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HomeMy WebLinkAbout2012/12/17 RESOLUTION PROVIDING FOR THE ISSUANCE OF ITS SPECIAL OBLIGATION BOND, SERIES 2013EXTRACTS FROM MINUTES OF BOARD OF COMMISSIONERS A regular meeting of the Board of Commissioners of the County of Harnett, North Carolina (the "County ") was held in the Commissioners' Meeting Room, County Administration Building, 102 East Front Street, Lillington, North Carolina, at 7:00 p.m. on December 17, 2012, after proper notice, and was called to order by Chairman Jim Burgin, and upon the roll being called, the following members of the Board answered present: Jim Burgin, Chairman Gary A. House, Vice Chairman Beatrice B. Hill, Commissioner Joe Miller, Commissioner C. Gordon Springle, Commissioners The following members of the Board were absent: None Also present: Joseph Jeffries, Interim County Manager Tony Wilder, Deputy County Manager Dwight Snow, County Attorney Sylvia Blinson, Finance Officer Margaret Regina Wheeler, Clerk to the Board Commissioner Springle introduced the following bond resolution, a summary of which had been provided to each Commissioner, a copy of which was available with the Clerk to the Board and which was read by title: A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE COUNTY OF HARNETT, NORTH CAROLINA PROVIDING FOR THE ISSUANCE OF ITS SPECIAL OBLIGATION BOND, SERIES 2013 WHEREAS, the County of Harnett, North Carolina (the "County') is authorized by Section 1591 -30 of the General Statutes of North Carolina (the "Act') to issue its special obligation bonds to pay capital expenditures in connection with the implementation of its solid waste management projects (the "Projects "); and WHEREAS, the Board of Commissioners of the County (the "Board") has determined that it is necessary to (1) acquire, construct and install a leachate collection system at the Dunn Erwin Landfill facility and (2) make certain improvements to the facility's convenience center and transfer station (collectively, the "Current Projects "); and WHEREAS, the Board on December 17, 2012 adopted a Bond Order (the "Bond Order ") providing for the issuance of Special Obligations Bonds to be secured by the sources set forth in the Bond Order; and WHEREAS, the Board has determined that it is necessary and advisable at this time to issue the County's Special Obligation Bond, Series 2013 (the "1013 Bond") in the aggregate principal amount of $1,750,000 (1) to finance all or a portion of the costs of the Current Projects and (2) to pay certain costs incurred in connection with the issuance of the 2013 Bond; and PPAB 20286070 WHEREAS, Cape Fear Farm Credit, ACA, or one of its affiliates (the "Purchaser"), has agreed to purchase the 2013 Bond in the amount of $1,750,000 subject to certain terms and conditions set forth herein; and WHEREAS, the Board expects the Local Government Commission of North Carolina (the "Commission ") to approve at the Commission's meeting on January 8, 2013 the County's application relating to the 2013 Bond and the issuance and private sale of the 2013 Bond as required by the Act (the "Commission Approval"); and WHEREAS, the Board now desires to provide for the terms, form and issuance of the 2013 Bond in the amount of $1,750,000; and WHEREAS, the Board desires to incorporate in this Resolution, to the extent applicable and unless manifestly inappropriate, the provisions of the Bond Order, including definitions; NOW, THEREFORE, BE IT RESOLVED by the Board, in accordance with the final Commission Approval as set forth above and any conditions, terms and other contingencies that may be set forth therein, as follows: Section 1. Acceptance of Term Sheer, Issuance of 2013 Bond. The County shall issue in accordance with and pursuant to the Act, the Bond Order and this Resolution, its 2013 Bond in the aggregate principal amount of $1,750,000 (subject to reduction as set forth in Section 3 below) for the purpose of providing funds, together with other available funds, (a) to finance all or a portion of the costs of the Current Projects and (b) to pay certain costs incurred in connection with the issuance of the 2013 Bond. Section 1. Form of Bond. The 2013 Bond shall be issued in fully registered form. The 2013 Bond shall be issued as a single bond and shall be substantially in the form set forth in Exhibit A attached hereto and made a part hereof, with such appropriate variations, omissions and insertions as are permitted or required by this Resolution. The Finance Officer of the County is hereby appointed