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HomeMy WebLinkAbout1999-0667-IL)o --99 RESOLUTION NO. 99- 6 6 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, PERTAINING TO THE ISSUANCE OF THE INDUSTRIAL DEVELOPMENT REVENUE BONDS REFERENCED BELOW IN COMPLIANCE WITH SECTION 103(a) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; AUTHORIZING THE ISSUANCE OF THE INDIAN RIVER COUNTY, FLORIDA, VARIABLE RATE DEMAND REVENUE BONDS (SAINT EDWARD'S SCHOOL, INCORPORATED PROJECT), SERIES 1999, IN AN AGGREGATE PRINCIPAL AMOUNT OF NOT EXCEEDING $18,000,000, FOR THE PURPOSE OF MAKING A LOAN OF FUNDS TO SAINT EDWARD'S SCHOOL, INCORPORATED IN ORDER TO FINANCE OR REFINANCE THE ACQUISITION, CONSTRUCTION AND EQUIPPING OF CERTAIN EDUCATIONAL FACILITIES IN INDIAN RIVER COUNTY, FLORIDA; PROVIDING THAT SUCH REVENUE BONDS SHALL NOT CONSTITUTE A DEBT, LIABILITY OR OBLIGATION OF INDIAN RIVER COUNTY OR THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF, BUT SHALL BE PAYABLE SOLELY FROM THE REVENUES HEREIN PROVIDED; APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT WITH SAINT EDWARD'S SCHOOL, INCORPORATED TO PROVIDE SECURITY FOR SUCH BONDS, AND FOR OTHER MATTERS THEREIN PROVIDED; APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF TRUST AGREEMENT; APPOINTING FIRST UNION NATIONAL BANK AS INITIAL TRUSTEE THEREUNDER; APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT AND CERTAIN OTHER DOCUMENTS REQUIRED IN CONNECTION WITH THE FOREGOING; AUTHORIZING THE CHAIRMAN OR VICE CHAIRMAN OF THE BOARD OF COUNTY COMMISSIONERS TO AWARD THE SALE OF THE BONDS TO FIRST UNION CAPITAL MARKETS, CORP. AND APPROVING THE CONDITIONS AND CRITERIA OF SUCH SALE; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION AND DELIVERY OF A BOND PURCHASE AGREEMENT; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION AND DELIVERY OF A REMARKETING AGREEMENT; APPROVING THE FORM OF AND AUTHORIZING THE DISTRIBUTION OF AN OFFERING STATEMENT WITH RESPECT TO THE BONDS; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION AND DELIVERY OF A TENDER AGENCY AGREEMENT; DESIGNATING A REMARKETING AGENT AND A TENDER AGENT AND MAKING CERTAIN OTHER APPOINTMENTS; AND PROVIDING CERTAIN OTHER DETAILS IN CONNECTION THEREWITH. BE IT RESOLVED by the BOARD OF COUNTY COMMISSIONERS (the "Boar(r) of INDIAN RIVER COUNTY, FLORIDA (the "Issuer") that: SECTION 1. This Resolution is adopted pursuant to the Constitution of the State of Florida, Part II of Chapter 159, Florida Statutes, as amended, Chapter 125, Florida Statutes, as amended, and other applicable provisions of law (collectively, the "Act"). SECTION 2. "Chairman" as used herein refers to both the Chairman and Vice Chairman of the Board, unless specifically indicated otherwise. Throughout this document when reference is made to "Chairman", the Chairman or Vice Chairman may act independently and interchangeably in performing the duties and functions resolved herein. All other terms used herein in capitalized form, unless otherwise defined herein, shall have the same meanings as ascribed to them in the Resolution pertaining to the Bonds referenced below (the "Inducement Resolution"), adopted by the Board on May 18, 1999. follows: SECTION 3. The Board hereby finds, determines and declares as A. In the Inducement Resolution, the Board authorized the issuance of industrial development revenue bonds (the `Bonds") in an aggregate principal amount not to exceed $18,000,000 upon various conditions named therein, in order to loan funds to Saint Edward's School, Incorporated (the "Borrower") to finance or refinance the acquisition, construction and equipping of educational facilities of the Borrower in Indian River County, Florida more particularly described in Schedule I attached hereto (the "Project"). B. Pursuant to the Inducement Resolution, the Borrower has now arranged for the acquisition, construction and equipping of the Project and the refinancing of portions thereof. C. The Issuer is authorized under the Act to finance the Project as herein contemplated and to fully perform the obligations of the Issuer in connection therewith in order to promote the industrial economy of Indian River County, and the State of Florida, increasing and preserving opportunities for gainful employment and purchasing power, improving the prosperity and welfare of the State of Florida and its inhabitants, and otherwise contribute to the prosperity, health and welfare of Indian River County, the State of Florida and the inhabitants thereof. D. The Issuer, as required by the Act, has initially determined that the interest on the Bonds will be excluded from gross income for federal income tax 2 purposes under Section 103(a) of the Internal Revenue Code of 1986, as amended, and applicable regulations thereunder (the "Code'), based in part on a certificate to be obtained from the Borrower; and the Bonds will not be issued unless the Issuer has received a satisfactory opinion of bond counsel regarding the fact that the interest on such Bonds will be excluded from gross income at the time of the delivery of the Bonds. E. The Project constitutes "educational facilities," and a "project" within the meaning and contemplation of the Act, is appropriate to the needs and circumstances of, and shall make a significant contribution to the economic growth of Indian River County, Florida, shall provide or preserve gainful employment and shall serve a public purpose by advancing the economic prosperity and the general welfare of the State of Florida and its people and by improving living conditions within the State of Florida. F. Indian River County, Florida, will be able to cope satisfactorily with the impact of the Project and will be able to provide, or cause to be provided when needed, the public facilities, including utilities and public services, that will be necessary for the construction, operation, repair and maintenance of the Project and on account of any increases in population or other circumstances resulting therefrom. G. The availability of financing by means of industrial development revenue bonds was and is an important inducement to the Borrower to proceed with the acquisition, construction and equipping of the Project and the refinancing thereof. H. Adequate provision has been made in the documents attached hereto for a loan by the Issuer to the Borrower (the "Loan"), to finance the acquisition, construction and equipping of the Project and the refinancing thereof and thereafter for the operation, repair and maintenance of the Project at the expense of the Borrower and for the repayment by the Borrower of the Loan in installments sufficient to pay the principal of and the interest on the Bonds and all costs and expenses relating thereto in the amounts and at the times required. I. The Borrower and First Union National Bank (the "Bank"), which will issue the Letter of Credit, as that term is hereinafter defined, are financially responsible based on the criteria established by the Act, the Borrower is fully capable and willing to fulfill its obligations under the Loan Agreement (the "Agreement") between the Borrower and the Issuer, including the obligation to repay the Loan in installments in the amounts and at the times required, the obligation to operate, repair and maintain the Project at the Borrower's own expense and such other obligations and responsibilities as are imposed under the Agreement. The payments to be made by the Borrower to the Issuer and the other security provided by the Agreement, the Trust Agreement and the Letter of Credit, 3 as those terms are hereinafter defined, are adequate within the meaning of the Act for the security of the Bonds. J. The Issuer is not obligated to pay the Bonds except from the proceeds derived from the repayment of the Loan by the Borrower, or from the other security pledged therefor or from draws under the Letter of Credit, as hereinafter defined, and neither the faith and credit nor the taxing power of the Issuer or the State of Florida or any political subdivision thereof, is pledged to the payment of the principal of, premium, if any, or the interest on the Bonds. K. The Issuer and the Borrower will concurrently with the issuance of the Bonds execute the documentation required for the financing of the Project as contemplated hereby. L. A negotiated sale of the Bonds is required and necessary and is in the best interest of the Issuer for the following reasons: the Bonds will be special and limited obligations of the Issuer payable out of moneys derived by the Issuer from the Borrower's operation of the Project or as otherwise provided herein and will be secured by funds of the Borrower; the Borrower will be required to pay all costs of the Issuer in connection with the financing; the cost of issuance of the Bonds, which must be borne directly or indirectly by the Borrower would most likely be greater if the Bonds are sold at public sale by competitive bids than if the bonds are sold at negotiated sale, and there is no basis, considering prevailing market conditions, for any expectation that the terms and conditions of a sale of the Bonds at public sale by competitive bids would be any more favorable than at negotiated sale; because prevailing market conditions are uncertain, it is desirable to sell the Bonds at a predetermined price; and industrial development revenue bonds having the characteristics of the Bonds are typically sold at negotiated sale under prevailing market conditions. M. First Union Capital Markets, Corp. (the "Underwriter"), has provided, or prior to the issuance of the Bonds will provide, to the Issuer a disclosure statement containing the information required by Section 218.385(6), Florida Statutes. Said disclosure shall be acceptable to the Issuer and the Issuer will not require any further disclosure from the Underwriter. N. The Underwriter has submitted a proposal to place the Bonds pursuant to the terms of the Bond Purchase Agreement hereinafter more particularly described (the "Bond Purchase Agreement"). O. The purposes of the Act will be more effectively served by awarding, or causing to be awarded, contracts for the construction, improvement, installation and equipping of the Project upon a negotiated basis rather than by awarding, or causing to be awarded, such contracts based on competitive bids. 4 P. The costs of the Project will be paid from the proceeds of the Bonds in accordance with the terms of the Agreement and the Trust Agreement (as hereinafter defined), and these costs constitute costs of a "project" within the meaning of the Act. Q. A public hearing concerning the issuance of the Bonds by the Issuer to finance or refinance the acquisition, construction and equipping of the Project, at which comments and discussions from interested persons were solicited and heard, was held by the Issuer on the date hereof, after and pursuant to appropriate publication of notice thereof in Press -Journal, a newspaper of general circulation in Indian River County, Florida, a reasonable period of time in advance of said hearing. R. Following such public hearing, issuance of the Bonds is hereby approved by the Board, and the Board hereby finds that the issuance of the Bonds to finance or refinance the Project will have a substantial public benefit. The Board is the elected legislative body of the Issuer and has jurisdiction over the entire area in which the Project is located. S. All conditions precedent to the acquisition, renovation, construction, financing and refinancing of the Project set forth in the Inducement Resolution have been satisfied, or will be satisfied prior to the delivery of the Bonds, and the proposal will otherwise comply with all of the provisions of the Act. T. It is in the best interest of the Issuer to award the sale of the Bonds to the original purchaser or purchasers designated by the Underwriter pursuant to the Bond Purchase Agreement and approved by the Chairman pursuant to the terms and conditions of the Bond Purchase Agreement. SECTION 4. All actions taken by the Board in connection with its May 18, 1999, meeting, pertaining to the adoption of the Inducement Resolution and the execution of the Memorandum of Agreement referred to therein (the "Memorandum of Agreement") are hereby ratified and confirmed in all respects. SECTION 5. The acquisition, construction, improvement and equipping of the Project and the refinancing thereof is hereby authorized. SECTION 6. For the purpose of paying the cost of the Project, subject and pursuant to the provisions hereof, the issuance of revenue bonds of the Issuer under the authority of the Act in the original aggregate principal amount of $18,000,000, or in such lesser amount as hereinafter provided, is hereby authorized. Such Bonds shall be designated "Indian River County, Florida, Variable Rate Demand Revenue Bonds (Saint Edward's School, Incorporated Project), Series 1999," and subject to the award of the sale thereof as hereinafter provided and payment as provided in the Trust Agreement by and between the Issuer and the trustee thereunder, the form of which is attached hereto as Exhibit "A" (the "1'rust 5 • C Agreement"), shall be issued in the name of and delivered to the Underwriter or as otherwise directed by the Chairman. The sale of the Bonds to the Underwriter in an aggregate principal amount which shall not exceed $18,000,000 at the purchase price set forth in the Bond Purchase Agreement (the "Purchase Price") and at an initial rate of interest, as approved by the Chairman, of not to exceed 12% (the "Maximum Initial Rate"), is hereby authorized, the Chairman's approval of the initial rate to be conclusively evidenced by the execution by the Chairman of an order to the Trustee to authenticate and deliver the Bonds to or upon the order of the Underwriter. The Chairman is hereby authorized and directed to award the sale of the Bonds in the aggregate principal amount of not to exceed $18,000,000, at the Purchase Price, to the order of the Underwriter. The Bonds shall be dated such date, shall bear interest at such rates, shall be payable or shall mature on such date or dates, shall be issued in such denominations, shall be subject to optional, extraordinary and mandatory redemption at such time or times, and upon such terms and conditions, shall be subject to optional tender at such time or times and upon such terms and conditions, shall be payable at the place or places and in the manner, shall be executed, authenticated and delivered, shall otherwise be in such form and subject to such terms and conditions, all as provided in the Trust Agreement, as may be established by resolution of the Issuer adopted prior to the issuance of the Bonds, or as may be approved by the Chairman, and the authority to approve such matters is hereby expressly delegated to the Chairman, with such approval to be conclusively evidenced by the Chairman's execution of any documents including such terms. The Bonds and the premium, if any, and the interest thereon shall not be deemed to constitute a general debt, liability or obligation of the Issuer the State of Florida or of any political subdivision thereof, or a pledge of the faith and credit nor the taxing power of the Issuer, or the State of Florida or of any political subdivision thereof, but shall be payable