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HomeMy WebLinkAboutRES-1997-011 Resolution Providing Final Approval of Terms and Documents for Second Phase of Southern Village Elementary School Financing -R lam. 1 ct 9 EXHIBIT A RESOLUTION PROVIDING FINAL APPROVAL OF TERMS AND DOCUMENTS FOR SECOND PHASE OF SOUTHERN VILLAGE EL.EM_F,NTARY SCHOOL. FINANCING WHEREAS: The Board of Commissioners of Orange County, North Carolina (the "County"), has previously approved and determined to undertake a plan for the construction, acquisition and financing(the "Project")of a new elementary school in the County. There has been presented to this meeting a draft dated March 10, 1997, of a Modification Agreement to be dated as of March 1, 1997, from the County to a deed of trust trustee for the benefit of BB&T Governmental Finance ("BB&TGF"), providing for BB&TGF to finance the County's undertaking of the Project, a copy of which shall be filed with the County's permanent records. Such documents appear to be in forms appropriate for completing the financing portion of the Project. BE IT THEREFORE RESOLVED by the Orange County Board of Commissioners, as follows: 1. The County hereby confirms its decision to complete the financing of the Project through BB&TGF in accordance with the plan of financing described in the Agreement. 2. The Chair and Vice Chair of the County's Board of Commissioners, or either of them, are hereby authorized and directed to execute the Agreement and deliver the same to the appropriate counterparties, and the Clerk to this Board (or any assistant clerk) is hereby authorized and directed to affix the County's seal to the Agreement and to attest the same (when the seal and such second signature is required by the final form of any document). The Agreement shall be in substantially the form submitted to this meeting, which is hereby approved, with such changes as may be approved by the Chair or Vice Chair, such officer's execution to constitute conclusive evidence of such officer's approval of any such changes. The Agreement in final form, however, must provide for the amount now to be advanced to the County not to exceed $9,000,000, for a nominal annual interest rate (in the absence of default or change in tax status) not to exceed 4.92%, and for a term not to exceed fifteen years from closing. 3. The County's payment of Installment Payments, as defined in the Agreement, shall be subject to annual appropriation of funds by the Board of Commissioners. The County shall not be obligated to make any payments under the Agreement beyond those for which funds have been appropriated in the County's sole discretion during the County's then-current fiscal year. The Agreement shall not constitute a pledge of the County's full faith and credit. Neither the County's full faith and credit nor its taxing power is pledged directly, indirectly or contingently to secure any moneys due under the Agreement. 4. The County Manager and Finance Officer are hereby authorized and directed, together or separately, to hold executed copies of the Agreement, 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 Agreement have been completed to such officer's satisfaction, and thereupon to release the executed copies of such documents for delivery to the appropriate persons or organizations. Without limiting the generality of the foregoing,this authorization and direction is hereby specifically extended to authorize such officers to approve changes to any documents (including the Agreement) or closing certifications previously signed by County officers or employees, provided that such changes shall not substantially alter the intent of such certificates from that expressed in the forms of such certificates as executed by such officers. Such officer's authorization of the release of any such document for delivery shall constitute conclusive evidence of such officer's approval of any such changes. S. Resolutions as to tax matters-- (a) The County's officers are hereby authorized and directed to deliver all certificates and instruments and to take all such further action as they may consider necessary or desirable in connection with the execution and delivery of the Agreement and the consummation of the transactions contemplated thereby, including delivering a certificate setting forth the expected use and investment of the proceeds to be derived from the execution and delivery of the Agreement (the "Proceeds"), and to make any elections such officers deem desirable regarding any provision requiring rebate of earnings to the United States, for purposes of complying with the provisions of the Internal Revenue Code of 1986, as the same may be amended through the closing date, including applicable Treasury regulations (the "Code"), applicable to "arbitrage bonds." (b) The County shall not take or omit to take any action the taking or omission of which will cause its obligations to pay Installment Payments (the "Obligations") to be "arbitrage bonds," within the meaning of Code Section 148, or