Resolution 2004-235
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RESOLUTION NO. 235
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA
APPROVING THE ISSUANCE BY THE COLLIER
COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
OF ITS V ARIABLE RATE DEMAND REVENUE BONDS
(YMCA OF COLLIER COUNTY, INC. PROJECT), SERIES
2004 IN AN AGGREGATE PRINCIPAL AMOUNT NOT
TO EXCEED $4,700,000, THE PROCEEDS FROM THE
SALE OF WHICH WILL BE USED PRINCIPALLY TO
FINANCE CERTAIN COMMUNITY, RECREATIONAL
AND SOCIAL SERVICE FACILITY RELA TED CAPITAL
IMPROVEMENTS FOR YMCA OF COLLIER COUNTY,
INC. AND REFINANCING CERTAIN OUTSTANDING
INDEBTEDNESS OF SAID COMPANY; AND
PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA:
SECTION 1.
declared as follows:
FINDINGS. It IS hereby ascertained, determined and
A. The Collier County Industrial Development Authority (the "Authority") has
submitted to the Board of County Commissioners of Collier County, Florida (the
"County"), a copy of a resolution of the Authority adopted by the Authority on July 14,
2004 (the "Resolution"), granting its approval for the issuance by the Authority of its
Variable Rate Demand Revenue Bonds (YMCA of Collier County, Inc. Project), Series
2004 (the "Bonds"), in an aggregate principal amount not to exceed $4,700,000 for the
primary purposes of (1) financing the costs of acquisition, construction and equipping of
an approximately 24,000 square foot community, recreational and social service facility
to be owned and operated by YMCA of Collier County, Inc. (the "Borrower") and certain
renovations to an existing 60,000 square foot community, recreational and social service
facility owned and operated by the Borrower, as more particularly described in the
Resolution (the "Project"), and (2) refinancing certain outstanding indebtedness (the
"Prior Indebtedness") previously incurred to finance and refinance various improvements
to an existing 60,000 square foot community, recreational and social service facility
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owned and operated by the Borrower. A copy of the Resolution is attached hereto as
Exhibit A.
B. On July 14,2004, the Authority held a public hearing, which public hearing
was duly conducted by the Authority on such date upon reasonable public notice, and at
which hearing members of the public were afforded reasonable opportunity to be heard
on all matters pertaining to (1) the location and nature of the Project, and (2) the issuance
of the Bonds for the purposes described herein and in the Resolution.
C. Pursuant to the Resolution, the Authority has requested the County to
approve the issuance of the Bonds in order to satisfy the requirements of Section 147(f) of
the Internal Revenue Code of 1986, as amended and Section 125.01(Z), Florida Statutes.
D. The purposes of Parts II and III of Chapter 159, Florida Statutes, will be
effectively served and it is desirable and in the best interests of the County that the
issuance of the Bonds and the use of the proceeds thereof to refinance the Prior
Indebtedness and to finance the costs of the Project be approved by the Board of County
Commissioners of the County (the "Board").
SECTION 2. APPROVAL OF ISSUANCE OF BONDS AND THE
PROJECT. The issuance of the Bonds and the use of the proceeds thereof to refinance
the Prior Indebtedness and finance the costs of the Project as contemplated by the
Resolution be and hereby are approved.
SECTION 3. LIMITED APPROVAL. The approval given herein shall
not be construed as an (i) an endorsement of the creditworthiness of the Borrower or the
financial viability of the Project, (ii) a recommendation to any prospective purchaser to
purchase the Bonds, (iii) an evaluation of the likelihood of the repayment of the debt
service on the Bonds, or (iv) approval of any necessary rezoning applications or approval
or acquiescence to the alteration of existing zoning or land use nor approval for any other
regulatory permits relating to the Project, and the Board shall not be construed by reason
of its adoption of this Resolution to make any such endorsement, finding or
recommendation or to have waived any right of the Board or estopping the Board from
asserting any rights or responsibilities it may have in such regard. Further, the approval
by the Board of the issuance of the Bonds by the Authority shall not be construed to
obligate the County to incur any liability, pecuniary or otherwise, in connection with
either the issuance of the Bonds or the acquisition and construction of the Project, and the
Authority shall so provide in the financing documents setting forth the details of the
Bonds.
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SECTION 4. EFFECTIVE DATE. This Resolution shall take effect
immediately upon its adoption.
DUL Y ADOPTED in Regular Session thi~l#ã\ of July, 2004.
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
(SEAL)
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Date 1-36 -ll'
Rec'd ::t
RESOLUTION ~ ;!)O'¥ - ð b
A RESOLUTION BY THE COLLIER COUNTY
INDUSTRIAL DEVELOPtv1EN'r AUTHORITY.
