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Resolution 2004-046 16K 4 RESOLUTION NO. 04-A2- A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA APPROVING THE ISSUANCE AND SALE OF EDUCATIONAL FACILITIES REVENUE BONDS BY THE COLLIER COUNTY EDUCATIONAL FACILITIES AUTHORITY AS REQUIRED BY SECTION 147 (t) OF THE INTERNAL REVENUE CODE, AS AMENDED; AND PROVIDING FOR OTHER RELATED MATTERS. WHEREAS, International College, Inc., a Florida corporation not for profit (the "Borrower") has applied to the Collier County Educational Facilities Authority (the "Authority") to issue a series of its private activity revenue bonds in the initial aggregate principal amount of not to exceed $20,000,000 (hereinafter referred to as the "Bonds" whether issued as multiple bonds or one bond) to be used to (i) payor reimburse the Borrower for the costs of the acquisition, construction, and equipping of certain educational facilities to be located in the City of Fort Myers, Lee County, Florida (the "City") and described below (the "Project"); (ii) currently refund all or a portion of the Authority's $4,800,000 Educational Facilities Authority Revenue Bonds (International College, Inc. Project), Series 1999 and the Authority's $594,000 Revenue Bond (International College, Inc. Project), Series 2001 (collectively, the "Prior Bonds"); and (iii) pay certain expenses incurred in connection with the issuance of the Bonds and the refunding of the Prior Bonds, including the cost of any credit enhancement or liquidity enhancement, if deemed necessary or desirable by the Borrower; and WHEREAS, on January 26, 2004 a public hearing was held by the Authority with regard to the issuance of the Authority's Educational Facilities Revenue Bonds, Series 2004 (International College, Inc. Project) in an aggregate principal amount not to exceed $20,000,000 (the "Bonds"); and WHEREAS, on January 26, 2004, the Authority adopted its Resolution 2004-01 (the "Authority Resolution"), a copy of which is attached hereto as Exhibit A and made a part hereof, said Resolution showing on its face that it was adopted after a public hearing upon notice given as set forth therein and as set forth in Exhibit B to the Authority Resolution; and WHEREAS, the proceeds of the Bonds will be used by the Authority to make a loan to International College, Inc. (the "College") for the purposes set forth above; and WHEREAS, the Bonds will not be an obligation of the County, and will be payable from funds of the College; and WHEREAS, pursuant to the requirements of the Internal Revenue code of 1986, as amended (the "Code"), as a prerequisite to the issuance of the Bonds it is necessary that the Board of County Commissioners of Collier County approve the issuance thereof after said public hearing; and WHEREAS, the Board of County Commissioners desires to evidence its approval of the issuance of the Bonds solely to satisfy the requirements of the Code. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY THAT: 1 t\ II } ,.. tf n ,;..~ Section 1. The Board of County Commissioners hereby approves the issuance of the Bonds solely for purposes of Section 147(t) of the Code. Section 2. The Bonds shall not constitute a debt, liability or obligation of Collier County, its Board of County Commissioners, its officers, agents or employees, or the State of Florida or any political subdivision thereof, but shall be payable solely from the revenues provided therefore, and neither the faith and credit nor any taxing power of Collier County, or the State of Florida or any political subdivision thereof is pledged to the payment of the principal of, premium, if any, and interest on the Bonds. No member of the Board of County Commissioners of Collier County or any officer, agent, or employee thereof shall be liable personally on the Bonds by reason of their issuance. Section 3. This approval shall in no way be deemed to abrogate any regulations of Collier County, and any portion of the Project contemplated by this Resolution located within Collier County shall be subject to all such regulations, including, but not limited to, the Collier County Growth Management Plan, all concurrency requirements contained therein, the Collier County Land Development Code, and all applicable impact fee regulations. Section 4. If any section, paragraph, clause or provision of this Resolution shall be held to be invalid or ineffective for any reason, the remainder of this Resolution shall continue in full force and effect, it being expressly hereby found and declared that the remainder of this Resolution would have been adopted despite the invalidity or ineffectiveness of such section, paragraph, clause or provision. Section 5. This Resolution shall take effect immediately upon its adoption. PASSED and Adopted this 10th day of February, 2004. ATTEST: Dwight E. Brock, Clerk COLLIER COUNTY, FLORIDA BY ITS BOARD OF COUNTY COMMISSIONERS Donn~~an~~ ',\ \ \ Il' I' l/:..,:,!/ 'll... ~:~~, ~ tt; ::p~~iitX~ Je~~ .~ ., "".# ,:" ."'~"~~.rUn's ~t .JS...loN.J~7:.' ~ ., ~Aii~ure t.Q~t1..:',.'E:l;: 1 ~W!~ ., ...~ .'.." .",~ ...~ ....... ,j), "". ... ..,,",~ ..~ /"~ "'~," .,..".,:.....~...:,\'.J-~~o.. ........... [SEA1ul;, J:l~''',>'''' fUUHnll' Approved as to form and I gal ~ufficiency: li~m# jlPl<.L./ ~~?~(!3 ~ -/0' 01 i I ~._'0 -- 1 I ~~:~~,J ~~_I ~~Q t./ I ~~.I 'r t1 r , .7 r Execution Copy \' L ~ RESOLUTION NO. 2004-01 AN INDUCEMENT RESOLUTION OF THE COLLIER COUNTY EDUCA TIONAL FACILITIES AUTHORITY REGARDING THE OFFICIAL ACTION OF THE AUTHORITY WITH RESPECT TO THE PROPOSED ISSUANCE BY THE AUTHORITY OF ITS EDUCATIONAL FACILITIES REVENUE BONDS (INTERNA TIONAL COLLEGE, INC. PROJECT) SERIES 2004 IN AN INITIAL AGGREGA TE PRINCIPAL AMOUNT NOT TO EXCEED $20,000,000 TO BE USED TO (i) PAY OR REIMBURSE INTERNATIONAL COLLEGE, INC, A FLORIDA CORPORATION NOT FOR PROFIT (THE "BORROWER") FOR THE COSTS OF THE ACQUISITION, CONSTRUCTION, AND EQUIPPING OF CERTAIN EDUCA TION AL FACILITIES TO BE LOCATED IN THE CITY OF FORT MYERS, LEE COUNTY, FLORIDA (THE "PROJECT"); (ii) CURRENTLY REFUND ALL OR A PORTION OF THE AUTHORITY'S $4,800,000 EDUCATIONAL FACILITIES AUTHORITY REVENUE BONDS (INTERNATIONAL COLLEGE, INC. PROJECT), SERIES 1999 AND THE AUTHORITY'S $594,000 