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HomeMy WebLinkAboutR11-062 ECAT Bond Issuance Commissioner moved adoption of the following Resolution: BOARD OF COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 2011 - 0 ADOPTED JUNE 14, 2011 APPROVING THE ISSUANCE BY EAGLE COUNTY AIR TERMINAL CORPORATION OF UP TO $11,000,000 AGGREGATE PRINCIPAL AMOUNT OF AIRPORT TERMINAL PROJECT REVENUE REFUNDING BONDS, SERIES 2011 TO REFUND THE SERIES 2001 BONDS; AUTHORIZING THE EXECUTION AND DELIVERY OF A THIRD SUPPLEMENTAL PROJECT AGREEMENT, A SECOND AMENDMENT TO PROJECT CONSTRUCTION AND MANAGEMENT AGREEMENT, A FIRST AMENDMENT TO PARKING FACILITIES SUBLEASE, AND OTHER RELATED PROJECT DOCUMENTS; ASSIGNING CERTAIN RIGHTS AND INTERESTS OF THE COUNTY IN CONNECTION WITH THE PROJECT; RATIFYING ACTION PREVIOUSLY TAKEN; AUTHORIZING INCIDENTAL ACTION; AND REPEALING INCONSISTENT ACTIONS. WHEREAS, the Eagle County Air Terminal Corporation (the "Corporation ") has been duly organized pursuant to the provisions of the Colorado Nonprofit Corporation Act, articles 20 through 29 of title 7, Colorado Revised Statutes, as amended, is validly existing and in good standing under the laws of the State of Colorado, is and shall be operated exclusively on behalf of and for the benefit of Eagle County, Colorado (the "County "), and in furtherance of such purposes has the authority to issue its own bonds; and WHEREAS, the formation of the Corporation has been previously approved by the County, following a public hearing held on June 11, 1996; and WHEREAS, the Corporation has no taxing power, has not received and does not expect to receive more than 10% of its annual revenues in grants or other forms of subsidy from all State and local governments combined, and expects to operate as a self - supporting business without reliance on grants from the County; and WHEREAS, to provide the funds needed for the acquisition, construction and equipping of its commercial passenger terminal (the "Original Project "), the Corporation (i) previously entered into (a) a Trust Indenture dated as of June 1, 1996 (the "Original Indenture "), between the Corporation and Wells Fargo Bank, National Association as successor \ \\DE - 065064/000024 - 493957 v2 trustee to U.S. Bank National Association, as Trustee (the "Trustee "), as amended and supplemented by a First Supplemental Trust Indenture dated as of June 1, 2001 (the "First Supplemental Indenture ") between the Corporation and Trustee, and a Second Supplemental Trust Indenture dated as of June 1, 2006 (the "Second Supplemental Indenture "), between the Corporation and the Trustee, and (ii) issued $10,130,000 aggregate principal amount of its Airport Terminal Project Revenue Bonds, Series 1996 (the "1996 Bonds "), $10,745,000 aggregate principal amount of its Airport Terminal Project Revenue Bonds, Series 2001A and $5,305,000 aggregate principal amount of its Taxable Airport Terminal Project Revenue Bonds, Series 2001B (collectively, the "2001 Bonds "); and WHEREAS, the County and the Corporation have previously entered into a First Supplemental Ground Lease, amending and supplementing a Restated Ground Lease recorded on July 2, 1996 (collectively, the "Ground Lease "), with respect to the site for the Original Project; and WHEREAS, the County and the Corporation have previously entered into a Project and supplementing Pr 'e Agreement recorded Supplemental ro�ect Agreement, amending a d a Project eco d ed July 9, 1996, as amended and supplemented by the Supplemental Project Agreement recorded June 14, 2001, and the Second Supplemental Project Agreement recorded June 30, 2006 (collectively, the "Project Agreement "), relating to the Original Project; and WHEREAS, the County and the Corporation have previously entered into a First Supplemental Project Construction and Management Agreement, amending and supplementing the Project Construction and Management Agreement (collectively, the "Management Agreement "), relating to the Original Project; and WHEREAS, the County and the Corporation have previously entered into a Parking Facilities Sublease relating to the Original Project (the "Parking Sublease" and, together with the Ground Lease, the Project Agreement and the Management Agreement, the "Original Project Documents "); and WHEREAS, the Corporation has previously issued $4,150,000 