HomeMy WebLinkAboutResolution No. 2022-14, Draft 1COUNTY COUNCIL
COUNTY OF KAUA'I
1',esolution No. 2022-14, Draft 1
RESOLUTION APPROVING THE ISSUANCE OF UP
TO $40,000,000 AGGREGATE PRINCIPAL AMOUNT OF SPECIAL TAX
REVENUE BONDS OF THE COUNTY OF KAUA'! FOR THE COUNTY'S
COMMUNITY FACILITIES DISTRICT NO. 2008-1
(KUKUI'ULA DEVELOPMENT PROJECT);
AUTHORIZING THE APPLICATION OF THE PROCEEDS OF THE BONDS,
TOGETHER WITH CERTAIN OTHER AVAILABLE FUNDS, TO REFUND
CERTAIN SPECIAL TAX REVENUE BONDS PREVIOUSLY ISSUED FOR
THE DISTRICT AND TO FUND THE COSTS OF CERTAIN FACILITIES
RELATING TO SUCH DISTRICT; APPROVING THE FORMS OF THE
SECOND SUPPLEMENTAL TRUST INDENTURE, PRELIMINARY
OFFICIAL STATEMENT, BOND PURCHASE AGREEMENT AND
CONTINUING DISCLOSURE AGREEMENTS RELATING TO THE BONDS;
AND AUTHORIZING THE TAKING OF FURTHER ACTIONS RELATING
TO THE BONDS
WHEREAS, pursuant to Ordinance No. 872 (the "Ordinance of Formation"), as
adopted by the Council of the County of Kaua'i (the "County") on September 24, 2008
and approved by the Mayor of the County on September 26, 2008, the County has
established a community facilities district, designated as "Community Facilities
District No. 2008-1 (Kukui'ula Development Project)" (the "District"), and authorized
the levy of a special tax (the "Special Tax") on properties within the District in
accordance with Chapter 26, Kaua'i County Code 1987, as amended ("Chapter 26"), and
the Rate and Method of Apportionment of Special Tax (the "RMA'') approved for the
District pursuant to the Ordinance of Formation; and
WHEREAS, pursuant to Ordinance No. 875 (the "Bond Ordinance"), as
adopted by the Council of the County on November 6, 2008 and approved by the
Mayor of the County on November 12, 2008, the County has authorized the issuance
of one or more series of special tax revenue bonds (the "Bonds") in an aggregate
principal amount not to exceed $120,000,000 (excluding Bonds issued to refund other
Bonds previously issued) to finance or refinance all or a portion of the costs (including
"Incidental Expenses" as defined in the Ordinance of Formation) of certain
infrastructure facilities related to the District (the "Facilities"), subject with respect
to each series of Bonds issued under the Bond Ordinance to the adoption by the
County Council of a resolution (each, a "Series Resolution") further authorizing the
Bonds of such series, authorizing the application of the proceeds thereof and
approving, among other things, the forms of the principal documents pursuant to
which such Bonds are marketed, sold and issued; and
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WHEREAS, pursuant to the Bond Ordinance and the applicable Series
Resolutions, the County has heretofore issued two series of Bonds, namely (i) the
County's "Community Facilities District No. 2008-1 (Kukui'ula Development Project)
Special Tax Revenue Bonds, Series 2012", in the aggregate principal amount of
$11,875,000 (the "2012 Bonds"), and (ii) the County's "Community Facilities District
No. 2008-1 (Kukui'ula Development Project) Special Tax Revenue Bonds, Series
2019", in the aggregate principal amount of $20,320,000 (the "2019 Bonds"); and
WHEREAS, the 2012 Bonds and the 2019 Bonds were issued under, and are
equally and ratably secured by, the Trust Indenture dated as of April 15, 2012, as
heretofore amended and supplemented (the "Existing Bond Indenture"), between the
County and The Bank of New York Mellon Trust Company, N.A., as trustee (the "Bond
Trustee"), and, as authorized by the applicable Series Resolutions, the net proceeds of
Bonds were used to fund the certain costs of the Facilities pursuant to the Acquisition
and Funding Agreement dated as of July 1, 2008, as heretofore amended (the
"Acquisition Agreement") between the County and Kukui'ula Development Company
(Hawai'i), LLC (the "Prior Developer"); and
WHEREAS, the Prior Developer has conveyed its interests in the Facilities and
properties within the District to BBCP Kukui'ula Development, LLC, a Colorado
limited liability company (the "Successor Developer"), and pursuant to Section 10.07
of the Acquisition Agreement, the Prior Developer has assigned the Acquisition
Agreement to the Successor Developer, and the Successor Developer has agreed to
assume the Prior Developer's obligations thereunder with respect to the Facilities;
and
WHEREAS, at the request of the Successor Developer, the County proposes to
