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HomeMy WebLinkAboutResolutions - 2004.01.22 - 27508MISCELLANEOUS RESOLUTION #04006_ January 22, 2004 BY: Finance Committee, Chuck Moss, Chairperson IN RE: TREASURER'S OFFICE - RESOLUTION AUTHORIZING ISSUANCE OF OAKLAND COUNTY BUILDING AUTHORITY, BUILDING AUTHORITY REFUNDING BONDS, SERIES 2004 AND APPROVING THE UNDERTAKING TO PROVIDE CONTINUING DISCLOSURE TO THE OAKLAND COUNTY BOARD OF COMMISSIONERS Chairperson, Ladies and Gentlemen: WHEREAS, pursuant to the provisions of Act No. 31, Public Acts of Michigan, 1948, extra session, as amended, ("Act 31") the Oakland County Building Authority (the "Authority") and the County of Oakland (the "County"), have entered into a Limited Tax Full Faith and Credit General Obligation Contract of Lease dated • as of April 18, 1989 and an Amendment to Limited Tax Full Faith and Credit General Obligation Contract of Lease dated as of March 12, 1990 (as listed in Appendix A) (together the "Lease Contract"); and WHEREAS, pursuant to the Lease Contract, the Building Authority has issued a series of its bonds which remain outstanding as listed in Appendix B (the "Bonds") to defray the cost of acquiring and constructing computer center facilities for the County; and WHEREAS, the Bonds remain outstanding in various aggregate principal amounts which mature in various principal amounts in various years and bear interest at various rates per annum which rates of interest are higher than those now prevailing; and WHEREAS, Act 31 authorizes the Authority to refund all or any part of its indebtedness; and WHEREAS, the County has determined that a significant cost savings can be achieved by refunding outstanding Bonds in whole or in part; and WHEREAS, in order to provide for the Refunding Bonds and to comply with new federal securities regulations, it is necessary to approve a second amendment to the Lease Contract between the County and the Authority (the "Second Amendment to Lease Contract") in order to approve the undertaking to provide continuing disclosure which Continuing Disclosure Certificate is attached as Appendix 1 to the Second Amendment to Lease Contract (the "Disclosure Certificate"). FINANCE COMMITTEE Motion carried unanimously on a roll call vote with Crawford absent. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE COUNTY OF OAKLAND as follows: 1. The Authority is authorized to proceed to refund any or all of the Bonds described in Appendix B in whole or in part, on such terms and conditions as will result in a lower total indebtedness on such issue. 2. The Second Amendment to Lease Contract attached hereto as Appendix I is hereby approved. 3. The County Officials set forth on the Second Amendment to Lease Contract are authorized to execute and deliver the Second Amendment to Lease Contract on behalf of the County. 4. After any refunding bonds are issued, the Authority shall report to the County on the new debt service schedule and the savings in total principal and interest. 5. The County Executive, if necessary, is authorized to file for approval to issue the bonds from the State of Michigan, Department of Treasury ("Treasury"), to pay the related fee, and to execute and deliver such other documents as may be requested by the Treasury. 6. All activities involved in the refunding of the Bonds under this resolution shall comply with the standing rules of the Board of Commissioners. Chairperson, on behalf of the Finance Committee, I move the adoption of the foregoing resolution. FINANCE COMMITTEE las.rl-oak127 2 APPENDIX A Oakland County Building Authority - $10,250,000 Building Authority (Computer Center) Bonds - LIMITED TAX FULL FAITH AND CREDIT GENERAL OBLIGATION CONTRACT OF LEASE MADE AS OF APRIL 18, 1989 AND AN AMENDMENT TO LIMITED TAX FULL FAITH AND CREDIT GENERAL OBLIGATION CONTRACT OF LEASE MADE AS OF MARCH 12, 1990. las.rl-oak127 APPENDIX B OAKLAND COUNTY BUILDING AUTHORITY, BUILDING AUTHORITY (COMPUTER CENTER) BONDS Date Principal 5/1/07 $1,000,000 5/1/08 1,075,000 TOTAL $2,075,000 las.rl-oak127 i APPENDIX I SECOND AMENDMENT TO LEASE CONTRACT THIS SECOND AMENDMENT TO LIMITED TAX FULL FAITH AND CREDIT GENERAL OBLIGATION CONTRACT OF LEASE ("Second Amendment to Lease Contract") made as of December 1, 2003, by and between the OAKLAND COUNTY BUILDING AUTHORITY (the "Authority"), a building authority organized and existing under and pursuant to the provisions of Act No. 31, Public Acts of Michigan, 1948 (First Extra Session), as amended ("Act 31"), and the COUNTY OF OAKLAND, a County of the State of Michigan (the "County"), WITNESSET H: WHEREAS, the Authority has been incorporated by the County pursuant to Act 31 for the purpose of