PROVIDING FOR THE ISSUANCE BY TI'IE
AUTHORrry OF NOT EXCEEDING $4)00,000
AGGREGATE PRINCIPAL Arv10UNT OF V/\RIABLE
RATE DE~'1AND REVENUE BONDS (YI"iC/\' OF
COI"LIER COUNTY, INC. PROJECT), SERIES 2004 AND
FOR A LOAN BY THE AUTHORITY TO '{fvlCA OF
COLLIER COUNTY, INC. IN AN AMOUNT EQUAL '1'0
TIlE PRINCIPAL AMOUNT OF SUCH BONDS TO
FINANCE 'rJ-[E ACQUISITION, CONSTRUCTION AND
EQUIPPING OF AN APPROXHvlA TELY 24,000 SQUARE
FOOT COMMUNITY. RECREATIONAL AND SOCIAL
SERVICE FACILITY TO BE LOCATED IN THE CITY OF
BONn'A SPRINGS IN LEE COUNTY, FLORIDA AND
CERTAIN RENOVATIONS AND IMPROVEt",1ENTS TO
AN EXISTING 60,000 SQUARE FOOT COr'v11\·1UNITY,
RECREATIONAL AND SOCIAL SERVICE FACILITY
LOCATED IN COLLIER COUNTY, FLORIDA AND TO
REFINANCE CERTAIN OUTSTANDING
INDEBTEDNESS OF THE YMCA OF COLLIER
COUNT\', INC.~ PROVIDING FOR THE RIGliTS OF THE
OWNERS OF SUCH BONDS AND FOR THE PAYMENT
THEREOF; MAKING CERTAIN OTHER COVENANTS
AND AGREEMENTS IN CONNECTION \~/ITH THE
ISSUANCE OF SUCH BONDS; DELEGATING TO 'rHE
CHAIRMAN AND VICE-CHAIRMAN OF 'rHE
AUTHORITY THE RIGHT TO APPROVE A
NEGOTIATED SALE OF SUCH BONDS UPON
SATISFACTION OF THE CONDITIONS TO SUCH SALE
SET FORTH HEREIN~ AUTHORIZING AND
APPROVING THE USE OF A PRELIMINARY OFFICIAL
STATEMENT AND AN OFFrCIAL STATEMENT \VITH
RESPECT THERETO; AUTHORIZING THE EXECUTION
AND DELIVERY OF A MEMORANDUM OF
AGREEMENT, BOND PURCHASE AGREEMENT,
TRUST INDENTURE, AND LOAN AGREEMENT;
AUTHORIZING THE EXECUTION AND DELIVERY OF
AN INTERLOCAL AGREEMENT BETWEEN THE
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AUTIIORITY AND THE CITY OF BONITA SPRINGS,
FLORIDA: AUTHORIZING THE EXECUTION AND
DELIVERY OF THE BONDS AND ALL OTHER
RELATED INSTRUMENTS AND CERTIFICATES;
PROVIDING FOR OTHER MISCELLANEOUS MATTERS
IN CONNECTION THEREWITH; AND PROVIDING FOR
AN EFFECTIVE DATE.
\\'HEREAS, YMCA of Collier County, Inc., a Florida not-far-profit corporation
(the "Company"), has applied to the CoIlier County Industrial Development Authority
(the HAuthoritytl), to issue its prhiate activity tax-excrnpt revenue bonds in an aggregate
principal amount not to exceed $4,700,000 (the "Series 2004 Bonds"), as more
particularly described herein, for the principal purposes of (i) fìnancing certain costs of
acquisition, construction and equipping of an approximately 24,000 square foot
community, recreational and social service center to be located in the City of Bonita
Springs in Lee County, Florida (the "Bonita Springs Project") and fìnancing certain
renovations and irnprovements to an existing 60,000 square foot community, recreational
and social service facility located in Collier County, Florida (the "Collier County
Project," and together with the BonÎta Springs Project, the "Project"); (ii) refinancing
certain outstanding indebtedness of the Company previously incurred to finance certain
capital improvements to the Company's existing 60,000 square foot cornmunity,
recreational and socíai service facility \vithin Collier County, Florida (the "Prior
Indebtedness"); and (iii) paying costs and expenses associated w'ith the issuance of the
Series 2004 Bonds; and
\VUEREAS, the Company has requested that the Authority loan the proceeds of
the Series 2004 Bonds to said Company pursuant to Chapter 159, Parts nand nl, Florida
Statutes and other applicable provisions of law (collectively, the "Act") in order to
accomplìsh the foregoing; and
WHEREAS, the issuance of the Bonds under the Act in an aggregate principal
amount of not exceeding $4,700,000 and the loaning of the proceeds thereof to the
Company for the purposes stated herein under the hereinafter defined Loan Agreement,
and pursuant to the telms thereof which will provide that payments thereunder be at least
suft1cìent to ful1y pay the principal of and interest and redemption premium, if any, on
such Series 2004 Bonds and such other costs in connection therewith as may be incurred
by the Authority, wiiI assi.st the Company and prornote the public purposes provided in
the Act; and
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\VHEREAS, the Company has submitted the Memorandum of Agreement (the
"MenlOrandum of AgreelnenC') relating to the issuance of the Bonds, attached hereto as
Exhibit A; and
W'HEREAS, the Authority has before it for consideration a substantial tònn of
InterlocalAgreement between the Authority and the City of Bonita Springs, Florida (the
"Interlocal Agreement"), \vhích, when executed. will permit the loan of a portion of the
Bond proceeds to the Company to t1mmce the Bonita Springs Project, a copy of which
fonn of Interlocal Agreement is attached hereto as Exhibit B; and
....,
,,-rHEREAS, in order to satisfy certain of the requirements of Sectì.on 147({) of
the Internal Revenue Code of 1986, as amended (the "Code"), the Authority held a public
hearing on the date hereof prior to the adoption of this resolution on the proposed