REVENUE BOND (INTERNATIONAL COLLEGE, INC. PROJECT), SERIES 2001 (COLLECTIVELY, THE "PRIOR BONDS"); AND (iii) PAY CERTAIN EXPENSES INCURRED IN CONNECTION WITH THE ISSUANCE OF THE BONDS AND THE REFUNDING OF THE PRIOR BONDS, INCLUDING THE COST OF ANY CREDIT ENHANCEMENT OR LIQUIDITY ENHANCEMENT, IF DEEMED NECESSARY OR DESIRABLE BY THE BORROWER~ AUTHORIZING THE EXECUTION AND DELIVERY OF A PRELIMINARY FINANCING AGREEMENT BETWEEN THE AUTHORITY AND THE BORROWER; AUTHORIZING THE EXECUTION AND DELIVERY OF AN INTERLOCAL AGREEMENT BETWEEN THE AUTHORITY AND THE CITY OF FORT MYERS, FLORIDA; AND PROVIDING FOR RELA TED MATTERS. WHEREAS, International College, Inc., a Florida corporation not for profit (the "Borrower") has applied to the Collier County Educational Facilities Authority (the "Authority") to issue a series of its private activity revenue bonds in the initial aggregate principal amount of not to exceed $20,000,000 (hereinafter referred to as the "Bonds" Exhibit A to BCC Resolution 16f{ .~, whether issued as multiple bonds or one bond) to be used to (i) payor reimburse the Borrower for the costs of the acquisition, construction, and equipping of certain educational facilities to be located in the City of Fort Myers, Lee County, Florida (the "City") and described below (the "Project"); (ii) currently refund all or a portion of the Authority's $4,800,000 Educational Facilities Authority Revenue Bonds (International College, Inc. Project), Series 1999 and the Authority's $594,000 Revenue Bond (International College, Inc. Project), Series 2001 (collectively, the "Prior Bonds"); and (iii) pay certain expenses incurred in connection with the issuance of the Bonds and the refunding of the Prior Bonds, including the cost of any credit enhancement or liquidity enhancement, if deemed necessary or desirable by the Borrower; and WHEREAS, the Borrower has requested that the Authority loan the proceeds of the Bonds to the Borrower pursuant to Chapter 243, Part I Florida Statutes, or such other provision or provisions of Florida law as the Authority may determine advisable (the "Act") in order to accomplish the foregoing purposes; and WHEREAS, the issuance ofthe Bonds and the loaning of the proceeds thereofto the Borrower to finance the costs of the Project under loan agreements or other financing agreements, and pursuant to the terms thereof which will provide that payments thereunder be at least sufficient to pay the principal of and interest and redemption premium, if any, on such Bonds and such other costs in connection therewith as may be incurred by the Authority, will assist the Borrower and promote the public purposes provided in the Act; and WHEREAS, the Borrower has submitted the Preliminary Financing Agreement (the "Preliminary Agreement") relating to the issuance of the Bonds, attached hereto as Exhibit A; and WHEREAS, in order to satisfy certain of the requirements of Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code"), the Authority did on the date hereof hold a public hearing on the proposed issuance of the Bonds for the purposes herein stated, which date is more than 14 days following the first publication of notice of such public hearing in a newspaper of general circulation in Collier County and which public hearing was conducted in a manner that provided a reasonable opportunity for persons with differing views to be heard, both orally and in writing, on the issuance of the Bonds and the location and nature of the Project as more particularly described in the notice of public hearing attached hereto as Exhibit B; and WHEREAS, the Authority and the City are both "public agencies" as defined in Section 163.01, Florida Statutes, as amended, which is titled the "Florida Interlocal Cooperation Act of 1969" (the "Interlocal Act") and as such "public agencies" are authorized 2 , N~ J~, () ..~ l~ 1 under the Interlocal Act to enter into interlocal agreements for the purposes described in the Preliminary Agreement, the Interlocal Agreement, and herein; and WHEREAS, the Project is located outside the boundaries of Collier County, Florida, but with the boundaries of the City; and WHEREAS, the Authority has been requested to enter into an interlocal agreement with the City to provide for the issuance of the Bonds; and WHEREAS, it is intended that this Resolution shall constitute official action toward the issuance of the 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 Borrower; NOW, THEREFORE, BE IT RESOLVED BY THE COLLIER COUNTY EDUCATIONAL FACILITIES AUTHORITY, THAT: SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of the Act and other applicable provisions of law. SECTION 2. PRELIMINARY STATEMENT. This Resolution is entered into to permit the Borrower to proceed with the financing of the costs of the Project and the refunding ofthe Prior Bonds and to provide an expression ofintention by the Authority, prior to the issuance of the Bonds, to issue and sell the Bonds and make the proceeds thereof available for such purposes, all in accordance with and subject to the provisions of the Act, the Constitution and other laws of the State of Florida and the laws of the United States of America, including the Code, and this Resolution, but subject in all respects to the terms of the Preliminary Agreement. SECTION 3. APPROVAL OF THE FINANCING. The financing of the costs of the Project and the refunding of the Prior Bonds by the Authority through the issuance of the Bonds, pursuant to the Act, will improve educational opportunities for the citizens and residents of Collier County and the City, and will promote the economic development, prosperity, health and welfare of the citizens of Collier County and the City, will promote the general economic structure of Collier County and the City, and will thereby serve the public purposes of the Act and is hereby preliminarily approved, subject, however, in all respects to the Borrower meeting the conditions set forth in the Preliminary Agreement to the sole satisfaction of the Authority. 