities from any
moneys legally available therefor, upon notice as provided in the Resolution, upon the terms
and provisions as determined by the Chairman and set forth in the Purchase Contract subject
to the conditions contained in Section 5 hereof.
SECTION 7. FULL BOOK-ENTRY. Notwithstanding the provisions set
forth in Section 2.07 of the Resolution, the Series 2003 Bonds shall be initially issued in the
form of a separate single certificated fully registered Series 2003 Bond for each of the
maturities of the Series 2003 Bonds. Upon initial issuance, the ownership of each such Bond
shall be registered in the registration books kept by the Registrar in the name of Cede & Co.,
as nominee of The Depository Trust Company ("DTC"). As long as the Series 2003 Bonds
are registered in the name of Cede & Co., all of the Outstanding Series 2003 Bonds shall be
registered in the registration books kept by the Registrar in the name of Cede & Co., all
payments of principal on the Series 2003 Bonds shall be made by the Paying Agent by check
or draft or by bank wire transfer to Cede & Co., as Holder of the Series 2003 Bonds, upon
presentation of the Series 2003 Bonds to be paid, to the Paying Agent.
With respect to Series 2003 Bonds registered in the registration books kept by the
Registrar in the name of Cede & Co., as nominee of DTC, the Issuer, the Registrar and the
Paying Agent shall have no responsibility or obligation to any direct or indirect participant
in the DTC book-entry program (the "Participants"). Without limiting the immediately
preceding sentence, the Issuer, the Registrar and the Paying Agent shall have no
responsibility or obligation with respect to (A) the accuracy of the records of DTC, Cede &
Co. or any Participant with respect to any ownership interest on the Series 2003 Bonds, (B)
the delivery to any Participant or any other Person other than a Bondholder, as shown in the
registration books kept by the Registrar, of any notice with respect to the Series 2003 Bonds,
including any notice of redemption, or (C) the payment to any Participant or any other
Person, other than a Bondholder, as shown in the registration books kept by the Registrar,
of any amount with respect to principal of, Redemption Price, if any, or interest on the Series
2003 Bonds. The Issuer, the Registrar and the Paying Agent may treat and consider the
Person in whose name each Series 2003 Bond is registered in the registration books kept by
the Registrar as the Holder and absolute owner of such Bond for the purpose of payment of
principal, Redemption Price, if any, and interest with respect to such Bond, for the purpose
of giving notices of redemption and other matters with respect to such Bond, for the purpose
of registering transfers with respect to such Bond, and for all other purposes whatsoever.
The Paying Agent shall pay all principal of, Redemption Price, if any, and interest on the
Series 2003 Bonds only to or upon the order of the respective Holders, as shown in the
registration books kept by the Registrar, or their respective attorneys duly authorized in
writing, as provided herein and all such payments shall be valid and effective to fully satisfy
and discharge the Issuer's obligations with respect to payment of principal of, Redemption
Price, if any, and interest on the Series 2003 Bonds to the extent of the sum or sums so paid.
No Person other than a Holder, as shown in the registration books kept by the Registrar, shall
receive a certificated Bond evidencing the obligation of the Issuer to make payments of
principal, Redemption Price, if any, and interest pursuant to the provisions of the Resolution.
Upon delivery by DTC to the Issuer of written notice to the effect that DTC has determined
to substitute a new nominee in place of Cede & Co., and subject to the provisions in the
Resolution with respect to transfers during the 15 days next preceding an Interest Date or first
mailing of notice of redemption, the words "Cede & Co." in this Supplemental Resolution
shall refer to such new nominee of DTC; and upon receipt of such notice, the Issuer shall
promptly deliver a copy of the same to the Registrar and the Paying Agent.
Upon (A) receipt by the Issuer of written notice from DTC (i) to the effect that a
continuation of the requirement that all of the outstanding Series 2003 Bonds be registered
in the registration books kept by the Registrar in the name of Cede & Co., as nominee of
DTC, is not in the best interest of the beneficial owners of the Series 2003 Bonds or (ii) to
the effect that DTC is unable or unwilling to discharge its responsibilities and no substitute
depository willing to undertake the functions of DTC hereunder can be found which is
willing and able to undertake such functions upon reasonable and customary terms, or (B)
determination by the Issuer that such book-entry only system is burdensome or undesirable
to the Issuer, the Series 2003 Bonds shall no longer be restricted to being registered in the
registration books kept by the Registrar in the name of Cede & Co., as nominee of DTC, but
may be registered in whatever name or names Holders shall designate, in accordance with
the provisions of the Resolution. In such event, the Issuer shall issue and the Registrar shall
authenticate, transfer and exchange the Series 2003 Bonds of like principal amount and
maturity, in denominations of $5,000 or any integral multiple thereof to the Holders thereof.
The foregoing notwithstanding, until such time as participation in the book-entry only system
is discontinued, the provisions set forth in the Blanket Issuer Letter of Representations
previously executed by the Issuer and delivered to DTC shall apply to the payment of
principal of, premium, if any, and interest on the Series 2003 Bonds.
SECTION 8. APPLICATION OF SERIES 2003 BOND PROCEEDS. The
proceeds derived from the sale of the Series 2003 Bonds shall be applied by the Issuer as
follows:
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(A) An amount equal to the accrued interest, if any, on the Series 2003 Bonds shall
be deposited to the Interest Account of the Debt Service Fund and shall be used to pay a
portion of the interest on the Series 2003 Bonds coming due on the next succeeding Interest
Date.
(B) A sufficient amount of the Series 2003 Bond proceeds shall be deposited
irrevocably in trust in the escrow deposit trust fund established under the terms and
provisions of the Escrow Deposit Agreement, dated as of the dated date of the Series 2003
Bonds (the "Escrow Deposit Agreement"), between the Issuer and Fifth Third Bank,
Cincinnati, Ohio, as Escrow Agent, and, other than a cash deposit, shall be invested, together
with other legally available moneys of the Issuer, in Federal Securities in the manner set forth
in the Escrow Deposit Agreement, which investments shall mature at such times and in such
amounts as shall be sufficient to pay the principal of, redemption premium, if any, and
interest on the Prior Bonds as the same become due and payable whether at maturity or upon
earlier redemption. Subject to the issuance and delivery of the Series 2003 Bonds, the Prior
Bonds maturing on or after June 1, 2004 shall be redeemed on June 1, 2003, or such later
date as shall be approved by the Chairman.
(C) A sufficient amount of the Series 2003 Bond proceeds shall be applied to the
payment of the premium for the hereinafter described Bond Insurance Policy applicable to
the Series 2003 Bonds, to the payment of the premium for the hereinafter described Reserve
Account Insurance Policy, and to the payment of costs and expenses relating to the issuance
of the Series 2003 Bonds.
(D) An amount of the Series 2003 Bond proceeds equal to one-half of the Reserve
Account Requirement for the Series 2003 Bonds shall be depo sited into the Reserve Account.
(E) The remainder of the proceeds of the Series 2003 Bonds shall be deposited to
the Series 2003 Account of the Construction Fund and applied to pay the Cost of the Initial
Project.
SECTION 9. TRANSFER OF CERTAIN MONEYS. The Prior Bonds will
be refunded from proceeds of the Series 2003 Bonds and other legally available moneys of
the Issuer. Any excess moneys on deposit in the funds or accounts established pursuant to
the Prior Resolution not required by the terms of the Prior Resolution to be on deposit therein
shall be transferred to the escrow deposit trust fund established pursuant to the Escrow
Deposit Agreement.
SECTION 10. PRELIMINARY OFFICIAL STATEMENT. The Issuer
hereby authorizes the distribution and use of the Preliminary Official Statement in
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substantially the form attached hereto as Exhibit B in connection with the offering of the
Series 2003 Bonds for sale. If between the date hereof and the mailing of the Preliminary
Official Statement, it is necessary to make insertions, modifications or changes in the
Preliminary Official Statement, the Chairman is hereby authorized to approve such insertions,
changes and modifications. The Chairman is hereby authorized to deem the Preliminary
Official Statement "final" within the meaning of Rule 15c2-12(b)(1) under the Securities
Exchange Act of 1934 in the form as mailed. Execution of a certificate by the Chairman
deeming the Preliminary Official Statement "final" as described above shall be conclusive
evidence of the approval of any insertions, changes or modifications.
SECTION 11. OFFICIAL STATEMENT. The form, terms and provisions of
the Official Statement relating to the Series 2003 Bonds shall be substantially as set forth in
the Preliminary Official Statement and shall include all of the specific financial terms of the
Series 2003 Bonds. The Chairman is hereby authorized and directed to execute and deliver
said Official Statement in the name and on behalf of the Issuer, and thereupon to cause such
Official Statement to be delivered to the Underwriters with such changes, amendments,
modifications, omissions and additions as may be approved by the Chairman. Said Official
Statement, including any such changes, amendments, modifications, omissions and additions
as approved by the Chairman and the information contained therein are hereby authorized
to be used in connection with the sale of the Series 2003 Bonds to the public. Execution by
the Chairman of the Official Statement shall be deemed to be conclusive evidence of
approval of such changes.
SECTION 12. APPOINTMENT OF PAYING AGENT AND REGISTRAR.
Subject in all respects to the satisfaction of the conditions set forth in Section 5 hereof, Fifth
Third Bank, Cincinnati, Ohio, is hereby designated Registrar and Paying Agent for the Series
2003 Bonds. The Chairman and/or the Clerk or any designated Deputy Clerk are hereby
authorized to enter into any agreement which may be necessary to effect the transactions
contemplated by this Section 12 and by the Resolution.
SECTION 13. MUNICIPAL BOND INSURANCE; RESERVE ACCOUNT
INSURANCE POLICY. (A) Subject in all respects to the satisfaction of the conditions set
forth in Section 5 hereof, the Issuer hereby authorizes the payment of the principal of and
interest on the Series 2003 Bonds to be insured pursuant to a municipal bond insurance
policy (the "Bond Insurance Policy") issued by Ambac Assurance Corporation ("Ambac").
The Chairman is hereby authorized to execute such documents and instruments necessary to
cause Ambac to insure the Series 2003 Bonds. With respect to the Series 2003 Bonds,
Ambac shall be deemed to be the "Insurer" as such term is used and defined in the
Resolution.
(B) Subject in all respects to the satisfaction of the conditions set forth in Section
5 hereof, the Issuer shall deposit to the Reserve Account a Reserve Account Insurance Policy
purchased from Ambac, the face amount of which is equal to one-half of the Reserve
Account Requirement for the Series 2003 Bonds. The Chairman is hereby authorized to
enter into a Guaranty Agreement substantially in the form attached hereto as Exhibit C in
order to cause Ambac issue such Reserve Account Insurance Policy. The Clerk is hereby
authorized and directed to attest such Guaranty Agreement. The provisions of such Guaranty
Agreement, when executed and delivered, shall be incorporated herein by reference and to
the extent there are any conflicts between the Guaranty Agreement and the Resolution, the
provisions of the Guaranty Agreement shall control.
SECTION 14. PROVISIONS RELATING TO BOND INSURANCE
POLICY. Subject in all respects to the satisfaction of the conditions set forth in Section 5
hereof, so long as the Bond Insurance Policy issued by the Insurer is in full force and effect
and the Insurer has not defaulted in its payment obligations under the Bond Insurance Policy,
the Issuer agrees to comply with the following provisions, notwithstanding any provision in
the Resolution to the contrary:
(A) Notices to be given to Ambac Surveillance Department. The Issuer shall
furnish to the Surveillance Department of Ambac:
(i) as soon as practicable after the required state or federal filing thereof,
a copy of any financial statements of the Issuer and a copy of any audit and annual
report of the Issuer;
(ii) a copy of any notice to be given to the Holders of the Series 2003
Bonds, including, without limitation, notice of any redemption of or defeasance of
Series 2003 Bonds, and any certificate rendered pursuant to the Resolution relating
to the security for the Series 2003 Bonds;
(iii) to the extent that the Issuer has entered into a continuing disclosure
agreement or certificate with respect to the Series 2003 Bonds, Ambac shall be
included as a party to be notified; and
(iv) such additional information as it may reasonably request.
(B) Notices to be given to Ambac General Counsel Office. The Issuer shall furnish
to the General Counsel Office of Ambac:
(i) notice of any failure of the Issuer to provide any relevant notices,
certificates, etc.; and
(ii) notice that there are insufficient moneys to make any payments of
principal and/or interest on the Series 2003 Bonds as required by the Resolution and
immediate notice of any Event of Default under the Resolution.
(C) Other Information. The Issuer will permit Ambac to discuss the affairs,
finances and accounts of the Issuer or any information Ambac may reasonably request
regarding the security for the Series 2003 Bonds with appropriate officers of the Issuer. The
Issuer will permit Ambac to have access to and to make copies of all books and records
relating to the Series 2003 Bonds at any reasonable time.
Ambac shall have the right to direct an accounting with respect to the Series 2003
Bonds and the security therefor at the Issuer's expense, and the Issuer's failure to comply with
such direction within 30 days after receipt of written notice of the direction from Ambac shall
be deemed an Event of Default under the Resolution; provided, however, that if compliance
cannot occur within such period, then such period will be extended so long as compliance
is begun within such period and diligently pursued, but only if such extension would not
materially adversely affect the interests of any Holder of the Series 2003 Bonds.
(D) Payment Procedure Pursuant to Municipal Bond Insurance Policy. The Issuer
agrees to comply with the following provisions and to cause the Paying Agent for the Series
2003 Bonds to comply with the following provisions:
(i) At least one day prior to all interest payment dates the Issuer or the
Paying Agent will determine whether there will be sufficient funds in the funds and
accounts established under the Resolution to pay the principal of or interest on the
Series 2003 Bonds on such interest payment date. If the Issuer or the Paying Agent
determines that there will be insufficient funds in such funds or accounts, such entity
shall immediately notify the other and Ambac. Such notice shall specify the amount
of the anticipated deficiency, the Series 2003 Bonds to which such deficiency is
applicable and whether such Series 2003 Bonds will be deficient as to principal or
interest, or both. If either the Issuer or the Paying Agent has not so notified Ambac
at least one day prior to an interest payment date, Ambac will make payments of
principal or interest due on the Series 2003 Bonds on or before the first day next
following the date on which Ambac shall have received notice of nonpayment from
the Issuer or the Paying Agent.
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(ii) The Paying Agent or the Registrar shall, after it or the Issuer gives
notice to Ambac as provided in (D)(i) above, make available to Ambac and, at
Ambac's direction, to The Bank of New York in New York, New York, as insurance
trustee for Ambac or any successor insurance trustee (the "Insurance Trustee"), the
registration books of the Issuer maintained by the Registrar and all records relating
to the funds and accounts maintained under the Resolution.
(iii) The Paying Agent or the Registrar shall provide Ambac and the
Insurance Trustee with a list of Holders of Series 2003 Bonds entitled to receive
principal or interest payments from Ambac under the terms of the Municipal Bond
Insurance Policy, and shall make arrangements with the Insurance Trustee (a) to mail
checks or drafts to the Holders of the Series 2003 Bonds entitled to receive full or
partial interest payments from Ambac and (b) to pay principal upon the Series 2003
Bonds surrendered to the Insurance Trustee by the Holders of the Series 2003 Bonds
entitled to receive full or partial principal payments from Ambac.
(iv) The Paying Agent shall, at the time it provides notice to Ambac
pursuant to (D)(i) above, notify Holders of Series 2003 Bonds entitled to receive the
payment of principal or interest thereon from Ambac (a) as to the fact of such
entitlement, (b) that Ambac will remit to them all or a part of the interest payments
next coming due upon proof of Series 2003 Bondholder entitlement to interest
payments and delivery to the Insurance Trustee, in form satisfactory to the Insurance
Trustee, of an appropriate assignment of the Holder's right to payment, (c) that should
they be entitled to receive full payment of principal from Ambac, they must surrender
their Series 2003 Bonds (along with an appropriate instrument of assignment in form
satisfactory to the Insurance Trustee to permit ownership of such Series 2003 Bonds
to be registered in the name of Ambac) for payment to the Insurance Trustee, and not
the Paying Agent, and (d) that should they be entitled to receive partial payment of
principal from Ambac they must surrender their Series 2003 Bonds for payment
thereon first to the Paying Agent who shall note on such Series 2003 Bonds the
portion of the principal paid by the Paying Agent and then, along with an appropriate
instrument of assignment in form satisfactory to the Insurance Trustee, to the
Insurance Trustee, which will then pay the unpaid portion of principal.
(v) In the event that the Paying Agent has notice that any payment of
principal of or interest on a Series 2003 Bond which has become due for payment and
which is made to a Series 2003 Bondholder by or on behalf of the Issuer has been
deemed a preferential transfer and theretofore recovered from its Holder pursuant to
the United States Bankruptcy Code by a trustee in bankruptcy in accordance with the
final, nonappealable order of a court having competent jurisdiction, the Paying Agent
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shall, at the time Ambac is notified pursuant to (D)(i) above, notify all Holders that
in the event that any Holder's payment is so recovered, such Holder will be entitled
to payment from Ambac to the extent of such recovery if sufficient funds are not
otherwise available, and the Paying Agent shall furnish to Ambac its records
evidencing the payments of principal of and interest on the Series 2003 Bonds which
have been made by the Paying Agent and subsequently recovered from Holders and
the dates on which such payments were made.
(vi) In addition to those rights granted Ambac under the Resolution, Ambac
shall, to the extent it makes payment of principal of or interest on Series 2003 Bonds,
become subrogated to the rights of the recipients of such payments in accordance with
the terms of the Bond Insurance Policy, and to evidence such subrogation (a) in the
case of subrogation as to claims for past due interest, the Paying Agent shall note
Ambac's rights as subrogee on the registration books of the Issuer maintained by the
Registrar upon receipt from Ambac of proof of the payment of interest thereon to the
Holders of the Series 2003 Bonds, and (b) in the case of subrogation as to claims for
past due principal, the Paying Agent shall note Ambac's rights as subrogee on the
registration books of the Issuer maintained by the Registrar upon surrender of the
Series 2003 Bonds by the Holders thereof together with proof of the payment of
principal thereof.
(E) Consent of Ambac.
(i) Any provision of the Resolution expressly recognizing or granting rights
in or to Ambac may not be amended in any manner which affects the rights of Ambac
hereunder or thereunder without the prior written consent of Ambac.
(ii) Except as otherwise provided in the Resolution, Ambac's consent shall
be required for the following purposes: (a) execution and delivery of any
Supplemental Resolution if Series 2003 Bondholder consent is required pursuant to
the Resolution; (b) removal of the Paying Agent and selection and appointment of any
successor Paying Agent; and (c) initiation or approval o f any action not described in
(a) or (b) above which requires consent of the Series 2003 Bondholders.
(iii) Any reorganization or liquidation plan with respect to the Issuer must
be acceptable to Ambac. In the event of any reorganization or liquidation, Ambac
shall have the right to vote on behalf of all Series 2003 Bondholders absent a default
by Ambac under the Bond Insurance Policy.
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(iv) Anything in the Resolution to the contrary notwithstanding, upon the
occurrence and continuance of an Event of Default as defined in the Resolution,
Ambac shall be entitled to control and direct the enforcement of all rights and
remedies granted to the Series 2003 Bondholders for the benefit of the Series 2003
Bondholders under the Resolution.
(F) Provisions Concerning the Paying Agent.
(i) The Paying Agent may be removed at any time at the request of Ambac,
for any breach of the trust set forth in the Resolution.
(ii) Ambac shall receive prior written notice of any Paying Agent
resignation or removal.
(iii) Every successor Paying Agent appointed by the Issuer shall be a trust
company or bank in good standing located in or incorporated under the laws of the
State, duly authorized to exercise trust powers and subject to examination by federal
or state authority, having a reported capital and surplus of not less than $40,000,000
and acceptable to Ambac. Any successor Paying Agent shall not be appointed unless
Ambac approves su. ch successor in writing.
(iv) Notwithstanding any other provision of the Resolution, in determining
whether the rights of the Series 2003 Bondholders will be adversely affected by any
action taken pursuant to the terms and provisions of the Resolution, the Issuer shall
consider the effect on the Series 2003 Bondholders as if there were no Bond
Insurance Policy.
(v) Notwithstanding any other provision of the Resolution, no removal,
resignation or termination of the Paying Agent shall take effect until a successor,
acceptable to Ambac, shall be appointed.
(G) Interested Parties. To the extent that the Resolution confers upon or gives or
grants to Ambac any right, remedy or claim under or by reason of the Resolution, Ambac is
hereby explicitly recognized as being a third-party beneficiary hereunder and thereunder and
may enforce any such right, remedy or claim conferred, given or granted hereunder and
thereunder. Nothing in the Resolution, expressed or implied, is intended or shall be
construed to confer upon, or to give or grant to, any person or entity, other than the Issuer,
the Paying Agent, the Registrar, Ambac and the Holders of the Series 2003 Bonds, any right,
remedy or claim under or by reason of the Resolution or any covenant, condition or
stipulation hereof or thereof, and all covenants, stipulations, promises and agreements in the
13
10B
Resolution contained by and on behalf of the Issuer shall be for the sole and exclusive benefit
of the Issuer, the Paying Agent, the Registrar, Ambac and the Holders of the Series 2003
Bonds.
(H) Defeasance. Notwithstanding anything herein or in the Resolution to the
contrary, in the event that the principal and/or interest due on the Series 2003 Bonds shall be
paid by Ambac pursuant to the Bond Insurance Policy, the Series 2003 Bonds shall remain
Outstanding for all purposes, not be defeased or otherwise satisfied and not be considered
paid by the Issuer, and the lien on and pledge of the Pledged Funds and all covenants,
agreements and other obligations of the Issuer to the Holders shall continue to exist and shall
run to the benefit of Ambac, and Ambac shall be subrogated to the rights of such Holders.
(I) Securi _ty Provisions.
(i) The Resolution creates a valid and binding pledge of the Pledged Funds
in favor of the Holders of the Series 2003 Bonds as security for payment of the Series
2003 Bonds, enforceable by the Holders of the Series 2003 Bonds in accordance with
the terms of the Resolution.
(ii) The Issuer has not heretofore made a pledge of, granted a lien on or
security interest in, or made an assignment or sale of the Pledged Funds that ranks on
a parity with or prior to the pledge of the Pledged Funds granted by the Resolution.
The Issuer shall not hereafter make or suffer to exist any pledge or assignment of, lien
on, or security interest in such Pledged Funds that ranks prior to or on a parity with
the pledge of the Pledged Funds granted by the Resolution, except as expressly
permitted by the Resolution.
(J) Hedge Agreements. So long as any Outstanding Bonds are insured by Ambac,
the Issuer shall not enter into any Hedge Agreements relating to the Bonds without the
written consent of Ambac.
(K) Reserve Account Insurance Policy. The Issuer and Paying Agent shall do all
things required by the Resolution, the Guaranty Agreement and Ambac to utilize the Reserve
Account Insurance Policy in accordance with its terms.
SECTION 15. AUTHORIZATION TO EXECUTE ESCROW DEPOSIT
AGREEMENT. The Issuer hereby authorizes and directs the Chairman and Clerk to
execute the Escrow Deposit Agreement and to deliver the Escrow Deposit Agreement to
Fifth Third Bank, Cincinnati, Ohio, which is hereby appointed as Escrow Agent thereunder.
All of the provisions of the Escrow Deposit Agreement when executed and delivered by the
14
Issuer as authorized herein and when duly authorized, executed and delivered by the Escrow
Agent, shall be deemed to be a part of this Supplemental Resolution as fully and to the same
extent as if incorporated verbatim herein, and the Escrow Deposit Agreement shall be in
substantially the form of the Escrow Deposit Agreement attached hereto as Exhibit D with
such changes, amendments, modifications, omissions and additions, including the date of
such Escrow Deposit Agreement, as may be approved by said Chairman. Execution by the
Chairman of the Escrow Deposit Agreement shall be deemed to be conclusive evidence of
approval of such changes. The Chairman and the Clerk are hereby authorized and directed
to execute and file all documents necessary to purchase or subscribe to the Federal Securities
on behalf of the Issuer.
SECTION 16. SECONDARY MARKET DISCLOSURE. Subject in all
respects to the satisfaction of the conditions set forth in Section 5 hereof, the Issuer hereby
covenants and agrees that, in order to provide for compliance by the Issuer with the
secondary market disclo sure requirements of Rule 15c2-12 of the Securities and Exchange
Commission (the "Rule"), it will comply with and carry out all of the provisions of the
Continuing Disclosure Certificate to be executed by the Issuer and dated the date of delivery
of the Series 2003 Bonds, as it may be amended from time to time in accordance with the
terms thereof. The Continuing Disclosure Certificate shall be substantially in the form
attached hereto as Exhibit E with such changes, amendments, modifications, omissions and
additions as shall be approved by the Chairman who is hereby authorized to execute and
deliver such Certificate. Notwithstanding any other provision of the Resolution, failure of
the Issuer to comply with such Continuing Disclosure Certificate shall not be considered an
Event of Default under the Resolution; provided, however, any Series 2003 Bondholder may
take such actions as maybe necessary and appropriate, including seeking mandate or specific
performance by court order, to cause the Issuer to comply with its obligations under this
Section 16 and the Continuing Disclosure Certificate. For purposes of this Section 16,
"Series 2003 Bondholder" shall mean any person who (A) has the power, directly or
indirectly, to vote or consent with respect to, or to dispose of ownership of, any Series 2003
Bonds (including persons holding Series 2003 Bonds through nominees, depositories or other
intermediaries), or (B) is treated as the owner of any Series 2003 Bonds for federal income
tax purposes.
SECTION 17. GENERAL AUTHORITY. The members of the Board, 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 Supplemental Resolution, the
Resolution, the Official Statement, the Continuing Disclosure Certificate, the Escrow Deposit
Agreement, the Guaranty Agreement or the Purchase Contract or desirable or consistent with
the requirements hereof or the Resolution, the Official Statement, the Continuing Disclosure
Certificate, the Escrow Deposit Agreement, the Guaranty Agreement or the Purchase
15
Contract for the full punctual and complete performance of all the terms, covenants and
agreements contained herein or in the Series 2003 Bonds, the Resolution, the Official
Statement, the Continuing Disclosure Certificate, the Escrow Deposit Agreement, the
Guaranty Agreement and the Purchase Contract and each member, employee, attorney and
officer of the Issuer or the Board and the Clerk is hereby authorized and directed to execute
and deliver any and all papers and instruments and to do and cause to be done any and all acts
and things necessary or proper for carrying out the transactions contemplated hereunder. If
the Chairman is unavailable or unable at any time to perform any duties or functions
hereunder, including but not limited to those described in Section 5 hereof, the Vice-
Chairman is hereby authorized to act on his or her behalf.
SECTION 18. SEVERABILITY AND INVALID PROVISIONS. If any one
or more of the covenants, agreements or provisions herein contained shall be held 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 2003 Bonds.
SECTION 19. RESOLUTION TO CONTINUE IN FORCE. Except as
herein expressly provided, the Resolution and all the terms and provisions thereof are and
shall remain in full force and effect.
16
SECTION 20. EFFECTIVE DATE. This Supplemental Resolution shall
become effective immediately upon its adoption.
DULY ADOPTED, in Regular Session this 1 lth day of February, 2003.
(SEAL)
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
Chairman
17
EXHIBIT A
FORM OF PURCHASE CONTRACT
$
COLLIER COUNTY, FLORIDA
Gas Tax Revenue Bonds,
Series 2003
PURCHASE CONTRACT
20__
Board of County Commissioners of
Collier County, Florida
3301 Tamiami Trail East
Naples, Florida 33941-3044
Ladies and Gentlemen:
The undersigned, Morgan Stanley & Co. Incorporated (the "Senior Managing Underwriter"),
on behalf of itself, A.G. Edwards & Sons, Inc. and Raymond James & Associates, Inc. (collectively,
the "Underwriters"), offers to enter into this Purchase Contract with the Board of County
Commissioners of Collier County, Florida (the "Issuer" or the "County"), subject to written
acceptance hereof by the Issuer at or before 5:00 p.m., New York time, on the date hereof, and, if not
so accepted, will be subject to withdrawal by the Senior Managing Underwriter upon notice delivered
to the Issuer at any time prior to the acceptance hereof by the Issuer. All capitalized undefined
terms in this Purchase Contract shall have the meaning ascribed to them in the hereinafter defined
Resolution.
1. Purchase and Sale. Upon the terms and conditions and in reliance on the
representations, warranties, covenants and agreements set forth herein, the Underwriters, jointly
and severally, hereby agree to purchase from the Issuer, and the Issuer hereby agrees to sell and
deliver to the Underwriters, all (but not less than all) of the $_ aggregate principal
amount of the Collier County, Florida Gas Tax Revenue Bonds, Series 2003 (the "Series 2003
Bonds"). The Series 2003 Bonds shall be dated as of the date of their delivery, and shall be payable
in the years and principal amounts, bear such rates of interest and be subject to redemption, all as
set forth in Exhibit A attached hereto. Interest on the Series 2003 Bonds is payable semi-annually
on June I and December I of each year commencing June 1, 2003. The purchase price for the Series
2003 Bonds shall be $ (representing the par amount of the Series 2003 Bonds of
$ , less an original issue discount of $ , plus an original issue premium of
$ and less an Underwriters' discount of $ ).
The disclosure statement required by Section 218.385, Florida Statutes, is attached hereto as
Exhibit B.
Pursuant to Resolution No. 03- adopted by the Board of County Commissioners of the
County (the "Board") on , 2003, as amended and supplemented from time to time,
and as particularly supplemented by Resolution No. 03- adopted by the Board of County
Commissioners of the County on , 2003 (collectively, the "Resolution"), the Series
2003 Bonds are payable from and secured by a lien upon the proceeds of the Gas Tax Revenues, and
distributed to the County under the Act and certain other amounts as described in the Resolution
(collectively, the "Pledged Funds"). Subject to the satisfaction of certain requirements in the
Resolution, the County may release the lien on one or more cents of the Gas Tax Revenues.
Additionally, payment of the principal of and interest on the Series 2003 Bonds, when due, will be
insured by a municipal bond insurance policy issued by (the "Insurer")
simultaneously with the delivery of the Series 2003 Bonds, and the Insurer will issue a Reserve
Account Insurance Policy to be deposited in the [Reserve Account - separate subaccount?].
The Series 2003 Bonds are being issued for the purpose of providing funds, together with
other legally available funds of the County, to (i) finance the costs of acquisition, construction, and
reconstruction of roads and bridges and other transportation improvements within the County as
more specifically described in the plans and specifications on file or to be on file with the County,
with such changes, deletions, additions or modifications to the enumerated improvements,
equipment and facilities, or such other improvements, as approved by the Board of County
Commissioners of the County in accordance with the Act (collectively, the "Initial Project"), and (ii)
refund, on a current basis, all of the County's outstanding Road Improvement Revenue Bonds, Series
1995 (the "Prior Bonds""), as further described herein, and (iii) pay certain costs of issuance of the
Series 2003 Bonds, including the municipal bond insurance premium and the Reserve Account
Insurance Policy premium.
2. Delivery of Official Statement and Other Documents.
(a) Prior to the date hereof, the Issuer has provided to the Underwriters for their
review the Preliminary Official Statement dated , 2003 that the Issuer
deemed "final" (as defined in Rule 15c2-12 of the Securities and Exchange Commission ("Rule
15c2-12" or the "Rule") as of its date (the "Preliminary Official Statement"), except for certain
permitted omissions (the "Permitted Omissions"), as contemplated by the Rule in connection
with the pricing of the Series 2003 Bonds. The Underwriters have reviewed the Preliminary
Official Statement prior to the execution of this PurchaseC ontract. The Issuer hereby
confirms that the Preliminary Official Statement was "final" (as defined in the Rule) as of its
date, except for the Permitted Omissions.
(b) The Issuer shall deliver, or cause to be delivered, at its expense, to the
Underwriters within seven (7) business days after the date hereof orw ithin such shorter
period as may be requested by the Underwriters, and at least three (3) business days prior to
the date the Series 2003 Bonds are delivered to the Underwriters, or within such other
period as may be prescribed by the Municipal Securities Rulemaking Board ("MSRB") in
order to accompany any confirmation that requests payment from any customer (i) sufficient
copies of the final Official Statement (the "Official Statement") to enable the Underwriters to
fulfill their obligations pursuant to the securities laws of Florida and the United States, in
form and substance satisfactory to the Underwriters, and (ii) an executed original
counterpart or certified copy of the Official Statement and the Resolution. In determining
whether the number of copies to be delivered by the Issuer are reasonably necessary, at a
minimum, the number shall be sufficient to enable the Underwriters to comply with the
requirements of Rule 15c2-12, all applicable rules of the MSRB, and to fulfill its duties and
responsibilities under Florida and federal securities laws generally.
The Underwriters agree to file the Official Statement with at least one Nationally
Recognized Municipal Securities Information Repository ("NRMSIR") which has been so
designated by the Securities and Exchange Commission pursuant to Rule 15c2-12 and with
the MSRB (accompanied by a completed Form G-36) not later than two (2) business days
after , 2003 (the "Closing"), and will furnish a list of the names and
addresses of each such NRMSIR receiving a copy to the Issuer. The filing of the Official
Statement with each such NRMSIR shall be in accordance with the terms and conditions
applicable to such NRMSIR.
The Issuer authorizes, or ratifies as the case may be, the use and distribution of the
Preliminary Official Statement and the Official Statement in connection with the public
offering and sale of the Series 2003 Bonds. The Underwriters agree that they will not
confirm the sale of any Series 2003 Bonds unless the confirmation of sale requesting
payment is accompanied or preceded by the delivery of a copy of the Official Statement. The
Senior Managing Underwriter shall notify the Issuer of the occurrence of the "end of the
underwriting period," as such term is defined in the Rule, on the date which is one day
thereafter, and of the passage of the date after which the Underwriters no longer remain
obligated to deliver Official Statements pursuant to paragraph (b)(4) of the Rule on the date
which is one day thereafter.
(c) From the date hereof until the earlier of (i) ninety days from the "end of the
underwriting period" (as defined in the Rule), or (ii) the time when the Official Statement is
available to any person from a NRMSIR (but in no case less than 25 days following the end of
the underwriting period), if any event occurs which may make it necessary to amend or
supplement the Official Statement in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, the Issuer shall notify the
Senior Managing Underwriter and if, in the reasonable opinion of the Issuer or the
reasonable opinion of the Senior Managing Underwriter, such event requires the preparation
and publication of an amendment or supplement to the Official Statement, the Issuer, at its
expense, promptly will prepare an appropriate amendment or supplement thereto (and file or
cause to be filed, the same with each NRMSIR having the Official Statement on file, with the
MSRB if the MSRB is requiring or permitting the filing of continuing disclosure information,
and mail such amendment or supplement to each record owner of Series 2003 Bonds) so that
the statements in the Official Statement as so amended or supplemented will not, in light of
the circumstances under which they were made, be misleading, in a form and in a manner
reasonably approved by the Senior Managing Underwriter. The Issuer will promptly notify
the Senior Managing Underwriter of the occurrence of any event ofw hich it has knowledge,
which, in its opinion, is an event described in the preceding sentence. The amendments or
supplements that may be authorized for use with respect to the Series 2003 Bonds are
hereinafter included within the term "Official Statement."
3. Authority of the Senior Managing Underwriter. The Senior Managing Underwriter
has been duly authorized to execute this Purchase Contract and has been duly authorized to act
hereunder by and on behalf of the other Underwriters.
4. Public Offering. The Underwriters agree to make a bona fide offering to the public
(excluding bond houses, brokers or similar persons or organizations acting in the capacity of
underwriters or wholesalers) of all of the Series 2003 Bonds at not in excess of the initial public
offering price or prices (or not below the yields) set forth on the cover page of the Official Statement.
