5106-9104 .
ORDINANCE NO. 5106-91
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY ?OF
CLEARWATER, FLORIDA, -AMENDING ORDINANCE NO..50E1-90"
OF THE CITY COMMISSION ENTITLED: "AN ORDINANCE OF
THE CITY COMMISSION OF THE CITY OF CLEARWATER,
FLORIDA, APPROVING AN INTERLOCAL AGREEMENT AGREEING
TO THE ISSUANCE OF BONDS BY THE CITY OF'HIALEAH;
FLORIDA TO FINANCE CERTAIN HEALTH FACILITIES
LOCATED WITHIN THE CITY OF CLEARWATER; MAKING
CERTAIN FINDINGS; AFFIRMING THE APPROVAL OF THE
ISSUANCE OF THE BONDS;L; AND PROVIDING FOR AN
EFFECTIVE DATE", BY AGREEING TO INCREASE THE AMOUNT
OF BONDS TO NOT TO EXCEED $11,000,000, DELETING
REFERENCES TO THE MASTER TRUST INDENTURE AND
OUT-OF--STATE PROJECTS AND APPROVING A REVISED FORM
OF INTERLOCAL AGREEMENT TO CONFORM TO SUCH CHANGES;
REAFFIRMING CERTAIN FINDINGS; APPROVING AN
INTERLOCAL AGREEMENT AGREEING TO THE ISSUANCE OF
BONDS BY THE CITY OF HIALEAH, FLORIDA TO FINANCE
CERTAIN HEALTH FACILITIES LOCATED WITHIN THE CITY
OF CLEARWATER; APPROVING THE ISSUANCE OF THE BONDS
UNDER SECTION 147(f) OF THE INTERNAL REVENUE CODE;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, pursuant to Resolution No. 90-65 adopted on
June 26, 1990, as amended by Resolution No.. 90--110 adopted on
October 23, 1990 (the "Bond Resolution"), the City of Hialeah,
Florida (the "Issuer"), among other things, (i) authorized the
issuance of not to exceed $8,000,000 of its Health Facilities
Revenue Bends (National Healthplex, Inc. Florida Projects),
Series 1990 (the "Bonds") to finance a portion of the costs
incurred by National Healthplex, Inc., a Pennsylvania
non--profit corporation (the "Owner") of acquiring,
rehabilitating and operating Palmetto Health Center, a 90-bed
nursing home facility and out-patient rehabilitation center
located in Hialeah, Florida ("Palmetto") and Drew Village
Rehabilitation and Nursing Center, a 120--bed nursing home
facility located in Clearwater, Florida ("Drew Village")
(Palmetto and Drcw Village are hereinafter referred to
collectively as the "Projects") and to pay certain costs of
issuance related to the Bonds; and (ii) approved the issuance
of the Bonds under Section 147(f) of the Internal Revenue Code
of 1986, as amended (the "Code");
WHEREAS, pursuant to Resolution No. 90--30 adopted on
June 21, 1990, the city commission of the City of Clearwater,
Florida (the "City") approved the issuance of the Bonds by the
Issuer pursuant to the requirements of Section 147(f) of the
Code;
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WHEREAS, the approval of the City Commission on June 21,
1990 of the issuance of the Bonds under Section 147(£) of the
Code is valid under the regulations promulgated under the Code
for a one year period;
WHEREAS, pursuant to ordinance No. 5061-90 enacted on
January 3, 1991, the City Commission of the City, among other
things, approved an Interlocal Agreement agreeing to the
issuance of the Bonds by the Issuer and made certain findings
related to the Bonds;
WHEREAS, because the market value of both Projects has
increased, as reflected in new appraisals prepared in
connection with such facilities, the cost of acquiring such
facilities has increased;
WHEREAS, because the cost of acquiring the Projects has
increased, the Issuer amended the Bond Resolution pursuant to a
resolution adopted on May 28, 1991, to increase the authorized
maximum aggregate principal amount of the Bonds to $11,000,000;
WHEREAS, on the date hereof, the City Commission of the