3 -. ,. " il ,'" ~ i SECTION 4. EXECUTION AND DELIVERY OF PRELIMINARY AGREEMENT. The Chairman or the Vice-Chairman is hereby authorized and directed to execute, for and on behalf ofthe Authority, the Preliminary Agreement, in the form attached hereto as Exhibit A, between the Authority and the Borrower providing understandings relative to the proposed issuance of the Bonds by the Authority in an aggregate principal amount not to exceed the lesser of (a) $20,000,000 or (b) the amount determined by the Authority and the Borrower to be necessary to accomplish the foregoing purposes. SECTION 5. AUTHORIZA TION OF THE BONDS. There is hereby authorized to be issued and the Authority hereby determines to issue the Bonds, if so requested by the Borrower and subject in all respects to the conditions set forth in the Preliminary Agreement, in an aggregate principal amount not to exceed $20,000,000 for the purposes set forth. The rate of interest payable on the Bonds shall not exceed the maximum rate permitted by law. SECTION 6. AUTHORIZATION OF INTERLOCAL AGREEMENT. The Chairman or the Vice-Chairman is hereby authorized and directed to execute and deliver an lnterlocal Agreement between the Authority and the City in substantially the form as set forth in Exhibit C hereof. SECTION 7. GENERAL AUTHORIZATION. The Chairman and the Vice-Chairman are hereby further authorized to proceed, upon execution of the Preliminary Agreement, with the undertakings provided for therein on the part of the Authority and are further authorized to take such steps and actions as may be required or necessary in order to cause the Authority to issue the Bonds subject in aU respects to the terms and conditions set forth in the Preliminary Agreement authorized hereby. SECTION 8. OFFICIAL ACTION. This resolution is an official action of the Authority toward the issuance of the Bonds, as contemplated in the Preliminary Agreement, in accordance with the provisions of the laws of the State of Florida and the applicable United States Treasury Regulations. SECTION 9. LIMITED OBLIGATIONS. The Bonds and the interest thereon shall not constitute an indebtedness or pledge of the general credit or taxing power of Collier County, the State of Florida or any political subdivision or agency thereofbut shall be payable solely from the revenues pledged therefor pursuant to a loan agreement or other financing agreement entered into between the Authority and the Borrower prior to or contemporaneously with the issuance of the Bonds. The Authority has no taxing power. 4 16K ,i,. .......A'lil ., SECTION 10. LIMITED APPROVAL. The approval given herein shall not be construed as an approval or endorsement of approval of any necessary rezoning or other land use or development applications nor for any other regulatory permits relating to the Project and the Authority shall not be construed by reason of its adoption of this resolution to have waived any right of Collier County or the City or to have estopped either of them from asserting any rights or responsibilities they may have in that regard. SECTION 11. immediately. EFFECTIVE DATE. This Resolution shall take effect ADOPTED this 26th day of January, 2004. 5 . . . >- : ~- . ,.."'~ . ......#. ~ \ ,", "~'. t , , I . .. . v _ J.. ", .... 16K4 COLLIER COUNTY EDUCATIONAL FA~ AUTHOR; Chairman / . ~ ~.." EXHIBIT A TO RESOLUTION 2004-01 16 4 PRELIMINARY FINANCING AGREEMENT FOR ISSUANCE OF PRIVATE ACTIVITY REVENUE BONDS This Agreement between the Collier County Educational Facilities Authority, a public body corporate and politic (the "Authority") and International College, Inc., a Florida not-for- profit corporation (the "Borrower"). WITNESSETH: 1. Preliminary. Statement. Among the matters of mutual understanding and inducement which have resulted in the execution of this Agreement are the following: (a) The Act provides that the Authority may issue revenue bonds and loan the proceeds thereof to one or more persons, firms or private corporations, or use such proceeds, to defray the cost of acquiring, by purchase or construction, certain qualifying educational facilities. (b) The Borrower is considering financing the costs of the acquisition, construction and equipping of educational facilities to be owned and operated by the Borrower. (c) The Borrower has applied to the Authority to issue a series of its private activity revenue bonds in the initial aggregate principal amount of not to exceed $20,000,000 (the "Bonds") to be used to (i) pay or reimburse the Borrower for the costs of the acquisition, construction, and equipping of certain educational facilities to be located in the City of Fort Myers, Lee County, Florida (the "Project"); (ii) currently refund all or a portion of the Authority's $4,800,000 Educational Facilities Authority Revenue Bonds (International College, Inc. Project), Series 1999 and the Authority's $594,000 Revenue Bond (International College, Inc. Project), Series 2001 (collectively, the "Prior Bonds"); and (iii) pay certain expenses incurred in connection with the issuance of the Bonds and the refunding of the Prior Bonds, including the cost of any credit enhancement or liquidity enhancement, if deemed necessary or desirable by the Borrower. (d) The Authority considers the issuance and sale of the Bonds, for the purposes hereinabove set forth, consistent with the objectives of the Act. This Agreement constitutes official action of the Authority toward the issuance of the Bonds in accordance with the purposes of the Act and the applicable United States Treasury Regulations. A-1 2. Undertakings on the Part of the Authori _ty. Subject to the terms hereof, the Authority agrees as follows: (a) The Authority will, subject to the terms hereof, authorize the issuance of the Bonds, in one or more series, in the aggregate principal amount necessary and sufficient to finance the cost of acquiring, constructing and equipping the Project and refunding the Prior Bonds as the Authority and the Borrower shall agree in writing (including costs of issuance of such Bonds), but in all events, the principal amount of such Bonds shall not exceed the lesser of (i) the amount determined by the Authority and the Borrower to be necessary to accomplish the foregoing, or (ii) $20,000,000. (b) The Authority will cooperate with the Borrower and with the underwriters, placement agents or purchasers of the Bonds and the Bond Counsel of the Authority