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Item #23 Approval of Resolution for Inspired Living Assisted Living Facility and Memory Care Project FinancingW ,IY %/ 000( florid❑ AGENDA ITEM COVER SHEET Meeting Date: December 2, 2014 Item # Reviewed By. Contact Name: Scott A. Cookson, Department Director: City Attorney Contact Number: 407 - 581 -9715 City Manager: Subject: Inspired Living Assisted Living Facility and Memory Care Project Financing Background Summary: In the summer of 2013 Windermere Senior Living, LLC ( "WSL ") processed an application with the City for the construction of a senior living facility on the north side of Roberson Road just east of the Roberson Rd./Windermere Rd. intersection. This senior living facility had an affiliation with the NFL Players Association. WSL originally sought the assistance of the City in obtaining conduit financing pursuant to the Florida Industrial Development Financing Act. Under this arrangement, the City would have issued bonds as a loan to WSL for the acquisition of the property and the development of the facility. The City and WSL could not agree on terms for the issuance of the bonds through the City. WSL subsequently secured a different financing source, Capital Trust Agency ( "Capital Trust "), to issue the bonds for the project. Despite the replacement financing source, WSL failed to move forward with project. In both the original arrangement with the City issuing the bonds and the subsequent arrangement with Capital Trust providing the financing, the City adopted a Tax Equity and Fiscal Responsibility Act Resolution (a " TEFRA Resolution "). A TEFRA Resolution requires a public hearing mandated by the IRS to provide reasonable opportunity for interested individuals to express views, either orally or in writing, on the issuance of bonds and the project for which the bond funds will be allocated. With WSL no longer pursuing the original project, a new applicant, Senior Care Living V, LLC (the "Applicant ") desires to move forward with a similar project on a site near the original WSL project site. The Applicant intends to construct a senior living facility which will contain approximately, 121 assisted living units accommodating 151 beds, including a 3 -story building containing approximately 105,000 square feet and related facilities, fixtures, furnishings and equipment, to be located at 1060 Tomyn Boulevard near the western entrance to the Brookstone subdivision. The Applicant's project will also be financed by the issuance of revenue bonds issued by Capital Trust. As with the WSL project, the Applicant's project and financing requires that the City hold a TEFRA hearing and adopt a TEFRA Resolution. Adoption of the TEFRA Resolution does not bind the City with regard to issuance of City bonds or any City commitment for financing and does not obligate the City to approve the project. However, adoption of the TEFRA Resolution does allow the Applicant to obtain an allocation of the statewide private activity bond volume cap for the financing. The actual issuance of the bonds through Capital Trust will come at a later date, should the Applicant and Capital Trust decide to proceed with the project. The Applicant and its parent organization have agreed to indemnify the City and to be responsible for all costs relating to the requested approval. The City's Bond Counsel, Bryant Miller Olive, has worked with the City Attorney in preparing the documentation on behalf of the City. Issue: Should the City Commission adopt the TEFRA Resolution to provide the requisite notice for the financing of the project? Recommendations City Staff recommends that the City Commission adopt the TEFRA Resolution. Attachments: TEFRA Resolution Financial Impact: Adoption of the TEFRA Resolution will have no fiscal impact to the City. All costs incurred by the City relating to the project and financing will be paid by the Applicant. Type of Item: El El Public Hearing Ordinance First Reading Ordinance First Reading Resolution Commission Approval Discussion & Direction For Clerk's Dept Use ❑ Consent Agenda ® Public Hearing ® Regular Agenda ® Original Document/Contract Attached for Execution by City Clerk ❑ Original Document/Contract Held by Department for Execution Reviewed by City Attorney Scott A. Cookson, Esq. ❑ N/A Reviewed by Finance Dept. ❑ N/A Reviewed by ( ) ❑ N/A 1M ONQ$ , 8380 Bay Pines Blvd., 3` Fl St. Petersburg, FL 33709 Phone (727) 592 -8889 Fax (727) 384 -0882 November 24, 2014 VIA FEDERAL EXPRESS Beth Eikenberry, City Clerk City of Ocoee 150 North Lakeshore Dr. Ocoee, FL 34761 Re: Inspired LiN ing at NN"indermere- -City' of Ocoee - Cite Commission TEFRA ApproN al Resolution Dcar Ms. Eikcnhcrry. Ernclosed is RcSOIU11oii No. ?O14- rcgardMo the ahoyc- referenced project with attached Schedule III �xhich has hecn si')ned by Mark C. 130uld111, Presiciciii of' Scnior Carc Liyin 11. Inc.. sole mcmher of Senior Carc V. 11_('. 