If such public offering does not result in the sale of all the Series 2003 Bonds, the Underwriters may
offer and sell the Series 2003 Bonds to certain bond houses, brokers, or similar persons or
organizations acting in the capacity of underwriters or wholesalers at prices lower than the public
offering prices set forth on the cover page of the Official Statement.
The Senior Managing Underwriter does hereby certify that at the time of the execution of
this Purchase Contract, based upon prevailing market conditions, it does not have any reason to
believe that any of the Series 2003 Bonds will be initially sold to the public (excluding such bond
houses, brokers, or similar persons or organizations acting in the capacity of underwriters or
wholesalers) at prices in excess of the prices, or yields below the yields, set forth on the cover page of
the Official Statement. At the Closing, the Senior Managing Underwriter shall deliver to the Issuer
a certificate, on behalf of the Underwriters, in a form reasonably acceptable to Bond Counsel, to the
effect that (i) all of the Series 2003 Bonds have been the subject of an initial offering to the public as
herein provided, and (ii) not less than 10% of each maturity of the Series 2003 Bonds were sold to the
public (excluding bond houses, brokers or similar persons or organizations acting in the capacity of
underwriters or wholesalers) at initial offering prices not greater than the respective prices, or yields
not below the respective yields, shown on the cover page of the Official Statement, and as to such
other matters required in order to enable Bond Counsel to render its opinion as to the exclusion from
gross income for federal income tax purposes of interest on the Series 2003 Bonds.
The Issuer hereby authorizes the Underwriters to use the forms or copies of the Resolution
and the Official Statement and the information contained therein in connection with the public
offering and sale of the Series 2003 Bonds and ratifies and confirms its authorization of the
distribution and use by the Underwriters prior to the date hereof of the Preliminary Official
Statement in connection with such public offering and sale.
5. Security Deposit. The Senior Managing Underwriter has delivered herewith to the
Issuer a check for $ ( Dollars) (which sum represents not
less than 1% of the purchase price of the Series 2003 Bonds) payable to the order of the Issuer. In
the event that the Issuer does not accept this offer, such check shall be immediately returned to the
Senior Managing Underwriter. If the offer made hereby is accepted, the Issuer agrees to hold this
check uncashed until the Closing as security for the performance by the Underwriters of their
obligation to accept and pay for the Series 2003 Bonds at the Closing, and, in the event of their
compliance with such obligation, such check shall be returned to the Senior Managing Underwriter
at the Closing. In the event of the Issuer's failure to deliver the Series 2003 Bonds at the Closing, or
if the Issuer shall be unable to satisfy the conditions of Closing contained herein, or if the obligations
of the Underwriters shall be terminated for any reason permitted by this Purchase Contract (other
than resulting from a failure to deliver the certificate required by Paragraph 4 hereof), such check
shall be immediately returned to the Senior Managing Underwriter and such return shall constitute
a full release and discharge of all claims by the Underwriters arising out of the transactions
contemplated hereby. In the event that the Underwriters fail (other than for a reason permitted
hereunder) to accept and pay for the Series 2003 Bonds at the Closing (as hereinafter defined), or if
this Purchase Contract is terminated because of the failure of the Underwriters to deliver the
certificate required by Paragraph 4 hereof, such check shall be retained by the Issuer as and for full
liquidated damages for such failure and for any defaults hereunder on the part of the Underwriters
and such retention shall constitute a full release and discharge of all claims by the Issuer against the
Underwriters arising out of the transactions contemplated hereby.
6. Issuer Representations, Warranties, Covenants and Agreements. The Issuer
represents and warrants to and covenants and agrees with each of the Underwriters that, as of the
date hereof and as of the date of the Closing:
(a) The Issuer is a political subdivision of the State of Florida (the "State"), duly
organized and validly existing pursuant to the Constitution and laws of the State and is
authorized and empowered by law to issue, sell and deliver the Series 2003 Bonds to the
Underwriters as described herein; to provide funds to (i) finance the costs of acquisition,
construction, and reconstruction of the Initial Project, and (ii) pay certain costs of issuance of
the Series 2003 Bonds, including the municipal bond insurance premium and the Reserve
Account Insurance Policy premium; to accept this Purchase Contract; to adopt the
Resolution; to enact the Ordinance; to execute the Interlocal Agreements; to execute the
Continuing Disclosure Certificate dated as of , 2003 by the Issuer (the
Cont~nmng Disclosure Certificate"), the Guaranty Agreement dated ,2003
(or such other date as determined by the Issuer) between the Issuer and the Insurer (the
"Reserve Account Insurance Policy Agreement"), the Escrow Deposit Agreement dated
, 2003 (or such other date as determined by the Issuer) between the Issuer
and , as Escrow Agent thereunder (the "Escrow Agreement") and the
Official Statement; and to carry out and consummate all other transactions contemplated by
4
the Official Statement and by each of the aforesaid documents, agreements, resolutions and
ordinances.
(b) By official action of the Issuer taken prior to or concurrently with the
acceptance hereof, the Issuer has duly adopted the Resolution, duly enacted the Ordinance,
the Resolution and the Ordinance are in full force and effect and have not been amended,
modified or rescinded; the Issuer has duly authorized and approved the execution and
delivery of, and the performance by the Issuer of its obligations contained in the Series 2003
Bonds, the Interlocal Agreements, the Continuing Disclosure Certificate, the Escrow
Agreement, the Reserve Account Insurance Policy Agreement and this Purchase Contract;
and the Issuer has duly authorized and approved the performance by the Issuer of its
obligations contained in the Resolution, the Ordinance, the Interlocal Agreements, the
Escrow Agreement, the Reserve Account Insurance Policy Agreement and the Continuing
Disclosure Certificate, and the consummation by it of all other transactions contemplated by
the Resolution, the Official Statement, the Continuing Disclosure Certificate, the Escrow
Agreement, the Reserve Account Insurance Policy Agreement, and this Purchase Contract to
have been performed or consummated at or prior to the date of Closing, and the Issuer is in
compliance with the provisions of the Resolution.
(c) When delivered to and paid by the Underwriters in accordance with the
terms of this Purchase Contract and the Resolution, the Series 2003 Bonds will have been
duly and validly authorized, executed, issued and delivered and will constitute legal, valid
and binding limited obligations of the Issuer enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency or other laws affecting creditors' rights and
remedies and to general principles of equity, and will be entitled to the benefits of the
Resolution.
(d) The Issuer is not in breach of or default under any applicable constitutional
provision, law or administrative regulation of the State of Florida or the United States, or
any agencyo r department of either, or any applicable judgment or decree or any loan
agreement, indenture, bond, note, resolution, agreement or other instrument to which the
Issuer is a party or to which the Issuer or any of its properties or other assets is otherwise
subject, and no event has occurred and is continuing which, with the passage of time or the
giving of notice, or both, would constitute a default or event of default under any such
instrument, in any such case to the extent that the same would have a material and adverse
effect upon the business or properties or financial condition of the Issuer; and the execution
and delivery of the Series 2003 Bonds, the Continuing Disclosure Certificate, the Interlocal
Agreements, the Escrow Agreement, the Reserve Account Insurance Policy Agreement and
this Purchase Contract and the adoption of the Resolution, the enactment of the Ordinance,
and compliance with the provisions on the County's part contained in each, will not conflict
with or constitute a breach of or default under any constitutional provision, law,
administrative regulation, judgment, decree, loan agreement, indenture, bond, note,
resolution, agreement or other instrument to which the Issuer is a party or to which the
County or anyo f its properties or other assets is otherwise subject, nor will any such
execution, delivery, adoption or compliance result in the creation or imposition of any lien,
charge or other security interest or encumbrance of any nature whatsoever upon any of the
properties or the assets of the Issuer under the terms of any such law, regulation or
instrument, except as provided or permitted by the Series 2003 Bonds and the Resolution.
(e) The Issuer neither is nor has been in default any time after December 31,
1975, as to principal or interest with respect to an obligation issued by the Issuer, except for
certain industrial development bonds, if any, the disclosure of which the Issuer believes in
lOg
good faith would not be material to a reasonable investor in connection with the Series 2003
Bonds, as provided in Section 517.051, Florida Statutes.
(f) All approvals, consents and orders of any governmental authority, legislative
body, board, agency or commission having jurisdiction which would constitute a condition
precedent to or the absence of which would materially adversely affect the financial condition
of the Issuer or the due performance by the Issuer of its obligations under this Purchase
Contract, the Resolution, the Ordinance, the Interlocal Agreements, the Continuing
Disclosure Certificate, the Escrow Agreement, the Reserve Account Insurance Policy
Agreement and the Series 2003 Bonds have been, or prior to the Closing will have been, duly
obtained, except for such approvals, consents and orders as may be required under the Blue
Sky or securities laws of any state in connection with the offering and sale of the Series 2003
Bonds or approvals, consents and orders: (i) described in the Official Statement as not having
been obtained, or (ii) not of material significance to the Initial Project or the issuance of the
Series 2003 Bonds or customarily granted in due course after application therefor and
expected to be obtained without material difficulty or delay.
(g) The Series 2003 Bonds, when issued, authenticated and delivered in
accordance with the Resolution and sold to the Underwriters as provided herein and in
accordance with the provisions of the Resolution, will be legal, valid and binding obligations
of the Issuer, enforceable in accordance with their terms and the terms of the Resolution, and
the Resolution will provide, for the benefit of the holders from time to time of the Series 2003
Bonds, a legally valid and binding security interest in and to the Pledged Funds, subject to
the provisions of the Resolution permitting the application thereof for the purposes and on
the terms and conditions set forth therein.
(h) The Preliminary Official Statement was, as of the date thereof, and the
Official Statement, at all times subsequent hereto up to and including the date of the Closing
will be, true and correct in all material respects and does not contain any untrue statement
of a material fact or omit to state a material fact which is necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading. In
addition, any amendments or supplements to the Official Statement prepared and furnished
by the Issuer pursuant hereto will not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) The County has reviewed the information in the Preliminary Official
Statement and in the Official Statement, and although it has undertaken no specific,
independent investigation other than reviewing such information and based upon the
general knowledge of the Issuer, the Initial Project and the records of the Issuer, no facts
have come to the Issuer's attention that would lead the Issuer to believe that the information
in the Preliminary Official Statement and in the Official Statement, contains any untrue
statement of a material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading.
The Series 2003 Bonds, the Resolution, the Ordinance, the Interlocal
Agreements, and the Continuing Disclosure Certificate conform in all material respects to
the descriptions thereof contained in the Preliminary Official Statement and the Official
Statement.
(k) Except as contemplated by the Preliminary Official Statement and the
Official Statement, since September 30, 2000 the Issuer will not have incurred any material
liabilities, direct or contingent, or entered into any material transaction, in each case other
than in the ordinary course of its business which has had a material adverse impact on the
County, and there shall not have been any material adverse change in the condition,
financial or otherwise, of the Issuer or its properties or other assets.
(1) Except as disclosed in the Preliminary Official Statement and the Official
Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity
before or by any court, government agency or public board or body, pending or, to the best
knowledge of the Issuer, threatened, against or affecting the Issuer or the titles of its officers
to their respective offices, or which may affect or which seeks to prohibit, restrain or enjoin
the sale, issuance or delivery of the Series 2003 Bonds or the collection of the Pledged Funds
pledged to pay the principal of and interest on the Series 2003 Bonds, or which seeks to
prohibit, restrain or enjoin the acquisition, equipping and/or improvement of the Initial
Project, or which in any way contests or affects the validity or enforceability of the Series
2003 Bonds, the Resolution, the Ordinance, the Interlocal Agreements, this Purchase
Contract, the Escrow Agreement, the Reserve Account Insurance Policy Agreement and the
Continuing Disclosure Certificate, or any of them, or which seeks to prohibit, restrain, or
enjoin the acquisition, equipping and/or improvement of the Initial Project, or which may
result in any material adverse change in the business, properties, other assets or financial
condition of the Issuer or contests the tax-exempt status of the interest on the Series 2003
Bonds as described in the Preliminary Official Statement and the Official Statement, or
which contests in any way the completeness or accuracy of the Preliminary Official
Statement or the Official Statement or which contests the power of the Issuer or any
authority or proceedings for the issuance, sale or delivery of the Series 2003 Bonds or this
Purchase Contract, nor, to the best knowledge of the Issuer, is there any basis therefor,
wherein an unfavorable decision, ruling or finding would materially adversely affect the
validity or enforceability of the Series 2003 Bonds, the Resolution, the Ordinance, the
Interlocal Agreements, the Continuing Disclosure Certificate, the Escrow Agreement, the
Reserve Account Insurance Policy Agreement or this Purchase Contract.
(m) The Issuer will furnish such information, execute such instruments and take
such other action not inconsistent with law in cooperation with the Underwriters as the
Underwriters may reasonably request in order (i) to qualify the Series 2003 Bonds for offer
and sale under the Blue Sky or other securities laws and regulations of such states and other
jurisdictions of the United States as the Underwriters may designate, and/or (ii) to determine
the eligibility of the Series 2003 Bonds for investment under the laws of such states and
other jurisdictions, and will use its best efforts to continue such qualifications in effect so
long as required for the distribution of the Series 2003 Bonds; provided that the Issuer shall
not be obligated to take any action that would subject it to the general service of process in
any state where it is not now so subject and any expense related to the foregoing shall be
borne by the Underwriters.
(n) The Issuer will advise the Underwriters promptly of any proposal to amend
or supplement the Official Statement and will not effect any such amendment or supplement
without the consent of the Underwriters. The Issuer will advise the Underwriters promptly
of the institution of any proceedings known to it by any governmental agency prohibiting or
otherwise affecting the use of the Preliminary Official Statement or the Official Statement in
connection with the offering, sale or distribution of the Series 2003 Bonds.
(o) The Issuer has never been notified of any listing or proposed listing by the
Internal Revenue Service to the effect that it is a bond issuer whose arbitrage certifications
may not be relied upon.
(p) Other than as disclosed in the Official Statement and the Preliminary
Official Statement, the Issuer has never failed to comply with any agreement to provide
continuing disclosure information pursuant to the Rule.
(q) Relating to outstanding debt of the Issuer, there is not an unfunded
materially significant arbitrage rebate liability of the Issuer owing the Internal Revenue
Service.
(r) The County has the authority to acquire, improve, equip, construct,
reconstruct, own and operate the Initial Project.
(s) Except as disclosed in the Preliminary Official Statement, the County has
never failed to take all action required to be taken by it pursuant to the Act in order to
remain eligible to receive the Gas Tax Revenues.
7. The Closing. At 9:00 a.m., New York time, on the date of Closing, or at such other
time or date to which the Issuer and the Underwriters may mutually agree, the Issuer will, subject
to the terms and conditions hereof, deliver the Series 2003 Bonds in book-entry form to the account
of the Underwriters, at the offices of The Depository Trust Company ("DTC") in New York, New
York, or such other location as determined by the Underwriters and agreed to by the Issuer, duly
executed, together with the other documents hereinafter mentioned, and, subject to the terms and
conditions hereof, the Underwriters will accept such delivery and pay the aggregate purchase price
of the Series 2003 Bonds as set forth in Paragraph I hereof in Federal Funds to the Issuer. The
Issuer shall cause CUSIP identification numbers to be printed on the Series 2003 Bonds, but neither
the failure to print such number on any Series 2003 Bond nor any error with respect thereto shall
constitute cause for a failure or refusal by the Underwriters to accept delivery of and pay for the
Series 2003 Bonds in accordance with the terms of this Purchase Contract. The Closing shall occur
at the offices of Nabors, Giblin & Nickerson, Tampa, Florida, or such other place to which the Issuer
and the Underwriters shall have mutually agreed. The Series 2003 Bonds shall be made available to
the Underwriters no less than 24 hours before the Closing for purposes of inspecting and packaging.
The Series 2003 Bonds shall be prepared and delivered as fully registered Series 2003 Bonds
registered in such names and denominations as the Underwriters shall so designate to the Issuer
and the printer of the Series 2003 Bonds not less than one day prior to the Closing.
8. Closing Conditions. The Underwriters have entered into this Purchase Contract in
reliance upon the representations, warranties, covenants and agreements of the Issuer contained
herein and in reliance upon the representations, warranties, covenants and agreements to be
contained in the documents and instruments to be delivered at the Closing and upon the
performance by the Issuer of its obligations hereunder, both as of the date hereof and as of the date
of the Closing. Accordingly, the Underwriters' obligations under this Purchase Contract to purchase,
to accept delivery of and to pay for the Series 2003 Bonds shall be conditioned upon the performance
by the Issuer of its obligations to be performed hereunder, and under such documents and
instruments at or prior to the Closing, and shall also be subject to the following additional
conditions:
(a) The representations, warranties, covenants and agreements of the Issuer
contained herein shall be true, complete and correct on the date hereof and on and as of the
date of the Closing, as if made on the date of the Closing;
(b) At the time of Closing, the Resolution, the Ordinance, the Interlocal
Agreements, the Escrow Agreement, the Reserve Account Insurance Policy Agreement and
the Continuing Disclosure Certificate shall be in full force and effect and shall not have been
amended, modified or supplemented since the date hereof, and the Official Statement as
delivered to the Underwriters on the date hereof shall not have been supplemented or
amended, except in any such case as may have been approved by the Underwriters;
(c) At the time of the Closing, all official action of the Issuer relating to this
Purchase Contract, the Series 2003 Bonds, the Resolution, the Ordinance, the Interlocal
Agreements, the Escrow Agreement, the Reserve Account Insurance Policy Agreement and
the Continuing Disclosure Certificate taken as of the date hereof shall be in full force and
effect and shall not have been amended, modified or supplemented, except for amendments,
modifications or supplements which have been approved by the Underwriters prior to the
Closing;
(d) At the time of the Closing, except as contemplated by the Official Statement,
there shall have been no material adverse change in the financial condition of the Issuer;
(e) At or prior to the Closing, the Underwriters shall have received copies of each
of the following documents:
(1) An opinion of Nabors, Giblin & Nickerson, P.A., Tampa, Florida,
dated the date of the Closing and addressed to the Issuer, in substantially the form
attached as Appendix F to the Official Statement, relating to the exclusion of the
interest on the Series 2003 Bonds from the gross income of the holders thereof for
purposes of Federal income taxation and such other matters as the Underwriters
may reasonably request, a reliance letter pertaining thereto addressed to the
Underwriters, and an opinion of Nabors, Giblin & Nickerson, P.A., Tampa, Florida,
dated the date of the Closing and addressed to the Issuer and the Underwriters, to
the effect that the Prior Bonds have been deemed paid and are no longer outstanding
for purposes of the resolution which authorized their issuance;
(2) An opinion of Nabors, Giblin & Nickerson, P.A., Tampa, Florida,
dated the date of the Closing and addressed to the Underwriters, in such form as is
mutually and reasonably acceptable to the Issuer, the Underwriters and Bond
Counsel, (i) to the effect that the statements contained in the Official Statement
under the captions "INTRODUCTION," (other than the information under the
subheadings "General," "The County," "Purpose of the Series 2003 Bonds," "Bond
Insurance Policy," "Continuing Disclosure," and "Additional Information"),
"AUTHORITY FOR ISSUANCE," "PLAN OF REFUNDING," "THE INITIAL
PROJECT," "DESCRIPTION OF THE SERIES 2003 BONDS" (other than the
information thereunder relating to DTC and its system of book-entry registration),
"SECURITY FOR THE BONDS," "GAS TAX REVENUES," and "TAX EXEMPTION,"
insofar as such information purports to summarize portions of the Resolution, the
Ordinance, the Interlocal Agreements, the Series 2003 Bonds, Federal tax law, and
the Act constitute a fair summary of the information purported to be summarized
therein (all such opinions referred to in this clause (i) exclude financial, statistical
and demographic information contained in such Official Statement), (ii) to the effect
that the Series 2003 Bonds are exempt from the registration requirements of the
Securities Act of 1933, as amended, and (iii) to the effect that the Resolution is
exempt from qualification under the Trust Indenture Act of 1939, as amended.
(3) An opinion, dated the date of the Closing and addressed to the Issuer,
the Underwriters, Bond Counsel and Disclosure Counsel of David C. Weigel, Esq.,
County Attorney, in substantially the form attached hereto as Exhibit C.;
9
(4) An opinion, dated the date of the Closing and addressed to the Issuer
and the Underwriters, of counsel for the Insurer and/or a certificate of the Insurer, in
such form as is mutually and reasonably acceptable to the Issuer and the
Underwriters;
(5) An opinion, dated the date of the Closing and addressed to the Issuer,
of Bryant, Miller and Olive, P.A., Tampa, Florida, Disclosure Counsel, in form and
substance satisfactory to the Issuer, and a reliance letter pertaining thereto
addressed to the Underwriters;
(6) A certificate dated the date of Closing and signed by the Chairman or
Vice Chairman of the Issuer, or such other official satisfactory to the Underwriters,
and in form and substance satisfactory to the Underwriters, to the effect that (A) the
representations, warranties and covenants of the Issuer contained herein are true
and correct to the best of his knowledge and belief in all material respects and are
complied with as of the date of Closing, and (B) the Chairman or Vice Chairman has
no knowledge or reason to believe that the Official Statement as of its date, and as of
the date of Closing, other than the information concerning the Insurer and DTC, as
to factual matters, contains any untrue statement of a material fact or omits to state
a material fact which should be included therein for the purposes for which the
Official Statement is to be used, or which is necessary in order to make the
statements contained therein, in light of the circumstances in which they were made,
not misleading, and (C) the Issuer has always maintained eligibility under applicable
law to receive the Gas Tax Revenues (as that term is defined in the Resolution).
(7) Certified copies of the Resolution and the Ordinance.
(8) Executed copies of the Interlocal Agreements, the Continuing
Disclosure Certificate, the Escrow Agreement, this Purchase Contract and the
Reserve Account Insurance Policy Agreement;
(9) A true and correct copy of the Insurer's municipal bond insurance
policy insuring payment of the Series 2003 Bonds and the Reserve Account Insurance
Policy;
(10) Evidence of a rating from Fitch Ratings ("Fitch") of "AAA," Moody's
Investors Service ("Moody's") of "AAA" and Standard & Poor's, Inc. ("S&P") of "Aaa"
on the Series 2003 Bonds based on the municipal bond insurance policy to be issued
by the Insurer, and evidence of published underlying ratings by" ," ". ." and ....
of Fitch, Moody's and S&P, respectively, to the Series 2003 Bonds Without regard to
the issuance of such a municipal bond insurance policy;
(11) A certificate of KPMG LLP (the "Auditor"), consenting to the
inclusion of the audited financial statements of the County in the Official Statement
and covering such other matters as may be reasonably requested by the Issuer and
the Underwriters;
(12) A certificate of an authorized representative of
(the "Bank"), as Registrar, Paying Agent
and Escrow Agent, in a form acceptable to the Issuer and the Underwriters;
(13) Certificates of the Canvassing Board of Collier County, Florida,
regarding the results of any and all referenda relating to the Gas Taxes;
10
(14)
the verification report regarding the defeasance of the Prior Bonds of
; and
(15) Such additional legal opinions, certificates, instruments and other
documents as the Underwriters may reasonably request.
A11 of the evidence, opinions, letters, certificates, instruments and other documents
mentioned above or elsewhere in this Purchase Contract shall be deemed to be in compliance with
the provisions hereof if, but only if, they are in form and substance satisfactory to the Underwriters
with such exceptions and modifications as shall be approved by the Senior Managing Underwriter
and as shall not in the opinion of the Senior Managing Underwriter materially impair the
investment quality of the Series 2003 Bonds.
If the Issuer shall be unable to satisfy the conditions to the obligations of the Underwriters to
purchase, to accept delivery of and to pay for the Series 2003 Bonds contained in this Purchase
Contract, or if the obligations of the Underwriters to purchase, to accept delivery of and to pay for
the Series 2003 Bonds shall be terminated for any reason permitted by this Purchase Contract, this
Purchase Contract shall terminate and neither the Underwriters nor the Issuer shall be under any
further obligation hereunder, except that the Issuer shall return the good faith check referred to in
Paragraph 5 and the respective obligations of the Issuer and the Underwriters set forth in
Paragraph 10 hereof shall continue in full force and effect.
9. Termination. The
liability therefor, by notification to
Contract at or prior to the Closing:
Underwriters may terminate this Purchase Contract, without
the Issuer, if at any time subsequent to the date of this Purchase
(a) Legislation shall be enacted by the Congress of the United States, or a bill
introduced (by amendment or otherwise) or favorably reported or passed by either the House
of Representatives or the Senate of the Congress of the United States or any committee of
the House or Senate, or a conference committee of such House and Senate makes a report (or
takes any other action), or a decision by a court of the United States or the Tax Court of the
United States shall be rendered, or a ruling, regulation or fiscal action shall be issued or
proposed by or on behalf of the Treasury Department of the United States, the Internal
Revenue Service or other governmental agency with respect to or having the purpose or
effect of changing directly or indirectly the federal income tax consequences of interest on the
Series 2003 Bonds in the hands of the holders thereof (including imposition of a not
previously existing minimum federal tax which includes tax-exempt interest in the
calculation of such tax), which materially adversely affects the market price or the
marketability of the Series 2003 Bonds.
(b) Any legislation, rule or regulation shall be introduced in, or be enacted by
any department or agency in the State, or a decision by any court of competent jurisdiction
within the State shall be rendered which materially adversely affects the market for the
Series 2003 Bonds or the sale, at the contemplated offering prices, by the Underwriters of the
Series 2003 Bonds to be purchased by them.
(c) Any amendment to the Official Statement is proposed by the Issuer or
deemed necessary by Bond Counsel or Disclosure Counsel or the Underwriters pursuant to
Section 2(c) hereof which materially adversely affects the market for the Series 2003 Bonds
or the sale, at the contemplated offering prices, by the Underwriters of the Series 2003 Bonds
to be purchased by them.
11
(d) Any fact shall exist or any event shall have occurred which makes the
Preliminary Official Statement, in the form as originally approved by the Board of County
Commissioners of the County, contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
(e) There shall have occurred any outbreak or escalation of hostilities or any
national or international calamity or crisis, financial or otherwise, including a general
suspension of trading on any national securities exchange which (i) materially adversely
affects the market for the Series 2003 Bonds or the sale of the Series 2003 Bonds, at the
contemplated offering prices, by the Underwriters or (ii) causes a material disruption in the
municipal bond market and as, in the judgment of the Underwriters, would make it
impracticable for them to market the Series 2003 Bonds or to enforce contracts for the sale of
the Series 2003 Bonds.
(f) Legislation shall be enacted or any action shall be taken by, or on behalf of,
the Securities and Exchange Commission which has the effect of requiring the contemplated
distribution of the Series 2003 Bonds to be registered under the Securities Act of 1933, or
any laws analogous thereto relating to governmental bodies, and compliance therewith
cannot be accomplished prior to the Closing.
(g) A general banking moratorium shall have been declared by the United
States, New York or Florida authorities which materially adversely affects the market for
the Series 2003 Bonds or the sale, at the contemplated offering prices, by the Underwriters of
the Series 2003 Bonds to be purchased by them.
(h) Any national securities exchange, or any governmental authority, shall
impose, as to the Series 2003 Bonds or obligations of the general character of the Series 2003
Bonds, any material restrictions not now in force, or increase materially those now in force,
with respect to the extension of credit by, or the charge to the net capital requirements of,
the Underwriters.
(i) Any rating of the Series 2003 Bonds shall have been downgraded or
withdrawn by a national rating service, which materially adversely affects the market for the
Series 2003 Bonds or the sale, at the contemplated offering prices, by the Underwriters of the
Series 2003 Bonds to be purchased by them; or any proceeding shall be pending or
threatened by the Securities and Exchange Commission against the Issuer.
(j) The Insurer shall inform the Issuer or the Underwriters that it will not
ensure payment of the principal Of or interest on the Series 2003 Bonds as described in the
Official Statement or that it will not deliver the Reserve Account Insurance Policy.
10. Expenses. The Underwriters shall be under no obligation to pay, and the Issuer shall
pay, any expenses incident to the performance of the obligations of the Issuer hereunder including,
but not limited to: (a) the cost of preparation, printing or other reproduction of the Resolution; (b)
the cost of preparation and printing of the Series 2003 Bonds; (c) the fees and disbursements of Bond
Counsel and DisclosureCo unsel; (d) the fees and disbursements of the financial advisor to the
Issuer; (e) the fees and disbursements of any experts, consultants or advisors retained by the Issuer,
including fees of the auditor, the verification agent, and the Paying Agent and Registrar; (f) fees for
bond ratings; (g) the premium for municipal bond insurance and the reserve account insurance
policy; (h) the costs of preparing, printing and delivering a reasonable number of copies of the
Preliminary Official Statement and the Official Statement and any supplements or amendments to
either of them, (i) the cost of preparing, printing and delivery of any agreements among the
12
Underwriters; (j) the cost of preparing, printing and delivery of this Purchase Contract; and (k) the
cost of all "blue sky" memoranda and related filing fees.
The Underwriters shallp ay: (a) allad vertising expenses; and (b) all other expenses incurred
by them or any of them in connection with the public offering of the Series 2003 Bonds, including the
fees and disbursements of counsel retained by them, but not including the costs identified in (i) of the
immediately preceding paragraph. In the event that either party shall have paid obligations of the
other as set forth in this Section 10, adjustment shall be made at the time of the Closing.
11. Notices. Any notice or other communication to be given to the Issuer under this
Purchase Contract may be given by delivering the same in writing at its address set forth above, and
any notice or other communication to be given to the Underwriters may be given by delivering the
same in writing to Morgan Stanley & Co. Incorporated, 200 South Orange Avenue, Suite 1440,
Orlando, Florida 32801, Attention: Executive Director.
12. Parties in Interest. This Purchase Contract is made solely for the benefit of the
Issuer and the Underwriters and no other party or person shall acquire or have any right hereunder
or by virtue hereof. All representations, warranties, covenants and agreements in this Purchase
Contract shall remain operative and in full force and effect, regardless of: (i) any investigations
made by or on behalf of a ny of the Underwriters; (ii) the delivery of the Series 2003 Bonds pursuant
to this Purchase Contract; or (iii) any termination of this Purchase Contract but only to the extent
provided by the last part of Section 8 hereof.
13. Waiver. Notwithstanding any provision herein to the contrary, the performance of
any and all obligations of the Issuer hereunder and the performance of any and all conditions
contained herein for the benefit of the Underwriters may be waived by the Senior Managing
Underwriter, in its sole discretion, and the approval of the Senior Managing Underwriter when
required hereunder or the determination of their satisfaction as to any document referred to herein
shall be in writing, signed by appropriate officer or officers of the Senior Managing Underwriter and
delivered to the Issuer.
[Remainder of page intentionally left blank]
13
14. Effectiveness. This Purchase Contract shall become effective upon the execution of
the acceptance hereof by the Chairman or Vice Chairman of the Board of County Commissioners and
shall be valid and enforceable at the time of such acceptance.
15. Counterparts. This Purchase Contract may be executed in several counterparts, each
of which shall be regarded as an original and all of which shall constitute one and the same
document.
16. Headings. The headings of the sections of this Purchase Contract are inserted for
convenience only and shall not be deemed to be a part hereof.
17. Florida Law Governs. The validity, interpretation and performance of this Purchase
Contract shall be governed by the laws of the State of Florida.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
By:
Name: Coleman W. Cordell
Its: Executive Director
Accepted by:
COLLIER COUNTY, FLORIDA
By:
Chairman of the Board of
County Commissioner
14
EXHIBIT A
AMOUNTS, MATURITIES, INTEREST RATES AND PRICES OR YIELDS
$84,495,000* Serial Bonds
Amount*
$1,485,000
5,87O,O00
6,015,000
6,165,000
6,320,000
6,475,000
6,640,000
6,820,000
Maturity Interest Price or Maturity
(June 1)* Rate Yield Amount* (June 1)*
2003 6,080,000 2011
2004 6,275,000 2012
2005 6,495,000 2013
2006 6,725,000 2014
2007 6,980,000 2015
2008 3,015,000 2016
2009 3,135,000 2017
2010
$22,060,000*__% Term Bonds due June 1,2023- Yield
Interest
Rate
Price or
Yield
*Preliminary, subject to change.
Exhibit A- 1
REDEMPTION PROVISIONS
Optional Redemption
The Series 2003 Bonds maturing on or before June 1, 20__ are not subject to optional
redemption prior to maturity. The Series 2003 Bonds maturing on and after June 1, 20__ are subject
to redemption at the option of the County in whole or in part, at any time,o n or after June 1, 20__ in
such order of maturities as may be determined by the County (less than all of a single maturity to be
selected by lot) at a redemption price (expressed as a percentage of principal amount) as set forth in
the table below, together with accrued interest to the date set for redemption:
Redemption Period
(Both Dates Inclusive)
Redemption Price
June 1, 20__ to May 31, 20__
June 1, 20__ to May 31, 20__
June 1, 20__ and thereafter
Mandatory Redemption
The Series 2003 Bonds maturing on June 1, 20__, are subject to mandatory sinking fund
redemption, prior to maturity in part, by lot on June 1, 20__ and on each June 1 thereafter, at a
redemption price equal to the principal amount of such Series 2003 Bonds or portions thereof to be
redeemed, plus interest accrued thereon to the date of redemption, on June 1 in the following years
and in the following Amortization Installments:
Year
Amortization Installments
20__
20__
20__
20__
20__
20__
20__*
*Maturity
Mandatory Redemption
[TO COME]
Exhibit A-2
EXHIBIT B
$
COLLIER COUNTY, FLORIDA
Gas Tax Revenue Bonds,
Series 2003
DISCLOSURE STATEMENT
,2003
Board of County Commissioners of
Collier County, Florida
Naples, Florida
Ladies and Gentlemen:
In connection with the proposed issuance by Collier County, Florida (the "Issuer") of the
issue of bonds referred to above (the "Series 2003 Bonds") Morgan Stanley & Co. Incorporated, on
behalf of itself and A.G. Edwards & Sons, Inc. (collectively, the "Underwriters"), have agreed to
underwrite a public offering of the Series 2003 Bonds. Arrangements for underwriting the Series
2003 Bonds will include a Purchase Contract between the Issuer and the Underwriters.
The purpose of this letter is to furnish, pursuant to the provisions of Sections 218.385(2), (3)
and (6), Florida Statutes, certain information in respect to the arrangement contemplated for the
underwriting of the Series 2003 Bonds as follows:
(a) The nature and estimated amount of expenses to be incurred by the Underwriters in
connection with the issuance of the Series 2003 Bonds are set forth on Schedule I attached hereto.
(b) There are no "finders," as that term is defined in Section 218.386, Florida Statutes,
connected with the issuance of the Series 2003 Bonds.
(c) The amount of the Underwriter's discount expected to be realized with respect to the
Series 2003 Bonds is $ per $1,000 ($ ) which includes $ per $1,000
($. ) for underwriting risk, $__ per $1,000 ($ ) for average takedown,
$__ per $1,000 ( ) for expenses and $.__ per $1,000 ($ ) for
management fee.
(d) No other fee, bonus or other compensation is estimated to be paid by the
Underwriters in connection with the issuance of the Series 2003 Bonds to any person not regularly
employed or retained by the Underwriters.
(e) The name and address of the Underwriters are set forth below:
Morgan Stanley & Co. Incorporated
200 South Orange Avenue, Suite 1440
Orlando, Florida 32801
Exhibit B- 1
A.G. Edwards & Sons, Inc.
1900 Glades Road, Suite 270
Boca Raton, Florida 33431
Raymond James & Associates, Inc.
