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Resolution 2008-337 RESOLUTION NO. 2008 - 337 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, SUPPLEMENTING RESOLUTION NO. 2004-383, WHICH RESOLUTION NO. 2004-383 AUTHORIZED, AMONG OTHER THINGS, THE ISSUANCE FROM TIME TO TIME OF COLLIER COUNTY, FLORIDA LIMITED GENERAL OBLIGATION BONDS (CONSERVATION COLLIER PROGRAM) TO FINANCE THE ACQUISITION OF ENVIRONMENT ALLY SENSITIVE LAND; ACCEPTING THE PROPOSAL OF SUNTRUST EQUIPMENT FINANCE & LEASING CORP. TO PROVIDE THE COUNTY WITH A LOAN TO FINANCE THE ACQUISITION OF CERTAIN ENVIRONMENT ALLY SENSITIVE LAND; AUTHORIZING THE ISSUANCE OF THE COLLIER COUNTY, FLORIDA LIMITED GENERAL OBLIGATION BOND (CONSERVATION COLLIER PROGRAM), SERIES 2008 IN AN AGGREGATE PRINCIPAL AMOUNT OF NOT EXCEEDING $21,000,000 TO SUNTRUST EQUIPMENT FINANCE & LEASING CORP. IN ORDER TO EVIDENCE SUCH LOAN; AUTHORIZING SUCH BOND TO BE PAYABLE FROM AD VALOREM TAXATION LEVIED IN AN AMOUNT NOT TO EXCEED ONE-QUARTER OF ONE MILL ON ALL TAXABLE PROPERTY WITHIN THE COUNTY; MAKING CERTAIN COVENANTS AND AGREEMENTS WITH RESPECT TO SAID BOND; DELEGATING CERTAIN AUTHORITY TO THE CHAIRMAN AND OTHER OFFICERS OF THE COUNTY; APPOINTING THE COUNTY AS PAYING AGENT AND REGISTRAR FOR SAID BOND; AUTHORIZING THE EXECUTION AND DELIVERY OF OTHER DOCUMENTS IN CONNECTION THEREWITH; 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) Pursuant to the Resolution No. 2002-265, adopted by the Board of County Commissioners (the "Board") of Collier County, Florida (the "Issuer") on June 11, 2002, the Issuer ordered the holding of a bond referendum election to determine if the qualified electors of the Issuer would approve the issuance of not exceeding $75,000,000 aggregate principal amount of limited general obligation bonds payable from ad valorem tax to be levied in an amount not to exceed one-quarter (1/4) of one mill on all taxable property within the Issuer for the principal purpose of financing the acquisition of certain environmentally sensitive land within the Issuer in order to protect water resources, wildlife habitat and public open space suitable for resource based recreation. (B) On November 5, 2002, a bond referendum election was held and the issuance of not exceeding $75,000,000 principal amount of limited general obligation bonds payable from an ad valorem tax levied on all taxable property within the Issuer in an amount not to exceed one-quarter (1/4) of one mill was approved by a majority of the qualified electors of the Issuer voting in said referendum election. (C) On December 14, 2004, the Board duly adopted Resolution No. 2004-383 (as supplemented hereby, the "Resolution"), which Resolution authorized, among other things, the issuance of Collier County, Florida Limited General Obligation Bonds (Conservation Collier Program), Series 2005A (the "Series 2005A Bonds"), which Series 2005A Bonds were issued in the aggregate principal amount of $32,815,000 for the principal purpose of financing the acquisition of certain environmentally sensitive land within the Issuer. (D) The Issuer hereby determines that it is in the best interests of the citizens and consistent with the goals and purposes of "Conservation Collier" as described in the Referendum Resolution to acquire certain additional environmentally sensitive land (the "2008 Project"), as generally described in Exhibit A attached hereto, and as more particularly described in the plans and specifications related thereto which are on file with the Issuer. (E) SunTrust Equipment Finance & Leasing Corp. (the "Initial Purchaser") has submitted a proposal to provide the Issuer with a loan to finance costs of the 2008 Project, which proposal is attached hereto as Exhibit B. (F) The Resolution provides for the issuance of Additional Bonds (as defined in the Resolution) on parity with the outstanding Series 2005A Bonds for the purposes of acquiring the 2008 Project upon meeting the requirements set forth herein and in the Resolution. (G) The Issuer deems it to be in its best interest to accept the proposal of the Initial Purchaser and to issue its Collier County, Florida Limited General Obligation Bond (Conservation Collier Program), Series 2008 (the "Series 2008 Bond") to the Initial Purchaser for the principal purpose of financing the costs of the acquisition of the 2008 2 Project. The Series 2008 Bond shall be issued on parity in all respects with the Series 2005A Bonds pursuant to the terms of the Resolution. (H) Due to the present volatility and uncertainty of the market for tax-exempt obligations such as the Series 2008 Bond, it is in the best interest of the Issuer to sell the Series 2008 Bond by a negotiated sale to the Initial Purchaser pursuant to the provisions hereof and of the Resolution, allowing the Issuer to choose the date of issuance of the Series 2008 Bond rather than issuing the Series 2008 Bond on an advertised date, thereby permitting the Issuer to obtain the best possible price, terms and interest rate for the Series 2008 Bond. (I) The Issuer hereby certifies that no Event of Default (as defined in the Resolution) has occurred and is continuing and all of the covenants and other provisions of the Resolution shall apply to the Series 2008 Bond. (J) All of the representations, warranties and covenants of the Issuer set forth in the Resolution are confirmed and remade as of the date hereof. (K) The Resolution provides that the Series 2008 Bond 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 determine such provisions, terms and details. (L) The Series 2008 Bond shall be repaid solely from the Limited Ad Valorem Tax (as defined in the Resolution) in the manner and to the extent set forth herein and in the Resolution. (M) It is necessary at this time that provision be made for the issuance of the Series 2008 Bond. 