City held the required public hearing with regard to the
issuance of the Bonds in compliance with Section 147(f) of the
Code;
WHEREAS, the Owner no longer intends to finance under a
Master Trust Indenture with the Projects other nursing home
facilities in Silver Springs, Maryland and Dunn Loring,
Virginia (the "Out-of-State Projects"), but intends that only
the Projects will be secured under a trust indenture and
related mortgages;
WHEREAS, the City Commission desires to reapprove the
issuance of the Bonds in compliance with Section 147(f) of the
Code, to amend ordinance No. 5061-90 and to approve an
Interlocal Agreement revised from the Interlocal Agreement
approved pursuant to Ordinance No. 5061-90, all to reflect the
increased authorized maximum aggregate principal amount of the
Bonds to $11,000,000 .and the deletion of references to the
Master Trust Indenture and the Out-of-State Projects and other
changes necessitated thereby;
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF
CLEARWATER, that:
Section 1. The city hereby approves the Interlocal
Agreement in substantially the form attached hereto as
Exhibit A, and the Mayor or Vice Mayor or in their absence, any
member of the City Commission is hereby authorized and directed
to execute and deliver the Interlocal Agreement on behalf of
and in the name of the City with such changes, insertions and
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omissions as may be approved by such officer or member of the
City upon advice of the City Attorney. The execution and
delivery of such Interlocal Agreement for and on behalf of the
city by such officers is conclusive evidence of the approval by
such officers of any such changes, insertions or omissions.
The officials, employees or agents of the City and its counsel
are hereby authorized and directed to do all acts required of
them by the provisions of the Interlocal Agreement such that
all the terms, covenants and agreements thereof shall be fully
performed.
Section 2. The City Commission hereby reaffirms its
findings set forth in Ordinance No. 5061--90 and makes the
findings set forth in Section 1 of the Interlocal Agreement.
Ordinance No. 5061-90 is hereby amended to agree to the
increased amount of Bonds to not to exceed $11,000,000, to
delete references to the Master Trust Indenture and
Out-of-State Projects, and to approve the revised form of
Interlocal Agreement.
Section 3. The City Commission hereby approves the
issuance of the Bonds by the Issuer for the purpose of
financing the acquisition, rehabilitation and operation of the
Projects. This approval is intended to comply with the
provisions of Section 147(f) of the Code.
Section 4. This Ordinance shall take effect immediately
upon adoption.
PASSED ON FIRST READING this 20th day f June 9I.
PASSED AND ADOPTED this 18th day o? J y_?u? j, i9.
Rita Garvey
Mayor - Commission
Attest:
Cy. h:a E. Goudeau
Cli. Clerk
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OWN
Exhibit A
INTERLOCAL AGREEMENT
This INTERLOCAL AGREEMENT is made and entered into as of
the day of , 1991 by and among the CITY
OF HIALEAH, a municipality created under the laws of the State
of Florida (the "Issuer") and the CITY OF CLEARWATER, a
municipality created under the laws of the State of Florida
("Clearwater"). The Issuer and Clearwater are sometimes
hereinafter referred to collectively as the "Public Agencies"
and individually as a "Public Agency."