issue one or more additional series of Bonds, in an aggregate principal amount not to
exceed $40,000,000, designated as its "County of Kaua'i Community Facilities
District No. 2008-1 (Kukui'ula Development Project) Special Tax Revenue Bonds,
Series 2022" (subject to variation to distinguish between separate series, if issued in
more than one series) (the "2022 Bonds") for the purposes of (i) refunding, by call for
optional redemption, all or a portion of the outstanding 2012 Bonds, and (ii) funding
the costs of additional Facilities; and
WHEREAS, in connection with the proposed issuance of the 2022 Bonds, there
have been presented at this meeting forms of (i) the Second Supplemental Trust
Indenture (the "Supplemental Indenture") amending and supplementing the Existing
Bond Indenture (such Existing Bond Indenture, as so amended and supplemented,
being herein referred to as the "Bond Indenture") with respect to the issuance of the
2022 Bonds, (b) the Preliminary Official Statement (the "Preliminary Official
Statement") to be disseminated in connection with the marketing of the 2022 Bonds,
(c) the Bond Purchase Agreement (the "Bond Purchase Agreement") pursuant to
which the 2022 Bonds will be sold, and (d) the respective Continuing Disclosure
Agreements of the County and the Developer (each, a "Disclosure Agreement")
relating to the requirements of Rule 15c2-12 of the Securities and Exchange
Commission; and
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WHEREAS, this Resolution constitutes a Series Resolution with respect to the
2022 bonds, and the Council of the County of Kaua'i intends hereby to approve the
proposed issuance and sale of the 2022 Bonds and certain matters pertaining to the
2022 Bonds.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF
KAUA'I AS FOLLOWS:
1. The issuance and sale of up to $40,000,000 aggregate principal amount
of 2022 Bonds is hereby approved, such 2022 Bonds to be issued and sold at such time
and upon such terms as shall be determined by the Director of Finance in accordance
with the Bond Ordinance, the Bond Indenture, and the Acquisition Agreement;
provided that (i) the 2022 Bonds shall finally mature not later than May 15, 2051, (ii)
the true interest cost of the 2022 Bonds shall not exceed 5.5% per annum, (iii) the
maximum underwriting discount at which the 2022 Bonds are sold by the County
shall not exceed 2.0%, and (iv) the County and the Bond Trustee shall have received
a certificate from the County's designated Special Tax Administrator confirming
satisfaction of the applicable financial ratio requirements for the issuance of the 2022
Bonds pursuant to Section 2.12 of the Bond Indenture. It is expressly understood
that the Bonds, including the 2022 Bonds, shall be limited obligations of the County
payable solely from, and secured solely by, the Special Tax levied on taxable
properties within the District and certain funds and accounts established under the
Bond Indenture, and that the full faith and credit of the County shall not be pledged
for payment of the principal or redemption price of or interest on such Bonds.
2. The net sale proceeds of the 2022 Bonds (i.e., the sale proceeds received
for the 2022 Bonds under the Bond Purchase Agreement, less amounts required to
fund costs of issuance, capitalized interest (if applicable) and the required balance in
the Reserve Account established under the Bond Indenture) shall be applied as
follows:
(a) A portion of such net sale proceeds, to be deposited with the Bond
Trustee, is hereby authorized to be used, together with other available funds
under the Bond Indenture, to refund all or a portion of the outstanding 2012
Bonds by call for optional redemption on or after May 15, 2022. Such
redemption of the 2012 Bonds, at a redemption price equal to the principal
amount thereof, plus accrued interest to the redemption date, is hereby
authorized and approved.
(b) The remaining balance of such net sale proceeds, to be deposited
with the Bond Trustee, is hereby authorized to be applied toward the costs
(including Incidental Expenses) of the Facilities in accordance with terms and
conditions set forth in the Acquisition Agreement; provided that, pursuant to
the Acquisition Agreement, an amount equal to 15% of such deposit shall be
used, together with Special Tax collections available for such purpose under
the Acquisition Agreement, to fund the costs of the Facilities designated by the
County and identified in Exhibit A hereto.
