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HomeMy WebLinkAbout1997-034 RESOLUTION NO. 97-_14__ A RESOLUTION OF INDIAN RIVER COUNTY, FLORIDA AUTHORIZING A MEMORANDUM OF AGREEMENT WITH OCEAN SPRAY CRANBERRIES, INC. WITH RESPECT TO THE FINANCING OF THE ACQUISITION AND REHABILITATION OF A CITRUS PULP PROCESSING FACILITY AND FACILITIES DIRECTLY RELATED OR ANCILLARY THERETO IN INDIAN RIVER COUNTY, FLORIDA; THE PROPOSED ISSUANCE AND SALE OF NOT TO EXCEED $10,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF INDIAN RIVER COUNTY, FLORIDA INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES [TO BE DETERMINED] (OCEAN SPRAY CRANBERRIES, INC. PROJECT) FOR THE PURPOSE OF PAYING ALL OR ANY PART OF THE COST OF SAID PROJECT; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED, by the Board of County Commissioners of Indian River County, Florida: SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of Chapters 125 and 159, Parts II and III, Florida Statutes, as amended, and other applicable laws. SECTION 2. FINDINGS. It is hereby found, ascertained, determined and declared that: (A) Indian River County, Florida (the "County") by and through its Board of County Commissioners is authorized and empowered by the provisions of Chapter 125, Florida Statutes, and the Florida Industrial Development Act, being Parts II and III of Chapter 159, Florida Statutes (collectively, the "Act") to provide for the issuance of and to issue and sell its Industrial Development Revenue Bonds for the purpose of paying all or any part of the cost of any "project" as defined in the Act and related facilities; and - t (B) Ocean Spray Cranberries, Inc. , a corporation duly organ- ized and existing under the laws of the State of Delaware and authorized to transact business in the State of Florida (hereinaf- ter referred to as the "Company") , informed the County of the Company's desire to acquire, rehabilitate and expand an existing waste citrus peels and pulp processing facility designed to convert such citrus material into animal feed and facilities directly related or ancillary thereto to be located in the County (here- inafter referred to as the "Project") ; and (C) The Company has requested the County to exercise its powers to issue revenue bonds pursuant to the Act, for the purpose of financing the Project; and (D) In order to promote the economic growth of the County and the industrial economy of the State of Florida, to maintain and increase purchasing power and opportunities for gainful employment and to advance and improve the economic prosperity and the general welfare of the State and its people, it is desirable that: (1) The County provide for the issuance and sale of its Industrial Development Revenue Bonds, Series 1997 (Ocean Spray Cranberries, Inc. Project) , in the aggregate amount of not to exceed $10,000,000 to be issued in one or more series at one or more times (the "Bonds") ; (2) That the County use the proceeds thereof, to the extent of such proceeds, as follows: (i) to pay all or any part of the cost of issuance of the Bonds, 2 (ii) to pay all or any part of the cost of the acquiring, rehabilitating and expanding the Project, (iii) to pay all or any part of the cost of the acquisition and construction of certain appurtenances and facilities incidental to the Project, and other improve- ments necessary and convenient therefor, and (iv) to pay any other "cost" (as defined in the Act) of the Project; and (3) That the County finance the Project for the Com- pany from proceeds of the sale of its Bonds, such loan to be payable by the Company in installments sufficient to pay the principal of, premium (if any) , and interest and other costs due on the Bonds when and as the same may become due; and (E) The Project shall make a significant contribution to the economic growth of the County, shall maintain gainful employment and shall serve a public purpose by advancing the economic pros- perity -and the general welfare of the State of Florida and its people; and (F) The County is able to cope satisfactorily with the im- pact of the Project and is able to provide, or cause to be pro- vided when needed, the public facilities, including utilities and public services, that will be necessary for the construction, operation, repair and maintenance for the Project and on account of any increase in population or other circumstances resulting therefrom; and 3 II I (G) In view of rising construction costs, rising interest rates and other factors, it is believed essential that the acquisition and construction of the Project commence at the earliest practical date, and the Company is unwilling to make commitments therefor without satisfactory assurances from the County that, upon satisfaction of all requirements of law, and other conditions to be met by the Company, the Bonds will be issued and sold and the proceeds thereof will be made available to finance the cost of the Project, to the extent of such proceeds; and (H) It is necessary and desirable and in the best interest of the County that the County and the Company enter into a Memorandum of Agreement (the "Memorandum of Agreement") , providing among other things for the issuance and sale by the County of the Bonds; for the use and application of the proceeds of the issuance and sale of the Bonds to pay all or any part of the "cost" (as