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HomeMy WebLinkAbout1084 - AUTHORIZING the execution of an Energy Performance Contract to reduce energy consumption RESOLUTION NO. 1084 A RESOLUTION OF THE CITY OF BOULDER, COLORADO AUTHORIZING THE EXECUTION AND DELIVERY OF AN ENERGY PERFORMANCE CONTRACT EXPECTED TO REDUCE ENERGY CONSUMPTION AND RESULT IN COST SAVINGS TO THE CITY; AUTHORIZING THE EXECUTION AND DELIVERY OF A LEASE-PURCHASE FINANCING WITH RESPECT TO THE ACQUISITION, PURCHASE, FINANCING AND LEASING OF CERTAIN ENERGY CONSERVATION EQUIPMENT; AUTHORIZING THE EXECUTION AND DELIVERY OF DOCUMENTS REQUIRED IN CONNECTION THEREWITH AND AUTHORIZING OFFICIALS OF THE CITY TO TAKE ALL ACTION NECESSARY TO CARRY OUT THE TRANSACTIONS CONTEMPLATED HEREBY AND PROVIDING FOR RELATED MATTERS WHEREAS, the City of Boulder, Colorado (the "City"), is a municipal corporation duly organized and existing as a home rule city pursuant to Article XX of the Constitution of the State of Colorado (the "Constitution") and the home rule charter of the City (the "Charter"); and WHEREAS, pursuant to the Charter and the Constitution, the City is authorized to enter into contracts and agreements affecting the affairs of the City, and may purchase, receive, hold, lease and enjoy or sell and dispose of real and personal property pursuant to Section 2(b) of the Charter; and WHEREAS, the City Council of the City (the "Council") hereby determines to execute and deliver an Energy Performance Contract (the "EPC") between the City and McKinstry (the "Contractor"), pursuant to which the Contractor is to install, supply, maintain and/or service certain energy efficiency equipment of a specified type or class described in the EPC (collectively, the "Equipment"), for the purpose of achieving utility cost reductions and guaranteed energy savings all as more specifically set forth in the EPC; and WHEREAS, in order to finance (i) the purchase, acquisition and lease of the Equipment and (ii) related costs, the City, as lessee, proposes to enter into that certain Equipment Lease/Purchase Agreement (the "Lease Purchase Agreement") with All American Investment Group, LLC (or one of its affiliates) (the "Lessor") and Bank of America, N.A. (the "Assignee"); and WHEREAS, in order to implement the transactions described above, the City desires (a) to authorize and approve the execution and delivery by the City of, and the performance by the City of its obligations under the EPC, the Lease Purchase Agreement and all ancillary documents and certificates executed in connection therewith (collectively, the "Lease Documents") and (b) to authorize, approve, ratify, make findings and take other actions with respect to the foregoing matters; and WHEREAS, pursuant to the Lease Documents, copies of which have been reviewed by City's staff and made available to Council, the details of the financing are fully set forth, and the financial obligation of the City under the Lease Documents shall constitute currently budgeted 4836-0355-9431.1 expenditures of the City payable from the City's General Fund and any other legally available funds of the City, which expenditures are expected to be offset by the savings realized by the City from the acquisition and installation of the Equipment; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY AS FOLLOWS: Section 1. Approval of Lease Purchase Terms. The Council hereby approves the lease-purchase of the Equipment for the amount not to exceed $6,500,000, with aggregate calendar year annual payments not to exceed $725,000 over annual terms which shall not extend beyond 2026. The total Rental Payments (defined in the Lease Purchase Agreement) shall not exceed $8,600,000. Section 2. Approval of Lease Documents. The Lease Documents, in substantially the form and with substantially the content presented to the City, are in all respects approved, authorized and confirmed, with such changes therein, not inconsistent herewith, as are approved by the persons executing the Lease Documents. Section 3. Execution and Delivery of Lease Documents. The Mayor, the Vice Mayor, the Director of Finance and Record and the City Clerk are hereby authorized and directed to execute the Lease Documents and the signature of the Mayor, the Vice Mayor, the Director of Finance and Record and the City Clerk shall conclusively determine acceptance of the final form and content of the Lease Documents and the valid execution of the Lease Documents by the City. Additionally, the Mayor, the Vice Mayor, the Director of Finance and Record and the City Clerk and other officials and employees of the City are hereby authorized and directed to execute and deliver for and on behalf of the City any other papers and to perform all other acts that they may deem necessary or appropriate in order to implement and carry out the financing authorized and contemplated by this Resolution, including but not limited to a tax compliance certificate and an Internal Revenue Service Form 8038-G, The documents approved pursuant to this Resolution are subject to the final approval as to form by the City's general counsel. Section 4. Designation of the Lease Purchase Agreement as a Qualified Tax Exempt Obligation. The City hereby designates the Lease Purchase Agreement as a qualified tax exempt obligation within the meaning of Section 265(b)(3) of the Code. The City covenants that the aggregate face amount of all tax exempt obligations issued by the City, together with governmental entities which derive their issuing authority from the City or are subject to substantial control by the City, shall not be more than $30,000,000 during calendar year in which the Lease Purchase Agreement is executed, Section 5. No General Obligation or Other Indebtedness. The obligation of the City to make rental payments under the Lease Purchase Agreement is subject to annual appropriation by the Council and constitutes an undertaking of the City to make current expenditures. No provision of this Resolution or the Lease Purchase Agreement shall be construed, individually or collectively with other provisions, as constituting or giving rise to a general obligation or other indebtedness or multiple fiscal year financial obligation of the City within the meaning of any home rule, constitutional or statutory debt limitation nor a mandatory charge or requirement against the City in any ensuing fiscal year beyond the current fiscal year. The City shall have no 4836-0355-9431.1 2 obligation to make any payment except in connection with the payment of the Rental Payments (as defined in the Lease Purchase Agreement) and certain other payments under the Lease Purchase Agreement, which payments shall be subject to termination and nonrenewal by the City in accordance with the provisions of the Lease Purchase Agreement. Section 6. Additional Findings; Expression of Need; Reasonable Rentals. The City hereby declares its current need for the Equipment. The Council hereby determines and declares that the Rental Payments due under the Lease Purchase Agreement, so long as they are within the limits provided in this Resolution, will represent the fair value of the use of the Equipment. The City hereby elects to apply all of the provisions of the Supplemental Public Securities Act, Part 2 of Article 57, Title 11, C.R.S. (the "Supplemental Securities Act"), to the extent applicable and not inconsistent herewith, to the Lease Purchase Agreement. Section 7. Ratification of Prior Actions. All actions heretofore taken (not inconsistent with the provisions of this Resolution) by the Council or by the officers and employees of the City regarding the City's obligations under the Lease Documents, are hereby ratified, approved and confirmed. Section 8. Severability. It is hereby expressly declared that all provisions hereof and their application are intended to be and are severable. In order to implement such intent, if any provision hereof or the application thereof is determined by a court or administrative body to be invalid or unenforceable, in whole or in part, such determination shall not affect, impair or invalidate any other provision hereof or the application of the provision in question to any other situation; and if any provision hereof or the application thereof is determined by a court or administrative body to be valid or enforceable only if its application is limited, its application shall be limited as required to most fully implement its purpose. Section 9. Repealer. All Resolutions, or parts thereof, inconsistent or in conflict herewith are hereby repealed to the extent only of such inconsistency or conflict. Section 10. Effective Date. This Resolution shall take effect and be enforced immediately upon its approval. APPROVED this 19`h day of October, 2010. Mayor ATTEST: City Clerk, on behalf of the Director of Finance and Record 4836-0355-9431 1 3