Resolution 242-1994
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RESOLUTION NO. 242-1994
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A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA,
AUTHORIZING THE EXECUTION AND DELIVERY OF A
MEMORANDUM OF AGREEMENT REGARDING THE INTENT
OF THE COUNTY TO LOAN FUNDS TO NORTH KEY LARGO
UTILITY CORP. FOR THE PURPOSE OF FINANCING THE
COST OF THE ACQUISITION OF THE WASTEWATER
TREATMENT PLANT OF OCEAN REEF CLUB, INC., AND
THE CONSTRUCTION OF ADDITIONS, EXTENSIONS AND
IMPROVEMENTS TO THAT PLANT; APPROVING, SUBJECT
TO CERTAIN CONDITIONS AND FURTHER FINDINGS,
THE ISSUANCE OF NOT EXCEEDING $3,100,000
INDUSTRIAL DEVELOPMENT REVENUE BONDS (NORTH
KEY LARGO UTILITY CORP. PROJECT), SERIES 1994,
THE PROCEEDS OF WHICH WILL BE LOANED TO NORTH
KEY LARGO UTILITY CORP. TO FINANCE ALL OR A
PORTION OF THE COST OF SUCH PROJECT; PROVIDING
CERTAIN OTHER DETAILS WITH RESPECT THERETO;
AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED, BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA, as follows:
SECTION 1. AUTHORITY. This Resolution is adopted pursuant
to the provisions of Chapter 159, Part II, Florida Statutes, and
other applicable provisions of law.
SECTION 2.
DEFINITIONS.
"Act" means Chapter 159, Part II, Florida Statutes, and other
applicable provisions of law.
"Board" means the Board of County Commissioners of Monroe
County, Florida.
"Bonds" or "Bond" means the proposed Industrial Development
Revenue Bonds (North Key Largo Utility Corp. Project), Series 1994,
to be issued from time to time in installments, in an aggregate
principal amount of not exceeding $3,100,000, to be authorized by
subsequent resolution of.the Board pursuant to the Act, and in
accordance with the terms, conditions and limitations contained in
such resolution.
"Borrower" means North Key Largo Utility Corp., a corporation
duly organized and validly existing under the laws of the State of
Florida.
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"Clerk" means the Clerk of the Circuit Court of Monroe County,
Florida, ex officio Clerk of the Board, or any Deputy Clerk.
"Code" means the Internal Revenue Code of 1986, as amended,
and the regulations promulgated or applicable thereunder.
"County" means Monroe County, Florida, the issuer of the
Bonds.
"Mayor" means the Mayor or Mayor Pro Tern of the Board.
"Memorandum of Agreement" means that certain Memorandum of
Agreement, dated the date hereof, between the Borrower and the
County, in substantially the form attached hereto as Exhibit A,
with such changes as the County officers signing such Memorandum of
Agreement may approve.
"Project" means the acquisition of the wastewater treatment
plant owned by Ocean Reef Club, Inc., located in Key Largo,
Florida, and the construction of extensions, additions and
improvements to such plant.
"State" means the State of Florida.
SECTION 3. PROPOSAL. The Borrower has requested that the
County issue its industrial development revenue bonds from time to
time under the Act, in an aggregate principal amount not exceeding
$3,100,000, for the purpose of making a loan to the Borrower to
finance all or part of the cost of the Project, the amount of which
the Borrower has represented will be sufficient, along with funds
contributed by the Borrower, to pay all of the cost of the Project,
such Bonds to be secured under the terms of a loan agreement
between the County and the Borrower requiring repayments in an
amount sufficient to pay the principal of and interest on such
Bonds as the same become due and payable.
SECTION 4. FINDINGS. The Board hereby finds, determines
and declares as follows:
A. The Board is authorized and empowered by the Act to enter
into transactions such as those contemplated by the Borrower, and
to fully perform the obligations of the County to be undertaken in
connection with the financing of the Project, in order to promote
the industrial economy of the County and the State of Florida,
increase opportunities for gainful employment and purchasing power,
and improve living conditions; and to otherwise contribute to the
prosperity and welfare of the County, the State and the inhabitants
thereof.
