HomeMy WebLinkAbout20033017.tiff ORDINANCE 209-B
082 AN EMERGENCY ORDINANCE WITH RESPECT TO NCMC, INC.; APPROVING THE
AMENDMENT TO AND CONTINUED LEASING OF CERTAIN HOSPITAL FACILITIES BY THE
COUNTY TO THE COLORADO HEALTH FACILITIES AUTHORITY; APPROVING THE
AMENDMENT TO AND CONTINUED LEASING OF CERTAIN 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 SEVENTH SUPPLEMENTAL LEASE AND THE
ISSUANCE BY THE COLORADO HEALTH FACILITIES AUTHORITY OF ITS HOSPITAL
REVENUE BONDS (NCMC, INC. PROJECT) SERIES 2003, 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 Weld County, Colorado, pursuant to
Colorado statutes and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado (the "County"); 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 West, N.A., as successor
to 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 between the County and the Authority
with the consent of the Trustee, the Hospital and the Corporation, and a Second Supplemental
Ground Lease, dated as of November 1, 1999 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 (the "Series 1985 Bonds"), its Variable Rate Demand
Hospital Bonds(North Colorado Medical Center)Series 1990(the"Series 1990 Bonds"),its Hospital
Revenue Bonds (North Colorado Medical Center) Series 1993 (the"Series 1993 Bonds") and its
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Hospital Improvement Revenue Bonds(NCMC, Inc. Project)Series 1999(the"Series 1999 Bonds,"
and together with the Series 1985 Bonds, the Series 1990 Bonds and the Series 1993 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 and a Sixth Supplemental
Indenture dated as of January 1,2001,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, between the Authority and the Hospital and
accepted and approved by the County, a Second Supplemental Lease, dated as of November 1,
1990 between the Authority and the Hospital and accepted and approved by the County, a Third
Supplemental Lease, dated as of January 15, 1993, between the Authority and the Hospital and
accepted and approved by the County, a Fourth Supplemental Lease, dated as of December 1,
1994, between the Authority and the Hospital and accepted and approved by the County, a Fifth
Supplemental Lease, dated as of November 1, 1999, between the Authority and the Hospital and
accepted and approved by the County, and a Sixth Supplemental Lease, dated as of January 1,
2001,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,and the Third Amendment to Third Amended
and Restated Operating Sublease,dated as of January 1,2001,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 2003A (the "Series 2003A Bonds" and its Hospital Revenue Bonds (NCMC, Inc.
Project)Series 2003B (the"Series 2003B Bonds"and,together with the Series 2003A Bonds, the
"Series 2003 Bonds") to finance the hereinafter defined Project; and
WHEREAS,the County and the Authority desire,upon receipt of the consent of the Hospital,
the Corporation and the Trustee, to amend and supplement the Original Ground Lease to extend
the term of the Ground Lease by a Third Supplemental Ground Lease (the "Third Supplemental
Ground Lease"); and
WHEREAS,the Corporation has guaranteed the payment of the principal of,premium,if any,
and interest on the Prior Bonds,the Series 2003 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, and the Guaranty Agreement
Amendment to be entered into, each between the Corporation and the Trustee; and
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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 GuarantyAgreement
and will guarantee payment of the principal of and interest on the Series 2003 Bonds pursuant to
the terms and conditions of the 2003 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 2003 Bonds in order to refund a portion of the Series 1993 Bonds(the"Refunded 1993
Bonds"), to renovate and replace certain portions of the Hospital Facilities, to fund or reimburse
certain capital expenditures for the Hospital Facilities,and to pay certain costs associated with the
issuance of the Series 2003 Bonds (collectively, the "Project"); and
WHEREAS,in connection with the issuance of the Series 2003 Bonds,the Authority and the
Trustee shall be amending and supplementing the Original Indenture bya Seventh Supplemental
Trust Indenture (the "Seventh Supplemental Indenture"), the Authority and the Hospital, with the
approval of the County, shall be amending and supplementing the Original Lease by a Seventh
Supplemental Lease (the"Seventh Supplemental Lease"),the Hospital and the Corporation shall
be amending and supplementing the Original Sublease by a Fourth Amendment to Third Amended
and Restated Operating Sublease(the"Amendment to Sublease"),and the County and the Authority
shall be amending the Original Ground Lease by the Third Supplemental Ground Lease; and
WHEREAS, Citigroup Global Markets Inc. (the "Underwriter") is expected to agree to
purchase the Series 2003 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")in connection with the
refunding of the Refunded 1993 Bonds; and
WHEREAS,the County desires to approve the incurrence of revenue debt by the Hospital
through the Seventh Supplemental Lease and the issuance by the Authority of the Series 2003
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 Seventh Supplemental Indenture;
(b) the form of the Seventh Supplemental Lease;
(c) the form of the Amendment to Sublease;
(d) the form of the Third Supplemental Ground Lease; and
(e) 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 2003 Bonds when interest rates and
credit enhancement terms are most favorable and in the time necessary to allow timely
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completion of the various elements of the Project, including the refunding of the Refunded