11' you hays any yucstions. please feel tree to contact 11,c. SInCCI v, Mare E.71, 101 mcs Enclosure RESOLUTION NO. 2014 -10 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA APPROVING THE ISSUANCE BY THE CAPITAL TRUST AGENCY OF REVENUE BONDS IN ORDER TO PROVIDE PROCEEDS FOR THE FINANCING OF A SENIOR LIVING FACILITY TO BE LOCATED IN THE CITY OF OCOEE, FLORIDA; APPROVING THE ISSUANCE OF THE REVENUE BONDS FOR PURPOSES OF SECTION 147M OF THE INTERNAL REVENUE CODE; PROVIDING FOR OTHER RELATED MATTERS; AND FOR PROVIDING FOR AN EFFECTIVE DATE. This RESOLUTION, duly adopted as of the 2nd day of December, 2014, by the CITY OF OCOEE, a municipal corporation of the State of Florida (hereinafter referred to as the "City "), WITNESSETH as follows; WHEREAS, the CAPITAL TRUST AGENCY (the "Issuer ") has represented to the City that it is a legal entity and public agency duly created under Chapters 163, Part I and 617, Florida Statutes; and WHEREAS, the Issuer has further represented that it is empowered to issue revenue bonds for the purposes described on Schedule I attached hereto and incorporated herein by reference (the "Local Facility "), and as further described in that certain Notice of Public Hearing published on November 18, 2014 in the Orlando Sentinel, which newspaper is published within the jurisdiction of the City; and WHEREAS, Senior Care Living V, LLC, a Florida limited liability company, or one or more of its affiliates (as applicable, the "Borrower "), and the sole member of the Borrower, Senior Care Living II, Inc., a Florida corporation (the "Member "), have requested the Issuer to issue its revenue bonds in one or more series to provide proceeds to be used to finance the Local Facility and loan the proceeds of such bonds to the Borrower to finance or refinance the Local Facility; and WHEREAS, the Issuer is willing to issue not exceeding $34,000,000 in aggregate of its revenue bonds (the 'Bonds ") from time to time in one or more series to provide the financing requested by the Borrower for the Local Facility; and WHEREAS, the Issuer has requested the required approval of the Bonds by the City, as the City Commission are the applicable elected representatives of the City which is the host jurisdiction in which the Local Facility is to be located, after notice and a public hearing, for purposes of Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code "); and WHEREAS, the City Commission of the City held a public hearing on the date hereof following public notice of such hearing published in a newspaper in general circulation in the City not less than 14 days prior to the scheduled date for the public hearing, and a copy of the affidavit of the publisher in proof of publication of the notice of public hearing is attached hereto as Schedule II and incorporated herein by reference; at said hearing members of the public were afforded reasonable opportunity to be heard on all matters pertaining to the proposed issuance of the Bonds by the Issuer and the location and nature of the proposed Local Facility; and WHEREAS, the Issuer has represented to the City that pursuant to Section 163.01, Florida Statutes, and other applicable provisions of law, the Issuer has the authority to exercise those powers which are common to it and the City for purposes deemed desirable by the Issuer and the City, including, but not limited to issuing bonds (1) to finance the Local Facility located within the jurisdiction of the City in accordance herewith, (2) to establish reserves therefor, and (3) to pay the costs of issuance thereof. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA: Section 1. Approval of Bonds for purposes of Section 147(f) of the Internal Revenue Code. The City Commission of the City hereby approves the issuance of the Bonds by the Issuer for purposes of Section 147(f) of the Code. Based upon representations of the Borrower, the City finds that the Local Facility is appropriate to the needs and circumstances of, and shall make a significant contribution to the economic growth of the City, including the provision of gainful employment, and advance the public health and general welfare of the City. The City is able to cope satisfactorily with the impact of the Local Facility, including utilities and public services and on account of any increases in population. Section 2. Administration. The Issuer is responsible for the issuance of the Bonds and shall apply sufficient proceeds of the Bonds from time to time for the purpose of financing the Local Facility as the Issuer shall determine by making funds available to the Borrower for the Local Facility. The Issuer shall be the bond- issuing agency with respect to such Local Facility for the Bonds. All revenues generated by bonds issued pursuant to a resolution of the Issuer and by the use of the proceeds thereof, will be administered by the Issuer or its agents and all payments due from such revenues shall be paid by the Issuer or its agents without further action