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Agenda 06/24/2008 Item #16K 2 Agenda item No. 16K2 June 24,2008 Page 1 of 14 EXECUTIVE SUMMARY Request by the ColJier County Educational Facilities Authority for approval of a resolution authorizing the Authority to issue revenue bonds to be used to finance educational facilities for Ave Maria University. OBJECTIVE: To accomplish the necessary approvals to authorize a proposed revenue bond issue by the Collier County Educational Facilities Authority (the" Authority") to be used to finance educational facilities forAve Maria University. -,. CONSIDERATIONS: Chapter 243, Florida Statutes, creates in each county of the state, an educational facilities authority, which may not function or transact business until the board of county commissioners of the counlY adopts a resolution Dr ordinance determining there is a need for the authority to function in the county. The Board of County Commissioners activated the Collier County Educational Facilities Authority by Resolution 99-177, adopted March 23, 1999. An educational facilities authority has the limited jurisdiction of issuing bonds only for accredited, non-profit educational institutions empowered to provide a program of education beyond the high schoolleveI. The Authority has previously issued, and the Board has approved, bonds to fund International College, and two previous issues of bonds for the first phase of Ave Maria University and additional student and staff housing. The Authority has been requested hy Ave Maria University, Inc. (" AMU") to issue its bonds to finance the construction of additional student housing facilities for the university, consisting of a portion of the cost of an undergraduate dormitory, This will be the fifth dormitory for the university and will be constructed on a schedule to be complete and open for the academic year beginning in September, 2009. In its presentation to the Authority, representatives of the university described the growth of undergraduate enrollment and the need to provide housing facilities on campus, One of the objectives of the university is to create a community where students, faculty and staff live in close proximity to each other and to the university, and undergraduate students are required to live in dormitories unless they live at home. The proposed fifth dormitory fosters that goal by enabling the university to keep pace with the increasing enrollment. The proposed dormitory will be constructed within the AMU campus located on Oil Well Road, The bonds will be variable rate bonds secured by a direct pay letter of credit to be issued by Fifth Third Bank. This financing structure is virtually identical to the previous two bond issues approved for AMU, and there have been no defaults or any other problems with these previous issues, Unlike County revenue bonds, which are secured by revenues of the particular project (for example, utility system bonds which are secured by and payable from revenues of the utility system), these bonds are secured by, and the Agenda Item No. 16K2 June 24, 2008 Page 2 of 14 bondholders are paid by, draws on the letter of credit. Therefore, the primary security for the bond is the creditworthiness of the letter of credit bank. In this case, Fifth Third Bank is providing the letter of credit and the bonds will carry an investment grade rating from one of the major rating services. The bank is reimbursed by AMU for draws under the letter of credit to make principal and interest payments to bondholders pursuant to a reimbursement agreement between the bank and AMU. The Authority conducted a public hearing on the request on June 3, 2008 and heard presentations from AMU officials. The meeting was noticed by publication in the Naples Daily News, and a copy of the notice is attached to the Authority Resolution, No comments from members of the public were received prior to or at the hearing. At the conclusion of the public hearing, the Authority determined to proceed with the financing, contingent on Board approval of the issue, and adopted a resolution to that effect (the" Authority Resolution"). Federal tax law requires two approvals for the issuance of the bonds. First, the Authority must hold a public hearing, and must adopt a resolution in favor of issuing the bonds. This was done at the conclusion of the public hearing on June 3,2008. Following this approval, the governing body of the jurisdiction must also approve the bond issue. This does not have to be a specially advertised hearing, but must be done at a regularly noticed and held meeting. A Resolution for the Board to adopt is attached. Bonds issued by the Educational Facilities Authority are defined in the Internal Revenue Code as private activity bonds. They are not County bonds and are not debt of the County, but are payable solely by revenues pledged by the financing documents between the Authority and the university, including the letter of credit as described above, There is no