with respect to the issuance and sale of the Bonds and will take such further action and authorize the execution of such documents as shall be mutually satisfactory to the Authority and the Borrower for the authorization, issuance and sale of such Bonds and the use of the proceeds thereof for the purposes set forth. (c) Such actions and documents may permit the issuance from time to time in the future of additional bonds on terms which shall be set forth therein, whether pari passu with other series of bonds or otherwise, for the purpose of (1) defraying the cost of completion, enlargements, improvements and expansions of the Project, or any segment thereof, or (2) refunding all or a portion of the Bonds. (d) The loan agreements, trust indentures, and other financing documents (collectively, the "Financing Agreements") between the Authority and the Borrower shall, under terms agreed upon by the parties, provide for payments to be made by the Borrower in such sums as shall be necessary to pay the amounts required under the Act, including the principal of and interest and redemption premium, if any, on the Bonds, as and when the same shall become due and payable. (e) In authorizing any issuance of the Bonds pursuant to this Agreement, the Authority will make no warranty, either expressed or implied, that the proceeds of the Bonds will be sufficient to pay all costs of acquiring, constructing and expanding the Project or that those facilities encompassed by the Project will be suitable for the purposes or needs of the Borrower. (f) The Bonds shall specifically provide that they are payable solely from the revenues derived from the Financing Agreements between the Authority and the Borrower A-2 16R4 or other agreements approved by the Authority. The Bonds and the interest thereon shall not constitute an indebtedness or pledge of the general credit of Collier County, the City, the State of Florida or any political subdivision or agency thereof, and such fact shall be plainly stated on the face of each of the Bonds. (g) Issuance of the Bonds by the Authority shall be contingent upon satisfaction of all of the provisions hereof and all provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations promulgated thereunder, and the approval by the Board of County Commissioners of Collier County, Florida and the City Council of the City in accordance with the provisions of Section 147(f) of the Code. 3. Undertakings on the Part of the Borrower. Subject to the terms hereof, the Borrower agrees as follows: (a) The Borrower will use reasonable efforts to insure that the Bonds in the aggregate principal amount as stated above are sold; provided, however, that the terms of such Bonds and of the sale and delivery thereof shall be mutually satisfactory to the Authority and the Borrower. (b) Prior to the issuance of the Bonds in the principal amount stated above in one or more series from time to time as the Authority and the Borrower shall agree in writing, the Borrower will enter into the Financing Agreements with the Authority, the terms of which shall be mutually agreeable to the Authority and the Borrower, providing for the loan or use of the proceeds of the Bonds in accordance with the purposes set forth herein. Such Financing Agreements will provide that the Borrower will be obligated to pay the Authority (subject to any assignment pursuant to the Financing Agreements, as the case may be) sums sufficient in the aggregate to enable the Authority to pay the principal of and interest and redemption premium, if any, on the Bonds, as and when the same shall become due and payable, and all other expenses related to the issuance and delivery of the Bonds. (c) The Borrower shall, in addition to paying the amounts set forth in the Financing Agreements, pay all applicable costs of operation, maintenance, taxes, governmental and other charges which may be assessed or levied against or with respect to the Project. (d) To the extent not otherwise paid from Bond proceeds, the Borrower hereby agrees to pay (i) the Authority Bond Issuance Fee, (ii) all of the out-of-pocket expenses of officials and representatives of the Authority incurred in connection with the issuance of the Bonds and (iii) all fees and expenses of Donald A. Pickworth, P.A., Counsel to the Authority, and ofNabors, Giblin & Nickerson, P.A., Bond Counsel. A-3 16 (4 (e) The Borrower will hold the Authority, Collier County, and the City free and harmless from any loss or damage and from any taxes or other charges levied or assessed by reason of any mortgaging or other disposition of the Project. (f) The Borrower agrees to indemnify and defend the Authority, Collier County, and the City (the "Indemnified Parties") and hold the Indemnified Parties and any officer or employee thereof harmless against any and all claims, losses, liabilities or damages to property or any injury or death of any person or persons occurring in connection with the Project or the issuance of the Bonds and the Borrower's undertaking thereof, or in any way growing out of or resulting from this Agreement including, without limitation, all costs and expenses of the Authority and reasonable attorneys' fees incurred in the enforcement of any agreement of the Borrower contained herein. In the event that the Bonds are not issued and delivered, this indemnity shall survive the termination of this Agreement. (g) The Borrower will take such further action as may be required to implement its aforesaid undertakings and as it may deem appropriate in pursuance thereof. 