220 Congress Park Drive, Suite 240
Delray Beach, FL 33445
(f) The Issuer is proposing to issue the Series 2003 Bonds for the purpose of providing
funds, together with other legally available funds of the County, to (i) finance the costs of acquisition,
construction, and reconstruction of roads and bridges and other transportation improvements within
the County, (ii) refund, on a current basis, all of the County's outstanding Road Improvement
Revenue Bonds, Series 1995 (the "Prior Bonds""), as further described herein, and (iii) pay certain
costs of issuance of the Series 2003 Bonds, including the municipal bond insurance premium and the
reserve account insurance policy premium.
The Series 2003 Bonds are expected to be repaid over a period of approximately
years (from the date of Closing). At an all-inclusive true interest cost rate of __
interest paid over the life of the Series 2003 Bonds will be $.
%, total
Pursuant to Resolution No. 03-__ adopted by the Board of County Commissioners of the
County (the "Board") on , 2003, as amended and supplemented from time to time,
and as particularly supplemented by Resolution No. 03-__ adopted by the Board of County
Commissioners of the County on ~ 2003 (collectively, the "Resolution"), the Series
2003 Bonds are payable from and secured by a lien upon the proceeds of the Gas Tax Revenues (as
such term is defined and described in the Resolution), and distributed to the County under the Act
(as defined in the Resolution) and certain other amounts as described in the Resolution (collectively,
the "Pledged Funds"). Subject to the satisfaction of certain requirements in the Resolution, the
County may release the lien on one or more cents of the Gas Tax Revenues.
[Remainder of page intentionally left blank]
Exhibit B-2
We understand that the Issuer does not require any further disclosure from
Underwriters, pursuant to Sections 218.385(2), (3) and (6), Florida Statutes.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
the
By:
Name: Coleman W. Cordell
Its: Executive Director
Exhibit B-3
SCHEDULE I
ESTIMATED EXPENSES TO BE INCURRED BY UNDERWRITERS
Per $1,000
Bond Dollar Amount
$ $
Total
*Total varies due to rounding
Schedule I-1
EXHIBIT C
FORM OF OPINION OF COUNTY ATTORNEY
.,2003
Board of County Commissioners
of Collier County, Florida
Naples, Florida
Morgan Stanley & Co. Incorporated
Orlando, Florida
A.G. Edwards & Sons, Inc.
Boca Raton, Florida
Bryant, Miller and Olive, P.A.
Tampa, Florida
Raymond James & Associates, Inc.
Delray Beach, Florida
[Insurer]
[TBD]
Re;
$ Collier County, Florida
Gas Tax Revenue Bonds, Series 2003
Dear Sir:
This letter shall serve as the opinion of the County Attorney of Collier County, Florida (the
"Issuer") pursuant to Section 8(e)(3) of the Purchase Contract, dated ., 20-- (the
"Purchase Contract") between the Issuer and Morgan Stanley & Co. Incorporated, on behalfo f itself
and A.G. Edwards & Sons, Inc. I have participated in various proceedings in connection with the
issuance by the Issuer of $. aggregate principal amount of Collier County, Florida Gas
Tax Revenue Bonds, Series 2003 (the "Series 2003 Bonds"). The Series 2003 Bonds are being issued
pursuant to Resolution No.03 - adopted by the Board of County Commissioners of the County (the
"Board") on , 2003, as amended and supplemented from time to time, and as
particularly supplemented by Resolution No. 03- adopted by the Board on ,2003
(collectively, the "Resolution"). All terms not otherwise defined herein shall have the meanings
ascribed thereto in the Purchase Contract or the Resolution.
I am of the opinion that:
1. The Issuer is a political subdivision of the State of Florida, duly organized and validly
existing and has full legal right, power and authority to adopt and perform its obligations under the
Exhibit C- 1
Resolution, to enact and perform its obligations under the Ordinance, and to authorize, execute and
deliver and to perform its obligations under the Continuing Disclosure Certificate, the Interlocal
Agreements, the Escrow Agreement, the Reserve Account Insurance Policy Agreement and the
Purchase Contract.
2. The Issuer has duly adopted the Resolution, has duly enacted the Ordinance, and has
duly authorized, executed and delivered the Purchase Contract, the Interlocal Agreements, the
Escrow Agreement, and the Continuing Disclosure Certificate, and assuming the due authorization,
execution and delivery of the Purchase Contract, the Escrow Agreement and the Reserve Account
Insurance Policy Agreement by the other parties thereto, such instruments constitute legal, binding
and valid obligations of the Issuer, enforceable in accordance with their terms; provided, however,
the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors' rights generally and subject, as to enforceability, to general
principles of equity and the exercise of judicial discretion.
3. With respect to the informationin the Official Statement and based upon my
participation in the preparation of the Official Statement as County Attorney, I have no reason to
believe that the Official Statement (except for the financial and statistical data contained therein,
and the information relating to the Insurer and DTC, as to which no view need be expressed), as to
legal matters, contains any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
4. The use of the Preliminary Official Statement by the Underwriters for the purpose of
offering the Series 2003 Bonds has been duly authorized and ratified by the Issuer.
5. The Official Statement has been duly authorized, executed and delivered by the
Issuer, and the Issuer has consented to the use and distribution thereof by the Underwriters.
6. The adoption of the Resolution, the enactment of the Ordinance, and the
authorization, execution and delivery of the Continuing Disclosure Certificate, the Interlocal
Agreements, the Purchase Contract, the Escrow Agreement, the Reserve Account Insurance Policy
Agreement and the Series 2003 Bonds, and compliance with the provisions hereof and thereof, will
not conflict with, or constitute a breach of or default under, any law, administrative regulation,
consent decree, ordinance, resolution or any agreement or other instrument to which the Issuer is
subject nor will such enactment, adoption, execution, delivery, authorization or compliance result in
the creation or imposition of any lien, charge or other security interest or encumbrance of any nature
whatsoever upon any of the property or assets of the Issuer, or under the terms of any law,
administrative regulation, ordinance, resolution or instrument, except as expressly provided by the
Resolution.
7. All approvals, consents, authorizations and orders of any governmental authority or
agency having jurisdiction in any matter which would constitute a condition precedent to the
performance by the Issuer of its obligations hereunder and under the Resolution and the Ordinance
have been obtained and are in full force and effect.
8. The Issuer is lawfully empowered to pledge the Pledged Funds to the extent provided
in the Resolution.
9. The County has the authority to acquire, improve, equip, construct, reconstruct, own
and operate the Initial Project.
Exhibit C-2
10. Except as disclosed in the Official Statement, to my knowledge after due inquiry, as
of the date hereof, there is no action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court, government agency, public board or body, pending or, to the best of my
knowledge, threatened against the Issuer, affecting or seeking to prohibit, restrain or enjoin the sale,
issuance or delivery of the Series 2003 Bonds or the acquisition, equipping and/or improvement of
the Initial Project or the collection of the Pledged Funds to pay the principal of, premium, if any, and
interest on the Series 2003 Bonds, or contesting or affecting as to the Issuer the validity or
enforceability of the Act in any respect relating to authorization for the issuance of the Series 2003
Bonds, the Resolution, the Ordinance, the Interlocal Agreements, the Continuing Disclosure
Certificate, the Escrow Agreement, the Reserve Account Insurance Policy Agreement or the
Purchase Contract, or contesting the tax-exempt status of interest on the Series 2003 Bonds, or
contesting the completeness or accuracy of the Official Statement or any supplements or
amendments thereto, or contesting the powers of the Issuer or any authority for the issuance of the
Series 2003 Bonds, the adoption of the Resolution, the enactment of the Ordinance, or the execution
and delivery by the Issuer of the Purchase Contract, the Interlocal Agreements, the Escrow
Agreement, the Reserve Account Insurance Policy Agreement or the Continuing Disclosure
Certificate; notwithstanding the foregoing, I am not expressing any opinion on the applicability of
the any approvals, consents and orders as may be required under the Blue Sky or securities laws or
legal investment laws of any state in connection with the offering and sale of the Series 2003 Bonds
or on connection with the registration of the Series 2003 Bonds under the Federal securities laws.
Respectfully submitted,
David C. Weigel, Esq.
County Attorney
J:\BondsX439901\Pc3.doc
January 28, 2003
Exhibit C-3
EXHIBIT B
FORM OF PRELIMINARY OFFICIAL STATEMENT
Electronic Distribution of the Preliminary Official Statement Disclaimer Language
$106,555,000'
COLLIER COUNTY, FLORIDA
Gas Tax Revenue Bonds,
Series 2003
DISCLAIMER
Electronic access to the following Preliminary Official Statement (including the information
incorporated by reference) is being provided to you as a matter of convenience only. The only official
version of the Preliminary Official Statement is the printed version available for physical delivery.
Although the information contained in the following Preliminary Official Statement has been
formatted in a manner that should exactly replicate the printed Preliminary Official Statement,
physical appearance may differ for various reasons, including electronic communication difficulties
or particular user equipment. In order to assure accuracy, users should obtain a copy of and refer to
the printed Preliminary Official Statement. The user of this Preliminary Official Statement
assumes the risk of any discrepancies between the printed Preliminary Official Statement and the
electronic version of this document.
Copies of the printed Preliminary Official Statement may be obtained from:
William R. Hough & Co.
100 Second Avenue South, Suite 800
St. Petersburg, Florida 33701
Tel: 727-895-8880
Email: pdixon@hough.com
Attention: Peg Dixon
This Preliminary Official Statement and the information contained herein are subject to
completion or amendment without notice. The posting of this Preliminary Official Statement does
not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of the
securities described in the Preliminary Official Statement in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to the registration or qualification under the securities
laws of any such jurisdiction.
By choosing to download and view this electronic Preliminary Official Statement you are
acknowledging that you (i) have read, understood and accepted the terms of this Disclaimer, (ii)
consented to the delivery of the Preliminary Official Statement in electronic form, (iii) accepted the
risk of errors in the transmission or printing thereof, (iv) agreed not to print the Preliminary Official
Statement except in its entirety, and (v) agreed not to transmit electronic copies of the Preliminary
Official Statement.
*Preliminary, subject to change.
PRELIMINARY OFFICIAL STATEMENT DATED
,2003
NEW ISSUE -BOOK ENTRY ONLY
In the opinion of Nabors, Giblin & Nickerson, P.A., Tampa, Florida, Bond Counsel, interest
on the Series 2003 Bonds (as hereinafter defined) is, under existing statutes, regulations, rulings and
court decisions: (a) excludable from gross income for federal income tax purposes except as otherwise
described herein under the caption "TAX EXEMPTION" and (b) not an item of tax preference for
purposes of the federal alternative minimum tax imposed on individuals and corporations. Such
interest, however, will be includable in the calculation ora corporation's alternative minimum taxable
income and may be subject to other federal income tax consequences referred to herein under the
caption "TAX EXEMPTION." Bond Counsel is further of the opinion that the Series 2003 Bonds and
the interest thereon are exempt from all present intangible personal property taxes imposed pursuant
to Chapter 199, Florida Statutes. See "TAX EXEMPTION" herein for a discussion of Bond Counsel's
opinion, including a discussion of the corporate alternative minimum tax.
$106,555,000'
COLLIER COUNTY, FLORIDA
Gas Tax Revenue Bonds,
Series 2003
Dated: Date of Delivery
Due: June 1, as shown below
The Gas Tax Revenue Bonds, Series 2003 (the "Series 2003 Bonds") are being issued by
Collier County, Florida (the "County") as fully registered bonds, which initially will be registered in
the name of Cede & Co., as nominee of The Depository Trust Company, New York, New York
CDTC"). Individual purchases will be made in book-entry form only through Participants (defined
herein) in denominations of $5,000 and integral multiples thereof. Purchasers of the Series 2003
Bonds (the "Beneficial Owners") will not receive physical delivery of certificates. Transfers of
ownership interests in the Series 2003 Bonds wi1] be effected through the DTC book-entry system as
described herein. As long as Cede & Co. is the registered owner as nominee of DTC, principal and
interest payments will be made directly to such registered owner which will in turn remit such
payments to the Participants (as defined herein) for subsequent disbursement to the Beneficial
Owners. Interest on the Series 2003 Bonds is payable on June 1, 2003 and semiannually on each
December 1 and June I thereafter. Principal of, premium, if any, and interest on the Series 2003
Bonds will be payable by [Fifth Third Bank, Cincinnati, Ohio], as Paying Agent and Registrar.
The Series 2003 Bonds are subject to optional and mandatory redemption prior to
their stated maturities as described herein.
The Series 2003 Bonds are being issued pursuant to and under the authority of Chapter 125,
Florida Statutes, Sections 206.60, 336.021 and 336.25, Florida Statutes; Ordinance No. 03- of the
Board of County Commissioners of the County (the "Board") enacted on February , 2003 (the
"Home Rule Ordinance"); the ordinances enacted from time to time by the Board which impose the
Gas Taxes (as such term is defined and described herein), including but not limited to, Ordinance
No. 80-50 of the Board enacted on June 3, 1980, Ordinance No. 80-51 of the Board enacted on June 3,
1980, Ordinance No. 99-40 of the Board enacted on May 25, 1999, Ordinance No. 93-48 of the Board
enacted on August 3, 1993 as amended by Ordinance No. 2001-26 of the Board enacted on May 8,
2001 (collectively, the "Gas Tax Ordinances"), each as amended and supplemented from time to time
(the Home Rule Ordinance and the Gas Tax Ordinances, collectively, the "Ordinance"); any interlocal
agreements as between the County and a municipality located in the County relating to distribution
of any of the Gas Taxes, including, but not limited to the interlocal agreement relating to the Six
Cents Local Option Gas Tax, between the County and the City of Naples, dated May 25, 1999, as the
same be amended or supplemented from time to time, [the interlocal agreement, relating to the
Five Cents Local Option (]as Tax, between the County and ., dated
, as the same may be amended or supplemented from time to time]
(collectively, the "Interlocal Agreements") and other applicable provisions of law (collectively, the
"Act"); and under and pursuant to Resolution No. 03- adopted by the Board on
2003, as amended and supplemented from time to time, and as particularly supplemented b;
Resolution No. 03-__ adopted by the Board on ,2003 (collectively, the "Resolution").
The Series 2003 Bonds are being issued for the purpose of providing funds, together with
other legally available funds of the County, to (i) finance the costs of acquisition, construction, and
reconstruction of roads and bridges and other transportation improvements within the County, (ii)
refund, on a current basis, all of the County's outstanding Road Improvement Revenue Bonds, Series
1995 (the "Prior Bonds""), as further described herein, and (iii) pay certain costs of issuance of the
Series 2003 Bonds, including the municipal bond insurance premium and the reserve account
insurance policy premium.
The Series 2003 Bonds are payable from and secured by a lien upon the proceeds of the Gas
Tax Revenues (as such term is defined and described herein) distributed to the County under the Act
and certain other funds and accounts as described herein (collectively, the "Pledged Funds"). Subject
to the satisfaction of certain requirements in the Resolution, the County may release the lien on one
or more cents of the Gas Tax Revenues. See "SECURITY FOR THE BONDS" and "GAS TAX
REVENUES" herein. The County may issue Additional Bonds on a parity with the Series 2003
Bonds, subject to compliance with certain conditions set forth in the Resolution. See "SECURITY
FOR THE BONDS - Additional Bonds" herein.
The Series 2003 Bonds shall not be or constitute general obligations or
indebtedness of the County as bonds within the meaning of any constitutional or
statutory provision, but shall be special obligations of the County, payable solely from
and secured by a lien upon and pledge of the Pledged Funds in accordance with the terms
of the Resolution. No Holder of any Series 2003 Bond or any Insurer (as such term is
defined in the Resolution) shall ever have the right to compel the exercise of any ad
valorem taxing power to pay such Series 2003 Bond, or be entitled to payment of such
Series 2003 Bond from any moneys of the County except from the Pledged Funds in the
manner provided in the Resolution.
This cover page contains certain information for quick reference only. It is not, and is not
intended to be, a summary of the issue. Investors must read the entire Official Statement to obtain
information essential to the making of an informed investment decision.
Concurrently with the issuance of the Series 2003 Bonds, a bond insurance policy which
unconditionally guarantees the payment of that portion of the principal of and interest on the Series
2003 Bonds which becomes due for payment, but shall be unpaid by reason of nonpayment by the
County will be issued by
[Insert Insurer Logo]
AMOUNTS, MATURITIES, INTEREST RATES,
PRICES OR YIELDS AND INITIAL CUSIP NUMBERS
$84,495,000* Serial Bonds
Initial
Maturity Interest Price or Cusip Maturity Interest Price or
Amount* (June 1)* Rate Yield Numbers Amount* dune 1)* Rate Yield
$1,485,000 2003 6,080,000 2011
5,870,000 2004 6,275,000 2012
6,015,000 2005 6,495,000 2013
6,165,000 2006 6,725,000 2014
6,320,000 2007 6,980,000 2015
6,475,000 2008 3,015,000 2016
6,640,000 2009 3,135,000 2017
6,820,000 2010
Initial
Cusip
Numbers
$22,060,000* Term Bonds due June 1, 2023* - Price or Yield __
% -- Initial Cusip Number __
The Series 2003 Bonds are offered when, as and if issued and received by the Underwriters,
subject to the approval as to legality by Nabors, Giblin & Nickerson, P.A., Tampa, Florida, Bond
Counsel. Certain legal matters will be passed on for the County by David C. Weigel, Esq., County
Attorney, and by Bryant, Miller and Olive, P.A., Tampa, Florida, Disclosure Counsel. William R.
Hough & Co., Naples, Florida is acting as Financial Advisor to the County. Schifino & Fleischer,
Tampa, Florida, is acting as counsel to the Underwriters. It is expected that the Series 2003 Bonds
will be delivered to the facilities of DTC in New York, New York on or about ,2003.
A.G. EDWARDS & SONS. INC
MORGAN STANLEY
RAYMOND JAMES & ASSOCIATES, INC.
*Preliminary, subject to change.
RED HERRING LANGUAGE:
This Preliminary Official Statement and the information contained herein are subject to completion
or amendment. Under no circumstances shall this Preliminary Official Statement constitute an offer
to sell or a solicitation of an offer to buy, nor shall there be any sale of the Series 2003 Bonds in any
jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration,
qualification or exemption under the securities laws of such jurisdiction. The County has deemed
this Preliminary Official Statement "final," except for certain permitted omissions, within the
contemplation of Rule 15c2-12 promulgated by the Securities and Exchange Commission.
COLLIER COUNTY, FLORIDA
Government Complex
3301 East Tamiami Trail
Naples, Florida 34112
(941) 774-8097
BOARD OF COUNTY COMMISSIONERS
Tom Henning, Chairman
Donna Fiala, Vice Chairman
Jim Coletta, Commissioner
Fred W. Coyle, Commissioner
Frank Halas, Commissioner
COUNTY MANAGER
James V. Mudd
CLERK OF THE CIRCUIT COURT OF COLLIER COUNTY
AND CHIEF FINANCIAL OFFICER
Dwight E. Brock, Esq.
DIRECTOR OF FINANCE AND ACCOUNTING
James L. Mitchell, CIA, CFE, CBA
COUNTY ATTORNEY
David C. Weigel, Esq.
BOND COUNSEL
Nabors, Giblin & Nickerson, P.A.
Tampa, Florida
DISCLOSURE COUNSEL
Bryant, Miller and Olive, P.A.
Tampa, Florida
FINANCIAL ADVISOR
William R. Hough & Co.
Naples, Florida
INDEPENDENT AUDITORS
KPMG LLP
St. Petersburg, Florida
No dealer, broker, salesman or other person has been authorized by the County to give any
information or to make any representations in connection with the Series 2003 Bonds other than as
contained in this Official Statement, and, if given or made, such information or representations must
not be relied upon as having been authorized by the County. This Official Statement does not
constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of the Series
2003 Bonds by any person in any jurisdiction in which it is unlawful for such person to make such
offer, solicitation or sale. The information set forth herein has been obtained from the County, The
Depository Trust Company, , and other sources which are
believed tobe reliable, but is not guaranteed as to accuracy or completeness, and is not to be
construed as a representation by the County with respect to any information provided by others.
The Underwriters listed on the cover page hereof have reviewed the information in this Official
Statement in accordance with and as part of their respective responsibilities to investors under the
federal securities laws as applied to the facts and circumstances of this transaction, but the
Underwriters do not guarantee the accuracy or completeness of such information. The information
and expressions of opinion stated herein are subject to change, and neither the delivery of this
Official Statement nor any sale made hereunder shall create, under any circumstances, any
implication that there has been no change in the matters described herein since the date hereof.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVERALLOT
OR EFFECT TRANSACTIONS THAT STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
SERIES 2003 BONDS AT LEVELS ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT
ANY TIME.
All summaries herein of documents and agreements are qualified in their entirety by
reference to such documents and agreements, and all summaries herein of the Series 2003 Bonds are
qualified in their entirety by reference to the form thereof included in the aforesaid documents and
agreements.
NO REGISTRATION STATEMENT RELATING TO THE SERIES 2003 BONDS HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") OR
WITH ANY STATE SECURITIES COMMISSION. IN MAKING ANY INVESTMENT DECISION,
INVESTORS MUST RELY ON THEIR OWN EXAMINATIONS OF THE COUNTY AND THE
TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THE SERIES
2003 BONDS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE COMMISSION OR
ANY STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. THE FOREGOING
AUTHORITIES HAVE NOT PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
OFFICIAL STATEMENT. ANY REPRESENTATION TO THE CONTRARY MAY BE A CRIMINAL
OFFENSE.
[Remainder of page intentionally left blank]
TABLE OF CONTENTS
~Contents Page
INTRODUCTION ........................................................................................................................................ 1
General ..................................................................................................................................................... 1
The County .............................................................................................................................................. 1
Purpose of the Series 2003 Bonds ..........................................................................................................
Security for the Bonds ............................................................................................................................ 1
Redemption Provisions ........................................................................................................................... 2
Bond Insurance Policy ............................................................................................................................ 2
Additional Bonds ..................................................................................................................................... 2
Tax Exemption ........................................................................................................................................ 2
Continuing Disclosure ............................................................................................................................. 2
Amendment of Resolution ....................................................................................................................... 3
Additional Information ........................................................................................................................... 3
AUTHORITY FOR ISSUANCE .................................................................................................................. 3
THE INITIAL PROJECT ............................................................................................................................ 4
PLAN OF REFUNDING ............................................................................................................................. 4
DESCRIPTION OF THE SERIES 2003 BONDS ...................................................................................... 4
General ..................................................................................................................................................... 4
Book-Entry Only System ........................................................................................................................ 4
Payment of the Series 2003 Bonds ......................................................................................................... 6
Optional Redemption .............................................................................................................................. 7
Mandatory Redemption .......................................................................................................................... 7
Notice of Redemption .............................................................................................................................. 7
Interchangeability, Negotiability and Transfer .................................................................................... 8
SECURITY FOR THE BONDS .................................................................................................................. 9
General ..................................................................................................................................................... 9
Uniform Commercial Code ................................................................................................................... 10
Funds and Accounts .............................................................................................................................. 10
Construction Fund ................................................................................................................................ 10
Reserve Account .................................................................................................................................... 12
Disposition of Gas Tax Revenues ......................................................................................................... 12
Additional Bonds ................................................................................................................................... 15
Subordinated Indebtedness .................................................................................................................. 17
Books and Records ................................................................................................................................ 17
Collection of Gas Tax Revenues; No Impairment ............................................................................... 17
Accession of Subordinated Indebtedness to Parity Status with Bonds ............................................. 17
Investments ........................................................................................................................................... 18
Separate Accounts ................................................................................................................................. 18
Amendment of Resolution without Consent of Bondholders .............................................................. 18
Control by Insurer in Case of Event of Default ................................................................................... 19
GAS TAX REVENUES .............................................................................................................................. 19
General ................................................................................................................................................... 19
Historical Gasoline Sales in the County .............................................................................................. 19
Seventh Cent Gas Tax .......................................................................................................................... 19
Ninth Cent Gas Tax .............................................................................................................................. 21
Six Cents Local Option Gas Tax and Five Cents Local Option Gas Tax ........................................... 23
Aggregate Gas Tax Revenues ............................................................................................................... 28
Pro Forma Debt Service Coverage ....................................................................................................... 29
BOND INSURANCE POLICY .................................................................................................................. 29
RESERVE ACCOUNT INSURANCE POLICY ....................................................................................... 30
ESTIMATED SOURCES AND USES OF FUNDS ................................................................................. 31
DEBT SERVICE SCHEDULE .................................................................................................................. 32
INVESTMENT POLICY ........................................................................................................................... 33
LEGAL MATTERS .................................................................................................................................... 34
FUTURE PLANS TO ADD SECURITY ................................................................................................... 35
FUTURE VALIDATION ........................................................................................................................... 35
LITIGATION .............................................................................................................................................. 36
DISCLOSURE REQUIRED BY FLORIDA BLUE SKY REGULATIONS ............................................ 37
TAX EXEMPTION ..................................................................................................................................... 37
Opinion of Bond Counsel ...................................................................................................................... 37
Internal Revenue Code of 1986 ............................................................................................................ 38
Collateral Tax Consequences ............................................................................................................... 38
Florida Taxes ......................................................................................................................................... 38
Other Tax Matters ................................................................................................................................ 38
Tax Treatment of Original Issue Discount .......................................................................................... 39
Tax Treatment of Bond Premium ........................................................................................................ 39
RATINGS ................................................................................................................................................... 39
VERIFICATION OF MATHEMATICAL COMPUTATIONS ................................................................. 40
FINANCIAL ADVISOR ............................................................................................................................. 40
AUDITED FINANCIAL STATEMENTS ................................................................................................. 40
UNDERWRITING ..................................................................................................................................... 41
CONTINGENT FEES ............................................................................................................................... 41
ENFORCEABILITY OF REMEDIES ....................................................................................................... 41
CONTINUING DISCLOSURE ................................................................................................................. 41
ACCURACY AND COMPLETENESS OF OFFICIAL STATEMENT ................................................... 42
AUTHORIZATION OF OFFICIAL STATEMENT .................................................................................. 43
APPENDIX A - GENERAL INFORMATION REGARDING COLLIER COUNTY, FLORIDA
APPENDIX B -AUDITED FINANCIAL STATEMENTS FOR FISCAL YEAR ENDED
SEPTEMBER 30, 2001 [2002 audit is going to the BOCC on,
APPENDIX C -FORM OF THE RESOLUTION
APPENDIX D -FORM OF BOND INSURANCE POLICY
APPENDIX E - [FORM OF RESERVE ACCOUNT INSURANCE POLICY]
APPENDIX F - FORM OF BOND COUNSEL OPINION
APPENDIX G -FORM OF CONTINUING DISCLOSURE CERTIFICATE
,2003?]
ii
OFFICIAL STATEMENT
relating to
$106,555,000.
COLLIER COUNTY, FLORIDA
Gas Tax Revenue Bonds,
Series 2003
INTRODUCTION
General
This introduction is subject in all respects to the more complete information and definitions
contained or incorporated in this Official Statement and should not be considered to be a complete
statement of the facts material to making an informed investment decision. The offering by Collier
County, Florida (the "County"), of its $106,555,000' Gas Tax Revenue Bonds, Series 2003 (the
"Series 2003 Bonds") to potential investors is made only by means of the entire Official Statement,
including all appendices attached hereto. All capitalized undefined terms used in this introduction
shall have the meaning set forth in "APPENDIX C - FORM OF THE RESOLUTION" attached
hereto.
The County
The County is located in the southwestern portion of the State of Florida. The City of
Naples, located in the western part of the County, is the largest incorporated municipality in Collier
County and serves as its county seat. The County, with a 2001 population of 264,475 according to
the United States Census, derives its economy from wholesale and retail trade, government, tourism,
contract construction, agriculture, cattle ranching and timber. Part of the Everglades National Park,
the United States' only subtropical national park, comprises a portion of the County. See
"APPENDIX A - GENERAL INFORMATION REGARDING COLLIER COUNTY" attached hereto
for more information about the County.
Purpose of the Series 2003 Bonds
The County proposes to issue the Series 2003 Bonds for the purpose of providing funds,
together with other legally available funds of the County, to (i) finance the costs of acquisition,
construction, and reconstruction of roads and bridges and other transportation improvements within
the County, (ii) refund, on a current basis, all of the County's outstanding Road Improvement
Refunding Revenue Bonds, Series 1995 (the "Prior Bonds"), as further described herein, and (iii) pay
certain costs of issuance of the Series 2003 Bonds, including the municipal bond insurance premium
[and the reserve account insurance policy premium]. The Prior Bonds were issued in the
original aggregate principal amount of $5,770,000 and are presently outstanding in the aggregate
principal amount of $3,515,000.
Security for the Bonds
Pursuant to Resolution No. 03- adopted by the Board of County Commissioners of the
County (the "Board") on , 2003, as amended and supplemented from time to time,
and as particularly supplemented by Resolution No. 03-__ adopted by the Board on
, 2003 (collectively, the "Resolution"), the Series 2003 Bonds are payable from and
secured by a lien upon the proceeds of the Gas Tax Revenues (as such term is defined and described
herein), and distributed to the County under the Act (as defined herein) and certain other funds and
* Preliminary, subject to change.
accounts as described herein (collectively, the "Pledged Funds"). Subject to the satisfaction of certain
requirements in the Resolution, the County may release the lien on one or more cents of the Gas Tax
Revenues. See "SECURITY FOR THE BONDS" and "GAS TAX REVENUES" herein.
A Reserve Account has been established to secure all Bonds. Upon issuance of the Series
2003 Bonds, the County will purchase a reserve account insurance policy in an amount which,
together with amounts already on deposit therein, will equal the Reserve Account Requirement (as
such term is defined in the Resolution) for all Bonds. See "SECURITY FOR THE BONDS" herein.
Redemption Provisions
The Series 2003 Bonds are subject to optional and mandatory redemption prior to their
stated maturities as described herein. See "DESCRIPTION OF THE SERIES 2003 BONDS" herein.
Bond Insurance Policy
Concurrently with the issuance of the Series 2003 Bonds, a bond insurance policy (see
"BOND INSURANCE POLICY" herein and "APPENDIX D - FORM OF BOND INSURANCE
POLICY" attached hereto) which unconditionally guarantees the payment of that portion of the
principal of and interest on the Series 2003 Bonds which becomes due for payment, but shall be
unpaid by reason of nonpayment by the County will be issued by (the
"Insurer").
Additional Bonds
The County may issue Additional Bonds on a parity with the Series 2003 Bonds, subject to
compliance with certain conditions set forth in the Resolution. See "SECURITY FOR THE BONDS -
Additional Bonds" herein.
Tax Exemption
In the opinion of Nabors, Giblin & Nickerson, P.A., Tampa, Florida, Bond Counsel, interest
on the Series 2003 Bonds is, under existing statutes, regulations, rulings and court decisions: (a)
excludable from gross income for federal income tax purposes except as otherwise described herein
under the caption "TAX EXEMPTION" and (b) not an item of tax preference for purposes of the
federal alternative minimum tax imposed on individuals and corporations. Such interest, however,
will be includable in the calculation of a corporation's alternative minimum taxable income and may
be subject too ther federal income tax consequences referred to herein under the caption "TAX
EXEMPTION." Bond Counsel is further of the opinion that the Series 2003 Bonds and the interest
thereon are exempt from all present intangible personal property taxes imposed pursuant to Chapter
199, Florida Statutes. See "TAX EXEMPTION" herein for a discussion of Bond Counsel's opinion,
including a discussion of the corporate alternative minimum tax.
Continuing Disclosure
The County has agreed and undertaken, for the benefit of Bondholders, to provide certain
financial information and operating data relating to the County, the Pledged Funds and the Series
2003 Bonds pursuant to Rule 15c2-12 of the Securities and Exchange Commission. See
"CONTINUING DISCLOSURE" herein.
Amendment of Resolution
Pursuant to the Resolution, the County is granted the right to make certain amendments to
the Resolution without the consent of the Holders of the Series 2003 Bonds. See "APPENDIX C -
FORM OF THE RESOLUTION" attached hereto.
Additional Information
This Official Statement speaks only as of its date, and the information contained herein is
subject to change. This Official Statement contains certain information concerning the Insurer, its
Bond Insurance Policy and its reserve account insurance policy, and contains certain information
concerning The Depository Trust Company, New York, New York ("DTC"), and its book-entry-only
system of registration. Such information has not been provided by the County and the County does
not certify as to the accuracy or sufficiency of the disclosure practiceso r content of information
provided by such parties and is not responsible for the information provided by such parties.
A copy of the Resolution and all documents of the County referred to herein may be obtained
from Dwight E. Brock, Clerk of Circuit Court and Chief Financial Officer of Collier County,
Government Complex, 3301 East Tamiami Trail, Building L, Naples, Florida 34112, Phone (941)
732-2646.
Capitalized terms used but not defined herein have the same meaning as when used in the
Resolution unless the context clearly indicates otherwise. See "APPENDIX C - FORM OF THE
RESOLUTION" attached hereto. All information included herein has been provided by the County,
except where attributed to other sources. Copies of such documents, reports and statements referred
to herein that are not included in their entirety in this Official Statement may be obtained from the
County.
AUTHORITY FOR ISSUANCE
The Series 2003 Bonds are being issued pursuant to and under the authority of Chapter 125,
Florida Statutes, Sections 206.60, 336.021 and 336.25, Florida Statutes; Ordinance No. 03- of the
Board of County Commissioners of the County (the "Board") enacted on February , 20---~3 (the
"Home Rule Ordinance"); the ordinances enacted from time to time by the Board ~hich impose the
Gas Taxes (as such term is defined and described herein), including but not limited to, Ordinance
No. 80-50 of the Board enacted on June 3, 1980, Ordinance No. 80-51 of the Board enacted on June 3,
1980, Ordinance No. 99-40 of the Board enacted on May 25, 1999, Ordinance No. 93-48 of the Board
enacted on August 3, 1993 as amended by Ordinance No. 2001-26 of the Board enacted on May 8,
2001 (collectively, the "Gas Tax Ordinances"), each as amended and supplemented from time to time
(the Home Rule Ordinance and the Gas Tax Ordinances, collectively, the "Ordinance"); any interlocal
agreements as between the County and a municipality located in the County relating to distribution
of any of the Gas Taxes, including, but not limited to the interlocal agreement relating to the Six
Cents Local Option Gas Tax, between the County and the City of Naples, dated May 25, 1999, as the
same be amended or supplemented from time to time, [the interlocal agreement, relating to the
Five Cents Local Option Gas Tax, between the County and , dated
., as the same may be amended or supplemented from time to time]
(collectively, the Interlocal Agreements ) and other applicable provisions of law (collectively, the
"Act"); and under and pursuant to the Resolution.
THE INITIAL PROJECT
The "Initial Project" consists of the acquisition, construction, and reconstruction of roads and
bridges and other transportation improvements within the County, as more specifically described in
the plans and specifications on file or to be on file with the County, with such changes, deletions,
additions or modifications to the enumerated improvements, equipment and facilities, or such other
improvements, as approved by the Board in accordance with the Act (collectively, the "Initial
Project"). Specifically, the Initial Project includes
PLAN OF REFUNDING
Concurrently with the delivery of the Series 2003 Bonds, a portion of the proceeds of the
Series 2003 Bonds, together with other legally available funds of the County, shall be deposited into
an escrow deposit trust fund (the "Escrow Fund") pursuant to the terms and provisions of the Escrow
Deposit Agreement between the County and , , , as Escrow Holder (the
"Escrow Agreement"). The moneys deposited pursuant to the Escrow Agreement shall be applied to
the purchase of Federal Securities, as such term is defined in Resolution No. 80-114, duly adopted by
the Board on June 10, 1980, as amended and supplemented from time to time (the "Prior
Resolution"), so as to produce sufficient fundst o pay the principal of, redemption premium, and
interest on the Prior Bonds, as the same become due and payable, whether at maturity or
redemption prior to maturity. The Prior Bonds are expected to be paid or redeemed, as the case may
be, on , 2003. The Prior Bonds that are expected to be redeemed will be redeemed at a
redemption premium of % of the Prior Bonds to be redeemed early. See "VERIFICATION OF
MATHEMATICAL COMPUTATIONS" herein. Upon the deposit of such moneys, in the opinion of
Bond Counsel and in reliance on the verification report of , the Prior Bonds shall
be deemed to be paid and shall no longer be deemed to be outstanding for purposes of the Prior
Resolution. The holders of the Prior Bonds shall be entitled to payment solely out of the moneys or
Federal Securities deposited pursuant to the Escrow Agreement. The moneys and Federal Securities
on deposit in the Escrow Fund will not be available for payment of the Series 2003 Bonds.