otherwise cause interest components of Installment Payments to be includable in the gross income for Federal income tax purposes of the registered owners of the Obligations. Without limiting the generality of the foregoing, the County shall comply with any provision of the Code that may require the County to pay to the United States any part of the earnings derived from the investment of the Proceeds. The County shall pay any such required rebate from its general funds. (c) The County covenants that it shall not permit the Proceeds to be used in any manner that would result in (i) 5% or more of the debt service on the Obligations being directly or indirectly (A) secured by an interest in property, or (B) derived from payments in respect of property or borrowed money, being in either case used in a trade or business carried on by any person other than a governmental unit, as provided in Code Section 141(b), (ii) 5% or more of such Proceeds being used with respect to any "output facility" (other than a facility for the furnishing of water), within the meaning of Code Section 141(b)(4), or (iii) 5% or more of such Proceeds being used directly or indirectly to make or finance loans to any persons other than a governmental unit, as provided in Code Section 141(c); provided, however, that if the County receives an opinion of bond counsel acceptable to BB&TGF that compliance with any such covenant is not required to prevent the interest components of Installment Payments from being includable in the gross income for Federal income tax purposes of the registered owners of the Obligations under existing law,the County need not comply with such covenant. (d) The County hereby designates the Obligations as "qualified tax-exempt obligations" for the purpose of Code Section 265(b)(3). The County represents and covenants as follows: (i) The County will in no event designate more than $10,000,000 of obligations as qualified tax-exempt obligations in 1997, including the Obligations, for the purpose of such Section 265(b)(3); (ii) Barring circumstances unforeseen as of the date of delivery of the Agreement, the County will not issue tax-exempt obligations itself or approve the issuance of tax-exempt obligations of any "subordinate entities," within the meaning of Code Section 265(b)(3), and all entities which issue tax-exempt obligations on behalf of the County and its subordinate entities, if the issuance of such tax-exempt obligations would, when aggregated with all other tax-exempt obligations theretofore issued in 1997 by the County and such other entities, result in the County and such other entities having issued a total of more than $10,000,000 of tax-exempt obligations in 1997 (not including "private activity bonds," within the meaning of Code Section 141, other than "qualified 501(c)(3) bonds," within the meaning of Code Section 145), including the Obligations; and, (iii) The County has no reason to believe that the County and such other entities will issue tax-exempt obligations in 1997 in an aggregate amount that will exceed such $10,000,000 limit; provided, however, that if the County receives an opinion of bond counsel acceptable to BB&TGF that compliance with any covenant set forth in (i) or (ii) above is not required for the Obligations to be qualified tax-exempt obligations, the County need not comply with such covenant. 6. Miscellaneous provisions-- All other actions of County officers in furtherance of the purposes of this resolution are hereby ratified, approved and confirmed. All other resolutions or parts thereof in conflict with this resolution are hereby repealed, to the extent of the conflict. This resolution shall take effect immediately. The undersigned Clerk to the Board of Commissioners of Orange County, North Carolina, hereby certifies as follows: A. A regular meeting of the County's Board of Commissioners (the "Board") was held on March 18, 1997, at the place and time established for such meeting at the OWASA administrative center in Carrboro, North Carolina, and the following members were present and absent: PRESENT: Crowther, Halkiotis, Carey, Gordon and Brown ABSENT: none The above were all the Board's members as of such date and all had been duly elected and qualified for office. B. At such meeting, the Board adopted the resolution attached as Exhibit A, designated "Resolution Providing Final Approval Of Terms And Documents For Second Phase of Southern Village Elementary School Financing," on motion by Commissioner Halkiotis, second by Commissioner Brown and a vote of 5 to 0. C. Such resolution has not been repealed, revoked, rescinded or amended, and remains in full force and effect as of today. D. Pursuant to N.C. Gen. Stat. Sec. 143-318.12(a), a written schedule showing the time and place of regular meetings has been on file with me continuously since prior to December 1, 1996. WITNESS my signature and the official seal of Orange County, this 20th day of March, 1997. (SEAL) Beverly A. Blythe Clerk, Board of Commissioners of Orange County, North Carolina