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HomeMy WebLinkAboutResolution 384 Elderly Communities, LTD RESOLUTION NUMBER 384 NOT ORIGINAL. APPROVED IN APRIL 13,1982 MEETING. " , e e RESOLUTION NO. 384 A RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH WINTER SPRINGS ELDERLY COMMUNITIES, LTD., WHEREBY THE CITY OF WINTER SPRINGS, FLORIDA AGREES TO ISSUE INDUSTRIAL DEVELOPMENT REVENUE BONDS ON BEHALF OF WINTER SPRINGS ELDERLY COMMUNITIES, LTD., FOR FINANCING OF A HEALTH CARE FACILITY AND MAKING CERTAIN FINDINGS WITH RESPECT TO THE FACILITY AND THE FINANCING THEREOF. . WHEREAS,' Winter Springs Elderly Communities, Ltd., a Florida limited partnership (the "Borrower"), has requested that the City of, Winter Springs, Florida (the "Issuer") enter into an agreement in the form attached heret9 and incorporated herein by reference as Exhibit A (the "Agreement"); and WHEREAS,each of the recitals and facts set forth in the preambles thereof are approved by this City Commission, now, therefore, BE IT RESOLVED BY-THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA: SECTION 1. AUTHORITY FOR TIllS RESOLUTION. This resolution is adopted pursuant to the provisions of Chapter 159, Part II, Florida Statutes, as amended (the "Act"), and other applicable provisions of law. SECTION 2. FINDINGS. It is. hereby ascertained, determined and declared as follows: A. The City Commission of the Issuer is authorized by the Act to make and execute financing agreements, contracts, deeds and other instruments necessary or convenient for the purpose of facilitating the financing of the acquisition, construction, and equipping of projects as defined in the Act, including machinery, equipment, land, rights in land and other appurtenances and facilities related thereto, to the ,end that the Issuer may be able to improve living conditions and health care, promote the economic growth of the State of Florida, increase opportunities for gainful employment and otherwise contribute to the welfare of the State of Florida and its inhabitants, and to finance the cost of such projects by the issuance of its revenue bonds. B. The Borrower wishes to construct a new adult congregate living facility' and related property (the "Project") which comprises a health care facility as described in Section 159.27(16) of the Act to be located within the boundaries of the Issuer, and to have the Issuer issue its revenue bonds the proceeds of the sale of which will be loaned to the Borrower to pay the costs of-acquiring, constructing, and equipping the Project, such . loan to be repaid by the Borrower pursuant to a financing agreement between the Borrower and the Issuer; and the Borrower has requested that the Issuer indicate to the Borrower its intentions in this respect, in order to induce the Borrower to proceed with the Project and incur expenses for its initiation and its financing and by this resolution take affirmative official action toward the issuance of such bonds within the meaning of -1- l ~ . ff .. "I A . ". ........ e " lction ;.103-8{a) (S) of the Internal Revenue Service R"egulatiOnS, as amended, pertaining to Industrial Development Bonds. G. The Proje'ct is appropi'iate to th'e needs and circumsta.nces of the Issuer's community and the location of the Project therein shall make a significant contribution to the economic growth of the Issuer, shall provide gainful employment, shall improve living conditions and health care and shall serve a public purpose by advancing the economic . prosperity ahd th~.general welfare of the State of Florida and i~s people. . D. Giving due regard to .the ratio of the Borrower's current assets to its current liabilities, net worth, earni~gs trends, coverage of all fixed charges, the nature of . its business and "the activity. in which it is involved, its inherent stability and all other . factors determinative of the Boi'rower's capabilities, financial and otherwise, of fulfilling -. its obligations. consistently with the purposes of the Act, (including particularly the - : _ representations of the Borrower: (1) that William' C. Demetr"ee and George E.. Yurchison .-are general partnel>s of the Borrower and will be financially responsible for the obligations. . of the Borrowel" and (2) that repayment of advances of bond proceeds to the Borrower will be insured by the Federal Housing Administration) the Borrower is financially responsible. and fully capable and willing to fulfill its obligations unGe~ th~ pro~("_qei! fi!1~""^;n.c.:. agreemen4 including the obligation to make paYU1aIlts 1.'1 b.'1e SA"T;::~"1~ =-::.:! .:=.!. L'1: ~: ~::'.::s required and the obligation to repair- and !fIaintain at its own expense the Project) and the Borrower is desirous of serving the purposes of the Act and is willing and capable of fully performing ell_ other obligations and responsibilities imposed upon it by the proposed financing documents. . .