B. The Project is a "project" within the meaning of the Act,
is appropriate to the needs and circumstances of and shall make a
significant contribution to the economic growth of the County,
shall provide or preserve gainful employment and shall serve a
public purpose by advancing the economic prosperity and the general
welfare of the County and the State and the inhabitants thereof.
3247/MONS9012/R-INDUCEMENT-RESO
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C. The Borrower has requested the County to issue Bonds from
time to time, in an aggregate principal amount not exceeding
$3,100,000, to finance the Project. The Bonds shall be paid solely
from the repayment of a loan of the Bond proceeds from the County
to the Borrower.
D. The availability
development revenue bonds
Borrower to proceed with
equipment of the Project.
E. The Project and the issuance of the Bonds to finance the
cost thereof will have a substantial public benefit, and the Board
deems it in the best interest of the County and its citizens to
approve the issuance of the Bonds, subject to certain conditions
described in this Resolution.
of financing by means of industrial
is an important inducement to the
the acquisition, construction and
SECTION 5. DETERMINATION. If, upon further investigation
of the Borrower and its proposal, the Board is able to find that:
A. the County, the Board or any member or officer thereof is
not obligated to pay the Bonds, except from the proceeds derived
from the repayment of a loan to the Borrower, and that neither the
faith and credit nor the taxing power of the County or of the State
or any political subdivision thereof is pledged to the payment of
the principal of, premium, if any, and interest on the Bonds;
B. the Board, the Borrower and the proposed purchaser of the
Bonds have executed or will concurrently with the issuance of the
Bonds execute the documentation required for the financing of the
Project as contemplated hereby;
C. adequate provision has been or will be made in the
documents for the operation, repair and maintenance of the Project
at the expense of the Borrower and for the payment of the principal
of, premium, if any, and interest on the Bonds and reserves, if
any, therefor;
D. based on the criteria established by the Act, the
Borrower is financially responsible and fully capable of and
willing to fulfill all of its obligations under the terms and
provisions of the loan agreement to be negotiated between the
parties, under which the Borrower will be obligated, among other
things, to pay amounts sufficient to timely discharge the debt
service on the Bonds, and to operate, repair and maintain the
Project at the Borrower's expense;
E. the interest on the Bonds will be excluded from gross
income for federal income tax purposes under existing laws of the
United States.
F. the proposal will otherwise comply with all of the
provisions of the Act;
3247!MON59012!R-INDUCEMENT-RESO
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then the Board may issue Bonds to finance the acquisition,
construction and equipment of the Project in accordance with the
provisions and authority of the Act, this Resolution and the
Memorandum of Agreement. The principal amount, terms of maturity,
interest rate and other details of the Bonds will be determined by
subsequent Board resolution.
SECTION 6. FINANCING CONDITIONALLY APPROVED. The
financing of the proj ect through the issuance of the Bonds is
hereby deemed to be in the best interests of the County and its
citizens, and is hereby approved, subject to satisfaction of the
conditions described in Section 5 above.
SECTION 7. AUTHORIZATION TO EXECUTE. The Mayor and Clerk
of the Board are authorized in the name and on behalf of the County
pursuant to this Resolution, to execute and deliver the Memorandum
of Agreement. The officers executing such Memorandum of Agreement
are further authorized to do all acts which may be required or may
be advisable with respect thereto.
SECTION 8. PRIORITY. Nothing herein shall be deemed to
restrict the County or the State of Florida or any agency or
political subdivision thereof in determining the order or priority
of the issuance of bonds by the County, to require the Board to
give the Bonds priority as to issuance or as to the time of
issuance over any other bonds previously or subsequently approved
by the Board for issuance. Any such prioritization by the Board
could result in the inability of the County to issue the Bonds.
SECTION 9. OFFICIAL ACTION.
official action within the meaning of
regulations promulgated under the
Section 147(f) of the Code.
This Resolution constitutes
Section 1.103-8 (a) (5) of the
Code wi thin the meaning of
SECTION 10. EFFECTIVE DATE. This Resolution shall take
effect immediately upon its adoption.
3247/MON59012/R-INDUCEMENT-RESO
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PASSED AND ADOPTED this 16th day of August, 1994.