acquiring, furnishing, equipping, owning, improving, enlarging, operating and maintaining a building or buildings, automobile parking lots or structures, recreational facilities and stadiums, and the necessary site or sites therefor, for the use of the County; and WHEREAS, the County desired to acquire and construct computer center facilities for the County of Oakland, Michigan (the "Project"), and the Authority constructed the Project; and WHEREAS, it is proposed that the Authority refinance the outstanding building authority bonds dated April 1, 1990 issued by the Authority pursuant to the Limited Tax Full Faith and Credit General Obligation Contract of Lease dated as of April 18, 1989 and the Amendment to Limited Tax Full Faith and Credit General Obligation Contract of Lease dated as of March 12, 1990, (together the "Lease Contract") and Act 31; and WHEREAS, in order to make possible the issuance of refunding bonds it is necessary for the parties to enter into this Second Amendment to Lease Contract. THEREFORE, IN CONSIDERATION OF THE MUTUAL UNDERTAKINGS AND AGREEMENTS SET FORTH BELOW, IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES TO THIS SECOND AMENDMENT TO LEASE CONTRACT AS FOLLOWS: A. The following paragraphs 28, 29, and 30 are added to the Lease Contract to read as follows: 28. Authorization and Issuance of Refunding Bonds. As soon as practicable after the effective date of the Second Amendment to Lease Contract, the Authority shall proceed to issue its building authority refunding bonds in the aggregate principal amount of not to exceed $2,350,000 (the "Refunding Bonds"), pursuant to and in accordance with the provisions of Act 31, for the purpose of refunding the Building Authority Bonds dated as of April 1, 1990 maturing in the years 2007 through 2008 (the "Prior Bonds Being Refunded"). The Authority shall pledge for the payment of the principal of and interest on the Refunding Bonds the cash rental payments described and required to be paid by the County pursuant to the Lease Contract and this Second Amendment to Lease Contract. The Refunding Bonds shall be dated January 1, 2004 or such later date as to be determined. The Refunding Bonds shall bear interest at a rate or rates that will produce a savings net interest cost and shall mature in accordance with the Debt Retirement Schedule set forth on Exhibit A to this Second Amendment to Lease Contract. Each date on which any payment of principal of and/or interest on any Refunding Bonds is due is referred to herein as a "Bond Payment Date". The County and the Authority recognize and acknowledge that (a) such Debt Retirement Schedule is based upon an assumed interest rate and date of issuance of the Refunding Bonds and assumed Bond Payment Date, all as set forth in Exhibit A, (b) the Bond Payment Dates will be specified in the Award Resolution and (c) the rental payments due under this Second Amendment to Lease Contract will be determined when the Award Resolution is adopted by the Authority and the Refunding Bonds are sold, by application of the rate or rates of interest actually borne by the Refunding Bonds. 29. Cash Rental; Pledge of Full Faith and Credit. Notwithstanding any other paragraphs of the Lease Contract and the this Second Amendment to Lease Contract to the contrary, the County hereby agrees to pay to the Authority as cash rental for the Project such periodic amounts as shall be sufficient to enable the Authority to pay the principal of and interest on the Bonds and the Refunding Bonds as such principal and interest shall become due, whether at maturity or by redemption. For so long as any Bonds or Refunding Bonds are outstanding, the County shall pay to the Authority, on the Bond Payment Date, an amount sufficient to pay the principal and/or interest due on the Bonds or Refunding Bonds on such Bond Payment Date. The County hereby pledges its full faith and credit for the payment of the cash rental when due and agrees that it will levy each year such ad valorem taxes as shall be necessary for the payment of such cash rental, which taxes, however, will be subject to applicable constitutional and statutory limitations on the taxing power of the County, and which shall not be in an amount or at a rate exceeding that necessary to pay its contractual obligation pursuant to this Lease. If the County, at the time prescribed by law for the making of its annual tax levy, shall have other funds on hand which have been set aside and earmarked for payment of its obligations for which a tax levy would have otherwise have to be made, then the tax levy shall be reduced by the amount of such other funds. Such other funds may be raised from any lawful source. The obligation of the County to make such cash rental payments shall not be subject to any set-off by the County nor shall there be any abatement of the 2 cash rental payments for any cause, including, but not limited to, casualty that results in the Project being untenantable. 