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HomeMy WebLinkAboutR08-109 Eagle County Justice Center Construction of AdditionCommissioner // '~!~~ moved adoption of the following Resolution: EAGLE COUNTY, COLORADO RESOLUTION N0.2008- ~~~ APPROVING A LEASE PURCHASE AGREEMENT, GROUND LEASE, CONTINUING DISCLOSURE AGREEMENT, AND RELATED DOCUMENTS AND TRANSACTIONS IN CONNECTION WITH THE ISSUANCE OF CERTIFICATES OF PARTICIPATION BY EAGLE COUNTY JUSTICE CENTER FINANCING CORPORATION TO FINANCE THE CONSTRUCTION OF AN ADDITION TO THE EAGLE COUNTY JUSTICE CENTER; 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 of the 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, the Board of County Commissioners (the "Board") of the County has determined and hereby determines that the construction and acquisition by lease-purchase of an addition to the existing Eagle County Justice Center (the "Addition") to be located on certain real property of the County (the "Series 2008 Project") for use by the County are in the public interest and are necessary and desirable to the County and its inhabitants; and WHEREAS, in order to facilitate the financing, acquisition, construction, and equipping of the Series 2008 Project, the Board hereby determines that it is in the best interests of the County and its inhabitants that the County enter into (i) a Ground Lease Agreement dated as of September 1, 2008 (the "Ground Lease") with the Eagle County Justice Center Financing Corporation (the "Corporation"), providing for the leasing by the Corporation from the County of a site abutting the existing Eagle County Justice Center (the "Site") for the Series 2008 Project and (ii) a Lease Purchase Agreement dated as of September 1, 2008 (the "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; and WHEREAS, the 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 \ \ \DE - 065064/000021 - 383625 v4 and duly budgeted Additional Rentals as currently budgeted and appropriated expenditures of the County, and further provides that the County at its option may renew the Lease for successive annual terms beyond the initial term according to a schedule set forth in the Lease, or may terminate the Lease in accordance with its terms; and WHEREAS, in order to finance the Series 2008 Project, the Corporation intends to issue the Lease Purchase Agreement Certificates of Participation (Eagle County Justice Center Project), Series 2008 (the "Series 2008 Certificates"), evidencing assignments of proportionate interests in rights to receive certain payments under the Lease, which rights will be assigned to Wells Fargo Bank National Association, as Trustee (the "Trustee") pursuant to a Mortgage and Indenture of Trust dated as of September 1, 2008 (the "Indenture") between the Corporation and the Trustee; and WHEREAS, the RBC Capital Markets, Inc. (the "Underwriter") has offered to purchase the Series 2008 Certificates from the Corporation in a negotiated sale, and the Corporation has determined to sell the Series 2008 Certificates to the Underwriter and, in connection therewith, to enter into a Certificate Purchase Agreement, to be dated prior to the issuance of the Series 2008 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 to, and to make certain covenants in the Certificate Purchase Agreement for the benefit of, the Corporation and the Underwriter regarding the Preliminary Official Statement and final Official Statement prepared in connection with the Certificates; and, in order to comply with Rule 15c2-12 (the "Rule") promulgated by the U.5. Securities and Exchange Commission under Securities Exchange Act of 1934, as amended, the Board has determined and hereby determines that it is in the best interests of the County to enter into a Continuing Disclosure Agreement with Wells Fargo Bank, National Association, as dissemination agent, with respect to the Series 2008 Certificates (the "Continuing Disclosure Agreement"); and WHEREAS, there have been presented to the Board the proposed forms of (i) the Ground Lease; (ii) the Lease; (iii) the Certificate Purchase Agreement; (iv) the Continuing Disclosure Agreement; and WHEREAS, there has been presented to the Board the Preliminary Official Statement dated September 5, 2008 (the "Preliminary Official Statement") relating to the Series 2008 Certificates. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY, COLORADO, AS FOLLOWS: Section 1. APPROVAL OF THE SERIES 2008 PROJECT, LEASE, GROUND LEASE AND RELATED DOCUMENTS. The Board, on behalf of the County, -2- \ \ \DE - 065064/000021- 383625 v4 hereby finds that the accomplishment of the Series 2008 Project and the execution of the Lease and the Ground Lease are necessary and in the best interest of the County and its inhabitants, and that each and every matter and thing as to which provision is made herein is necessary in order to carry out and to effect the purposes hereof. The Lease, the Ground Lease, the Certificate Purchase Agreement, and Continuing Disclosure Agreement, forms of which have been presented to the Board (copies 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 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 of the Series 2008 Certificates as approved by the Corporation), such approval to be evidenced by their execution thereof. Section 2. APPROVAL OF ISSUANCE OF SERIES 2008 CERTIFICATES AND RELATED DOCUMENTS AND ACTIONS BY THE CORPORATION. The Board hereby approves the issuance by the Corporation of the Series 2008 