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88-27 v RESOLUTION NO. 88-27 A RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF A LETTER OF INTENT WITH NAVAL CON- TINUING CARE RETIREMENT FOUNDATION, INC. , A FLORIDA NOT-FOR-PROFIT CORPORATION, WITH RE- SPECT TO FINANCING THE COST OF THE ACQUISITION, CONSTRUCTION AND INSTALLATION OF A CONTINUING CARE RETIREMENT FACILITY TO BE KNOWN AS "FLEET LANDING, " TO BE LOCATED IN THE CITY OF ATLANTIC BEACH, DUVAL COUNTY, FLORIDA, AND TO BE OWNED AND OPERATED BY SAID CORPORATION; AND THE IS- SUANCE AND SALE BY THE CITY OF ATLANTIC BEACH OF ITS VARIABLE RATE DEMAND REVENUE BONDS, SERIES 1989 (FLEET LANDING PROJECT) , IN AN AGGREGATE PRINCIPAL AMOUNT NOT EXCEEDING $65, 000, 000, FOR THE PURPOSE OF FINANCING THE COST OF SAID PROJECT; ALL PURSUANT TO CHAPTER 159, PART II, FLORIDA STATUTES, AS AMENDED; PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF ATLANTIC BEACH, FLORIDA: Section 1. This Resolution is adopted pursuant to the provisions of Chapter 159, Part II, Florida Statutes, as amended, and other applicable laws. The City of Atlantic Beach, Florida (the "City") is hereby acting through its City Commission (the "Commission") which is vested with the general legislative powers of the City. Section 2. The City has fully considered the acquisi- tion, construction and installation of a continuing care retire- ment facility to be known as "Fleet Landing" (the "Project") , as described in the proposed letter of intent to Naval Continuing Care Retirement Foundation, Inc. , a Florida not-for-profit cor- poration (the "Borrower") , a copy of which is attached hereto and incorporated herein by reference and a copy of which is in the City's permanent files, and concerning such Project hereby finds and determines the following facts in accordance with the criteria in Section 159.29 of the Florida Industrial Development Financing Act (the "Act") , to-wit: (a) The Project is appropriate to the needs and circum- stances of and will make a significant contribution to the econom- ic growth and development of the City, Duval County (the "County") and the State of Florida (the "State") ; will enhance and increase purchasing power and will provide for gainful employment; will -1- improve living conditions and health care; will advance and im- prove the economic prosperity, the public health and the general welfare of the State and its inhabitants; and will otherwise pro- vide for and contribute to the health, safety and welfare of the people of the State as stated in Section 159. 26 of the Act. (b) Under the proposed financing plan, the Borrower will have adequate and satisfactory financial responsibility and will be fully capable and willing to fulfill its obligations to pay the installments under the financing agreement in the amounts and at the times required thereunder and its obligation to operate, repair and maintain the Project at its own expense; and the Bor- rower will be fully capable and is willing to serve the purposes of the Florida Industrial Development Financing Act and such other responsibilities as are imposed under the proposed financing agree- ment. (c) The City will be able to cope satisfactorily with the impact of the Project. The City will be able to provide or cause to be provided when needed the public facilities, including the utilities and public services, that will be necessary as a result of the acquisition, construction, installation, operation, repair and maintenance of the Project, and any increases of popu- lation or other circumstances resulting therefrom, provided that the Borrower complies with the terms and provisions of an agree- ment to be negotiated and executed by and between the City and the Borrower relating to the provision of water and sewer services by the City to the Borrower. Notwithstanding any provision to the contrary contained herein, the City will not incur any obli- gation (financial or otherwise) to provide such public facilities, utilities and services by virtue of this resolution. (d) The City understands that adequate provisions shall be made for the operation, repair and maintenance of the Project at the expense of the Borrower and for the payment of principal of, premium, if any, and interest on the bonds by the Borrower. (e) The costs to be paid from the proceeds of the bonds shall be "costs" of a "project" within the meaning of the Florida Industrial Development Financing Act. Section 3 . The City further finds that the Project con- stitutes a "project, " to wit, a "health care facility, " within the meaning of the Act. Section 4 . The City further finds that the proposed revenue bonds (the "Bonds") , when issued, will not constitute a debt, liability or obligation of the City, of the County or of the State or of any political subdivision thereof, within the meaning of the Constitution and laws of the State and neither the faith and credit nor the taxing power of the City, the County or -2- of the State or of any political subdivision thereof will be pledged to the payment of the principal of, premium, if any, or interest on the Bonds. Section 5. The City further finds that no recourse shall be had for the payment of the principal of, premium, if any, or interest on any of the Bonds or