29. Undertaking to Provide Continuing Disclosure. The County and the Authority hereby covenant and agree, for the benefit of the beneficial owners of the Refunding Bonds, to enter into a written undertaking (the "Undertaking") required by SEC Rule 15c2-12 promulgated by the Securities and Exchange Commission pursuant to the Securities and Exchange Act of 1934 (the "Rule") to provide continuing disclosure of certain financial information and operating data and timely notices of the occurrence of certain events in accordance with the Rule. The undertaking shall be in the form attached hereto as Appendix 1. This Undertaking shall be enforceable by the beneficial owners of the Refunding Bonds or by the Purchaser(s) on behalf of such holders (provided that the Purchaser(s) right to enforce the provisions of this Undertaking shall be limited to a right to obtain specific enforcement of the obligations hereunder and any failure by the County and the Authority to comply with the provisions of this Undertaking shall not be an event of default with respect to the Refunding Bonds). The County Treasurer and the Chairperson or Treasurer of the Authority, or other officer of the County or Authority charged with the responsibility for issuing the Refunding Bonds, shall provide a Continuing Disclosure Certificate for inclusion in the transcript of proceedings, setting forth the details and terms of the County's and Authority's Undertaking." IN WITNESS WHEREOF, the OAKLAND COUNTY BUILDING AUTHORITY, by its Commission, and the COUNTY OF OAKLAND, by its Board of Commissioners, have caused this Second Amendment to Lease Contract to be signed by their duly authorized officers, and their seals to be affixed hereto, all as of the day and year first above written. WITNESSES TO SIGNATURES OAKLAND COUNTY BUILDING AUTHORITY OF AUTHORITY OFFICERS: By: Chairperson of its Commission By: Secretary of its Commission 3 WITNESSES TO SIGNATURES COUNTY OF OAKLAND OF COUNTY OFFICERS: By: Chairman, Board of Commissioners By: County Clerk las.rl-oak127 4 i STATE OF MICHIGAN) )ss. COUNTY OF OAKLAND) On this day of , before me appeared and , to me personally known, who being by me duly sworn, did each say that they are, respectively, the Chairperson and the Secretary of the Commission of the OAKLAND COUNTY BUILDING AUTHORITY and that the foregoing Second Amendment to Lease Contract was signed and sealed by them on behalf of,the Authority by authority of its Commission, and that such persons acknowledged such instrument to be the free act and deed of the Authority. Notary Public, Oakland County, Michigan My Commission Expires: (Seal) STATE OF MICHIGAN) )ss. COUNTY OF OAKLAND) On this day of , before me appeared and to me personally known, who being by me duly sworn, did each say that they are, respectively, the Chairman of the Board of Commissioners and the County Clerk of the COUNTY OF OAKLAND and that the foregoing Second Amendment to Lease Contract was signed and sealed by them on behalf of the County by authority of its Board of Commissioners, and that such persons acknowledged such instrument to be the free act and deed of the County. Notary Public, Oakland County, Michigan My Commission Expires: (Seal) las.r1-oak127 5 EXHIBIT A Period Ending 5/1/04 5/1/05 5/1/06 5/1/07 5/1/08 EEL:Emir:al Annual Rate Interest Total 1as.r1-ok127 APPENDIX 1 CONTINUING DISCLOSURE CERTIFICATE OAKLAND COUNTY BUILDING AUTHORITY, BUILDING AUTHORITY REFUNDING BONDS, SERIES 2004 This Continuing Disclosure Certificate (the "Disclosure Certificate") is executed and delivered by the County of Oakland (the "Obligated Municipality") in connection with the issuance of the Oakland County Building Authority's (the "Issuer") not to exceed $ Oakland County Building Authority, Building Authority Refunding Bonds, Series 2004 (the "Securities"). The Securities are being issued pursuant to a Refunding Bond Resolution adopted by the Governing Body of the Issuer on ; a Resolution Approving the Undertaking to Provide Continuing Disclosure by the County of Oakland adopted by the governing body of the Obligated Municipality; and an Award Resolution adopted by the Governing Body of the Issuer on (collectively the "Resolution") and delivered to (the "Purchaser") on the date hereof. Pursuant to the Resolution, the Obligated Municipality has covenanted and agreed to provide continuing disclosure of certain financial information and operating data and timely notices of the occurrence of certain events. In addition, the Obligated Municipality hereby