Certificates pursuant to Title 11, Article 57, Part 2 of Colorado Revised Statutes, as amended (the "Supplemental Act"), which Series 2008 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 Indenture assigning all rights, title, and interest of the Corporation in, to, and under the Ground Lease and the Lease (with certain exceptions as provided in the Lease and the Indenture) to the Trustee. The County agrees that the Series 2008 Certificates shall be issued in an aggregate principal amount not to exceed $23,000,000, with a maximum interest rate not to exceed 6.0°Io per annum and shall mature on the date or dates no later than December 1, 2037. The Certificates shall be dated and shall contain such other terms as set forth in the Indenture, as approved by the Corporation. The Board hereby acknowledges and approves the selection of the Underwriter and the entering by the Corporation into the Certificate Purchase Agreement, and authorizes the Chairman to execute and deliver and the Clerk to affix the seal of the County where appropriate to, and attest, the Certificate Purchase Agreement with respect to certain sections of such agreement containing agreements and representations of the County to the Corporation and the Underwriter. Section 3. PRELIMINARY OFFICIAL STATEMENT, OFFICIAL STATEMENT, AND CONTINUING DISCLOSURE AGREEMENT. The Preliminary Official Statement and the use and distribution thereof by the Underwriter and the Corporation is hereby affirmed and approved. The Board hereby confirms that the Preliminary Official Statement has been deemed final as of its date for purposes of the Rule. The Board hereby authorizes the preparation of the final Official Statement (the "Official Statement") relating to the Series 2008 Certificates with such changes from the Preliminary Official Statement as officers of the County may hereafter approve and further authorizes the use and distribution of the Official Statement by -3- \ \ \DE - 065064/000021 - 383625 v4 the County officers, Corporation and the Underwriter in such form as they deem appropriate and adequate for the sale of the Series 2008 Certificates. The Board hereby approves Continuing Disclosure Agreement in a form presented at this meeting. The Chairman is hereby authorized and directed to execute the Official Statement and Continuing Disclosure Agreement 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 conform such documents to the final terms of the Series 2008 Certificates as approved by the officers of the Corporation), such approval to be evidenced by the Chairman's execution thereof. Section 4. APPROVAL OF COUNSEL. The firm of Hogan & Hanson LLP, Denver, Colorado, is hereby approved as bond counsel to the County in connection with the issuance of the 2008 Certificates and as special counsel to the County in connection with the preparation of the Preliminary Official Statement and the Official Statement. Section 5. 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 Ground Lease, the Series 2008 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 Series 2008 Certificates' and the execution of the Indenture for such purpose be, and the same is hereby, ratified, approved and confirmed. Section 6. 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 Lease, Ground Lease, Continuing Disclosure Undertaking, the Certificate Purchase Agreement, the performance of the County's obligations thereunder, the issuance and sale by the Corporation of the Series 2008 Certificates, the delivery of the Preliminary Official Statement and the Official Statement, and the execution and delivery of the Indenture. 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 Series 2008 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, the Chairman and Clerk are hereby authorized to make or approve such revisions in such documents and the execution of such related 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 and the financing of the Series 2008 Project through the issuance of the Series 2008 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 Series 2008 Certificates. -4- \ \ \DE - 065064/000021- 383625 v4 Section 7. SERIES 2008 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 Indenture, nor the Series 2008 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 8. 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 9. 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 2008 Certificates or be subject to any personal liability or accountability by reason of the issuance thereof. Section 10. 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. Section 11. 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 maybe renewed at the option of the County as provided therein. Section 12. SEVERABII.ITY. 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. -5- \ \ \DE - 065064/000021- 383625 v4 Section 13. 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 9th day of September, 2008. COUNTY OF EAGLE, STATE OF COLORADO By and Through its BOARD OF COUNTY COMMISSIONEI~~ /~~-~-7. ATTEST: ~~1-~rAC. ~~ ,G~l/r~' ~ = Pete yon, Chairm Clerk to the Board of County ~~g~~~~~,r ` Commissioners ~~ Arn enconi, Commissioner Sara Fisher, Co issioner Commissioner seconded adoption of the foregoing Resolution. The roll having been called, the vote was as follows: Commissioner Runyon Commissioner Menconi Commissioner Fisher This Resolution passed by ~ote of the Board of County Commissioners of the County of Eagle, State of Colorado. -6- \ \ \DE - 065064/000021- 383625 v4