issuance of the Series 2004 Bonds tor the purposes herein stated, which date was more
than 14 days fo!lovv'ing the Erst publication of notice of such public hearing in a
ne\vspaper of general. circulation in Collier County, Florida (a true and accurate copy of
the proof of puhlícation of such notice is attached hereto as Exhibit G), which public
hearing \vas conducted in a manner that provided a reasonable opportunity for persons
with differing vie\vs to be heard, both orally and in writing, on the issuance of such Series
2004 Bonds and the location and nature of the Project; and
WHEREAS, the Company has finalized the structure of its proposed financing
and has requested the Authority's aPl1roval for the issuance of the Series 2004 Bonds,
including the terms thereot: upon full satisfaction of the terms hereof:. and
Vt'HEREAS, it is intended that this Resolution shall constitute official action
toward the issuance of the Series 2004 Bonds within the meaning of the applicable
United States Treasury Regulations in addition to any other action that may have
heretofore been taken by the Company;
IT IS, THEREFORE, DETERI\UNED AND RESOL \lED BY THE
COLLIER COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, THAT:
SECTION 1. AUTHORITY ~~OR THIS RESOLUTION. This
Resolution is adopted pursuant to the provisions of the Act.
SECTION 2. DEFINITIONS. Unless the context othenvise requires, the
tenns used in this Resolution shall have the meanings specítied in this section. Words
importing the singular shall include the plural, words importing the plural shall include
the singular, and words importing persons shaH include corporations and other entities or
associations,
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"Act" means the Florida Industrial Development Financing Act, Paf1s II and Ill,
Chapter 159, Florida Statutes, the Interlocal Agreement and other applicable provisions
oflaw.
"Authority" means the Collier County Industrial Development Authority, a
publìc body corporate and politic and an industrial development authority organized and
existing under the Constitution and laws of the State including, particularly, the Act, its
successors and assigns.
"Bond Counsel" means the law finn of Nabors, Gihlin & Nickerson, P.A.,
Tampa, Fl.orida.
"Bond Purchase Agreement" means the Bond Purchase Agreement among the
Authority, the Company and the Undet'\vriter substantially in the form attached hereto as
Exhibit C and incorporated herein by reference.
"Bonita Springs Project" means the acquisition, construction and equipping of
an approximately 24.,000 square foot community, recreational and social servicc center to
be located in the City.
nCity" means the City of Bonita Springs, Florida, a duly created municîpality
under the laws of the State of florida.
"Collier Count)'Project" means certain renovations and improvements to an
existing 60,000 square foot community, recreational and social service fàcility of the
Company located in Col1ier County, Florida.
"Company" means YMCA of Collier County, Inc., a Florida not~for-profit
corporation, and any successor, surviving, resulting or transferee entity as provided in the
Loan Agreement
"Count)·1I means Collier County, Florida, a political subdivision of the State.
"Indenture" means the Indenture of Trust, to be executed by the Authority and
the Trustee, substantially in the fonn attached hereto as Exhibit D and incorporated
herein by reference.
"Interlocal Agreement" means the Interloeal Agreement between the Authority
and the City, substantially in fOlm attached hereto as Exhibit B.
"Loan Agreementlt means the Loan Agreement, to be executed by and between
the Authority and the Company substantially in the fonn attached hereto as Exhibit E and
incorporated herein by reference.
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"Preliminar)' Official Statement" means the PreHminary Official Statement
substantially in the form attached hereto as Exhibit f.
"Prior Indebtedness" [Beans the Commercial Promissory Draw Note dated as of
May 30, 2003, in the principal amount .of $1,500,000 and the COnll11ercial Promissory
Note, dated as of May 30, 2003, in the principal amount of $250,000, each issued to the
Bank of Florida., N.A., the proceeds ofvv'hich were used to finance and refinance the Prior
Project.
"Prior Project" means the various renovations and improvements t.o an existing
60,000 square foot community, recreational and social service facility of the Company
located in Collier County, Florida,including, but not limited to air conditioning
irnprovements, roof repair/replacement, acquisition of an emergency generator and other
improvements. which improvements were fÌnanced or refinanced with proceeds .of the
Prior Indebtedness.
"Project" means the Collier County Project and the Bonita Springs Project, as
described herein and in the Loan Agreement which shall be tinanced with a portion of the
proceeds of the Series 2004 Bonds.