to be the registrar of the 2013 Bond (the "Registrar ") and is hereby directed to maintain the appropriate registration records with respect thereto. Section 3. Details of Bond. The 2013 Bond shall be dated the date of its issuance, shall bear interest at a fixed rate of 2.49% per annum until its payment and shall be stated to mature (subject to the right of prior redemption) on February 1, 2023. If at any time there is a Determination of Taxability, as such term is defined below, the fixed rate of interest on the 2013 Bond shall be increased to and be calculated at the rate which will provide to the Purchaser the effective yield which it would have received if there had not been a Determination of Taxability, such rate to be determined by the Purchaser (the "Alternative Rate of Interest "), and shall be payable from the Date of Taxability to such time. In such event, the County also shall be required to pay to the Purchaser all amounts, if any, which may be necessary to reimburse the Purchaser for any interest, penalties or other charges assessed by the Internal Revenue Service and the Department of Revenue of the State of North Carolina against the Purchaser by reason of the Purchaser's failure to include the interest on the 2013 Bond in its gross income for income tax purposes. The County shall pay to the Purchaser the above mentioned Alternative Rate of Interest notwithstanding any transfer by the Purchaser or payment or prepayment by the County prior to the date such Determination of Taxability was made. "Determination of Taxability" means a determination that the interest on the 2013 Bond is included in gross income of the Purchaser for federal income tax purposes, which determination shall be PPAB 20286070 deemed to have been made upon the occurrence of the first to occur of the following: (a) the date on which the Purchaser is advised in writing by the Commissioner or any District Director of the Internal Revenue Service that, as a consequence of an action, or failure to act, by the County, the interest on the 2013 Bond is included in the gross income of the Purchaser for federal income tax purposes; (b) the date on which the County receives notice from the Purchaser that the Purchaser has been advised in writing that the Internal Revenue Service has issued a statutory notice of deficiency or similar notice to the Purchaser which asserts, in effect, that interest on the 2013 Bond received by the Purchaser is included in the gross income of the Purchaser for federal income tax purposes as a result of an action, or failure to act, by the County; (c) the day on which the County is advised in writing by the Commissioner or any District Director of the Internal Revenue Service that there has been issued a public or private ruling of the Internal Revenue Service that the interest on the 2013 Bond is included in the gross income of the Purchaser for federal income tax purposes as a result of an action, or failure to act, by the County; or (d) the day on which the County is advised in writing by counsel to the Purchaser that a final determination, from which no further right of appeal exists, has been made by a court of competent jurisdiction in the United States of America in a proceeding with respect to which the County has been given written notice and an opportunity to participate and defend that interest on the 2013 Bond is included in the gross income of the Purchaser for federal income tax purposes as a result of an action, or failure to act, by the County. "Date of Taxability" means the first date on which interest on the 2013 Bond is included in the gross income of the Purchaser for federal income tax purposes as a result of a Determination of Taxability. The 2013 Bond is subject to mandatory redemption before maturity in part at the redemption price of 100% of the principal amount to be redeemed, without premium, on each February 1 in the years and in the amounts as follows: PAYMENT PAYMENT DATE PRINCIPAL DATE PRINCIPAL (FEBRUARY 1) PAYMENT (FEBRUARY 1) PAYMENT 2014 $156,000 2019 $177,000 2015 160,000 2020 181,000 2016 164,000 2021 186,000 2017 168,000 2022 190,000 2018 173,000 2023 195,000 *Maturity The 2013 Bond is subject to optional redemption prior to its stated maturity at the option of the County in whole or in part on any date on giving the Registered Owner not less than 20 days' written notice thereof. Before the first anniversary of the issuance of the 2013 Bond, the County may redeem the 2013 Bond at a redemption price of 101% of the principal amount