pledge of any taxes, or a pledge of any County or other public revenues, Neither the County, the Board, nor any other governmental entity is liable for their payment. Further, the Resolution expressly provides that this approval by the Board does not abrogate any County regulations, including land use regulations. FISCAL IMPACT: As explained above, the issuance of the bonds does not require any contribution from, or create any payment obligation on, the Board of County Commissioners or any other County agency. On the other hand, the establishment and successful operation of Ave Maria University in Collier County will have a very positive fiscal impact on the County, and this is one of the factors that is considered by the Authority in its decision to proceed with the financing. These positive impacts include, but are not limited to, the creation of jobs, the construction revenues contributed to the local economy, and the enhancement of the local workforce through educational facilities. GROWTH MANAGEMENT IMPACT: The adoption of the attached resolution will have no adverse growth management consequences, The facilities are being constructed in accordance with all County growth management regulations, and are subject to the LDC, .I\genda Item I~o. 16K2 June 24. 2008 Page 3 of 14 the Growth Management Plan, concurrency requirements, and the payment of impact fees. RECOMMENDA nON: The Board of County Commissioners adopt the attached Resolution. Prepared by: Donald A. Pickworth, Counsel Collier County Educational Facilities Authority Approved by: Jeffrey A. Klatzkow, County Attorney Page I of 1 Agenda Item No. 16K2 June 24, 2008 Page 4 of 14 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16K2 Request by the Collier County Educational Facilities Authonty for approval of a Resolution authorizing the Authority to issue revenue bonds to be used to finance educational facilities for Ave Maria University ($17,000,000) Meeting Date: 6/24/2008 900:00 AM Approved By Jeff Klatzkow Assistant County Attorney Date County Attorney County Attorney Office 6/11/200810:28 AM Approved By OMS Coordinator OMS Coordinator Date County Manager's Office Office of Management & Budget 6/12/20083:18 PM Approved By John A. Yonkosky Director of the Office of Management Date County Manager's Office Office of Management & Budget 6/12/20087:03 PM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office 6/1S/2008 4:35 PM file://C'\Ao-f':nrl~Tpl;;;.t\J=;'){nnrt\ 11 0_ Tllnf"o/r./O/d O/-., /O/OOSZ\ 1 h. o/n')nrrYI\.l<::Cl\.ITOI..")() ^ ~J:'l\.rn ^ \ 1 t:./lQ/')(\f\Q Aaenda Item l\lo. 16K2 - June 24. 2008 Page 5 of 14 RESOLUTION NO. 2008-_ A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA APPROVING THE ISSUANCE OF REVENUE BONDS BY THE COLLIER COUNTY EDUCATIONAL FACILITIES AUTHORITY IN AN AMOUNT NOT EXCEEDING $17,000,000, AS REQUIRED BY SECTION 147(1) OF THE INTERNAL REVENUE CODE, AS AMENDED; PROVIDING FOR OTHER RELATED MA TTERS AND PROVIDING AN EFFECTIVE DATE. Whereas, the Collier County Educational Facilities Authority (the "Authority") is a body corporate and politic of Collier County, Florida ("Collier County") created by Collier County Resolution No. 99-177 duly adopted by the Board of County Commissioners on March 23, 1999 pursuant to Chapter 243, Florida Statutes, as amended (the "Act"), with the power to issue revenue bonds for the purposes of financing a "project" as defined in the Act; and Whereas, as set forth in the resolution of the Authority described below, Ave Maria University, Inc. (the "Corporation"), a Florida not for profit corporation, with certain facilities located within the boundaries of Collier County, Florida, has requested the Authority to issue its Educational Facilities Revenue Bonds (Ave Maria University, Inc. Project), Serics 2008 in an initial principal amount not to exceed $17,000,000 (the "Bonds") for the benefit of the Corporation and to loan all or a portion of the proceeds thereof to the Corporation to finance the costs of the Project as defined in the Authority Resolution described herein; and Whereas, Section I 47(f) of the Internal Revenue Code of 1986, as amended (the "Code"), provides that the elected legislative body of the governmental unit which has jurisdiction over the area in which the facility financcd with the proceeds of tax exempt bonds is located must approve the issuance of such bonds after a public hearing; and Whereas, the Board of County Commissioners of Collier County, Florida (the "Board") is the elected legislative body of the County; and Whereas, the Authority caused notice of a public hearing to consider approval of the Bonds and the location and nature of the Project to be financed with the proceeds of the Bonds to be published on May 19, 2008 in the Naples Daily News, a newspaper of general circulation in the County, a copy of said notice and proof of publication thereof being attached as Exhibit A (the "Notice") to the Authority Resolution described below; and Whereas, the Authority held