"Series 2004 Bonds" rneans the Authority's Variable Rate Demand Revenue
Bonds (Y!vICA of Collier County, Inc. Project), Series 2004, to be issued under the
Indenture in accordance with the tenns hereof and thereof in an aggregate initial principal
amount of not exceeding $4,700.000.
"State" means the State of Florida.
"Trustee" means SunTrust Bank, Miami, Florida, in its capacity as Trustee.
"Underwriter" means SunTrust Capital Markets, Inc., the Underwriter for the
Series 2004 Bonds.
SECTION 3.
declared as follows:
FINDINGS. It is hereby ascertained, determined and
A. The Authority is a public body corporate and politic. a public
instrumentality and an industrial development authority, and is duly authorized and
empowered by the Act to finance or refinance the acquisition, construction,
reconstruction, improvement, rehabilitation, renovation, expansion and enlargement, or
additions to, furnishing and equipping of any capital project, including any "project" for
any "social service center" or "tourism facility" (as the quoted tenus are described in the
Act), including land, rights in land, buildings and other structures, machinery, equipment,
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,
appurtenances and facilities incìdenta.1 thereto, and other improvements necessary or
convenient therefor.
B. The Company previously issued the PrÎor Indebtedness, the proceeds of
which were applied to the financing and refinancing of the Prior Project The Company
desires to refinance the Prior Indebtedness in order to achieve certain debt service
savmgs.
The retlmmcing of the Prior Indebtedness and the financing of the Collier
County Project by the Authority through the issuance of the Series 2004 Bonds. pursuant
to the Act, \vill promote the economic development and health and welfare of the citizens
of the County, \vill provide and maintain jobs within the County, will promote the general
economic structure of the County and \,viIl thereby serve the publíc purposes of the Act.
D. Upon consideration of the documents described herein and the information
presented to the Authority at or prior to the adoption of this Resolution, the Authority has
made and does hereby make the following findings and detenninations:
( I ) The Prior Project consisted of various renovations and
improvements to an existing 60,000 square foot community, recreational and
sodal service fàcility, said Prior Pro,ieet being located in the County and owned
and operated by the Company in its business of operating community, recreational
and social servíce facilities. 'the Collier County Project consists of certain
renovations and improvements to an existing 60,000 square foot community,
recreational and social service facility, including, but not limited to, irnprovements
to the swimming pool, roof and other improvel'nents, said Collier County Project
to be located in the County and owned and operated by the Company in its
business of operating community, recreational and social service facilities. The
Bonita Springs Project consists of the acquisition, construction and equipping of
an approximate 24.000 square foot conununity, recreational and sodal service
facility, including an outdoor swimming pool, said Bonita Springs Project to be
located in the City and mvned and operated by the Company in its business of
operating community, recreational and social service facilities.
(2) The Company has shown that the Collier County Project will assist,
and the Prior Project assisted, in alleviating unemployment in the County by
creating and maintainingjohsin the County, the Bonita Springs Project wiH assist
in alleviating unemployment in the City, the Collier County Project wìll foster,
and the Prior Project fostered, the economic growth and development and the
industrial and business development of the County and the State, the Bonita
Springs Project wiII foster the economic growth and development and the
industrial and business development of the City and the State and the Project \viII
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serve, and the Prior Project served, other predominantly public purposes as set
fOl1h in the Act It is desirable and w11J further the public purposes of the Act, and
it wìl1 most effectively serve the purposes of the Act for the Authority, to
refinance the Prior Indebtedness and nnance the acquisition, construction and
equipping of the Project and to issue and sell the Series 2004 Bonds under the
Indenture for the purpose of providing funds to refinance the Prior Indebtedness
and I1nancc the Project, all as provided in the Loan Agreement, which contains
such provisions as are necessary or convenient to et1èctuate the purposes of the
Act
(3) The Collier County Project is, and the Prior Project \vas, appropriate
to the needs and circumstances of~ and \vill make, or made (in the case of the Prior
Project), a significant contribution to, the economic growth of the County; shall
provide or preserve, or in the case of the Prior Prqject, provided or preserved,
gainful employment; and shall serve, or in the case of the Prior Project, served, a
public purpose by advancing the economic prosperity, the public health, and the
general welfare of the State and its people as stated in Section 159.26, Florida
Statutes.
(4) Based on the findings and representations of the City set forth in the
Interlocal Agreement, the Bonita Springs Project is appropriate to the needs and
circumstances of, and will. make a significant contribution to, the economic gro\v'th
of the City; shall provide or preSel"'\ie gainful employment; and shall serve a public
purpose by advancing the economic prosperity, the public health, and the general
welfare of the State and its people as stated in Section 159.26, Florida Statutes.