Airport Terminal Project Revenue Refunding Bonds, Series 2006A and $3,980,000 Airport Terminal Project Revenue Improvement Bonds, Series 2006B (collectively, the "2006 Bonds ") to, among other things, fund the costs of acquisition, construction and improvement of a de -icing facility to be used in connection with certain operations at the Airport and to acquire land to be used for expansion of Airport access roads and Airport related projects (the "2006 Project "); and WHEREAS, pursuant to the provisions of Title 11, Article 56 of the Colorado Revised Statutes, as amended (the "Refunding Act "), which shall apply to the Refunding Project, defined below, the Board of Directors of the Corporation has previously refunded the 1996 Bonds with proceeds of the 2006 Bonds, and has determined that in order to reduce the net effective interest rate on the 2001 Bonds and reduce the total principal and interest payable on the 2001 Bonds, it is in the best interest of the County and the Corporation to refund the 2001 Bonds (the "Refunding Project" and, together with the Original Project and the 2006 Project, the "Project "); and -2- \\\DE - 065064/000024 - 493957 v2 WHEREAS, the Board of County Commissioners (the "Board ") has determined and hereby determines that RBC Capital Markets, LLC (the "Underwriter ") has submitted all information to the Board relating to the Refunding Project as required by Section 11 -56 -104.5 of the Refunding Act; and WHEREAS, for purposes of providing for the defeasance of the 2001 Bonds pursuant to the Indenture, the Corporation intends to enter into a Refunding Agreement dated as of June 1, 2011 (the "Refunding Agreement ") with the Trustee; and WHEREAS, the Corporation intends to enter into a Third Supplemental Trust Indenture dated as of June 1, 2011 (the "Third Supplemental Indenture" and, together with the Original Indenture, the First Supplemental Indenture, and the Second Supplemental Indenture, the "Indenture ") to supplement the Original Indenture in connection with the issuance of the Airport Terminal Project Revenue Refunding Bonds, Series 2011A (the "Series 2011A Bonds ") and the Taxable Airport Terminal Project Revenue Refunding Bonds, Series 2011B (the "Series 2011B Bonds" and, together with the Series 2011A Bonds, the "Series 2011 Bonds ") to provide funds needed for the financing of the Refunding Project and to pay the costs of issuing the Series 2011 Bonds; and WHEREAS, the Corporation intends to sell the Series 2011 Bonds to the Underwriter pursuant to a Bond Purchase Agreement between the Corporation and the Underwriter (the "Bond Purchase Agreement "); and WHEREAS, the Corporation and the Trustee intend to enter into a Continuing Disclosure Agreement (the "Continuing Disclosure Agreement ") for the benefit of the owners of the Series 2011 Bonds and the Underwriter; and WHEREAS, in order to induce the Corporation and the Underwriter to enter into the Bond Purchase Agreement, the Board has determined and hereby determines that it is in the best interests of the County to make certain representations regarding, among other things, the • legal existence of the County, the authorization and execution by the County of its agreements relating to the 1996 Bonds, the 2001 Bonds, the 2006 Bonds, and the Series 2011 Bonds and the enforceability of such agreements against the County; and WHEREAS, the County and the Corporation intend to enter into a Third Supplemental Project Agreement dated as of June 1, 2011 (the "Third Supplemental Project Agreement "), amending and supplementing the Project Agreement; and WHEREAS, the County and the Corporation intend to enter into a Second Amendment to Project Construction and Management Agreement dated as of June 1, 2011, nunc pro tunc January 1, 2011 (the "Second Amendment to Project Construction and Management Agreement "), which amends the Project Construction and Management Agreement dated as of June 1, 2001, as amended by the Project Construction and Management Agreement Amendment made and entered into on June 27, 2006, nunc pro tunc January 1, 2006; and -3- \\\DE - 065064/000024 - 493957 v2 • WHEREAS, the County and the Corporation intend to enter into a First Amendment to Parking Facilities Sublease dated as of June 1, 2011 (the "First Amendment to Parking Facilities Sublease "), which amends the Parking Sublease; and WHEREAS, there has been presented to the Board the proposed forms of the (1) Refunding Agreement; (2) Third Supplemental Indenture; (3) Bond Purchase Agreement; (4) Continuing Disclosure Agreement; (5) Third Supplemental Project Agreement; (6) Second Amendment to Project Construction and Management Agreement; (7) First Amendment to Parking Facilities Sublease; and (8) Preliminary Official Statement of the Corporation dated June 9, 2011 (the 'Preliminary Official Statement ") relating to the Series 2011 Bonds. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY, COLORADO, AS FOLLOWS: Section 1. ACKNOWLEDGMENT AND APPROVAL OF ISSUANCE OF SERIES 2011 BONDS AND RELATED DOCUMENTS AND RELATED ACTIONS BY THE CORPORATION. The Board hereby acknowledges and approves the issuance by the Corporation of the Series 2011 Bonds pursuant to the Refunding. Act and Title 11, Article 57, Part 2 of Colorado Revised Statutes, as amended, constituting the Supplemental Public Securities Act (the "Supplemental Act "). The County agrees that the Series 2011 Bonds shall be issued in an aggregate principal amount not to exceed $11,000,000, with a maximum net effective interest rate for the Series 2011 Bonds not to exceed 7.00% per annum, respectively, as described herein and in the Indenture, and that the refunding of the 2001 Bonds shall result in a net present value savings of not less than 3.00% of the principal amount of the 2001 Bonds. Each series of the Series 2011 Bonds shall be dated, shall mature on the dates and shall contain such other terms as set forth in the Indenture. The Board also hereby acknowledges and approves the execution and delivery by the Corporation of the Refunding Agreement, the Third Supplemental Indenture, the Continuing Disclosure Agreement, the Preliminary Official Statement, and the final Official Statement relating to the Series 2011 Bonds (the "Final Official Statement ") substantially in the form of the Preliminary Official Statement presented to the Board at this meeting, with such changes as are approved by any authorized representative of the Corporation, in connection with the issuance of the 2011 Bonds. The Preliminary Official Statement, the furnishing of information for inclusion in the Preliminary Official Statement, and the distribution on June 8, 2011 and use of the Preliminary Official Statement, are hereby authorized, approved, affirmed, and ratified. The Board hereby acknowledges and approves the selection of the Underwriter and the execution and delivery of the Bond Purchase Agreement by the Corporation, and ratifies all actions of the County Manager, the Finance Director and other officers of the County in connection therewith. Section 2. ELECTION TO APPLY SUPPLEMENTAL PUBLIC SECURITIES ACT. The County hereby elects to apply the Supplemental Act to the issuance of the Series 2011 Bonds; provided, however, that such election shall not operate to modify or limit -4- \\\DE - 065064/000024 - 493957 v2 the rights conferred on the County, the members of the Board and the officers of the County by any other provisions of Colorado Law. Section 3. RATIFICATION. All actions (not inconsistent with the provisions of this Resolution) heretofore taken by the Board in connection with the Original Project, the 2006 Project, and the Refunding Project are hereby ratified, approved and confirmed. The Original Project Documents, in the forms previously approved by the County, and as amended, are hereby ratified, approved, and adopted as the agreements of the County, in the same manner as if each such agreement was entered into by and with the specific authorization of the County. Section 4. APPROVAL OF THE THIRD SUPPLEMENTAL PROJECT AGREEMENT, SECOND AMENDMENT TO PROJECT CONSTRUCTION AND MANAGEMENT AGREEMENT, AND FIRST AMENDMENT TO PARKING FACILITIES SUBLEASE. The forms of the Third Supplemental Project Agreement, Second Amendment to Project Construction and Management Agreement, and First Amendment to Parking Facilities Sublease (collectively, the "2011 Documents ") presented to the Board at this meeting are hereby approved. The Chairman of the Board of County Commissioners of the County (the "Chairman ") is hereby authorized to execute and deliver, and the County Clerk and Recorder of the County (the "Clerk ") is hereby authorized to affix the seal of the County