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3. The Council hereby approves the forms of the Supplemental Indenture,
the Preliminary Official Statement, the Bond Purchase Agreement and the
Disclosure Agreements as presented at this meeting. The Mayor and Director of
Finance (or either of them, as appropriate) are hereby authorized to execute and
deliver the Supplemental Indenture, the Bond Purchase Agreement, and the
County's Disclosure Agreement, to approve the final form and execution of the
Developer's Disclosure Agreement and to authorize the dissemination of the
Preliminary Official Statement, all in substantially the forms presented at this
meeting, with such modifications as such official or officials may approve. Upon sale
of the 2022 Bonds pursuant to the Bond Purchase Agreement, the Director of Finance
is further authorized to execute and deliver a final Official Statement with respect to
the 2022 Bonds in substantially the same form as the Preliminary Official Statement,
with such modifications as such official may approve.
4. The Mayor, the Director of Finance, and other appropriate officials of
the County are hereby authorized to take or to direct or authorize the taking of such
other actions as may be necessary or appropriate in connection with the issuance and
sale of the 2022 Bonds and the performance of the County's covenants and
responsibilities with respect to the 2022 Bonds and the District, including without
limitation the performance of administrative services contemplated by the Bond
Indenture and the Ordinance of Formation and the retention of staff or consultants
to perform such services, all in accordance with the Ordinance of Formation, the Bond
Ordinance, the Acquisition Agreement, the Bond Indenture and this Resolution.
5. This Resolution shall take effect immediately upon its adoption by the
Council. All prior resolutions or portions thereof inconsistent herewith are hereby
repealed.
Introduced by: Isl LUKE A. EVSLIN
(By Request)
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Certificate c9f aboption
We berebp certifp tbat l\.esolution No. 2022-14, Draft 1
was abopteb bp tbe Q.council of tbe <!Countp of Jltaua'i, ~tate of
j!}awai'i, Jlibu'e, Jltaua'i, Ti}awai'i, on March 23, 2022
Q1h,rk
llElateb March 23, 2022
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EXHIBIT A
Designated County Projects
In connection with the issuance of the 2019 Bonds, the Council authorized the
use of available sale proceeds of the 2019 Bonds, together with available Special Tax
collections to fund the costs of the projects identified below. Such authorization
remains in effect. In addition, the Council hereby authorizes the use of available sale
proceeds of the 2022 Bonds to fund the costs of such projects. The projects authorized
by the Council for funding from available sale proceeds of the 2019 Bonds and 2022
Bonds and available Special Tax collections are:
I. Implementation of transportation improvements in Koloa and Po'ipu as
identified in Figure 4-4, 'Multimodal Network,' in the South Kaua'i Community Plan,
including design and construction of the following:
• Sidewalk on Lopaka Paipa Boulevard between Ala Kalanikaumaka and
Po'ipu Road;
• Traffic calming on Lopaka Paipa Boulevard between Ala
Kalanikaumaka and Po'ipu Road;
• Shared use path along an existing cane haul road between the Koa'e
housing project at Po'ipu Road and Ala Kinoiki;
• Safe routes to school improvements on W aikomo Road;
• Sidewalk or shared use path on Koloa Road between Ala
Kalanikaumaka and Po'ipu Road;
• Pedestrian and/or bicycle facilities on Ho'onani Road;
• Pedestrian and/or bicycle facilities on Kapili Road;
• Pedestrian and/or bicycle facilities on Ho'owili Road;
• Pedestrian and/or bicycle facilities on Ho'one Road along the frontage of
Po'ipu Beach Park;
• Sidewalks to fill gaps on Ho'one Road and Pe'e Road from Pane Road to
the end of County ownership;
• Sidewalks to fill gaps on Lawa'i Road between Kukui'ula Harbor and
Ho'ona Road;
• Sidewalk or shared use path on Ainako Street from Po'ipu Road to
Keoniloa Bay parking area (Shipwrecks Beach);
• Pedestrian crossings for the above improvements, as needed;
• Rapa Trail Improvements from Rapa Road to Po'ipu Road; and
• Intersection improvements on Koloa Road at its intersections with
Po'ipu Road and Maluhia Road.
II. Pa'anau Village Phase I & II Energy Self-Sufficiency Upgrades.
The Net Construction Proceeds of the 2022 Bonds and Special Tax collections
available for such purpose under the Acquisition Agreement are authorized to be used
to pay all or a portion of the capital costs incurred by the County and payable with
respect to the foregoing projects in accordance with the Acquisition Agreement,
including without limitation costs incurred for the construction, rehabilitation,
renovation of the project sites, associated planning and design costs and costs for the
acquisition and installation of fixtures, equipment and other capital improvements
included in the projects.
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