4. General Provisions. All commitments of the Authority under Section 2 hereof and of the Borrower under Section 3 hereof are subject to the conditions that all of the following events shall have occurred not later than January 1, 2005, or such other date as shall be mutually satisfactory to the Authority and the Borrower: (a) The Authority shall be lawfully entitled to issue the Bonds as herein contemplated. (b) The Authority and the Borrower shall have agreed on mutually acceptable terms for the Bonds and the sale and delivery thereof and mutually acceptable terms and conditions of any trust instruments or instruments in respect thereto and any Financing Agreements or other agreements incidental to the financing or referred to in Sections 2 and 3 hereof. (c) Rulings satisfactory to the Borrower and the Authority as to such matters with respect to the Bonds, the Project, the Financing Agreements and any other trust instrument or instruments, if specified by the Authority and the Borrower, shall have been obtained from the Internal Revenue Service and/or the United States Treasury Department and shall be in full force and effect at the time of issuance of the Bonds. (d) Such other rulings, approvals, consents, certificates of compliance, opinions of counsel and other instruments and proceedings satisfactory to the Borrower and the A-4 16 4 Authority as to such matters with respect to the Bonds, the Project, the Financing Agreements and any other trust instrument or instruments, as shall be specified by the Borrower or the Authority, shall have been obtained from such governmental, as well as non-governmental, agencies and entities as may have or assert competent jurisdiction over or interest in matters pertinent thereto and shall be in full force and effect at the time of issuance of the Bonds. (e) Compliance with all applicable provisions of Chapters 243, 189, 215 and 218, Florida Statutes, and the Authority's guidelines and procedures relating to the issuance of the Bonds, the interest rates thereon, the type of purchasers of the Bonds and the terms on which the Bonds may otherwise be issued. (f') Notwithstanding any other terms hereof, nothing contained herein shall be construed to create a binding commitment by the Authority to issue the Bonds until such time, if ever, as the Authority shall grant its final approval for the issuance of the Bonds and the final terms and provisions of the Financing Agreements. By execution hereof, the Borrower agrees that the Authority may withhold its final approval of the issuance of the Bonds in its sole discretion and shall not incur any liability whatsoever as a result of it not granting any such approval notwithstanding any other provision hereof. If the events set forth in this Section 4 do not take place within the time set forth or any extension thereof, the Borrower agrees that it will reimburse the Authority for all the reasonable and necessary direct or indirect expenses which the Authority may incur at the Corporation's request arising from the execution of this Agreement and the performance by the Authority of its obligations hereunder, including reasonable legal fees and expenses for Counsel to the Authority and Bond Counsel. 5. Binding Effect. Ail covenants and agreements herein contained by or on behalf of the Authority and the Borrower shall bind and inure to the benefit of the respective successors and assigns of the Authority and the Borrower whether so expressed or not. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement by their officers thereunder duly authorized as of the 26th day of January, 2004. ]Remainder of page intentionally left blank, signatures on following page] A-5 COLLIER COUNTY EDUCATIONAL FACILITIES AUTHORITY Cl'/airm~ / / ' - INTERNATIONAL COLLEGE, INC. EXHIBIT B TO RESOLUTION 2004-01 16K4 AFFIDAVIT OF PUBLICATION OF NOTICE OF PUBLIC HEARING 1LK Naples Daily News ~tcaof$~'~blg~rx'lP~licHall'i~ Naples, FL 34102 ColJierCountyEducaflomilF&ailitiesAu~J~tY%teMJ' Notice is hereby given that tM Collier County Edu- Affidavit of Publication catlona Faciitle~ Auth~l~ (t~ "Authoflq~") will conduct a $pec~l meotin~ ami public hare'lng on Naples Daily News J~u~",/ 26~200~. ot ~:~"~.~,~ ........ - - -+ .......... Econom coiVeiopmeflt COMit~ BOarD ................ North Horseshoe Dri¥~, ~lljlt'~ 12.0, N~ples, Florida, 34104, for the purpose,,W! receiving [:)ubllc com- monte and NWlng dI .sc~.~n cancernm~.the pro- poeed I"spance of the Au~aorlty'o Educauoual cllltles Revenue Bands, Series 20~4 (International Collegl, In(:, I%-oJ~at), In an amDunt not to exceed PICKWORTH, DONALD P · A. ~,10,90o,ooo (tho ABond~l)). The proceeds of the Sq_50 TDd~IIAMI TRL N ~502 sones will be loaned tn Intematlo~ Cohege, a private not for profit corporaUon orj%anized under NAPLES FL 34103 tho laws cd the State of Florlde (the "uorrower") to REFERENCE: 010784 58783514 Notice of Special Me State of Florida County of collier Before the undersigned authority, personally appeared B. Lamb, who on oath says that she serves as Assistant Corporate Secretary of the Naples Daily News, a daily newspaper published at Naples, in Collier County, Florida: that the attached copy of advertising was published in said newspaper on dates listed. Affiant further says that the said Naples Daily News is a newspaper published at Naples, in said Collier County, Florida, and that the said newspaper has heretofore been continuously published in said Collier County, Florida, each day and has been encored as second class mail matter at the post office in Naples, in said Collier County, Florida, for a period of 1 year next preceding the first publication of the attached copy of advertisement; and affiant further says that she has neither paid nor promised any person, firm or corporation any discount, rebate, commission or refund for the purpose of securing this advertisement for publiction in the said newspaper. PUBLISHED ON: 01/11 AD SPACE: 276.000 INCH FILED ON: 01/12/04 Signature of Affiant Sworn to and Subscribed before me this ~3s~L d~y of be used, t~gother with certain other funds, to: 0) pay or relmbum~ the Jonowe* for tho costs of the acquts tlou con~roctlon and equipping of certain educational ~cllitles to be located In the City of Fort Myers, Lee County, Florida end described be- IOW (tt~ "Project"); ~,!t) current rotund MI or a por- tl~ of tho Authority S $4LSO~(X) Edl~cetlanei FacOI- I ties Authority Revenue ~londe (international Col- lope, loc Project) Seres 1999 and the Autherit~-'s SS~4,D~0 Rever~ue Bond (IoternatWnei College mc. Project), Series 2001 (collectively, the "PriorI Bonds") (I) P~y carte n expenses incurred tn con-~ nectlon with the issuance of the Bonds and the re- funding of the Prior Bonds including the cost of any credit enhm~cerneot Or liquidity enhancement. if deemed necess~/'y er deslral~le by the Borrower. if the Authority dotermlnes to ~pprove the Bonds.. it wi onnslder e resolution approving the Bonos, sublect to certain conditions (the Alnducement ResolutionS). and a Preltmin&ry Agreement be- tween the Authority a~ld the Borrower relating ta the conditions for the Issuance of the Bonds lUtd' Ule payment of tt~ costs thereot by tM Borrower. The ssuance of bands for the Pro eot will require that the Authority enter into an I~teriocei Agree- ment pursuant to Chapter 163~ Florida Statutes, with the City Of Fort Myers. At the meeting, the Au- thor ty w cons dar a~d may authorize the offi- cers of the Authority to enter Into, an Interlocal Agreemer~ LPro}ect Descril~tlon: Construct[on of a concrete bock bu dl.