Loading...
HomeMy WebLinkAboutR05-113 financing, acquisition, construction and equipping of joint maintenance service center project bonds Commissioner moved adoption of the following Resolution: BOARD OF COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 2oos-ill APPROVING A FIRST SUPPLEMENTAL LEASE AND RELATED DOCUMENTS AND TRANSACTIONS IN CONNECTION WITH THE ISSUANCE OF CERTIFICATES OF PARTICIPATION BY EAGLE LEASE FINANCING CORPORATION IN CONNECTION WITH A PARTIAL REFUNDING OF CURRENTLY OUTSTANDING CERTIFICATES OF PARTICIPATION; AFFIRMING THE GROUND LEASE AND LEASE PURCHASE AGREEMENT, AS SUPPLEMENTED BY THE FIRST SUPPLEMENTAL LEASE; RATIFYING ACTIONS PREVIOUSLY TAKEN; AND PROVIDING OTHER MATTERS RELATING THERETO. WHEREAS, Eagle County, Colorado (the "County") is a duly created political subdivision organized and operating as a county pursuant to the constitution and laws ofthe State of Colorado (the "State"); and WHEREAS, pursuant to the laws of the State, the County has the authority to purchase, sell, convey, dispose of, and lease, as lessor or lessee, real and personal property and is authorized to enter into lease-purchase agreements for the purpose of financing real property and personal property, including buildings and equipment, for governmental purposes; and WHEREAS, in order to facilitate the financing, acquisition, construction, and equipping of a joint maintenance service center project (the "Series 1999 Project") for use by the County Road and Bridge Department and the Eagle County Regional Transportation Authority ("ECRT A"), the County entered into (i) a Ground Lease Agreement dated as of June 1, 1999 (the "Ground Lease") with the Eagle Lease Financing Corporation (the "Corporation"), providing for the leasing by the Corporation from the County of a site at the Eagle County Regional Airport (the "Site") for the Series 1999 Project and (ii) a Lease Purchase Agreement dated as of June 1, 1999 (the "Original Lease") between the County and the Corporation, providing for the leasing and subleasing by the County from the Corporation of the Leased Property, all to the financial and other advantage of the County (all capitalized terms used but not defined herein shall have the same meaning as in the Lease, as defined below); and WHEREAS, the Original Lease provides for payment by the County each year during the Lease Term, as it may be extended from year to year at the option of the County, of Base Rentals and duly budgeted Additional Rentals as currently budgeted and appropriated \ \ \DE - 65064/0017 - 240092 v4 expenditures of the County, and further provides that the County at its option may renew the Original Lease for successive annual terms beyond the initial term according to a schedule set forth in the Original Lease, or may terminate the Original Lease in accordance with its terms; and WHEREAS, in order to finance the Series 1999 Project, the Corporation issued $16,000,000 principal amount of Lease Purchase Agreement Certificates of Participation (Joint Maintenance Service Center Project), Series 1999 (the "1999 Certificates"), evidencing assignments of proportionate interests in rights to receive certain payments under the Original Lease, which rights have been assigned to U.S. Bank National Association, as Trustee (the "Trustee") pursuant to a Mortgage and Indenture of Trust dated as of June 1, 1999 (the "1999 Indenture") between the Corporation and the Trustee; 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, in order to reduce the net effective interest rate on the 1999 Certificates and reduce the total principal and interest payable on the 1999 Certificates, the Corporation intends to refund the 1999 Certificates maturing on and after December 1, 2010 (the "Defeased Certificates") representing $8,960,000 in principal amount of the currently outstanding 1999 Certificates (the "Refunding Project") by issuing up to $10,000,000 principal amount of Lease Purchase Agreement Refunding Certificates of Participation (Joint Maintenance Service Center Project), Series 2005 (the "2005 Certificates"), which shall evidence assignments of proportionate interests in rights to receive certain payments under the Lease, defined below, which rights will be assigned by the Corporation to the Trustee pursuant to a Mortgage and Indenture of Trust dated as of September 1, 2005 (the "2005 Indenture") between the Corporation and the Trustee; and WHEREAS, the Board of County Commissioners (the "Board") has determined and hereby determines that Piper Jaffray & Co. (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. WHEREAS, the Board has determined and hereby determines that the savings generated by the Refunding Project would reduce the amount of the Base Rentals