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Resolution 2002-256 1 0 K '- I ~ RESOLUTION NO. 2002-256 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, ACTING AS THE EX-OFFICIO GOVERNING BOARD OF THE COLLIER COUNTY WATER-SEWER DISTRICT AUTHORIZING AND DIRECTING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT (UTILITY) WITH THE FLORIDA LOCAL GOVERNMENT FINANCE COMMISSION; AUTHORIZING THE BORROWING OF NOT TO EXCEED $70,000,000 PURSUANT TO THE TERMS OF THE LOAN AGREEMENT (UTILITY) IN ORDER TO FINANCE THE ACQUISITION AND CONSTRUCTION OF CERTAIN CAPITAL IMPROVEMENTS TO THE UTILITY SYSTEM; AUTHORIZING TIlE EXECUTION OF A LOAN NOTE OR NOTES TO EVIDENCE SUCH BORROWING AND AGREEING TO SECURE SUCH LOAN NOTE OR NOTES WITH A CERTAIN PLEDGE OF DESIGNATED REVENUES AS PROVIDED IN THE LOAN AGREEMENT (UTILITY); AUTHORIZING THE EXECUTION AND DELIVERY OF SUCH OTHER DOCUMENTS AS MAY BE NECESSARY TO EFFECT SUCH BORROWING; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, ACTING AS THE EX-OFFICIO GOVERNING BOARD OF THE COLLIER COUNTY WATER-SEWER DISTRICT: SECTION 1. DEFINITIONS. Unless the context of use indicates another meaning or intent, the following words and terms as used in this Resolution shall have the following meanings. "Act" means, collectively, Part I, Chapter 125, Florida Statutes, Part II, Chapter 153, Florida Statutes, Part I, Chapter 163, Florida Statutes, Chapter 78-489, Laws of Florida, Special Acts of I 978, as amended, and all other applicable provisions of law. - I iOK "Additional Payments" means the payments required to be made by the Public Agency pursuant to Sections 5.02(b), 5.02(c), 5.02(d), 5.05, 5.06 and 6.06(e) of the Loan Agreement. "Board" means the Board of County Commissioners of Collier County, Florida, acting as the ex-officio governing board of the Public Agency. "Chairman" means the Chairman or Vice Chairman of the Board, and such other person as may be duly authorized to act on his or her behalf. "Clerk" means the Clerk of the Board and ex-officio Clerk of the Public Agency, and such other person as may be duly authorized to act on his or her behalf. "Commission" means the Florida Local Government Finance Commission, and any assigns or successors thereto. "County" means Collier County, Florida, a political subdivision of the State of Florida. "Designated Revenues" means (1) Net Revenues as set forth in the Loan Agreement, (2) the proceeds of the Loans pending the application thereof, and (3) the proceeds of any obligations issued to refinance Loans made under the Loan Agreement. "Draw Date" has the meaning set forth in the Loan Agreement. "Loan" means the loan to be made by the Commission to the Public Agency from proceeds of the Series A Notes in accordance with the terms of this Resolution and of the Loan Agreement. "Loan No. A-l-1 (Utility)" means the loan designated as "Loan No. A-1-1 (Utility)," the proceeds of which shall be used to finance Utility Project A-1. "Loan Agreement" means the Loan Agreement (Utility), in substantially the form attached hereto as Exhibit B, between the Public Agency and the Commission, pursuant to which the Commission will loan a portion of the Series A Notes proceeds to the Public Agency, as the same may be amended and supplemented. "Loan Note" means a note of the Public Agency evidencing the obligations incurred under the Loan Agreement by the Public Agency on account of a borrowing of money made in regard to a Loan, which shall be in substantially the form provided in the Loan Agreement. 2 1OK "Loan Rate" has the meaning set forth in the Loan Agreement. "Loan Repayments" or "Repayments" means the payments of principal and interest at the Loan Rate on the Loan amounts payable by the Public Agency pursuant to the provisions of the Loan Agreement and all other payments, including Additional Payments, payable by the Public Agency pursuant to the provisions of the Loan Agreement. "Net Revenues" shall have the meaning ascribed thereto in the Utility Resolution. "Program" means the Pooled Commercial Paper Loan Program established by the Commission. "Public Agency" means the Collier County Water-Sewer District, a body corporate and politic and a duly constituted political subdivision of the State of Florida (the "State"). "Repayment Schedule" means the schedule of Loan Repayments as provided in Schedule 1 hereto, as the same may be amended or modified from time to time. "Resolution" means this Resolution, as the same may from time to time be amended, modified or supplemented. "Senior Obligations" means (1) the Public Agency's Water and Sewer Revenue Bonds, Series 1992, Taxable Water and Sewer Refunding Revenue Bonds, Series 1994A, Water and Sewer Refunding Revenue Bonds, Series 1994B, Water and Sewer Refunding Revenue Bonds, Series 1999A and Water and Sewer Refunding Revenue Bonds, Series 1999B; (2) any obligations issued on parity with any of the obligations described in clause (1) above; (3) any obligations