where appropriate, and to attest such 2011 Documents in substantially such form and upon the terms and conditions set forth herein and therein, with such changes therein as such officers shall approve (including changes in dates and amounts necessary to conform such documents to the final terms as approved by the County), such approval to be evidenced by the execution thereof. Notwithstanding any other provision of this Resolution, the Chairman is hereby authorized to make or approve such revisions in the 2011 Documents as, in the opinion of the County Attorney, may be necessary or convenient to carry out or assist in carrying out the purposes of this Resolution. Section 5. INCIDENTAL ACTION. The Chairman is hereby authorized and directed to execute and deliver, and the Clerk is hereby authorized to affix the seal of the County where appropriate to, and attest, such other documents, including without limitation conveyances of real and personal property, and to take such other action as may be necessary or appropriate in order to effectuate the delivery by the County of the 2011 Documents and such other documents as shall be necessary for (a) the performance of the County's obligations thereunder, (b) the operation and maintenance of the Project, and (c) the financing of the Refunding Project through the issuance and sale of the Series 2011 Bonds by the Corporation. Notwithstanding any other provisions of this Resolution, the Chairman is hereby authorized to make or approve such revisions in such documents, including the date thereof, as may be necessary or convenient to carry out or assist in carrying out the purposes of this Resolution and determining the actual principal amount of and rate of interest on the Series 2011 Bonds. Section 6. SERIES 2011 BONDS SHALL NOT CONSTITUTE A FINANCIAL LIABILITY OF THE COUNTY. The Series 2011 Bonds, the Original Project Documents, and the 2011 Documents shall never constitute the debt, indebtedness, or financial obligation of the County within the meaning of any provision or limitation of the Colorado Constitution, or Colorado Statutes, and shall not constitute or give rise to a -5- \\\DE - 065064/000024 - 493957 v2 multiple fiscal year obligation or financial liability of the County or charge against its general credit or taxing powers. Section 7. RESOLUTION IRREPEALABLE. This Resolution is, and shall constitute, a legislative measure of the County, and after the Series 2011 Bonds are issued and outstanding, this Resolution shall constitute a contract between the County and the owner or owners of the Series 2011 Bonds, and shall be and remain irrepealable until the Series 2011 Bonds and the interest accruing thereon shall be fully paid, satisfied and discharged. Section 8. SEVERABILITY. The various paragraphs, clauses or provisions of this Resolution are severable. If any paragraph, clause or provision of this Resolution is judicially adjudged invalid or unenforceable, such judgment shall not affect, impair or invalidate the remaining paragraphs, clauses or provisions hereof. Section 9. REPEAL OF INCONSISTENT ACTION. To the extent that any earlier resolution or part thereof of the Board of County Commissioners of the County may be inconsistent with this Resolution, such inconsistent resolution or part thereof is hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any act, order, resolution, or part thereof, heretofore repealed. Section 10. NO PERSONAL LIABILITY. Neither the members of the Board nor any other official, employee, or agent of the County shall be liable personally on the Series 2011 Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. Section 11. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. ADOPTED this 14th day of June, 2011. EAGLE COUNTY, COLORADO, By and Through its BOARD OF CO Y COMMISSIO �' 1 RS By: �t� , \_ ATT r Jo e Clerk * 01.4444rlit * Cl e to the Board of County Commissioners ►""' Peter F. Runyon, Commissi• - -r (SEAL) Sara Fisher, Co fmissioner -6- \\\DE - 065064/000024 - 493957 v2 Commissioner seconded adoption of the foregoing resolution. The roll having been called, the vote was as follows: Commissioner Stavney I Commissioner Runyon Commissioner Fisher i! This Resolution passed by �tj vote of the Board of County Commissioners of the County of Eagle, State of Colorado. -7- \\\DE - 065064/000024 - 493957 v2