a public hearing on June 3, 2008, pursuant to the Notice and adopted a resolution (the "Authority Resolution") authorizing the issuance of the Bonds, a copy of which is attached hereto as Exhibit A, and has recommended to the Board that it approve the issuance of the Bonds in accordance with Section 147(1) of the Code; and Whereas, the Board desires to approve the issuance of such Bonds for the purposes of Section 147(1) of the Code, Agenda Item No. 16K2 June 24, 2008 Page 6 of 14 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: Section I. Approval of Issuance of the Bonds. The Board hereby approves the issuance of the Bonds by the Authority for the purposes of Section 147(f) of the Code; provided however, as follows: a. The Bonds shall not constitute a debt, liability or obligation of Collier County, its Board of County Commissioners, officers, agents or employees, or the State of Florida or any political subdivision thereof, but shall be payable solely from the revenues provided therefor, and neither the faith and credit nor any taxing power of Collier County, 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 or employee thereof shall be liable personally on the Bonds by reason of their issuance; and b. This approval shall in nO way be deemed to abrogate any regulations of Collier County applicable to the Project and the Project shall be subject to all such regulations, including, but not limited to, the Collier County Growth Management Plan, all concurrency requirements contained therein, and the Collier County Land Development Code, Section 2. Severability. 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 3. adoption. Effective Date. This Resolution shall take effect immediately upon its [Remainder of page intentionally left blank, signature page follows] 2 Aqenda Item No. 16K2 - June 24. 2008 Page 7 of 14 PASSED and adopted this 24th day of June, 2008. ATTEST: Dwight E, Brock, Clerk COLLIER COUNTY, FLORIDA BY ITS BOARD OF COUNTY COMMISSIONERS By: Deputy Clerk Tom Henning, Chairman [SEAL] and legal sufficiency: w, County Attorney 3 Agenda Item No. 16K2 June 24, 2008 Page 8 of 14 RESOLUTION NO. 2008-01 AN INDUCEMENT RESOLUTION OF THE COLLIER COUNTY EDUCATIONAL FACILITIES AUTHORITY REGARDING THE OFFICIAL ACTION OF THE AUTHORITY WITH RESPECT TO THE PROPOSED ISSUANCE BY THE AUTHORITY OF ITS EDUCATIONAL FACILITIES REVENUE BONDS (AVE MARIA UNIVERSITY, INC. PROJECT), SERIES 2008 IN AN INITIAL AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $17,000,000 TO BE USED FOR THE PRINCIPAL PURPOSE OF (1) FINANCING COSTS OF ACQUISITION, CONSTRUCTION AND EQUIPPING OF CERTAIN EDUCATIONAL FACILITIES TO BE LOCATED IN COLLIER COUNTY, FLORIDA AND (ii) PAYING A PORTION OF THE COSTS ASSOCIATED WITH THE ISSUANCE OF THE BONDS; AUTHORIZING THE EXECUTION AND DELIVERY OF A PRELIMINARY FINANCING AGREEMENT BETWEEN THE AUTHORITY AND THE BORROWER; PROVIDING FOR RELATED MATTERS AND AN EFFECTIVE DATE. WHEREAS, Ave Maria University, Inc" a Florida not for profit corporation (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 $17,000,000 (the "Bonds") to be used for the principal purpose of (i) financing and refinancing costs of acquisition, construction and equipping of certain educational facilities to be located in Collier County, Florida described below and (ii) paying a portion of the costs associated with the issuance of the Bonds (the "Project"); and WHEREAS, the "Project", as described in the application filed by the Borrower consists of financing the costs of construction, acquisition, and equipping of a four-floor, 554-bed student dormitory of approximately 124,000 square feet and paying a portion of the costs associated with the issuance of the Bonds; and WHEREAS, the Borrower has requested that the Authority loan the proceed. ofthe 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 1 EXHIBIT A TO COUNTY RESOLUTION Agenda Item No. 16K2 June 24. 2008 Page 9 of 14 WHEREAS, the issuance of the Bonds and the loaning of the proceeds thereof to 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; and WHEREAS, in order to satisfy certain of the requirements of Section 147(f) of the Internal Rovenue 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 ofthe Project as more particularly described in the notice of public hearing attached hereto as Exhibit A; 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 to provide an expression of intention 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. 2 Agenda Item No. 16K2 June 24. 2008 Page 10 of 14 SECTION 3. APPROVAL OF THE FINANCING. The financing of the costs of the Project 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, will promote the economic development, prosperity, health and welfare of the citizens of Collier County, will promote the general economic structure of Collier County, 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. 