(5) Based solely on the infonnation provided to this Authority by the
Company in compliance with the criteria estab1ìshed by the Act, the Company is
fully capable and willing (a) to fulfill its obligations under the Loan Agreement
and any other agreements to be made in connection \:\lith the issuance of the Series
2004 Bonds and the use of the Series 2004 Bond proceeds for refìnandng the Prior
Indebtedness and financing all or a portion of the costs of the Project, including
the obli.gation to make loan payments or other payments in an amount sufticient in
the aggregate to pay al1 of the interest, principal, and redemption premiums, if any,
on the Series 2004 Bonds, in the amounts and at the times required, (b) to operate,
repair and maintain at its own expense the Project and all other community,
recreational and social service facilities of the Company, including but not limited
to those fìnanced and refinanced with proceeds of the Prior Indebtedness, and (c)
to serve the purposes of the Act and such other responsibilities as may be imposed
under such agreement'ì.
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(6) The County and other local agencíes will be~ or were able, as the
case may be, to cope satisfactorily w'Ìth the impact of the Collier County Project
and the Prior Project and \-\Oill be, or were able, as the case may be, to provide, or
cause to be provided when needed, the public fàcilities, including utîlities and
public services, that "vîll be or \'{ere necessary for the construction, operation,
repair and maintenance of the Collier County Project and the Prior Project and on
account of any increase in population or other circumstances resulting therefrom.
(ì) Based on the findings and representations of the City set forth in the
Interlocal Agreement, the City and other local agencies w'ill cope satisfàctorily
with the impact of the Bonita Springs Project and "v'ilt provide, or cause to be
provided v,'hen needed, the public tàcilities, including utilitíes and public services,
that will be 01' were necessary for the construction. operation~ repair and
maintenance of the Bonita Springs Project and on account of any increase in
population or other circumstances resulting therefrom.
(8) Adequate provision is made under the Loan Agreement for the
operation, repair and maintenance of the Project and the Prior Project and other
facilities of the Company at the expense of the Company, for the payment of the
principal of: premium, if any, and interest on the Series 2004 Bonds w'hen and as
the same become due, and payment by the Company of all other costs in
connection \-\lith the financing~ or the operation, maintenance and administration of
the Project, the Pri.or Project and other tàcilities of the Company which are not
paid out of the proceeds fron1 the sale of the Series 2004 Bonds or otherwise.
(9) The Costs of the Project and the Prior Project to be financed or
refinanced, as the case may be, from the proceeds of the Series 2004 Bonds shall
be "costsH of a "project" \-vithin the meaning of the Act.
(10) The principal ot: premium, if any, and interest on the Series 2004
Bonds and all other pecuniary obi ¡gations under the Loan Agreement, the
Indenture or otherwise, in connection with the issuance of the Series 2004 Bonds,
shall be payable solely from the loan payments and other revenues and proceeds
received under the I.oan Agreement or othen-vise from the operation, sale, lease or
other disposition of the Project or Prior Project, including proceeds from insurance
condemnation awards and proceeds of any foreclosure or other realization upon
the liens or security interests under the Loan Agreement, the Indenture and all
other related security documents, the proceeds of the Series 2004 Bonds and
income from the temporary investment of the proceeds of the Series 2004 Bonds
or of such other revenues and proceeds, as pledged for such payment to the
Trustee under and as provided in the Indenture, neither the faith and credit nor the
taxing pO\ver of the County~ the City, the State, the Authority or of any political
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subdivision or agency thereof is pledged to the payment of the Series 2004 Bonds
or of such other pecuniary obligations and neither the County, the City, the State,
the Authority nor any political subdivision or agency thereof shall ever be required
or obligated to levy ad valorem taxes on any property ,,,'ithin their territorial limits
to pay the principal ot~ premium, if any, or interest on such Series 2004 Bonds or
other pecuniary obligations or to pay the same from any funds thereof other than
such revenues, receipts and proceeds so pledged. and the Series 2004 Bonds shall
not constitute a licn upon any property O\vned by the County, the City, the
/\uthority or the State or any political subdivision or agency thereof, other than the
Authority's interest in the Loan Agreernent and the prope¡1y rights, receipts,
revenues and proceeds pledged therefor under and as provided in the Indenture
and any other agreements securing the Scries 2004 Bonds.
(11) It is deemed desirable by both the Authority and the City that prior
to or upon the issuance of the Serîes 2004 Bonds, the Authority and the City enter
into the Interlocal Agreement, as provided for and under the authority of (Jart I,
Chapter 163, FI.orida Statutes (the "Interlocal Act"), in order to assist the Company
and the Authority in the financing of the Project.
(12) A delegatcd negotiated sale of the Series 2004 Bonds is desirablc,
and is in the best interest of the Authority and the Company, tor the tollO\~'ing
reasons: the Series 2004 Bonds will be special and limited obligations of the
Authority payable solely out of revenues and proceeds derived by the Authority or
the ·rrustee pursuant to the Loan Agreement and the other related security
docUlnents, and the Company wiU be obligated for the payment of all costs of the
Authority in connection w'ith the refinancing of the Prior Indebtcdness and the
financing of thc Project which are not paid out of thc Serics 2004 Bond proceeds
or otherwise; the cost of issuance of the Series 2004 Bonds, which wì\l be borne
directly or indirectly by the Company could be greater if the Series 2004 Bonds
are sold at a public sale by competitive bids than if the Series 2004 Bonds are sold
on a negotiated basis, and a public sale by competitive bids would cause undue
delay in the financing of the Project; private activity revenue bonds having the
characteristics of the Series 2004 Bonds are typically and usually sold at
negotiated sale or ptivately placed; and authorization of a delegated negotiated
sale of the Series 2004 Bonds is necessary in order to serve the purposes of the
Act.