payable by the County to the Corporation under the Original Lease, thereby financially benefiting the County and its inhabitants; and WHEREAS, for purposes of facilitating the financing for the Refunding Project, the Board has determined and hereby determines that it is in the best interest of the County to enter into a First Supplemental Lease Purchase Agreement dated as of September 1, 2005 (the "First Supplemental Lease" and, collectively with the Original Lease, the "Lease") between the County and the Corporation, to supplement the Original Lease in connection with the issuance of the 2005 Certificates; and WHEREAS, for purposes of providing for the defeasance of the Defeased Certificates pursuant to the 1999 Indenture, the Corporation intends to enter into a Refunding - 2 - \ \ \DE - 65064/0017 - 240092 v4 Agreement dated as of September 1, 2005 (the "Refunding Agreement") between the Corporation and the Trustee. WHEREAS, in order to further secure the 2005 Certificates, MBIA Insurance Corporation (the "Certificate Insurer") has committed to issue an insurance policy (the "Insurance Policy") with respect to the 2005 Certificates, and the Certificate Insurer has further committed to issue its reserve fund surety bond (the "Surety Bond"), and the Certificate Insurer and the Corporation will enter into a Financial Guaranty Agreement dated as of September 1, 2005 (the "Financial Guaranty Agreement") with respect to the Surety Bond. WHEREAS, in order to prioritize the payment of the 1999 Certificates that will remain outstanding after the issuance of the 2005 Certificates, the Corporation intends to enter into an Intercreditor Agreement dated as of September 1, 2005 (the "Intercreditor Agreement") with the Trustee; and WHEREAS, the Underwriter has offered to purchase the 2005 Certificate from the Corporation in a negotiated sale, and the Corporation has determined to sell the 2005 Certificates to the Underwriter and, in connection therewith, to enter into a Certificate Purchase Agreement, to be dated prior to the issuance of the 2005 Certificates (the "Certificate Purchase Agreement") between the Corporation and the Underwriter; and WHEREAS, in order to induce the Corporation and the Underwriter to enter into the Certificate 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 1999 Certificates and the 2005 Certificates and enforceability of such agreements against the County; and NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY, COLORADO, AS FOLLOWS: Section 1. APPROVAL OF THE REFUNDING PROJECT, FIRST SUPPLEMENTAL LEASE AND RELATED DOCUMENTS. The Board, on behalf of the County, hereby finds that the Refunding Project and the execution in connection therewith of the First Supplemental Lease, the acknowledgement of the County's representations contained in the Certificate Purchase Agreement and the related documents described therein are in the best interest of the County and its inhabitants, and that each and every matter and thing as to which provision is made therein is necessary in order to carry out and to effect the purposes hereof. The First Supplemental Lease and the Certificate Purchase Agreement, the proposed forms of which have been presented to the Board (copy of which shall be filed with the records of the County) are hereby approved, and 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 - 3 - \ \ \DE - 65064t0017 - 240092 v4 of the County where appropriate to, and attest, such 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 Corporation), such approval to be evidenced by their execution thereof. Section 2. ACKNOWLEDGMENT AND AFPROV AL OF ISSUANCE OF 2005 CERTIFICATES AND RELATED DOCUMENTS AND RELATED ACTIONS BY THE CORPORATION. The Board hereby acknowledges and approves the issuance by the Corporation of the 2005 Certificates pursuant to the Refunding Act and Title 11, Article 57, Part 2 of Colorado Revised Statutes, as amended (the "Supplemental Act"), which 2005 Certificates evidence assignments of proportional interests in rights to receive certain payments made by the County to the Corporation pursuant to the Lease, and the execution and delivery by the Corporation of the 2005 Indenture assigning all rights, title, and interest of the Corporation in, to, and under the Lease (with certain exceptions as provided in the Lease and the 2005 Indenture) to the Trustee. The County agrees that the 2005 Certificates shall be issued in an aggregate principal amount not to exceed $10,000,000, with a maximum net effective interest rate not to exceed 5.5% per annum and that the refunding of the Defeased Certificates shall result in a net present value savings of not less than 2.5% of the principal amount of the Defeased Certificates. The 2005 Certificates shall