Loading...
R-83-439• s RESOLUTION NO. 439 A RESOLUTION AUTHORIZING THE EXECUTION AND DELIV- ERY BY THE CITY OF CLERMONT, FLORIDA OF A LETTER OF INTENT AND IaTDIICEMENT AGREEMENT TO LANE HIGHLANDS RETIREMENT AND NURSING CENTER, INC., A FLORIDA CORPORATION; WITH RESPECT TO THE COMMISSION'S ISSUANCE OF REVENUE BONDS IN AN AGGREGATE PRINCIPAL AMOIINT NOT EXCEEDING X2,900,000 TO FINANCE THE PART- NERSHIP'S LAND ACQULSITION AND THE CONSTRUCTION AND EQUIPPING THEREON OF CAPTfAL IMPROVEMENTS CONSTI- TUTING COMPLETION AND EXPANSION OF, AN EXISTING NIIRSING HOME AND ADULT CONGREGATE LIVING FACILITY; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY OF CLERMONT, FLORIDA: SECTION 1. AUTHORTfY FOR THIS RESOLUTION. This resolution, here- inafter called "instrument," is adopted pursuant to the provisions of Chapter 159, Part II, Florida Statutes (the "Act") and other applicable provisions of law. as follows: SECTION 2. FINDINGS. It is hereby ascertained, determined and declared A. The City of Clermont, Florida (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 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. Lake Highlands Retirement and Nursing Center, Inc., a Florida corpora- tion (the "Borrower") wishes to finance expansion of an existing nursing home and adult congregate living facility owned by the Borrower consisting of facilities for 60 new nursing beds and 29 adult congregate living units (the "Project"); 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 Section 1.103 8(a)(5) of the Internal Revenue Service Regulations, as amended, pertaining to Industrial Development Bonds. C. The location of the Project in the Issuer's area of operation shall make a significant contribution to the economic growth of the area of operation of the Issuer, shall provide gainful employment for persons in the City of Clermont, Florida. The Project will serve a public purpose by advancing the economic prosperity and the general welfare of the State of Florida and its people. The Project will constitute a "health care LKL 6/27/83-603 Rev.7/11/83 -1- facility" including a nursing home and an adult congregate living facility within the meaning of the Act. D. Giving due regard to the financial strength of the Borrower (as demon- strated by evidence deemed satisfactory to the Lssuer which has been previously furnished) and all other factors determinative of the Borrower's capabilities, financial and otherwise, of fulfilling its obligations consistently with the purposes of the Act, the Borrower itself is financially responsible and fully capable and willing to fulfill its obligations under the proposed Loan Agreement (hereinafter defined), including the obligation to pay the installments upon the loan in the amounts and at the times required and the obligation to repair and maintain 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 all other. obligations and responsibilities imposed upon it by the Loan Agreement. F. The appropriate governmental entities and utility providers are capable of providing, when needed, all the necessary public facilities, utilities and services that will be necessary for the operation, repair, improvement 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 within the area of operation of the Issuer are available now or can Abe provided when needed. F. The proceeds from the issuance of bonds by the Lssuer will be loaned to the Borrower pursuant to a Loan Agreement to be entered into between the Issuer and the Borrower (the "Loan Agreement"). Adequate provision will be made under the provisions of the Loan Agreement for financing of the acquisition, construction and equipping of the Project at the expense of the Borrower, and for the payment of the principal of and premium, if any, and interest on the bonds. The bonds will be issued pursuant to a trust agreement (the "Trust Indenture") to be entered into between a trustee bank and the Issuer. G. The principal of and premium, if any, and interest on the bonds and all payments required under the proposed Loan Agreement and the Trust Indenture securing the bonds shall be payable solely from the proceeds derived by the Issuer under the proposed Loan Agreement, an"~ the Lssuer .shall never be required to (i) levy ad valorem taxes an any property within its area of operation to .pay the principal of and premium,, if any, and interest on the bonds or to maKe any other payments provid~ad for under the proposed Loan Agreement or the Trust Indenture; (ii) pay the same from any funds of the Issuer other than those derived by the Lssuer under the proposed Loan Agreement; or (iii) require or enforce any payment or performance by the Borrower as provided by the Loan Agreement or the Trust Indenture unless the Lssuer's expenses in respect thereof shall be paid from moneys derived under the Loan Agreement or shall be advanced to the Issuer for such purposes, and the Issuer shall receive indemnity to its satisfaction. Such bonds shall not constitute a lien upon any property owned by or situated within the area of operation of the Lssuer except the Project. Neither the faith and credit nor the taxing power of the Lssuer or of the State of Florida or any political subdivision thereof shall be pledged to the payment of the bonds. I-I. The Borrower's performance of its obligations, financial and otherwise, under