(SEAL)
ATTEST:
.{ko.bd e. ~A~~, /).~.
Clerk of the Circuit Court, ex
officio Clerk of the Board of
County Commissioners
Approved as to form and
~~
correctness:
By:
MONROE COUNTY, FLORIDA
~
r of the Board of
nty Commissioners
Randy Ludacer, County Attorney
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EXHIBIT A
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement, dated as of the ~ day of
August, 1994, is between MONROE COUNTY, FLORIDA (the "County"), a
political subdivision of the State of Florida, and NORTH KEY LARGO
UTILITY CORP., a Florida corporation (together with its assigns,
the "Borrower").
BACKGROUND FACTS:
1. The County is authorized and empowered by the provisions
of the constitution and laws of the State of Florida to issue
industrial development revenue bonds for the purposes of providing
funds to pay all or any part of the cost of any "proj ect" as
defined in Chapter 159, Part II, Florida Statutes (the "Act"), and
to loan the proceeds from the sale of such bonds to others to
finance the acquisition, construction, improvement and equipment of
such projects.
2. The Borrower desires to acquire the wastewater treatment
plant owned by Ocean Reef Club, Inc., located in Key Largo,
Florida, and to construct additions, extensions and improvements to
such plant (the "Project").
3. The County desires to encourage the Borrower to acquire,
construct and equip the proj ect in the County, to promote the
industrial economy of the County and the State of Florida, to
increase opportunities for gainful employment and purchasing power,
and otherwise to contribute to the prosperity and welfare of the
County and the State of Florida and its inhabitants.
4. The County has initially determined that it has the
authority to finance the acquisition, construction and equipment of
the Project within the geographic boundaries of the County, which
Project shall constitute a "project" within the meaning of the Act,
and to make a loan to the Borrower to enable the Borrower to
acquire, construct and equip the Project.
5. The Borrower wishes to obtain assurances from the County
that it will finance, in whole or in part, the cost of the
acquisition, construction and equipment of the Project from
proceeds received from the sale of the County's industrial
development revenue bonds.
6. The County, by the adoption on the date hereof of a
resolution (the "Inducement Resolution"), has indicated its
willingness to proceed with such financing as an inducement to the
Borrower to acquire and construct the Project.
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7. Subject to compliance with all requirements of law,
including the requirements of the Act, the County desires to make
all reasonable efforts to issue and to sell its industrial
development revenue bonds in an aggregate amount up to, but not in
excess of, $3,100,000 (the "Bonds"), for the purpose of all or a
part of the cost of the proj ect, subj ect and pursuant to the
Inducement Resolution.
8. The County wishes to enter into certain agreements with
the Borrower with respect to the issuance of the Bonds and the
acquisition, construction and equipment of the Project.
AGREEMENT:
For good and valuable consideration, the parties hereto agree
as follows:
1. The County agrees:
(a) That, if the Borrower meets all prerequisites for
the issuance of the Bonds established by the County, it will make
all reasonable efforts to authorize the issuance and sale of the
Bonds pursuant to the terms of the Constitution of the State of
Florida, the Act, the Inducement Resolution and this Memorandum of
Agreement.
(b) That it will (but only to the extent of the net
proceeds received from the sale of the Bonds) make a loan to the
Borrower to finance the acquisition, construction and equipment of
the Project, with installment payments due under a loan agreement
between the County and the Borrower to be at least sufficient to
pay the principal of, interest on and redemption premiums, if any,
with respect to the Bonds as and when the same shall become due and
payable, together with all other costs and expenses connected with
such financing and the operation and maintenance of the Project.
(c) That, in the event the County acquires an interest
in or a mortgage on the Project, it will conveyor release any such
interest it retains in the Project to the Borrower upon payment by
the Borrower of the amount required to retire the outstanding
Bonds, and all other costs connected with such financing.