defined in the Act) of the Project, to the extent of such proceeds; and for the loan of the proceeds of the sale of the Bonds by the County to the Company pursuant to a financing agreement requiring the Company to pay the loan in installments sufficient to pay all of the interest, principal, redemption premiums (if any) and other costs due under and pursuant to the Bonds when and as the same become due and payable, to operate, repair and maintain the Project at the Company's own expense, and to pay all other costs incurred by the County in connection with the financing of the acquisition, rehabilitation and administration of the Project which are not paid out of the Bond proceeds or otherwise; and 4 (I) Based on a review of the financial statements of the Company supplied as a part of the Company's application to the County, the Company is financially responsible and fully capable and willing to fulfill its obligations under the proposed financing agreement, including the obligation to make installment payments on the loan for the Project financed with the proceeds of sale of the Bonds in the amount and at the times to be required by the financing agreement; the obligation to operate, repair and maintain such Project at its own expense; and to serve the purposes of the Act and other responsibilities to be imposed under the financing agreement; due consideration having been given to the Company's ratio of current assets to current liabilities, net worth, earning history, coverage of all fixed charges, the nature of its business, its financial stability, and other factors determinative of the capabilities of the Company, financially and otherwise, to fulfill its obligations consistently with the purposes of the Act; and (J) The Bonds shall and will be payable solely from the revenues and proceeds derived by the Company from the operation, leasing or sale of the Project, and will not constitute a debt, liability or obligation of the County or the State of Florida or of any other political subdivision thereof; the County shall not be obligated to pay the same nor interest, premiums (if any) or costs thereon except from the revenues and proceeds pledged therefor, and neither the faith and credit nor the taxing power of the County or the State of Florida or of any other political subdivision thereof 5 will be pledged to the payment of the principal, premiums (if any) , interest, or costs due pursuant to or under such Bonds; and (K) Based on the determination of the County's bond counsel, the Project is reasonably designed and intended to provide solid waste disposal facilities for the processing of citrus waste byproducts into animal feed within the meaning of the rules and regulations of the Internal Revenue Service, and the Project or the Company's principal place of business will be within the boundaries of the County; and (L) The issuance of the Bonds and the financing of the Pro- ject will otherwise comply with all of the provisions of the Act. SECTION 3. APPROVAL OF MEMORANDUM OF AGREEMENT. In order to assure the location of and to induce the Company to locate the Project in the boundaries of the County, with the resulting public benefits which flow therefrom, and to more effectively serve the purposes of the Act, the proposed Memorandum of Agreement to be made between the County and the Company, in the form and with the contents presented at and filed with the Minutes of this meeting, be and the same is hereby approved. SECTION 4. AUTHORIZATION OF EXECUTION AND DELIVERY OF MEMO- RANDUM OF AGREEMENT. The Chairman or the Vice-Chairman of the County is hereby authorized and directed to execute the Memorandum of Agreement in the name of and on behalf of the County, and the Clerk of the County is hereby authorized and directed to attest the same and to affix thereto the official seal of the County, and the Chairman or Vice-Chairman is hereby authorized to deliver the 6 r 11(N� A Memorandum of Agreement to the Company. Such officers and all other officers and employees of the County are hereby authorized to execute and deliver such further agreements, instruments and documents and to take such further action as may be necessary and desirable to effectuate and carry out the intent and purposes of the Memorandum of Agreement, when executed and delivered by the County. SECTION 5. STATEMENT OF OFFICIAL INTENT. The Company is hereby authorized to incur expenditures on the costs of the Project, which expenditures are to be reimbursed to the Company from the proceeds of the Bonds upon their issuance. This Resolution shall constitute a reimbursement allocation by the County and a declaration of "official intent" by the County toward the issuance of the Bonds, within the meaning of Treasury Regulation Section 1.150-2. SECTION 6. SCOPE OF COUNTY APPROVAL. It is expressly stated and agreed that the adoption of this Resolution is not a guaranty, express or implied, nor that the County shall approve the closing and issue the Bonds for the Project. The Company shall hold the County and its past, present and future members, officers, staff, attorneys, financial advisors and employees harmless from any liability or claim based upon the failure of the County to close the transaction and issue the Bonds or any other cause of action arising from the adoption of this Resolution, the processing of the financing for the Project, or the issuance of the Bonds. 