the Loan Agreement shall be secured by a first mortgage lien on real property and a security interest in the project furnishings, machinery and equipment. LKL 6/27/83-603 -2- • • I. The Issuer will receive an opinion of nationally recognized bond counsel that the interest on the bonds will be exempt from federal income taxation under existing laws of the United States at the closing of the bond issue. SECTION 3. AUTHORIZATION OF E%ECCTION AND DELIVERY OF INDUCEMENT LETTER. The Chairman of the Issuer is hereby authorized to execute, and the Secretary of the Issuer is hereby authorized to attest, the Lssuer's letter or letters addressed to the Borrower and its affiliates in substantially the form attached to this resolution as Exhibit A and incorporated herein, 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. 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 letter attached as Exhibit A, upon becoming an agreement on its execution by the Borrower, and are further authorized to take such other steps and actions as may be required and necessary in order to issue such bonds. SECTION 4. EFFECTIVE DATE. This instrument shall take effect immediately upon its adoption. Adopted with a quorum present and voting this the ~ day of 1983. CITY OF CLERMONT CITY COUNCIL (SEAL) By:~ Chairman Attest: Sec a ary LKL 6/27/83-603 ' -3- • EXFi~IT A Mr. Herbert L. Rodgers , 1983 Lake Highlands Retirement and Nursing Center 151 East Minnehaha Avenue Clermont, Florida 32711 RE: Proposed acquisition, construction and equipping by Lake Highlands Retirement and Nursing Center, a Florida corporation, of additions to and completion of an existing health care facility consisting of a nursing home and adult congregate living facility (the "Project"), situated in the City of Clermont, Florida, and the financing thereof with industrial development revenue bonds issued by the City of Clermont, Florida. Gentlemen: Based upon recent discussions with officials of Lake Highlands Retirement and Nursing Center (the "Borrower"), it is the understanding of the officials and representa- tives of the City of Clermont, Florida (the "Issuer"), that the Borrower wishes to finance expansion of an existing nursing home and adult congregate living facility owned by the Borrower consisting of facilities for 60 new nursing beds and 29 adult congregate living units (the "Project"); that the Project will cost approximately $2,900,000 and that the willingness of the Issuer to issue and sell its industrial development revenue bonds for the purpose of financing the Project is an important fact under consideration by the Borrower in determining the extent of the feasibility of the Project. The Issuer has determined that the Issuer's issuance of its bonds to assist the Borrower by financing such Project will result in the construction of a necessary facility and that the Issuer's issuance of such bonds will serve a public purpose by advancing the economic prosperity and the general welfare of the State of Florida and its people. Accordingly, in order to induce the Borrower to incur expenses for the initiation of such Project and its financing, the Issuer hereby makes the following proposal: 1. The Issuer will issue its industrial development revenue bonds in one or more installments totaling in the aggregate principal amount a sum not to exceed $2,900,000 for the purpose of paying the cost of the Project. 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 between the Issuer and the Borrower. 2. The Issuer and the Borrower will enter into a Loan Agreement (the "Agreement") which shall provide for the loan of the bond proceeds to the Borrower for LKL 7/11/83-603 -4- • the acquisition, construction and equipping of the Realty and the Project and repayment of the loan by the Borrower. The Borrower's performance of its obligations, financial and otherwise, under the Agreement shall be secured by first mortgage lien on the entire facility, a security interest in the Project furnishings, machinery, furniture and equipment, and the Guaranty and Indemnification Agreement to be entered into by Herbert L. and Rowena Rodgers, jointly and severally (the "Guaranty Agreement"), all for the benefit and protection of the bondholders. The installment payments to be made by the Borrower in repayment of the loan pursuant to the Agreement shall be pledged to the payment of the principal of, interest on and redemption premium, if any, applicable to the bonds and the fees and expenses of the trustee. Upon payment in full of the installments of the loan and all other payments under the Agreement, the lien of the Trust Indenture to be entered into by and between the Authority and the trustee (the "Trust Indenture"), and the Agreement shall be discharged. The loan installments shall be fully sufficient only to pay the cost of the Project, the cost and expenses of financing the same, and the expenses of the Borrower, the trustee and the Issuer related thereto. 3. The Issuer will cooperate in the prompt preparation of the Agreement and the necessary resolutions for the authorization and sale of the bonds. 4. Upon delivery of the bonds, the provisions of this proposal and the agreement resulting from its acceptance by the Borrower shall have no further effect, and in the event of any inconsistency between the terms of this proposal and the terms of the Agreement in the form in which it shall be finally approved by resolution of the Issuer, the provisions of the Agreement as so approved shall control. 