specifically covenants and agrees as follows: Section I. Purpose of the Disclosure Certificate. This Disclosure Certificate is being executed and delivered by the Obligated Municipality for the benefit of the beneficial owners of the Securities in order to assist the Participating Underwriters within the meaning of the Rule (defined herein) in complying with SEC Rule 15c2-12(b)(5). This Disclosure Certificate constitutes the written Undertaking required by the Rule. Section 2. Definitions. In addition to the defined terms set forth in the Resolution, which apply to any capitalized term used in this Disclosure Certificate unless otherwise defined in this Section, the following capitalized terms shall have the following meanings: "Annual Report" means any annual report provided by the Obligated Municipality pursuant to, and as described in, Sections 3 and 4 of this Disclosure Certificate. "Audited Financial Statements" means the Obligated Municipality's annual financial statements, which are currently prepared in accordance with generally accepted accounting principles [GAAP for governmental units as prescribed by GASB] and which the Obligated Municipality intends to continue to prepare in substantially the same form. 1 "Fiscal Year" means the fiscal year of the Obligated Municipality. "Final Official Statement" means the final official statement dated delivered in connection with the Securities, which is available from the MSRB. "Governing Body" means the Board of Commissioners of the Obligated Municipality or such other body as may thereafter be the chief legislative body of the Obligated Municipality. "Issuer" means Oakland County Building Authority which is an obligated person with respect to the Securities. "Obligated Municipality" means the County of Oakland which is an obligated person with respect to the Securities. "Issuer Contact" means the Chairperson, Treasurer, or Secretary of the Obligated Municipality who can be contacted at the Building Authority. "Obligated Municipality Contact" means the Clerk or Treasurer of the Obligated Municipality who can be contacted at the County. "Material Event" means any of the events listed in Section 5(a) of this Disclosure Certificate. "MSRB" means the Municipal Securities Rulemaking Board located at 1150 18th Street, N.W., Suite 400, Washington, D.C. 20036. "NRMSIR" means any nationally recognized municipal securities information repository as recognized from time to time by the SEC for purposes of the Rule. "Participating Underwriter" means any of the original underwriter(s) of the Securities (including the Purchaser) required to comply with the Rule in connection with the offering of the Securities. "Repository" means each NRMSIR and each SID, if any. "Rule" means SEC Rule 15c2-12(b)(5) promulgated by the SEC under the Securities Exchange Act of 1934, as the same may be amended from time to time. "SEC" means the Securities and Exchange Commission. "SID" means any public or private repository or entity designated by the State of Michigan as a state information depository for the purpose of the Rule. The SID shall be the Municipal Advisory Council of Michigan, 1445 First National Building, Detroit, Michigan 48226. 2 Section 3. Provision of Annual Financial Information and Audited Financial Statements. (a) The Obligated Municipality shall, not later than two hundred seventy (270) days after the end of the Fiscal Year, commencing with the year that ends September 30„ provide each Repository with annual financial information which is consistent with the requirements of Section 4 of this Disclosure Certificate. The annual financial information may be submitted as a single document or as separate documents comprising a package, and may cross-reference other information as provided in Section 4 of this Disclosure Certificate; provided that the Audited Financial Statements of the Obligated Municipality may be submitted separately from the balance of the annual financial information; and provided further that unaudited financial statements will be included with the other financial information, if audited statements have not already been furnished. (b) If the Obligated Municipality is unable or fails to provide to the Repositories an Annual Report by the date required in subsection (a), the Obligated Municipality shall send a notice of that fact in a timely manner to any NRMSIR, the MSRB and any SID. (c) The Obligated Municipality shall determine each year prior to the date for providing the Annual Report the name and address of each NRMSIR and each SID, if any. Section 4. Content of Annual Reports. The Obligated Municipality's Annual Report shall contain or incorporate by reference the following: Updates of the "State