2. The Borrower agrees:
(a) That it will enter into a loan agreement with the
County, under the terms of which the Borrower will be obligated to
pay to the County sums sufficient to pay the principal of, interest
on and redemption premiums, if any, with respect to the Bonds when
the same shall become due and payable, together with all other
costs and expenses of the County connected with such financing and
the Project; to operate, maintain and repair the Project at its own
expense; and to report annually to the County, the annual bond
indebtedness outstanding and any other information necessary to
3247/MONS9012/A-MEMO-OF-AGREEMENT
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comply with section 218.32, Florida Statutes.
(b) That all risk of loss related to the Project will be
borne by the Borrower.
3. All commitments of the County under Paragraph 1 hereof and
of the Borrower under Paragraph 2 (a) hereof are subject to the
mutual agreement of the County and the Borrower as to the terms and
conditions of the above-referenced loan agreement and of the Bonds
and the other instruments and proceedings relating to the Bonds,
and to the sale of the Bonds pursuant to such terms and conditions.
It is the intent of the parties hereto that the Bonds shall be
prepared in such form and shall be issued, underwritten and sold
and the proceeds thereof used, all as may be mutually agreed upon
by the parties in accordance with the requirements and provisions
of the Constitution of the State of Florida and the Act.
4. The Borrower and the County further agree as follows:
(a) For purposes of Chapter 159, Part II, Florida
Statutes, only, the Borrower, subject to the conditions set forth
herein, may proceed to acquire, construct and equip the Project; to
prepare or cause the preparation of plans, specifications and other
contract documents; to award construction and other contracts upon
a competitive or negotiated basis; to inspect and supervise the
construction of the proj ect; to employ engineers, architects,
builders and other contractors; and to perform such other functions
and services as may, in the opinion of the Borrower, be desirable
in connection with the acquisition, construction and equipment of
the Project, subject to compliance with applicable land development
requirements of the County. The Borrower may advance such funds as
may be necessary to accomplish such purposes and shall be entitled
to reimbursement for such expenses from, and only to the extent of,
the net proceeds received from the sale of the Bonds in accordance
with subparagraph (b) below.
(b) To the extent of the net proceeds derived from the
sale of the Bonds, and only from such proceeds, and in accordance
with the provisions of the Act and the Internal Revenue Code of
1986, as amended (the "Code"), the Borrower will be entitled to
reimbursement for all costs and expenses, direct or indirect,
incurred by the Borrower after the date hereof in the acquisition,
construction and equipment of the Project. Costs and expenses for
which the Borrower may be reimbursed from the proceeds of the Bonds
include, but are not limited to, costs and expenses related to the
preparation of plans and specifications for the proj ect; the
acquisition, construction and equipment of the Project and all
components thereof; architectural, engineering and supervisory
services used with respect to the Project; acceptance fees of any
trusts established in connection with the issuance and sale of the
Bonds; legal, accounting and financial advisory fees and expenses;
underwriting fees, filing fees and printing and engraving costs
incurred in connection with the authorization, sale and issuance of
3247/MON59012/A-MEMO-OF-AGREEMENT
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. ~ ~,
the Bonds, the execution and filing of a trust agreement, if any,
to be hereafter executed by the County and a trustee to be named
therein, and such other agreements as may be required by the
initial purchaser or purchasers of the Bonds; fees, costs and
expenses disbursed or incurred in connection with or related to
this Memorandum of Agreement and the Bonds; the acquisition,
construction and equipment of the proj ect; labor, services and
materials used or furnished in site improvement for the site of the
Project, and the equipping of the Project; and all other fees and
expenses disbursed or incurred by the Borrower in connection with
the Project or the Bonds and properly allowable under the Act and
the Code.
(c) If the net proceeds derived from the sale of the
Bonds shall be less than the cost of the Project, the Borrower
agrees to complete the proj ect at the Borrower's expense. The
Borrower shall be entitled to reimbursement for such cost overruns
only to the extent of the net proceeds received from the sale of
such additional bonds as the County, in its sole discretion, may
authorize, sell and deliver. The County does not make any
warranty, either expressed or implied, that the funds derived from
the sale of the Bonds will be sufficient to pay all of the costs
incurred in connection with the acquisition, construction and
equipment of the Project or that any additional bonds will be
issued or may be sold. The Borrower recognizes that the Borrower
shall not be entitled to reimbursement for costs incurred by it in
completing the Project, except to the extent of money otherwise
available from the sale of the Bonds and any additional bonds, and
agrees that the Borrower shall not be entitled to any abatement or
diminution of the loan installments payable under the loan
agreement to be entered into by and between the Borrower and the
County upon the delivery of the Bonds because of such unreimbursed
costs.