RECITALS:
WHEREAS, National Healthplex, Inc. (the "Owner"), a
Pennsylvania nonprofit corporation exempt from federal income
taxation under Section 501(c) (3) of the Internal Revenue Code
.of 1986, as amended, intends to acquire, rehabilitate and
operate Palmetto Health Center, a 90 bed nursing home facility
and outpatient rehabilitation center located in Hialeah,
Florida ("Palmetto") and Drew Village Rehabilitation and
Nursing Center, a 120 bed nursing home facility located in
Clearwater, Florida ("Drew Village") (individually, the
"Project" and collectively, the•"Projects"); and
WHEREAS, there exists a need for safe and sanitary nursing
home facilities within the Public Agencies and a need to
enhance the public health and general welfare of the residents
of such Public Agencies by maintaining nursing home facilities
in the Public Agencies; and
WHEREAS, the need for nursing home facilities in the Public
Agencies will be partially alleviated by the acquisition,
rehabilitation and operation by the owner of the Projects; and
WHEREAS, the acquisition, rehabilitation and operation of
the Projects by the Owner will enhance the public health and
general welfare of the residents of the Public Agencies; and
WHEREAS, because of the common plan of financing of both
Projects, the issuvnce of bonds by the Issuer to finance the
Projects will be more efficient, cost-effective and economic
than financing each Project through the separate issuance of
bonds by the Public Agencies in which each Project is located;
and
WHEREAS,
governmental
powers by ei
s
units on a
" services and
Section 163.01, Florida Statutes, permits local
units to make the most efficient use of their
cabling them to cooperate with other governmental
basis of mutual advantage and thereby provide
facilities in a manner that will accord best with
geographic, economic, population and other factors influencing
the needs and development of local communities; and
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WHEREAS, in order to provide financing for the acquisition,
rehabilitation and operation of the Projects, the Issuer
intends to issue its City of Hialeah Health Facilities Revenue
Bonds (National Healthplex, Inc. Florida Projects), Series 1991
for the benefit of the owner in the aggregate principal amount
of $ (the "Bonds") and to enter into a
Loan Agreement, a Trust Indenture and other necessary documents
with respect to the Projects; and
WHEREAS, Clearwater desires to agree to the issuance of the
Bonds.by the Issuer and the execution and delivery of documents
and instruments related thereto.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, the parties hereto, intending to be legally
bound, hereby agree as follows:
Section 1. Findings
(a) Each Public Agency has determined that the
Project located within its respective boundaries complies with
the following criteria and requirements:
(i) Such Project serves a public purpose by
advancing the public health and general welfare of the State of
Florida, the Public Agency and its residents.
(ii) The Public Agency will be able to cope
satisfactorily with the impact of such Project and has provided
or will be able to provide or cause to be provided, when and if
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.
(b) The Public Agencies find that because of the
common plan of financing of both Projects, the issuance of
bonds by the Issuer to finance both Projects will be more
efficient, cost-effective and economic than financing each
Project through the issuance of bonds by the Public Agency in
which such Project is located.
Section 2.
the issuance of
acquisition and
to enter into
documents and
connection with
Issuance of Bonds. Clearwater hereby agrees to
the Bonds by the Issuer to finance the cost of
rehabilitation by the owner of Drew Village and
a Trust Indenture, Loan Agreement and other
instruments the Issuer deems necessary in
the Bonds, subject to the following:
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(a) The proceeds of the Bonds shall be used to
finance a loan to the Owner in the aggregate principal amount
of the Bonds. It is expected that $ and $
of the proceeds of the loan of the Bond proceeds will be used
by the Owner to acquire and rehabilitate Palmetto and Drew
Village, respectively, and the remainder of the proceeds of the
Bonds will be used to fund a debt service reserve fund and pay
a portion of the costs of issuance of the Bonds. The parties
hereto agree Bond proceeds need not be spent on any particular
facility exactly as specified above, but may, at the discretion
of the owner and the Issuer, be allocated to any facility as
needed. In connection with financing of Drew Village, the
parties hereto agree that the $2,525,000 City of Clearwater
Industrial Development Mortgage Revenue Bonds, Series 1983 (FHA
Insured Mortgage Loan - Drew Village Nursing Home Project) will
be defeased on or prior to the date of issuance and delivery of
the Bonds.
(b) The Bonds shall not constitute a debt or
obligation of Clearwater of any kind. The Bonds shall not
constitute a general obligation of the Issuer, Clearwater,
Pinellas County, or Dade County. Neither of the Public
Agencies shall be liable on the Bonds. Neither the faith,
revenues, credit nor taxing power of any Public Agency,
Pinellas County, or Dade County shall be pledged to the payment
of the principal of, premium, if any, or interest on the
Bonds. The Bonds shall be payable, as to principal, premium,
if any, or any interest, solely from revenues of the Projects
in the manner established pursuant to the Trust Indenture.
Provisions substantially to the effect of the foregoing shall
be included in the Bonds.
(c) If the Bonds are issued, the Issuer shall be the
sole issuer of the Bonds and the Bonds shall not identify
Clearwater as an issuer or obligor of the Bonds. Clearwater
shall not be responsible for any undertaking in connection with
the Bonds except as set forth herein.