redeemed, together with accrued interest thereon to the date of redemption. On and after the first anniversary of the issuance of the 2013 Bond, the County may redeem the 2013 Bond at a redemption price of 100% of the principal amount redeemed, together with accrued interest thereon to the date of redemption. Interest on the 2013 Bond shall be payable on each February 1 and August 1, beginning August 1, 2013, until maturity. Interest on the 2013 Bond shall be calculated on the basis of a 360 -day year consisting of twelve 30 -day months and in the.event of a late payment, shall continue to accrue on the principal balance remaining at the bond rate. PPAB 20286070 Principal of, premium, if any, and interest on the 2013 Bond shall be payable to the registered owner appearing on the registration records of the Registrar by wire transfer or by check, mailed to such registered owner at its address as it appears on such registration books and shall be received by the registered owner on payable date. If less than all of the 2013 Bond is called for redemption, the portion of the 2013 Bond to be redeemed will be applied and credited in the inverse order of the County's mandatory redemption payments established pursuant to this Section. The Registrar shall direct the registered owner thereof to evidence such redemption by appropriate notation on a schedule attached to such 2013 Bond for such purpose or on such registered owner's electronic books and records. The Finance Officer, with the written consent of the Purchaser, may alter the principal amount of the 2013 Bond and the provisions for the optional and mandatory redemption of the 2013 Bond by delivering at closing a pricing certificate with respect to the 2013 Bond establishing such alternative details; provided, however, in no event shall the aggregate principal amount of the 2013 Bond exceed $1,750,000. Section 4. Security for the Bond. The 2013 Bond shall be a special obligation of the County and the principal of and interest on the 2013 Bond shall be payable solely from the sources identified in the Bond Order and as set forth in the 2013 Band. The uses of the sources set forth in the Bond Order and the 2013 Bond do not constitute a pledge of the County's taxing power, and the County is not obligated to pay the principal of, or interest or any premium on, the 2013 Bond except from the sources in the Bond Order and the 2013 Bond. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE COUNTY IS PLEDGED FOR THE PAYMENT OF THE PRINCIPAL OF, OR INTEREST OR ANY PREMIUM ON, THE 2013 BOND, AND NO OWNER OF THE 2013 BOND HAS THE RIGHT TO COMPEL THE EXERCISE OF THE TAXING POWER OF THE COUNTY IN CONNECTION WITH ANY DEFAULT THEREON. Section 5. Application of the Bond Proceeds. On the date of issuance of the 2013 Bond, the Purchaser shall deliver the 2013 Bond proceeds to any account identified by the County, and the County shall invest such proceeds until used only in investments authorized by Section 159 -30 of the General Statutes of North Carolina. Such 2013 Bond proceeds shall be applied solely as follows: (a) as soon as practicable, for the costs of the Current Projects, and (b) within 60 days of the date of issuance, for payment of any issuance costs to be paid from 2013 Bond proceeds. Section 6. Execution of the Bond. The 2013 Bond, issued as a single bond, shall be executed in the name of the County by facsimile or manual signatures of the Chairman and the Clerk to the Board, and there shall be affixed thereto or imprinted thereon the corporate seal of the County, and the Certificate of Approval of the Commission shall bear a facsimile or manual signature of the Secretary of the Commission or his designated assistant. The Finance Officer of the County shall manually authenticate the 2013 Bond. Section 7. Private Sale of Bond. The 2013 Bond shall be sold to the Purchaser at private sale without advertisement in the form of a single registered bond bearing interest at 2.49% per annum and containing such provisions as set forth above and approved the County. Section 8. Authorization for Delivery of Bond. The Chairman, the Clerk to the Board and the Finance Officer are hereby authorized and directed, individually and collectively, to cause the 2013 Bond to be prepared and, when it shall have been duly sold by the Commission, to execute and authenticate the 2013 Bond and deliver the same to the Purchaser. PPAB 20286070 Section 9. Arbitrage and Tax Covenants. The County covenants that it will not take or permit, of omit to take or cause to be