Equalized Valuation", "Taxable Valuation", "County Tax Rates and Levies", "Tax Collection Record", "General Fund Revenues and Expenditures", and "Debt Statement (Direct and Overlapping Debt)" contained in the Final Official Statement and the current Audited Financial Statements. Any or all of the items listed above may be incorporated by reference from other documents, including official statements of debt issues of the Obligated Municipality or related public entities, which have been submitted to each of the Repositories or the SEC. If the document incorporated by reference is a final official statement, it must be available from the MSRB. The Obligated Municipality shall clearly identify each such other document so incorporated by reference. Section 5. Reporting of Material Events. (a) This Section 5 shall govern the giving of notices of the occurrence of any of the following events in a timely manner, if material, with respect to the Securities: 3 41. II, 1. Principal and interest payment delinquencies; 2. Non-payment related defaults; 3. Unscheduled draws on debt service reserves reflecting financial difficulties; 4. Unscheduled draws on credit enhancements reflecting financial difficulties; 5. Substitution of credit or liquidity providers, or their failure to perform; 6. Adverse tax opinions or events affecting the tax- exempt status of the Securities; 7. Modification to rights of beneficial owners of the Securities; 8. Securities calls; 9. Defeasances; 10. Release, substitution or sale of property securing repayment of the Securities; and 11. Rating changes. (b) Whenever a Material Event occurs, the Obligated Municipality shall promptly file a notice of such occurrence with either all NRMSIRs or with the MSRB and with any SID. Notwithstanding the foregoing, notice of Material Events described in subsections (a) (8) and (9) need not be given under this subsection any earlier than the notice (if any) of the underlying event is required to be given to beneficial owners of affected Securities pursuant to the Resolution. (c) Unless otherwise required by law and subject to technical and economic feasibility, the Obligated Municipality shall employ such methods of information transmission as shall be requested or recommended by the designated recipients of the Obligated Municipality's information. Section 6. Termination of Reporting Obligation. The Obligated Municipality's obligations under the Resolution and this Disclosure Certificate shall terminate upon the legal defeasance, prior redemption or payment in full of all the Securities. Section 7. Obligated Municipality Contact; Agent. Information may be obtained from the Obligated Municipality Contact. Additionally, the Obligated Municipality may, from time to time, appoint or engage a dissemination agent to assist it in carrying out its obligations under the Resolution and this 4 4 " N Disclosure Certificate, and may discharge any such agent, with or without appointing a successor dissemination agent. The initial dissemination agent shall be the Municipal Advisory Council of Michigan, 1445 First National Building, Detroit, Michigan 48226. Section 8. Amendment; Waiver. Notwithstanding any other provision of the Resolution or this Disclosure Certificate, as provided in this Section 8, any provision of this Disclosure Certificate may be amended or waived, if such amendment or waiver is supported by an opinion of nationally recognized bond counsel to the effect that such amendment or waiver would not, in and of itself, cause the undertakings to violate the Rule. The provisions of this Disclosure Certificate constituting the Undertaking •or any provision hereof, shall be null and void in the event that the Obligated Municipality delivers to each then existing NRMSIR and SID, if any, an opinion of nationally recognized bond counsel to the effect that those portions of the Rule which require this Disclosure Certificate are invalid, have been repealed retroactively or otherwise do not apply to the Securities. The provisions of this Disclosure Certificate constituting the Undertaking may be amended without the consent of the beneficial owners of the Securities, but only upon the delivery by the Obligated Municipality to each then existing NRMSIR and SID, if any, of the proposed amendment and an opinion of nationally recognized bond counsel to the effect that such amendment, and giving effect thereto, will not adversely affect compliance by the Obligated Municipality under this Disclosure Certificate with the Rule. Any such amendment may only be made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature, or status of the Obligated Municipality or other obligated person (as defined in the Rule) or type of business