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HomeMy WebLinkAboutRES-2011-091 Resolution for the Sale of up to $47,000,000 Public Improvement Refunding BondsRESOLUTION FOR THE SALE OF UP TO $47,000,000 PUBLIC E"PROVEMENT REFUNDING BONDS WHEREAS -- A,;'l� -oZo�/ -5j-- J The Board of Commissioners has previously authorized the issuance of up to $47,000,000 in County general obligation refunding bonds (the "Bonds ") to refinance public improvement bonds the County issued back in 2004 and 2005. This resolution provides for the issuance of these Bonds and takes related action, such as approving the form of the disclosure document that will be used in connection with the offering and sale of the Bonds. BE IT THEREFORE RESOLVED by the Board of Commissioners of Orange County, North Carolina, as follows: 1. Determination To Sell Public Improvement Refunding Bonds - The County will issue and sell up to the full $47,000,000 of the unissued public improvement refunding bonds for their authorized purpose. 2. Payment Provisions. The Bonds will bear interest at the rates determined at the time of their sale by the Local Government Commission (currently scheduled for October 25). The principal of the Bonds will be payable in annual installments as the Finance Officer may determine after consultation with the LGC, except that the final maturity for the Bonds must not extend beyond December 31, 2025. 3. Pledge of Faith, Credit and Taxing Power — The County's full faith and credit are hereby irrevocably pledged for the payment of the principal of and interest on the Bonds. Unless other funds are lawfully available and appropriated for timely payment of the Bonds, the Board will levy and collect an annual ad valorem tax, without restriction as to rate or amount, on all locally taxable property in the County sufficient to pay the principal of and interest on the Bonds as the same become due. 4. Approval of Official Statement for Offering - There has been made available to each member of the Board the form of an official statement (the "Official Statement ") relating to the Bonds, pursuant to which the Bonds will be offered for sale. The Official Statement remains subject to completion and amendment. The Official Statement is approved as the form of official statement pursuant to which the Bonds will be offered for sale. The actions of the Finance Officer, in collaboration with the LGC, in preparing the text of the Official Statement are ratified, approved and confirmed. The Board approves the LGC's distribution of the Official Statement to prospective purchasers of the Bonds. The Official Statement as so distributed must be in substantially the form presented to this meeting, with such changes as the Finance Officer may approve. 4 The Board acknowledges that it is the County's responsibility, and ultimately the Board's responsibility, to ensure that the Official Statement in its final form neither contains an untrue statement of a material fact nor omits to state a material fact required to be included therein for the purpose for which such Official Statement is to be used or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. By the adoption of this resolution, the Board members .approve the Official Statement as materially correct and complete, and further acknowledge and accept their own responsibility for causing the County to fulfill these responsibilities for the Official Statement. S. Redemption Provisions -- The Bonds will be subject to redemption prior to maturity (or not) upon such terms and conditions as the Finance Officer, upon advice from the LGC and the County's financial advisor, may determine. The Finance Officer must execute a certificate prior to the initial delivery of the Bonds designating redemption terms and conditions, and such certificate will be conclusive evidence of the Finance Officer's approval and determination of such terms and conditions. 6. Form of Bonds; Payment Details -- The Bonds will be designated "General Obligation Refunding Bonds, Series 2011," and will be in substantially the form set out in Exhibit A. The Bonds will be dated the date of their initial issuance, will be in fully registered form, in denominations of $5,000 and integral multiples thereof, and will be numbered for identification from R -1 upward. The Bonds must be signed by the manual or facsimile signature of this Board's Chair or the County Manager must be countersigned by the manual or facsimile signature of the Clerk to this Board or any Deputy or Assistant Clerk, and the County's seal must be affixed thereto or a facsimile thereof printed thereon. No Bond will be valid unless at least one of the signatures appearing on such Bond (which may be the signature of the LGC's representative required by law) is manually applied or until such Bond has been authenticated by the manual signature of an authorized officer or employee of a bond registrar selected by the Finance Officer Interest on each Bond will be payable semiannually (a) from its date, if it is authenticated prior to the first interest payment date, or (b) otherwise from the interest payment date that is, or immediately precedes, the date on which it is authenticated (unless payment of interest thereon is in default, in which case such Bond will bear interest from the date to which interest has been paid). Principal and interest will be payable in lawful money of the United States of America. . The Finance Officer must execute a certificate prior to the initial delivery of the Bonds designating the final aggregate principal amount of the Bonds (up to the maximum authorized amount of $47,000,000), the final principal payment schedule and the interest payment dates for the Bonds. This certificate will be conclusive evidence of the Finance Officer's approval and determination of such matters. 