DESCRIPTION OF THE SERIES 2003 BONDS
General
The Series 2003 Bonds will be dated and will mature in the years, and in the amounts and
bear interest at the rates and be payable on the dates set forth on the cover page hereof. Interest on
the Series 2003 Bonds is payable on June 1, 2003, and semiannually on each December i and June 1
thereafter (each an "Interest Date"). Principal of, premium, if any, and interest on the Series 2003
Bonds will be payable by [Fifth Third Bank, Cincinnati, Ohio], as Paying Agent and Registrar.
Book-Entry Only System
THE FOLLOWING INFORMATION CONCERNING THE DEPOSITORY TRUST
COMPANY ("DTC") AND DTC'S BOOK-ENTRY ONLY SYSTEM HAS BEEN OBTAINED FROM
SOURCES THAT THE COUNTY BELIEVES TO BE RELIABLE, BUT THE COUNTY TAKES NO
RESPONSIBILITY FOR THE ACCURACY THEREOF.
DTC will act as securities depository for the Series 2003 Bonds. The Series 2003 Bonds will
be issued as fully-registered bonds registered in the name of Cede & Co. (DTC's partnership
nominee) or such other name as may be requested by an authorized representative of DTC. One
4
fully-registered bond certificate Will be issued for each maturity of the Series 2003 Bonds in the
aggregate principal amount of such maturity, and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial
Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934. DTC holds securities that its participants ("Participants") deposit with DTC.
DTC also facilitates the settlement among Participants of securities transactions such as transfers
and pledges, and in deposited securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical movement of securities certificates.
"Direct Participants" means securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations. DTC is owned by a number of its Direct Participants
and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or maintain a
custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants").
The rules applicable to DTC and its Participants are on file with the Securities and Exchange
Commission.
Purchases of Series 2003 Bonds under the DTC system must be made by or through Direct
Participants which will receive a credit for the Series 2003 Bonds on DTC's records. The ownership
interest of each actual purchaser of each Series 2003 Bond ("Beneficial Owner") is in turn to be
recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive writter~
confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written
confirmations providing details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participant through which the Beneficial Owner entered into the
transaction. Transfers of ownership interests in the Series 2003 Bonds are to be accomplished by
entries made on the books of Participants acting on behalf of Beneficial Owners. Beneficial Owners
will not receive certificates representing their ownership interests in Series 2003 Bonds, except in
the event that use of the book-entry system for the Series 2003 Bonds is discontinued.
To facilitate subsequent transfers, all Series 2003 Bonds deposited by Participants with DTC
are registered in the name of DTC's partnership nominee, Cede & Co. The deposito f Series 2003
Bonds with DTC and their registration in the name of Cede & Co. effect no change in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners of the Series 2003 Bonds; DTC's
records reflect only the identity of the Direct Participants to whose accounts such Series 2003 Bonds
are credited, which may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Beneficial Owners of the Series 2003 Bonds may wish to take certain steps to augment the
transmission to them of notices of significant events with respect to the Series 2003 Bonds, such as
redemptions, defaults and proposed amendments to Series 2003 Bond documents. Beneficial Owners
of the Series 2003 Bonds may wish to ascertain that the nominee holding the Series 2003 Bonds for
their benefit has agreed to obtain and transmit notices to Beneficial Owners, or in the alternative,
Beneficial Owners may wish to provide their names and addresses to the Paying Agent and
Registrar and request that copies of notices be provided directly to them.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct
Participants to Indirect Participants, and by Direct Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the Series 2003 Bonds
within an issue are being redeemed, DTC's practice is to determine by lot the amount of the interest
of each Direct Participant in such issue to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to Series 2003 Bonds. Under
its usual procedures, DTC mails an omnibus proxy to the County as soon as possible after the record
date. The omnibus proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Series 2003 Bonds are credited on the record date (identified in a
listing attached to the omnibus proxy).
Principal and interest payments on the Series 2003 Bonds will be made to DTC. DTC's
practice is to credit Direct Participants' accounts on payment dates in accordance with their
respective holdings shown on DTC's records unless DTC has reason to believe that it will not receive
payment on the payment date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as in the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the responsibility of such
Participant and not of DTC, the County, or the Paying Agent, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of principal and interest to DTC is the
responsibility of the County or the Paying Agent, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such payments to the Beneficial
Owners shall be the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with respect to the
Series 2003 Bonds at any time by giving reasonable notice to the County and/or the Paying Agent.
Under such circumstances, in the event that a successor securities depository is not obtained, Series
2003 Bond certificates are required to be printed and delivered.
The County may decide to discontinue use of the system of book-entry transfers through DTC
(or a successor securities depository). In that event, Series 2003 Bond certificates will be printed and
delivered.
Payment of the Series 2003 Bonds
The principal of or Redemption Price, if applicable, on the Series 2003 Bonds are payable
upon presentation and surrender of the Series 2003 Bonds at the office of the Paying Agent. Interest
payable on any Series 2003 Bond on any Interest Date will be paid by check or draft of the Paying
Agent to the Holder in whose name such Series 2003 Bond shall be registered at the close of business
on the date which shall be the fifteenth day (whether or not a business day) of the calendar month
next preceding such Interest Date, or, at the request and expense of such Holder, by bank wire
transfer for the account of such Holder. All payments of principal of or Redemption Price, if
applicable, and interest on the Series 2003 Bonds shall be 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.
For so long as the Series 2003 Bonds shall be held in the DTC book-entry system (without
certificates), all such payments of principal of, redemption premium, if any, and interest on the
Series 2003 Bonds will be made to Cede & Co., as registered owner thereof, by the Paying Agent and
payments to Beneficial Owners will be the responsibility of DTC and the DTC Participants. See
"DESCRIPTION OF THE SERIES 2003 BONDS - Book-Entry Only System" herein.
Optional Redemption
The Series 2003 Bonds maturing on or before June 1, 20__ are not subject to optional
redemption prior to maturity. The Series 2003 Bonds maturing on and after June 1, 20__ are subject
to redemption at the option of the County in whole or in part, at any time,o n or after June 1, 20__ in
such order of maturities as may be determined by the County (less than all of a single maturity to be
selected by lot) at a redemption price (expressed as a percentage of principal amount) as set forth in
the table below, together with accrued interest to the date set for redemption:
Redemption Period
(Both Dates Inclusive)
June 1, 20__ to May 31, 20__
June 1, 20__ to May 31, 20__
June 1, 20__ and thereafter
Redemption Price
%
Mandatory Redemption
The Series 2003 Bonds maturing on June 1, 20__, are subject to mandatory sinking fund
redemption, prior to maturity in part, by lot on June 1, 20__ and on each June 1 thereafter, at a
redemption price equal to the principal amount of such Series 2003 Bonds or portions thereof to be
redeemed, plus interest accrued thereon to the date of redemption, on June I in the following years
and in the following Amortization Installments:
Year
Amortization Installments
20__
20__
20__
20__
20__
20__
20__*
*Maturity
Notice of Redemption
Notice of such redemption, which shall specify the Series 2003 Bond or Series 2003 Bonds (or
portions thereof) to be redeemed and the date and placef or redemption, shall beg iven by the
Registrar on behalf of the County, and (A) shall be filed with the Paying Agent of such Series 2003
Bonds, (B) shall be mailed first class, postage prepaid, at least 30 days prior to the redemption date
to all Holders of Series 2003 Bonds to be redeemed at their addresses as they appear on the
registration books kept by the Registrar as of the date of mailing of such notice, and (C) shall be
mailed, certified mail, postage prepaid, at least 35 days prior to the redemption date to the
registered securities depositories and two or more nationally recognized municipal bond information
services. Failure to mail such notice to such depositories or services or the Holders of the Series
2003 Bonds to be redeemed, or any defect therein, shall not affect the proceedings for redemption of
Series 2003 Bonds as to which no such failure or defect has occurred. Notice of optional redemption
of Series 2003 Bonds shall only be sent if the County determines it shall have sufficient funds
available to pay the Redemption Price of and interest on the Series 2003 Bonds called for redemption
on the redemption date.
As described above under "DESCRIPTION OF THE SERIES 2003 BONDS -- Book-Entry
Only System," for so long as the Series 2003 Bonds are registered in the name of DTC or its nominee,
notice of redemption of any Series 2003 Bond will be given by the Registrar to DTC or such nominee
only, who will then be solely responsible for selecting and notifying those DTC Participants and
Beneficial Owners to be affected by such redemption.
Interchangeability, Negotiability and Transfer
So long as the Series 2003 Bonds are registered in the name of DTC or its nominee, the
following paragraphs relating to transfer and exchange of Series 2003 Bonds do not apply to the
Series 2003 Bonds.
Series 2003 Bonds, upon surrender thereof at the office of the Registrar with a written
instrument of transfer satisfactory to the Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing, may, at the option of the Holder thereof, be exchanged for an
equal aggregate principal amount of registered Series 2003 Bonds and of the same maturity of any
other authorized denominations.
The Series 2003 Bonds issued under the Resolution shall be and have all the qualities and
incidents of negotiable instruments under the law merchant and the Uniform Commercial Code of
the State of Florida, subject to the provisions for registration and transfer contained in the
Resolution and in the Series 2003 Bonds. So long as any of the Series 2003 Bonds shall remain
Outstanding, the County shall maintain and keep, at the office of the Registrar, books for the
registration and transfer of the Series 2003 Bonds.
Each Series 2003 Bond shall be transferable only upon the books of the County, at the office
of the Registrar, under such reasonable regulations as the County may prescribe, by the Holder
thereof in person or by his attorney duly authorized in writing upon surrender thereof together with
a written instrument of transfer satisfactory to the Registrar duly executed and guaranteed by the
Holder of his duly authorized attorney. Upon the transfer of any such Series 2003 Bond, the County
shall issue, and cause to be authenticated, in the name of the transferee a new Series 2003 Bond or
Series 2003 Bonds of the same aggregate principal amount and maturity as the surrendered Series
2003 Bond.
The County, the Registrar and any paying agent or fiduciary of the County may deem and
treat the person in whose name any Outstanding Series 2003 Bond shall be registered upon the
books of the County as the absolute owner of such Series 2003 Bond, whether such Series 2003 Bond
shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of,
redemption premium, if any, and interest on such Series 2003 Bond and for all other purposes, and
all such payments so made to any such registered owner or upon his order shall be valid and
effectual to satisfy and discharge the liability upon such Series 2003 Bond to the extent of the sum or
sums so paid and neither the County nor the Registrar nor any paying agent or other fiduciary of the
County shall be affected by any notice to the contrary.
The Registrar, in any case when it is not also the Paying Agent in respect to any Series of
Bonds, shall forthwith (A) following the fifteenth day prior to an Interest Date for any such Series;
(B) following the fifteenth day next preceding the date of first mailing of notice of redemption of any
Series 2003 Bonds; and (C) at any other time as reasonably requested by the Paying Agent, certify
and furnish to such Paying Agent the names, addresses and holdings of Series 2003 Bondholders and
any other relevant information reflected in the registration books. Any Paying Agent of any fully
registered Bond shall effect payment of interest on such Series 2003 Bonds by mailing a check to the
Series 2003 Bondholder entitled thereto or may, in lieu thereof, upon the request and at the expense
of such Holder, transmit such payment by bank wire transfer for the account of such Holder.
In all cases in which the privilege of exchanging Series 2003 Bonds or transferring Series
2003 Bonds is exercised, the County shall issue and the Registrar shall authenticate and deliver
Series 2003 Bonds in accordance with the provisions of the Resolution. Execution of Series 2003
Bonds by the Chairman and Clerk for purposes of exchanging, replacing or transferring Series 2003
Bonds may occur at the time of the original delivery of the Series 2003 Bonds. All Series 2003 Bonds
surrendered in any such exchanges or transfers shall be held by the Registrar in safekeeping until
directed by the County to be destroyed or returned by the Registrar. For every such exchange or
transfer of Series 2003 Bonds, the County or the Registrar may make a charge sufficient to
reimburse it for any tax, fee, expense or other governmental charge required to be paid with respect
to such exchange or transfer. The County and the Registrar shall not be obligated to make any such
exchange or transfer of Series 2003 Bonds during the fifteen (15) days next preceding an Interest
Date on the Series 2003 Bonds, or in the case of any proposed redemption of Series 2003 Bonds, then
during the fifteen (15) days next preceding the date of the first mailing ofnot ice of such redemption
and continuing until such redemption date.
SECURITY FOR THE BONDS
General
Except as provided in the Resolution and described below under the heading "SECURITY
FOR THE BONDS - Obligations Under Prior Resolution," the payment of the principal of or
Redemption Price, if applicable, and interest on the Bonds is secured forthwith equally and ratably
by a pledge of and lien upon the Pledged Funds in accordance with the provisions of the Resolution.
The Pledged Funds will immediately be subject to the lien of this pledge without any physical
delivery thereof or further act, and the lien of this pledge is valid and binding as against all parties
having claims of any kind in tort, contract or otherwise against the County.
"Pledged Funds" means (1) the Gas Tax Revenues and (2) until applied in accordance with
the provisions of the Resolution, all moneys, including investments thereof, in the funds and
accounts established under the Resolution, except (A) as for the Unrestricted Revenue Account and
the Rebate Fund, and (B) to the extent moneys on deposit in a subaccount of the Reserve Account
shall be pledged solely for the payment of a particular Series of Bonds for which it was established in
accordance with the provisions of the Resolution.
"Gas Tax Revenues" means the moneys received by the County from the proceeds of the Gas
Taxes. "Gas Taxes" means, collectively, the Seventh Cent Gas Tax, the Ninth Cent Gas Tax, the
Five Cents Local Option Gas Tax, the Six Cents Local Option Gas Tax, and any other gas tax
imposed and/or received by the County which is specifically pledged under the Resolution or by the
County pursuant to Supplemental Resolution. The Gas Taxes shall be subject to release pursuant to
the Resolution. See "SECURITY FOR THE BONDS - Release of Portion of Gas Tax Revenues from
Lien and Pledge" herein. "Seventh Cent Gas Tax" means the tax of one cent per gallon on motor fuel
levied by Section 206.60, Florida Statutes, and special fuel levied by Section 206.87, Florida
Statutes, and allocated to the County pursuant to the provisions of subsection (2)(b) of said Section
206.60 and subsection (2) of Section 206.875, Florida Statutes. "Ninth Cent Gas Tax" means the tax
of one-cent per gallon on motor fuel and special fuel imposed by the County pursuant to Section
336.021, Florida Statutes, approved at a countywide referendum on March 11, 1980, and taxed and
collected under Chapter 206, Florida Statutes, as provided in the Gas Tax Ordinances. "Five Cents
Local Option Gas Tax" means the first 5-cents of the local option gas tax levied and received by the
County pursuant to Section 336.025(1)(b), Florida Statutes, plus, to the extent provided by
Supplemental Resolution of the County, any additional local option gas tax received by the County
pursuant to Section 336.025(1)(b), Florida Statutes, and pledged by the County pursuant to
9
Supplemental Resolution. "Six Cents Local Option Gas Tax" means the first 6-cents of the local
option gas tax levied and received by the County pursuant to Section 336.025(1)(a), Florida Statutes,
plus, to the extent provided by Supplemental Resolution of the County, any additional local option
gas tax received by the County received pursuant to Section 336.025(1)(a), Florida Statutes, and
pledged by the County pursuant to Supplemental Resolution. See "GAS TAX REVENUES" herein
for more information.
THE BONDS SHALL NOT BE OR CONSTITUTE GENERAL OBLIGATIONS OR
INDEBTEDNESS OF THE COUNTY AS BONDS WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY PROVISION, BUT SHALL BE SPECIAL
OBLIGATIONS OF THE COUNTY, PAYABLE SOLELY FROM AND SECURED BY A LIEN
UPON AND PLEDGE OF THE PLEDGED FUNDS IN ACCORDANCE WITH THE TERMS
OF THE RESOLUTION. NO HOLDER OF ANY BOND OR ANY INSURER SHALL EVER
HAVE THE RIGHT TO COMPEL THE EXERCISE OF ANY AD VALOREM TAXING POWER
TO PAY SUCH BOND, OR BE ENTITLED TO PAYMENT OF SUCH BOND FROM ANY
MONEYS OF THE COUNTY EXCEPT FROM THE PLEDGED FUNDS IN THE MANNER
PROVIDED IN THE RESOLUTION.
Uniform Commercial Code
The Bonds issued under the Resolution shall be and have all the qualities and incidents of
negotiable instruments under the law merchant and the UCC. In 2001, the Florida Legislature
adopted revisions to Florida's UCC relating to secured transactions. Under the revised UCC,
transfers by governments and governmental units continue to remain exempt from the provisions of
Florida's UCC.
Funds and Accounts
The County covenanted and agreed in the Resolution to establish with one or more banks,
trust companies or other entities in the State of Florida, which is eligible under the laws of such
State to receive funds of the County, special funds to be known as the "Construction Fund," the
"Revenue Fund," the "Debt Service Fund" and the "Rebate Fund." The County shall maintain in the
Revenue Fund two accounts: the "Restricted Revenue Account" and the "Unrestricted Revenue
Account." The County shall maintain in the Debt Service Fund four accounts: the "Interest
Account," the "Principal Account," the "Bond Amortization Account," and the "Reserve Account."
Moneys in the aforementioned funds and accounts, other than the Rebate Fund and the Unrestricted
Revenue Account, until applied in accordance with the provisions of the Resolution, shall be subject
to a lien and charge in favor of the Holders of the Bonds and for the further security of such Holders.
The County may at any time and from time to time appoint one or more depositories to hold,
for the benefit of the Bondholders, any one or more of the funds, accounts and subaccounts
established by the Resolution. Such depository or depositories shall perform at the direction of the
County the duties of the County in depositing, transferring and disbursing moneys to and from each
of such funds and accounts set forth in the Resolution, and all records of such depositary in
performing such duties shall be open at all reasonable times to inspection by the County and its
agent and employees. Any such depositary shall be a bank or trust company duly authorized to
exercise corporate trust powers and subject to examination by federal or state authority, of good
standing, and be qualified under applicable State law as a depository.
Construction Fund
The Construction Fund shall be used only for payment of the Cost of the Projects. Moneys in
the Construction Fund, until applied in payment of any item of the Cost of a Project in the manner
10
provided in the Resolution, shall be held in trust by the County and shall be subject to a lien and
charge in favor of the Holders of the Bonds and for the further security of such Holders.
There shall be paid into the Construction Fund the amounts required to be so paid by the
provisions of the Resolution, and there may be paid into the Construction Fund, at the option of the
County, any moneys received for or in connection with a Project by the County from any other
source. The County shall establish within the Construction Fund a separate account for each
Project, the Cost of which is to be paid in whole or in part out of the Construction Fund. The "Series
2003 Account" of the Construction Fund was established by the Resolution, from which Costs of the
Initial Project shall be paid. See "INITIAL PROJECT" herein.
The proceeds of insurance maintained pursuant to the Resolution against physical loss of or
damage to a Project, or of contractors' performance bonds with respect thereto pertaining to the
period of construction thereof, shall be deposited into the appropriate account of the Construction
Fund.
Any moneys received by the County from the State or from the United States of America or
any agencies thereof for the purpose of financing part of the Cost of a Project may be deposited into
the appropriate account of the Construction Fund and used in the same manner as other Series 2003
Bond proceeds are used therein; provided that separate accounts or subaccounts may be established
in the Construction Fund for moneys received pursuant to the provisions of this paragraph whenever
required by Federal or State law.
The County covenanted in the Resolution that the acquisition, construction and installation
of each Project will be completed without delay and in accordance with sound engineering practices.
The County shall make disbursements or payments from the Construction Fund to pay the Cost of a
Project upon the filing with the Clerk of documents and/or certificates signed by an Authorized
Issuer Officer, stating with respect to each disbursement or payment to be made: (A) the item
number of the payment, (B) the name and address of the Person to whom payment is due, (C) the
amount to be paid, (D) the Construction Fund account from which payment is to be made, (E) the
purpose, by general classification, for which payment is to be made and that such purpose qualifies
for payment from all of the Gas Taxes (or, in the alternative, an Authorized Issuer Officer states that
payment of costs associated with such purpose will not violate the Act), and (F) that (1) each
obligation, item of cost or expense mentioned therein has been properly incurred, is in payment of a
part of the Cost of a Project and is a proper charge against the account of the Construction Fund
from which payment is to be made and has not been the basis of any previous disbursement or
payment, or (2) each obligation, item of cost or expense mentioned therein has been paid by the
County, is a reimbursement of a part of the Cost of a Project, is a proper charge against the account
of the Construction Fund from which payment is to be made, has not been theretofore reimbursed to
the County or otherwise been the basis of any previous disbursement or payment and the County is
entitled to reimbursement thereof. The Clerk shall retain all such certificates of the Authorized
Issuer Officers for such period of time as required by applicable law. The Clerk shall make available
the documents and/or certificates at all reasonable times for inspection by any Holder of any of the
Series 2003 Bonds or the agent or representative of any Holder of any of the Series 2003 Bonds.
Notwithstanding any of the other provisions of the Resolution, to the extent that other
moneys are not available therefor, amounts in an account of the Construction Fund with respect to
any Series of Bonds shall be applied to the payment of principal and interest on such Series of Bonds
when due.
The date of completion of acquisition and construction of a Project shall be determined by the
Authorized Issuer Officer who shall certify such fact in writing to the Governing Body. Promptly
after the date of the completion of a Project, and after paying or making provisions for the payment
11
of all unpaid items of the Cost of such Project, the County shall deposit in the following order of
priority any balance of moneys remaining in the Construction Fund in (A) another account of the
Construction Fund for which the Authorized Issuer Officer has stated that there are insufficient
moneys present to pay the cost of the related Project, (B) the Reserve Account to the extent of a
deficiency therein, and (C) such other fund or account established under the Resolution as shall be
determined by the Board, provided the County has received an opinion of Bond Counsel to the effect
that such transfer shall not adversely affect the exclusion, if any, of interest on the Series 2003
Bonds from gross income for purposes of federal income taxation.
Reserve Account
Pursuant to the Resolution, upon delivery of the Series 2003 Bonds, the County shall deposit
to the Reserve Account a reserve account surety bond issued by (the "Reserve
Account Insurance Policy"). See "RESERVE ACCOUNT INSURANCE POLICY" herein. See "BOND
INSURANCE POLICY" herein for information about The amount of such Reserve
Account Insurance Policy is equal to $ , which is equal to the Reserve Account
Requirement with respect to the Series 2003 Bonds (the "Reserve Account Requirement"). The
Reserve Account may be used to secure Additional Bonds issued pursuant to the Resolution.
Alternatively, the County reserves the right to establish separate subaccounts in the Reserve
Account for any Series of Additional Bonds for the purpose of securing such Series only. In that case,
such Series of Additional Bonds would not be secured by the Reserve Account which secured the
Series 2003 Bonds.
Disposition of Gas Tax Revenues
(A) The County shall promptly deposit upon receipt from the State the Gas Taxes and
any additional gas taxes pledged under the Resolution pursuant to a Supplemental Resolution into
the Restricted Revenue Account. The moneys in the Restricted Revenue Account shall be deposited
or credited on or before the 25th day of each month, commencing in the month immediately following
delivery of any of the Series 2003 Bonds to the purchasers thereof, or such later date as provided in
the Resolution, in the following manner and in the following order of priority:
(1) Interest Account. The County shall deposit or credit to the Interest Account the sum
which, together with the balance in said Account, shall equal the interest on all Bonds Outstanding
accrued and unpaid and to accrue to the end of the then current calendar month. Moneys in the
Interest Account shall be applied by the County for deposit with the Paying Agents to pay the
interest on the Bonds on or prior to the date the same shall become due. The County shall adjust the
amount of the deposit to the Interest Account not later than a month immediately preceding any
Interest Date so as to provide sufficient moneys in the Interest Account to pay the interest on the
Bonds coming due on such Interest Date. No further deposit need be made to the Interest Account
when the moneys therein are equal to the interest coming due on the Outstanding Bonds on the next
succeeding Interest Date.
(2) Principal Account. Commencing no later than the month which is one year prior to
the first principal due date, the County shall next deposit into the Principal Account the sum which,
together with the balance in said Account, shall equal the principal amounts on all Bonds
Outstanding due and unpaid and that portion of the principal next due which would have accrued on
such Bonds during the then current calendar month if such principal amounts were deemed to
accrue monthly (assuming that a year consists of 12 equivalent calendar months having 30 days
each) except for the Amortization Installments to be deposited pursuant to the Resolution in equal
amounts from the next preceding principal payment due date, or, if there be no such preceding
payment due date from a date one year preceding the due date of such principal amount. Moneys in
the Principal Account shall be applied by the County for deposit with the Paying Agents to pay the
12
principalo f the Bonds on or prior to the date the same shall mature, and for no other purpose. The
County shall adjust the amount of the deposit to the Principal Account not later than the month
immediately preceding any principal payment date so as to provide sufficient moneys in the
Principal Account to pay the principal on Bonds becoming due on such principal payment date. No
further deposit need be made to the Principal Account when the moneys therein are equal to the
principal coming due on the Outstanding Bonds on the next succeeding principal payment date.
(3) Bond Amortization Account. Commencing in the month which is one year prior to
the first Amortization Installment due date, there shall be deposited to theBo nd Amortization
Account the sum which, together with the balance in such Account, shall equal the Amortization
Installments on all Bonds Outstanding due and unpaid and that portion of the Amortization
Installments of all Bonds Outstanding next due which would have accrued on such Bonds during the
then current calendar month if such Amortization Installments were deemed to accrue monthly
(assuming that a year consists of 12 equivalent calendar months having 30 days each) in equal
amounts from the next preceding Amortization Installment due date, or, if there is no such preceding
Amortization Installment due date, from a date one year preceding the due date of such
Amortization Installment. Moneys in the Bond Amortization Account shall be used to purchase or
redeem Term Bonds in the manner provided in the Resolution, and for no other purpose. The
County shall adjust the amount of the deposit to the Bond Amortization Account on the month
immediately preceding any Amortization Installment date so as to provide sufficient moneys in the
Bond Amortization Account to pay the Amortization Installments becoming due on such date.
Payments to the Bond Amortization Account shall be on parity with payments to the Principal
Account.
Amounts accumulated in the Bond Amortization Account with respect to any Amortization
Installment (together with amounts accumulated in the Interest Account with respect to interest, if
any, on the Term Bonds for which such Amortization Installment was established) may be applied by
the County, on or prior to the 60th day preceding the due date of such Amortization Installment, (a)
to the purchase of Term Bonds of the Series and maturity for which such Amortization Installment
was established, or (b) to the redemption at the applicable Redemption Prices of such Term Bonds, if
then redeemable by their terms. Amounts in the Bond Amortization Account which are used to
redeem Term Bonds shall be credited against the next succeeding Amortization Installment which
shall become due on such Term Bonds. The applicable Redemption Price (or principal amount of
maturing Term Bonds) of any Term Bonds so purchased or redeemed shall be deemed to constitute
part of the Bond Amortization Account until such Amortization Installment date, for the purposes of
calculating the amount of such Account. As soon as practicable after the 60th day preceding the due
date of any such Amortization Installment, the County shall proceed to call for redemption on such
due date, by causing notice to be given as provided in the Resolution, Term Bonds of the Series and
maturity for which such Amortization Installment was established (except in the case of Term Bonds
maturing on a Amortization Installment date) in such amount as shall be necessary to complete the
retirement of the unsatisfied balance of such Amortization Installment. The County shall pay out of
the Bond Amortization Account and the Interest Account to the appropriate Paying Agents, on or
before the day preceding such redemption date (or maturity date), the amount required for the
redemption (or for the payment of such Term Bonds then maturing), and such amount shall be
applied by such Paying Agents to such redemption (or payment). All expenses in connection with the
purchase or redemption of Term Bonds shall be paid by the County from the Restricted Revenue
Account.
(4) Reserve Account. There shall be deposited to the Reserve Account an amount which
would enable the County to restore the funds on deposit in the Reserve Account to an amount equal
to the Reserve Account Requirement applicable thereto. All deficiencies in the Reserve Account
must be made up no later than 12 months from the date such deficiency first occurred, whether such
shortfall was caused by decreased market value or withdrawal (whether from cash or a Reserve
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Account Insurance Policy). On or prior to each principal payment date and Interest Date for the
Bonds (in no event earlier than the 25th day of the month next preceding such payment date),
moneys in the Reserve Account shall be applied by the County to the payment of the principal of or
Redemption Price, if applicable, and interest on the Bonds to the extent moneys in the Interest
Account, the Principal Account and the Bond Amortization Account shall be insufficient for such
purpose. Whenever there shall be surplus moneys in the Reserve Account by reason of a decrease in
the Reserve Account Requirement or as a result of a deposit in the Reserve Account of a Reserve
Account Insurance Policy or a Reserve Account Letter ofCre dit, such surplus moneys, to the extent
practicable, shall be deposited by the County into the Unrestricted Revenue Account. The County
shall promptly inform each Insurer of any draw upon the Reserve Account for purposes of paying the
principal of and interest on the Bonds.
Upon the issuance of any Series of Bonds under the terms, limitations and conditions as
provided in the Resolution, the County shall fund the Reserve Account in an amount at least equal to
the Reserve Account Requirement. Such required amount,if any, shall be paid in full or in part from
the proceeds of such Series of Bonds or may be accumulated in equal monthly payments to the
Reserve Account over a period of months from the date of issuance of such Series of Bonds, which
shall not exceed 36 months. In the event moneys in theRe serveAcc ount are accumulated as
provided above, (a) the amount in said Reserve Account on the date of delivery of the Additional
Bonds shallno t be less than the Reserve Account Requirement on allB onds Outstanding (excluding
the Additional Bonds) on such date, and (b) the incremental difference between the Reserve Account
Requirement on all Bonds Outstanding (excluding the Additional Bonds) on the date of delivery of
the Additional Bonds and the Reserve Account Requirement on all such Series 2003 Bonds and the
Additional Bonds shall be 50% funded upon delivery of the Additional Bonds.
Notwithstanding the foregoing provisions, in lieuo f or in substitution of the required
deposits into the Reserve Account, the County may cause to be deposited into the Reserve Account a
Reserve Account Insurance Policy for the benefit of the Bondholders in an amount equal to the
difference between the Reserve Account Requirement applicable thereto and the sums then on
deposit in the Reserve Account, if any. The County may also substitute a Reserve Account Insurance
Policy for cash on deposit in the Reserve Account upon compliance with the terms of the Resolution.
In the event the Reserve Account contains both a Reserve Account Insurance Policy and cash
and separate subaccounts have not been established in the Reserve Account, the cash shall be drawn
down completely prior to any draw on the Reserve Account Insurance Policy. In the event more than
one Reserve Account Insurance Policy is on deposit in the Reserve Account, amounts required to be
drawn thereon shall be done on a pro-rata basis. The County agreed in the Resolution to pay all
amounts owing in regard to any Reserve Account Insurance Policy from the Pledged Funds. Pledged
Funds shall be applied in accordance with the Resolution, first, to reimburse the issuer of the
Reserve Account Insurance Policy for amounts advanced under such instruments, second, replenish
any cash deficiencies in the Reserve Account, and, third, to pay the issuer of the Reserve Account
Insurance Policy interest on amounts advanced under such instruments. The Resolution shall not be
discharged or defeased while any obligations are owing in regard to a Reserve Account Insurance
Policy on deposit in the Reserve Account. The County agreed in the Resolution not to optionally
redeem Bonds unless all amounts owing in regard to a Reserve Account Insurance Policy on deposit
in the Reserve Account have been paid in full.
Any consent or approval of any Insurer described in the Resolution shall be required only so
long as there are Outstanding Bonds secured by a Bond Insurance Policy issued by such Insurer
which is in full force and effect and the commitments of which have been honored by such Insurer.
The term "Paying Agent" as used in the Resolution for this purpose may include one or more Paying
Agents for the Outstanding Bonds.
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Whenever the amount of cash in the Reserve Account, together with the other amounts in
the Debt Service Fund, are sufficient to fully pay all Outstanding Bonds in accordance with their
terms (including principal or applicable Redemption Price and interest thereon), the funds on deposit
in the Reserve Account may be transferred to the other Accounts of the Debt Service Fund for the
payment of the Bonds.
The County may also establish a separate subaccount in the Reserve Account for any Series
of Bonds and provide a pledge of such subaccount to the payment of such Series of Bonds apart from
the pledge provided in the Resolution. To the extent a Series of Bonds is secured separately by a
subaccount of the Reserve Account, the Holders of such Bonds shall not be secured by any other
moneys in the Reserve Account. Moneys in a separate subaccount of the Reserve Account shall be
maintained at the Reserve Account Requirement applicable to such Series of Bonds secured by the
subaccount; provided the Supplemental Resolution authorizing such Series of Bonds may establish
the Reserve AccountR equirement relating to such separate subaccount of the Reserve Account at
such level as the County deems appropriate. Moneys shall be deposited in the separate subaccounts
in the Reserve Account on a pro-rata basis. In the event the County shall maintain a Reserve
Account Insurance Policy and moneys in such subaccount, the moneys shall be used prior to making
any disbursements under such Reserve Account Insurance Policy.
(5) Unrestricted Revenue Account. The balance of any moneys after the deposits
required as heretofore described may be transferred, at the discretion of the County, to the
Unrestricted Revenue Account or any other appropriate fund or account of the County and may be
used for any lawful purpose.
(B) Whenever moneys on deposit in the Debt Service Fund are sufficient to fully pay all
Outstanding Bonds in accordance with their terms (including principal or applicable Redemption
Price and interest thereon), no further deposits to the Debt Service Fund need be made. If on any
payment date the Gas Tax Revenues are insufficient to deposit the required amount in any of the
funds or accounts or for any of the purposes provided above, the deficiency shall be made up on the
subsequent payment dates.
The County, in its discretion, may use moneys in the Principal Account and the Interest
Account to purchase or redeem Bonds coming due on the next principal payment date, provided such
purchase or redemption does not adversely affect the County's ability to pay the principal or interest
coming due on such principal payment date on the Bonds not so purchased or redeemed.
Additional Bonds
No Additional Bonds, payable on a parity with the Series 2003 Bonds then Outstanding
pursuant to the Resolution, shall be issued except upon the conditions and in the manner provided in
the Resolution. The County may issue one or more Series of Additional Bonds for any one or more of
the following purposes: (i) financing the Cost of a Project, or the completion thereof, or (ii) refunding
any or all Outstanding Bonds or of any Subordinated Indebtedness of the County.
No such Additional Bonds shall be issued unless the following conditions are complied with:
(A) Except as otherwise provided in the Resolution, there shall have been obtained and
filed with the County a statement of an Authorized Issuer Officer: (1) stating that the books and
records of the County relating to the Gas Tax Revenues and Investment Earnings have been
examined by him; (2) setting forth the amount of the Gas Tax Revenues and Investments Earnings
which have been received by the County during any 12 consecutive months designated by the County
within the 24 months immediately preceding the date of delivery of such Additional Bonds with
respect to which such statement is made; and (3) stating that the amount of the Gas Tax Revenues
15
and Investment Earnings received during the aforementioned 12 month period equals at least __
times the Maximum Annual Debt Service on all Bonds then Outstanding and such Additional Bonds
with respect to which such statement is made.