7 SECTION 7. COMPLIANCE WITH OPEN MEETING LAWS. It is found and determined that all formal actions of this County concerning and relating to the adoption of this Resolution were taken in an open meeting of the members of this County and that all deliberations of the members of this County and of its committees, if any, which resulted in such formal action were taken in meetings open to the public, in full compliance with all legal requirements. SECTION 8. REPEALING CLAUSE. All resolutions or orders and parts thereof in conflict herewith, to the extent of such con- flicts, are hereby superseded and repealed. SECTION 9. EFFECTIVE DATE. This resolution shall take effect immediately. PASSED AND ADOPTED at a duly called meeting of the Board of County Commissioners of Indian River County, Florida, at which a qud�* was present on April 22, 1997. " BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA (SEAL) zv Caroly C. Ewe Chairman ATTEST•' Jeffrey K. Barton Clerk t Circuit Cqurt APPROVED AS TOLE AL FORM AND CONTENT �VLt� Charles P. V tunac, County Attorney 8 MEMORANDUM OF AGREEMENT This MEMORANDUM OF AGREEMENT, dated as of the 22nd day of April, 1997, between INDIAN RIVER COUNTY, FLORIDA (the "County") and OCEAN SPRAY CRANBERRIES, INC., a corporation duly organized and existing under the laws of the State of Delaware and authorized to transact business in the State of Florida (the "Company") . SECTION 1. The matters of mutual inducement and reliance which resulted in the execution of this Memorandum of Agreement are as follows: (a) The County is authorized and empowered by Chapter 125 and Chapter 159, Parts II and III, Florida Statutes, as amended (collectively, the "Act") , to provide for the issuance of and to issue and sell its Industrial Development Revenue Bonds for the purpose of paying all or any part of the cost of any "project" as defined in the Act. (b) In order to improve the economic base of the County and the industrial economy in the State of Florida (the "State") , to promote the economic growth of the County and the State, to increase purchasing power and opportunities for gainful employment, and to advance and improve the economic prosperity and the general welfare of the State and its people, it is desirable that the County issue and sell its Industrial Development Revenue Bonds, Series (to be determined] (Ocean Spray Cranberries, Inc. , Project) , in the aggregate principal amount of not to exceed $10,000,000 in one or more series at one or more times (the "Bonds") . (c) The County intends to use the proceeds thereof, to the extent of such proceeds, as follows: (i) to pay all or any part of the cost of issuance of the Bonds, (ii) to pay all or any part of the cost of acquiring, rehabilitating and expanding a facility for the conversion of waste citrus pulp and related materials into animal feed and facilities directly related or ancillary thereto, (iii) to pay all or any part of the cost of certain appurtenances and facilities incidental thereto, and other improvements necessary and convenient therefor (the improvements to be acquired and such appurtenances and facilities incidental thereto, being referred to herein, collectively, as the "Project") , and (iv) to pay any other "cost" (as defined in the Act) of the Project. (d) The County intends to finance the Project for the Company from proceeds of the sale of its Bonds, such loan to be payable by the Company in installments sufficient to pay the principal of, premium (if any) , interest and costs due on the Bonds when and as the same become due. (e) The Company has requested that the County enter into this Memorandum of- Agreement for the purpose of declaring the County's intention to provide financing to pay a portion of the cost of the Project. (f) The County, by resolution duly passed and adopted, has made certain findings and determinations and has approved and authorized the execution and delivery of this Memorandum of Agreement. (g) The Company represents that Bond proceeds will not be used to finance any costs for the Project incurred prior to the date that is 60 days prior to the date on which the County first agreed to issue its revenue bonds to finance the Project, except to the extent allowed by federal tax law. SECTION 2. The County will cooperate with the Company and its agents in the Company's efforts to find one or more purchasers for the Bonds, and if purchase arrangements satisfactory to the County and the Company can be made by the Company and its agents, the County will authorize the issuance and sale of the Bonds, and will issue and sell the Bonds to such purchaser or purchasers of the Bonds as may be designated by the Company, all upon such terms and conditions as shall be approved by the Company and the County and authorized by law; provided, however, that in the event the Bonds are not rated investment grade by at least one nationally recognized credit rating agencies, the County will approve the sale of the Bonds solely to accredited investors which will at no time cause the Bonds to be offered for sale to the general public (unless the Bonds are then rated investment grade by a nationally recognized rating agency) . The Bonds will be payable solely from the revenues and proceeds derived by the County from payments