(d) The Bonds shall be issued in denominations of not
less than $500,000 and may be sold only to accredited
institutional investors. At or prior to the closing of the
Bonds (the "Bond Closing"), the initial purchaser of the Bonds
shall deliver a certificate or letter addressed to each of the
Public Agencies substantially to the effect that:
M the purchaser is familiar with and
experienced in the purchase of tax-exempt bonds, capable of
evaluating the merits of and financially able to bear the
economic risks which may be associated with the purchase of the
Bonds;
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(ii) the purchaser has received copies of all
documents being delivered in connection with the issuance of
the Bonds and agrees to comply with the terms thereof and
acknowledges that said documents are in form and substance
satisfactory to the purchaser and that the purchaser has no
recourse against the Issuer, Clearwater or their counsel or
advisors;
(iii) the purchaser has conducted its own
investigations into matters relating to the business,
properties, management and financial position of the Owner and
the Projects; and
(iv) the purchaser understands that the Bonds are
not registered under the Securities Act of 1933, as amended,
and that it is purchasing the Bonds for its own account for
investment and with no present intention of distributing or
reselling the Bonds except as permitted by law and the
Indenture.
(e) No bonds, obligations guaranties, sureties,
lease-purchase agreements or other similar obligations arising
under contract issued by or for the benefit of the owner
("Additional obligations") other than the Bonds shall be
secured on a parity with the Bonds by the lien and pledge of
the Trust Indenture or any lien, pledge, encumbrance or
mortgage on the Projects unless there- is delivered to the
Trustee for the Bonds a report of a professional management
consultant or firm of certified public accountants stating that
the estimated Income Available for Debt Service (as hereinafter
defined) for each of the two fiscal !ears following the
acquisition, construction or replacement financed with the
proceeds of such Additional Obligations is not less than 125%
of the maximum amount of principal and interest payments on all
outstanding long term indebtedness of the owner including the
proposed Additional obligations, in the then current or any
succeeding fiscal year. "Income Available for Debt Service"
means the excess of revenues over expensed before depreciation,
amortization and interest, as determined in accordance with
generally accepted accounting principles consistently applied;
provided, however, that no determination thereof (i) shall take
into' account any gain or loss resulting from either the
extinguishment of indebtedness or the sale, exchange or other
disposition of capital assets not made in the ordinary course
of business; (ii) shall include insurance or condemnation
proceeds, other than proceeds of business interruption
insurance or (iii) shall include gifts, grants and bequests in
excess of the lesser of (a) actual unrestricted gifts, grants
and bequests for such 12 month period or (b) the annual average
of unrestricted gifts, grants and bequests for the immediately
preceding three fiscal years.
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The details regarding the implementation of the
restrictions set forth in the preceding paragraph may be set
forth in the Indenture and the Loan Agreement, so long as such
provisions are in substantial compliance with the provisions of
the preceding paragraph. In the event of any inconsistencies
between the provisions of the preceding paragraph and such
implementation provisions in the Indenture and the Loan
Agreement, the provisions of the Indenture and the Loan
Agreement shall control.
Section 3. Allocation of Responsibilities and Expenses.
(a) Clearwater shall not be responsible for taking or
be obligated to take any action related to the issuance of the
Bonds except as provided herein. The Issuer and its counsel
and advisors shall take all actions it deems necessary or
appropriate in connection with the issuance of the Bonds,
including in its discretion the preparation, review, execution
and filing with government agencies of certificates, opinions,
agreements and other documents to be delivered at the Bond
Closing and the establishment of any funds and accounts
pursuant to the Trust Indenture.
(b) Neither of the Public Agencies shall be liable
for the costs of issuing the Bonds or the cost incurred by any
of them in connection with the preparation, review, execution
or approval of this Agreement or any documents or opinions
required to be delivered in connection therewith by such Public
Agency or its advisors and counsel, it being the intent of the
Public Agencies that at or prior to the Bond Closing, the Owner
shall pay or cause to be paid, out of Bond proceeds or
otherwise, all of such costs.