for any claim based thereon or upon any obligation, covenant or agreement contained in the Bonds against the City or any past, present and future commissioner, member, officer or employee of the City, or any incorporator, member, commissioner, director, trustee, officer or employee of any successor of the City. Section 6. The City further finds that a public hearing was held by the Commission on behalf of the City on November 30, 1988, upon public notice published in The Beaches Leader, a news- paper of general circulation in the City, no less than 14 days prior to the scheduled date of such public hearing, at which hear- ing members of the public were afforded reasonable opportunity to be heard on all matters pertaining to the location and nature of the proposed Project and to the issuance of the Bonds. The public hearing provided a reasonable opportunity for interested individ- uals to express their views, both orally and in writing, on the issuance of the Bonds and the location and nature of the proposed Project, and was held in a location which, under the facts and circumstances, was convenient for residents of the City. The notice was reasonably designed to inform residents of the City of the proposed issue, stated that the City would be the issuer of the Bonds, stated the time and place for the hearing and contained the information required by the Internal Revenue Code of 1986, as amended (the "Code") . The 14-day period was adequate for notice to be brought to the attention of all interested persons, exceeds the normal periods for notices of public hearings conducted by the Commission and various agencies of the City, the County and the State, and provided sufficient time for interested persons to prepare for and to express their views at such hearing. The Com- mission, which is deemed to be an applicable elected representa- tive of the City pursuant to the provisions of Section 147 (f) of the Code, hereby approves the issuance of the Bonds by the City for purposes of Section 147 (f) of the Code upon the terms and conditions set forth in the proposed letter of intent. Section 7 . The proposed letter of intent is hereby ap- proved as to form and content, and the Mayor-Commissioner (or any member of the Commission lawfully acting on behalf of the Mayor- Commissioner) for and on behalf and in the name of the City is hereby authorized and directed to execute and deliver such letter to the Borrower and the City Clerk is hereby authorized to attest by his signature the Mayor-Commissioner's signature. -3- • Section 8. This Resolution shall take effect immedi- ately upon its passage. PASSED AND ADOPTED this 5th day of December, 1988 . CITY COMMISSION OF THE CITY OF A LANTI - LORIDk (Official Seal) 1 IAA BY: A .� _ I ALIL„ 4. Tyo"= 'ommissio er ATTEST: 4i City Clerk Approved as to Form and Correctness: Ar' ` ity Attorney GT12RS1 -4- December 5, 1988 Naval Continuing Care Retirement Foundation, Inc. 2405 Mayport Road Atlantic Beach, FL 32233 Attention: RADM Joseph L. Coleman, USN (Ret) President Re: Proposed City of Atlantic Beach, Florida, Variable Rate Demand Revenue Bonds, Series 1989 (Fleet Landing Project) , in an aggregate principal amount not to exceed $65, 000, 000 Gentlemen: Based upon recent discussions between members of the staff of the City of Atlantic Beach, Florida (the "City") and Naval Continuing Care Retirement Foundation, Inc. (the "Borrow- er") , a Florida not-for-profit corporation described in Section 501 (c) (3) of the Internal Revenue Code of 1986, as amended, the City understands that the Borrower is considering acquiring, con- structing and installing a continuing care retirement facility to be known as "Fleet Landing, " to be owned and operated by the Bor- rower, to be located within the City on a site containing approxi- mately 69 acres of land situated on the east side of Mayport Road at the intersection of Assisi Lane and Mayport Road (the current address for Fleet Landing being 2405 Mayport Road, Atlantic Beach, Florida) , consisting of the acquisition of approximately 69 acres of land, the construction of four three-story apartment buildings (containing approximately 164 living units) , approximately 160 duplex and single-family living units, a community center contain- ing kitchen, dining, recreational and administration facilities, Naval Continuing Care Retirement Foundation, Inc. December 5, 1988 Page Two a health center initially containing approximately 26 assisted- living units and approximately 42 skilled nursing beds, and re- lated and appurtenant facilities, and the acquisition and installa- tion of related facilities, machinery, equipment, fixtures and furnishings (the "Project") . We understand that the present total estimated cost of the Project will be approximately $65, 000, 000. The City further understands that the willingness of the City to issue and sell revenue bonds for the purpose of financing the Project is an important factor being considered by the Bor- rower in determining the Project's feasibility. The City has received and reviewed your factual presen- tation and, based upon that presentation, by the adoption of the resolution authorizing this Letter of Intent has found and determined the following facts in accordance with the criteria set forth in Section 159. 