by the Company derived from the operation, leasing or sale of the Project, and will not constitute a debt, liability or obligation of the County, the County, or of the State or of any other political subdivision thereof. The County shall not be obligated to pay the same nor interest, premium (if any) or costs thereon except from the revenues and proceeds pledged therefor, and neither the faith and credit nor the taxing power of the County or of the State or of any other political subdivision thereof will be pledged to the payment of the principal of, premium (if any) , interest or costs due pursuant to or under such Bonds. From the date hereof, until the sale of the Bonds, the Company will, within ten (10) days after its occurrence, notify the County of any material change, whether or not adverse, in the business, operations or financial condition of the Company. In the event the County shall, at any time prior to sale of the Bonds, determine in its sole discretion that there has been a material adverse change in the business, operations or financial based upon financial statements or notices provided by the Company in accordance herewith, the obligation of the County to issue and sell the Bonds 2 • • shall, at the option of the County, be terminated. SECTION 3. The County will, at the proper time, and subject in all respects to the prior advice, consent and approval of the Company, submit applications, adopt such proceedings and authorize the execution of such documents as may be necessary and advisable for the authorization, sale and issuance of the Bonds and the construction and equipping of the Project, all as shall be authorized by law and mutually satisfactory to the County and the Company. SECTION 4. The Bonds issued shall be in such aggregate prin- cipal amount, shall bear interest at such rate or rates, shall be payable at such times and places, shall be in such forms and de- nominations, shall be sold in such manner and at such time or times, shall have such provisions for redemption, shall be execut- ed, and shall be secured, all as shall be authorized by the Act and all on terms mutually satisfactory to the County and the Company. SECTION 5. The County will use and apply the proceeds of the issuance and sale of the Bonds, or cause such proceeds to be used and applied, to the extent of such proceeds, to pay the cost of the Project, and will loan such Bond proceeds to the Company for the Project pursuant to a financing agreement requiring the Company to make payment for the account of the County in installments sufficient to pay all of the interest, principal, redemption premiums (if any) and other costs due under and pursuant to the Bonds when and as the same become due and payable, to operate, repair and maintain the Project at the Company's own expense, to pay all other costs incurred by the County in connection with the financing of the acquisition, rehabilitation, expansion, equipping and administration of the Project which are not paid out of the Bond proceeds or otherwise for so long as any of the Bonds remain outstanding, and for the conveyance to the Company of all rights, title and interest of the County in and to the Project when all of the obligations of the Company under the financing agreement have been performed and satisfied. SECTION 6. The Company hereby acknowledges and accepts that it shall be solely responsible for the construction and equipping of the Project, it being understood and agreed that the Company shall provide all services incident to the construction and equipping of the Project (including, without limitation, the preparation of plans, specifications and contract documents, the award of contracts, the inspection and supervision of work performed, the employment of engineers, architects, building and other contractors) and that the Company shall pay all costs of the Project, subject to reimbursement by the County upon the issuance and sale of the Bonds of costs of the Project as permitted by applicable State law and federal tax law, and the use and applica- tion of the proceeds thereof as provided above. The County shall have no responsibility for the provision of the aforesaid services. 3 �M► I It is expected that the cost of the Project will not exceed Ten Million Dollars ($10,000,000) , including interest during the period of expansion, and legal, accounting and financing expenses. The Company agrees that to the extent that the proceeds derived from the sale of the Bonds are not sufficient to complete the Project, the Company, as the owner of the Project, will be responsible for supplying all additional funds which are necessary for the completion of the Project. So long as this Memorandum of Agreement is in effect all risk of loss to the Project will be borne by the Company. SECTION 7. At or prior to the time of issuance and sale of the Bonds, the County will enter into a trust indenture with a corporate trustee (the "Trustee") to secure the Bonds, whereby the County's interest in the Project, the financing agreement with the Company, and all fees, rents, charges, proceeds from the operation of the Project, and other funds and revenues in respect of the Project, will be pledged and assigned to the Trustee, and held by the Trustee in trust, for the benefit of the holders, from time to time, of the Bonds. SECTION S. At or