taken, any action that would adversely affect the excludability from gross income of the recipient thereof for federal income tax purposes of interest on the 2013 Bond and, if it should take or permit, or omit to take or cause to be taken, any such action, the County will take or cause to be taken all lawful actions within its power necessary to rescind or correct such actions or omissions promptly upon having knowledge thereof. The County acknowledges that the continued excludability of the 2013 Bond from the owner's gross income for federal income tax purposes depends, in part, on compliance with the arbitrage limitations imposed by Section 148 of the Code. The County covenants that it will comply with all the requirements of Section 148 of the Code, including the rebate requirements, and that it will not permit at any time any of the proceeds of the 2013 Bond or other funds under its control to be used, directly or indirectly, to acquire any asset or obligation, the acquisition of which would cause the 2013 Bond to be "arbitrage bonds" for purposes of Section 148 of the Code. The County covenants that it will comply with the investment instructions in the Arbitrage and Tax Regulatory Certificate with respect to the 2013 Bond. Section 10. Authorization for Other Acts. The Chairman, the County Manager, the Finance Officer and the Clerk to the Board (collectively, the "Authorized Officers") are further authorized and directed, individually and collectively, to take such action and to execute and deliver any such documents, deeds, certificates, undertakings, agreements or other instruments as they, with the advice of counsel, may deem necessary and appropriate to effect the transactions contemplated by the Bond Order and this Resolution. Such officers are hereby directed to take all actions necessary to effectuate the transaction set forth above, including taking any such actions or making any such changes as may required by the Commission Approval. Each Authorized Officer is hereby specifically authorized to execute any documents required by the Purchaser, including, if applicable, a bond purchase agreement in form and substance acceptable to such Authorized Officer, the County Attorney and the County's bond counsel. Section 11. Transfer Restrictions. Notwithstanding any other provisions of the Bond Order or this Resolution to the contrary, the 2013 Bond shall not be transferred to any person other than a bank, insurance company or similar financial institution unless such transfer has been previously approved by the Commission. The provisions of this paragraph may not be amended without the prior written consent of the Commission. Section 11. Reporting Requirements for the County. The County hereby covenants to provide annual audited financial statements to the Purchaser at the same time such annual audited financial statements are provided to the Commission. The County shall also provide such other financial information and operating reports as may be reasonably requested by the Purchaser. Section 13. Supplemental Resolutions. The County may adopt resolutions supplemental hereto; provided, however, the Purchaser's prior written consent shall be required for any supplemental resolution that affects the terms or tax treatment of the 2013 Bond. Section 14. Repealer. All orders and resolutions and parts of orders and resolutions in conflict with this Resolution, if any, excluding the Bond Order, shall be and the same are hereby repealed to the extent the conflict exists. Section 15. Effectiveness of Resolution. This resolution is effective on its adoption by the Board. On motion of Commissioner Springle, seconded by Vice Chairman House, the foregoing bond resolution entitled "A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE COUNTY OF PPAB 20286070 HARNETT, NORTH CAROLINA PROVIDING FOR THE ISSUANCE OF ITS SPECIAL OBLIGATION BOND, SERIES 2013" was duly adopted by the following vote: AYES: 5 NAYS: 0 PPAB 20286073 STATE OF NORTH CAROLINA ss: COUNTY OF HARNETT I, Margaret Regina Wheeler, Clerk to the Board of Commissioners of the County of Harnett, North Carolina, DO HEREBY CERTIFY that the foregoing is a true and exact copy of a resolution entitled "A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE COUNTY OF HARNETT, NORTH CAROLINA PROVIDING FOR THE ISSUANCE OF ITS SPECIAL OBLIGATION BOND, SERIES 2013" adopted by the Board of Commissioners of the County of Harnett, North Carolina, at a meeting held on the 17" day of December, 2012. WITNESS my hand and the corporate seal of the County of Harnett, North Carolina, this the 17'h day of December, 2012. 1„rumgrt � I 5 J V PPAB 2028607v3 L- L 4 Marg et Regina W eler Clerk o the Board County of Harnett, North Carolina EXTRACTS FROM MINUTES OF BOARD OF COMMISSIONERS A regular meeting of the Board of Commissioners of the County of Harnett, North Carolina (the "County") was held in the Commissioners' Meeting Room, County Administration Building, 102 East Front Street, Lillington, North Carolina, at 7:00 p.m. on December 17, 2012, after proper notice, and was called to order by Chairman Jim Burgin, and upon the roll being called, the following members of the Board answered present: Jim Burgin, Chairman Gary A. House, Vice Chairman Beatrice B. Hill, Commissioner Joe Miller, Commissioner C. Gordon Springle, Commissioners The following members of the Board were absent: None Also present: Joseph Jeffries, Interim County Manager Tony Wilder, Deputy County Manager Dwight Snow, County Attorney Sylvia Blinson, Finance Officer Margaret Regina Wheeler, Clerk to the Board Commissioner Springle introduced the following bond order, a summary of which had provided to each Commissioner, a copy of which was available with the Clerk to the Board and was read by title: BOND ORDER AUTHORIZING THE ISSUANCE OF SPECIAL OBLIGATION BONDS OF THE COUNTY OF BARNETT, NORTH CAROLINA WHEREAS, the Board of Commissioners (the "Board") of the County of Harnett, North Carolina (the "County") has determined that it is necessary to finance certain capital expenditures incurred in connection with the implementation of its solid waste management projects (collectively, the "Projects "), including (1) the acquisition, construction and installation of a leachate collection system at the Dunn Erwin Landfill facility and (2) certain improvements to the facility's convenience center and transfer station (collectively, the "Current Projects "), by issuing special obligation bonds under Section 159I -30 of the General Statutes of North Carolina, as amended (the "Act "); WHEREAS, as required by the Act, an application has been filed with the Secretary (the "Secretary") of the Local Government Commission of North Carolina (the "Commission ") requesting the Commission's approval of an initial series of special obligation bonds in an amount not to exceed $1,750,000 to be used to finance all or a portion of the costs of the Current Projects, and the Secretary has notified the Board that the application has been accepted for submission to the Commission; and WHEREAS, notwithstanding the current need to issue not to exceed $1,750,000 special obligation bonds for the Current Projects, the Board has determined that the aggregate principal amount of special obligation bonds for future Projects in not known at this time and therefore wishes to provide for the issuance of special obligation bonds from time to time in amounts to be determined at the time of issuance and subject to the Commission's approval at such time. PPAB 2024700v4 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE COUNTY OFHARNETT, NORTHCAROLINA, ASFOLLOWS: Section 1. The Board has determined to finance the completion of the Current Projects and may, from time to time, determine to finance other Projects by issuing special obligation bonds under the Act (collectively, the "Bonds "). Section 2. The Board hereby authorizes the issuance of the Bonds in any aggregate principal amount approved by the Board and the Commission at the time any such Bonds are issued, subject to the requirements set forth in Section 6 below. Section 3. The Bonds shall be special obligations of the County, and the principal of, and interest and premium on, all such Bonds shall be on parity and shall be secured solely by the following sources (collectively, the "Pledged Funds'): (a) money collected by the County from the household disposal facilities availability fee imposed by the County for the availability of disposal facilities under North Carolina General Statute 153A -292 and any successor statute thereto; and (b) one or more additional sources of funds identified by the Board in future proceedings of the Board, so long as (1) the pledge of such sources does not constitute a pledge of the taxing power of the County and (2) the pledge of such sources is first approved by the Commission as provided in the Act. Section 4. The sources of payment identified in Section 3 so pledged and then held or hereafter received by the County or any fiduciary thereof shall immediately be subject to the lien of the pledge without any physical delivery of the sources or further act. Section 5. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE COUNTY ARE PLEDGED FOR THE PAYMENT OF THE PRINCIPAL OF, OR INTEREST OR ANY PREMIUM ON, ANY BONDS, AND NO OWNER OF SUCH BONDS HAS THE RIGHT TO COMPEL THE EXERCISE OF THE TAXING POWER OF THE COUNTY IN CONNECTION WITH ANY DEFAULT THEREON. The uses of the sources set forth in Section 3 do not constitute a pledge of the County's taxing power, and the County is not obligated to pay the principal of, or interest or any premium on, any Bond except from the sources set forth in Section 3. Section 6. The County may at any time, with the approval of the Commission, appoint a Trustee to administer the provisions of this Bond Order and may adopt such supplements to this Bond Order as shall be necessary or desirable to effectuate such appointment. Section 7. The initial series of Bonds shall not exceed $1,750,000 and is being issued pursuant to a separate resolution. Any future series of Bonds (the "Additional Bonds ") shall be issued only by separate proceedings of the Board, with approval from the Commission, as may be required by the Act and any other applicable law. In addition, for any series of Additional Bonds not issued for the sole purpose of refunding all or any portion of any Bonds then outstanding, prior to the delivery of such Additional Bonds, the County must deliver to the Trustee or, if no Trustee has been appointed, to the registered owners of the Bonds then outstanding, a certificate signed by an authorized officer of the County stating that (a) the Pledged Funds for each of the two complete fiscal years next preceding the issuance of the proposed Additional Bonds were equal to at least 110% of the average annual requirements for principal and interest on all Bonds then outstanding, and (b) the estimated Pledged Funds for the first two fiscal years following the issuance of the proposed Additional Bonds will be at PPAB 2024700v4 least 110% of the average annual requirements for principal and interest on all outstanding Bonds, including the proposed Additional Bonds. Section 8. No recourse under, or on, any statement, obligation, covenant or agreement contained in this Bond Order, or in any Bond hereby secured, or in any document or certification whatsoever, or under any judgment obtained against the County or the Commission, or by the enforcement of any assessment, or by any legal or equitable proceeding by virtue of any constitution or statute or otherwise or under any circumstances, shall be had against any member, officer or employee of the County or the Commission, either directly or through the County for the payment for or to, the County or the Commission or any receiver of either of them, or for, or to, any owner or holder of Bonds or otherwise, of any sum (hat may be due and unpaid on any such Bond. Any and all personal liability of every nature, whether at common law or in equity or by statute or by constitution or otherwise, of any such member, officer or employee to respond by reason of any act or omission on his or her part or otherwise, for the payment for, or to, the County or the Commission or any receiver of either of them, or for, or to, any owner or holder of Bonds or otherwise, of any sum that may remain due and unpaid on the Bonds hereby secured or any of them, is hereby expressly waived and released as an express condition of, and in consideration for, the adoption of this Bond Order and the issuance of the Bonds. Section 9. This Bond Order is effective on its adoption. On motion of Commissioner Springle, seconded by Vice Chairman House, the foregoing bond order entitled "BOND ORDER AUTHORIZING THE ISSUANCE OF SPECIAL OBLIGATION BONDS OF THE COUNTY OF HARNETT, NORTH CAROLINA" was duly adopted by the following vote: AYES: 5 NAYS: 0 PPAB 2024700v4 STATE OF NORTH CAROLINA ss: COUNTY OF BARNETT 1, Margaret Regina Wheeler, Clerk to the Board of Commissioners of the County of Harnett, North Carolina, DO HEREBY CERTIFY that the foregoing is a true and exact copy of a bond order entitled "BOND ORDER AUTHORIZING THE ISSUANCE OF SPECIAL OBLIGATION BONDS OF THE COUNTY OF HARNETT, NORTH CAROLINA" adopted by the Board of Commissioners of the County of Harnett, North Carolina, at a meeting held on the 17 °i day of December, 2012. WITNESS my hand and the corporate sea] of the County of Harnett, North Carolina, this the 17°i day of December, 2012"'1111111", 4 G o N " Margar Regina Wh let Clerk to he Board County of Harnett, North Carolina PPAB 2024700x4