Section 4. Representations, Warranties___and Leq_al Opinions.
(a) Each of the Public Agencies represents and
warrants as to itself as follows and agrees to deliver to, the
other Public Agency at car prior to the Bond Closing an opinion
of counsel to such Public Agency dated the date of the Bond
Closing and addressed to the other Public Agency and bond
counsel to the Issuer to the effect that:
.
(i) It is duly organized and validly existing
under the constitution and laws of the State of Florida, with
full legal right, power and :;authority to enter into this
Agreement and to issue bonds for the purpose of providing funds
to pay the cost of acquiring and rehabilitating nursing home
facilities;
(ii) This Agreement has been duly authorized,
executed and delivered by it and, subject to compliance with
Section 6(a) hereto, constitutes its legal, valid and binding
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obligation, enforceable against it in accordance with its
terms,. except as such enforceability may be limited by
bankruptcy, moratorium, reorganization or similar laws
affecting the rights of creditors generally;
(iii) Neither the execution or delivery by it of
this Agreement, nor the fulfillment of the terms and conditions
hereof: (i) conflicts with or violates the Constitution, any
law or government regulation of the State of Florida or any
other local law or ordinance or (ii) to the best of such
counsel's knowledge, conflicts with, violates, constitutes a
default under or results in any breach of any term or condition
of any judgment or decree, or any agreement or instrument to
which it is a party or by which it or any of its properties or
assets are bound;
(iv) Except for such action as has already been
taken or is required to be taken by this Agreement, no
approval., authorization, or order of, or any consent or
declaration, registration or filing with, any governmental
authority of the State of Florida or any referendum or other
action of voters is required for the valid execution, delivery
and performance of this Agreement by it;
(v) Except as disclosed in writing to the other
parties prior to its execution and delivery of this Agreement,
to its best knowledge, as to such Public Agency and only such
Public Agency, there is no action, suit or proceeding, at law
or in equity, or any official investigation before any court or >
governmental authority nor any referendum or other voters'
initiative pending or, to its best knowledge, threatened
against it which might adversely affect the validity of the
Bonds or this Agreement or the actions to be taken by it under
this Agreement, or the performance by it of its obligations
under this Agreement or which challenges, or if adversely
determined might adversely affect, the validity, legality or
enforceability of this Agreement as to the Public Agency.
(vi) The Bonds have been approved by the elected
legislative body or the chief elected executive officer of the
public Agency after a public hearing for which notice was
published no fewer then 14 days (including the date of the
public hearing) before the hearing in one or more newspapers of
general circulation available to residents of that Public
Agency.
(b) Clearwater agrees to deliver to the Issuer at or
prior to the Bond Closing, (i) written evidence of the approval
of the Bonds described in Section 4(a) (vi) above; (ii) a copy
of the minutes .of the public hearing described in Section
4(a)(vi) above certified by the City Clerk of Clearwater; and
(iii) an affidavit of publication of the notice of public
hearing described in Section 4(a)(vi) above.
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Section 5. ID-demnif_ication. The agreements of Clearwater
contained herein are subject to the execution and delivery to
the Issuer by. the Owner at or prior to the Bond Closing of an
agreement of the Owner (which may be contained as part of a
loan agreement or other agreement) substantially in the form of
the indemnification provision set forth as Exhibit A hereto.
The Issuer shall be required to obtain the consent of the Owner
to such provisions prior to the execution hereof.
Section 6. Miscellaneous.
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(a) This Agreement shall be filed with the Clerk of
the Circuit Courts of Dade and Pinellas Counties as provided by
Section 163.01(11) of the Florida Statutes.
(b) Nothing in this Agreement shall be deemed to
constitute any party a partner, agent, or local representative
of another party or the owner or to create any type of
fiduciary responsibility or relationship of any kind whatsoever
between the parties or between such parties and the Owner. The
obligations to this Agreement are not joint; the obligations
are separate and several between each of the parties.
(c) This Agreement sets forth all the promises,
covenants, agreements, conditions and understandings between
the parties hereto, and supersedes all prior and contemporane-
ous agreements, understandings, inducements or conditions
expressed or implied, oral or written, except as herein
contained.