(13) The Company has, af1.er consulting with the Undervtiriter, detemlined
that market and other conditions are now conducive to proceed wìth the
refinancing of the Prior Indebtedness and the financing of the Project \:\lith the
proceeds of the Series 2004 Bonds.
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(14) A Il requirements precedent to the adoption of this Resolution, of the
Constitution and other la\".'$ of the State of Florida. including the Act have been
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complied with.
SECTION 4. IJEl..EGATED NEGOTIATED SALE OF SERIES 2004
BONDS AlJTflORIZED AND DESCRIPTION OF TilE SERIES 2004 BONDS. (A)
Subject to prior satisfaction of the conditions set forth in Section 4(C) hereot: the
Authority hereby authorizes the issuance of a Series of Bonds to be kn<W.l1 as the '1C oIlier
County Industrial Development Authority Variable Rate Demand Revenue Bonds
(YIvlCA of CoHier County, lnc. Project), Series 20<)41' in the initial aggregate principal
amount of not exceeding $4,700,000 for the principal purpose of providing moneys to the
Company to rennance the Prior Indebtedness and to finance the costs of the Project. The
Series 2004 Bonds shall be issued only in accordance \-vith the provisions hereof and of
the Indenture and all the provisions hereof and of the Indenture shall be appIîcable
thereto.
(B) The Series 2004 Bonds shall be dated their date of issuance, shall be issued
in the fòrm of fully registered Bonds "vithout coupons in the initial denominations of
$100,000 and integral multiples of $5,000 in excess thereof, shaIl bear interest from their
dated date payable on the dates and at the rates and at the times and subject to redemption
and purchase as set forth in the Bond Purchase Agreement and the Indenture.
(C) Subject to fùll satisfaction of the conditions set for1h below, the Authority
hereby finds and determines that the sale of the Series 2004 Bonds on the basis of a
negotiated sale rather than a public sale by competitive bid, pursuant to the terms and
provisions of the Bond Purchase Agreement, is in the best interest of the Authority and
the Company; and the Authority hereby further tinds and determines that the reasons set
forth in Section 3(0)( I 2) hereof necessitate the sa.le of the Series 2004 Bonds through a
negotiated sale. A negotiated sale of the Series 2004 Bonds to the Underwriter in
accordance with the terms hereof and of the Bond Purchase Agreement is hereby in all
respects authorized, approved, ratified and cont1mled, and there shall be executed on
behalf of the Authority and in furtherance thereof the Bond Purchase Agreement ,\-rith the
Undenvriter. The Bond Purchase Agreement shaH be executed on behalf of the Authority
by its Chairman or Vice-Chainnan in the fonn attached hereto as Exhibit C upon
satisfaction of all of the followmg conditions:
(I) Receipt by the Chainnan or Vice-Chainnan of a written offer to
purchase the Series 2004 Bonds by the Underwriter substantially in the foml of the
Bond Purchase Agreement, said offer to provide for, among other things, (i) the
issuance of not exceeding $4,700,000 initial aggregate principal amount of Series
2004 Bonds, (ii) an underv.¡riting discount or fee not in excess of $35,000, (iii) an
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initial interest rate of not more than 2.50%1 per annum, and (iv) the maturities of
the Series 2004 Bonds with the final maturity no later than December 3 I, 2029.
(2) Receipt by the Chainnan or Vice Chairman from the Underwriter of
a disclosure statement and truth-in-bonding information complying with Section
218.385, Florida Statutes and substantially in the form of Exhibit A to the Bond
Purchase Agreement
SECTION 5. ALJTHORIZATION OF EXECLJTION AND DELIVERY
OF TH E LOAN AGREE!\llENT. The Loan Agreelnent substantially in the form
attached hereto as Exhibit E \vith such corrections, insel1Îons and deletions as may be
appro'/ed by the Chainnan or Vice Chaimlan of the Authority. such approval to be
evidenced condusively by 1115 or her execution thereof, is, subject to the prior satisfaction
of the conditions set forth in Section 4(C) hereof, hereby approved and authorized; the
Authority hereby authorizes and directs the Chairman or Vice Chairman of the Authority
to date and execute and the Secretary or an Assistant Secretary of the Authority to attest,
under the official seal of the Authority, the Loan Agreement, and to delíver the Loan
Agreement to the Company.'; and an of the provisions of the Loan Agreement. when
executed and delivered by the Authority as authorized herein and by the Company, shall
be deemed to be a pal1 of this Resolution as fully and to the same extent as if
incorporated verbatim herein.