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 of the Authority. the Preliminary Agreement of even date herewith 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) $17,000,000 or (b) the amount determined by the Authority and the Borrower to be necessary to accomplish the foregoing purposes. SECTION 5. AUTHORIZATION 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 $17,000,000, The rate of interest payable on the Bonds shall not exceed the maximum rate permitted by law. SECTION 6. GENERAL AUTHORIZATION. The Chairman and the Vice-Chairman are hereby further authorized to proceed, upon execution of the Preliminary Agl'eement, 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 all respects to the terms and conditions set forth in the Preliminary Agreement authorized hereby. SECTION 7. 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 8. 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 thereof but shall be payable solely from the revenues pledged therefor 3 Agenda item No. 16K2 June 24. 2008 Page 11 of 14 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. SECTION 9. LIMITED APPROVAL. The approval given herein shall not be construed as an approval or endorsement of approval of any necessary rezoning 01' 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 to have estopped Collier County from asserting any rights or responsibilities it may have in that regard. SECTION 10. immediately. EFFECTIVE DATE. This Resolution shall take effect ADOPTED this Srd day of June, 2008, . ...." '. \: 'c : ~., " ~ . ATTE:k~~/7 , - /c.~/ Ross P, Oblcy, Secretary 4 Agenda Item No. 16K2 June 24, 2008 Page 12 of 14 EXHIBIT A TO RESOLUTION 2008-01 AFFIDAVIT OF PUBLICATION OF NOTICE OF PUBLIC HEARING A-I Naples Daily News Naples, FL 34102 Affidavit of publication Naples Daily News --------------------------------~--------~-~-~--~-+~----------------------- .L\genda Item I~o. 16K2 June 24, 2008 Page 13 of 14 PICKWORTH, DONALD P.A. 5150 TAMIAMI TRL N #502 NAPLES FL 34103 REFERENCE: 010784 59504793 NOTICE OF PUBLIC MEE 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 advertis1ng was published in said newspaper on dates listed. Affiant further says that the said Naples Daily News is a newspaper ~ublished at Naples, in said Collier county. FlorLda. and that the said newspaper has heretofore been continuously published in said Collier County, Florida, each day and has been entered as second clasB mail matter at the post office in Naples, in said Collier County, Florida. for a period of l 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 publication in the said newspaper. PUBLISHED ON: 05/19 05/19 AD SPACE: 178.000 INCH FILED ON, 05/19/08 -----------------~--------------------;(---_._----+------------------------ signature of Affiant ;.5. Jr\/ \ Sworn to and Subscribed before me this ';:Y)\\aay of 'I'J'AU 20~ '"'" I Personally known by me '~..){~ \('tf 0 (\\('......!>.- 0... '\ .~~~:';:~..... JUDY JANES f.t~r.i COmmlssiOfl DD 675029 i.,.,1. ':, Expires May 16, 2011 ...:t, ..... _l'hII,T~F""'.....__-1il19 fi!~~I;tlg;~~~ig6J~li~a!ll~~tjiis;:~i"~i~1 ~ij2t'i!.'1 ~~~~~~.~ ~B~ji - I~~ ~m~j)millf:!Hil::n!i;ltIJ~.i!jij!lli:f :i~I~:~~j: i~B~~j; !lj1id ! ~~~ '!i;Il:n;U~.~ 2.!t~nr!f-it~~1~~.n!ifb 1 f~ifi~i' ~~~~~~~ j !~U ij f J kifll~~!l!~r.lil.'ltil!i i~ il~II!~ I~'t~ Ita j. I I ~~~ n;:lfUil~i~!~~lf~~i~:iij;l!ij;i~tifid jt~!! ~~n ~;II:j::~ if!~, !J ;i Ii z ~~fhii~i~i;,Jhmdfjim!tlid:Hl!i!i! !mcnJdi !!m;~:1 !!uf" !! ~j Ii EXHIBIT A TO AUTHORITY RESOLUTION Agenda Item No. 16K2 June 24. 2008 Page 14 of 14 DONA.LD A. PICKWORTH, P.A. ATTORNEY .AT LAW SUITE 502 NEWOATE TOWER 5150 NORTH TAMIAXI TRAIL NAPLES, FLORIDA 34103 e-mail picklaw@earthlink.net (239) 263 - 8060 FAX (239) 598.1161 June 4, 2008 Jeffrey A, KlalZkow, Esquire Collier County Attorney Collier County Courthouse/Bldg F Naples, FL 34112 Re: June 24, 2008 Agenda Dear Jeff: I am enclosing the following documents for inclusion in the June 24, 2008 agenda: 1. Executive Summary relating to approval of Educational Facilities Authority Bonds for Ave Maria University. 2, Resolution to be adopted by the Board of County Commissioners at the Board meeting of June 24, 2008 approving the Bonds. 3, Exhibit to BCC Resolution consisting of the Inducement Resolution adopted by the Authority at its meeting on June 3, and including as an exhibit to the Inducement Resolution, the Affidavit of Publication for the required TEFRA hearing conducted by the Authority, This is the third bond issue the EFA has done for facilities at Ave Maria University, All have been nearly identical in financing structure, and all previous bonds are current in payments and there have been no defaults or any other problems. Since we have been placing these items on the Consent Agenda recently, I would request that this also be on Consent. I will not be at the June 24 meeting, but the Authority's bond counsel, Chris Traber of Nabors, Giblin will be present if there are any questions. Tbank you for your assistance in this, and if you have any questions or need further information, please contact me. vet;;rs, l Donald A. Pickworth Enclosures