prior to the time of issuance and sale of the Bonds, the following conditions precedent shall have been satisfied: (a) The Company shall have satisfactorily completed all procedures established by the County for the review and approval of industrial development revenue bond issues. (b) The County shall have duly passed and adopted resolutions making all findings required by law and authorizing the issuance and sale of the Bonds and the execution and delivery of the financing agreement, the trust indenture and such other agree- ments, instruments and documents as may be required to be specifi- cally authorized. It is an express condition of this Memorandum of Agreement that the Bonds be sold only in the manner approved by the County. (c) The Company shall have authorized the execution, delivery and performance of the financing agreement, and approved the trust indenture and the issuance and sale of the Bonds, and authorized or approved such other agreements, instruments and documents for which specific authorization or approval may be required. (d) The Company shall have provided a satisfactory opinion of its counsel with respect to the due authorization, execution and delivery of the financing agreement, and related agreements, instruments and documents, their legality, validity, binding effect and enforceability in accordance with their respec- tive terms, and the absence of any violation of law, rule, regula- tion, judgment, decree or order of any court or other agency of 4 • • government and agreements, indentures or other instruments to which the Company is a party or by which it or any of its property, is or may be bound and to such other matters as may be reasonably requested. (e) The Company and the County shall have executed and delivered such non-arbitrage certificates and representations, as may be required to comply with Section 148 of the Internal Revenue Code of 1986, as amended, or any similar successor provisions and the regulations, rulings and interpretative court decisions thereunder. (f) Bryant, Miller and Olive, P.A. , as bond counsel, shall have delivered its opinion with respect to the validity of the Bonds, and to the income tax status of the interest on the Bonds. (g) The Company shall have provided such other or addi- tional representations, warranties, covenants, agreements, certi- ficates, financial statements, and other proofs as may be reasonably required by the County or by Bryant, Miller and Olive, P.A., as bond counsel. (h) There shall have been obtained confirmation of an allocation from The Division of Bond Finance of the State of Florida or any successor thereto for issuance of the Bonds to finance the Project. SECTION 9. In the event that the Bonds are not issued and sold and the transactions contemplated hereby are not closed within the time limit permitted by the confirmation of an allocation (referred to in 8(h) above) for any reason whatsoever and whether or not as a result of any failure to find one or more purchasers for the Bonds, any default or failure of performance by the County, the inability of the County to issue and sell the Bonds or the failure or inability of the County and the Company to agree to the terms and conditions of the agreements, instruments and other documents provided for herein or contemplated hereby, the Company agrees unless waived in the sole discretion of the County that: (a) The Company will (i) pay all its costs and expenses, including any reasonable fees due any attorneys, financial agents or others employed by the Company, (ii) pay the reasonable fees and expenses of bond counsel, and (iii) reimburse the County for all reasonable out-of-pocket costs and expenses, including reasonable fees and expenses of the County Attorney, which the County may have incurred in connection with this Memorandum of Agreement. (b) The Company will indemnify and hold the County, and the County's members, officers, employees and agents, harmless against any liabilities, allegations or claims of loss or damage (including attorneys' fees and expenses) pertaining to the Project, 5 • 5 9 7 the Bonds, or any transaction contemplated hereunder, or arising out of or predicated upon this Memorandum of Agreement, any action or non-action taken or omitted in reliance upon this Memorandum of Agreement, or any default or failure of performance hereunder. } SECTION 10. No covenant or agreement contained in this Memo- randum of Agreement or the Bonds, the trust indenture, the financ- ing agreement, or in any other instrument relating to the Bonds or the Project, shall be deemed to be a covenant or agreement or any member, officer, employee or agent of the County in an individual capacity, and neither the members or any other officer of the County executing the Bonds or any such agreements or instruments shall be liable personally thereon or be subject to any personal liability or accountability by reason thereof. IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement and affixed their respective seals, as of the date first. written above. BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA (SEAL) By Z. Z, Carolyn XAIEggert, irman ATTEST: Jeffrey F. Barton, C er e.Circuit iCoyrt AP OVED AS TO LE AL FORM AND CONTENT I_e A Matleig P. Vitunac, County Attorney OCEAN SPRAY RANBERRIES, INC. (CORPORATE SEAL) By REASURER ATTEST: Its: 6