5. The Borrower agrees to indemnify, defend and hold harmless
the County, the members and officers of the Board and its agents
against any and all liability, loss, costs, cost overruns,
expenses, charges, claims, damages and attorney's fees of whatever
kind or nature, which the County, the members and officers of the
Board, or its agents may incur or sustain by reason or in
consequence of the relationship existing between the County and the
Borrower with respect to the execution and delivery of this
Memorandum of Agreement, the issuance and sale of the Bonds or the
acquisition, construction and equipment of the Project, including,
but not limited to, the reasonable fees of the County and its staff
incurred in connection with the evaluation of the Project. The
Borrower hereby releases and agrees to hold harmless the County,
the members and officers of the Board, and the agents, attorneys
and employees of the County from any liability, loss, cost,
expenses, charges, claims, damages and attorneys' fees of whatever
kind or nature which may result from the failure of the County to
issue the Bonds, for whatever reason.
3247/MONS9012/A-MEMO-OF-AGREEMENT
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6. The Borrower agrees that, whether or not the Bonds shall
be issued, it will pay, or cause to be paid, all costs and expenses
incurred by it, any fees and expenses of the Borrower's financial
advisor, if any, any fees and expenses of the Borrower's counsel,
the fees (including application and administration fees) and
expenses of the County, the fees and expenses of the County's
financial advisor and the fees and expenses of Bond Counsel to the
County (collectively, the "Financing Costs") .
7. If for any reason the County shall fail to deliver the
Bonds and receive the proceeds thereof wi thin one year after
completion of the proj ect, if the County sooner abandons its
efforts to issue the Bonds in accordance with the Inducement
Resolution and this Memorandum of Agreement, if the sale of the
Bonds has not occurred on or before 12 months from the date hereof
(or such later date as shall be mutually agreed upon by the County
and the Borrower), or if the Borrower shall terminate this
Memorandum of Agreement by written notice to the County, this
Memorandum of Agreement shall terminate. Nothing contained herein,
however, shall release the Borrower from its obligations to
indemnify the County, the members of the Board, and its agents in
accordance with the terms of this Memorandum of Agreement, or
release the Borrower from its obligations under paragraphs 5 and 6
hereof.
8. This Memorandum of Agreement may be supplemented and
amended from time to time by written agreement signed by both
parties, and shall be superseded by the loan agreement to be
entered into by and between the County and the Borrower, upon the
execution thereof, to the extent the terms thereof conflict with
the terms contained herein.
9. This Memorandum of Agreement, and the rights, duties and
obligations of the Borrower hereunder, may be assigned by the
Borrower subject to approval of the assignee by the County.
10. The Borrower recognizes and agrees to the terms of the
Inducement Resolution. Nothing herein shall be deemed to restrict
the County or the State of Florida or any agency or political
subdivision thereof in determining the order or priority of the
issuance of bonds by the County or to require the County to give
the Bonds priority as to issuance or as to the time of issuance
over any other bonds previously or subsequently approved by the
County for issuance. Also, nothing herein shall be deemed to
require that the County agree to submit itself to the jurisdiction
of the courts of any state other than Florida.
EXECUTION:
3247/MON59012/A-MEMO-OF-AGREEMENT
A-S
The parties hereto have set their hands and seal as of the day
and year first above written.
MONROE COUNTY, FLORIDA
( SEAL )
~
ATTEST:
County
~(1.~A~ /J.G.
Clerk of the Ci~uit Court,
ex officio Clerk of the Board
of County Commissioners
Approved as to form and
correctness:
~~
Randy Ludacer, County Attorney
NORTH KEY LARGO UTILITY CORP.
(SEAL)
By,fr/C
Title: A.rs'-r )B~r~
ATTEST:
~lh~
Secr tary
3247/MON59012/A-MEMO-OF-AGREEMENT
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