issued to refund any of the obligations described in clause (1) or (2) above; and (4) any obligations issued on parity with the obligations described in clause (3) above. "Series A Notes" means the Commission's Pooled Commercial Paper Notes, Series A (Governmental Issue), to be issued from time to time by the Commission. "System" shall have the meaning provided therefor in the Utility Resolution. "Utility Project A-I" means various utility capital improvements to be made to the System, all as more particularly set forth in the plans and specifications on file or to be on file with the County, as the same may be modified or amended from time to time. IOK "Utility Resolution" means the Public Agency's Resolution No. CWS-85-5, adopted on July 30, 1985, as restated, amended and supplemented, and any successor instrument thereto. The terms "herein," "hereunder," "hereby," "hereto," "hereof," and any similar terms, shall refer to this Resolution; the term "heretofore" shall mean before the date of adoption of this Resolution; and the term "hereafter" shall mean after the date of adoption of this Resolution. Words importing the masculine gender include every other gender. Words importing the singular number include the plural number, and vice versa. SECTION 2. AUTHORITY FOR RESOLUTION. This Resolution is adopted pursuant to the provisions of the Act. SECTION 3. that: FINDINGS. It is hereby ascertained, determined and declared (A) The Commission has been established for the principal purpose of issuing commercial paper notes in order to provide funds to loan to public agencies, such as the Public Agency, desiring to finance or refinance the cost of acquiring, constructing and equipping capital improvements and to finance other governmental needs. (B) In furtherance of the foregoing, the Commission shall issue, from time to time, commercial paper notes to be known as "Florida Local Government Finance Commission Pooled Commercial Paper Notes, Series A (Governmental Issue)" and shall loan the proceeds of such Series A Notes to public agencies, including the Public Agency. (C) Pursuant to the authority of the Act, the Commission has agreed to loan, from time to time, to the Public Agency such amounts as shall be authorized herein and in the Loan Agreement in order to enable the Public Agency to finance, reimburse or refinance the costs of acquisition, construction and equipping of various capital improvements, including Utility Project A-1, to the System, and the Public Agency desires to borrow such amounts from the Commission subject to the terms and conditions of the Loan Agreement. (D) There is presently a need by the Public Agency to finance the acquisition and construction of the Utility Project A- 1 and the most cost-effective means by which to finance the Utility Project A-1 is by use of moneys obtained pursuant to the Program by means of Loan No. A- 1-1 (Utility). 4 (E) The Public Agency is authorized under and pursuant to the Act to enter into the Loan Agreement for the purposes set forth therein. (F) The Public Agency hereby determines that the provision of funds by the Commission to the Public Agency in the form of Loan No. A-1-1 (Utility) pursuant to the terms of the Loan Agreement and the financing of a portion of Utility Project A-1 will assist in the development and maintenance of the public welfare of the residents of the Public Agency, and shall serve a public purpose by improving the health and living conditions, and providing governmental services, facilities and programs and will promote the most efficient and economical development of such services, facilities and programs. (G) Loan No. A- 1-1 (Utility) shall be repaid solely from the Designated Revenues described herein and in the Loan Agreement. Such Designated Revenues shall include a pledge of and lien on the Net Revenues which shall be subordinate and junior in all respects to the pledge of a lien on such Net Revenues granted to the holders of the Senior Obligations. The ad valorem taxing power of the County will never be necessary or authorized to make the Loan Repayments. (H) Due to the potential volatility of the market for tax-exempt obligations such as the Note or Notes to be issued evidencing Loan No. A- 1-1 (Utility), the complexity of the transactions relating to such Note or Notes and the uniqueness of the Program, it is in the best interest of the Public Agency to deliver the Note or Notes to the Commission pursuant to the Program by a negotiated sale pursuant to Section 218.385(1), Florida Statutes, allowing the Public Agency to utilize the Program in which it participates from time to time and to enter the market at the most advantageous time, rather than at a specified advertised date, thereby permitting the Public Agency to obtain the best possible price, issuance costs and interest rate for such Note or Notes. SECTION4. AUTHORIZATION OF LOAN AGREEMENT. In connection with Loan No. A- 1-1 (Utility), the Public Agency hereby authorizes and directs the Chairman to execute, and the Clerk to attest under the seal of the Public Agency, the Loan Agreement, and to deliver the Loan Agreement to the Commission for its execution. All of the provisions of the Loan Agreement, when executed and delivered by the Public Agency as authorized herein and when duly authorized, executed and delivered by the Commission, shall be deemed to be a part of this Resolution as fully and to the same extent as if incorporated verbatim herein, and the Loan Agreement shall be in substantially the form attached hereto as Exhibit A, with such changes, amendments, modifications, omissions and additions, including the date of such Loan Agreement, as may be approved by the Chairman. Execution of the Loan Agreement by the Chairman shall be deemed to be conclusive evidence of approval of such changes. IOK SECTION 5. TERMS OF LOAN NO. A-l-1 (UTILITY). The Public Agency hereby approves Loan No. A-1-1 (Utility) in an aggregate amount of not to exceed $70,000,000 for the purposes of providing the Public Agency with sufficient funds to finance a portion of the costs of Utility Project A-1. The Chairman and the Clerk are hereby authorized to execute, seal and deliver on behalf of the Public Agency a Loan Note or Notes and other documents, instruments, agreements and certificates necessary or desirable to effectuate Loan No. A- 1-1 (Utility) as provided in the Loan Agreement. The Loan Note or Notes shall reflect the terms of Loan No. A- 1-1 (Utility) and shall be substantially in the form attached to the Loan Agreement as Exhibit I. The Clerk shall make the Draw Request or Requests with respect to Loan No. A-1-1 (Utility) in accordance with the Loan Agreement in such amount and at such time or times as shall be determined by the Clerk as appropriate to finance the Utility Project A-1 and is permitted by the Loan Agreement. The repayment of Loan No. A-l-1 (Utility) shall be made on such dates and in such amounts as shall be determined by the Clerk and set forth in the applicable Loan Notes. Loan No. A- 1-1 (Utility) shall bear interest at the Loan Rate in accordance with the terms of the Loan Agreement. The Public Agency further agrees to make all Loan Repayments required of it pursuant to the terms of the Loan Agreement. The Letter of Credit Fees for Loan No. A-l-1 (Utility) shall be 38 basis points or such other amount as may be agreed upon between the Public Agency and First Union National Bank. SECTION 6. AUTHORIZATION OF UTILITY PROJECT A-1. The Public Agency does hereby authorize the acquisition and construction of Utility Project A-1. SECTION 7. SECURITY FOR THE LOAN. The Public Agency's obligation to repay Loan No. A-l-1 (Utility) will be secured by a pledge of and lien upon the Designated Revenues in accordance with the terms of the Loan Agreement. The pledge of and lien on the Net Revenues, which constitute a portion of the Designated Revenues, shall be subordinate and junior in all respects to the pledge ora lien on such Net Revenues granted to the holders of the Senior Obligations. The obligation of the Public Agency to repay Loan No. A-1-1 (Utility) shall not be deemed a pledge of the faith and credit or taxing power of the County and such obligation shall not create a lien on any property whatsoever of or in the County other than the Designated Revenues. SECTION 8. GENERAL AUTHORITY. The members of the Board and the officers, attorneys and other agents or employees of the Public Agency are hereby authorized to do all acts and things required of them by this Resolution and the Loan Agreement, or desirable or consistent with the requirements of this Resolution and the Loan Agreement, for the full punctual and complete performance of all the terms, covenants and agreements contained in this Resolution and the Loan Agreement, and each member, employee, attorney and officer of the Public Agency or its Board is hereby authorized and directed to execute 1OK 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 by this Resolution and the Loan Agreement. SECTION 9. SEVERABILITY. 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. SECTION 10. REPEAL OF INCONSISTENT RESOLUTIONS. All resolutions or parts thereof in conflict herewith are hereby superseded and repealed to the extent of such conflict. SECTION 11. EFFECTIVE DATE. immediately upon its adoption. This Resolution shall take effect 7 1OK DULY ADOPTED this 28th day of May, 2002. (SEAL) ATTEST: D~IGHW BROCK, CLERK COLLIER COUNTY WATER-SEWER DISTRICT Chairman, Board of Count~ Comm[s_si?ers of Collier County, Florida, '~¢s' the ',F,~x(Offici~' Chairman of the Goveming Board 6i' the C011ii~'i',-)' County Water-Sewer District rk, Board of County Commissioners of Collier County, Florida and Ex-Officio Clerk of the Goveming Board of the Collier County Water-Sewer District Attest as to Chatrm~n'$ signature 0n15, APPROVED AS TO FORM AND LEGAL SUFFICIENCY: 8