29 of the Florida Industrial Development Financing Act (the "Act") in exercising the City's powers under Part II, Chapter 159, Florida Statutes, to wit: 1. The Project is appropriate to the needs and circum- stances of and will make a significant contribution to the economic growth and development of the City, Duval County (the "County") and the State of Florida (the "State") ; will enhance and increase purchasing power and will provide gainful employ- ment; will improve living conditions and health care; will advance and improve the economic prosperity, the public health and the general welfare of the State and its inhabitants; and will otherwise provide for and contribute to the health, safety and welfare of the people of the State as stated in Section 159.26 of the Act. 2 . Under the proposed financing plan, the Borrower will have adequate and satisfactory financial responsibility and will be fully capable and willing to fulfill its obligations under the proposed financing agreement and in the amounts and at the times required thereunder; the Borrower is able to operate, repair and maintain the Project at its own expense; and the Borrower will be fully capable and is willing to serve the purposes of the Act as required by Part II, Chapter 159, Florida Statutes, and such other responsibilities as are imposed under the proposed financing agree- ment. • Naval Continuing Care Retirement Foundation, Inc. December 5, 1988 Page Three 3. The City will be able to cope satisfactorily with the impact of such Project. The City will be able to provide or cause to be provided when needed the public facilities, including the utilities and public services, that will be necessary as a result of the acquisition, construction, installation, operation, repair and maintenance of the Project, and on account of any increase of population or other circumstances resulting there- from, provided that the Borrower complies with the terms and pro- visions of an agreement to be negotiated and executed by and between the City and the Borrower relating to the provision of water and sewer services by the City to the Borrower. Notwith- standing any provision to the contrary contained herein, the City will not incur any obligation (financial or otherwise) to provide such public facilities, utilities and services by virtue of this letter of intent. 4. The City understands that adequate provisions shall be made for the operation, repair and maintenance of the Project at the expense of the Borrower and for the payment of principal of, premium, if any, and interest on the bonds by the Borrower. 5. The costs to be paid from the proceeds of the bonds shall be "costs" of a "project" within the meaning of Part II, Chapter 159, Florida Statutes, to wit a "health care facility. " Accordingly, and in order to induce the Borrower to incur expenses for the Project and its financing, the City hereby makes the following proposal: 1. The City will issue its revenue bonds in one or more series provided that the aggregate principal amount of such bonds shall not, without the further approval of the City, exceed $65, 000, 000 and that in the opinion of bond counsel, interest on such bonds shall be excludable from gross income for federal in- come tax purposes. The proceeds of the issues will be used for the purpose of paying the costs of acquiring, constructing and installing the Project within the corporate jurisdiction of the City. 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 and requirements as shall be agreed upon be- tween the City and the Borrower. Such bonds shall not be deemed a debt, liability, or obligation of the City, of the County or of the State or any political subdivision thereof, or a pledge of the faith and credit of the City, of the County or of the State Naval Continuing Care Retirement Foundation, Inc. December 5, 1988 Page Four or of any political subdivision thereof, but shall be payable solely from the revenues provided therefor. 2 . The City and the Borrower will enter into a financ- ing agreement under which the Borrower agrees to pay to the City payments in amounts equal to the principal, premium, if any, and interest payable on the bonds. The payments to be made by the Borrower under the financing agreement shall be pledged and applied thereunder to the payment of the principal of, premium, if any, and interest payable on the bonds. The total sums pay- able under the financing agreement shall be in such amount as is fully sufficient to pay the costs of the Project, the costs and expenses of financing the same and the expenses of the Borrower and the City related thereto. The Project will be owned and operated by the Borrower. The total sums payable under the financing agreement will be secured by a first mortgage lien upon and security interest in the Project. Such first mortgage lien will be insured by title insurance in the total amount of the bond issue in form and issued by a title insurer acceptable to counsel to the City. As additional security for the payment of the debt service on the Bonds, and for the payment by the Bor- rower of its obligations under the financing agreement, the Bor- rower will obtain and cause to be delivered to the bond trustee an irrevocable letter of credit issued by Commonwealth Bank of Australia or other commercial bank acceptable to the Borrower and the Issuer. 