SECTION 6. AUTHORIZATION OF EXECUTION AND DELIVERY
OF THE INDENTURE. The Indenture, substantially in the form attached hereto as
Exhibit D with such changes, corrections, inseltions and deletions as may be approved by
the Chainllan or Vice Chainnan of the Authority, such approval to be evidenced
conclusively by his execution thereof, is, subject to the prior satisfaction of the conditions
set forth in Section 4(C) hereof, hereby approved and authorized; the Authority hereby
authorizes and directs the Chaimmn or Vice Chaímum of the Authority to date and
execute and the Secretary or an Assistant Secretary of the Authority to attest, under the
official seal of the Authority, the Indenture, and deliver the Indenture to the Trustee; and
aU of the provisions of the Indenture, when executed and delivered by the Authority as
authorized herein, and by the Trustee, shall be deemed to be a part of this Resolution as
fully and to the same extent as if incorporated verbatím herein.
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SECTION 7. AlJTHORIZATION OF EXECUTION AND DELIVERY
0...· THEINTERLOCAL AGREEiVIENT. Prior or contemporaneously with the
issuance of the Series 2004 Bonds by the Authority. the Chairman or Vice Chaìnnan of
the Authority is hereby authorized and directed to execute and the Secretary or an
Assistant Secretary of the Authority, is hereby authorized to attest, under the official seal
of the Authority, the Interlocal Agreement and deliver the lnterlocal Agreement,
substantially in the form attached hereto as Exhibit B between the City and the Authority,
to the City in order to pennit the loan of a portion of the Series 2004 Bond proceeds to
the Cornpany for the principal purpose of tìnancing the Project and refinancing the Prior
Indebtedness.
SECTION 8. APPOINTMENT OF TRUSTEE; PAYMENT OF TIlE
SERIES 2004 BONDS. The Series 2004 Bonds shall be payable as to principal and
interest in la\vful money of the United States of America at the designated ot1ice of
SunTrust Bank, Miami, Florida, as Trustee under the Indenture.
SECTION 9. APPROVAL OF DISTRIBUTION OFPREL.IMINARY
OFFICIAl.. STAT"':MENT AND OFFICIAL STATEMENT. (A) The Authority
herebv authorizes the distribution and use of the Prelíminarv Otlicial Statement in
~ .. .. . . ~
substantially the fonn attached hereto as Exhibit F in connection with offering the Series
2004 Bonds for sale. If between the date hereof and the mailing of the Preliminarv
v J
Otlicial Statement it is necessarv to make insertions. modifications or changes in the
~ - ~
Preliminary Official Statement. the Chairman is hereby authorized to approve such
insertions, changes and moditìcations.
(B) The Chainllan is hereby authorized and directed to cause the preparation
and distribution of a final Official Statement, dated the date of the execution of the Bond
Purchase Agreement. which shaH be in substantiaUv the form of the Preliminarv Official
~/ , ... .¡
Statement, in the name and on behalf of the Issuer, and thereupon to cause such Omelal
Statement to be delivered to the Undenvriter \vith such changes. amendments.
~, ..---- - ------- -- -- ..
modifications, omissions and additions as may be approved by the Chainnan.
SECTION 10. AUTHORIZAll0N Of<' EXECUTION OF
OTHER CERTIFICATES ANI) OTHER INSTRUMENTS. The Chairman or Vice
Chainnan and the Secretary or any Assistant Secretary of the Authority are hereby
authorized and directed, either alone or jointly> under the official seal of the Authority, to
execute and deliver certificates of the Authority certit)/ing such fact.:; as the Authority's
Counselor Bond Counsel shall require in connection vÚth the issuance, sale and delivery
of the Series 2004 Bonds, and to execute and deliver such other instruments, including
but not limited to, deeds, assignments; bills of sale, tax agreements and tinancing
statement<;, as shall be necessary or desirable to perform the Authority's obligations under
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the Loan Agreement, the Indentllre or the Interlocal Agreement and to consummate the
transactions hereby authorized.
S,ECTION 11. NO PERSONAL LIABILITY. No representation,
statement, covenant, \varranty, stipulation, obligation or agreement herein contained, or
contained in the Series 2004 Bonds, the Loan Agreement, the Indenture, the I nterlocal
Agreernent or any assigmnent thereof, or any certificate or other instrument to be
executed on behalf of the Authority in connection with the issuance of the Series 2004
Bonds, shall be deemed to be a representation, statement, covenant, walTanty, stipulation,
obligation or agreement of any elected officiaL o nicer, employee or agent of the
Authority in his or her individual capacity, and none of the foregoing persons nor allY
elected or appointed official of the Authority executing the Series 2004 Bonds, the Loan
Agreement, the Indenture, the Interlocal Agreement or any certificate or other instrument
to be executed in connection with the issuance of the Series 2004 Bonds shall be liable
personally thereon or be subject to any personal liability of or accountabi1ity by reason of
the execution or delivery thereof.