7. Finance Officer as Registrar; Payments to Registered Owners -- The Finance Officer is appointed Registrar for the Bonds. As Registrar, the Finance Officer must maintain 5 appropriate books and records of the ownership of the Bonds. The County will treat the registered owner of each Bond as the - person exclusively entitled to payment of principal, premium, if any, and interest and the exercise of all rights and powers of the owner, except that interest payments will be made to the person shown as owner on the registration books at the close of business on the 15th day (whether or not a business day) of the month preceding each interest payment date. 8. Advertising Bonds for Sale -- The Finance Officer, in collaboration with the LGC, is authorized and directed. to take all proper steps to advertise the Bonds for sale in accordance with customary LGC procedures, including through the use of a "Notice of Sale" document in the LGC's customary form and in substantially the same form as used for prior_ County bond. sales. The Finance Officer is authorized and directed to review and approve a form of Notice of Sale as such officer may determine to be in the County's best interest. 9. LGC To Sell Bonds; Provisions for Delayed Sale — (a) The County asks the LGC to sell the Bonds, to receive and evaluate bids and to award the Bonds on the basis of the best bid received. (b) If market conditions at the time of the proposed sale of the Bonds do not allow the Bonds to be sold at interest rates and prices that make the refunding of all or any portion of the prior bonds economical, as determined by the Finance Officer, the Finance Officer is authorized to decline the sale of the Bonds, in whole or in part. The Finance Officer is further authorized to provide for additional attempts to sell the Bonds, or any portion of the Bonds, if such officer determines that market conditions have changed such -that a successful sale of the Bonds (or any portion) may be possible. The Finance Officer may provide for one or more additional sales until January 31, 2012, without further advance approval from the Board. These additional sales may make use of the previously- approved official statement, with the Finance Officer's approval, and may proceed pursuant to such advertisement for sale as the Finance Officer may approve. 10. Completing Official Statement after Sale -- After' bids have been received and the LGC has awarded the Bonds to the successful purchaser, the Finance Officer is authorized and directed to prepare, in collaboration with the LGC, a final Official Statement containing, among such other matters as may be appropriate, information required pursuant to Rule 15c2 -12 ( "Rule 15c2 -12 ") promulgated by the United States Securities and Exchange Commission under the United States Securities Act of 1934, as amended. The County, together with the LGC, will arrange for the delivery within seven business days of the date the Bonds are sold of a reasonable number of copies of the final Official Statement to the successful bidder on the Bonds for delivery to each potential investor requesting a copy of the final Official Statement and to each person to whom such bidder and members of the bidding group initially sell the Bonds. 11. Finance Officer To Complete Bond Closing - After the sale of the Bonds, the Finance Officer and all other County officers and employees are authorized and directed to take all proper steps to have the Bonds prepared and executed in accordance with their terms and to deliver the Bonds to the purchaser upon payment for the Bonds. The Finance Officer is authorized and directed to hold the executed Bonds, and any other documents authorized or permitted by this resolution, in escrow on the County's behalf until the conditions for the delivery of the Bonds and other documents have been completed to the Finance Officer's satisfaction, and thereupon to release the executed Bonds and other documents for delivery to the appropriate persons or organizations. Without limiting the generality of the foregoing, this authorization and direction is specifically extended to authorize the Finance Officer (a) to approve and enter into agreements to carry out the refunding contemplated by this resolution, including agreements for the custody of Bond proceeds and agreements for appropriate professional services, and (b). to approve changes to any documents or closing certifications previously signed by County officers or employees, provided that the Bonds must be in substantially the form approved by this resolution and that any such changes must not substantially alter the intent of such certificates from