3 . The City will cooperate in the prompt preparation of the financing agreement and the necessary resolutions for the authorization and sale of the bonds and, through bond counsel, in any proceedings for the validation of the bonds in the Circuit Court in and for Duval County, pursuant to the provisions of Chap- ter 75, Florida Statutes, as amended, if such validation shall be deemed desirable by bond counsel or required by the purchaser of the bonds. 4 . Since it is anticipated that the acquisition, con- struction and installation of the Project may commence prior to the sale of the bonds and the Borrower knows and acknowledges that the City will have no funds available to pay the cost of the Project other than funds derived from the sale of the bonds, the Borrower agrees to advance from time to time all funds necesssary Naval Continuing Care Retirement Foundation, Inc. December 5, 1988 Page Five for the acquisition, construction and installation of the Proj- ect; provided, however, that the City shall not by virtue of such advances acquire any liability with respect thereto except as in this paragraph provided, and the City shall not by virtue of such advances or otherwise through this Letter of Intent acquire any property interest in the Project whatsoever. To the extent that the net proceeds derived from the sale of the bonds are suffi- cient for such purpose, the City agrees to reimburse the Bor- rower from such net proceeds after the issuance of the bonds for costs of the Project incurred by the Borrower prior to the issu- ance of the bonds (subject to any limitations imposed by Section 145 of the Internal Revenue Code of 1986, as amended) . 5. Upon delivery of the bonds, the provisions of this proposal and the acceptance hereof 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 financing agreement and any other closing documents in the form in which they shall be finally approved by resolution of the City Commission, the provisions of such financing agreement, as so approved, shall control. 6. The City shall keep open and outstanding this com- mitment and inducement to the Borrower for a reasonable time so long as the Borrower shall be proceeding with appropriate efforts for the conclusion of arrangements necessary to the Project; pro- vided, however, if for any reason the bonds are not delivered to the purchasers thereof on or before December 31, 1989, then the provisions of this proposal and the agreement resulting from its acceptance by the Borrower shall be cancelled. In such event, or in the event of its earlier cancellation by agreement between the Borrower and the City, neither party shall have any rights against the other and no third party shall have any rights against either party except: (a) The City will transfer and convey to the Borrower all of the Project components, if any, which shall have been acquired by the City; and (b) The Borrower will pay the City the amount of all expenses which shall have been incurred by the City in connection with the Project. Naval Continuing Care Retirement Foundation, Inc. December 5, 1988 Page Six 7 . In all events, the Borrower will pay the out-of- pocket expenses and fees of officials and representatives of the City, counsel for the City and bond counsel incurred in connec- tion with the Project. 8. Nothing contained herein shall be construed as an approval of any necessary rezoning applications for the Project nor for any other regulatory permit and the City shall not be construed by reason of this Letter of Intent or by reason of the adoption of the resolution authorizing this Letter of Intent to have waived or to be estopped from asserting any rights or respon- sibilities it may have with respect to any such applications, permits or approvals. 9. The Borrower, in accepting this proposal, will thereby agree to indemnify and defend and hold harmless the City against any loss or damage to property or any injury or death of any person or persons occurring in connection with the acquisi- tion, construction, installation, maintenance and operation of the Project. This indemnity shall be superseded by a similar indemnity in the documents relating to the issuance of the bonds 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 proposal. If this proposal shall be satisfactory to the Borrower, please have the acceptance statement which follows this proposal executed by the proper officials of the Borrower and provide an Naval Continuing Care Retirement Foundation, Inc. December 5, 1988 Page Seven accepted copy to the City, whereupon this proposal will consti- tute an agreement with respect to the matters herein contained. Very truly yours, CITY ,OF AT .0 TIC : : :CH FLORI IA /.0 ATTEST: - BY AA�t g Ma- or-Co missioner 7 /41---/ ( c City Clerk y' (OFFICIAL SEAL) Approved as to Form and Correctness: Lk ,f2jj;Y ity Attorney The terms and conditions contained in the foregoing pro- posal by the City of Atlantic Beach, Florida, are hereby accepted by the Borrower this 5th day of December, 1988 . NAVAL CONTINUING CARE RETIREMENT FOUNDATION, INC. ATTEST: By Its President (CORPORATE SEAL) Its Secretary GT12MISC1