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. AUTHORIZATION OF THE 2008 PROJECT. The Issuer hereby authorizes and approves the acquisition of the 2008 Project. The 2008 Project is generally described in Exhibit A attached hereto and is more particularly described in the 3 records, plans and specifications on file with the Issuer. The 2008 Project may be subsequently amended by the Issuer from time to time. SECTION 5. ACCEPTANCE OF PROPOSAL. The Issuer hereby accepts the proposal of the Initial Purchaser to provide the Issuer with a term loan to finance the acquisition of the 2008 Project in the form attached hereto as Exhibit B, and selects Option 2 with respect thereto. To the extent of any conflicts between the provisions of the proposal and the Resolution, the provision of the Resolution shall apply.. The Chair, the Clerk and the County Manager are each hereby authorized to execute and deliver any documents required to formally accept such proposal and the terms thereof. All actions taken by such officers or their designees with respect to such proposal prior to the date hereof are hereby authorized and ratified. SECTION 6. DESCRIPTION OF THE SERIES 2008 BOND. The Issuer hereby authorizes the issuance of a Series of Bonds in the aggregate principal amount of not exceeding $21,000,000 to be known as the "Collier County, Florida Limited General Obligation Bond (Conservation Collier Project), Series 2008" (or such other series designation as the Chair may determine), for the principal purpose of financing all or a portion of the acquisition of the 2008 Project. The aggregate principal amount of the Series 2008 Bond to be issued pursuant to the Resolution shall be determined by the Chair provided such aggregate principal amount does not exceed $21,000,000. The Series 2008 Bond shall be dated as of its date of delivery to the Initial Purchaser, shall be issued in the form of one, fully registered term bond in the denomination of its aggregate principal amount, and shall be numbered "R-I." The text of the Series 2008 Bond shall be substantially in the form set forth in Section 2.1 0 of the Resolution with such changes as the Bank and the Issuer may mutually agree. The Series 2008 Bond shall bear interest from its dated date at a fixed interest rate per annum equal to 4.138% (the "Interest Rate"). The Interest Rate shall be calculated on a 30/360-day basis and is subject to adjustment as provided in Section 10 hereof. Interest shall be payable semi-annually, on January 1 and July 1 of each year (the "Interest Dates"), commencing on July 1, 2009, as set forth in the debt service schedule to be attached to the Series 2008 Bond. The Series 2008 Bond shall mature on January 1, 2013 and the principal of the Series 2008 Bond will be subject to mandatory sinking fund redemption in Amortization Installments commencing on January 1, 2010 and on each January 1 thereafter through the maturity date, the principal amounts of such Amortization Installments to be determined by the Chair and approved by the Initial Purchaser prior to the issuance of the Series 2008 Bond and set forth in the debt service schedule to be attached to the Series 2008 Bond; provided, however, notwithstanding any other provision of the Resolution to the contrary, the Issuer shall not be required to give the holder of the Series 2008 Bond any notice of redemption with respect to the scheduled 4 payment of such Amortization Installments. When the Series 2008 Bond has been paid in full accordance with the terms of the Resolution and of the Series 2008 Bond, the holder shall, upon request of the Issuer, cancel the Series 2008 Bond and deliver it to the Issuer or shall otherwise provide evidence to the Issuer that such Series 2008 Bond has been cancelled. The Series 2008 Bond shall be sold on a negotiated basis to the Initial Purchaser at a purchase price equal to 100% of the aggregate principal amount thereof. The Interest Rate on the Series 2008 Bond shall comply in all respects with Section 215.84, Florida Statutes. Principal and interest on the Series 2008 Bond shall be payable by check, draft, bank wire transfer or in such other manner as is agreed to between the Issuer and the holder of the Series 2008 Bond, made payable to and distributed to the holder in whose name such 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 each Interest