that expressed in the forms of such certificates as executed by such officers or employees. The Finance Officer's authorization -of the release of any such document for delivery will constitute conclusive evidence of such officer's approval of any such changes. In addition, the Finance Officer is authorized and directed to take all appropriate steps for the efficient and convenient carrying out of the County's on -going responsibilities with respect to the Bonds. This authorization includes, without limitation, contracting with third parties for reports and calculations that may be required under the Bonds, this resolution or otherwise with respect to the Bonds. I2. Undertaking for Continuing Disclosure -- The County undertakes, for the benefit of the beneficial owners of the Bonds, to provide continuing disclosure with respect to the Bonds as described in Exhibit B. The Board designates the Finance Officer as the County officer to be primarily responsible for the County's compliance with its undertakings for continuing disclosure provided for in this resolution. The Finance Officer will provide for the filings and reports (including the reports of material events) constituting the continuing disclosure provided for in this resolution. 13. Resolutions As To Tax Matters -= The County will not take or omit to take any action the taking or omission of which will cause the Bonds to be "arbitrage bonds," within the meaning of Section 148 of the "Code" (as defined below), or "private activity bonds" within the meaning of Code Section 141, or otherwise cause interest on the Bonds to be includable in gross income for federal income tax purposes. Without limiting the generality of the foregoing, the County will comply with any Code provision that may require the County at any time to pay to the United States any part of the earnings derived from the investment of the proceeds of the Bonds, and the County will pay any such required rebate from its general funds. For this paragraph, "Code" means the United States Internal Revenue Code of 1986, as amended, including applicable Treasury regulations. 14. Book -Entry System for Bond Registration -- The Bonds will be issued by means of a book -entry system, with one bond certificate for each maturity immobilized at The 7 Depository Trust Company, New York, New York ("DTC"), and not available for distribution to the public. The book-entry system for registration will operate as described in the Official Statement. Therefore, (a) the County will pay principal, premium, if any, and interest on the Bonds to DTC or its nominee as registered owner of the Bonds, (b) the County will not be responsible or liable for any transfer of payments to parties other than DTC or for maintaining, supervising or reviewing the records maintained by DTC or any other person related-to the Bonds, and (c) the County will not mail redemption notices (or any other notices related to the Bonds) to anyone other than DTC or its nominee so long as the book-entry system of registration with DTC is in effect. The County may elect to discontinue the book-entry system with DTC by resolution of this Board. The Finance Officer is authorized and directed to enter into any agreements such officer deems appropriate to put into place and carry-out the book-entry system with DTC. 15. Call of Public Improvement Bonds for Redemption - The Board authorizes and directs the Finance Officer to make, on the County's behalf, an irrevocable call for redemption of such of the County's. Public. Improvement Bonds, Series 2004A, 2004B, and 2005A, as the Finance Officer (after consultation with the LGC) deems beneficial to the County. The Finance Officer will make this call for redemption by the execution and delivery of an appropriate certificate in connection with the original delivery of the Bonds. 16. Miscellaneous Provisions -- All County officers and employees are authorized and directed to take all such finther action as they may consider necessary or desirable in connection with the furtherance of the purposes of this resolution. All such prior actions of County officers and employees are ratified, approved and confirmed. Upon the absence, unavailability or refusal to act of the Chair, the County Manager or the Finance Officer, any of such officers may assume any responsibility or carry out any function assigned to another officer in this resolution. In addition, upon the unavailability of the Chair or the Clerk, respectively, any of the rights or responsibilities directed to such officers may be carried out or exercised by the Vice Chair or any Deputy or Assistant Clerk. All other resolutions, or parts thereof, in conflict with this resolution are repealed, to the extent of the conflict. This resolution takes effect immediately. I certify as follows: that the foregoing resolution (which includes the attached Exhibits A and B) was properly adopted at a meeting of the Board of Commissioners of Orange County, North Carolina; that such meeting was properly called and held on October 18, 2011; that a quorum-was present and acting throughout such meeting; and that such resolution has not been modified or amended, and remains in full effect as of today. Dated this q day of October, 