Loading...
Item Q1 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: Seotember 19.2001 Division: Industrial Development Authority Bulk Item: Yes No -1L Department: Industrial Development Authority AGENDA ITEM WORDING: Public hearing on a resolution relative to the proposed issuance of private activity revenue bonds by the IDA in an amount not to exceed $7,900,000 for North Key Largo Utility Corp. ITEM BACKGROUND: PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: Approval. TOTAL COST: BUDGETED: Yes No COST TO COUNTY: REVENUE PRODUCING: Yes No AMOUNTPERMONTH_ Year APPROVED BY: County Atty ~ OMB/Purchasing _ Risk Management _ DIVISION DIRECTOR APPROVAL: ~~~ ~ James L. Roberts . - DOCUMENTATION: Included X To Follow_ Not Required_ DISPOSITION: AGENDA ITEM #~, Revised 2/27/01 RESOLUTION NO. INDUCEMENT RESOLUTION REGARDING THE OFFICIAL ACTION OF THE MONROE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, MONROE COUNTY, FLORIDA, RELATIVE TO THE PROPOSED ISSUANCE OF PRIV ATE ACTIVITY REVENUE BONDS FOR THE PURPOSE OF ACQUIRING, CONSTRUCTING, EQUIPPING, EXPANDING AND IMPROVING WATER SUPPL Y , TREATMENT AND TRANSMISSION FACILITIES FOR NORTH KEY LARGO UTILITY CORP.; AUTHORIZING THE EXECUTION AND DELIVERY OF A MEMORANDUM OF AGREEMENT BETWEEN THE MONROE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY AND NOR TH KEY LARGO UTILITY CORP.; PROVIDING FOR THE PRELIMINARY APPROVAL BY THE AUTHORITY FOR THE ISSUANCE OF NOT EXCEEDING $7,900,000 OF SUCH BONDS FOR THE PURPOSE OF FINANCING THE ACQUISITION, CONSTRUCTION, EQUIPPING, EXPANSION AND IMPROVEMENT OF SUCH WATER FACILITIES; PROVIDING FOR CERTAIN RELATED MATTERS IN CONNECTION THEREWITH AND FOR AN EFFECTIVE DATE. WHEREAS, North Key Largo Utilities Corp., a Florida not-for-profit corporation (the "Corporation"), has heretofore applied to the Monroe County Industrial Development Authority (the "Authority"), to issue its exempt purpose private activity tax-exempt revenue bonds in a principal amount not to exceed $7,900,000 (the "Bonds") for the purpose of financing the cost of acquiring, constructing, equipping, expanding and improving water disbursal facilities consisting of water supply treatment and transmission systems, (the "Project"), for the North Key Largo area. The Project includes the following: (I) acquisition of two reverse osmosis water supply, treatment and transmission systems presently servicing three golf courses on North Key Largo, (2) construction of additional water supply capacity, upgrade of the existing membrane treatment system and construction of a distribution system to serve commercial and residential customers, (3) payment of qualifying costs relating to the issuance of the Bonds. The Project is in Monroe County in and about the area of North Key Largo, as more particularly described in the notice of public hearing attached hereto as Exhibit B. The Project is generally located at Service Village Lane, Ocean Reef Club Complex, North Key Largo, Florida. The mailing address of the Corporation is 24 Dockside Lane, Suite 512, Key Largo, Florida 33037; and WHEREAS, the Corporation has requested that the Authority loan the proceeds of the Bonds to said Corporation pursuant to Chapter 159, Parts II, III and VI, 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; and WHEREAS, the bond resolution granting the final authority for the issuance of the Bonds has not yet been adopted by the Authority; and WHEREAS, the issuance of the Bonds under the Act in one or more issues or series not exceeding an aggregate principal amount of $7,900,000 and the loaning of the proceeds thereof to finance the costs of the Project under a loan agreement or other fmancing agreement 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 Corporation and promote the public purposes provided in the Act; and WHEREAS, the Corporation has submitted the Memorandum of Agreement (the "Memorandum of Agreement") relating to the issuance of the Bonds, 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 and, specifically, to satisfy the requirements of Treasury Regulations Section 1.150-2 and to be a declaration of official intent under such Section; and WHEREAS, in order to satisfy certain of the requirements of Section 147(f) of the Internal Revenue Code of 1986, as amended, the Authority held a public hearing on the proposed issuance of the Bonds for the purposes herein stated on the date hereof, which date is more than 14 days following the first publication of notice of such public hearing in newspapers of general circulation in Monroe County, Florida (a true and accurate copy of the proof of publication of such notice is attached hereto as Exhibit B), 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 both the issuance of such Bonds and the location and nature of the portion of the Project to be financed with the proceeds therefrom. 