# '. '. . -.' E.... The- IsSu~r; is able to cope satisfactorily with the impact of the Project) and all the necessary public facilities, utilities and services that will be necessary for the constr-uction, operation) repair and' maintenance of the Project and on account of any increase in population or other circumstances resulting by reason of the location of the Project \'/ithin the territori~l limits of the Issuer are available now or .l\lust'b~..provided bY:ltl1e::deyelop~r undel:'~heprov~sions of the Issuer's . Land Development Ordinance. .. . . '1. !-! ~.. .- . ~. . . F. . Adequate provision will be mad~' under the provisions of the proposed financing agreement for the repair and maintenance of the Project at the expense of the Borrower, and for the payment of the principal of and premium, if any, a~'d interest on the bonds.' . -:. . . - . G. A Certificate of Need is not required by Sections 381.493-381.498 and 400.601-400.615, Florida Statutes for the constructlon or operation of the Project. ... H. The principal of and pr-emium, if- any, and interest on the bonds and all payments required under the proposed financing agreement and the trust indenture, if any, securing the bonds shall be paya~l_e solely from the proceeds derived by the Issuer under the proposed financing - agreement, and the Issuer shall never be required to (1) levy ad . valorem taxes on any property within its territorial limits to pay the principal of and premiumr if any, and interest on the bonds or- to make any other payments provided for under the proposed financing agreement or the trust indenture, or (ii) pay the same from any funds of the Issuer other than those derived by the Issuer under the proposed financing agreement; and such bonds shall not constitute a lien upon any property.owned by or situated within the territorial limits of the Issuer except the Project. -2- e e I. The costs of the Project to be paid from the proceeds of the bonds will be costs of a project within the meaning of the Act. J. The Project will not engage in any discrimination on the basis of race, religion or national origin in reviewing or selecting applicants for residence or in . operating the Project. 'K.The Project shall serve a public purpose by advancing the economic prosperity, the public health and the general welfare of the state and its people. L. The interest on the bonds will be exempt from federal income taxation under existing laws of the United States. SECTION 3. AGREEMENT AUTHORIZED. The Agreement is hereby ap- proved and'the Mayor and the Clerk are hereby authorized to execute the Agreement on behalf of the Issuer, with such changes therein, whether made prior to the execution thereof or thereafter, as shall be approved from time to time by such officers executing the same, such approval to be conclusively evidenced by their execution thereof, and this City Commission hereby finds and determines the recitals and facts set forth in the preambles to the Agreement. Such officers and all other officers and employees of the Issuer are hereby authorized to execute such further agreements and take such further action as shall be necessary to carry out the intent and purposes expressed in such Agreement, and are further authorized to take such other steps and actions as may be required and necessary in order to i~sue such bonds. SECTION 4. AFFIRMATIVE OFFICIAL ACTION. This Resolution is an affirmative official action of the City Commission toward the issuance of the Bonds referred to in the Agreement in accordance with the purposes of the laws of the State of Florida and United States Treasury Regulation Section 1.103-8(a)(5). SECTION 5. SUNSIllNE LAW. This City Commission hereby finds and determines that all formal actions relative to the adoption of this Resolution were taken in 'an open meeting of this City Commission, and that all deliberations' of this City Commission and of its committees, if any, which resulted in formal action, 'were taken in meetings open to the public, in full compliance with applicable legal requirements, including Section 286.011 of the Florida Statutes. SECTION 6~ EFFECTIVE DATE. This Resolution shall take effect immedi-, ately upon adoption. Adopted this -<.3 day of ~~~ ,1982. Approved: . Attest: rCu.~/: /~l Cler' ' , ' - -3- e e CERTIFICATE . I hereby certify that the foregoing is a true and correct copy of a resolution adopted by the City Commission of the City of Winter Springs, Florida ona(f--t< Y / -i , 1982, at a meeting open to the public, in compliance with all legal requirements, includmg Section 286.011 of the Florida Statutes. '. \'\ ,\,' . ., " , -, ' h ~I T. Jz~M Clerk of the City Commission . . . , . . j .