2011. [ a : Donna S. Baker 17 Clerk, Board of Commissioners sz Orange County,North Carolina Cara REGISTERED Number R -X 8 EXHIBIT A - Form of Bonds REGISTERED UNITED STATES OF AMERICA STATE OF NORTH CAROLINA ORANGE COUNTY General Obligation Refunding Bond, Series 2011 INTEREST RATE MATURITY DATE DATED DATE CUSIP % February 1, November 15, 2011 684 609 XXX REGISTERED OWNER: * * ** *CEDE & CO. * * * ** PRINCIPAL AMOUNT: * * ** THOUSAND DOLLARS ($ ,000) * ** ORANGE COUNTY, NORTH CAROLINA (the "County'), for value received, promises to pay to the registered owner hereof, or registered assigns or legal representative, the principal amount stated above on the maturity date stated above, subject to prior redemption as described herein, and to pay interest on this Bond semiannually on each February 1 and August 1, beginning February 1, 2012, at the annual rate stated above. Interest is payable (a) from the dated date stated above, if this Bond is authenticated prior to February 1, 2012, or (b) otherwise from the February 1 or August 1 that is, or immediately precedes, the date on which this Bond is authenticated (unless payment of interest hereon is in default, in which case this Bond will bear interest from the date to which interest has been paid). Principal, premium, if any, and interest are payable in lawful. money of the United States of America. This Bond is one of an issue of the County's [$47,000,000] General Obligation Refunding Bonds, Series 2011 (the "Bonds "), of like date and tenor, except as to number, denomination, rate of interest, privilege of redemption and maturity. The Bonds are issued pursuant to a resolution adopted by the County's governing Board of Commissioners on October 18, 2011, and the - Constitution and laws of the State of North Carolina, including the Local Government Bond Act. The County's full faith and credit are pledged for the payment of principal of and interest on this Bond. The Bonds are issued by means of a book -entry system, with one bond certificate for each maturity immobilized at The Depository Trust Company, New York, New York ( "DTC "), and not J available for distribution to the public. Transfer of beneficial ownership interests in the Bonds in the principal amount of $5,000 or any integral multiple thereof will be effected on the records of DTC and its participants pursuant to rules and procedures established by DTC and its participants. Principal and interest on the Bonds are payable by the County to DTC or its nominee as registered owner of the Bonds. The County is not responsible or liable for .such transfer of ownership or payments or for maintaining, supervising or reviewing the records maintained by DTC, its participants or persons acting through such participants. Bonds maturing prior to February 1, 2022, are not subject to redemption prior to maturity. Bonds maturing on February 1, 2022, and thereafter are redeemable, at the County's option, from any moneys that may be made available for such purpose, in whole or in part on any date not earlier than February 1, 2021, at a redemption price of 100% of the principal amount to be redeemed, plus interest accrued to the redemption date, without premium. If less than all of the Bonds stated to mature on different dates are called for redemption, the Bonds to be redeemed will be selected in such manner as the County may determine. If less than all of the Bonds of any one maturity are called for redemption, the particular Bonds or portions of Bonds of such maturity to be redeemed will be selected by lot in such manner as the County in its discretion may determine; provided, however, that the portion of each Bond to be redeemed will be in the principal amount of $5,000 or some integral multiple thereof, and that, in selecting Bonds for redemption, each Bond will be considered as representing that number of Bonds which is obtained by dividing the principal amount of such Bond by $5,000. Notwithstanding the foregoing, so long as a book -entry system with DTC is used for determining beneficial ownership of Bonds, if less than all of the Bonds within a maturity are to be redeemed, DTC and its participants will determine which of the Bonds within any such maturity are to be redeemed. If a portion of a Bond is called for redemption, a new Bond in principal amount equal to the unredeemed portion thereof will be issued to the registered owner upon the surrender thereof. The County will give notice of redemption by certified or registered mail to DTC or its nominee as the registered owner of the Bonds. The County must mail such notice not more than 60 days and not less than 30 days prior to the date fixed for redemption. The County is not responsible for sending notices of redemption to anyone other than DTC or its nominee. If (a) DTC determines not to continue to act as securities depository for the Bonds or (b) the County so elects, the County will discontinue the book -entry system with DTC. If the County fails to identify another qualified securities depository to replace DTC, the County will deliver replacement Bonds in the form of fully- registered certificates. The County Finance Officer has been appointed Registrar for the Bonds. As Registrar, the Finance Officer will maintain