conducted. No such amendment may be made unless the Undertaking, as amended, would have complied with the requirements of the Rule at the time of the primary offering of the Securities, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances. No such amendment shall be made unless it does not materially impair the interests of beneficial owners of the Securities, as determined by nationally recognized bond counsel. The annual financial information containing any amended operating data or amended financial information will explain, in narrative form, the reasons for the amendment and the impact of the change in the type of operating data or financial information being provided. If an amendment is made to the Undertaking specifying the accounting principles to be followed in preparing financial statements, the annual financial information for the year in which the change is made will present a comparison between the financial statements or information prepared on the basis of the new accounting principles and those prepared on the basis of the former accounting principles. The comparison will include a qualitative discussion of the differences in the accounting 5 ir 4,11 principles and the impact of the change in the accounting principles on the presentation of the financial information, in order to provide information to investors to enable them to evaluate the ability of the Obligated Municipality or any obligated person to meet its obligations. To the extent reasonably feasible, the comparison will also be quantitative. A notice of the change in the accounting principles will be sent to each then existing NRMSIR or the MSRB, and to the SID, if any. Section 9. Additional Information. Nothing in this Disclosure Certificate shall be deemed to prevent the Obligated Municipality from disseminating any other information, using the means of dissemination set forth in this Disclosure Certificate or any other means of communication, or including any other information in any Annual Report or notice of occurrence of a Material Event, in addition to that which is required by this Disclosure Certificate. If the Obligated Municipality chooses to include any information in any Annual Report or notice of occurrence of a Material Event in addition to that which is specifically required by this Disclosure Certificate, the Obligated Municipality shall have no obligation under this Disclosure Certificate to update such information or include it in any future Annual Report or notice of occurrence of a Material Event. Section 10. Default. In the event of a failure of the Obligated Municipality to comply with any provision of this Disclosure Certificate any holder of the Securities may take such actions as may be necessary and appropriate, including seeking mandamus or specific performance by court order, to cause the Obligated Municipality to comply with its obligations under the Resolution and this Disclosure Certificate. A default under this Disclosure Certificate shall not be deemed an event of default with respect to the Securities and the sole remedy under this Disclosure Certificate in the event of any failure of the Obligated Municipality to comply with this Disclosure Certificate shall be an action to compel performance. Section 11. Beneficiaries. This Disclosure Certificate shall inure solely to the benefit of the Obligated Municipality, the Participating Underwriters and beneficial owners from time to time of the Securities, and shall create no rights in any other person or entity. IN WITNESS WHEREOF, I have executed this Certificate in my official capacity effective the day of [Executive Officer] Clerk/Secretary . [SEAL] las.rl-oak127 6 G. William Caddell, County Clerk •1 m Resolution #04006 January 22, 2004 Moved by Knollenberg supported by Douglas the resolutions on the Consent Agenda be adopted (with accompanying reports being accepted). AYES: Coleman, Coulter, Crawford, Douglas, Gregory, Hatchett, Jamian, Knollenberg, KowaII, Law, Long, McMillin, Middleton, Moffitt, Moss, Palmer, Patterson, Potter, Rogers, Scott, Suarez, Webster, Wilson, Zack, Bullard. (25) NAYS: None. (0) A sufficient majority having voted therefore, the resolutions on the Consent Agenda were adopted (with accompanying reports being accepted). ,izaze;-0,-)-74„ E FOREGOING RESOLUTION STATE OF MICHIGAN) COUNTY OF OAKLAND) I, G. William Caddell, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and accurate copy of a resolution adopted by the Oakland County Board of Commissioners on January 22, 2004 with the original record thereof now remaining in my office. In Testimony Whereof, I have hereunto set my hand and affixed the sealitf the County of Oakland at Pontiac, Michigan this 22nd day of January, 2004.