be dated, shall mature on the dates and shall contain such other terms as set forth in the 2005 Indenture. The Board also hereby acknowledges and approves the execution and delivery by the Corporation of the Refunding Agreement, the Intercreditor Agreement and the Financial Guaranty Agreement in connection with the 2005 Certificates and the issuance by the Certificate Insurer of the Insurance Policy and Surety Bond. The Board hereby acknowledges and approves the selection of the Underwriter and the entering by the Corporation into the Certificate Purchase Agreement, and ratifies all actions of the Acting County Administrator, the Finance Director and other officers of the County in connection therewith. Section 3. PRELIMINARY OFFICIAL STATEMENT, OFFICIAL STATEMENT, AND CONTINUING DISCLOSURE UNDERTAKING. There has been filed with the Board the Preliminary Official Statement dated August 24, 2005 (the "Preliminary Official Statement") in connection with the 2005 Certificates. The County confirms that the Preliminary Official Statement has been deemed final as of its date for purposes of Rule 15c2-12 promulgated by the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended. The Board hereby authorizes the use and distribution of the Preliminary Official Statement and a final Official Statement (the "Official Statement") relating to the 2005 Certificates by the Corporation and the Underwriter in such form as they deem appropriate and adequate for the sale of the 2005 Certificates. There has also been filed with the Board a form of Continuing Disclosure Undertaking (the "Continuing Disclosure Undertaking") with respect to the 2005 Certificates, - 4- \ \ \DE. 65064/0017 240092 v4 which is hereby approved by the Board. The Chairman is hereby authorized and directed to execute the Official Statement and Continuing Disclosure Undertaking in substantially such form and upon the terms and conditions set forth herein and therein, with such changes therein as officers of the County shall approve (including changes in dates and amounts necessary to confonn such documents to the final terms as approved by such officers), such approval to be evidenced by the Chairman's execution thereof. Section 4. APPROVAL OF COUNSEL. The finn of Hogan & Hartson L.L.P., Denver, Colorado, is hereby approved as bond counsel to the County in connection with the issuance of the 2005 Certificates and as special counsel to the County in connection with the preparation of the Preliminary Official Statement and the Official Statement. Section 5. AFFIRMATION OF GROUND LEASE AND THE ORIGINAL LEASE. The Ground Lease and the Original Lease, as supplemented by the First Supplemental Lease, are hereby affirmed in all respects. Section 6. RATIFICATION OF PREVIOUS ACTIONS. All action (not inconsistent with the provisions of this Resolution) heretofore taken by the Board and the officers of the County directed toward effecting the Lease, the Refunding Project, the Preliminary Official Statement, the Official Statement, the Continuing Disclosure Undertaking, the Certificate Purchase Agreement, the leasing and subleasing of the Leased Property from the Corporation, the sale and delivery by the Corporation of the 2005 Certificates and the execution of the 2005 Indenture and the Intercreditor Agreement for such purpose be, and the same is hereby, ratified, approved and confirmed. Section 7. INCIDENTAL ACTION. The Chairman and Clerk of the County are hereby authorized and directed to execute and deliver such other documents and to take such other action as may be necessary or appropriate in order to effectuate the delivery of the aforesaid First Supplemental Lease, the Certificate Purchase Agreement and Continuing Disclosure Undertaking, the perfonnance of the County's obligations thereunder, the issuance and sale by the Corporation of the 2005 Certificates, the delivery of the Preliminary Official Statement and the Official Statement, and the execution and delivery of the 2005 Indenture, the Refunding Agreement, the Intercreditor Agreement and the Financial Guaranty Agreement, and the Insurance Policy and Surety Bond in connection therewith. The members of the Board hereby elect to have all provisions of Title 11, Article 57, Part 2 of Colorado Revised Statutes, as amended, apply to the issuance of the 2005 Certificates; provided, however, that such election shall not operate to modify or limit the rights conferred on the County, the members of the Board and the officers of the County by any other provisions of Colorado law. Notwithstanding any other provision of this Resolution, pursuant to Section 11-57-205 of the Supplemental Act, Chairman and Clerk are hereby authorized to make or approve such revisions in such documents and the execution of such related dOCUillents 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 and the financing of the Refunding Project through the issuance of the 2005 Certificates, including without limitation determining the actual amount of payments to be made by the County pursuant to the Lease and executing a tax certificate in connection with the 2005 Certificates. - 5 - \ \ \DE - 65064/0017 . 