(B) In the event the County, by Supplemental Resolution, extends the pledge of the Gas
Tax Revenues created pursuant to the Resolution to include additional gas tax and such additional
gas tax was not in effect during all or a portion of the applicable 12 consecutive month period
described in (A) above, then for the purposes of determining whether there are sufficient Gas Tax
Revenues to meet the coverage test specified in (A) above, the Authorized Issuer Officer shall adjust
the amount of Gas Tax Revenues which were received during the applicable 12 consecutive month
period to take into account the additional amount of Gas Tax Revenues such additional gas tax
would have generated if it had been in effect for the entire 12 consecutive month period; provided,
however, that such adjustment shall only be made if the additional gas tax is in effect on the date
the statement of the Authorized Issuer Officer referred to in (A) above is made and such additional
gas tax will remain in effect at least until the final maturity of the Bonds Outstanding at the time of
issuance of the Additional Bonds. In the event the County releases any Gas Tax Revenues pursuant
to the Resolution, then for the purpose of determining whether there are sufficient Gas Tax
Revenues to meet the coverage tests specified in the Resolution, the Authorized Issuer Officer shall
assume that such released amount of the Gas Tax Revenues was not in effect during the applicable
12 consecutive month period.
(C) In the event the County shall enter into any agreement relating to, or any
amendment of, the Interlocal Agreements adjusting the County's proportionate share of Gas Tax
Revenues and such new proportionate share of Gas Tax Revenues was not in effect during all or a
portion of the applicable 12 consecutive month period described in (A) above, then for the purpose of
determining whether there are sufficient Gas Tax Revenues to meet the coverage test specified in (A)
above, the Authorized Issuer Officer shall adjust the amount of Gas Tax Revenues which were
received during the applicable 12 consecutive month period to reflect the amount of Gas Tax
Revenues the County would have received over such 12 consecutive month period had the County's
share of Gas Tax Revenues been distributed based on its new proportionate share.
(D) For the purpose of determining the Debt Service in this subsection, the interest rate
on additional parity Variable Rate Bonds then proposed to be issued shall be deemed to be the Bond
Buyer Revenue Bond Index most recently published prior to the sale of such Additional Bonds.
(E) For the purpose of determining the Debt Service in this subsection, the interest rate
on Outstanding Variable Rate Bonds shall be deemed to be (1) if such Variable Rate Bonds have
been Outstanding for at least 24 months prior to the date of sale of such Additional Bonds, the
highest average interest rate borne by such Variable Rate Bonds for any 30-day period, or (2) if such
Variable Rate Bonds have not been Outstanding for at least 24 months prior to the date of sale of
such Additional Bonds, the Bond Buyer Revenue Bond Index most recently published prior to the
sale of such Additional Bonds.
(F) Additional Bonds shall be deemed to have been issued pursuant to the Resolution the
same as the Outstanding Bonds, and all other covenants and other provisions of the Resolution
(except as to details of such Additional Bonds inconsistent therewith) shall be for the equal benefit,
protection and securing of the Holders of all Bonds issued pursuant to the Resolution. Except as
described in the Resolution, all Bonds regardless of the time or times of their issuance, shall rank
equally with respect to their lien on the Pledged Funds and their sources and security for payment
therefrom without preference of any Bonds over any other.
(G) In the event any Additional Bonds are issued for the purpose of refunding any Bonds
then Outstanding, the conditions of this subsection shall not apply, provided that the issuance of
16
such Additional Bonds shall result in a reduction of aggregate debt service. The conditions of (A)
above shall apply to Additional Bonds issued to refund Subordinated Indebtedness and to Additional
Bonds issued for refunding purposes which cannot meet the conditions of this paragraph.
Subordinated Indebtedness
The County will not issue any other obligations, except under the conditions and in the
manner provided in the Resolution, payable from the Pledged Funds (or any portion thereof) or
voluntarily create or cause to be created any debt, lien, pledge, assignment, encumbrance or other
charge having priority to or being on a parity with the lien thereon in favor of the Bonds and the
interest thereon. The County may at any time or from time to time issue evidences of indebtedness
payable in whole or in part out of the Pledged Funds and which may be secured by a pledge of such
Pledged Funds; provided, however, that such pledge shall be, and shall be expressed to be,
subordinated in all respects to the pledge of the Pledged Funds created by the Resolution. The
County shall have the right to covenant with the holders from time to time of any Subordinated
Indebtedness to add to the conditions, limitations and restrictions under which any Additional Bonds
may be issued pursuant to the Resolution. The County agrees to pay promptly any Subordinated
Indebtedness as the same shall become due.
Books and Records
The County will keep books and records of the receipt of the Gas Tax Revenues in accordance
with generally accepted accounting principles, and Holder or Holders of Series 2003 Bonds shall
have the right at all reasonable times to inspect the records, accounts and data of the County
relating thereto.
Collection of Gas Tax Revenues; No Impairment
The County covenants to do all things necessary on its part to maintain its eligibility to
receive the full amount of Gas Tax Revenues which are required by the Act. The County will proceed
diligently to perform legally and effectively all steps required on its part in the levy and collection of
Gas Tax Revenues and shall exercise all legally available remedies to enforce such collections now or
hereafter available under State law.
The pledging of the Pledged Funds in the manner provided in the Resolution shall not be
subject to repeal, modification or impairment by any subsequent ordinance, resolution or other
proceedings of the Governing Body, except as otherwise provided in the Resolution.
Accession of Subordinated Indebtedness to Parity Status with Bonds
The County may provide for the accession of Subordinated Indebtedness to the status of
complete parity with the Bonds, if (A) the County shall meet all the requirements imposed upon the
issuance of Additional Bonds by the Resolution, assuming, for purposes of said requirements, that
such Subordinated Indebtedness shall be Additional Bonds, and (B) the Reserve Account, upon such
accession, shall contain an amount equal to the Reserve Account Requirement in accordance with
the Resolution. If the aforementioned conditions are satisfied, the Subordinated Indebtedness shall
be deemed to have been issued pursuant to the Resolution the same as the Outstanding Bonds, and
such Subordinated Indebtedness shall be considered Bonds for all purposes provided in the
Resolution.
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Investments
Moneys on deposit in the Construction Fund, the Restricted Revenue Account and the Debt
Service Fund shall be continuously secured in the manner by which the deposit of public funds are
authorized to be secured by the laws of the State. Moneys on deposit in the Construction Fund, the
Restricted Revenue Account and the Debt Service Fund, other than the Reserve Account, may be
invested and reinvested in Authorized Investments maturing not later than the date on which the
moneys therein will be needed for the purposes of such fund or account. Moneys on deposit in the
Reserve Account may be invested or reinvested in Authorized Investments which shall mature no
later than __ years from the date of investment. All investments shall be valued at cost;
[provided, that the amounts on deposit in the Reserve Account shall be valued at the
market price thereof. Investments in the Reserve Account shall be valued by the County
on an amount basis of March I of each year.]
Any and all income received by the County from the investment of moneys in each account of
the Construction Fund, the Interest Account, the Restricted Revenue Account and the Reserve
Account (to the extent such income and the other amounts in the Reserve Account does not exceed
the Reserve Account Requirement applicable thereto), shall be retained in such respective Fund or
Account. Any and all income received by the County from the investment of moneys in the Reserve
Account (only to the extent such income and other amounts in the Reserve Account exceeds the
Reserve Account Requirement), the Principal Account and the Bond Amortization Account shall be
deposited in the Interest Account.
Nothing contained in the Resolution prevents any Authorized Investments acquired as
investments of or security for funds held under the Resolution from being issued or held in book-
entry form on the books of the Department of the Treasury of the United States.
Separate Accounts
The moneys required to be accounted for in each of the funds, accounts and subaccounts
established in the Resolution may be deposited in a single, non-exclusive bank account, and funds
allocated to the various funds, accounts and subaccounts established in the Resolution may be
invested in a common investment pool, provided that adequate accounting records are maintained to
reflect and control the restricted allocation of the moneys on deposit therein and such investments
for the various purposes of such funds, accounts and subaccounts as provided in the Resolution.
The designation and establishment of the various funds, accounts and subaccounts in and by
the Resolution shall not be construed to require the establishment of any completely independent,
self-balancing funds as such term is commonly defined and used in governmental accounting, but
rather is intended solely to constitute an earmarking of certain revenues for certain purposes and to
establish certain priorities for application of such revenues as provided in the Resolution.
Amendment of Resolution without Consent of Bondholders
Certain amendments to the Resolution are permitted without Bondholder consent with the
prior written consent of the Insurer or Insurers of Bonds, provided that such insured Bonds, at the
time of the adoption of the amendment, shall be rated by the rating agencies which shall have rated
the Bonds at the time such Bonds were insured no lower than the ratings assigned thereto by such
rating agencies on the date of being insured. See "APPENDIX C - FORM OF THE RESOLUTION"
attached hereto.
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Control by Insurer in Case of Event of Default
Upon the occurrence and continuance of an Event of Default, each Insurer, if such Insurer
has not failed to comply with its payment obligations under its Bond Insurance Policy, shall be
deemed to be the sold Holder of the Bonds it insures for purposes of (A) directing and controlling the
enforcement of all rights and remedies with respect to such Series of Bonds, any waiver of an Event
of Default and removal of any trustee, and (B) exercising certain voting rights or privileges or giving
certain consents or directions or taking certain other actions. See "APPENDIX C - FORM OF THE
RESOLUTION" attached hereto.
GAS TAX REVENUES
General
The "Gas Tax Revenues" consist of revenues derived by the County from four separate taxes
referred to in the Resolution as the "Seventh Cent Gas Tax," the "Ninth Cent Gas Tax," the "Five
Cents Local Option Gas Tax" and the "Six Cents Local Option Gas Tax," and any other gas tax
imposed and/or received by the County which is specifically pledged by the County pursuant to the
Resolution or a Supplemental Resolution. Each of the current components of the Gas Tax Revenues
is described herein.
Historical Gasoline Sales in the County
The volume of motor and special fuel sold in the County is set forth below for the years
indicated:
HISTORICAL NUMBER OF TAXABLE GALLONS SOLD("
State
Fiscal Year Total Taxable
Ended June 30 Motor Fuel Diesel Fuel Gallons
1997 98,360,148.3 9,875,959.9 108,236,108.2
1998 102,359,831.5 10,105,725.0 112,465,556.5
1999 107,621,218.2 11,164,098.3 118,785,316.5
2000 115,012,511.1 11,689,949.1 126,702,460.2
2001 119,469,969.5 11,850,377.5 131,320,347.0
2002
Source: Florida Department of Revenue.
(1) The number of gallons shown
Revenues are derived.
represents
fuel from which components of the Gas Tax
Seventh Cent Gas Tax
In General. In addition to other taxes, the State imposes a tax of one-cent per net gallon of
motor fuel, which tax is statutorily designated as the "County Fuel Tax." "Motor fuel" is "all gasoline
products or any product blended with gasoline or any fuel placed in the storage supply tank of a
gasoline-powered motor vehicle." TheCo unty Fuel Tax is referred to in theRe solution as the
"Seventh Cent Gas Tax."
19
Collection and Distribution. The Florida Department of Revenue ("FDOR") is responsible for
collecting the County Fuel Tax and, after deducting the expenses of collection, administration,
enforcement and distribution (limited to 2% of collections) and after deducting a 7.3% service charge
to the GeneralR evenue Fund of the State of Florida, FDOR is required to divide the proceeds of the
tax and distribute the same to counties in the State on a monthly basis.
The formula for distribution for the County Fuel Tax is as follows:
follows:
First, the distribution factor for each county is calculated on an annual basis as
1/4 x County Area
State Area
+ 1/4 x County Population
State Population
+ 1/2 x
Number of Motor Fuel Gallons Sold In County
Number of Motor Fuel Gallons Sold Statewide
= County's Distribution Factor
2. Second, the monthly allocation for each county is calculated as follows:
Monthly Statewide
County Fuel Tax Receipts
County's County's
x Distribution Factor -- Monthly Allocation
Thus, changes in relative population and in absolute and relative motor fuel sales will affect
the amount of County Fuel Tax distributable to a county.
Eligibility. All counties are eligible to receive County Fuel Tax revenues.
Use of Revenue. County Fuel Tax revenues may be used solely for the acquisition of
rights-of-way; the construction, reconstruction, operation, maintenance and repair of transportation
facilities, roads, and bridges therein; or the reduction of bonded indebtedness incurred by a county
(or special road and bridge districts within such county) for road and bridge or other transportation
purposes.
Statewide Collection Data. The following table summarizes County Fuel Tax distributions to
Florida counties for the fiscal years of the State ended June 30, 1992 through June 30, 2001, as
reported by FDOR.
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STATE OF FLORIDA
HISTORICAL COUNTY FUEL TAX REVENUES
State
Fiscal Year Total Amount Percentage
Ended Distributed to Increase
June 30 the Counties (Decrease)
1992 $46,707,321 --
1993 50,974,465 9.1%
1994 47,863,900 (6.1)
1995 60,270,623 25.9
1996 59,269,152 (1.7)
1997 59,427,474 0.3
1998 62,247,550 4.7
1999 70,111,057 12.6
2000 80,216,521 14.4
2001 79,248,371 (1.2)
2002
Source: Florida Department of Revenue
Collier County Revenue Data. The following table sets forth historical Seventh Cent Gas
Tax revenues for the fiscal years ended September 30, 1993 through 2002.
COLLIER COUNTY, FLORIDA
HISTORICAL SEVENTH CENT GAS TAX REVENUES
County
Fiscal Year Seventh Cent Percentage
Ended Gas Tax Increase
September 30 Revenues Received(~) (Decrease)
1993 $900,604 --
1994 860,255 (4.5%)
1995 1,101,818 28.1
1996 1,065,934 (3.3)
1997 1,099,100 3.1
1998 1,164,741 6.0
1999 1,363,814 17.1
2000 1,442,775 5.8
2001 1,511,029 4.7
2002 1,642,793® 8.7
Source: Collier County Finance Department
(1) Unaudited.
(2) Unaudited interim result subject to adjustment as more complete results become available
and as the County's financial statements are subjected to a year-end audit.
Ninth Cent Gas Tax
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In General. In addition to other taxes, each county may impose a tax of one cent per net
gallon of motor fuel sold within the county's iurisdiction. The tax may be levied by either an
extraordinary vote of the membership of the county's governing body or pursuant to voter approval
in a county-wide election. In addition, a tax of one cent per gallon is required to be levied in each
county on every net gallon of diesel fuel sold within the county regardless of whether the county is
levying the tax on motor fuel. These taxes are collectively referred to as the "Ninth Cent Fuel Tax"
and are referred to in the Resolution as the "Ninth Cent Gas Tax." Thirty-nine of Florida's sixty-
seven counties levy the Ninth Cent Fuel Tax on motor fuel.
Counties are not required to, but they may, share the revenue received from the Ninth Cent
Fuel Tax with municipalities. [The County does not share such revenue with the City of
Everglades, the City of Marco Island and the City of Naples.]
Collection and Distribution. FDOR collects the Ninth Cent Fuel Tax and deposits the
revenues in the Ninth Cent Fuel Tax Trust Fund. The 7.3% General Revenue Fund service charge
does not apply to the Ninth Cent Fuel Tax Trust Fund, although a 0.67% collection allowance is
provided for certain suppliers and wholesalers. In addition, FDOR is authorized to deduct certain
administrative costs from the Ninth Cent Fuel Tax Trust Fund. The administrative cost deduction is
limited to 2% of total collections. Proceeds of the Ninth Cent Fuel Tax are distributed monthly.
Eligibility. There are no special eligibility requirements for counties wishing to levy the
Ninth Cent Fuel Tax.
Use of Revenue. Proceeds of the Ninth Cent Fuel Tax flow through the Local Option Fuel
Tax Trust Fund and may be used solely for the purpose of paying the costs and expenses of
establishing, operating and maintaining a transportation system and related facilities, and the cost
of acquisition, construction, reconstruction and maintenance of road and streets.
Collier County Collection Data. The County has imposed the Ninth Cent Fuel Tax since
June 1, 1980, and the levy of the tax will expire on June 1, 2010, but it can be extended by the
County. See "FUTURE VALIDATION" herein for a discussion concerning the possible extension of
the Ninth Cent Gas Tax in the future. [As previously noted, the County has not entered into
an interlocal agreement with any municipality for the sharing of the Ninth Cent Gas Tax
revenues.]
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The table below sets forth the amount of Ninth Cent Gas Tax revenues received by the
County for the fiscal years ended September 30, 1993 through 2002.
COLLIER COUNTY, FLORIDA
NINTH CENT GAS TAX REVENUES
Fiscal Year Ninth Cent Percentage
Ended Gas Tax Increase
September 30 Revenues Received(~) (Decrease)
1993 $973,944 --
1994 982,579 0.9%
1995 1,006,286 2.4
1996 1,065,750 5.9
1997 1,043,736 (2.1)
1998 1,149,120 10.1
1999 1,192,823 3.8
2000 1,273,616 6.8
2001 1,309,818 2.8
2002 1,420,292(2) 8.4
Source: Collier County Finance Department
(1) Unaudited.
(2) Unaudited interim result subject to adjustment as more complete results become available
and as the County's financial statements are subjected to a year-end audit.
Six Cents Local Option Gas Tax and Five Cents Local Option Gas Tax
In General. Each county in the State is authorized to levy a tax, statutorily referred to as
the "Local Option Fuel Tax," of between one cent and eleven cents per net gallon on motor fuel sold
in such county in the form of two separate levies. The first levy is a tax of one to six cents and may
be authorized in a county by an ordinance adopted by a majority vote of the governing body of a
county or by voter approval in a county-wide referendum. The County levies all six cents which levy
was approved by the Gas Tax Ordinances. All of Florida's sixty-seven counties levy this portion of
the Local Option Fuel Tax with sixty-four of the counties levying at the maximum rate of six cents.
This portion of the Local Option Fuel Tax is referred to in the Resolution and herein as the "Six
Cents Local Option Gas Tax." The definition of Six Cents Local Option Gas Tax in the Resolution
includes any additional local option gas tax revenues hereafter available pursuant to the Act and
pledged by the County pursuant to Supplemental Resolution.
The second levy is a tax of one to five cents which may be authorized in a county by an
ordinance adopted by a majority plus one vote of the governing body of a county or by voter approval
in a county-wide referendum. The County levies all five cents which levy was approved by the Gas
Tax Ordinances. This portion of the Local Option Fuel Tax is referred to in the Resolution and
herein as the "Five Cents Local Option Gas Tax." The definition of Five Cents Local Option Gas Tax
in the Resolution includes any additional local option gas tax revenues hereafter available pursuant
to the Act and pledged by the County pursuant to Supplemental Resolution.
Since July 1, 1996, each county is statutorily required (previously the levy had been optional)
to impose a tax, also referred to as the "Local Option Fuel Tax," of six cents per net gallon on diesel
fuel sold in such county. The tax of six cents per net gallon on diesel fuel is automatically levied in
each county even though such county may not have imposed a levy on motor fuel at all or is not
levying the first one to six cents tax on motor fuel at all or at the full six cents. The term "diesel fuel"
23
means all petroleum distillates commonly known as diesel #2 or any other product blended with
diesel or any product placed into the storage supply tank of a diesel-powered motor vehicle.
Collection and Distribution. FDOR collects the Local Option Fuel Tax in each county and
deposits the proceeds into the State's Local Option Fuel Tax Trust Fund. The Local Option Fuel Tax
Trust Fund is subject to a 7.3% charge imposed by the State, representing a share of the cost of
general government of the State. This charge is deducted from the Local Option Fuel Tax Trust
Fund and is deposited in the General Revenue Fund of the State. In addition, FDOR is authorized to
deduct certain administrative costs incurred in collecting, administering, enforcing and distributing
the proceeds of such tax to the counties in an amount not to exceed 2% of total collections from the
Local Option Fuel Tax Trust Fund.
The net proceeds collected from the Local Option Fuel Tax are distributed by FDOR to each
eligible county and the eligible municipalities therein according to a distribution formula determined
at the local level by interlocal agreement between the county and the municipalities within the
county's boundaries representing a majority of the population of the incorporated area within the
county. If no interlocal agreement is established, then the distribution is based on the relative
transportation expenditures of the county and the municipalities therein for the preceding 5 years.
There are three incorporated municipalities in the County, and pursuant to interlocal
agreements, the Six Cents Local Option Gas Tax and the Five Cents Local Option Gas Tax revenues
are divided among the County and these cities as follows:
Recipient
Share of Proceeds of
Six Cents Local Gas Tax
Share of Proceeds of
Five Cents Local Gas Tax
City of Everglades 0.75% 0.75%
City of Marco Island 4.97 5.26
City of Naples 14.19 14.48
Collier County 80.09 79.51
100.00% 100.00%
Any newly incorporated municipality located in a county levying a Local Option Fuel Tax is
entitled to receive a share of the tax revenues. However, the amounts distributed to a new
municipality may not materially or adversely affect the rights of holders of outstanding bonds backed
by the Local Option Fuel Tax, and the amounts distributed to the county and each pre-existing
municipality may not be reduced below the amount necessary to pay principal and interest and
reserves for principal and interest as required under the covenants of any bond resolution
outstanding on the date of incorporation of a new municipality.
Eligibility. In order to be eligible to receive a distribution of funds from the Local Option
Fuel Tax Trust Fund, each county or municipality must have:
(i) reported its finances for its most recently completed fiscal year to the State
Department of Banking and Finance as required by Florida law;
(ii) made provisions for annual postaudits of financial accounts in accordance with
provisions of law;
(iii) levied, as shown on its most recent financial report, ad valorem taxes, exclusive of
taxes levied for debt service or other special millages authorized by the voters, to produce the
revenue equivalent to a millage rate of 3 mills on the dollar based upon 1973 taxable values or, in
order to produce revenue equivalent to that which would otherwise be produced by such 3 mill ad
24
valorem tax, to have received certain revenues from a county (in the case of a municipality), an
occupational license tax, utility tax, or ad valorem tax, or any combination of those four sources;
(iv) certified that persons in its employ as law enforcement officers meet certain
qualifications for employment, and receive certain compensation;
(v) certified that persons in its employ as firefighters meet certain employment
qualifications are eligible for certain compensation;
(vi) certified that each dependent special district that is budgeted separately from the
general budget of such county or municipality has met the provisions for annual postaudit of its
financial accounts in accordance with law; and
(vii) certified to FDOR that it has complied with certain procedures regarding the
establishment of the ad valorem tax millage of the county or municipality as required by law.
Any funds otherwise undistributed because of ineligibility of a county or municipality shall be
distributed to the eligible governments within the applicable county in proportion to other monies
distributed pursuant to Section 336.025, Florida Statutes.
Use of Revenue. Generally, county and municipal governments may use monies received
from the Local Option Fuel Trust Fund only for transportation expenditures, defined as:
(a) public transportation operation and maintenance;
(b) roadway and right-oLway maintenance and equipment and structures used primarily
for the storage and maintenance of such equipment;
(c) roadway and right-of-way drainage;
(d) street lighting;
(e) traffic signs, traffic engineering, signalization and pavement markings;
(f) bridge maintenance and operation; and
(g) debt service and current expenditures for transportation capital projects in the
foregoing program areas including the construction and reconstruction of roads.
Specific to the Five Cent Local Option Gas Tax only, the authorized use of such monies is
further limited to transportation expenses included in the capital improvements element of the
County's comprehensive plan. Such plan must identify the needed public transportation facility, the
estimated facility's costs, including operation and maintenance costs, and that the funding shall
come from the Five Cent Local Option Gas Tax.
A county or municipality may not issue bonds payable from the Local Option Fuel Tax more
frequently than once per year.
The County represents that it has been in compliance with the statutory eligibility
requirements for the Local Option Fuel Tax in the past and that it covenants to do so in the future.
Collier County Revenue Data. The County has levied a Six Cents Local Option Gas Tax
since September 1, 1985 and a Five Cents Local Option Gas Tax since January 1, 1994, and it
25
currently levies the Six Cents Local Option Gas Tax of six cents upon every gallon of motor fuel and
diesel fuel sold in the County and the Five Cents Local Option Gas Tax of five cents upon every
gallon of motor fuel (but not diesel fuel) sold in the County.
Under the current Gas Tax Ordinances, the levy of the Six Cents Local Option Gas
Tax will expire on August 31, 2015. See "FUTURE VALIDATION" herein for a discussion
concerning the possible extension of the Six Cent Local Option Gas Tax in the future.
Under the current Gas Tax Ordinances, the levy of the Five Cents Local Option Gas Tax
will expire on August 31, 2023, but it can be extended by the County.
The following table sets forth the amount of Six Cents Local Option Gas Tax revenues
received by the County for the fiscal years ended September 30, 1993 through 2002.
COLLIER COUNTY, FLORIDA
SIX CENTS LOCAL OPTION GAS TAX REVENUES
County
Fiscal Year Six Cents Local
Ended Option Gas Tax
September 30 Revenues Received(~)
Percentage
Increase
(Decrease)
1993 $4,440,674 --
1994 4,436,660 (0.1%)
1995 4,546,831 2.5
1996 5,118,248 12.6
1997 4,365,244 (14.7)
1998 5,244,625 20.2
1999 4,996,124 (4.7)
2000 5,563,378 11.4
2001 5,813,115 4.5
2002 6,353,390(2) 9.3
Source: Collier County Finance Department
(1) Unaudited.
(2) Unaudited interim result subject to adjustment as more complete results become available
and as the County's financial statements are subjected to a year-end audit.
[Remainder of page intentionally left blank]
26
108
The following table sets forth the amount of Five Cents Local Option Gas Tax revenues
received by the County for the fiscal years ended September 30, 1993 through 2002.
COLLIER COUNTY, FLORIDA
FIVE CENTS LOCAL OPTION GAS TAX REVENUES
County
Fiscal Year
Ended
September 30
Five Cents Local
Option Gas Tax
Revenues ReceivedU~
Percentage
Increase
(Decrease)
1993 $ 0(2) --
1994 2,532,042® --
1995 3,651,186
1996 3,854,252 5.6%
1997 3,768,855 (2.2)
1998 3,931,426 4.3
1999 4,023,839 2.4
2000 4,192,302 4.2
2001 4,436,686 5.8
2002 4,830,335(4) 8.9
Source: Collier County Finance Department
(1) Unaudited.
(2) Collection of the Five Cents Local Option Gas Tax was levied for the first time on January 1,
1994.
(3) This amount reflects the partial year revenues received between January 1, 1994 and
September 30, 1994.
(4) Unaudited interim result subject to adjustment as more complete results become available
and as the County's financial statements are subjected to a year-end audit.
[Remainder of page intentionally left blank]
27
Aggregate Gas Tax Revenues
The table below sets forth the Total Gas Tax Revenues (the sum of the Seventh Cent Gas
Tax, the Ninth Cent Gas Tax, the Six Cents Local Option Gas Tax and the Five Cents Local Option
Gas Tax), the Total Gas Tax Revenues less the Ninth Cent Gas Tax, and the Total Gas Tax
Revenues less the Ninth Cent Gas Tax and less the Six Cents Local Option Gas Tax, all received by
the County for the fiscal years ended September 30, 1993 through 2002.
COLLIER COUNTY, FLORIDA
GAS TAX REVENUES
Total Gas Tax
Less the Ninth
Total Gas Tax Cent Gas Tax
Fiscal Year Percentage Percentage
Ended Revenues Increase Revenues Increase
September 30 Received(~) (Decrease) Received(~) (Decrease)
Total Gas Tax
Less the Ninth
Cent Gas Tax and
Less the Six Cents
Local Option Gas Tax
Percentage
Revenues Increase
Received(l) (Decrease)
1993 $ 6,315,222 -- $ 5,341,278 19.29% $ 900,604 14.50%
1994(2) 8,811,536 39.5% 7,828,957 46.57 3,392,297 276.67
1995 10,306,121 17.0 9,299,835 18.79 4,753,004 40.11
1996 11,104,184 7.7 10,038,434 7.94 4,920,186 3.52
1997 10,276,935 (7.5) 9,233,199 (8.02) 4,867,955 (1.06)
1998 11,489,912 11.8 10,340,792 12.00 5,096,167 4.69
1999 11,576,600 0.8 10,383,777 0.42 5,387,653 5.72
2000 12,472,071 7.7 11,198,455 7.85 5,635,077 4.59
2001 13,070,648 4.8 11,760,830 5.02 5,947,715 5.55
2002 14,246,810(3) 9.0 12,826,518 9.06 6,473,128 8.83
Source: Collier County Finance Department
(1) Unaudited.
(2) These revenues received and percentage increases for 1994 reflect the addition of the Five
Cents Local Option Gas Tax, which was levied for the first time on January 1, 1994.
(3) Unaudited interim result subject to adjustment as more complete results become available
and as the County's financial statements are subjected to a year-end audit.
[Remainder of page intentionally left blank]
28
The amount of Gas Tax Revenues received by the County is dependent upon numerous
factors, including the amount of motor fuel and diesel fuel sold in the State and the County and the
population of the County relative to the population of the State. Furthermore, incorporation of
additional municipalities within the County and the relative population size of the County and
municipalities within the County could affect the amount of Gas Tax Revenues distributable to the
County. Most of the factors that affect the amount of Gas Tax Revenues distributable to the County
are beyond the control of the County.
Pro Forma Debt Service Coverage
The following table sets forth pro-forma debt service coverage ratio for the Series 2003 Bonds
based on the Gas Tax Revenues received by the County for the fiscal year ended September 30, 2002,
and reflecting the currently scheduled expiration of the Ninth Cent Gas Tax in 2010, the currently
schedule expiration of the Six Cents Local Option Gas Tax in 2015 based on the currently authorized
levies of the Gas Taxes, and the estimated Maximum Annual Debt Service for the Series 2003
Bonds?)
PRO-FORMA DEBT SERVICE COVERAGE
Applicable Debt
Service Period
Pro-Forma
Maximum Debt Service
Applicable Gas Annual Debt Coverage for
Tax Revenues Service for the the Applicable
(Fiscal Year Applicable Debt Debt Service
Ended 09/30/02)(~) Services Period(2) Period(2)
Present through June 1, 2010 $14,246,810 $9,497,722.50 1.50x
June 2, 2010 through June 1, 2015 $12,826,518 8,550,212.50 1.50x
June 2, 2015 through June 1, 2023 $6,473,128 4,312,850.00 1.50x
Source:
(1)
(2)
Collier County Finance Department
All Applicable Gas Tax Revenues are based on the Gas Tax Revenues received by the County for the
fiscal year ended September 30, 2002. The Applicable Gas Tax Revenues for the present through
June 1, 2010 are the Total Gas Tax Revenues described herein. The Applicable Gas Tax Revenues for
June 2, 2010 through June 1, 2015 are the Total Gas Tax Revenues less the Ninth Cent Gas Tax
Revenues. The Applicable Gas Tax Revenues for June 2, 2015 through June 1, 2023 are the Total Gas
Tax Revenues less the Ninth Cent Gas Tax Revenues and less the Six Cents Local Option Gas Tax
Revenues.
Estimated Maximum Annual Debt Service for the Series 2003 Bonds was provided by the Financial
Advisor and is structured assuming an estimated principal amount of $106,555,000,an estimated true
interest cost rate of 4.09799%, and a final maturity of June 1, 2023. See "DEBT SERVICE
SCHEDULE" herein.
BOND INSURANCE POLICY
The following information under this heading has been furnished by
"Insurer") for use in this Official Statement.
(the
[TO COME]
THE INFORMATION RELATING TO THE INSURER CONTAINED ABOVE HAS BEEN
FURNISHED BY THE INSURER. NO REPRESENTATION IS MADE BY THE COUNTY OR THE
UNDERWRITERS AS TO THE ACCURACY OR ADEQUACY OF SUCH INFORMATION OR THAT
29
THERE HASNO T BEEN ANY MATERIAL ADVERSE CHANGE IN SUCH INFORMATION
SUBSEQUENT TO THE DATE OF SUCH INFORMATION. NEITHER THE COUNTY NOR THE
UNDERWRITERS HAS MADE ANY INVESTIGATION INTO THE FINANCIAL CONDITION OF
THE INSURER, AND NO REPRESENTATION IS MADE AS TO THE ABILITY OF THE INSURER
TO MEET ITS OBLIGATIONS UNDER THE BOND INSURANCE POLICY.
[RESERVE ACCOUNT INSURANCE POLICY]
Concurrently with the issuance of the Series 2003 Bonds, the Insurer will issue its
Municipal Bond Debt Service Reserve Account Insurance Policy (the "Reserve Account Insurance
Policy") for deposit into the Reserve Account. A general description of the Insurer's financial
condition is contained under the heading "MUNICIPAL BOND INSURANCE" herein. A form of the
Reserve Account Insurance Policy is attached hereto as "APPENDIX E - FORM OF RESERVE
ACCOUNT INSURANCE POLICY." The following information under this heading has been
furnished by the Insurer for use in this Official Statement.
[TO COME]
THE INFORMATION RELATING TO THE INSURER CONTAINED ABOVE HAS BEEN
FURNISHED BY THE INSURER. NO REPRESENTATION IS MADE BY THE COUNTY OR THE
UNDERWRITERS AS TO THE ACCURACY OR ADEQUACY OF SUCH INFORMATION OR THAT
THERE HASNO T BEEN ANY MATERIAL ADVERSE CHANGE IN SUCH INFORMATION
SUBSEQUENT TO THE DATE OF SUCH INFORMATION. NEITHER THE COUNTY NOR THE
UNDERWRITERS HAS MADE ANY INVESTIGATION INTO THE FINANCIAL CONDITION OF
THE INSURER, AND NO REPRESENTATION IS MADE AS TO THE ABILITY OF THE INSURER
TO MEET ITS OBLIGATIONS UNDER THE RESERVE ACCOUNT INSURANCE POLICY.
[Remainder of page intentionally left blank]
30
ESTIMATED SOURCES AND USES OF FUNDS
The table that follows summarizes the estimated sources and uses of funds to be derived
from the sale of the Series 2003 Bonds:
SOURCES:
Principal Amount of Series 2003 Bonds
Other Legally Available Moneys%
TOTAL SOURCES
USES:
Deposit to Construction Fund
Deposit to Escrow Fund%
Costs of Issuance(3)
(1)
(2)
(3)
TOTAL USES
Represents moneys on deposit in certain of the funds and accounts established with respect
to the Prior Bonds.
Moneys on deposit in the Escrow Fund shall be used to pay the principal of, redemption
premium, and interest on the Prior Bonds.
Includes bond insurance policy premium, [reserve account insurance policy premium,]
and Underwriters' discount, legal and other professional fees and miscellaneous costs of
issuance.
[Remainder of page intentionally left blank]
31
Ye ar
Ended June i
2O03
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
DEBT SERVICE SCHEDULE
Series 2003 Bonds
Principal Interest
$ $
Annual
Debt Service
TOTALS $ $ $
[Remainder of page intentionally left blank]
32
INVESTMENT POLICY
The moneys held in the funds and accounts under the Resolution may only be invested in
Authorized Investments. The investment of surplus funds is currently governed by the provisions of
the County's Ordinance No. 87-65 and Resolution No. 95-552 which authorize investments for
surplus public funds in the permitted investments described in Section 218.415, Florida Statutes.
Pursuant to Resolution No. 95-552, the Clerk of the Circuit Court (the "Clerk") has
established a written investment policy for the such surplus funds. The investment policy establishes
guidelines as to the type, maturity, composition and risk relating to the County's investment
portfolio. [Has the County's investment policy been updated since Resolution No. 95-552?]
Permitted investments pursuant to such investment policy include the following:
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Florida Local Government Surplus Trust Fund (State Board of Administration
("SBA"));
US Government Securities - Direct Obligations;
US Federal Agencies - Backed by Full Faith and Credit of US Government;
US Federal Instrumentalities - US Federal Agency Securities Not Backed by Full
Faith and Credit of US Government, except for Student Loan Marketing Association;
Certificates of Deposit - Collateralized with US Government Securities or Federal
Agencies;
Repurchase Agreements;
Fixed Income Mutual Funds - Collatera]ized with US Government Securities or
Federal Agencies;
Dmnestic Bankers Acceptances - Rated "AA" or higher, and inventory based;
Prime Commercial Paper - Rated "A-I" and "P-l," and backed by a letter of credit
rated "AA" or higher;
Tax-Exempt Obligations - Rated "AA" or higher and issued by state or local
governments;
Now Account - Fully collateralized in accordance with Chapter 280, Florida Statutes
(limited to Depository Bank/Concentration Bank);
Variable Rate Securities only if the rate is a straight floating rate that is set in a
direct, as opposed to inverse, relationship to a single index; and
Mortgage Securities (CMOs) only if they are:
a. Issued by US Federal Agencies or US Federal Instrumentalities,
b. Pass the Federal Financial Investment Examination Council (FFIEC) test at
time of purchase, and
c. Have an average life of five (5) years or less and have an absolute final
maturity of no more than fifteen (15) years at zero PSA. The term "zero PSA"
means that all interest and principal payments are guaranteed to be made by
the stated final maturity assuming no prepayments.
Specifically prohibited investments include the following:
Interest only strips of mortgaged backed securities;
Leveraged bonds; '
Structured notes or financings other than mortgage securities that meet the
provisions of the investment policy (permit callable and step up coupons);
Variable rate securities that set a rate based on an inverse relationship to an index;
and
Variable rate debt that sets a rate based on more than a single index.
33
The County continues to hold various U.S. Government agency securities, including Federal
Home Loan Mortgage Corporation and Federal National Mortgage Association collateralized
mortgage obligations that were purchased in 1993. At September 30, 2001, the fair market value of
these investments was approximately $5.9 million, which is 1% above cost. [Do we have a more
up to date fair market value estimate?]
The objective of the investment policy is to match investment cash flow and maturity with
known cash needs and anticipated cash flow requirements (i.e., match assets to liabilities) to the
extent possible. Investment of funds shall have final maturities of not more than five (5) years,
except for:
2.
3.
4.
5.
6.
8o
SBA - no stated final maturity;
Certificates of Deposit - 1 Year;
Repurchase Agreements - 90 Days;
Bankers Acceptances - 120 Days;
Prime Commercial Paper - 120 Days;
Fixed Income Mutual Funds - no stated final maturity. However, underlying US
Government Securities and Federal Agencies have average maturity of i year;
Mortgage Securities - average life of 5 years or less and have an absolute final
maturity of no more than 15 years at zero PSA; and
US Government Securities and Federal Agencies deposited into an escrow account in
connection with the refunding of a County bond issue can have a final maturity of
more than 5 years.
Mortgage securities shall not be used to match liabilities that are reasonably definable as to
amount and disbursement date. Mortgage securities can only be used to invest funds associated
with reserves or liabilities that are not associated with a specifically identified cash flow schedule.
Mortgage securities can be used to prudently enhance the return on the portfolio.
Any and all exceptions to the investment policy require a vote of the majority of Board.
Furthermore, the Board may revise the aforementioned investment policy from time to time.
LEGAL MATTERS
Certain legal matters in connection with the issuance of the Series 2003 Bonds are subject to
an approving legal opinion of Nabors, Giblin & Nickerson, P.A., Tampa, Florida, Bond Counsel,
whose approving opinion (a form of which is attached hereto as "APPENDIX F - FORM OF BOND
COUNSEL OPINION") will be available at the time of delivery of the Series 2003 Bonds. Certain
legal matters will be passed on for the County by David C. Weigel, Esq., County Attorney, and
Bryant, Miller and 0live, P.A., Tampa, Florida, Disclosure Counsel. Schifino & Fleischer, Tampa,
Florida, is acting as counsel to the Underwriters.
Bond Counsel has not been engaged to, nor has it undertaken to, review (1) the accuracy,
completeness or sufficiency of this Official Statement or any other offering material relating to the
Series 2003 Bonds; provided, however, that Bond Counsel will render an opinion to the Underwriters
of the Series 2003 Bonds (upon which opinion only the Underwriters may rely) relating to the
fairness of the presentation of certain statements contained herein under the heading "TAX
EXEMPTION" and certain statements which summarize provisions of the Resolution, the Series
2003 Bonds, and federal tax law, and (2) the compliance with any federal or state law with regard to
the sale or distribution of the Series 2003 Bonds.
34
FUTURE PLANS TO ADD SECURITY
Pursuant to the Resolution, the County may in the future add additional gas taxes to the Gas
Tax Revenues pledged to secure the Series 2003 Bonds. See "APPENDIX C -- Form of Resolution,"
"SECURITY FOR THE BONDS - General" herein and "SECURITY FOR THE BONDS -
Amendment of Resolution without Consent of Bondholders" herein.
Article XII, Section 9(c) of the Constitution of the State of Florida and Section 206.41, Florida
Statutes, an excise or license tax of two cents is imposed on each net gallon of motor fuel first sold in,
removed from or brought into the State of Florida (as referred to herein as the "Constitutional Fuel
Tax").
The County anticipates that it will issue Additional Bonds pursuant to the Resolution in the
approximate amount of $ in the calendar year 2004, and in connection therewith that it
will add the Constitutional Fuel Tax revenues it receives to the "Gas Tax Revenues" pledged to
secure the Bonds pursuant to the Resolution. Presently, no proceeds of the Constitutional Fuel Tax
are pledged to the Bonds.
The Florida Statutes do not explicitly authorize a county to pledge as a source of security for
a bond issue the Constitutional Fuel Tax it receives from the State. Although the County has no
reason to believe it may occur, it is possible that the Florida Legislature could amend the statutorily
authorized uses of the Constitutional Fuel Tax to restrict the uses of the moneys, including without
limitation a prohibition for use of those funds to make debt service payments on local indebtedness
such as the Bonds. If the Legislature did attempt to take such action, the County would vigorously
challenge such an action on the grounds of "impairment of contract" under the Florida Constitution.
However, it is unclear as to whether the County would be successful on such a challenge. The
County is not aware of any prior action of the Florida Legislature that has ever jeopardized the
making of debt service payments on local indebtedness such as the Bonds. Nevertheless, there can
be no assurance given to the holders of any Series 2003 Bonds that the Florida Legislature will not
amend the Act in some manner which would have the affect of repealing, impairing or amending the
rights of the holders of such Series 2003 Bonds with respect to the Constitutional Fuel Tax revenues,
all or some portion of which the County may add to the Gas Tax Revenues pledged to secure the
Bonds. Again, no portion of the Constitutional Fuel Tax is pledged to the Bonds, so the risk
described in this paragraph is irrelevant unless and until it is added as security in the future. The
County is under no obligation to add the Constitutional Fuel Tax it receives as security for the
Bonds.
FUTURE VALIDATION
Subsequent to delivery of the Series 2003 Bonds, it is anticipated that the Board will
consider enacting an ordinance that extends the Ninth Cent Gas Tax and the Sixth Cent Gas Tax.
Assuming that the Board extends either or both levies, the County anticipates that it will issue
Additional Bonds pursuant to the Resolution in the approximate amount of $ in the
calendar year 2004. Prior to issuance of such Additional Bonds, if the Sixth Cent Gas Tax is
extended, the County intends to file ab ond validation under Chapter 75, Florida Statutes, to
validate such Additional Bonds and the source of security therefore, and in particular, the issue as to
whether the County can extend the Sixth Cent Gas Tax beyond 30 years from the initial date of the
levy. The debt service payments for the Series 2003 Bonds, however, will be structured so that the
County is not depending on the extensions of the Sixth Cent Gas Tax or the Ninth Cent Gas Tax to
make any of the debt service payments on the Series 2003 Bonds.
35
Chapter 75, Florida Statutes, provides that any final judgment in a bond validation
proceeding is forever conclusive as to all matters adjudicated against plaintiff and all parties affected
thereby (which may include any taxes or revenues affected, including the extension of the Sixth Cent
Gas Tax). The validity of bonds, or of any taxes or revenues pledged for the payment thereof, that
have been validated pursuant to Chapter 75, Florida Statutes, shall never be called into question in
any court by any person or party. Judgments of validation, however, are not conclusive or binding as
to matters collateral to the issuance of the subject bonds or obligations, or not directly affecting the
validity thereof. Further, such judgments are not binding as to various matters of federal income tax
law.
The source of security that will be the issue of such bond validation is the same source of
security (absent the extensions of the levies of the Ninth Cent Gas Tax and the Sixth Cent Gas Tax)
which secures the Series 2003 Bonds. Nevertheless, with respect to the Series 2003 Bonds, without
the need of a bond validation under Chapter 75, Florida Statutes, Bond Counsel will render an
unqualified opinion that the Series 2003 Bonds, when issued, are valid obligations of the County.
See "APPENDIX B - Form of Bond Counsel Opinion" attached hereto.
LITIGATION
Except as described below, there is no pending or, to the knowledge of the County, any
threatened litigation against the County of any nature whatsoever which in any way questions or
affects the validity of the Series 2003 Bonds, or any proceedings or transactions relating to their
issuance, sale, execution, or delivery, or the adoption of the Resolution, or the pledge of the Pledged
Funds. Neither the creation, organization or existence, nor the title of the present members of the
Board, or other officers of the County is being contested. See, however, "FUTURE VALIDATION"
herein.
The County and five individual County Commissioners are defendants in a lawsuit filed on
June 21, 2001, by Aquaport, L.C., a Florida limited liability company, Norman C. Burke and James
Allen in the United States District Court for the Middle District of Florida in a case styled Aquaport,
L.C., et al. v. Collier County, et al., Case No. 2:01-CV-341-FTM-29DNF. The suit seeks both
equitable and monetary relief and arises from the County's decision on May 22, 2001 to revoke the
site development plan and building permit previously issued to Aquaport, L.C., for a 10 story, 68
unit hotel. The County and the five individual County Commissioners responded to the initial
complaint with a motion to dismiss. Thereafter, the plaintiffs filed a first amended complaint
asserting claims under 42 U.S.C. § 1983 against the County Commissioners individually and against
the County for alleged deprivations of procedural and substantive due process in connection with the
revocation of the site development plan and building permit. In addition, Aquaport, L.C., has sued
for equitable estoppel, claiming that it had vested rights in the building permit and the right to
construct the hotel building in accordance with the previously approved site development plan.
Aquaport, L.C., also seeks a declaratory judgment as to whether it is necessary for it to file a petition
for certiorari and, in the alternative, relief for a petition for writ of certiorari. Aquaport, L.C., claims
that it has damages for a loss of commitment to lease the proposed hotel at a profit of $1,000,000 per
year and claims other damages in the form of increased construction costs and additional financing
charges and other carrying costs including interest. Although no exact damage amount is set forth
in the first amended complaint, it is the County's understanding that Aquaport, L.C., is claiming in
excess of $10,000,000 in damages, with most of those damages being based upon alleged lost profits
from the alleged commitment to lease the proposed hotel. Finally, Mr. Burke and Mr. Allen are
claiming an unspecified amount of emotional distress damages and the plaintiffs are also claiming
attorneys' fees. [The County and the plaintiffs have filed motions for summary judgment
which are pending before the court. While awaiting a ruling on such summary judgment
motions, the County is preparing for trial.] The County denies liability in this case. The
36
County also denies that the plaintiffs are entitled to the reliefthe y demand. At this time, however,
the County is unable to predict whether the plaintiffs will be successful in this action, and if
plaintiffs are successful, the County is unable to predict how its potential liability, if any, might
effect the financial condition of the County. However, whether or not the plaintiffs are successful,
any potential liability will not affect the County's ability to repay the principal and interest on the
Series 2003 Bonds.
The Board has been named as a defendant in a lawsuit filed on January 10, 2003, in the
Circuit Court for the Twentieth Circuit, Collier County. The case is styled [Century Development
of Collier County, Inc., et al. v. Collier County, Case No. __.]. The suit, which also names
the individual members of the Florida Administration Commission as defendants, has been brought
by Century Development of Collier County, Inc., Joseph DeFrancesco, Ricardo A. Haylock and
Mildred Haylock, Francis D. Hussey, Mary Pat Hussey, and Anne Kornfeld, as class representatives
for approximately 400 to 500 persons owning property in that area of Collier County known as North
Belle Meade. The plaintiffs seek monetary relief from the Board for the purported inverse
condemnation of property in North Belle Meade that allegedly results from the Board's adoption of
an ordinance and comprehensive plan amendments. The plaintiffs contend that the ordinance and
comprehensive plan amendments imposed a moratorium on the North Belle Meade properties, the
effect of which was a temporary deprivation of all or substantially all beneficial use of such
properties, including but not limited to certain mining rights. The plaintiffs have not identified the
amount of damages being sought. Based upon the allegations as currently pled, the Board has a
reasonable likelihood of prevailing. At this time, however, the County is unable to predict whether
and how the complaint may be amended and, therefore, is unable to predict whether the plaintiffs
will be successful in this action and, if successful, the extent of the Board's ultimate liability.
The County experiences other claims, litigation, and various legal proceedings which
individually are not expected to have a material adverse effect on the operations or financial
condition of the County, but may, in the aggregate, have a material impact thereon. In the opinion
of the County Attorney, however, except for the litigation described in the preceding paragraph, the
County will either successfully defend such actions or otherwise resolve such matters without any
material adverse consequences on the financial condition of the County.
DISCLOSURE REQUIRED BY FLORIDA BLUE SKY REGULATIONS
Pursuant to Section 517.051, Florida Statutes, as amended, no person may directly or
indirectly offer or sell securities of the County except by an offering circular containing full and fair
disclosure of all defaults as to principal or interest on its obligations since December 31, 1975, as
provided by rule of the Florida Department of Banking and Finance (the "Department"). Pursuant to
Rule 3E-400.003, Florida Administrative Code, the Department has required the disclosure of the
amounts and types of defaults, any legal proceedings resulting from such defaults, whether a trustee
or receiver has been appointed over the assets of the County, and certain additional financial
information, unless the County believes in good faith that such information would not be considered
material by a reasonable investor. The County is not and has not been in default on any bond issued
since December 31, 1975 which would be considered material by a reasonable investor.
TAX EXEMPTION
Opinion of Bond Counsel
In the opinion of Bond Counsel, the form of which is included as "APPENDIX F - FORM OF
BOND COUNSEL OPINION" attached hereto, the interest on the Series 2003 Bonds is excludable
37
from gross income for federal income tax purposes and is not a specific item of tax preference for
federal income tax purposes under existing statutes, regulations, rulings and court decisions.
However, interest on the Series 2003 Bonds is taken into account in determining adjusted current
earnings for purposes of computing the federal alternative minimum tax imposed on corporations
pursuant to the Internal Revenue Code of 1986, as amended (the "Code"). Failure by the County to
comply subsequently to the issuance of the Series 2003 Bonds with certain requirements of the Code,
regarding the use, expenditure and investment of Series 2003 Bonds proceeds and the timely
payment of certain investment earnings to the Treasury of the United States, may cause interest on
the Series 2003 Bonds to become includable in gross income for federal income tax purposes
retroactive to their date of issuance. The County has covenanted in the Resolution to comply with all
provisions of the Code necessary to, among other things, maintain the exclusion from gross income of
interest on the Series 2003 Bonds for purposes of federal income taxation. In rendering its opinion,
Bond Counsel has assumed continuing compliance with such covenants.
Internal Revenue Code of 1986
The Code contains a number of provisions that apply to the Series 2003 Bonds, including,
among other things, restrictions relating to the use or investment of the proceeds of the Series 2003
Bonds and the payment of certain arbitrage earnings in excess of the "yield" on the Series 2003
Bonds to the Treasury of the United States. Noncompliance with such provisions may result in
interest on the Series 2003 Bonds being included in gross income for federal income tax purposes
retroactive to their date of issuance.
Collateral Tax Consequences
Except as described above, Bond Counsel will express no opinion regarding the federal
income tax consequences resulting from the ownership of, receipt or accrual of interest on, or
disposition of, the Series 2003 Bonds. Prospective purchasers of Series 2003 Bonds should be aware
that the ownership of Series 2003 Bonds may result in other collateral federal tax consequences. For
example, ownership of the Series 2003 Bonds may result in collateral tax consequences to various
types of corporations relating to (1) denial of interest deduction to purchase or carry such Series 2003
Bonds, (2) the branch profits tax, and (3) the inclusion of interest on the Series 2003 Bonds in
passive income for certain Subchapter S corporations. In addition, the interest on the Series 2003
Bonds may be included in gross income by recipients of certain Social Security and Railroad
Retirement benefits.
PURCHASE, OWNERSHIP, SALE OR DISPOSITION OF THE SERIES 2003 BONDS AND
THE RECEIPT OR ACCRUAL OF THE INTEREST THEREON MAY HAVE ADVERSE FEDERAL
TAX CONSEQUENCES FOR CERTAIN INDIVIDUAL AND CORPORATE BONDHOLDERS,
INCLUDING, BUT NOT LIMITED TO, THE CONSEQUENCES REFERRED TO ABOVE.
PROSPECTIVE BONDHOLDERS SHOULD CONSULT WITH THEIR TAX SPECIALISTS FOR
INFORMATION IN THAT REGARD.
Florida Taxes
In the opinion of Bond Counsel, the Series 2003 Bonds and the income thereon are exempt
from all present intangible personal property taxes imposed pursuant to Chapter 199, Florida
Statutes.
Other Tax Matters
Interest on the Series 2003 Bonds may be subject to state or local income taxation under
applicable state or local laws in other jurisdictions. Purchasers of the Series 2003 Bonds should
38
consult their own tax advisors as to the income tax status of interest on the Series 2003 Bonds in
their particular state or local jurisdiction.
During recent years, legislative proposals have been introduced in Congress, and in some
cases enacted, that altered certain federal tax consequences resulting from the ownership of
obligations that are similar to the Series 2003 Bonds. In some cases, these proposals have contained
provisions that altered these consequences on a retroactive basis. Such alterations of federal tax
consequences may have affected the market value of obligations similar to the Series 2003 Bonds.
From time to time, legislative proposals are pending which could have an effect on both the federal
tax consequences resulting from ownership of the Series 2003 Bonds and their marketv alue. No
assurance can be given that additional legislative proposals will not be introduced or enacted that
would or might apply to, or have an adverse effect upon, the Series 2003 Bonds.
Tax Treatment of Original Issue Discount
Bond Counsel is further of the opinion that the difference between the principal amount of
the Series 2003 Bonds maturing __ through , inclusive and on __ (collectively the "Discount
Bonds") and the initial offering price to the public (excluding bond houses, brokers or similar persons
or organizations acting in the capacity of Underwriters or wholesalers) at which price a substantial
amount of such Discount Bonds of the same maturity was sold constitutes original issue discount
which is excludable from gross income for federal income tax purposes to the same extent as interest
on the Series 2003 Bonds. Further, such original issue discount accrues actuarially on a constant
interest rate basis over the term of each Discount Bond and the basis of each Discount Bond acquired
at such initial offering price by an initial purchaser thereof will be increased by the amount of such
accrued original issue discount. The accrual of original issue discount may be taken into account as
an increase in the amount of tax-exempt income for purposes of determining various other tax
consequences of owning the Discount Bonds, even though there will not be a corresponding cash
payment. Owners of the Discount Bonds are advised that they should consult with their own
advisors with respect to the state and local tax consequences of owning such Discount Bonds.
Tax Treatment of Bond Premium
The difference between the principal amount of the Series 2003 Bonds maturing on __
through , inclusive and on __ (collectively, the "Premium Bonds") and the initial offering price
to the public (excluding bond houses, brokers or similar persons or organizations acting in the
capacity of underwriters or wholesalers) at which price a substantial amount of such Premium Bonds
of the same maturity was sold constitutes to an initial purchaser amortizable bond premium which is
not deductible from gross income for Federal income tax purposes. The amount of amortizable bond
premium for a taxable year is determined actuarially on a constant interest rate basis over the term
of each Premium Bond. For purposes of determining gain or loss on the sale or other disposition of a
Premium Bond, an initial purchaser who acquires such obligation in the initial offering to the public
at the initial offering price is required to decrease such purchaser's adjusted basis in such Premium
Bond annually by the amount of amortizable bond premium for the taxable year. The amortization
of bond premium may be taken into account as a reduction in the amount of tax-exempt income for
purposes of determining various other tax consequences of owning such Premium Bonds. Owners of
the Premium Bonds are advised that they should consult with their own advisors with respect to the
state and local tax consequences of owning such Premium Bonds.
RATINGS
Fitch Ratings ("Fitch"), Standard & Poor's Ratings Group CS&P") and Moody's Investor's
Service, Inc. ("Moody's") have assigned theirmun icipal bond ratings of "AAA," "AAA" and "Aaa,"
39
respectively, to the Series 2003 Bonds with the understanding that upon delivery of the Series 2003
Bonds, the Bond Insurance Policy will be issued by the Insurer. In addition, Fitch, S&P and Moody's
have assigned underlying ratings of" ," ". ~" and ". ," respectively, without giving any regard
to Series 2003 Bond Insurance Policy. The ratings reflect only the views of said rating agencies and
an explanation of the ratings may be obtained only from said rating agencies. There is no assurance
that such ratings will continue for any given period of time or that they will not be lowered or
withdrawn entirely by the rating agencies, or any of them, if in their judgment, circumstances so
warrant. A downward change in or withdrawal of any of such ratings, may have an adverse effect on
the market price of the Series 2003 Bonds.
VERIFICATION OF MATHEMATICAL COMPUTATIONS
At the time of the delivery of the Series 2003 Bonds ...... a firm
of independent certified public accountants, will deliver a report on the mathematical accuracy of the
computations contained in schedules provided to them and prepared by the on
behalf of the County relating to the sufficiency of the anticipated cash and maturing principal
amounts of and interest on the Federal Securities (as defined in the Prior Resolution) to pay, when
due, the principal, whether at maturity or upon prior redemption, interest and call premium
requirements of the Prior Bonds.
FINANCIAL ADVISOR
The County has retained William R. Hough & Co., Naples, Florida, as Financial Advisor in
connection with the County's financing plans and with respect to the authorization and issuance of
the Series 2003 Bonds. The Financial Advisor is not obligated to undertake and has not undertaken
to make an independent verification or to assume responsibility for the accuracy, completeness, or
fairness of thein formation contained in the Official Statement. The Financial Advisor did not
participate in the underwriting of the Series 2003 Bonds. The Financial Advisor may receive a fee
for bidding investments for certain proceeds of the Series 2003 Bonds.
AUDITED FINANCIAL STATEMENTS
The General Purpose Financial Statements of the County for the fiscal year ending
September 30, 2001, and report thereon of KPMG LLP (the "Independent Certified Public
Accountant") are attached hereto as "APPENDIX B - AUDITED FINANCIAL STATEMENTS FOR
FISCAL YEAR ENDED SEPTEMBER 30, 2001." Such statements speak only as of September 30,
2001. [The Independent Certified Public Accountants have consented to the use thereof
herein.l
The Series 2003 Bonds are payable solely from the Pledged Funds as described in the
Resolution and herein and the Series 2003 Bonds are not otherwise secured by, or payable from, the
general revenues of the County. See "SECURITY FOR THE BONDS" herein. The General Purpose
Financial Statements are presented for general information purposes only.
[For the fiscal year ending September 30, 2002, the County will prepare its annual
financial statements in accordance with GASB No. 34. The Clerk's Office, including the
Finance Department, is implementing such requirements with the assistance of its
consultants to insure that all requirements of GASB No. 34 are satisfied.]
40
UNDERWRITING
The Series 2003 Bonds are being purchased by Morgan Stanley & Co. Incorporated, on behalf
of itself, A.G. Edwards & Sons, Inc. and Raymond James & Associates, Inc. (collectively, the
"Underwriters") at an aggregate purchase price of $ (which equals the principal amount of
the Series 2003 Bonds, plus a premium of $ , less original issue discount of $.
and less Underwriters' discount of $ ). The Underwriters obligations are subject to certain
conditions precedent contained in a contract of purchase entered into with the County, and it will be
obligated to purchase all of the Series 2003 Bonds if any Series 2003 Bonds are purchased. The
Series 2003 Bonds may be offered and sold to certain dealers (including dealers depositing such
Series 2003 Bonds into investment trusts) at prices lower than such public offering prices, and such
public offering prices may be changed, from time to time, by the Underwriters.
CONTINGENT FEES
The County has retained Bond Counsel, the Financial Advisor and Disclosure Counsel with
respect to the authorization, sale, execution and delivery of the Series 2003 Bonds. Payment of the
fees of such professionals and an underwriting discount to the Underwriters are each contingent
upon the issuance of the Series 2003 Bonds.
ENFORCEABILITY OF REMEDIES
The remedies available to the owners of the Series 2003 Bonds upon an event of default
under the Resolution and the Bond Insurance Policy are in many respects dependent upon judicial
actions which are often subject to discretion and delay. Under existing constitutional and statutory
law and judicial decisions, including specifically the federal bankruptcy code, the remedies specified
by the Resolution, the Series 2003 Bonds and the Bond Insurance Policy may not be readily available
or may be limited. The various legal opinions to be delivered concurrently with the delivery of the
Series 2003 Bonds, including Bond Counsel's approving opinion, will be qualified, as to the
enforceability of the remedies provided in the various legal instruments, by limitations imposed by
bankruptcy, reorganization, insolvency or other similar laws affecting the rights of creditors enacted
before of after such delivery. See "APPENDIX C - FORM OF THE RESOLUTION" attached hereto
for a description of events of default and remedies.
CONTINUING DISCLOSURE
The County has covenanted for the benefit of the Bondholders to provide certain financial
information and operating data relating to the County and the Series 2003 Bonds in each year, and
to provide notices of the occurrence of certain enumerated material events. The County has agreed
to file annual financial information and operating data and its audited financial statements with
each nationally recognized municipal securities information repository then approved by the
Securities and Exchange Commission (the "NRMSIRs"), as well as any state information depository
that is established in the State (the "SID"). Currently, there are no such SIDs. The County has
agreed to file notices of certain enumerated material events, when and if they occur, with the
NRMSIRs or the Municipal Securities Rulemaking Board, and with the SIDs, if any.
The specific nature of the financial information, operating data, and of the type of events
which trigger a disclosure obligation, and other details of the undertaking are described in
"APPENDIX G - FORM OF CONTINUING DISCLOSURE CERTIFICATE" attached hereto. The
Continuing Disclosure Certificate shall be executed by the County prior to the issuance of the Series
41
2003 Bonds. These covenants have been made in order to assist the Underwriters in complying with
the continuing disclosure requirements of Rule 15c2-12 promulgated by the Securities and Exchange
Commission (the "Rule").
With respect to the Series 2003 Bonds, no party other than theCo unty is obligated to
provide, nor is expected to provide, any continuing disclosure information with respect to the Rule.
The County has never failed to comply with any prior agreements to provide continuing disclosure
information pursuant to the Rule.
ACCURACY AND COMPLETENESS OF OFFICIAL STATEMENT
The references, excerpts, and summaries of all documents, statutes, and information
concerning the County and certain reports and statistical data referred to herein do not purport to be
complete, comprehensive and definitive and each such summary and reference is qualified in its
entirety by reference to each such document for full and complete statements of all matters of fact
relating to the Series 2003 Bonds, the security for the payment of the Series 2003 Bonds and the
rights and obligations of the owners thereof and to each such statute, report or instrument. Copies
of such documents may be obtained from either the office of the Clerk of the Board of County
Commissioners, Collier County Government Complex, 3301 East Tamiami Trail, Building F, Naples,
Florida 34112, telephone: (941) 774-8383 or the County's Financial Advisor, William R. Hough & Co.,
500 Fifth Avenue South, Suite 509, Naples, Florida 34102-6615, telephone (941) 649-6077.
Any statements made in this Official Statement involving matters of opinion or of estimates,
whether or not so expressly stated are set forth as such and not as representations of fact, and no
representation is made that any of the estimates will be realized. Neither this Official Statement
nor any statement that may have been made verbally or in writing is to be construed as a contract
with the owners of the Series 2003 Bonds.
The appendices attached hereto are integral parts of this Official Statement and must be
read in their entirety together with all foregoing statements.
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AUTHORIZATION OF OFFICIAL STATEMENT
The execution and delivery of this Official Statement has been duly authorized and approved
by the County. At the time of delivery of the Series 2003 Bonds, the County will furnish a certificate
to the effect that nothing has come to their attention which would lead it to believe that the Official
Statement (other than information herein related to the Insurer, the Bond Insurance Policy, the
reserve account insurance policy, DTC, the book-entry only system of registration and the
information contained under the caption "TAX EXEMPTION" as to which no opinion shall be
expressed), as of its date and as of the date of delivery of the Series 2003 Bonds, contains an untrue
statement of a material fact or omits to state a material fact which should be included therein for the
purposes for which the Official Statement is intended to be used, or which is necessary to make the
statements contained therein, in the light of the circumstances under which they were made, not
misleading.
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By:
Chairman, Board of County Commissioners
Collier County, Florida
43
APPENDIX A
GENERAL INFORMATION REGARDING
COLLIER COUNTY, FLORIDA
The following information concerning Collier County, Florida (the "County") has been
supplied by the County and is included only for purposes of supplying general information regarding
the County. The 2003 Bonds are secured by the Pledged Funds as described in the Official
Statement.
General Information
The County was established in 1923 by the legislature of the State of Florida (the "State")
from portions of Lee and Monroe Counties. Its territorial limits, as they presently exist, contain
approximately 2,026 square miles. In terms of land area, it is the largest county in the State. The
County is located on the southwest coast of the Florida peninsula directly west of the Miami-Fort
Lauderdale area. The County has a U.S. Census 2000 population of 251,377. Principal industries
within the County include wholesale and retail trade, tourism, agriculture, forestry, fishing, cattle
ranching and construction. The 2000 U.S. Census showed an increase in the population of the
County of 65% between the years 1990 and 2000.
Board of County Commissioners
The Board of County Commissioners (the "Board") is the principal legislative and governing
body of the County. The Board consists of five County Commissioners; one from each of the five
districts elected for terms of four years. All of the County Commissioners are residents of the
County. The current members of the Board and their expiration of terms of office are:
Commissioner Office Term Expires
Thomas K. Henmng
Donna L. Fiala
James N. Coletta, Jr.
Fred W. Coyle
Frank Halas
Chairman
Vice Chairman
Commissioner
Commissioner
Commissioner
November, 2004
November, 2004
November, 2004
November, 2006
November, 2006
County Manager
The chief administrative official of the County is the County Manager. This official is
directly responsible to the Board for administration and operation of four administrative divisions
under the Board and for execution of all Board policies. The County Manager directs the
administrative divisions for Community Services, Public Services, Public Works and Support
Services. The County Manager is also responsible to the Board for the preparation of budgets and
for the control of expenditures of departments under his supervision throughout the budget year.
Budget Process
The Budget Director, as the County's Budget Officer, begins the budget process each
February for the ensuing fiscal year (October I to September 30) with the distribution of budget
request forms and instructions to departments and division heads. County division heads and
elected officers submit their proposed expenditures beginning in April for compilation by the Budget
Officer no later than July I of each year and each submission is matched against available revenues.
A balanced, proposed budget is presented to the Board for review within 15 days of receipt of an
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assessed value certification from the County's Property Appraiser which is due by July 1. A
tentative budget is thereupon adopted within 15 days.
Subsequent to public hearings, a final budget is adopted. The final budget for the fiscal year
ended September 30, 2003 was adopted by the Board on September __, 2002. Final millage rates are
adopted, usually by late September, and the County's Tax Collector prepares tax bills for mailing on
or after November 1. Upon valid adoption, all expenditures in the budget constitute appropriations,
and amendments to the budget can be made only in accordance with the provisions of Chapter 129,
Florida Statutes, as amended, and such chapter provides that expenditures in excess of total fund
budgets are unlawful.
Annual Audit
Florida law requires that an annual post audit of each county's accounts and records be
completed within six months of the end of each fiscal year by a firm of independent certified public
accountants retained and paid for by the county. The County retained the firm of KPMG LLP to
undertake the audit for the fiscal year ended September 30, 2002. The audit report for fiscal year
2001 which ended September 30, 2001 was completed by KPMG LLP and is included as
APPENDIX B attached to this Official Statement.
Population
The County has experienced rapid population growth in recent decades. The following table
presents historical and projected population growth for the County, the State, and the United States
for the period of 1960 to 2020:
POPULATION TRENDS
Population Population United Population
County Percentage State Percentage States Percentage
Population Increase Population Increase Population Increase
1960 15,753 --- 4,951,560 --- 179,323,175
1970 38,040 141.5% 6,791,418 37.1% 203,302,031 13.4%
1980 85,971 126.0 9,746,961 43.5 226,504,825 11.4
1990 152,099 76.9 12,938,071 32.7 250,410,000 10.6
2000 251,377 65.2 15,982,378 23.5 274,634,000 9.7
2010' 343,500 36.6 18,776,400 17.5 297,716,000 8.4
2020* 441,600 28.6 21,683,300 15.5 322,742,000 8.4
*Estimates on County and State population use medium estimates of population growth.
Source: Collier County, Florida; Bureau of Census; and the University of Florida, College of Business
Administration, Bureau of Economic and Business Research, Division of Population Studies.
Most of the growth of Collier County is due to migration. As of April 1, 2000, the estimated
median age of the County's population was 44.1 years according to the 2001 Florida Statistical
Abstract, University of Florida. The majority of the population is over the age of 18, with the age
category 15-44 comprising 35% of the overall population.
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COLLIER COUNTY EMPLOYMENT
BY MAJOR INDUSTRY
September 30, 2001
Industry
Firms Employee Count(l)
Hotels and Other Lodging
Health Services
Business Services
Finance, Insurance and Real Estate
Amusement and Recreation Services
Services - Other
Services
63 4,259
499 8,619
630 6,507
1,031 6,203
150 3,937
990 4,616
3,363 34,141
Eating and Drinking Places
Food Stores
Auto Dealers and Service Stations
Home Furniture and Furnishings
Retail Trade - Other
Apparel and Accessory Stores
General Merchandise Stores
Building Hardware and Garden
Retail Trade
459 6,482
147 4,254
129 1,942
253 1,411
394 2,486
194 1,523
27 2,289
77 1,431
1,680 21,818
Federal Government 22 647
State Government 43 843
Local Government 21 8,780
Government 86 10,270
Agriculture, Forestry and Fisheries 399 6,119
Construction 1,210 12,825
Manufacturing 222 2,771
Transportation, Communication and
Public Utilities 281 2,418
Wholesale Trade 461 3,070
Mining 6 31
Other 2,579 27,234
Total 7,~0~8 9~463
(1) Average number of people employed in 2001.
Source: Collier County Comprehensive Annual Financial Report for Fiscal Year ended September 20,
2001; Florida Department of Labor & Employment Security; Bureau of Labor Market
Information ES-202 Report.
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COLLIER COUNTY EMPLOYMENT
(1991-2000)
State of
County Florida
Labor Unemployment Unemployment
Year Force Employment Unemployment Rate Rate
1991 74,564 68,784 5,780 6.6 7.3
1992 75,484 68,339 7,145 8.9 8.2
1993 78,654 72,078 6,576 8.5 7.0
1994 80,566 73,979 6,577 8.2 6.8
1995 81,500 75,839 5,661 6.9 5.4
1996 83,140 78,316 4,824 5.8 5.1
1997 87,526 83,115 4,411 5.0 4.8
1998 92,044 88,224 3,820 4.2 4.3
1999 94,862 91,342 3,520 3.7 3.9
2000 100,050 96,548 3,502 3.5 3.6
Source: U.S. Department of Labor, Bureau of Labor Statistics; Division of Employment Security,
Department of Commerce, State of Florida; and Florida Department of Labor and
Employment Security, Bureau of Labor Market Information; 2001 Florida Statistical
Abstract, University of Florida.