~g Olr approxlmotely 60,000 square feet to house graces. Classrooms. ~nd relateD adminis- trative and InstrucUonal space. 2 Project Location: The site is an the north side of Co on a ~ou evard (eR 884) ot It~ intersection with Wtnkler Avenue (west s de of Wink er Avenue), In the City of Fort Myers Lee County, Rerid~. The site cord~eios 1~49 acres, more or less, and is located In parcel B, Newmens Terrace, accord~ to the plat thereof recorded at P at Book 6 Page 41 of the Public Records of Lee Cour~y Florida and is in the m~-thwest quarter of Section 33 Township a.4 South. Range 2S Eat, t, Lee County, Florid& '3 n t a Owner and Operator,* International lega Inc.~ a.private not for profit corporation orga- nlzed under me awe of tM State of Florida The proceeds of the prior Bonds were used to fl- nN~ce the acqolsitto~ construction, and equipping of certain educational facltlties. ~nctudlng site ac- qu sltton located in Collier County, Florida (the 'CO let Facll ties") and described asfol ows: 4.Cailler Facliities PrOject DescrWtlom A two-story concrete block bultdt?.g of approximately 45,000 squ~re feet housing graces classrooms, a~d relat- eD admlnlatrative and instructional space. $.Colller Facilities Pro act Address: 2655 North- brooke Drive, Nap es, F or da34119 6. Collier Facilities Initial (and current) Owner and Operator: International College Inc., a private not for profit oorporation organized under the laws of the ~tate of Fl~'ide A nterested persons are Invited tc submit written comments or attend the he~i'lng either personally or through their representative and wlti be given an opportunity to express their views concerning tho proJaot or the fhl&ncing. Anyone desiring to m~ke writte~ c~mments in a~va~ce of the hearing may send ouch comments to: Collier County Educational Facilities Authority c/o General Counsel 51~ North Tamlami Tralh Suite 502 Nep~, Flerlde 34103 Wrltten nom.,no~ts ~eived In advance of the hear~ ~ng, and orM commant~ ~ at the heorlng~ are for the ~lderatlon of the Authority and Will not bled the Au~. C~es of th~ application for fl- n~ncl~0, the proposed i~erl~al Agreement. the In- ducement Resolution, ~d the Prollmlnary Agree- mefltare available tot inspection ~ copying at the offices of tho General Co~dsei and tho Collier County ~omlc Deveiedme~t Council, es set forth SHOULD AN~ PERSON DECID~ TO APpEAl. ANY DECI- SION MAD~ aY THE AUTHORITY WITH RESPECT TO ANY MATTER CON~DEREO AY ~UCH HEARING, SUCH PER~ON WILl: NL~D' A RECORD OF THE PROCEED- INGS AND. FOR THAT PURPOSE, SUCH PERSON MAY NEED TO ENSURE THAT A VERBATIM RECORD OF TH[ PROCEEDINGS IS MADE, WHICH RECORD CLUDES THE TESTIMONY ANb EVIDENCE UPON WHICH THE API~ I$ TO I~ ~ASED, I1~ e~ ~ the ~lbp~S with Dtes~llitles EXHIBIT C TO RESOLUTION 2004-01 FORM OF INTERLOCAL AGREEMENT BETWEEN COLLIER COUNTY EDUCATIONAL FACILITIES AUTHORITY AND CITY OF FORT MYERS, FLORIDA This instrument was prepared by or under the supervision of (and after recording should be returned to): Christopher M. Traber, Esq. Nabors, Giblin & Nickerson, P.A. 2502 Rocky Point Drive, Suite 1060 Tampa, Florida 33607 16K (Space reserved for Clerk of Court) INTERLOCAL AGREEMENT BETWEEN COLLIER COUNTY EDUCATIONAL FACILITIES AUTHORITY AND THE CITY OF FORT MYERS, FLORIDA WHEREAS, the Collier County Educational Facilities Authority (the "Issuer") is a public body corporate and politic and a public instrumentality organized and existing under the laws of the State of Florida including, particularly, Chapter 243, Part I, Florida Statutes; and WHEREAS, the Issuer has received an application from International College, Inc., a Florida not-for-profit corporation (the "Borrower") requesting that the Issuer issue its educational facilities revenue bonds in an amount not to exceed $20,000,000 and loan the proceeds from the sale thereof to the Borrower for the principal purpose of providing funds sufficient to (i) pay or reimburse the Borrower for the costs of the acquisition, construction, and equipping of certain educational facilities to be located in the City, Florida ( the "Project"); (ii) currently refund all o r a portion o f t he Issuer's $ 4,800,000 Educational Facilities Authority Revenue Bonds (International College, Inc. Project), Series 1999 and the Issuer's $594,000 Revenue Bond (International College, Inc. Project), Series 2001 (collectively, the "Prior Bonds"); and (iii) pay certain expenses incurred in connection with the issuance of the Bonds (as defined below) and the refunding of the Prior Bonds, including the cost of any credit enhancement or liquidity enhancement, if deemed necessary or desirable by the Borrower, as described in the Preliminary Financing Agreement between the Issuer and the Borrower, dated as of January 26, 2004; and WHEREAS, the Issuer has given its preliminary approval to the issuance of its educational facilities revenue bonds in one or more series and in the aggregate principal amount of not exceeding $20,000,000 (the "Bonds"), pursuant to the authority of Chapter 243, Part I, Florida Statutes, Chapter 163, Part I, Florida Statutes and other applicable provisions of law (collectively, the "Act"), for the purposes described above; and WHEREAS, the Bonds shall be secured solely by revenues described in the Indenture of Trust to be dated as of March 1, 2004 between the Issuer and (the "Trustee") (including any amendments and supplements thereto, the "Indenture"), and the payment of the principal of and premium, if any, and 16/<4" interest on the Bonds as the same shall become due shall