5. Upon acceptance by the Borrower of this proposal, the Issuer shall keep open and outstanding this commitment and inducement to the Borrower for a period of twelve months from the date of this proposal unless sooner terminated in accordance with the provisions of subparagraph (b) of paragraph (7) hereof. In the event, for any reason whether or not the fault of the Issuer, the bonds are not delivered to the purchaser or purchasers thereof prior to the termination of this commitment, then the provisions of this proposal and the agreement resulting from its acceptance by the Borrower shall be cancelled unless the Issuer at its option, by resolution duly adopted shall elect to extend this commitment to a later date. In the event of 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 Issuer will transfer and convey to the Borrower all the Project components (and sites, if any) which shall have been acquired by the Issuer; (b) 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 authorized by the Borrower; (c) The Borrower will assume and be responsible for all contracts entered into by the Issuer at the request of the Borrower in connection with the Project; and (d) 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 will pay Livermore Klein do Lott, P.A., bond counsel for the Issuer, reasonable legal fees for legal services related to the Project or the financing thereof. LKL-?/11/83-603 • -5- ,. , ~+ ~ • 6. The Issuer shall not be obligated to pay any the bonds or the interest thereon from any funds of the Issuer derived from any source other than the Agreement or the Guaranty, 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. The Borrower in accepting this proposal, will thereby agree 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 by or on behalf of the Borrower, or in any way growing out of or resulting from this proposal (upon its becoming an agreement if accepted) including, without limitation, all costs and expenses of the Issuer, including reasonable attorneys' fees, incurred in the enforcement of any agreement of the Borrower herein contained in the Agreement and, in the event the bonds are not delivered, this indemnity shall survive the termination of the agreement resulting from the Borrower's acceptance of this .ptoposal~. 7. The proposal of the Issuer as set forth herein is subject to the following conditions: (a) The Borrower shall, from the date hereof until the sale of the. bonds provide a balance sheet and income statement of the Borrower in reasonable detail for and within 50 (fifty) days following the end of each of the first three quarters of the Borrower's fiscal year and an audited balance sheet and income statement for and within 120 days of the end of the Borrower's fiscal year. Nothwithstanding the Borrower's obligation to provide such financial statements, until sale of the bonds, the Borrower shall within 10 (ten) days after its occurrence, notify the Issuer of any material change, whether or not adverse, in the business, operations or financial condition of the Borrower. (b) In the event the Issuer shall, at any time prior to the sale of the bonds, determine in its sole discretion that there has been a material adverse change in the business, operations or financial conditions of the Borrower, whether or not such determination is based upon the financial statements or notices provided by the Borrower in accordance with paragraph (a) above, the obligation of the Issuer to issue and sell the bonds shall, at the option of the Issuer, be terminated. (c) The Issuer shall continue to have the legal authority without the further authorization or approval of any other governmental body other than the approval required by paragraph 8 hereof to issue the bonds. In the event action by any other governmental body is required the Issuer shall use reasonable efforts on its own behalf or on the behalf of the Borrower to obtain such approval. If any such additional approval is required and has not been or cannot be obtained within the time period provided in paragraph 5 hereof then the obligation of the Issuer to issue the bonds shall at the option of the Issuer be terminated. (d) A Certificate of Need shall be issued by the Department of Health and Rehabilitative Services covering the nursing home portion of the Project. (e) All public hearings and approval requirements imposed by Section 103(k) of the Internal Revenue Code of 1954, ss amended, shall have been complied with by, or for, the Issuer. If this proposal shall be satisfactory to the Borrower, please have the acceptance statement which follows this proposal executed by the proper officers of the LKL-7/11/83-603 -6- . ,, ~ ~ ~ . Borrower duly authorized and provide an executed copy to the Issuer, whereupon this proposal will constitute an agreement in principle with respect to the matters herein contained. Yours very truly, CITY OF CLERMONT, FLORIDA (SEAL) By: X ~, ~.~~ Chairman Attest: Greta The terms and conditions contained in the foregoi pro oral by the City of Clermont, Florida are hereby accepted as of this day of , 1983. LAKE HIGHLA RETI EMENT AND NURSING CENTE ~ INC. B ~ LKL 6/27/83-603 ' -7-