solely from the revenues provided therefor, and the Issuer is not obligated to pay the Bonds or the interest thereon except from the revenues and proceeds pledged therefor and neither the faith and credit of the Issuer, nor the taxing power of the State of Florida or any political subdivision thereof is pledged to the payment of the principal of or the interest on the Bonds. SECTION 7. In order to secure the payment of the principal of, premium, if any, and the interest on the Bonds herein authorized, according to their tenor, purport and effect, and in order to secure the performance and observance of all of the covenants, agreements and conditions in said Bonds, the execution and delivery of the Trust Agreement, a proposed form of which is attached hereto as Exhibit "A," is hereby authorized. The form of the Trust Agreement is hereby approved, subject to such changes, insertions and omissions and such filling of blanks therein as may be approved and made in such form of Trust Agreement by 6 either of the officers of the Issuer executing the same, in a manner consistent with the provisions of this Resolution, such execution to be conclusive evidence of such approval. First Union National Bank is hereby designated as the initial trustee (in such capacity, the "Trustee") under the Trust Agreement. The Chairman of the Board is hereby designated and appointed the Issuer Representative under the terms of the Trust Agreement and the Vice Chairman of the Board is hereby appointed as an alternate Issuer Representative. SECTION 8. As authorized by and in conformity with the Act, it is desirable and in the public interest that the Issuer loan funds to the Borrower to pay the costs of the Project, such loan to be evidenced by the Loan Agreement (the "Agreement") between the Issuer and the Borrower, a proposed form of which is attached hereto as Exhibit `B," and the execution and delivery of the Agreement is hereby authorized, and the assignment of certain rights of the Issuer under the Agreement by the Issuer to the Trustee is hereby authorized. The form of the Agreement is hereby approved, subject to such changes, insertions and omissions and such filling of blanks therein as may be approved and made in the form of the Agreement by either of the officers of the Issuer executing the same and by the Borrower, in a manner consistent with the provisions of this Resolution, such execution to be conclusive evidence of any such approval. SECTION 9. To provide additional security for the payment of the Bonds, and for the payment by the Borrower of its obligations under the Agreement, the Borrower has agreed to obtain from the Bank an Irrevocable Direct Pay Letter of Credit (the "Letter of Credit") and to enter into a Letter of Credit Agreement (the "Reimbursement Agreement") with the Bank. The form of the Letter of Credit is attached hereto as Exhibit T," and is hereby approved, subject to such changes, insertions and omissions and such filling of blanks therein as may be approved in such form by the Borrower, the Bank and the Chairman or as may be approved by subsequent Resolution. SECTION 10. In order to evidence the undertaking of the Underwriter to purchase the Bonds with the Purchaser, and to set forth the terms and conditions of such sale, the Underwriter, the Borrower and the Issuer will enter into the Bond Purchase Agreement, a proposed form of which is attached hereto as Exhibit "D." The terms of the Bond Purchase Agreement attached hereto are hereby approved, subject to such changes, insertions and omissions and such filling of blanks therein and attaching of exhibits thereto as may be approved by the officers of the Issuer executing the same, the Borrower and the Underwriter, such execution to be conclusive evidence of such approval. The Chairman and Clerk of the Circuit Court or any Deputy Clerk (collectively, the "Clerk") are hereby authorized to execute the Bond Purchase Agreement for and on behalf of the Issuer pursuant to the terms hereof. 7 SECTION 11. In order to obtain the lowest possible interest rate in connection with the initial issuance of the Bonds, the Borrower has agreed to permit the Bonds to contain provisions allowing them to be tendered back to the Tender Agent, as hereinafter defined, by the bondholders and to then be remarketed, and to the extent that they cannot be remarketed, the Trustee has agreed to purchase the Bonds on behalf of the Borrower through payments from the Borrower or a draw on the Letter of Credit. In order to accommodate such plan of financing, the Borrower has agreed to enter into a Remarketing Agreement (the "Remarketing Agreement") with First Union Capital Markets, Corp. (the "Remarketing Agent"). There is hereby delegated by the Issuer to the Remarketing Agent under the Remarketing Agreement such authority as is necessary for the establishment of the interest rate on the Bonds pursuant to the terms of the Trust Agreement and to carry out all duties established by the Remarketing Agreement. SECTION 12. First Union National Bank (in such capacity, the "Tender Agent") is hereby appointed