\ ./ (SEAL):,' \ t .... \ \ .... , I . '\'\~\; ~ . . . -4- e e EXHIBIT A AGREEMENT . THIS AGREEMENT is entered into as of the /.,3 day of ~~ , 1982, between the City of Winter Springs, Florida, a body corporate and politic organized and existing under the laws of the State of Florida (the "Issuer"), and Winter Springs Elderly Communities, Ltd., a Florida limited partnership (the "Borrow er") , under the following circumstances: . . A. Based upon recent discussions with officials of the Borrower, it is the understanding of the Issuer that the Borrower is currently considering construction of a . new adult congregate living facility which shall be a health care facility as. described in Florida Statutes Section 159.27(16) to be located within the boundaries of the Issuer (the "Project"), that the Project will cost not exceeding $10,000,000 will improve living conditions and health careand will enable the Borrower to provide additional employment in the community of the Issuer for approximately 30 people, and that the willingness of the Issuer to issue and sell its industrial development revenue bonds (the "Bondstl) pursuant to Chapter 159, Part fi, Florida Statutes, as amended (the "Actlf) for the purpose of financing the acquisition, construction and equipping of the Project is an important ~act under consideration by the Borrower in determining the feasibility of the Project. B. The Issuer has determined that the Project will be appropriate to the needs and circumstances of the Issuer and the location of the Project therein will make a significant contribution to the economic growth of the Issuer, and that the Issuer's issuance of the Bonds to assist the Borrower by financing such Project in the Issuer's community will provide an increase in gainful employment, will improve living conditions and health care and will serve a public purpose by advancing the economic prosperity and the general welfare of the State of Florida and its people. C. In orde.r'to obtain for the residents of the Issuer the benefit of the jobs, employment opportunities and economic improvement which the acquisition, installation and operation of the Project would create and preserve, the Issuer desires to encourage . and induce the Borrower to proceed with the Projects. ' NOW J THEREFORE, the Issuer and the Borrower agree as follows: 1. The law firm of Livermore KIehl &. Lott, P.A., Jacksonville, Florida, is hereby appointed Bond Counsel in connection with the issuance of the Bonds, and is authorized to prepare the legal documents necessary therefor. 2. A t the request of the Borrower the Issuer will enact the necessary ordinances or resolutions to authorize the issuance of the Bonds and execution on its behalf of the Financing Agreement, as hereafter defined, and other necessary documents. The Bonds, the Financing Agreement, the resolutions and other necessary documents shall have such terms as shall be approved by Livermore Klein &. Lott, P .A. as Bond Counsel and by the Issuer, the Issuer's Attorneys, the purchaser(s) of the Bonds, the Borower and the respective counsels to such parties, and the Issuer will deliver the Bonds to the purchaser(s) ther-eof and will cooperate to the fullest extent in consummating the -5- --~~ . r e e transaction. The Bonds will be issued in such aggregate principal amount, mature at such times, bear interest at such rates and be subject to such other terms as shall be agreed upon among the Issuer, the Borrower and the underwriter or the purchaser of the Bonds. . 3. Pending issuance. of the Bonds, the Borrower will provide without expense to the Issuer any necessary interim financing for the Project. The Borrower also agrees that upon issuance of the Bonds for the Project it will enter into an agreement (the . "Financing Agreementll) with the Issuer providing for the payment by the Borrower of amounts sufficient to pay when due the principal of and premiums, if any, and interest on the Bonds and the fees and expenses of the Trustee, if any. The Issuer shall have no financial responsibility with respect to the Bonds or the Project except from the proceeds of the Bonds or revenues produced pursuant to the Financing Agreement. 4. If the Borrower abandons the Project, it shall notify the Issuer, where- upon this Agreement shall terminate. In addition, this Agreement shall terminate on that date one year after the completion of the Project if for any reason the Borrower has not by then requested the Issuee to issue the Bonds. Upon any termination of this Agreement under this paragraph, neither the Issuer nor the Borrower shall have any further rights or obligations hereunder, except that the obligations of the Borrower under paragraph 5 hereof shall survive any such termination. 