(d) This Agreement shall be binding upon the parties
hereto, their successors and assigns. No party may assign or
transfer its interests herein, or delegate its duties
hereunder, without the written consent of the other party.
(e) The parties hereby irrevocably agree that no
attempted amendment, modification, termination, discharge or
change of this Agreement shall be valid and effective, unless
the parties shall unanimously agree in writing. This Agreement
may be amended or modified by the parties without the consent
of the owners of the Bonds.
(f) This Agreement and any amendments may be executed
in one or more counterparts, each of which shall be deemed an
original but all of which together will constitute one and the
same instrument.
(g) In the event the Bonds are not issued by the
Issuer within twelve (12) months from the date hereof, this
Agreement shall terminate and be of no further effect.
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t. Notwithstanding the foregoing, the provisions of Section 3(b)
.. shall survive the termination of this Agreement.
11j,
IN WITNESS WHEREOF,' the parties hereto have made and
executed.. this Agreement as of the day of 19910
CITY OF HIALEAH
(SEAL)
ATTEST: By:
Julio J. Martinez, Mayor
L'
City Clerk r
CITY OF CLEARWATER
' (SEAL)
:r
r, ATTEST: By:
Rita Garvey
t Mayor - Commissioner
Cynthia E. Goudeau
' City Clerk
8
EXHIBIT-
Form of Indemnification Provision
OVA
(a) Subject to the provisions of subsections (b) and (c)
hereof, the Owner agrees to indemnify and hold the Public
Agencies, the City Council of the Issuer, the City Commission
of the City of Clearwater, and the past, present and future
members, officers, employees, agents and representatives of any
of the foregoing, and counsel to any of the foregoing (any or
all of the foregoing being hereinafter referred to as the
"Indemnified Persons") harmless from and against any and all
losses, costs, damages, expenses and liabilities of whatsoever
nature or kind (including but not limited to, reasonable
attorneys' fees, litigation and court costs, travel expenses,
amounts paid in settlement and amounts paid to discharge
judgments) directly or indirectly resulting from, arising out
of, or related to the issuance, offering, sale or delivery or
resale on the secondary market of the Bonds, the execution of
or the enforcement of provisions of the Interlocal Agreement,
the Loan Agreement, the Trust Indenture, the Mortgages, or the
Arbitrage Rebate Agreement or the design, rehabilitation,
construction, installation, operation, use, occupancy,
maintenance or ownership of the Projects.
(b) The Indemnified Persons will promptly notify the Owner
of any claim as to which they assert a right to indemnification
after notice to the Indemnified Persons of such claim (notice
to the Indemnified Persons being service with respect to the
filing of any legal action, receipt of any claim in writing or
similar form of actual notice). The Indemnified Persons will
provide notice to the Owner promptly, but in no event later
than seven business days following their receipt of a filing
relating to a legal action or thirty days following their
receipt of any other claim.
(c) Except in the instance of any claim for
indemnification by an Indemnified Person arising out of a claim
for monetary damages by another Indemnified Person, the Owner
shall undertake to conduct any proceedings or negotiations in
connection with such claim for monetary damages which are
necessary to defend the Indemnified Persons and shall take all
such steps or proceedings as the Owner in good faith deems
necessary to settle or defeat any such claims, and to employ
counsel to contest any such claims; provided, however, that the
Owner shall reasonably consider the advice of the Indemnified
Persons as to the defense of such claims, and the Indemnified
Persons shall have the right to participate in such defense,
but control of such litigation and settlement shall remain with
the Owner. The Indemnified Persons shall provide all
reasonable cooperation in connection with any such defense by
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S/o? -W
the owner. Counsel and auditor fees, filing fees and court"
Fees of all proceedings, contests or lawsuits with respect to
any such claim or asserted liability shall be borne by the
Owner. If any such claim is made hereunder and the.awner does
not undertake the defense thereof, the Indemnified, Persons
shall be entitled to control such litigation and settlement and
shall be entitled to indemnity with respect thereto pursuant to
the terms of this Section.
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