be made solely by the Borrower in the amounts and from the sources as required by the Indenture and that certain Loan Agreement to be dated as of March 1, 2004, between the Issuer and the Borrower (including any amendments and supplements thereto, the "Loan Agreement"); and WHEREAS, it is deemed desirable by both the Issuer and the City of Fort Myers, Florida (the "City") that the Issuer and the City enter into this Interlocal Agreement, as provided for and under the authority of Part I, Chapter 163, Florida Statutes, in order to assist the Borrower in the financing of the Project located in the municipal boundaries of the City, as more fully described in the Indenture and the Loan Agreement; and WHEREAS, the Issuer and the City have determined that the loan of funds derived from the proceeds of the Bonds to the Borrower pursuant to the terms of the Indenture and the Loan Agreement will assist in providing modem and efficient educational facilities and equipment as is commensurate with a desirable level of quality education in Collier County and the City, and shall serve the public purposes of the Act, the Project is appropriate to the needs and circumstances of, and shall make a significant contribution to, the provision of educational facilities in Collier County and the City and the respective inhabitants thereof; and WHEREAS, neither the Issuer, Collier County, the City, nor the State of Florida or any political subdivision or agency thereof shall in any way be obligated to pay the principal, premium, if any, or interest on the Bonds as the same shall become due, and the issuance of the Bonds shall not directly, indirectly, or contingently obligate the Issuer, Collier County, the City, the State of Florida, or any political subdivision or agency thereof to levy or pledge any form of taxation whatsoever therefor or to make any appropriation from ad valorem taxation revenues for their payment; and WHEREAS, on the date hereof, following a duly noticed public hearing held by the City Council of the City (the "City Council"), for the purpose of giving all interested persons an opportunity to express their views, either orally or in writing, on the proposed issuance of the Bonds, the City Council, which has jurisdiction for purposes of Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code"), over the area in which a the Project is located, approved the execution and delivery of this Interlocal Agreement, the issuance of the Bonds by the Issuer and the application of the proceeds thereof; and NOW, THEREFORE, THIS INTERLOCAL AGREEMENT, BETWEEN COLLIER COUNTY EDUCATIONAL FACILITIES AUTHORITY AND THE CITY OF FORT MYERS, FLORIDA, WITNESSETH AS FOLLOWS: 2 SECTION 1. PURPOSE. The Borrower shall borrow funds derived from the proceeds of the Bonds issued by the Issuer for the principal purpose of paying for the cost of the Project and refunding the Prior Bonds as contemplated by the Indenture and the Loan Agreement and the funds shall be repaid solely from the revenues of the Borrower pursuant to the terms of the Indenture and Loan Agreement and the funds shall be duly expended for their stated purpose. The City hereby acknowledges and approves the issuance of the Bonds and loan of the proceeds thereof to the Borrower to finance the Project located in the municipal boundaries of the City. The City acknowledges that the approval being granted by the City is being provided solely for the purpose of complying with the host approval requirements of the Act and Section 147(f) of the Code and the Issuer and the City are entering into this Interlocal Agreement in order to more effectively perform the Issuer's function related to the provision of adequate educational facilities pursuant to the powers granted under Section 163.01, Florida Statutes, as amended. SECTION 2. PUBLIC AGENCIES; TERM. At all times prior to and during the term of this Intedocal Agreement, the Issuer and the City constitute "public agencies" as that term is defined in Section 163.01(3)(b), Florida Statutes, and both the Issuer and the City have the power and authority to enter into this Intedocal Agreement for the purposes provided herein. This Intedocal Agreement shall remain in full force and effect for so long as the Bonds remain outstanding. SECTION 3. NON-DELEGATION OF DUTIES. This Interlocal Agreement shall in no way be interpreted to authorize the delegation of the constitutional or statutory duties of the Issuer, Collier County, the City, the State of Florida or any political subdivision or agency thereof or any members or officers thereof. SECTION 4. NO PECUNIARY LIABILITY OF THE CITY; LIMITED OBLIGATION OF ISSUER. Neither this Interlocal Agreement nor the Bonds shall be deemed to constitute a general debt, liability, or obligation of or a pledge of the faith and credit of the Issuer, Collier County, the City, the State of Florida, or any political subdivision or agency thereof. The issuance of the Bonds pursuant to this Interlocal Agreement shall not directly, indirectly, or contingently obligate the Issuer, Collier County, the City, the State of Florida, or any political subdivision or agency thereof to levy or to pledge any form of taxation whatsoever therefore, or to make any appropriation for their payment. SECTION5. RELIANCE; INDEMNIFICATION. In executing and delivering this Interlocal Agreement, the City is relying on the representations, warranties and covenants t o b e made b y t he Borrower i n t he Loan Agreement, including b ut not limited to, a covenant with respect to the use of the Project for the purpose of providing 16}(4 educational facilities in the City, as such term is defined in the Act. The City shall be deemed to be a third party beneficiary to the Loan Agreement for the purposes of relying on such covenant of the Borrower, and shall be entitled to rely on the indemnification provided by the Borrower pursuant to such Loan Agreement (and references to the Issuer in the Loan Agreement shall include the City) if the Borrower fails to perform such covenant. It shall be an express condition to the effectiveness of this Interlocal Agreement that the Loan Agreement contain the above-referenced covenant of the Borrower. SECTION 6. NO PERSONAL