5. Upon execution. of this Agreement,. the Issuer shall keep open and outstanding this commitment and inducement to the Borrower for a reasonable time so long as the Borrower shall be proceeding with appropriate efforts toward conclusion of any arrangements necessary to the Project; provided, however, if for any reason (other than that which shall be the fault of the Issuer) the Bonds are not delivered to the purchaser o~ purchasers thereof by March 31, 1983, then the provisions of this Agreement may be cancelled at any time thereafter, at the option of the Issuer and without notice to the Borrower, by resolution of the Issuer, duly adopted expressly for such purpose. The Borrower shall bear all costs incurred by the Issuer in connection with the Issuer's participation in the financing contemplated herein, including the out-of-pocket expenses of officials and representations of the Issuer, and reasonable a.ttorneys fees of counsel to the Issuer and Bond Counsel. In event this agreement is cancelled by the Issuer as provided herein, or in the event of its earlier cancellation by agreement between the Borrower and the Issuer, neither party shall have any rights against the other and no third party shall have any rights against either party except: ; (a) The Borrower will pay to the Issuer the amount of all expenses which shall have been incurred by the Issuer in connection with the Project and which were actually or impliedly authorized by the Borrower; (b) The Borrower will assume and be responsible for all contracts entered into by the Issuer at the actual or implied request of the Borrower in connection with the Project; and (c) The Borrower will pay the out-of-pocket expenses of officials and representatives of the Issuer and counsel for the;Issuer incurred in connection with the Project and shall pay reasonable legal fees for services related to the Project or the financing thereof. -6- . .' e e 6. The Iss.uer shall not be obligated to pay any of the Bonds or the interest thereon from any funds of the Issuer derived from any source other than the Agreement, and each Bond shall contain a statement to that effect upon its face. The Issuer shall not be required to incur any expense with respect to the Project or the Bonds unless requested to do so by the Borrower, in which event the Borrower hereby agrees to reimburse the full amount of such expense to the Issuer; and the Issuer may require payment to it of such amount as a prerequisite to its incurring any such expense. In order to induce the Issuer to execute .and deliver this agreement the Borrower hereby agrees to indemnify and defend the Issuer and hold the Issuer 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 construction, equipping and operation of the Project, or for any liability any way growing out of or resulting from this agreement including, without limitation, all costs and expenses of the Issuer, including reasonable attorney's fees, incurred in the enforcement of any agreement of the Borrower herein contained. This indemnity shall be superseded by a similar indemnity in the 'Agreement and, in the event the Bonds are not delivered, this indemnity shall survive the termination of this Agreement. . 7. If requested by Bond Counsel, the Issuel" will cooperate in the prompt preparation of the Financing Agreement and the necessary resolutions for the authoriza- tion and sale of the Bonds and will promptly proceed with validation of the Bonds in the Circuit Court in Seminole County, Florida and if necessary, in the Supreme Court of the State of Florida pursuant to the provisions of Chapter 75, Florida. Statutes. 8. Upon delivery of the Bonds, the provisions of this Agreement shall have no further effect, and in' the event of any inconsistency between the terms of this Agreement and the terms of the Financing Agreement in the form in which shall be finally approved by resolution of the Issuer, the provisions of the Financing Agreement as so approved shall control. . IN WITNESS WHEREOP, the Issuer, pursuant to a resolution duly adopted by its City Commission, has caused this Agreement to be executed by its Mayor and attested by its Clerk, and the Borrower has duly executed this Agreement, as of the day and year first above written. # , . Approved as to form: CITY OP WINTER SPRINGS, FLORIDA -7- .~ e ',. . Attest: ~_ RJ~ Y ,4:A-~~ / ~ /~"j C erk /' WINTER SPRINGS ELDERLY COHMUNITIES, LTD. By: By: , \ ~ -8-