240092 v4 Section 8. SERIES 2005 CERTIFICATES SHALL NOT CONSTITUTE A DEBT OR FINANCIAL OBLIGATION OF THE COUNTY. The Base Rentals and Additional Rentals under the Lease shall constitute currently budgeted and appropriated expenditures of the County. The County's obligations under the Lease shall be subject to the County's annual right to renew the Lease and rights to terminate the Lease as provided therein, and shall not constitute a mandatory charge or requirement in any ensuing Fiscal Year beyond the then current Fiscal Year. No provision of the Lease shall be construed or interpreted as creating a general obligation or other indebtedness of the County within the meaning of any constitutional or statutory debt limitation or requirement. No provision of this Lease shall be construed or interpreted as creating a debt or multiple fiscal year direct or indirect debt or other financial obligation whatsoever of the County within the meaning of any constitutional or statutory debt limitation or requirement. Neither the Lease, the 2005 Indenture, nor the 2005 Certificates shall directly or indirectly obligate the County to make any payments beyond those specifically included in the County's Budget and appropriated for the then current Fiscal Year. The County shall be under no obligation whatsoever to exercise its option to purchase the Leased Property under the Lease. No provision of the Lease shall be construed to pledge or to create a lien on any class or source of moneys of the County. Section 9. SECTION 265 DESIGNATION. The Board hereby determines that neither the County nor any entity subordinate thereto reasonably anticipates issuing more than $10,000,000 face amount of tax-exempt governmental bonds (including bonds issued on behalf of a 501(c)(3) organization, but not other private activity bonds) or any other similar obligations during calendar year 2005, which obligations are taken into account in determining if the County can designate the 2005 Certificates as qualified tax-exempt obligations as provided in the following sentence. For the purpose of Section 265(b )(3)(B) of the Code, the Board hereby designates the 2005 Certificates as qualified tax-exempt obligations. Section 10. NO COMPULSION. The Board hereby determines and declares that the Base Rentals (as defined in the Lease) do not exceed a reasonable amount so as to place the County under an economic compulsion not to terminate the Lease or to exercise its option to purchase the Leased Property pursuant to the Lease. The Board declares that the period during which the County has an option to purchase the Leased Property (i. e., the maximum term of the Lease) does not exceed the useful life of the Leased Property. Section 11. 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 2005 Certificates or be subject to any personal liability or accountability by reason of the issuance thereof. Section 12. REPEALER. All acts, orders, resolutions, or parts thereof, taken by the County in conflict with this Resolution are hereby repealed, except that this repealer shall not be construed so as to revive any act, order, resolution, or part thereof, heretofore repealed. - 6 - \ '.\DE - 6506410017 - 240092 v4 . Section 13. RESOLUTION IRREPEALABLE. This Resolution is, and shall constitute, a legislative measure of the County and shall be and remain irrepealable during the term of the Lease as it may be renewed at the option ofthe County as provided therein. Section 14. SEVERABILITY. 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, the intention being that the various paragraphs, clauses or provisions hereof are severable. Section 15. EFFECTIVE DATE. This Resolution shall take effect immediately upon its passage. MOVED, READ AND ADOPTED, by the Board of County Commissioners of the County of Eagle, State of Colorado, at its regular meeting held the 30th day of August, 2005. ~ tJ:7-{ : Clerk to the Board of County Commissioners Peter F. Runyon, Commissione Tom ~lk;;Sioner Commissioner ~L..AlfOLJ seconded adoption of the foregoing Resolution. The roll having been called, the vote was as follows: Commissioner Menconi ~1. Commissioner Runyon v4'-1 " Commissioner Stone LA L---t~ This Resolution passed by -:>(0 vote of the Board of County Commissioners of the County of Eagle, State of Colorado. - 7 - \ \\DE - 65064/0017 - 240092 v4