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BUILDING PERMIT ACTMTIES IN COLLIER COUNTY
(1991-2000)
Single Multi- Residential
Year Family Units Family Units Valuation(l)
1991 1,664 1,588 $ 255,605
1992 1,949 2,396 402,147
1993 1,702 1,957 385,337
1994 1,964 2,358 449,254
1995 1,957 2,300 501,797
1996 2,318 2,585 447,563
1997 2,718 3,324 567,883
1998 2,804 4,040 826,199
1999 3,765 3,777 931,599
2000 4,065 3,905 1,188,310
(1) Valuation in thousands of dollars.
Source: 2001 Florida Statistical Abstract, University of Florida; Years 1991 through 2000; 2001
University of Florida Bureau of Economic and Business Research, Building Permit Activity
in Florida.
Agriculture
Agriculture is a dominant factor in the economy of the County. Rainfall averages about 52
inches annually with most of the precipitation occurring during the late spring and summer. The
high yearly rainfall and year-round mild temperature enable agriculture to be a productive sector of
the County economy. The agricultural industry represents seven percent of the workforce. Farming
activities are located approximately 40 miles inland primarily centered around the community of
Immokalee. Major crops include tomatoes, peppers, cucumbers, melons and citrus. Beef cattle are
also a significant farming commodity.
Tourism
Tourism is a major factor in the economy of the County. Visitors to the County enjoy its Gulf
of Mexico beaches, golf, tennis and other attractions. Everglades National Park, the United States'
only subtropical National Park, located near Naples, comprises a substantial portion of the County.
Collier-Seminole Park and Corkscrew Swamp are also located nearby. Salt water fishing in the Gulf
of Mexico, as well as fresh water fishing, makes the many lakes and waterways popular vacation
spots. The County is regarded as one of the largest shelling areas in the United States.
Transportation
The County is served by U.S. Highway 41 (otherwise known as the Tamiami Trail) and
Interstate 75, which links Naples to thee ast coast of Florida and intersects U.S. Highway 27,
providing access to the Florida Turnpike. Interstate 75 also provides access to the County from the
North. Greyhound Bus Lines connects the County to all points within the State.
Air service is available at the Naples Airport owned by the City of Naples and covers an area
of approximately 650 acres. The airport has two lighted 5,000 feet hard surfaced runways, each 150
feet wide. Commuter airlines offer regularly scheduled flights to Miami and Tampa. Air service at
the Southwest International Airport near Fort Myers, 35 miles north of Naples, reaches many major
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cities. In addition, the County owns and operates three public airports: the Marco Island Executive
Airport and the Immokalee and Everglades City Airparks.
Educational System
The County school system serves approximately 36,000 students in 37 schools. The public
schools provide a varied adult education program and a special program for pre-school children.
There are several private and parochial schools in the County offering classes from kindergarten
through the twelfth grade. Edison Community College's main campus in Fort Myers, with a branch
campus in Naples, offers technical training as well as college preparation for students. Although not
located within the County, Florida Gulf Coast College, the tenth college in the State University
System, is operating in Lee County, immediately north of the County.
Medical Facilities
Naples Community Hospital, a non-profit, private corporation provides health services to the
residents of the County. It opened as a 50-bed facility in 1956, financed exclusively by contributions
from members of the community. Since 1956, Naples Community Hospital has grown to encompass
approximately 422,000 square feet and include two six-story towers that house Naples Community
Hospital's 408 licensed beds and patient care ancillary services and a two-story support services
wing located between the two towers. Hospital services are also provided in the Carpenter-Briggs
Radiation Therapy Center located across the street from Naples Community Hospital, at the Golden
Gate Urgent Care Center located in leased space approximately seven miles from Naples
Community Hospital, and in several other outpatient facilities that provide urgent care,
rehabilitation, wellness and infusion services. The Cleveland Clinic operates a hospital in the
northern portion of the County.
The Collier County Health Department operates in every community in the County under
the direction of a licensed physician and with a staff of trained specialists, including public health
workers, nurses, sanitarians and clinical psychologists.
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A-6
COLLIER COUNTY
FINANCIAL AND ECONOMIC DATA
(1992-2001)
Fiscal
Year
Population(~)
Per Bank
Percent Capita Deposits Unemployment
Increase Income(~) (000's)(2) Rate(~)
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
168,500
174,664
180,540
186,641
197,400
202,903
210,095
219,685
229,821
251377
4.3% $28,012 $2,067,215 8.9%
3.5 29,307 2,097,133 8.5
3.4 30,201 2,707,107 8.2
3.4 N/A 2,892,389 6.9
5.8 30,201 3,112,346 5.8
2.7 30,906 3,463,731 5.9
3.5 32,878 3,767,516 4.6
4.6 34,830 4,102,784 3.8
4.6 36,210 4,658,978 3.8
9.3 44,862 5,153,782 3.5
N/A = Data not currently available
Source: (1) Collier County Comprehensive Annual Financial Report for Fiscal Year ending
September 30, 2001. Population figures are estimates used by the County on an annual
basis. Actual population according to the 2000 United States Census was 281,422.
(2) Florida Bankers Association.
[Remainder of page intentionally left blank]
A-7
Assessed Valuation
The following table shows the assessed value and taxable value for operating millage in each
of the past nine years.
TOTAL ASSESSED AND TAXABLE VALUE
IN COLLIER COUNTY
(1992-2001)
Ratio of
County Taxable County Taxable Taxable Value
Fiscal Value Real Value Personal Total Total To Total
Year Property Only Property Only Taxable Value(l) AssessedValue(2) Assessed Value
2001 $32,057,961,136 $1,336,930,733 $33,395,002,460 $41,333,321,441 80.79%
2000 26,493,401,264 1,248,512,604 27,742,021,485 33,902,799,963 81.82
1999 23,271,327,045 1,150,774,033 24,422,201,235 29,830,939,079 81.86
1998 20,304,971,514 1,037,538,724 21,342,594,299 25,777,151,470 82.79
1997 18,547,873,169 981,119,415 19,529,075,510 23,436,330,545 83.33
1996 17,146,475,680 936,566,144 18,083,131,561 21,751,280,540 83.14
1995 16,038,210,161 892,359,888 16,930,661,056 20,463,371,228 82.74
1994 15,130,183,723 851,954,071 15,982,193,801 19,387,178,081 82.44
1993 14,506,009,883 806,965,166 15,313,053,072 18,440,257,462 83.04
1992 13,792,228,634 754,068,231 14,546,382,399 17,505,449,830 83.10
(1) These figures include Centrally Assessed property.
(2) Just Value is the Market or Assessed value. From this you subtract exemptions, classified
agricultural property and capped homestead value to arrive at taxable value.
Source: Collier County Property Appraiser's Office.
[Remainder of page intentionally left blank]
A-8
COLLIER COUNTY DEBT STATEMENT
AS OF SEPTEMBER 30, 2001
Direct, Overlapping and Underlying Debt
General Non-Self Sell
Obligation Supporting Supporting
Debt Debt Debt
Collier County Direct Debt
1996 Public Parks GO Bonds
1973 Race Track Certificates
1992 Capital Improvement Refunding Revenue
Bonds
1994 Capital Improvement Refunding Revenue
Bonds
1995 Road Improvement Revenue Refunding Bonds
1996 Guaranteed Entitlement Refunding Revenue
Bonds
1997 Special Obligation Revenue Bonds
1997 Naples Park Area Stormwater Improvement
Assessment Bonds
State Revolving Fund Loan CS120597070
State Revolving Fund Loan CS120597090
State Revolving Fund Loan
Bank of America Line of Credit
Commercial Paper Loans Payable
Capitalized Lease Obligations
Arbitrage Rebate Liability
Accrued Compensated Absences
1982 Goodland Water and Sewer Revenue Bonds
1990 Collier County Sewer Assessment Bonds
1992 Water and Sewer Revenue Bonds
1994 Water and Sewer Refunding Revenue Bonds
1994 Taxable Water and Sewer Refunding Revenue
Bonds
1999A Water and Sewer Refunding Revenue Bonds
1999B Water and Sewer Refunding Revenue Bonds
Total Direct Debt
$1,560,000
$685,000
6,030,000
25,100,000
3,870,000
705,000
4,080,OO0
3,304,921
21,934,000
1,470,880
330,936
10,442,334
$1,560,000
$1,530,000
9,178,993
12,019,174
17,552,933
109,000
440,000
860,000
38,285,000
16,315,000
6,410,000
20,920,000
$77,953,071 $123,620,100
Overlapping School Board Debt
Certificates Of Participation, Series 1992, 1994,
1995
School Bonds, Series 1997A and 1998A
Notes Payable
Accrued Compensation Absences
Total Overlapping Debt
$124,070,000
11,620,000
32,535,000
23,786,322
0 $192,011,322
$ 0
A-9
Underlying Debt
General Non-Self Sell
Obligation Supporting Supporting
Debt Debt Debt
City of Naples
1991 Water and Sewer Revenue Refunding Bonds
1992 Public Service Tax Revenue Refunding Bonds
1993 Public Service Tax Revenue Refunding
Bonds (City Dock Funds)
State Revolving Fund Subordinate Loan
State Revolving Fund Subordinate Loan (Stormwater
Fund)
1998 Public Service Tax Revenue Bonds
1998 Tax Increment Financing Revenue Bonds
2000 General Obligation Bonds
2001 Public Service Tax Refunding Revenue Bonds
2001 Public Service Tax Revenue Bonds
2001 Water and Sewer Revenue Refunding Bonds
$8,270,000
$2,547,502
1,982,927
3,000,000
9,845,000
$13,221,378
131,713
21,793,465
3,156,185
605,000
7,247,701
City of Marco Island
2000B Florida Municipal Loan Council Revenue Bonds
1992 Fire Station Capital Lease
619,393
646,256
City of Everglades
1981 Water Revenue Bonds
1973 Sewer Revenue Bonds
1971 Sewer Revenue Bonds
Total Underlying Debt
$8,270,000 $ 17,375,429
488,000
12,000
148,000
$ 48,069,091
Total Direct, Overlapping and Underlying Debt $9,830,000 $287,339,822 $171,689,191
Source: Collier County, Florida, Comprehensive Annual Report for the Fiscal Year ended September
30, 2001 and Comprehensive Annual Financial Reports for the City of Naples, the City of
Marco Island and City of Everglades, each dated September 30, 2001; Notes to the Financial
Statements dated June 30, 2001 for the School Board of Collier County, Florida.
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A-10
COLLIER COUNTY, FLORIDA
COMPARATIVE RATIOS OF BONDED DEBT
TO TOTAL ASSESSED VALUATION AND
PER CAPITA INDEBTEDNESS
2000 U.S. Census Population
Total Assessed Valuation [2001]
Direct General Obligation Debt
a) As a Percent of Assessed Valuation
b) Per Capita
Direct and Overlapping General Obligation Debt
a) As a percent of Assessed Valuation
b) Per Capita
Direct Non-Self Supporting Revenue and Direct General Obligation Debt
a) As a percent of Assessed Valuation
b) Per Capita
Direct and Overlapping General Obligation and
Non-Self Supporting Revenue Debt
a) As a percent of Assessed Valuation
b) Per Capita
281,422
$41,333,321,441
$1,560,000
0.004%
$5.54
$1,560,000
0.004%
$5.54
$79,513,071
0.192%
$282.54
$271,524,393
0.657%
$964.83
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A-Il
The following table contains the property tax rates for the tax years 1991 through 2000.
COLLIER COUNTY, FLORIDA
PROPERTY TAX RATES - ALL DIRECT AND OVERLAPPING GOVERNMENTS(I)
(1992-2001)
(Unaudited)
COLLIER COUNTY
OTHER
Special Debt Capital
Fiscal General Revenue Service Pr~ects School Independent
Year Fund Fund Funds Fund Total District Districts Total
1992 3.3295 0.7664 0.1126 0.6580 4.8665 7.9570 1.4629 14.2864
1993 3.2580 0.7726 0.1094 0.5474 4.6874 8.0000 1.4455 14.1329
1994(2) 3.6729 0.7823 0.1106 0.0000 4.5658 8.0860 1.5648 14.2166
1995 3.6028 0.6834 0.1062 0.0000 4.3924 8.3227 1.5028 14.2179
1996 3.4918 0.7091 0.0989 0.0000 4.2998 8.6000 1.5353 14.4351
1997 3.7266 0.7567 0.0490 0.0000 4.5323 8.6918 1.5420 14.7661
1998 3.6838 0.7604 0.0452 0.0000 4.4894 8.4298 1.5941 14.5133
1999 3.5540 0.6689 0.0420 0.0000 4.2649 8.5173 1.4801 14.2623
2000 3.5086 0.6419 0.0355 0.0000 4.1860 7.7661 1.4654 13.4175
2001 3.5050 0.6624 0.0318 0.0000 4.1992 7.7334 1.4607 13.3933
(1)
(2)
Source:
Basis for property tax rates is i mill per $1,000 of assessed value. Property is assessed as of
January 1 and taxes based on those assessments are levied according to the tax rate in effect
that tax year and become due on November 1. Therefore, assessments and tax levies
applicable to a certain tax year are collected in the fiscal year ending during the following
calendar year.
Beginning with fiscal year 1994 the millage rates for capital projects are included in the
General Fund millage rate.
Collier County Comprehensive Annual Financial Report for Fiscal Year ending
September 30, 2001.
A-12
APPENDIX B
AUDITED FINANCIAL STATEMENTS FOR
FISCAL YEAR ENDED SEPTEMBER 30, 2001
APPENDIX C
FORM OF THE RESOLUTION
APPENDIX D
FORM OF BOND INSURANCE POLICY
APPENDIX E
[FORM OF RESERVE ACCOUNT INSURANCE POLICY]
APPENDIX F
FORM OF BOND COUNSEL OPINION
APPENDIX G
FORM OF CONTINUING DISCLOSURE CERTIFICATE
J:kBondsX439901NPOS-3.doc
January 28, 2003
EXHIBIT C
FORM OF GUARANTY AGREEMENT
GUARANTY AGREEMENT
GUARANTY AGREEMENT dated as of ., 200_ by and between
, a public body corporate organized and existing under the laws of the State of (the
"Obligor"); and AMBAC ASSURANCE CORPORATION ("Ambac"), a Wisconsin domiciled stock
insurance company.
WITNESSETH:
WHEREAS, the Obligor has or will issue_(the "Obligations"); and
WHEREAS, Ambac will issue its Surety Bond (the "Surety Bond"), substantially in the form set
forth in Annex A to this Agreement, guaranteeing certain payments by the Obligor subject to the terms
and limitations of the Surety Bond; and
WHEREAS, to induce Ambac to issue the Surety Bond, the Obligor has agreed to pay the
premium for such Surety Bond and to reimburse Ambac for all payments made by Ambac under the
Surety Bond from Legally Available Funds, all as more fully set forth in this Agreement; and
WHEREAS, the Obligor understands that Ambac expressly requires the delivery of this
Agreement as part of the consideration for the execution by Ambac of the Surety Bond; and
NOW, THEREFORE, in consideration of the premises and of the agreements herein contained
and of the execution of the Surety Bond, the Obligor and Ambac agree as follows:
ARTICLE I
DEFINITIONS; SURETY BOND
Section 1.01. Definitions. Except as otherwise expressly provided herein or unless the context otherwise
requires, the terms which are capitalized herein shall have the meanings specified in Annex B hereto.
Section 1.02. Surety Bond.
(a) Ambac will issue the Surety Bond in accordance with and subject to the terms and conditions of the
Commitment.
(b) The maximum liability of Ambac under the Surety Bond and the coverage and term thereof shall be
subject to and limited by the Surety Bond Coverage and the terms and conditions of the Surety Bond.
(c) Payments made under the Surety Bond will reduce the Surety Bond Coverage to the extent of that
payment, provided that the Surety Bond Coverage shall be automatically reinstated to the extent of the
reimbursement of principal by the Obligor of any payment made by Ambac. Ambac shall notify the
Paying Agent in writing no later than the fifth (5th) day following the reimbursement by the Obligor that
the Surety Bond has been reinstated to the extent of such reimbursement.
Section 1.03. Premium. In consideration of Ambac agreeing to issue the Surety Bond hereunder, the
Obligor hereby agrees to pay or cause to be paid from Legally Available Funds the premium set forth in
the Commitment.
Section 1.04. Certain Other Expenses. The Obligor will pay all reasonable fees and disbursements of
Ambac's counsel related to any modification of this Agreement or the Surety Bond.
ARTICLE II
REIMBURSEMENT OBLIGATIONS OF OBLIGOR AND SECURITY THEREFORE
Section 2.01. Reimbursement for Payments Under the Surety Bond and Expenses.
(a) The Obligor will reimburse Ambac, from Legally Available Funds within the Reimbursement Period,
without demand or notice by Ambac to the Obligor or any other person, to the extent of each Surety Bond
Payment with interest on each Surety Bond Payment from and including the date made to the date of the
reimbursement by the Obligor at the Effective Interest Rate. The Obligor agrees that it shall make
monthly level principal repayments for each Surety Bond Payment during the Reimbursement Period.
Interest on each Surety Bond Payment shall be paid monthly during the Reimbursement Period. To the
extent that interest payments due hereunder are not paid on a monthly basis, or are not paid as each
principal repayment is made, interest shall accrue on such unpaid amounts at a rate equal to the Effective
Interest Rate.
(b) The Obligor also agrees to reimburse Ambac, from Legally Available Funds, immediately and
unconditionally upon demand for all reasonable expenses incurred by Ambac in connection with the
Surety Bond and the enforcement by Ambac of the Obligor's obligations under this Agreement together
with interest on all such expenses from and including the date which is 30 days from the date a statement
for such expenses is received by the Obligor incurred to the date of payment at the rate set forth in
subsection (a) of this Section 2.01.
Section 2.02. Allocation of Payments. Ambac and the Obligor hereby agree that each repayment of
principal received by Ambac from or on behalf of the Obligor as a reimbursement to Ambac as required
by Section 2.01(a) hereof shall be applied to reinstate all or a portion of the Surety Bond Coverage to the
extent of such repayment. Any interest payable pursuant to Section 2.01(a) hereof shall not be applied to
the reinstatement of any portion of the Surety Bond Coverage.
Section 2.03. Security for Payments; Instruments of Further Assurance. To the extent, but only to the
extent, that the Resolution pledges to the Owners or any paying agent therefor, or grants a security
interest or lien in or on any collateral property, revenue or other payments ("Collateral and Revenues") in
order to secure the Obligations or provide a source of payment for the Obligations, the Obligor hereby
grants to Ambac a security interest in or lien on, as the case may be, and pledges to Ambac all such
Collateral and Revenues as security for payment of all amounts due hereunder, which security interest,
lien and/or pledge created or granted under this Section 2.03 shall be subordinate only to the interests of
the Owners and any paying agent therefor in such Collateral and Revenues. The Obligor agrees that it
will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, any and all financing statements, if applicable, and all other further instruments as may be
required by law or as shall reasonably be requested by Ambac for the perfection of the security interest, if
any, granted under this Section 2.03 and for the preservation and protection of all rights of Ambac under
this Section 2.03.
Section 2.04. Unconditional Obligation. The obligations of the Obligor hereunder are absolute and
unconditional and will be paid or performed strictly in accordance with this Agreement, irrespective off
(a) any lack of validity or enforceability of, or any amendment or other modification of, or waiver with
respect to the Resolution or the Obligations;
(b) any exchange, release or nonperfection of any security interest in property securing the Obligations or
this Agreement or any obligations hereunder;
(c) any circumstances which might otherwise constitute a defense available to, or discharge of, the
Obligor with respect to the Obligations;
(d) whether or not such obligations are contingent or matured, disputed or undisputed, liquidated or
unliquidated.
ARTICLE III
EVENTS OF DEFAULT; REMEDIES
Section 3.01. Events of Default. The following events shall constitute Events of Default hereunder:
(a) The Obligor shall fail to pay to Ambac any amount payable under Sections 1.04 and 2.01 hereof and
such failure shall have continued for a period in excess of the Reimbursement Period;
(b) Any material representation or warranty made by the Obligor hereunder or under the Resolution or
any statement in the application for the Surety Bond or any report, certificate, financial statement or other
instrument provided in connection with the Commitment, the Surety Bond or herewith shall have been
materially false at the time when made;
(c) Except as otherwise provided in this Section 3.01, the Obligor shall fail to perform any of its other
obligations under this Agreement, provided that such failure continues for more than thirty (30) days after
receipt by the Obligor of notice of such failure to perform;
(d) The Obligor shall (i) voluntarily commence any proceeding or file any petition seeking relief under
the United States Bankruptcy Code or any other Federal, state or foreign bankruptcy, insolvency or
similar law, (ii) consent to the institution of, or fail to controvert in a timely and appropriate manner, any
such proceeding or the filing of any such petition, (iii) apply for or consent to the appointment of a
receiver, paying agent, custodian, sequestrator or sirnilar official for the Obligor or for a substantial part
of its property, (iv) file an answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due or (vii) take action for the
purpose of effecting any of the foregoing; or
(e) An involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of the Obligor, or of a substantial part of its property,
under the United States Bankruptcy Code or any other Federal, state or foreign bankruptcy, insolvency or
similar law or (ii) the appointment of a receiver, paying agent, custodian, sequestrator or similar official
for the Obligor or for a substantial part of its property; and such proceeding or petition shall continue
undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall
continue unstayed and in effect for thirty (30) days.
Section 3.02. Remedies. If an Event of Default shall occur and be continuing, then Ambac may take
whatever action at iaw or in equity may appear necessary or desirable to collect the amounts then due and
thereafter to become due under this Agreement or any related instrument and enforce any obligation,
agreement or covenant of the Obligor under this Agreement; provided, however, that Ambac may not take
any action to direct or require acceleration or other early redemption of the Obligations or adversely affect
the rights of the Owners. All rights and remedies of Ambac under this Section 3.02 are cumulative and the
exercise of any one remedy does not preclude the exercise of one or more of the other available remedies.
ARTICLE IV
SETTLEMENT
Ambac shall have the exclusive right to decide and determine whether any claim, liability, suit or
judgment made or brought against Ambac, the Obligor or any other party on the Surety Bond shall or
shall not be paid, compromised, resisted, defended, tried or appealed, and Amhac's decision thereon, if
made in good faith, shall be final and binding upon the Obligor. An itemized statement of payments made
by Ambac, certified by an officer of Ambac, or the voucher or vouchers for such payments, shall be prima
facie evidence of the liability of the Obligor, and if the Obligor fails to reimburse Ambac, pursuant to
subsection (b) of Section 2.01 hereof, upon the receipt of such statement of payments, interest shall be
computed on such amount from the date of any payment made by Ambac at the rate set forth in
subsection (a) of Section 2.01 hereof.
ARTICLE V
MISCELLANEOUS
Section 5.01. Computations. All computations of premium, interest and fees hereunder shall be made on
the basis of the actual number of days elapsed over a year of 360 days.
Section 5.02. Exercise of Rights. No failure or delay on the part of Ambac to exercise any right, power
or privilege under this Agreement and no course of dealing between Ambac and the Obligor or any other
party shall operate as a waiver of any such right, power or privilege, nor shall any single or partial
exercise of any such right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which Ambac would otherwise have pursuant to
law or equity. No notice to or demand on any party in any case shall entitle such party to any other or
further notice or demand in similar or other circumstances, or constitute a waiver of the right of the other
party to any other or further action in any circumstances without notice or demand.
Section 5.03. Amendment and Waiver. Any provision of this Agreement may be amended, waived,
supplemented, discharged or terminated only with the prior written consent of the Obligor and Ambac.
The Obligor hereby agrees that upon the written request of the Paying Agent, Ambac may make or
consent to issue any substitute for the Surety Bond to cure any ambiguity or formal defect or omission in
the Surety Bond which does not materially change the terms of the Surety Bond nor adversely affect the
rights of the Owners, and this Agreement shall apply to such substituted Surety Bond. Ambac agrees to
deliver to the Obligor and to the company or companies, if any, rating the Obligations, a copy of such
substituted Surety Bond.
Section 5.04. Successors and Assigns; Descriptive Headings.
(a) This Agreement shall bind, and the benefits thereof shall inure to, the Obligor and Ambac and their
respective successors and assigns; provided, that the Obligor may not transfer or assign any or all of its
rights and obligations hereunder without the prior written consent of Ambac.
(b) The descriptive headings of the various provisions of this Agreement are inserted for convenience of
reference only and shall not be deemed to affect the meaning or construction of any of the provisions
hereof.
Section 5.05. Other Sureties. If Ambac shall procure any other surety to reinsure the Surety Bond, this
Agreement shall inure to th~ benefit of such other surety, its successors and assigns, so as to give to it a
direct right of action against the Obligor to enforce this Agreement, and "Ambac," wherever used herein,
shall be deemed to include such reinsuring surety, as its respective interests may appear.
Section 5.06. Signature on Obligation. The Obligor's liability shall not be affected by its failure to sign
the Surety Bond nor by any claim that other indemnity or security was to have been obtained nor by the
release of any indemnity, nor the return or exchange of any collateral that may have been obtained.
Section 5.07. Waiver. The Obligor waives any defense that this Agreement was executed subsequent to
the date of the Surety Bond, admitting and covenanting that such Surety Bond was executed pursuant to
the Obligor's request and in reliance on the Obligor's promise to execute this Agreement.
Section 5.08. Notices, Requests, Demands. Except as otherwise expressly provided herein, all written
notices, requests, demands or other communications to or upon the respective parties hereto shall be
deemed to have been given or made when actually received, or in the case of telex or telecopier notice
sent over a telex or a telecopier machine owned or operated by a party hereto, when sent, addressed as
specified below or at such other address as either of the parties hereto or the Paying Agent may hereafter
specify in writing to the others:
If to the Obligor: >
If to the Paying Agent: >
If to Ambac:
Ambac Assurance Corporation
One State Street Plaza
17th Floor
New York, New York 10004
Attention: General Counsel
Section 5.09. Survival of Representations and Warranties. All representations, warranties and
obligations contained herein shall survive the execution and delivery of this Agreement and the Surety
Bond.
Section 5.10. Governing Law. This Agreement and the rights and obligations of the parties under this
Agreement shall be governed by and construed and interpreted in accordance with the laws of the State.
Section 5.11. Counterparts. This Agreement may be executed in any number of copies and by the
different parties hereto on the same or separate counterparts, each of which shall be deemed to be an
original instrument. Complete counterparts of this Agreement shall be lodged with the Obligor and
Ambac.
Section 5.12. Severability. In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be
duly executed and delivered as of the date fa'st above written.
[OBLIGORI
(Seal)
Attest: B y
Title: Title:
AMBAC ASSURANCE CORPORATION
Attest: By
Title: Title:
ANNEX A - SURETY BOND
ANNEX B
108
DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly provided herein or unless the context
otherwise requires, all capitalized terms shall have the meaning as set out below.
"Agreement" means this Guaranty Agreement.
"Ambac" has the same meaning as set forth in the first paragraph of this Agreement.
"Collateral and Revenues" has the same meaning as set forth in Section 2.03 hereof.
"Commitment" means the Ambac Commitment for Surety Bond in the form attached hereto as Annex C.
"Debt Service Payments" means those payments required to be made by the Obligor which will be
applied to payment of principal of and interest on the Obligations.
"Effective Interest Rate" means the lesser of the Reimbursement Rate or the maximum rate of interest
permitted by then applicable law; provided, however, that the Effective Interest Rate shall in no event be
less than the interest rate on the Obligations.
"Event of Default" shall mean those events of default set forth in Section 3.01 of this Agreement.
"Legally Available Funds" means any moneys legally available to the Obligor for the payment of its.
obligations.
"Obligations" has the same meaning as set forth in the second paragraph of this Agreement.
"Obligor" has the same meaning as set forth in the first paragraph of this Agreement.
"Owners" means the registered owner of any Obligation as indicated in the books maintained by the
applicable paying agent, the Obligor or any designee of the Obligor for such purpose. The term "Owner"
shall not include the Obligor or any person or entity whose obligation or obligations by agreement
constitute the underlying security or source of payment for the Obligations.
"Paying Agent" means
"Reimbursement Period" means, with respect to a particular Surety Bond Payment, the period
commencing on the date of such Surety Bond Payment and ending 12 months following such Surety
Bond Payment.
"Reimbursement Rate" means Citibank's prime rate plus two (2) percent per annum, as of the date of
such Surety Bond Payment, said "prime rate" being the rate of interest announced from time to time by
Citibank, New York, New York, as its prime rate. The rate of interest shall be calculated on the basis of a
360 day year.
"Resolution" means
"State" means the State of
"Surety Bond" means the Surety Bond issued by Ambac substantially in the form attached to this
Agreement as Annex A.
"Surety Bond Coverage" means the amount available at any particular time to be paid to the Paying
Agent under the terms of the Surety Bond, which amount shall never exceed $
"Surety Bond Payment" means an amount equal to the Debt Service Payment less (i) that portion of the
Debt Service Payment paid by the Obligor, and (ii) other funds legally available to the Paying Agent for
payment to the Owners, all as certified by the Paying Agent in a demand for payment rendered pursuant
to the terms of the Surety Bond.
ANNEX C
COMMITMENT
Ambac A~surance Corporation
One State Street Plaza
New York, NY 10004
212.665.0340
A member of Ambac Financial Group, Inc.
COMMITMENT FOR SURETY BOND
Obligor: COLLIER COUNTY, FLORIDA
Commitment Number: SB24320
Commitment Date: February 4, 2003
Expiration Date: May 2, 2003
Obligations: $106,555,000, Gas Tax Revenue Bonds, Series 2003, dated their Date of Delivery maturing
on June 1, 2023
Surety Amount: $5,012,225'
Insurance premium: 2.00% of the surety amount.
Ambac Assurance Corporation (Ambac) A Wisconsin Stock Insurance Corporation hereby commits to
issue .a Surety Bond (the "Commitment") relating to the Debt Service Reserve Fund for the above-described
debt obligations (the "Obligations"), substantially in the form attached hereto, subject to the terms and
conditions contained herein or added hereto (see conditions set forth herein).
To extend this Commitment after the expiration date set forth above, an oral (subsequently confirmed in
writing) or written request for renewal must be submitted to Ambac at least one business day prior to such
expiration date. Ambac reserves the right to refuse to grant a renewal or may renew this Commitment subject
to additional terms and conditions.
The Surety Bond (the "Surety") shall be issued if the following conditions are satisfied:
1. Ambac surety is for only half the Debt Service Reserve Requirement.
2. Ambac shall receive an opinion of counsel or a certificate of an officer of the Obligor or ultimate obligor
stating that the information supplied to Ambac in order to obtain the Surety and the documents to be
executed and delivered in connection with the issuance and sale of the Obligations do not contain any
untrue or misleading statement of a material fact and do not fail to state a material fact required to be
stated therein or necessary in order to make the information contained therein not misleading.
3. No event shall occur which would permit any purchaser of the Obligations, otherwise required, not to be
requked to purchase the Obligations on the date scheduled for the issuance and delivery thereof.
4. There shall be no material change in or affecting the Obligations, the Obligor or ultimate obligor
(including, but not limited to, the security for the Obligations or the proposed debt service structure for
the Obligations), the Official Statement, if any (or any similar disclosure document), including any
' Subject to change, with Ambac's approval.
o
financial statements therein contained, the financing documents or any legal opinions to be executed and
delivered in connection with the issuance and sale of the Obligations, or any other information
submitted to Ambac in order to obtain the Surety, from the descriptions or schedules thereof heretofore
provided to Ambac at any time prior to the issuance of the Obligations and there shall not have occurred
or come to the attention of the Obligor or purchaser any material change of fact or law adverse to the
interests of Ambac, unless approved by Ambac in writing.
Unless expressly waived in whole or in part by Ambac, the financing documents shall contain a) the
terms and provisions provided in the Ambac STANDARD PACKAGE transmitted herewith, and b) any
provisions or comments given orally by Ambac.
Ambac will prepare, and the Obligor will execute, a Guaranty Agreement in the form (with such
revisions of Ambac and the Obligor agree to) contained in the Standard Package.
NO LATER THAN FIVE (5) BUSINESS DAYS PRIOR TO CLOSING, Ambac shall be provided
with:
a) the final debt service schedule; and
b) proposed copies of all financing documents; and
c) the proposed official statement (or any similar disclosure document); and
d) the proposed various legal opinions delivered in connection with the issuance and sale of the
Obligations, including, without limitation, the unqualified approving opinion of bond counsel
rendered by a law f'trm acceptable to Ambac. The form of bond counsel's approving opinion
must be acceptable to Ambac. The form of bond counsel's approving opinion shall indicate that
the Obligor must comply with certain covenants uader and pursuant to the Intemal Revenue
Code of 1986, as amended and that the Obligor has the legal power to comply with such
covenants. Ambac shall also be provided with executed copies of all financing documents,
including but not limited to the Official Statement (or any similar disclosure document) and the
various legal opinions rendered. The executed opinion of bond counsel shall be addressed to
Ambac or in lieu thereof, a letter shall be provided to Ambac to the effect that Ambac may rely on
such opinion as if it were addressed to Ambac and such letter shall be delivered with an executed
opinion; and
e) any provisions of the Purchase Contract or Bond Purchase Agreement referencing Ambac or the
Obligor of the Surety in general. If such provisions are not received in a timely manner or if
provisions are insetted in the Purchase Contract or Bond Purchase Agreement without Ambac's
knowledge, compliance with such provisions may not be possible; and
f) a letter from bond counsel or counsel to the purchaser or otherwise from another counsel
acceptable to Ambac to the effect that the financing documents, the Official Statement (or any
similar disclosure documen0 and the various legal opinions executed and delivered in connection
with the issuance and sale of the Obligations, are substantially in the forms previously submitted
to Ambac for review, with only such amendments, modifications or deletions as may be approved
by Ambac; and
g) a copy of any insurance policy, surety bond, guaranty or indemnification or any other policy,
contract or agreement which provides for payment of all or any portion of the debt, the costs of
reconstruction, the loss of business income or in any way secures, ensures or enhances the income
stream anticipated to pay the Obligations.
8. Evidence of wire transfer of an amount equal to the payment for the Surety at the time of the issuance
and delivery of the Obligations.
9. An opinion addressed to Ambac by counsel acceptable to Ambac that the Guaranty Agreement is a
legal, valid and binding obligation of the Obligor thereof, enforceable in accordance with its terms.
EXHIBIT D
FORM OF ESCROW DEPOSIT AGREEMENT
ESCROW DEPOSIT AGREEMENT
ESCROW DEPOSIT AGREEMENT, dated as of , 2003, by and
between COLLIER COUNTY, FLORIDA (the "County"), and FIFTH THIRD BANK
(the "Escrow Agent"), a national banking association organized and existing under the laws
of the United States of America, having its designated corporate trust office in Cincinnati,
Ohio, as escrow agent hereunder.