appropriate books and records indicating ownership of the Bonds. The County will treat the registered owner of this Bond as the person exclusively entitled to payment of principal and interest and the exercise of all other rights and powers of the owner, except that interest payments will be made to the person shown as owner on the County's 10 registration books at the close of business on the 15th day (whether or not a business day) of the month preceding each interest payment date. The County intends that North Carolina law will govern the terms of the Bonds. All acts, conditions and things required by the Constitution and laws of the State of North Carolina to happen, exist or be performed precedent to and in the issuance of this Bond have . happened, exist and have been performed, and the issue of Bonds of which this Bond is one, together will all other indebtedness of the County, is within every debt and other limit prescribed by the Constitution and laws of the State of North Carolina. IN WITNESS WHEREOF, Orange County, North Carolina, has caused this Bond to signed by its County Manager, to be countersigned by the Clerk to its Board of Commissioners, its seal to be affixed hereto and this Bond to be dated November 15, 2011. COUNTERSIGNED: LSample only - do not sign JJ Clerk, Board of Commissioners Orange County, North Carolina The Bonds have been approved by the North Carolina Local Government Commission in accordance with the Local Government Bond Act. (SEAL) %Sample only - do not sio7 T. Vance Holloman Secretary, Local Government Commission [Sample only - do not s�n7 County Manager Orange County, North Carolina ii ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto (Please print or type transferee's name and address, including -zip code) PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OR TRANSFEREE: the within bond and all rights thereunder, hereby irrevocably constituting and appointing , Attorney, to transfer said bond on the books kept for the registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: NOTICE: Signature(s) must be guaranteed by a participant in the Securities Transfer Agent Medallion Program ( "STAMP ") or similar program (Signature of Registered Owner) NOTICE: The signature above must correspond with the naive of the registered owner as it appears on the front of this bond in every particular without alteration. or enlargement or any change whatsoever. 12 Exhibit B -- Undertaking for Continuing Disclosure The County undertakes, for the benefit of the beneficial owners_ of the Bonds, to provide the following items and information to the Municipal Securities Rulemaking Board (the "MS" ): (a) by not later than seven months from the end of each of the County's fiscal years, audited County financial statements for such fiscal year, if available, prepared in accordance with Section 159 -34 of the General Statutes of North Carolina, as it may be amended from time to time, or any successor statute, or, if such audited financial statements are not available by seven months from the end of any fiscal year, unaudited County financial statements for such fiscal year, to be replaced subsequently by audited County financial statements to be delivered within 15 days after such audited financial statements become available for distribution; (b) by not later than seven months from the end of each of the County's fiscal years, (i) the financial and statistical data as of a date not earlier than the end of the preceding fiscal year (which data will be prepared at least annually, will specify the date as to which such information was prepared and will be delivered with any subsequent material events notices specified in subparagraph (c) below) for the type of information included under heading "The County - Debt Information" and "- Tax Information" in the final Official Statement (excluding any information on overlapping or underlying units), and (ii) the combined budget of the County for the current fiscal year, to the extent such items are not included in the audited financial statements referred to in (a) above; (c) in a timely manner, not in excess of ten business days after the occurrence of the event notice of any of the following events with respect to the Bonds: (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 any credit enhancements reflecting financial difficulties; (5) substitution of credit or liquidity providers, or their failure to perform; (6) adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701 -TEB) or other material notices or determinations with respect to the tax status of the Bonds, or other material events affecting the tax status of the Bonds; (7) modifications to rights of the beneficial owners of the Bonds, if material; 13 -_ (8) calls for redemption of the Bonds (other than calls pursuant to sinking fund redemption), if material, and tender offers; (9) defeasances; (10) release, substitution or sale of any property securing repayment of the Bonds; (11) rating changes; (12) bankruptcy, insolvency, receivership or similar proceedings related to the County or any other person or entity that may at any time become legally obligated to make payments on the Bonds (collectively,-the "Obligated Persons "); (13) the