2 IT IS, THEREFORE, DETERMINED AND RESOLVED BY THE MONROE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, THAT: SECTION 1. AUTHORITY FOR THIS RESOLUTION. This resolution, hereinafter called "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 Corporation to proceed with commitments for the Project and to incur costs in connection with various phases 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 to finance all or part of the costs of the Project, to the extent of such proceeds, all in accordance with and subject to the provisions of the Constitution and other laws of the State of Florida, including the Internal Revenue Code of 1986, as amended and this Resolution, but subject in all respects to the terms of the Memorandum of Agreement hereinafter referred to. SECTION 3. APPROVAL OF THE PROJECT. The acquisition, construction, equipping, expansion and improvement of the Project as described in the notice of public hearing attached hereto as Exhibit B and the financing thereof by the Authority through the issuance of the Bonds, pursuant to the Act, will promote the economic development and health and welfare of the citizens of Monroe County, will provide the residents of the County with new jobs, will promote the general economic structure of the County, will thereby serve the public purposes of the Act and is hereby affirmed and approved. SECTION 4. EXECUTION AND DELIVERY OF MEMORANDUM OF AGREEMENT. The Chairman or the Vice-Chairman and the Secretary are hereby authorized and directed to execute, for and on behalf of the Authority, the Memorandum of Agreement attached hereto as Exhibit A between the Authority and the Corporation providing understandings relative to the proposed issuance of the Bonds by the Authority to finance the Project in an aggregate principal amount not to exceed the lesser of (a) $7,900,000, or (b) the cost of the Project, as determined by the Authority and the Corporation. SECTIONS. 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 Corporation and subject to the conditions set forth in the Memorandum of Agreement attached hereto, in one or more issues or series of such tax-exempt revenue bonds in an aggregate principal amount not to exceed $7,900,000 for the principal purpose of 3 financing the costs of the Project as described in the Memorandum of Agreement. The rate of interest payable on the Bonds shall not exceed the maximum rate permitted by law. SECTION 6. RECOMMENDATION FOR APPROVAL TO BOARD OF COUNTY COMMISSIONERS. The Authority hereby recommends the issuance of the Bonds and the fmancing of the Project for approval to the Board of County Commissioners of Monroe County (the "Board"). The Authority hereby directs the Chairman, Vice- Chairman or Secretary, either alone or jointly, at the expense of the Corporation, to cooperate in seeking approval for the issuance of the Bonds and the fmancing of the Project by the Board as the applicable elected representatives of Monroe County under and pursuant to the Act and Section 1 47(f) of the Internal Revenue Code of 1986, as amended. SECTION 7. APPOINTMENT OF BOND COUNSEL. The firm of Nabors, Giblin & Nickerson, P .A., Tampa, Florida, is hereby appointed by the Authority to act as bond counsel to the Authority and the County in connection with the issuance by the Authority of the Bonds. SECTION 8. GENERAL AUTHORIZATION. The Chairman, the Vice-Chairman and the Secretary are hereby further authorized to proceed with the undertakings provided for herein and in the Memorandum of Agreement 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 herein and in the Memorandum of Agreement. 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 Monroe County, the state of Florida or any political subdivision or agency thereof but shall be payable solely from the revenues pledged therefor pursuant to a loan agreement or other financing agreement entered into by and between the Authority and the Corporation prior to or contemporaneously with the issuance of the Bonds. SECTION 10. LIMITED APPROVAL. The approval given herein shall not be construed as an approval of any nece~sary rezoning 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 the County or estopping the County from asserting any rights or responsibilities it may have in that regard. Further, the approval by the Board of the issuance of the Bonds by the Authority shall not be construed to obligate the County to incur any liability, pecuniary or otherwise, in connection with either the issuance of the Bonds or the acquisition, construction, equipping, expanding and improvement of the Project, and the Authority shall so provide in the financing documents 4 setting forth the details of the Bonds. Finally, the County shall not be construed by reason of its adoption of this resolution to (a) attest to the Corporation's ability to repay the indebtedness represented by the Bonds or (b) a recommendation to prospective purchasers of the Bonds to purchase the same. SECTION 11. BOND ALLOCATION. Upon approval by the Board of the issuance of the Bonds and the financing of the Project in accordance with Section 3 hereof, the Chairman, Vice-Chairman or Secretary are hereby authorized to execute all necessary documents for obtaining and preserving an allocation from the State bond pool for the issuance of the Bonds pursuant to Part VI, Chapter 159, Florida Statutes. SECTION 12. immediately. EFFECTIVE DATE. This Resolution shall take effect ADOPTED this 19th day of September, 2001. George Neugent