HomeMy WebLinkAboutResolution 2010 - 08 and Findings of Fact002121
CITY OF
IIEXBURG
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'ケlnstrument# 361507
REXBURG,MADiSON,IDAHO
6‐3‐2010 04:45:37 No.of Pages:2
Recorded fori CiTY OF REttBURCMAR:LYN R.RASMuSSEN I
Ex-Officio Recorder Deput
RESOLUT10N NO。2010…08
BY THE REXBURG CITY COUNCIL:
A RESOLUTION DECLARING THE NEED TO CONSTRUCT ANDACQUIM WASTE WATER TREATMENT FACILITIES;APPROVING THEPROJECT AND AUTHORIZING THE CONSTRUCTION AND ACQUISITION
OF SAID FACILITIES; PRESCRIBING AN INSTALLMENT PURCHASEAND TRUST AGREEⅣIENT AND MLATED DOCUWIENTS AS THE Ⅳ10ST
SUITABLE NIIANNER FOR SECURING CONSTRUCT10N AND FINANCING
OF SAID IⅣIPROVEMENTS;AUTHORIZING THE FILING OF JUDICIALCONFIRNIATION PROCEEDINGS; DIRECTING CITY OFFICIALS TOPROCEED WITH SAID FACILITIES AND FINANCING THEREOF AND
WITH THE FILING OF JUDICIAL CONFIRPIATION PROCEEDINGS;AND
PROVIDING AN EFFECTIVE DATE.
WHEIこ AS,offlcials of the City of Rexburg←hc“City")have deterrnined that it is
ncccssary to cxpand and improvc its wastc water trcatment facilities in order to provide adequate
capacity for mceting current hcalth and safcty requiremcnts;and
WHEMAS,City offlcials have recommendcd that ccrtain waste water trcatment facilitics
for thc City(colleCtiVely,the“Prdect")bC COnStructed and acquircd to meetthe above needs and
rcquiremcnts;and
WHEREAS, City offlcials havc recollrmendcd thtt thc flnancing, acquisition and
construction of said Pr●ect be accOmplishcd by an installmcnt pllrchase and trust agreement and
certain supplements thereto in an aggregate principal amount of up to S10,000,000.00 chc
“Agreemcnt'')with CCrtiicatcs of participation,and relatcd documcnts,and that prior to entering
into thc Agreemcnt and thc other docllments,the City should obtain judicial conirlnation of its
power and authority to entcr into said Agreement under Title 7,Chapter 13,Idaho Code;and
WHEuAS,thc City on Jllne 02,2010,held a hearing conccming the Pracct and the
City's consideration of flling a pctition forjudicial conflHnation as requircd by Section 7-1304,
Idaho Code,as alnended,after flttcen(15)days nOtiCe thereof published in the Rexburg
Standard―Joumal and notice to any individuals requesting it pllrsuant to Sections 7-1304 and 7-
1306,Idaho Codc,as amended,and〔■said hcaring no opposing testimony was received and at
least fourtccn(14)days has passed sincc thc date of said hearing.
uSOLUTION―PAGE l
cITY OF
REXBURG
Am e rica's FanilY ConnunitY
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
REXBURG, MADISON COLTNTY, IDAHO:
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
That construction, acquisition and financing of the Project is necessary in order to
meet the health and safety needs and requirements in the City.
That construction, acquisition and financing of the Project in order to meet said
requirements is hereby directed and authorized subject to any requirements for
competitive bidding.
That the Agreement and related documents are hereby approved and authorized,
subject to any competitive bidding requirements, as the manner and method to
finance the construction of the Project in the amount stated above, subject to the
judicial confirmation of the City's authority to enter into said Agreement, and the
filing of such proceedings under Title 7, Chapter 13, Idaho Code is hereby
authorized.
That the City officials and counsel are hereby directed to proceed with the
construction of the Project as provided herein and to proceed with the filing of the
judicial confirmation proceedings authorized herein.
That this Resolution shall be in full force and effect from and after its passage and
approval.
PASSED by the Rexburg City Council of Rexburg, Madison County, Idaho, this 2od day
ofJune,2010.