Date. All payments of principal and interest on the Series 2008 Bond 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. The Issuer shall keep registration books and records as to the holder or holders of the Series 2008 Bond and shall act in the capacity of Paying Agent and Registrar for purposes of the Resolution. SECTION 7. LIMITED GENERAL OBLIGATION OF THE ISSUER. The Series 2008 Bond shall be a limited general obligation of the Issuer secured by and payable from the Limited Ad Valorem Tax as provided in the Resolution, particularly Section 4.0 I thereof. The Series 2008 Bond shall be on parity in all respects and shall rank equally as to lien on and source and security for payment from the Limited Ad Valorem Tax with the Series 2005A Bonds and any other Additional Bonds that may hereafter be issued. SECTION 8. REDEMPTION PROVISIONS FOR SERIES 2008 BOND. The Issuer may redeem the Series 2008 Bond, in whole or in part, at any time or from time to time by paying to the holder thereof the principal amount of the Series 2008 Bond to be prepaid, together with the unpaid interest accrued on the amount of principal so redeemed to the date of such redemption, plus a redemption premium equal to three percent (3.00%) of the principal amount so redeemed. Notwithstanding the foregoing, the Issuer may redeem the Series 2008 Bond in part only once per calendar year. Each redemption of the Series 2008 Bond shall be made on such date and in such principal amount as shall be specified by the Issuer in a notice delivered to the holder of the Series 2008 Bond not less than thirty (30) days prior thereto specifying the principal amount of the Series 2008 Bond to be redeemed and the date of such redemption. So long as the Issuer provides such notice of redemption, the provisions of Section 3.03 of 5 the Resolution shall not apply with respect to the Series 2008 Bond. Upon any redemption as provided herein and in the Resolution, the holder of the Series 2008 Bond and the Issuer shall mutually agree to a revised amortization schedule for the outstanding principal amount, if any, of such Series 2008 Bond and the holder of the Series 2008 Bond shall provide the County with evidence of such revised amortization. Amortization Installments for the Series 2008 Bonds shall be determined in accordance with Section 6 hereof. Notwithstanding any other provision hereof or of the Resolution to the contrary, the Issuer shall not be required to give the holder of the Series 2008 Bond any notice of redemption with respect to the scheduled payment of such Amortization Installments. SECTION 9. APPLICATION OF SERIES 2008 BOND PROCEEDS. The proceeds derived from the sale of the Series 2008 Bond shall be applied by the Issuer as follows: (A) A sufficient amount of the Series 2008 Bond proceeds shall be held by the Issuer to pay costs and expenses associated with the issuance of the Series 2008 Bond, including but not limited to a fee of $5,500 for counsel to the Initial Purchaser. (B) The remaining proceeds of the Series 2008 Bond shall be deposited into an account established in the Project Fund and shall be used to pay to costs of the 2008 Project. SECTION 10. ADJUSTMENTS TO INTEREST RATE. (A) In the event of a Determination of Taxability (as defined below), the Interest Rate on the Series 2008 Bond shall be increased to such rate as shall provide the holder thereof with the same rate of return that the holder would have otherwise received on the Series 2008 Bond taking into account the increased taxable income of the holder of the Series 2008 Bond as a result of such Determination of Taxability (the "Adjusted Rate"); provided, however, such Adjusted Rate shall never exceed the maximum rate allowable by law. Immediately upon a Determination of Taxability, the Issuer agrees to pay to the holder of the Series 2008 Bond subject to such Determination of Taxability the Additional Amount. "Additional Amount" means (i) the difference between (a) interest on the Series 2008 Bond for the period commencing on the date on which the interest on the Series 2008 Bond (or portion thereof) loses its tax-exempt status and ending on the earlier of the date the Series 2008 Bond ceased to be outstanding or such adjustment is no longer applicable to the Series 2008 Bond (the "Taxable Period") at a rate per annum equal to the Adjusted Rate and (B) the aggregate amount of interest payable on the Series 2008 Bond for the Taxable Period under the provisions of the Series 2008 Bond, plus (ii) any penalties, fines, fees, costs and interest paid or payable by the holder of the Series 2008 Bond to the Intemal Revenue Service by reason of such Determination of Taxability. 