1993 Bonds.
Section 1.Seventh 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 Seventh 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 Seventh Supplemental Lease now before this
meeting, which rents are payable as provided in the Seventh Supplemental Lease for the
use of such Hospital Facilities, and additions thereto, and such Seventh 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 Seventh Supplemental Lease now
before this meeting;and the consent contained in the Seventh 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 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 Seventh Supplemental Lease now before
this meeting.
Section 2.Sublease of Hospital Facilities.The Board does hereby approve and authorize the
Amendment to 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 and the Amendment to Sublease now before this meeting, which rents are
payable as provided in the Amendment to Sublease for the use of such Hospital Facilities,
and additions thereto, and such Amendment to Sublease 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 and this Board's approval of any such
changes or revisions therein from the form of the Amendment to Sublease now before this
meeting.
Section 3.Amendment to Ground Lease.The Board does hereby approve and authorize the
Third Supplemental Ground Lease in substantially the form thereof now before this meeting
and hereby approved; and the Third Supplemental Ground Lease 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 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 Third Supplemental Ground Lease now before this
meeting.
Section 4. Enterprise. The Board has treated, and continues to treat, the Hospital as an
"enterprise" for purposes of Section 20 of Article X of the Colorado Constitution.
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Section 5.Other Matters.The Board hereby approves the incurrence of revenue debt by the
Hospital as further represented by the issuance of the Series 2003 Bonds,and approves the
Hospital entering into the Escrow Agreement, the Bond Purchase Agreement, and a tax
regulatory agreement.
Section 6. 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 7.No Liability of County or Board. It is further understood and agreed that the Series
2003 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 2003 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 Third Supplemental Ground Lease,the Original Indenture,the Seventh
Supplemental Indenture,the Original Lease,the Seventh Supplemental Lease,the Original
Sublease, the Amendment to Sublease, the Escrow Agreement, the Tax Regulatory
Agreement or the Bond Purchase Agreement.
Section 8. 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 Ill, 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 2003, 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 on the
Series 2003 Bonds and timely completion of the Project and refunding of the Refunded 1993 Bonds
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.
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The above and foregoing Ordinance Number 209-B was, on motion duly made and
seconded, adopted by the following vote on the 29th, day of October, A. D., 2003.
BOARD OF COUNTY COMMISSIONERS
,.�� D COUNTY, COLORADO
ATTEST: Luta I �����ti. ILa
id E. Long, C air
Weld County Clerk tot N.:`,- It2
Fis Robert D asden, Pro-Tem
Deputy Clerk to the Bo -� �� M. J. Geile
pounty
D AS
A •
P V
William H. Jerke
A rney EXCUSED
Glenn Vaad
Read and Approved: October 29, 2003
Publication: November 5, in the South Weld Sun
(Due to clerical error, this notice was not published until 02/26/04.)
Effective: November 10, 2003
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