SECTION 12. NO THIRD PARTY BENEFICIARIES. Except as
otherw'ise expressly provided herein or in the Series 2004 Bonds, the Loan Agreement,
the Interlocal Agreement and the Indenture, nothing in this Resolution, or in the Series
2004 Bonds, the Loan Agreenlent, the InterJocal Agreement or the Indenture, express or
implied, is intended 01' shall be construed to confer upon any person, tlrm, corporation or
other organization, other than the Authority, the City, the Company, the 'I'ru s tee , the
Undel\vriter and the o\vners from time to time of the Series 2004 Bonds any rÜtht.
.... . cÇ,.,. ','
remedy or claim, legal or equitable, under and by reason of this Resolution or any
provision hereof, or of the Series 2004 Bonds, the Loan Agreement, the Interlocal
Agreement and the Indenture, all provisions hereof and thereof being intended to be and
being for the sole and exclusive benetlt of the Authority, the City, the Company, the
Trustee and the owners from time to time ofthe Series 2004 Bonds.
SECTIONB. PREREQUISITES PERFORMED. Subject to all of the
conditions set for1h in Section 4(C) hereof prior to the issuance of the Series 2004 Bonds,
all acts, conditions and things relating to the passage of this Resolution; to the issuance,
sale and delivery of the Series 2004 Bonds, to the execution and delivery of the Loan
Agreement, the Interlocal Agreement and the Indenture, required by the Constitution or
other laws of the State, to happen, exist and be perforrned precedent to the passage
hereof, and precedent to the issuance, sale and delivery of the Series 2004 Bonds, to the
execution and delivery of the Loan Agreement, the InterIocal Agreement and the
Indenture, have either happened, exist and have been perfomled as so required or wìll
have happened, wiH exist and """'ill have been perfonned prior to such execution and
delivery thereof.
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¡
'î
SECTION 14. COMPLIANCE \\lITH CHAPTER 218, PART III,
FLORIDA STA Tl1TES. The Authority hereby approves and authorizes the completion.
execution and tiling with the Division of Bond Finance, Department of General Services
of the State of Florida. at the expense of the Company, Bond Infonnation Forrn BF2003 ~
and any other acts as lliay be necessary to comply with Chapter 218, Part III~ Florida
Statutes.
SECTION 15. RECOMMENDATION FOR APPROVAL TO BOARD
OF COUNTY COMMISSIONERS. The Authority hereby recommends the issuance of
the Series 2004 Bonds and the financing of the Project for approval to the Board of
County Commissioners of Collier County. Florida (the "BoardH). The Authority hereby
directs the Chainnan or Vice Chainllan, either alone or jointly, at the expense of the
Company, to cooperate in seeking approval for the issuance of the Series 2004 Bonds and
the financíng of the Project by the Board as the applicable elected representatives of
Collier County under and pursuant to the Act and Section 14 7( f) of the Internal Revenue
Code of 1986, as amended.
SECTION 16. GENERAL AUTHORITY. The members of the Authority
and its directors~ officers, attorneys, engineers or other agents or employees are hereby
authorized to do all acts and things required of them by this Resolution, the Series 2004
Bonds, the Loan Agreement, the lnterlocal Agreement and the Indenture, and to do all
acts and things which are desirable and consistent with the requirements hereof or of the
Series 2004 Bonds, the Loan Agreement and the Indenture, for the full, punctual and
complete pertonnance of all the temls, covenants and agreements contained herein and in
the Series 2004 Bonds, the Loan Agreement, the Interlocal Agreement and the Indenture.
SECTION 17. 1'I-IIS RESOLUTION CONSTITUTES A CONTRACT.
The Authority covenants and agrees that this Resolution shall constitute a contract
between the Authority and the OWl1ers from time to time of the Series 2004 Bonds then
outstanding and that all covenants and agreements set forth herein and in the Series 2004
Bonds, the Loan Agreernent, the lnterlocal Agreement and the Indenture, to be perfonned
by the Authority shall be tor the equal and ratab1e benefit and security of all owners of
outstanding Series 2004 Bonds, and all subsc(}uent owners from time to time of the Series
2004 Bonds, without privilege. priority or distinction as to hen or otherwise of any of the
Series 2004 Bonds over any other of the Series 2004 Bonds.
SECTION 18. SEVERABILITY OF INVALID PROVISIONS. Ifanv one
,;
or more of the covenants, agreements or provisions herein contained shall be held
contrary to any express provisions of law or contrary to the policy of express law, though
not expressly prohibited, or against public polky, or shall for any reason whatsoever be
held inval id, then such covenants, agreements or provisions shall be null and void and
shall be deemed separable from the remaining covenants, agreements or provisions, and
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shall in no way affect the validity of any of the other provisions hereof or of the Series
2004 Bonds issued under the Indenture.
SECTION 19. REPEALING CLAUSE. All resolutions or parts thereof in
contlict with the provisions herein contained are, to the extent of such conflict, hereby
superseded and repealed.
SECTION 20. EFFECTIVE DATE. '[his Resolution shaH take effect
immediately upon its adoption.
PASSED AND ADOPTED this 14th day of July, 2004.
COLLIER COUNTY INDliSTRIAL
DEVELOPMENT AU'rHORITY
(SEAL)
ATTEST:
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