consummation of a merger, consolidation, or acquisition involving an Obligated Person or the sale of all or substantially all of the assets of the Obligated Person, other than in the ordinary course of business, the entry into a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material; and (14) Appointment of a successor or additional trustee or the change of name of a trustee, if material; and (d) in a timely manner, notice of a failure of the County to provide required annual financial information described in (a) or (b) above on or before the date specified. For the purposes of the event identified in subparagraph (12) above, the event is considered to occur when any of the following occurs: the appointment of a receiver, fiscal agent or similar officer for an Obligated Person in a proceeding under the U.S. Bankruptcy Code or in any other proceeding under state or federal law in which a court or governmental authority has assumed jurisdiction over substantially all of the assets or business of the Obligated Person, or if such jurisdiction has been assumed by leaving the existing governing body and officials or officers in possession but subject to the supervision and orders of a court or governmental authority, or the entry of an order confirming a plan of reorganization, arrangement or liquidation by a court or governmental authority having supervision or jurisdiction over substantially all of the assets or business of the Obligated Person. If the County fails to comply with the undertaking described above, any beneficial owner of ' the Bonds may take action to protect and enforce the rights of all beneficial owners with respect to such undertaking, including an action for specific performance; provided, however, that failure to comply with such undertaking will not be an event of default and will not result in any acceleration of payment of the Bonds. All actions will be instituted, had and maintained in the manner provided in this paragraph for the benefit of all beneficial owners of the Bonds. 14 The County must provide the documents and other information referred to above to the. MSRB in an electronic format as prescribed by the MSRB and accompanied by identifying information as prescribed by the MSRB. The County may discharge its undertaking as set forth in this resolution by providing such information in any manner that_ the United States Securities and Exchange Commission subsequently authorizes in lieu of the manner described above. The County reserves the right to modify from time to time the information to be provided to the extent necessary or appropriate in the County's judgment, provided that: (a) any such modification 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 County; (b) the information to be provided, as modified, would have complied with the requirements of Rule 15c2 -12 as of the date of the final Official Statement, after taking into account any amendments or interpretations of Rule 15c2 -12, as well as any changes in circumstances; and (c) any such modification does not materially impair the interests of the beneficial owners, as determined either by parties unaffiliated with the ,County or by the approving vote of the registered owners of a majority in principal amount of the Bonds pursuant to the terms of the bond resolution, as it may be amended from time to time, at the time of the amendment. Any annual financial information containing modified operating data or financial information will explain, in narrative form, the reasons for the modification and the impact of the change in the type of operating data or financial information being provided. 15 Bond Order for Refunding Bonds BOND ORDER AUTHORIZING THE ISSUANCE OF GENERAL OBLIGATION REFUNDING BONDS IN THE AMOUNT OF $47,000,000 TO REFUND PUBLIC L"ROVEMENT BONDS ISSUED IN 2004 AND 2005 WHEREAS - Orange County, North Carolina (the "County "), has previously issued its General Obligation Public Improvement Bonds with series designations 2004A, 2004B and 2005A (together, the "Prior Bonds "), in the original aggregate principal amount of $54,325,000. The County has determined that refinancing all or a portion of the outstanding balance of the Prior Bonds could provide savings to the County. The County has applied to the North Carolina Local Government Commission for its approval of the issuance of County refunding bonds to carry out the refinancing of the Prior Bonds. The LGC has accepted the County's application. BE IT ORDERED by the Board of Commissioners of Orange County, North Carolina, as follows: 1. There are hereby ordered to be issued general obligation refunding bonds of the County to provide for the refinancing of all or a portion of the outstanding balance of the Prior Bonds, including paying related financing costs and other necessary or incidental costs. 2. The maximum aggregate principal amount of the bonds issued for such purpose will be $47,000,000. 3. Taxes will be levied in an amount sufficient to pay the principal of and interest on the bonds so issued. 4. A sworn statement of debt prepared by the County's Finance Officer has been filed with the Clerk to the Board of Commissioners and is available for public inspection. 5. This Bond Order takes effect immediately.