LIABILITY. No covenant or agreement contained in this Interlocal Agreement shall be deemed to be a covenant or agreement of any member, officer, agent or employee of the Issuer or the City in his or her individual capacity a nd n o member, officer, a gent o r employee o f t he Issuer o r t he City or t heir respective governing bodies shall be liable personally on this Interlocal Agreement or be subject to any personal liability or accountability by reason of the execution of this Interlocal Agreement. SECTION 7. QUALIFYING PROJECT; IMPACT OF PROJECT. Exhibit A attached hereto describes the Project. This description was relied upon by the City in authorizing the execution of this Interlocal Agreement. Based on the description of the Project, the City hereby finds that it is able to cope satisfactorily with the impact of the Project, and is able to provide, or cause to be provided when needed, all the public facilities, utilities and services that will be necessary for the operation, repair, improvement and maintenance of the Project, and on account of any increase in population or other circumstances resulting by reason of the location of the Project within the City. SECTION 8. FILING OF INTERLOCAL AGREEMENT. It is agreed that this Interlocal Agreement shall be filed by the Borrower or its authorized agent or representative with the Clerk of the Circuit Court of Lee County, Florida, and with the Clerk of the Circuit Court of Collier County, Florida, all in accordance with the Chapter 163, Part I, Florida Statutes, and that this Interlocal Agreement shall not become effective until so filed. SECTION 9. INDEMNITY; EXPENSES. The Borrower, by its approval and acknowledgment at the end of this Interlocal Agreement, agrees to indemnify and hold harmless the Issuer and the City, and their respective officers, employees and agents, from a nd against a ny and a 111 osses, claims, damages, liabilities o r expenses, o f e very conceivable kind, character and nature whatsoever, including, but not limited to, losses, claims, damages, liabilities or expenses (including reasonable fees and expenses of attorneys, accountants, consultants and other experts), arising out of, resulting from, or in 4 any way connected with this Interlocal Agreement or the issuance of the Bonds, other than any such losses, damages, liabilities or expenses, in the case of the City, arising from the willful misconduct of the City, and, in the case of the Issuer, arising from the willful misconduct of the Issuer. The Borrower agrees to pay the City for its reasonable expenses related to the issuance of the Bonds. SECTION 10. GOVERNING LAW. This Interlocal Agreement is being delivered and is intended to be performed in the State of Florida, and shall be construed and enforced in accordance with, and the fights of the parties shall be governed by, the laws of such State. SECTION 11. SEVERABILITY OF INVALID PROVISIONS. If any 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 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. SECTION12. EXECUTION IN COUNTERPARTS. This Interlocal Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Interlocal Agreement by signing any such counterpart. [Signature pages follow] 5 IN WITNESS WHEREOF, this Interlocal Agreement has been executed by and on behalf of the Issuer which has caused this Interlocal Agreement to be executed by its Chair or Vice-Chair, its seal affixed hereto, as attested by its Assistant Secretary all as of the __ day of ,2004. COLLIER COUNTY EDUCATIONAL FACILITIES AUTHORITY (SEAL) ATTEST: Alice J. Carlson, Chair Assistant Secretary STATE OF FLORIDA COUNTY OF COLLIER The foregoing instrument was acknowledged before me this __ day of January, 2004, by Alice J. Carlson, Chair of the Collier County Educational Facilities Authority, who is personally known to me/has produced as identification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: 6 IN WITNESS WHEREOF, this Interlocal Agreement has been executed by and on behalf of the City by its Mayor, its seal affixed hereto, as attested by its City Clerk all as of the __ day of ., 2004. CITY OF FORT MYERS, FLORIDA (SEAL) ATTEST: Jim Humphrey, Mayor City Clerk APPROVED AS TO FORM City Attorney STATE OF FLORIDA COUNTY OF LEE The foregoing instrument was acknowledged before me this __ day of January, 2004, by Jim Humphrey, Mayor of the City of Fort Myers, Florida, who is personally known to me/has produced as identification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: 7 APPROVAL AND ACKNOWLEDGMENT OF THE BORROWER The undersigned, Terry P. McMahan, President of and on behalf of Intemational College, Inc., hereby approves this Interlocal Agreement and acknowledges its acceptance of its obligations arising thereunder, by causing this Approval and Acknowledgment to be executed by its proper officer and attested by its proper officer all as of the date of said Interlocal Agreement. INTERNATIONAL COLLEGE, INC. (SEAL) ATTEST: Terry P. McMahan, President John W. White, Vice President of Finance STATE OF FLORIDA COUNTY OF COLLIER The foregoing instrument was acknowledged before me this __ day of January, 2004, by Terry P. McMahan, President of and on behalf of International College, Inc., who is personally known to me/has produced as identification. (SEAL) Printed/Typed Name: Notary Public-State of Florida Commission Number: EXHIBIT A l K4 DESCRIPTION OF PROJECT Project Description: Construction of a concrete block building of approximately 60,000 square feet to house offices, classrooms, and related administrative and instructional space. Project Location: The site is on the north side of Colonial Boulevard, (SR 884) at its intersection with Winkler A venue ( west side o f W inkler Avenue), i n t he City, Lee County, Florida. The site contains 13.049 acres, more or less, and is located in Parcel B, Newmans Terrace, according to the plat thereof recorded at Plat Book 6, Page 41, of the Public Records of Lee County, Florida, and is in the northwest quarter of Section 33 Township 44 South, Range 25 East, Lee County, Florida. Initial Owner and Operator: International College, Inc., a private not for profit corporation organized under the laws of the State of Florida.