as the initial Tender Agent under the terms of the Trust Agreement and is hereby authorized to take all actions as such. In order to facilitate the ability under this Resolution for bondholders to tender the Bonds back to the Tender Agent, the Borrower and the Tender Agent will enter into the Tender Agency Agreement, the execution and delivery of the Tender Agency Agreement by the Borrower and the Tender Agent is hereby approved. SECTION 13. Certain rights of the Issuer under the Agreement shall be assigned by the Issuer to the Trustee under the terms of the Trust Agreement, all as set forth in the Trust Agreement. SECTION 14. The Chairman and the Clerk are, subject to the terms hereof, hereby authorized and empowered to execute and deliver the Bonds, the Trust Agreement, the Agreement, the Bond Purchase Agreement, and all documents contemplated thereby, in each case, subject to such changes and modifications as either of such officers may approve, such execution to be conclusive evidence of any such approval, and to affix thereto or impress thereon, the seal of the Issuer. SECTION 15. The Issuer hereby approves the form and content of and authorizes the distribution of the Offering Statement relating to the Bonds in substantially the draft form attached hereto as Exhibit "E" (the "Offering Statement") in accordance with the intended purposes thereof with such changes, omissions and insertions to the Offering Statement as the Chairman may, in his discretion, approve, and the execution and delivery of the Bonds by the officers of the County as are herein authorized shall constitute conclusive evidence of such approval. SECTION 16. The Issuer and the officers, employees and agents of the Issuer acting on behalf of the Issuer are hereby authorized and directed to execute L-1 such documents, instruments and contracts, whether or not expressly contemplated hereby, and to do all acts and things required by the provisions of this Resolution and by the provisions of the Bonds, the Trust Agreement, the Agreement, the Reimbursement Agreement, the Tender Agency Agreement, the Remarketing Agreement, the Letter of Credit and the Bond Purchase Agreement authorized herein, as may be necessary for the full, punctual and complete performance of all the terms, covenants, provisions and agreements herein and therein contained, or as otherwise may be necessary or desirable to effectuate the purpose and intent of this Resolution, or as may be requested by the Underwriter, the Bank, the Remarketing Agent, the Borrower, the Trustee or the Tender Agent. The Chairman and the Clerk are hereby designated as the primary officers of the Issuer charged with the responsibility of issuing the Bonds, and the Chairman is hereby authorized to delegate to any other person any of the duties or authorizations of the Chairman or Vice Chairman or the Clerk hereunder. SECTION 17. In case any one or more of the provisions of this Resolution shall for any reason be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Resolution, and this Resolution shall be construed and enforced as if such illegal or invalid provision had not been contained herein. This Resolution is adopted and the Trust Agreement and the Agreement shall be executed, and the Bonds shall be issued, with the intent that the laws of the State of Florida shall govern their construction, except as shall otherwise be expressly provided by the terms thereof. SECTION 18. All parts of the Inducement Resolution and the other agreements contemplated thereby not in conflict with the express terms hereof are hereby reaffirmed. All resolutions or parts thereof in conflict herewith are hereby repealed. SECTION 19. This Resolution shall become effective immediately upon its adoption. 9 SCHEDULEI DESCRIPTION OF THE PROJECT The Project will consist of (a) the refinancing of the existing loan with First Union National Bank that financed a portion of the construction of the Upper School Project, described below, and (b) the completion of the Upper School Project, which includes the construction and equipping of an approximately 14,272 square foot Administration Building, an approximately 20,623 square foot Auditorium Building, an approximately 15,053 square foot Middle School Multipurpose Building, an approximately 29,783 square foot Middle School Academic Building and an approximately 20,128 square foot Fine Arts Center, and the renovation of existing Classrooms, Gymnasiums, Cafeteria/Kitchens, Locker Rooms, Athletic Building, and Library. All of the facilities described above are or will be owned and operated by the School and are or will be located at 1895 Saint Edward's Drive, Vero Beach, Florida 32963. 11 • APPROVED AND ADOPTED by the Board of County Commissioners of Indian River County, Florida, this 20th day of July, 1999. (SEAL) ATTEST: B . Y `- Clerk of the Circuit Court :and ex -officio Clerk to the Boar � County Com Toners LAKI 0203934 v2 10 IN;hair:man, R COUNTY, FLORIDA By V rd of County Commissioners Kenneth R. Macht SEE TRUST AGREEMENT FILED IN OFFICIAL DOCUMENTS FOR MEETING OF JULY 20, 1999 CONTRACT #99 -