WHEREAS, the County has heretofore issued its Collier County, Florida Road
Improvement Refunding Revenue Bonds, Series 1995 (the "Prior Bonds") pursuant to
Resolution No. 80-114 adopted on June 10, 1980, as amended and supplemented (the "Prior
Resolution"); and
WHEREAS, the County has determined it is in its best interests to refund all of the
Prior Bonds; and
WHEREAS, the County has determined to issue its Collier County, Florida Gas Tax
Revenue Bonds, Series 2003 (the "Series 2003 Bonds") pursuant to Resolution No. ,
adopted on February 11, 2003, a portion of the proceeds of which Series 2003 Bonds,
together with other legally available moneys of the County, will be used, other than a cash
deposit, to purchase certain United States Treasury obligations in order to provide payment
for the Prior Bonds and discharge and satisfy the pledge of and lien on the Gas Taxes (as
defined in the Prior Resolution) under the Prior Resolution in regard to such Prior Bonds; and
WHEREAS, the issuance of the Series 2003 Bonds, the purchase by the Escrow
Agent of the hereinafter defined Escrow Securities, the deposit of such Escrow Securities
into an escrow deposit trust fund to be held by the Escrow Agent and the discharge and
satisfaction of the pledge of and lien on the Gas Taxes under the Prior Resolution in regard
to the Prior Bonds shall occur as a simultaneous transaction; and
WHEREAS, this Agreement is intended to effectuate such simultaneous transaction;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
SECTION 1. PREAMBLES. The County represents that the recitals stated
above are true and correct, and the same are incorporated herein.
SECTION 2. RECEIPT OF PRIOR RESOLUTION AND
VERIFICATION REPORT. Receipt of a true and correct copy of the above-mentioned
Prior Resolution and this Agreement is hereby acknowledged by the Escrow Agent. The
applicable and necessary provisions of the Prior Resolution, including, without limitation,
Section 20 thereof, are incorporated herein by reference. The Escrow Agent also
acknowledges receipt of the verification report of ., dated
., 2003 (the "Verification Report"). Reference herein to or citation herein
of any provisions of the Prior Resolution or the Verification Report shall be deemed to
incorporate the same as a part hereof in the same manner and with the same effect as if the
same were fully set forth herein.
SECTION 3. DISCHARGE OF PLEDGE OF HOLDERS OF PRIOR
BONDS. In accordance with Section 20 of the Prior Resolution, the County by this writing
exercises its option to discharge and satisfy the pledge of and lien on the Gas Taxes in favor
of the holders of the Prior Bonds.
SECTION 4. ESTABLISHMENT OF ESCROW FUND. There is hereby
created and established with the Escrow Agent a special, segregated and irrevocable escrow
deposit trust fund designated the "Collier County, Florida Road Improvement Refunding
Revenue Bonds, Series 1995 Escrow Deposit Trust Fund" (the "Escrow Fund"). The Escrow
Fund shall be held in the custody of the Escrow Agent as a trust fund for the benefit of the
holders of the Prior Bonds, separate and apart from other funds and accounts of the County
and the Escrow Agent. The Escrow Agent hereby accepts the Escrow Fund and
acknowledges the receipt of and deposit to the credit of the Escrow Fund the sum of
$ from the County from proceeds of the Series 2003 Bonds (the "Bond
Proceeds"), and the sum of $ received from the County from certain moneys
on deposit in the funds and accounts established pursuant to the Prior Resolution for the
benefit of the holders of the Prior Bonds (the "County Moneys").
SECTION 5. DEPOSIT OF MONEYS AND SECURITIES IN ESCROW
FUND. The County hereby directs the use of the Bond Proceeds and County Moneys as
provided in this Section 5. The Escrow Agent represents and acknowledges that,
concurrently with the deposit of the Bond Proceeds and County Moneys under Section 4
above, it has used all of the Bond Proceeds and $__ of the County Moneys to
purchase on behalf of and for the account of the County certain [non-callable United States
Treasury obligations] (collectively, together with any other securities which may be on
deposit, from time to time, in the Escrow Fund, the "Escrow Securities"), which are described
in Schedule A hereto, and the Escrow Agent will deposit such Escrow Securities and
$ of the County Moneys in cash (the "Cash Deposit") in the Escrow Fund. All
Escrow Securities shall be noncallable, direct obligations of the United States of America.
[In the event any of the Escrow Securities described in Schedule A hereto are not
available for delivery on ,2003, the Escrow Agent may, at the written direction
of the County and with the approval of Bond Counsel, substitute other United States Treasury
obligations and shall credit such other obligations to the Escrow Fund and hold such
obligations until the aforementioned Escrow Securities have been delivered. Bond Counsel
shall, as a condition precedent to giving its approval, require the County to provide it with
a revised Verification Report in regard to the adequacy of the Escrow Securities, taking into
account the substituted obligations to pay the Prior Bonds in accordance with the terms
hereof. The Escrow Agent shall in no manner be responsible or liable for failure or delay of
Bond Counsel or the County to promptly approve the substitutions of other United States
Treasury obligations for the Escrow Fund.l
SECTION 6. SUFFICIENCY OF ESCROW SECURITIES AND THE
CASH DEPOSIT. In reliance upon the Verification Report, the County represents that the
Cash Deposit and the interest on and the principal amounts successively maturing on the
Escrow Securities in accordance with their terms (without consideration of any reinvestment
of such maturing principal and interest) are sufficient such that moneys will be available to
the Escrow Agent in amounts sufficient and at the times required to pay the amounts of
principal of, redemption premium, if any, and interest due and to become due on the Prior
Bonds as described in Schedule B attached hereto. If the Escrow Securities and the Cash
Deposit shall be insufficient to make such payments, the County shall timely deposit to the
Escrow Fund, solely from legally available funds of the County, such additional amounts as
may be required to pay the Prior Bonds as described in Schedule B hereto. Notice of any
insufficiency shall be given by the Escrow Agent to the County as promptly as possible, but
the Escrow Agent shall in no manner be responsible for the County's failure to make such
deposits.
SECTION 7. ESCROW SECURITIES AND THE CASH DEPOSIT IN
TRUST FOR HOLDERS OF PRIOR BONDS. The deposit of the Escrow Securities and
the Cash Deposit in the Escrow Fund shall constitute an irrevocable deposit of Federal
Securities (as defined in the Prior Resolution) and cash in trust solely for the payment of the
principal of, redemption premium, if any, and interest on the Prior Bonds at such times and
in such amounts as set forth in Schedule B hereto, and the principal of and interest earnings
on such Escrow Securities and the Cash Deposit shall be used solely for such purpose.
SECTION 8. ESCROW AGENT TO PAY PRIOR BONDS FROM
ESCROW FUND. The County hereby directs, and the Escrow Agent hereby agrees, that
it will take all actions required to be taken by it under the provisions of the Prior Resolution
referenced in this Agreement, including the timely transfer of money to the Paying Agent for
the Prior Bonds as provided in the Prior Resolution, in order to effectuate this Agreement and
to pay the Prior Bonds in the amounts and at the times provided in Schedule B hereto. The
Escrow Securities and the Cash Deposit shall be used to pay the principal of, redemption
premium, if any, and interest on the Prior Bonds as the same may mature or be redeemed.
If any payment date shall be a day on which either the Paying Agent for the Prior Bonds or
the Escrow Agent is not open for the acceptance or delivery of funds, then the Escrow Agent
may make payment on the next business day. The liability of the Escrow Agent for the
payment of the principal of, redemption premium, if any, and interest on the Prior Bonds
pursuant to this Agreement shall be limited to the application of the Escrow Securities and
the Cash Deposit and the interest earnings thereon available for such purposes in the Escrow
Fund.
SECTION 9. REINVESTMENT OF MONEYS AND SECURITIES IN
ESCROW FUND. Moneys deposited in the Escrow Fund shall be invested only in the
Escrow Securities listed in Schedule A hereto and the Cash Deposit and, except as provided
in Section 5 hereof and this Section 9, neither the County nor the Escrow Agent shall
otherwise invest or reinvest any moneys in the Escrow Fund.
Except as provided in Section 5 hereof and in this Section 9, the Escrow Agent may
not sell or otherwise dispose of any orall of the Escrow Securities or the Cash Deposit in the
Escrow Fund and reinvest the proceeds thereof in other securities nor may it substitute
securities for any of the Escrow Securities, except up on written direction of the County and
where, prior to any such reinvestment or substitution, the Escrow Agent has received from
the County the following:
(a)
a written verification report by a firm of independent certified public
accountants, of recognized standing, appointed by the County and acceptable
to the Escrow Agent, to the effect that after such reinvestment or substitution
the principal amount of Escrow Securities, together with the interest therein,
will be sufficient to pay the Prior Bonds as described in Schedule B hereto;
and
(b)
a written opinion of nationally recognized Bond Counsel to the effect that (i)
such investment will not cause the Series 2003 Bonds or the Prior Bonds to be
"arbitrage bonds" within the meaning of Section 148 of the Internal Revenue
Code, as amended, and the regulations promulgated thereunder or otherwise
cause the interest on the Prior Bonds or the Series 2003 Bonds to be included
as gross income for purposes of federal income taxation, and (ii) such
investment does not violate any provision of Florida law or of the Prior
Resolution.
4
The above-described verification report need not be provided in the event the County
purchases Escrow Securities with the proceeds of maturing Escrow Securities and such
purchased Escrow Securities mature on or before the next interest payment date for the Prior
Bonds and have a face amount which is at least equal to the cash amount invested in such
Escrow Securities.
In the event the above-referenced verification concludes that there are surplus moneys
in the Escrow Fund, such surplus moneys shall be released to the County upon its written
direction. The Escrow Fund shall continue in effect until the date upon which the Escrow
Agent makes the final payment to the Paying Agent for the Prior Bonds in an amount
sufficient to pay the Prior Bonds as described in Schedule B hereto, whereupon the Escrow
Agent shall sell or redeem any Escrow Securities remaining in the Escrow Fund, and shall
remit to the County the proceeds thereof, together with all other money, if any, then
remaining in the Escrow Fund.
SECTION 10. REDEMPTION OF CERTAIN PRIOR BONDS. The County
hereby irrevocably instructs the Escrow Agent to direct, on behalf of the Issuer, that the
Registrar and Paying Agent for the Prior Bonds give at the appropriate times the notice or
notices, if any, required by the Prior Resolution in connection with the redemption of the
Prior Bonds. Such notice of redemption shall be given by the Registrar for such Prior Bonds
in accordance with the Prior Resolution. ]The Prior Bonds maturing on or after June 1,2004
shall be redeemed on June 1, 2003 at a redemption price equal to 102% of the principal
amount thereof plus interest accrued to the redemption date. The Prior Bonds maturing on
June 1,2003 shall be paid at maturity without premium.]
SECTION ll. DEFEASANCE NOTICE TO HOLDERS OF PRIOR
BONDS. Concurrently with the deposit of the Escrow Securities set forth in Section 5
hereof, the Prior Bonds shall be deemed to have been paid within the meaning and with the
effect expressed in Section 20 of the Prior Resolution. Within 10 days of the deposit of
moneys into the Escrow Fund, the Escrow Agent, on behalf of the County, shall cause the
Registrar for the Prior Bonds to mail to the holders of the Prior Bonds the appropriate notices
in the form provided in Schedule C attached hereto.
SECTION 12. ESCROW FUND IRREVOCABLE. The Escrow Fund hereby
created shall be irrevocable and the holders of the Prior Bonds shall have an express lien on
all Escrow Securities and the Cash Deposit deposited in the Escrow Fund pursuant to the
terms hereof and the interest earnings thereon until paid out, used and applied in accordance
with this Agreement and the Prior Resolution. Neither the County nor the Escrow Agent
shall cause nor permit any other lien or interest whatsoever to be imposed upon the Escrow
Fund.
108
SECTION 13. AMENDMENTS TO AGREEMENT. This Agreement is made
for the benefit of the County and the holders from time to time of the Prior Bonds and it shall
not be repealed, revoked, altered or amended without the written consent of all such holders
and the written consent of the Escrow Agent; provided, however, that the County and the
Escrow Agent may, without the consent of, or notice to, such holders, enter into such
agreements supplemental to this Agreement as shall not adversely affect the rights of such
holders and as shall not be inconsistent with the terms and provisions of this Agreement, for
any one or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in this Agreement;
(b)
to grant, or confer upon, the Escrow Agent for the benefit of the holders of the
Prior Bonds, any additional rights, remedies, powers or authority that may
lawfully be granted to, or conferred upon, such holders or the Escrow Agent;
and
(c) to subject to this Agreement additional funds, securities or properties.
The Escrow Agent shall be entitled to rely exclusively upon an opinion of nationally
recognized Bond Counsel with respect to compliance with this Section 13, including the
extent, if any, to which any change, modification or addition affects the rights of the holders
of the Prior Bonds, or that any instrument executed hereunder complies with the conditions
and provisions of this Section 13.
SECTION 14. FEES AND EXPENSES OF ESCROW AGENT;
INDEMNIFICATION. In consideration of the services rendered by the Escrow Agent
under this Agreement, the County agrees to and shall pay to the Escrow Agent the fees and
expenses as shall be agreed to in writing by the parties hereto. The Escrow Agent shall have
no lien whatsoever upon any of the Escrow Securities in said Escrow Fund for the payment
of such proper fees and expenses. The County further agrees to indemnify and save the
Escrow Agent harmless, to the extent allowed by law, against any liabilities which it may
incur in the exercise and performance of its powers and duties hereunder, and which are not
due to its negligence or misconduct. Indemnification provided under this Section 14 shall
survive the termination of this Agreement.
Whenever the Escrow Agent shall deem it necessary or desirable that a matter be
proved or established prior to taking, suffering or omitting any action under this Agreement,
such matter may be deemed to be conclusively established by a certificate signed by an
authorized officer of the County. The Escrow Agent may conclusively rely, as to the
correctness of statements, conclusions and opinions therein, upon any certificate, report,
opinion or other document furnished to the Escrow Agent pursuant to any provision o f this
Agreement; the Escrow Agent shall be protected and shall not be liable for acting or
proceeding, in good faith, upon such reliance; and the Escrow Agent shall be under no duty
to make any investigation or inquiry as to any statements contained or matters referred to in
any such instrument. The Escrow Agent may consult with counsel, who may be counsel to
the County or independent counsel, with regard to legal questions, and the opinion of such
counsel shall be full and complete authorization and protection in respect of any action taken
or suffered by it hereunder in good faith in accordance herewith. Prior to retaining such
independent counsel, the Escrow Agent shall notify the County of its intention.
The Escrow Agent and its successors, agents and servants shall not be held to any
personal liability whatsoever, in tort, contract or otherwise, by reason of the execution and
delivery of this Agreement, the establishment of the Escrow Fund, the acceptance and
disposition of the various moneys and funds described herein, the purchase, retention or
payment, transfer or other application of funds or securities by the Escrow Agent in
accordance with the provisions of this Agreement or any non-negligent act, omission or error
of the Escrow Agent made in good faith in the conduct of its duties. The Escrow Agent shall,
however, be liable to the County and to holders of the Prior Bonds to the extent of their
respective damages for negligent or willful acts, omissions or errors of the Escrow Agent
which violate or fail to comply with the terms of this Agreement. The duties and obligations
of the Escrow Agent shall be determined by the express provisions of this Agreement.
SECTION 15. REPORTING REQUIREMENTS OF ESCROW AGENT.
As soon as practicable after June 1,2003, the Escrow Agent shall forward in writing to the
County a statement in detail of the activity of the Escrow Fund.
SECTION 16. RESIGNATION OR REMOVAL OF ESCROW AGENT.
The Escrow Agent, at the time acting hereunder, may at any time resign and be discharged
from the duties and obligations hereby created by giving not less than 20 days' written notice
to the County and mailing notice thereof, specifying the date when such resignation will take
effect to the holders of all Prior Bonds then outstanding, but no such resignation shall take
effect unless a successor Escrow Agent shall have been appointed by the holders of a
majority in aggregate principal amount of the Prior Bonds then outstanding or by the County
as hereinafter provided and such successor Escrow Agent shall have accepted such
appointment, in which event such resignation shall take effect immediately upon the
appointment and acceptance of a successor Escrow Agent.
The Escrow Agent may be replaced at any time by an instrument or concurrent
instruments in writing, delivered to the Escrow Agent and signed by either the County or the
holders of a majority in aggregate principal amount of the Prior Bonds then outstanding.
Such instrument shall provide for the appointment of a successor Escrow Agent, which
appointment shall occur simultaneously with the removal of the Escrow Agent.
In the event the Escrow Agent hereunder shall resign or be removed, or be dissolved,
or shall be in the course of dissolution or liquidation, or otherwise become incapable of
acting hereunder, or in case the Escrow Agent shall be taken under the control of any public
officer or officers, or of a receiver appointed by a court, a successor may be appointed by the
County or by the holders of a majority in aggregate principal amount of the Prior Bonds then
outstanding by an instrument or concurrent instruments in writing, signed by such holders,
or by their attorneys in fact, duly authorized in writing. In the event the holders of the Prior
Bonds shall appoint a successor Escrow Agent, the County may appoint a temporary Escrow
Agent to fill such vacancy until a successor Escrow Agent shall be appointed by the holders
of a majority in aggregate principal amount of the Prior Bonds then outstanding in the
manner above provided, and any such temporary Escrow Agent so appointed by the County
shall immediately and without further act be superseded by the Escrow Agent so appointed
by such holders. The County shall mail notice of any such appointment made by it at the
times and in the manner described in the first paragraph of this Section 16.
In the event that no appointment of a successor Escrow Agent or a temporary
successor Escrow Agent shall have been made by such holders or the County pursuant to the
foregoing provisions of this Section 16 within 20 days after written notice of resignation of
the Escrow Agent has been given to the County, the holder of any of the Prior Bonds or any
retiring Escrow Agent may apply to any court of competent jurisdiction for the appointment
of a successor Escrow Agent, and such court may thereupon, after such notice, if any, as it
shall deem proper, appoint a successor Escrow Agent.
In the event of replacement or resignation of the Escrow Agent, the Escrow Agent
shall remit to the County the prorated portion of prepaid fees not yet incurred or payable, less
any termination fees and expenses at the time of discharge, and shall have no further liability
hereunder and the County shall indemnify and hold harmless Escrow Agent from any such
liability, including costs or expenses incurred by Escrow Agent or its counsel.
No successor Escrow Agent shall be appointed unless such successor Escrow Agent
shall be a corporation with trust powers organized under the banking laws of the United
States or any State, and shall have at the time of appointment capital and surplus of not less
than $30,000,000.
Every successor Escrow Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to the County an instrument in writing accepting such
appointment hereunder and thereupon such successor Escrow Agent, without any further act,
deed or conveyance, shall become fully vested with all the rights, immunities, powers, trusts,
duties and obligations of its predecessor; but such predecessor shall nevertheless, on the
written request of such successor Escrow Agent or the County execute and deliver an
instrument transferring to such successor Escrow Agent all the estates, properties, rights,
powers and trust of such predecessor hereunder; and every predecessor Escrow Agent shall
deliver all securities and moneys held by it to its successor; provided, however, that before
any such delivery is required to be made, all fees, advances and expenses of the retiring or
removed Escrow Agent shall be paid in full. Should any transfer, assignment or instrument
in writing from the County be required by any successor Escrow Agent for more fully and
certainly vesting in such successor Escrow Agent the estates, rights, powers and duties
hereby vested or intended to be vested in the predecessor Escrow Agent, any such transfer,
assignment and instruments in writing shall, on request, be executed, acknowledged and
delivered by the County.
Any corporation into which the Escrow Agent, or any successor to it in the trusts
created by this Agreement, may be merged or converted or with which it or any successor to
it may be consolidated, or any corporation resulting from any merger, conversion,
consolidation or tax-free reorganization to which the Escrow Agent or any successor to it
shall be a party shall be the successor Escrow Agent under this Agreement without the
execution or filing of any paper or any other act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 17. TERMINATION OF AGREEMENT. This Agreement shall
terminate when all transfers and payments required to be made by the Escrow Agent under
the provisions hereof shall have been made. Upon such termination, all moneys remaining
in the Escrow Fund shall be released to the County.
SECTION 18. GOVERNING LAW. This Agreement shall be governed by the
applicable laws of the State of Florida.
SECTION 19. SEVERABILITY. If any one or more of the covenants or
agreements provided in this Agreement on the part of the County or the Escrow Agent to be
performed should be determined by a court of competent jurisdiction to be contrary to law,
such covenant or agreement shall be deemed and construed to be severable from the
remaining covenants and agreements herein contained and shall in no way affect the validity
of the remaining provisions of this Agreement.
SECTION 20. COUNTERPARTS. This Agreement may be executed in
several counterparts, all or any of which shall be regarded for all purposes as one original and
shall constitute and be but one and the same instrument.
9
SECTION 21. NOTICES. Any notice, authorization, request or demand
required or permitted to be given in accordance with the terms of this Agreement shall be in
writing and sent by registered or certified mail addressed to:
Collier County, Florida
3301 Tamiami Trail East
Naples, Florida 34112
Attn: Finance Director
Fifth Third Bank
MD 10AT60
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn:
IN WITNESS WHEREOF, the parties hereto have each caused this Escrow Deposit
Agreement to be executed by their duly authorized officers and appointed officials and their
seals to be hereunder affixed and attested as of the date first written herein.
COLLIER COUNTY, FLORIDA
(SEAL)
ATTEST:
Chairman
Clerk
FIFTH THIRD BANK, as Escrow Agent
(SEAL)
By:
Authorized Signatory
10
SCHEDULE A
ESCROW SECURITIES
Settlement Maturity Par
Type Date Date Amount
Interest
Rate
Purchase
Price
A-1
SCHEDULEB
DEBT SERVICE REQUIREMENTS FOR PRIOR BONDS
Payment D ate Principal Interest Premium
Total
B-1
SCHEDULE C
FORM OF NOTICE OF DEFEASANCE
Notice is hereby given pursuant to Resolution No. 80-114 adopted by the Board of
County Commissioners of Collier County, Florida on June 10, 1980, as amended and
supplemented (the "Prior Resolution"), that all of the outstanding Collier County, Florida
Road Improvement Refunding Revenue Bonds, Series 1995 (the "Prior Bonds") are deemed
to be paid within the meaning of the Prior Resolution and shall no longer be secured from
the Gas Taxes (as defined in the Prior Resolution) and shall be secured solely from the
irrevocable deposit of U.S. Treasury obligations and cash made by the County with
, as Escrow Agent, in accordance
with Section 20 of the Prior Resolution. [The Prior Bonds maturing on or after June 1, 2004
shall be redeemed on June 1,2003 at the offices of the paying agent for the Prior Bonds at
a redemption price equal to 102% of the principal amount thereof plus interest accrued to the
redemption date. The Prior Bonds maturing on June 1,2003 shall be paid at maturity without
premium.l
C-1
EXHIBIT E
FORM OF CONTINUING DISCLOSURE CERTIFICATE
CONTINUING DISCLOSURE CERTIFICATE
This Continuing Disclosure Certificate (the "Disclosure Certificate") is executed and
delivered by Collier County, Florida (the "Issuer") in connection with the issuance of its
$. Gas Tax Revenue Bonds, Series 2003 (the "Bonds"). The Bonds are being issued
pursuant to Resolution No. 03- adopted by the Board of County Commissioners of the Issuer on
, 2003, as amended and supplemented, and as particularly supplemented by
Resolution No. 02- adopted by the Board of County Commissioners of the Issuer on .,
2003 (collectively, the "Resolution").
SECTION 1. PURPOSE OF THE DISCLOSURE CERTIFICATE. This Disclosure
Certificate is being executed and delivered by the Issuer for the benefit of the Holders and Beneficial
Owners of the Bonds and in order to assist the Participating Underwriters in complying with the
continuing disclosure requirements of Securities and Exchange Commission Rule 15c2-12.
SECTION 2. DEFINITIONS. In addition to the definitions set forth in the Resolution which
apply to any capitalized term used in this Disclosure Certificate, unless otherwise defined in this
Section, the following capitalized terms shall have the following meanings:
"Annual Report" shall mean any Annual Report provided by the Issuer pursuant to, and as
described in, Sections 3 and 4 of this Disclosure Certificate.
"Beneficial Owner" shall mean any person which (a) has the power, directly or indirectly, to
vote or consent with respect to, or to dispose of ownership of, any Bonds (including persons holding
Bonds through nominees, depositories or other intermediaries), or (b) is treated as the owner of any
Bonds for federal income tax purposes.
"Dissemination Agent" shall mean the Issuer, or any successor Dissemination Agent
designated in writing by the Issuer and which has filed with the Issuer a written acceptance of such
designation.
"Listed Events" shall mean any of the events listed in Section 5(a) of this Disclosure
Certificate.
"National Repository" shall mean any Nationally Recognized Municipal Securities
Information Repository for purposes of the Rule. The National Repositories currently approved by
the Securities and Exchange Commission are set forth in Exhibit B.
"Participating Underwriters" shall mean the original underwriters of the Bonds required to
comply with the Rule in connection with offering of the Bonds.
"Repository" shall mean each National Repository and each State Repository.
"Rule" shall mean the continuing disclosure requirements of Rule 15c2-12 adopted by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as the same may
be amended from time to time.
"State" shall mean the State of Florida.
"State Repository" shall mean any public or private repository or entity designated by the
State as a state information depository for the purpose of the Rule and recognized as such by the
Securities and Exchange Commission. As of the date of this Certificate, there is no State Repository.
SECTION 3. PROVISION OF ANNUAL REPORTS.
(a) The Issuer shall, or shall cause the Dissemination Agent to, not later than
each April 30th, commencing April 30, 2003 with respect to the report for the 2002 fiscal year,
provide to each Repository an AnnualRe port which is consistent with the requirements of Section 4
of this Disclosure Certificate. The Annual Report may be submitted as a single document or as
separate documents comprising a package, and may cross-reference other information as provided in
Section 4 of this Disclosure Certificate; provided that the audited financial statements of the Issuer
may be submitted separately from the balance of the Annual Report and later than the date required
above for the filing of the Annual Report if they are not available by that date provided, further, in
such event unaudited financial statements are required to be delivered as part of the Annual Report
in accordance with Section 4(a) below. If the Issuer's fiscal year changes, it shall give notice of such
change in the same manner as for a Listed Event under Section 5(c).
(b) Not later than fifteen (15) Business Days prior to the date set forth in (a)
above, the Issuer shall provide the Annual Report to the Dissemination Agent (if other than the
Issuer). If the Issuer is unable to provide to the Repositories an Annual Report by the date required
in subsection (a), the Issuer shall send a notice to (i) each National Repository or the Municipal
Securities Rulemaking Board, and (ii) the State Repository in substantially the form attached as
Exhibit A.
(c) The Dissemination Agent shall:
(i) determine each year prior to the date for providing the Annual Report the
name and address of each National Repository and the State Repository, if any; and
(ii) if the Dissemination Agent is other than the Issuer, file a report with the
Issuer certifying that theAnnu al Report has been provided pursuant to this Disclosure
Certificate, stating the date it was provided and listing all the Repositories to which it was
provided.
SECTION 4. CONTENT OF ANNUAL REPORTS. The Issuer's Annual Report shall contain
or include by reference the following:
(a) the audited financial statements of the Issuer for the prior fiscal year, prepared in
accordance with generally accepted accounting principles as promulgated to apply to governmental
entities from time to time by the Governmental Accounting Standards Board. If the Issuer's audited
financial statements are not available by the time the Annual Report is required to be filed pursuant
to Section 3(a), the Annual Report shall contain unaudited financial statements in a format similar
to the financial statements contained in the final Official Statement dated ., 2003 (the
"Official Statement"), and the audited financial statements shall be filed in the same manner as the
Annual Report when they become available.
(b) updates to the following historical financial information and operating data
presented in tabular form in the Official Statement entitled " ,"
" "and" "
The information provided under Section 4(b) may be included by specific reference to other
documents, including official statements of debt issues of the Issuer or related public entities, which
have been submitted to each of the Repositories or the Securities and Exchange Commission. If the
document included by reference is a final official statement, it must be available from the Municipal
Securities Rulemaking Board. The Issuer shall clearly identify each such other document so
included by reference.
SECTION 5. REPORTING OF SIGNIFICANT EVENTS.
(a) Pursuant to the provisions of this Section 5, the Issuer shall give, or cause to
be given, notice of the occurrence of any of the following events with respect to the Bonds, if material:
1. principal and interest payment delinquencies;
2. non-payment related defaults;
3. unscheduled draws on the debt service reserves reflecting financial
difficulties;
4. unscheduled draws on credit enhancements reflecting financial difficulties;
5. substitution of credit or liquidity providers, or their failure to perform;
6. adverse tax opinions or events affecting the tax-exempt status of the Bonds;
7. modifications to rights of the holders of the Bonds;
8. Bond calls (other than scheduled mandatory redemption);
9. defeasances;
10. release, substitution, or sale of property securing repayment of the Bonds;
11. ratings changes; and
12. notice of any failure on the part of the Issuer to meet the requirements of
Section 3 hereof.
(b) Whenever the Issuer obtains knowledge of the occurrence of a Listed Event,
the Issuer shall promptly determine if such event would be material under applicable federal
securities laws; provided, however, that any event under clauses 4, 5, 6, 10, 11 and 12 above shall
always be deemed to be material.
(c) If the Issuer determines that knowledge of the occurrence of a Listed Event
would be material under applicable federal securities laws, the Issuer shall promptly file a notice of
such occurrence with (i) each National Repository or the Municipal Securities Rulemaking Board,
and (ii) the State Repository.
SECTION 6. TERMINATION OF REPORTING OBLIGATION. The Issuer's obligations
under thisD isclosure Certificate shall terminate upon the legal defeasance, prior redemption or
payment in full of all of the Bonds or if the Rule is repealed or no longer in effect. If such
termination occurs prior to the final maturity of the Bonds, the Issuer shall give notice of such
termination in the same manner as for a Listed Event under Section 5(c).
SECTION 7. DISSEMINATION AGENT. The Issuer may, from time to time, appoint or
engage a Dissemination Agent to assist it in carrying out its obligations under this Disclosure
Certificate, and may discharge any such Dissemination Agent, with or without appointing a
successor Dissemination Agent. The Dissemination Agent shall not be responsible in any manner for
10B
the content of any notice or report prepared by the Issuer pursuant to this Disclosure Certificate.
The initial Dissemination Agent shall be the Issuer.
SECTION 8. AMENDMENT; WAIVER. Notwithstanding any other provisiono f this
Disclosure Certificate, the Issuer may amend this Disclosure Certificate, and any provision of this
Disclosure Certificate may be waived, provided that the following conditions are satisfied:
(a) If the amendment or waiver relates to the provisions of Sections 3(a), 4, or
5(a), it may only be made in connection with a change in circumstances that arises from a
change in legal requirements, change in law, or change in the identity, nature or status of
the Issuer, or the type of business conducted;
(b) The undertaking, as amended or taking into account such waiver, would, in
the opinion of nationally recognized bond counsel, have complied with the requirements of
the Rule at the time of the original issuance of the Bonds, after taking into account any
amendments or interpretations of the Rule, as well as any change in circumstances; and
(c) The amendment or waiver either (i) is approved by the holders or Beneficial
Owners of the Bonds in the same manner as provided in the Resolution for amendments to
the Resolution with the consent of holders or Beneficial Owners, or (ii) does not, in the
opinion of nationally recognized bond counsel, materially impair the interests of the holders
or Beneficial Owners of the Bonds.
In the event of any amendment or waiver of a provision of this Disclosure Certificate, the Issuer
shall describe such amendment in the next Annual Report, and shall include, as applicable, a
narrative explanation of the reason for the amendment or waiver and its impact on the type (or in
the case of a change of accounting principles, on the presentation) of financial information or
operating data being presented by the Issuer. In addition, if the amendment relates to the
accounting principles to be followed in preparing financial statements, (i) notice of such change shall
be given in the same manner as for a Listed Event under Section 5(c), and (ii) the Annual Report for
the year in which the change is made should present a comparison (in narrative form and also, if
feasible, in quantitative form) between the financial statements as prepared on the basis of the new
accounting principles and those prepared on the basis of the former accounting principles.
SECTION 9. ADDITIONAL INFORMATION. Nothing in this Disclosure Certificate shall be
deemed to prevent the Issuer from disseminating any other information, using the means of
dissemination set forth in this Disclosure Certificate or any other means of communication, or
including any other information in any Annual Report or notice of occurrence of a Listed Event, in
addition to that which is required by this Disclosure Certificate. If the Issuer chooses to include any
information in any Annual Report or notice of occurrence of a Listed Event in addition to that which
is specifically required by this Disclosure Certificate, the Issuer shall have no obligation under this
Certificate to update such information or include it in anyfutur e Annual Report or notice of
occurrence of a Listed Event.
SECTION 10. DEFAULT. In the event of a failure of the Issuer to comply with any
provision of this Disclosure Certificate, any holder or Beneficial Owner of the Bonds may take such
actions as may be necessary and appropriate, including seeking mandamus or specific performance
by court order, to cause the Issuer to comply with its obligations under this Disclosure Certificate;
provided, however, the sole remedy under this Disclosure Certificate in the event of any failure of the
Issuer to comply with the provisions of this Disclosure Certificate shall be an action to compel
performance. A default under this Disclosure Certificate shall not be deemed an Event of Default
under the Resolution.
SECTION 11. DUTIES, IMMUNITIES AND LIABILITIES OF DISSEMINATION AGENT.
The Dissemination Agent shall have only such duties as are specifically set forth in this Disclosure
Certificate, and the Issuer agrees to indemnify and save the Dissemination Agent, its officers,
directors, employees and agents, harmless against loss, expense and liabilities which it may incur
arising out of or in the exercise or performance of its powers and duties hereunder, including the
costs and expenses (including attorneys fees) of defending against any claim of liability, but
excluding liabilities due to the Dissemination Agent's negligence or wilful misconduct. The
obligations of the Issuer under this Section shall survive resignation or removal of the Dissemination
Agent and payment of the Bonds.
SECTION 12. BENEFICIARIES. This Disclosure Certificate shall inure solely to the benefit
of the Issuer, the Dissemination Agent, the Participating Underwriters and holders and Beneficial
Owners from time to time of the Bonds, and shall create no rights in any other person or entity.
Dated: ,2003
COLLIER COUNTY, FLORIDA
By:.
Chairman of the Board of
County Commissioners
EXHIBIT A
NOTICE OF FAILURE TO FILE ANNUAL REPORT
Name of Issuer:
Name of Bond Issue:
Date of Issuance:
Collier County, Florida
Gas Tax Revenue Bonds, Series 2003
,2003
NOTICE IS HEREBY GIVEN that the Issuer has not provided an Annual Report with respect to the
above-named Bonds as required by Sections 3 and 4(b) of the Continuing Disclosure Certificate dated
as of __ 1, 2003. The Issuer anticipates that the Annual Report will be filed by
Dated:
COLLIER COUNTY, FLORIDA
By:.
Name:
Title:
Exhibit A- 1
EXHIBIT B
Nationally Recognized Municipal Securities Information Repositories approved by the Securities and
Exchange Commission:
Bloomberg Municipal Repository
100 Business Park Drive
Skillman, NJ 08558
Phone: (609) 279-3225
Fax: (609) 279-5962
Email: Munis@Bloomberg.com
FT Interactive Data
Attn: NRMSIR
100 William Street
New York, NY 10038
Phone: (212) 771-6999
Fax: (212) 771-7390
Email: NRMSIR~FTID.com
Website: http://www. InteractiveData.com
Standard & Poor's J.J. Kenny Repository
55 Water Street
45th Floor
New York, NY 10041
Phone: (212) 438-4595
Fax: (212) 438-3975
Email: nrmsir_repository~sandp.com
DPC Data Inc.
One Executive Drive
Fort Lee, NJ 07024
Phone: (201) 346-0701
Fax: (201) 947-0107
Email: nrmsir~dpcdata.com
A list of the names and addresses of all designated Nationally Recognized Municipal Securities
Information Repositories as of any date may be obtained by visiting the SEC's website at
www.sec.gov/info/municipal/nrmsir.htm.
J:\Bonds\43990 l\cdc2.doc
January 28, 2003
Exhibit B- 1