6 For purposes of this Section 10, "Determination of Taxability" shall mean the circumstance of interest paid or payable on the Series 2008 Bond becoming includable for federal income tax purposes in the gross income of the holder thereof as a consequence of any act, omission or event whatsoever and regardless of whether the same was within or beyond the control of the Issuer. A Determination of Taxability will be deemed to have occurred upon (x) the receipt by the Issuer or the holder of the Series 2008 Bond of an original or a copy of an Intemal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency or other official letter or correspondence from the Intemal Revenue Service which holds that any interest payable on the Series 2008 Bond is includable in the gross income of such holder; (y) the issuance of any public or private ruling of the Intemal Revenue Service that any interest payable on the Series 2008 Bond is includable in the gross income of the holder thereof, or (z) receipt by the Issuer or the holder of an opinion of a Bond Counsel that any interest on the Series 2008 Bond has become includable in the gross income of the holder for federal income tax purposes. For all purposes of this definition, a Determination of Taxability will be deemed to occur on the date as of which the interest on the Series 2008 Bond is deemed includable in the gross income of the holder of the Series 2008 Bond. (B) If the Maximum Corporate Tax Rate (as defined below) as applicable to the holder of the Series 2008 Bond decreases from 35%, the Interest Rate otherwise borne by the Series 2008 Bond shall be increased to the product obtained by multiplying the interest rate otherwise borne by the Series 2008 Bond by a fraction, the numerator of which is I minus the Maximum Corporate Tax Rate as decreased and the denominator of which is .65. For purposes of this Section 10, "Maximum Corporate Tax Rate" shall mean the highest marginal United States federal income tax rate applicable to the taxable income of corporations without regard to any increase in tax designed to normalize the rate for all income at the highest marginal tax rate, which as of the date hereof is 35%. (C) If any holder of the Series 2008 Bond has not received payment of principal and interest within ten (10) days after it becomes due, regardless of whether any holder has declared an event of default under the Resolution, the Issuer shall be subject to and required to pay additional interest at an interest rate equal to 12.0% per annum for the total number of days for which the late payment is past due. SECTION 11. PROVISION OF INFORMATION. (A) The Issuer will furnish to the holder of the Series 2008 Bond within 180 days after the close of each fiscal year of the Issuer a copy of the annual audited financial statements of the Issuer. The Issuer shall provide the holder with a copy of the adopted annual budget of the Issuer each year within 30 days of the adoption of such budget. The Issuer shall also provide 7 the holder of the Series 2008 Bond any other information that the holder shall reasonably request in writing. (B) The holder of the Series 2008 Bond shall have the right to inspect all pertinent books, records, accountings, statements or other documentation as may relate to the Bonds, the 2008 Project, the security for the Bonds, any of the funds and accounts established under the Resolution, or any other provision of the Resolution, regardless of the outstanding principal amount of the Series 2008 Bond. SECTION 12. GENERAL AUTHORITY. The members of the Board, the County Manager, the Clerk and the officers, attorneys and other agents or employees of the Issuer are hereby authorized to do all acts and things required of them by this Supplemental Resolution, the Resolution, or desirable or consistent with the requirements hereof or the Resolution for the full punctual and complete performance of all the terms, covenants and agreements contained herein, in the Series 2008 Bond and in the Resolution, and each member, employee, attorney and officer of the Issuer or the Board, the County Manager 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 Chair is unavailable or unable at any time to perform any duties or functions hereunder the Vice-Chairman of the Board is hereby authorized to act on his or her behalf. SECTION 13. 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 and stricken solely to the extent required by law 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 2008 Bond. SECTION 14. RESOLUTION TO CONTINUE IN FORCE. The Series 2008 Bond shall be issued pursuant to the Resolution. Except as herein expressly provided, the Resolution and all the terms and provisions thereof are and shall remain in full force and effect. 8 SECTION 15. EFFECTIVE DATE. This Supplemental Resolution shall become effective immediately upon its adoption. DULY ADOPTED, in Regular Session this 18th day of November 2008. BOARD OF COUNTY COMMISSIONERS OF COLLIER CO TY, FLORIDA (SEAL) ATTEST:" '. ..../',... 1".'f' .- ....., ,,/ .~A (. tkAITeST:, - DWIGH'FE.B~OCKCL APPROVED AS to FORM AND LEGAL SUFFr Y:--- 1 t..-sI; *~~ 9 ,..- Item # 1DE- Ageoda I \ ILl ".1,9 Date ~ Date I\AQJ)~ Rec'd l.L.[.Ll) EXHIBIT A DESCRIPTION OF 2008 PROJECT The 2008 Project generally consists of the acquisition of ten parcels of property consisting of approximately 2,511.9 acres of real property located in the Lake Trafford Area and commonly known as Pepper Ranch. EXHIBIT B PROPOSAL OF SUNTRUST EQUIPMENT FINANCE & LEASING CORP.