by the City and the City shall have no responsibility therefor. The Issuer shall bear full responsibility for administering the issuance of the Bonds by and through its employees, agents and officers; provided however, that the City shall have all applicable rights granted by law and the right to require reasonable reporting on all reasonable matters regarding the Local Facility. The Issuer shall have full authority and responsibility to negotiate, define, validate, market, sell, issue and deliver the Bonds, based upon the amounts required for the financing of the Local Facility, and to take such other action as may be necessary or convenient to accomplish such purpose, and the City shall have no responsibility therefor. Section 3. Indemnification and Payment of Fees and Costs by Borrower. The fees and expenses of the City shall be paid by the Borrower and the Member in the manner and to the extent mutually agreed upon by the officials of the City and the Borrower at or prior to issuance of the Bonds. The Borrower and the Member, by their approval and acknowledgement by separate instrument in the form attached as Schedule III hereof, agree to indemnify and hold harmless the City, and its respective officers, employees, representatives and agents, from and against any and all losses, claims, damages, liabilities or expenses of every conceivable kind, character and nature whatsoever, including, but not limited to, losses, claims, damages, liabilities or expenses (including reasonable fees and expenses of attorneys, accountants, consultants and other experts), arising out of, resulting from, or in any way connected with this Resolution or the issuance of the Bonds other than any such losses, damages, liabilities or expenses arising from the willful misconduct of the City. Section 4. Term. This Resolution will remain in full force and effect from the date of its execution until such time as it is terminated upon ten (10) days written notice to the other party hereto. Notwithstanding the foregoing, it is agreed that Section 1 of this Resolution may not be repealed, amended or terminated from the date of execution of this Resolution to the date on which no Bonds remain outstanding. Section 5. Other Approvals. This Resolution does not constitute approval of any necessary zoning applications or approval or acquiescence to the alteration of existing zoning or land use or approval of any other regulatory permits relating to the Local Facility. Furthermore, nothing provided herein shall prevent the City from exercising any permitting rights, or procedures for approval or review the City may have with respect to the acquisition, construction, development, equipping or operation of the Local Facility under law or contract, including, without limitation, any rights of approval or review with respect to land use permitting and code enforcement at any property on which the Local Facility is located. Section 6. No Liability. Nothing herein shall be deemed to create any liability or pecuniary obligation of any kind upon the City, its officers, agents and employees. No cost, expense, charges or liabilities arising out of or attributable to the City's involvement with the financing of the Local Facility, any governmental proceedings in connection therewith, or relating to or arising on account of this Resolution shall be imposed upon the City. Any offering, circular or official statement approved by and used in marketing the Bonds shall not reference the City other than it will include a statement to the effect that Bond owners may not look to the City for payment of the Bonds and interest or premium thereon or other payments in respect thereto. The City has not done any due diligence on the Borrower, the Local Facility or the Bonds and the Issuer shall make no representations to the contrary. No representation is made by the City as to (a) the validity or legality of the Bonds, (b) the exclusion from gross income for federal income tax purposes of interest on the Bonds, (c) the creditworthiness of the Borrower or the financial viability of the Local Facility, (d) a recommendation to any prospective purchaser of the Bonds, (e) the likelihood of the payment of the debt service on the Bonds or (f) the legal ability of the Issuer to rely upon Chapter 163, Florida Statutes. Each of the Issuer and the Borrower are relying on its own legal advisors and not the City for determining all matters regarding the Issuer's issuance of the Bonds. The City has and shall incur no liability or obligation with respect to the Bonds and by adopting this resolution, assumes no responsibility, obligation or liability, financial or otherwise, with respect to the Bonds or any assets or facilities financed thereby or in any way arising out of the issuance or sale of the Bonds or the financing, acquisition, construction or operation of the Local Facility. Section 7. Repealing Clause. All resolutions or orders and parts thereof in conflict herewith, to the extent of such conflict, are hereby superseded and repealed. Section 8. Effective Date. This resolution shall take effect immediately. Passed and adopted as of the date first written above. APPROVED: CITY OF OCOEE, FLORIDA, (SEAL) Mayor ATTEST: LIN City Clerk APPROVED BY THE OCOEE CITY COMMISSION ON THE DATE FIRST ABOVE WRITTEN UNDER AGENDA ITEM NO. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of 2014 City Attorney SCHEDULE I LOCAL FACILITY The Local Facility consists of the acquisition, construction, development, installation and equipping of an assisted living facility for the elderly providing memory support services, containing approximately 121 units accommodating approximately 151 beds, including a 3 -story building containing approximately 105,000 square feet, the site therefor and related facilities, fixtures, furnishings and equipment, to be located at 1060 Tomyn Boulevard, in the City of Ocoee, Florida 34761. The Local Facility will be owned by the Borrower. The initial manager of the Facility will be Validus Senior Living REIT Investment Management Company, LLC, a Florida limited liability company, d /b /a Validus Senior Living, or an affiliate thereof. SCHEDULE II PROOF OF PUBLICATION . ,� #• ...... ..... Published Daily ORANGE County, Florida STATE OF FLORIDA COUNTY OF ORANGE Before the undersigned authority personally appeared Sheri Schmitz / Adeliris DelValle / Brian Hall / Charity Casas / Pain Arnold, who on oath says that he, or she is an Advertising Representative of the ORLANDO SENTINEL, a DAILY newspaper published at the ORLANDO SENTINEL in ORANGE County, Florida; that the attached copy of advertisement, being a Legal Notice in the matter of 11150- Public Hearing Notice, December 2 was published in said newspaper in the issues of Nov 18, 2014. Affiant further says that the said ORLANDO SENTINEL is a newspaper published in said ORANGE County, Florida, and that the said newspaper has heretofore been continuously published in said ORANGE County, Florida, each day and has been entered as periodicals matter at the post office in ORANGE County, Florida, in said ORANGE County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that he or she has neither paid nor promised any person, firm or corporation any discount, rebate, commission or r e fm d for the purpose of securing this advertisement for publication in the id ewspaper. Signature of Affiant Sworn to and subscribed before me on this 18 day of November, 2014, by Sheri Schmitz / Adeliris DelValle / Brian Hall / Charity Casas ! Pam Arnold who is personally known to me or who has produced identification. d ignature of Notary Pu17}ie —r ,'C Name of Notary, Typed, Printed, or Stamped 2843952 SCHEDULE III FORM OF APPROVAL AND ACKNOWLEDGMENT OF BORROWER AND MEMBER Senior Care Living V, LLC (the 'Borrower ") and Senior Care Living II, Inc. (the "Member "), by and through the undersigned authorized officer of the Member, on behalf of both entities, hereby approve the Resolution to which this document is attached and, by causing this Approval and Acknowledgment to be executed by the undersigned officer all as of the date of said Resolution, hereby acknowledge as follows: The fees and expenses of the City of Ocoee, (the "City ") shall be paid by the Borrower and the Member in the manner and to the extent mutually agreed upon by the officials of the City and are due whether or not the Bonds are issued by the Capital Trust Agency. The Borrower and the Member acknowledge that payment shall be made not later than seven (7) days from invoice to the Borrower and the Member or upon the issuance of the Bonds, whichever occurs first. The Borrower and the Member shall indemnify and hold harmless the City, and their respective officers, employees representatives and agents, from and against any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature whatsoever (including reasonable fees and expenses of attorneys, accountants, consultants and other experts) arising out of, resulting from, or in any way connected with the Resolution or the issuance of the Bonds, other than any such losses, damages, liabilities or expenses arising from the willful misconduct of the City. Capitalized terms used herein and not defined herein shall have the meanings given such terms in the Resolution to which this document is attached. SENIOR CARE LIVING V, LLC By: SENIOR CARE LIVING 11, INC., its sole member B Name: Mark C. Bouldin Title: President STATE OF FLORIDA COUNTY OF P,►ie_llg The foregoing instrument was acknowledged before me this 2-Lt�" day of Mo,R r u 2014, by Mark C. Bouldin, the President of Senior Care Li * g II, Inc., as sole member of Senior Care Living V, LLC, on behalf of said corporation. He is personally known to me or has produced as identification. MARY E, SMITH * * MY COMMISSION # FF 103526 EXPIRES: May 27, 2018 Notar lic - State of Flu r t cl a ar fvdF Banded Thru Budget Notary Services y My Commission Expires: