HomeMy WebLinkAbout20082644.tiff 146 ORDINANCE
ORDINANCE NO. 241
IN THE MATTER OF AN EMERGENCY ORDINANCE WITH RESPECT TO NCMC, INC.;
APPROVING THE CONTINUED LEASING OF CERTAIN HOSPITAL FACILITIES BY THE
COUNTY TO THE COLORADO HEALTH FACILITIES AUTHORITY; APPROVING THE
CONTINUED LEASING OF SUCH HOSPITAL FACILITIES BY THE COLORADO HEALTH
FACILITIES AUTHORITY TO THE BOARD OF TRUSTEES FOR NORTH COLORADO MEDICAL
CENTER; APPROVING THE INCURRENCE OF REVENUE DEBT BY THE HOSPITAL
THROUGH THE NINTH SUPPLEMENTAL LEASE AND THE ISSUANCE BY THE COLORADO
HEALTH FACILITIES AUTHORITY OF ITS HOSPITAL REVENUE BONDS (NCMC, INC.
PROJECT)SERIES 2008AAND SERIES 2008B,AND AN OFFICIAL STATEMENT PERTAINING
TO SAID BONDS; AND ALSO MAKING OTHER PROVISIONS IN CONNECTION WITH THE
FOREGOING
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF
WELD, STATE OF COLORADO:
WHEREAS,the Board of County Commissioners of the County of Weld, State of Colorado,
pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority
of administering the affairs of Weld County, Colorado, and
WHEREAS, the County is a Home Rule County, organized and existing under the
Constitution and the laws of the State of Colorado, and
WHEREAS, under the provisions of Title 25, Article 3, Part 3, of the Colorado Revised
Statutes, entitled "County Hospitals, Establishment," the Board of County Commissioners (the
"Board") of the County established a body corporate under the name of "Board of Trustees for
Weld County General Hospital," now known as the Board of Trustees for North Colorado Medical
Center (the "Hospital"), which operates or causes to be operated the North Colorado Medical
Center (the "Hospital Facilities") located on land owned by the County, and
WHEREAS,the County, pursuant to Emergency Ordinance No. 75,adopted and approved
by the Board on December 18, 1985, and Emergency Ordinance No. 160, adopted and approved
by the Board on October 31, 1990 (collectively, the"Original Ordinances"), has previously leased
certain real property(the"Land")containing the Hospital Facilities to the Colorado Health Facilities
Authority (the "Authority") pursuant to a Ground Lease, dated as of December 1, 1985, between
the County and the Authority, as amended and supplemented by an Agreement, dated April 27,
1988 (the "Agreement"), among the Authority, the County, Wells Fargo Bank, N.A., as successor
to Wells Fargo Bank West, N.A., Norwest Bank Colorado, National Association, Norwest Bank
Denver, N.A., United Bank of Denver National Association and IntraWest Bank of Greeley, N.A.
(the"Trustee"), the Hospital, and NCMC, Inc. (formerly known as North Colorado Medical Center,
Inc.)(the "Corporation"), and a First Supplemental Ground Lease, dated as of November 1, 1990,
a Second Supplemental Ground Lease, dated as of November 1, 1999, and a Third Supplemental
Ground Lease, dated as of November 1, 2003, all between the County and the Authority with the
consent of the Trustee, the Hospital, and the Corporation (collectively, the "Original Ground
Lease"), in connection with the issuance, by the Authority, of its Hospital Refunding Revenue
Bonds(North Colorado Medical Center)Series 1985,which are no longer outstanding, its Variable
Rate Demand Hospital Bonds (North Colorado Medical Center) Series 1990 (the "Series 1990
11111111111111111111111111111111111111 III 11111 IIII VIII 2008-2644
3584146 10/14/2008 03:52P Weld County, CO ORD241
1 of 6 R 0.00 D 0.00 Steve Moreno Clerk & Recorder //_0q ?
RE: ORDINANCE NO. 241
PAGE 2
Bonds"), its Hospital Revenue Bonds (North Colorado Medical Center) Series 1993 (the "Series
1993 Bonds"), its Hospital Improvement Revenue Bonds (NCMC, Inc. Project) Series 1999 (the
"Series 1999 Bonds"), its Hospital Revenue Bonds (NCMC Inc. Project) Series 2003 (the "Series
2003 Bonds") and its Hospital Revenue Refunding Bonds (NCMC, Inc. Project) Series 2005 (the
"Series 2005 Bonds,"and together with the Series 1990 Bonds, the Series 1993 Bonds, the Series
1999 Bonds, and the Series 2003 Bonds, the "Prior Bonds") pursuant to a Trust Indenture, dated
as of December 1, 1985, as amended and supplemented by a First Supplemental Trust Indenture,
dated as of November 1, 1990, a Second Supplemental Trust Indenture, dated as of November 1,
1990,a Third Supplemental Trust Indenture,dated as of January 15, 1993, a Fourth Supplemental
Trust Indenture, dated as of December 1, 1994, a Fifth Supplemental Indenture dated as of
November 1, 1999, a Sixth Supplemental Indenture dated as of January 1, 2001, a Seventh
Supplemental Trust Indenture dated as of November 1, 2003, and an Eighth Supplemental Trust
Indenture, dated as of June 1, 2005, each between the Authority and the Trustee(collectively, the
"Original Indenture"), and
WHEREAS, the Authority has leased the Land and the Hospital Facilities to the Hospital
pursuant to a Lease, dated as of December 1, 1985, between the Authority and the Hospital and
accepted and approved by the County, as amended and supplemented by the Agreement, a First
Supplemental Lease, dated as of November 1, 1990, a Second Supplemental Lease, dated as of
November 1, 1990, a Third Supplemental Lease, dated as of January 15, 1993, a Fourth
Supplemental Lease, dated as of December 1, 1994, a Fifth Supplemental Lease, dated as of
November 1, 1999, a Sixth Supplemental Lease, dated as of January 1, 2001, a Seventh
Supplemental Lease, dated as of November 1, 2003, and an Eighth Supplemental Lease, dated
as of June 1, 2005, all between the Authority and the Hospital and accepted and approved by the
County(collectively, the "Original Lease"); and
WHEREAS, the County has previously, pursuant to the Original Ordinances, approved the
issuance of various of the Prior Bonds and the documentation related thereto, and
WHEREAS, the Hospital has sublet the Hospital Facilities to the Corporation pursuant to
a Third Amended and Restated Operating Sublease, dated as of January 15, 1993, as previously
amended and as amended by the First Amendment to Third Amended and Restated Operating
Sublease,dated as of December 1, 1994,the Second Amendment to Third Amended and Restated
Operating Sublease, dated as of November 1, 1999,the Third Amendment to Third Amended and
Restated Operating Sublease, dated as of January 1, 2001, the Fourth Amendment to Third
Amended and Restated Operating Sublease, dated as of November 1, 2003, and the Fifth
Amendment to Third Amended and Restated Operating Sublease, dated as of June 1, 2005, each
between the Hospital and the Corporation (the "Original Sublease"), and
WHEREAS, the Authority has agreed to issue its Hospital Revenue Bonds (NCMC, Inc.
Project) Series 2008A and Series 2008B (collectively, the "Series 2008 Bonds") to (i) refund the
Series 1993 Bonds, (ii)finance the cost of the acquisition, construction, renovation, improvement
and equipping of certain real property and hospital and healthcare related facilities of the
Corporation (the"Series 2008 Project"), and (iii) pay certain costs associated with the issuance of
the Series 2008 Bonds; and
111111111111111111111111111111111111111 III 11111 IIII IIII 2008-2644
3584146 10/14/2008 03:52P Weld County, CO ORD241
26
2 of 6 R 0.00 D 0.00 Steve Moreno Clerk & Recorder
RE: ORDINANCE NO. 241
PAGE 3
WHEREAS, the Corporation has guaranteed the payment of the principal of, premium, if
any, and interest on the Prior Bonds, the Series 2008 Bonds, and any Additional Bonds pursuant
to the terms and conditions of a Guaranty Agreement, dated as of January 15, 1993, as amended
by the Guaranty Agreement Amendment dated as of October 15, 1999, the Guaranty Agreement
Second Amendment dated as of November 1, 2003, the Guaranty Agreement Third Amendment,
dated as of June 1, 2005, and the Guaranty Agreement Fourth Amendment, to be entered into,
each between the Corporation and the Trustee, and
WHEREAS, Banner has guaranteed the payment of the principal of, premium, if any, and
interest on the Prior Bonds pursuant to the terms and conditions of the Limited Guaranty
Agreement,the 2003 Limited Guaranty Agreement and the 2005 Limited Guaranty Agreement and
will guarantee payment of the principal of and interest on the Series 2008 Bonds pursuant to the
terms and conditions of the 2008 Limited Guaranty Agreement to be entered into, each between
Banner and the Trustee, and
WHEREAS, the Hospital desires that the Authority provide the Hospital with the proceeds
of the Series 2008 Bonds in order to refund the Series 1993 Bonds, finance the Series 2008
Project, and pay certain costs associated with the issuance of the Series 2008 Bonds, and
WHEREAS, in connection with the issuance of the Series 2008 Bonds, the Authority and
the Trustee shall be amending and supplementing the Original Indenture by a Tenth Supplemental
Trust Indenture(the"Tenth Supplemental Indenture"), and the Authority and the Hospital,with the
approval of the County, shall be amending and supplementing the Original Lease by a Ninth
Supplemental Lease (the "Ninth Supplemental Lease"), and
WHEREAS, Wachovia Bank, National Association, (the "Underwriter") or its successors,
is expected to agree to purchase the Series 2008 Bonds from the Authority, pursuant to a Bond
Purchase Agreement(the"Bond Purchase Agreement"),between the Authority and the Underwriter
and accepted and approved by the Hospital and the Corporation, and
WHEREAS,the Authority, the Trustee, as trustee and escrow agent, the Hospital, and the
Corporation will enter into an Escrow Agreement (the "Escrow Agreement (1993)") in connection
with the refunding of the Series 1993 Bonds, and
WHEREAS, the County desires to approve the incurrence of revenue debt by the Hospital
through the Ninth Supplemental Lease and the issuance by the Authority of the Series 2008 Bonds
and the execution of the documentation in connection therewith, and
WHEREAS, there has been presented to the Board at its meetings the following
documents:
(a) the form of the Tenth Supplemental Indenture;
(b) the form of the Ninth Supplemental Lease; and
1 IUD 11111111111 11111 liI1 111111 11111 III 11111 IIII I'll
3584146 10/14/2008 03:52P Weld County, CO 2008-2644
3 of 6 R 0.00 D 0.00 Steve Moreno Clerk& Recorder ORD241
RE: ORDINANCE NO. 241
PAGE 4
(c) the form of resolution of the Hospital notifying the County of its interest to issue
revenue debt.
NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Weld
County, Colorado as follows:
This is an emergency ordinance which shall be effective on adoption as provided in
Article III, Section 3-14, of the County's Home Rule Charter. Public Notice of this Ordinance shall
be given forthwith. Without such procedure, the Ordinance could not be considered and finally
adopted so as to accommodate a sale of the Series 2008 Bonds when interest rates and credit
enhancement and liquidity terms are most favorable and in the time necessary to allow timely
refunding of the Series 1993 Bonds and the financing of the Series 2008 Project.
Section 1. Ninth Supplemental Lease. The Board does hereby acknowledge notice of
the Hospital's intention to incur revenue debt, and does hereby approve and authorize the
incurrence of revenue debt by the Hospital as represented by the Ninth Supplemental Lease
between the Authority, as lessor, and the Hospital, as lessee,whereby the Hospital Facilities, and
any additions thereto, will be leased by the Authority to the Hospital and with rentals payable
thereunder as provided in the Ninth Supplemental Lease now before this meeting, which rents are
payable as provided in the Ninth Supplemental Lease for the use of such Hospital Facilities, and
additions thereto, and such Ninth Supplemental Lease to be in substantially the form thereof now
before this meeting and hereby approved or with such changes therein as shall be approved by the
officers of the Hospital executing the same, with such execution to constitute conclusive evidence
of their approval of any such changes or revisions therein from the form of the Ninth Supplemental
Lease now before this meeting;and the consent contained in the Ninth Supplemental Lease(which
represents the notice of no objection to the incurrence of revenue debt)shall be executed on behalf
of the County by the Chair or Chair Pro-Tem of the Board, sealed with the seal of the County, and
attested to by the Clerk to the Board in substantially the form thereof now before this meeting, and
hereby approved, or with such changes therein as shall be approved by the Chair or the Chair
Pro-Tem executing the same, with such execution to constitute conclusive evidence of their
approval and this Board's approval of any such changes or revisions therein from the form of the
Ninth Supplemental Lease now before this meeting.
Section 2. Sublease of Hospital Facilities. The Board does hereby approve and
authorize the amendment of the Original Sublease between the Hospital, as sublessor, and the
Corporation, as sublessee, whereby the Hospital Facilities, and the additions thereto, are sublet
by the Hospital to the Corporation and with rentals payable thereunder as provided in the Original
Sublease for the use of such Hospital Facilities, and additions thereto, if such amendment is
deemed necessary by the Hospital and the Corporation to satisfy the requirements of the credit
provider for the Series 2008 Bonds. Such amendment, if any, is hereby approved with such terms
and provisions as shall be approved by the officers of the Hospital executing the same and the
County's Attorney's Office, with such execution to constitute conclusive evidence of their approval
and this Board's approval of any such terms and provisions.
Section 3. Enterprise. The Board has treated, and continues to treat, the Hospital as an
"enterprise" for the purposes of Section 20 of Article X of the Colorado Constitution.
11111111111111111111111 III! 111111111111 III 11111 IIII IIII 2008-2644
3584146 10/14/2008 03:52P Weld County, CO ORD241
4 of 6 R 0.00 D 0.00 Steve Moreno Clerk& Recorder
RE: ORDINANCE NO. 241
PAGE 5
Section 4. Other Matters. The Board hereby approves the incurrence of revenue debt
by the Hospital, as further represented by the issuance of the Series 2008 Bonds, and approves
the Hospital entering into the Escrow Agreement(1993),the Bond Purchase Agreement,and a Tax
Certificate as to Arbitrage and the Provisions of Sections 103 and 141-150 of the Internal Revenue
Code of 1986.
Section 5. Further Action. The Board further authorizes the officers of the Board or any
County Commissioner to take all action necessary or reasonably required to carry out the
transactions contemplated by this Ordinance,including without limitation,the execution and delivery
of closing documents necessary in connection with such transactions.
Section 6. No Liability of County or Board. It is further understood and agreed that the
Series 2008 Bonds to be issued by the Authority do not constitute a debt or liability of this County
and that the County is not obligated to make lease payments to the Authority, and neither taxpayer
funds, nor any funds of the County, will be used to pay the principal of, interest, or redemption
premium on any of the Authority's Series 2008 Bonds. No portion of this Ordinance shall be
deemed to constitute a waiver of any immunities the Board or their officers or employees may
possess, nor shall any portion of this Ordinance be deemed to have created a duty of care with
respect to any persons or entities not a party to the Original Ground Lease,the Original Indenture,
the Tenth Supplemental Indenture,the Original Lease,the Ninth Supplemental Lease,the Original
Sublease, any amendment to the Original Sublease executed in connection with the Series 2008
Bonds, the Escrow Agreement (1993), the Tax Certificate, or the Bond Purchase Agreement.
Section 7. Public Notice. That public notice of the adoption of this emergency ordinance
shall forthwith be given by the Clerk to the Board after passage.
BE IT FURTHER ORDAINED by the Board of County Commissioners of Weld County,
Colorado, that pursuant to Article III, Section 3-14(c), of the Weld County Home Rule Charter, the
Board of County Commissioners finds, and hereby declares, this Ordinance to be an Emergency
Ordinance as closing on the Colorado Health Facilities Authority Hospital Revenue Bonds(NCMC,
Inc. Project), Series 2008A and Series 20088, is scheduled to take place as soon as reasonably
possible and its immediate passage is necessary to obtain a favorable interest rate and credit
enhancement and liquidity terms on the Series 2008 Bonds and timely completion of the refunding
of the Series 1993 Bonds and the financing of the Series 2008 Project, and is necessary for the
preservation and protection of the public health and welfare.
BE IT FURTHER ORDAINED by the Board if any section,subsection,paragraph,sentence,
clause, or phrase of this Ordinance is for any reason held or decided to be unconstitutional, such
decision shall not affect the validity of the remaining portions hereof. The Board of County
Commissioners hereby declares that it would have enacted this Ordinance in each and every
section, subsection, paragraph, sentence, clause, and phrase thereof irrespective of the fact that
any one or more sections, subsections, paragraphs, sentences, clauses, or phrases might be
declared to be unconstitutional or invalid.
1 111111 11111111111 11111 1111 111111111111 III 11111 /III IIII
3584146 10/14/2008 03:52P Weld County, CO 2008-2644
5 of 6 R 0.00 D 0.00 Steve Moreno Clerk& Recorder ORD241
RE: ORDINANCE NO. 241
PAGE 6
The above and foregoing Ordinance Number241 was,on motion duly made and seconded,
adopted by the following vote on the 1st day of October, A.D., 2008.
cm
!^-1, OARD OF COUNTY COMMISSIONERS
ELD COUNTY, COLORADO
1.ATTEST: 't,L Jk s _,C'k .�
'ham H. Jerke, Chair
Weld County Clerk to the Bo
®�kl-\\ XCUSED
Robert D den, Pro-Tem
BY: ti
De ty Cle to the Boar �/t
W illiGarci
AP V AST •
David E. Long
u t orney
Douglas ademacher
Read and Approved: October 1, 2008
Publication: October 10, 2008, in the Greeley Tribune
Effective: October 15, 2008
111111111111 NEW NUM 111111 MINIM 1111
3584146 10/14/2008 03:52P Weld County, CO
6 of 6 R 0.00 D 0.00 Steve Moreno Clerk& Recorder
2008-2644
ORD241
Hello