Murray Nelson Dixie Spehar Charles McCoy Nora Williams MONROE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY (SEAL) By: Chairman ATTEST: Secretary 5 APPROVED AS TO FORM ~ S R BERTN. E DATE ~-" 6/ EXHIBIT B TO RESOLUTION PROOFS OF PUBLICATION EXHIBIT A MEMORANDUM OF AGREEMENT FOR ISSUANCE OF PRIV ATE ACTIVITY REVENUE BONDS This Agreement between the Monroe County Industrial Development Authority, a public body corporate and politic (the "Authoritylt) and North Key Largo Utility Corp., a Florida not-for-profit corporation (the ItCorporationlt). WITNESSETH: I. Preliminary Statement Among the matters of mutual understanding and inducement which have resulted in the execution of this Agreement are the following: (a) Whereas Chapter 159, Parts II, III and VI, Florida Statutes, (the "Act") provides that the Authority may issue tax-exempt revenue bonds and loan the proceeds thereofto one or more persons, firms or private corporations, or use such proceeds, to defray the cost of acquiring, by purchase or by construction, certain pollution control facilities. (b) The Corporation is considering acquiring, constructing, equipping, expanding and improving water disbursal facilities consisting of water treatment and transmission systems (the Itprojectlt), for the Key Largo area and to finance the same with the proceeds of tax-exempt revenue bonds. It is estimated that the portion of the cost of the acquisition, construction, equipping, expanding and improvement of the Project to be fmanced with the bond proceeds and all other costs to be incurred in connection with the issuance of such bonds will not be in excess of $7,900,000. (c) The Authority intends this Agreement to constitute its official binding commitment, subject to the terms hereof, to issue its bonds (the ItBondslt) in one or more series or issues pursuant to the Act in the amount to be agreed upon by the Authority and the Corporation and to loan the proceeds thereof to the Corporation, or to use such proceeds, to finance the cost of acquiring and constructing the Project, including all costs incurred in connection with the issuance of the Bonds by the Authority and the Corporation, up to an amount not to exceed $7,900,000. A-I (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 commitment is an affirmative official action of the Authority toward the issuance of the Bonds as herein contemplated in accordance with the purposes of both the Act and the applicable United States Treasury Regulations. 2. Undertakings on the Part of the Authority. Subject to the terms hereof, the Authority agrees as follows: (a) Subject to the other provisions herein and the Corporation providing the Authority with sufficient evidence to enable the Authority to make the findings set forth in Section 159.29 of the Act, the Authority will authorize the issuance of the Bonds, in one or more series or issues, in the aggregate principal amount necessary and sufficient to finance the cost of acquiring, constructing, installing, expanding and developing the Project as the Authority and the Corporation shall agree in writing, but in all events, the principal amount of such Bonds shall not exceed the lesser of (i) the cost of the Project, as determined by the Authority and the Corporation, or (ii) $7,900,000. (b) The Authority will cooperate with the Corporation 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 Corporation for the authorization, issuance and sale of such Bonds and the use of the proceeds thereof to finance the cost of constructing and acquiring the Project. (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 defraying the cost of completion, enlargements, improvements and expansions of the Project, or any segment thereof, or refunding of the Bonds. (d) The loan agreement, trust indenture, mortgage and other financing documents (collectively, the "Financing Agreements") between the Authority and the Corporation shall, under terms agreed upon by the parties, provide for payments to be made by the Corporation 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 the issuance of the Bonds pursuant to this Agreement, the Authority will make no warranty, either expressed or implied, that the proceeds of the Bonds A-2 will be sufficient to pay all costs of acquiring, constructing, installing and developing the Project or that the facilities encompassed by the Project will be suitable for the Corporation's purposes or needs. (0 The Bonds shall specifically provide that they are payable solely from the revenues derived pursuant to the Financing Agreements between the Authority and the Corporation or other agreements approved by the Authority, except to the extent payable out of amounts attributable to Bond proceeds. The Bonds and the interest thereon shall not constitute an indebtedness or pledge of the general credit of Monroe County, the State of Florida or any political subdivision or agency thereof, and such fact shall be plainly stated on the face of the Bonds. (g) Issuance of the Bonds by the Authority shall be contingent upon compliance with all provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations promulgated thereunder, including (1) the ability of and desirability by the Authority to issue obligations for the construction and acquisition of the Project under any applicable volume cap, and (2) the approval of the issuance of the Bonds and the fmancing of the Project by the Authority and the Board of County Commissioners of Monroe County, Florida in accordance with the provisions of Section 147 (0 of the Code. 3. Undertakings on the Part of the Corporation. Subject to the terms hereof, the Corporation agrees as follows: (a) The Corporation 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 Corporation. (b) Prior to the issuance of the Bonds in the principal amount stated above, in one or more series or issues from time to time as the Authority and the Corporation shall agree in writing, the Corporation will enter into the Financing Agreements with the Authority, the terms of which shall be mutually agreeable to the Authority and Corporation, providing for the loan or use of the proceeds of the Bonds to finance the Project. Such Financing Agreements will provide that the Corporation will be obligated to pay the Authority (or the trustee for holders of the Bonds on behalf of the Authority, 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. The Corporation will agree in such documents that if the cost of acquisition and construction of the Project exceeds the amounts allocated therefor, it shall not be entitled to any A-3 reimbursement for any such excess either from the Authority, Monroe County, the bondholders or the trustee for the bondholders. (c) The Corporation shall, in addition to paying the amounts set forth in the Financing Agreements, pay all 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 as part of the costs of the Project, the Corporation hereby agrees to pay all of the out of pocket expenses of officials and representatives of the Authority incurred in connection with the issuance of the Bonds for the Project and will pay all reasonable fees and expenses of the Authority in accordance with its guidelines, of the Authority's Financial Advisor, Public Financial Management, Inc., of the Authority's Counsel and of Nabors, Giblin & Nickerson, P.A., Bond Counsel. (e) The Corporation will hold the Authority and Monroe County 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 Corporation agrees to indemnify and defend the Authority and Monroe County and hold the Authority and Monroe County 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 Corporation'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' and legal assistants' fees incurred in the enforcement of any agreement of the Corporation contained herein. In the event that the Bonds are not issued and delivered, this indemnity shall survive the termination of this Agreement. (g) The Corporation 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 Corporation under Section 3 hereof are subject to the conditions that all of the following events shall have occurred not later than September 1, 2002, or such other date as shall be mutually satisfactory to the Authority and Corporation. (a) The Authority shall be lawfully entitled to issue the Bonds as herein contemplated. A-4 (b) The Authority and Corporation 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 instrument 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 Corporation and to 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 Corporation, 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 Corporation and to the Au thority 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 Corporation 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 159, 189,215 and 218, Florida Statutes, relating to the issuance of the Bonds, the interest rate thereon, the type of purchasers of the Bonds and the terms on which the Bonds may otherwise be issued. (f) The Bonds shall be sold in a private placement to an institution or institutions or other investors acceptable to the Authority in principal amounts of not less than $100,000 or, if sold publicly, shall be supported by such credit enhancement or other credit facility to result in the Bonds being rated investment grade by Standard & Poor's Corporation, Fitch's Investors Service, Inc. or Moody's Investors Service, Inc. If the events set forth in this Section 4 do not take place within the time set forth or any extension thereof, the Corporation 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, mcluding all reasonable legal fees for counsel to the Authority and expenses of bond counsel. 5. Bindin~ Effect All covenants and agreements herein contained by or on behalf of the Authority and the Corporation shall bind and inure to the benefit of the respective successors and assigns of the Authority and the Corporation whether so expressed or not. A-5 IN WITNESS WHEREOF, the parties hereto have entered into this Agreement by their officers thereunder duly authorized as of the 8th day of September, 2001. MONROE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, MONROE COUNTY, FLORIDA (SEAL) By: Chairman ATTEST: "j Secretary NORTH KEY LARGO UTILITY CORP. (CORPORATE SEAL) By: Chairman ATTEST: Secretary A-6 EXHIBIT B TO RESOLUTION PROOFS OF PUBLICATION