ATTEST:
By:
Blair D. Kay City Clerk
uSOLUTION―PAGE 2
STANDARD JOURNAL
Rexburg, Idaho
St. Anthony,Idaho
Ashton, Idaho
AFFIDAVIT OF PUBLICATION
STATE OF IDAHO
Madison and Fremont Counties
I, Jeremy Cooley, being first duly swom, depose and say,
that I am the circulation director of the STANDARD
JOURNAL, a 3 times a week newspaper published 3 times
a week in Madison and Fremont Counties, Idaho; and I do
solemnly swear that the Notice of Filing of Petition for
Judicial Confirmation, a copy of which notice appears
attached hereto, was published in the regular and entire
issue of said newspaper, and not in any supplement issue,
once each week thereof for three successive issues, the first
publication having been made onAugust 26,2010 and the
last publication having been made on September 9, 2014.
Further, that said newspaper is one of general circulation in
said county; that it is a legal newspaper, conforming to
legal specifications under the Idaho Statutes; that it has at
least two hundred bona fide subscribers living within the
cor.rnty of publication; and that it has been continuously and
unintemrptedly published in said county during a period of
seventy-eight consecutive weeks prior to the first
STATE OF IDAIIO
COUNTY OF MIADISON
On this 16 day of September in the year of 2010 before me,
a Notary Public, personally appeared Jeremy Cooley,
known or identified to me to be the person whose name
subscribed to the within instrument, and being by me first
duly sworn, declared that the statement therein are true, and
acknowledged to me that he executed the same.
SIEPttN R ZOLLNGERISB#4329uXBURC CITYAΠ ORNEY
35 North l,EぉtRexb咤 ,ID 8344o .
TELEPHONE:(208)β
`9-3020FAX:(208)359-3p22
A■omey for PeJtioner
IN TⅡE DISTRICT COIIIRT OF THE SEVENTH
JUDICIAL DISTRICT OF THE sTATE OFIDAHO,INAND FOttTHE COUNT,oF DIIADISON
h re(Casc Noi CV 2010 11000703b
…CITY OF REXBLRG,an ldaho minに ゎJ cOrpor■ion,
Pctitionc■ ‐ |
NOTICE OF F■LING OF PETIT10N FOR
JtDICIAL CONFIRMAT10N
NOTICE IS ttFEBY GIVEN that the City of
Rexburg,Madison cOuⅢ,Idah。(the``City''),haS pctitioned,
WI善 潟 警 押 甲 事甲 事
Tle PCtitiOn se,k,9onarml,iOn,fthe validity of thc
power and aithOrlty ofthe City OfRё xburg,Idaho,t6:(a)inCur
an indebtedness in a principal叩ountnottoexccedslo,000,ooo,
for the nnancing Of the cost Of cё rtaln lmprovcments fOr the
量凛
=苛
篤写譜:精 鷺[∬蹴 lL`1lmfず器蠍 霧拙 :品 蹴 猛轟 T憾 器
thc obligations Ofth9 9ity from thewastcwatertrcatmcnt system
revcnucs and othcr lawfully avail■le iids 9falc city .
The,PC,HO●futther Seeks a ledarati。lt,●sICh
II欝 鷺彗暑菫彗露∥墨昇1難驚|嵐服f:拙i迅 吼:辮 :棚 ll.Tlh毛 °'H狙'Any interestcd paJy ュay appcar by writtcn
appearanOe Or answcr t9 t''=ё titib,■1,C With`he clcr、Ofthe
鰍欄聯柵Idah。,83440.
DATED this 23F day ofAugust,2010.
CLERK OF THE DISTRICT COuRT
ByDcputy Clerk l l i
P″blishハ ag“sr2Q Seρ rember 2 9 20イ0Lynzi N,Vilib
Notary public
State ofldaho
esidingat Rexburg, Idaho
My commission expires: February 2,2015.
STEPHEN P ZOLLINGER ISB#4329
REXBURG CITY ATTORNEY
35 North lSt East
Rexbllrg,ID 83440
TELEPHONE:(208)359-3020
FAX:(208)359-3022
Attomcy for Petitioncr
ln re:Case No.CV 2010-0000703
FINDINGS OF FACT AND
CONCLUSIONS OF LAWTHE CITY OF REXBURG,
an ldaho lnunicipal
corporatlon,
Petitioner.
This matter having come on duly and regularly before this Court for hearing on
September 27, 2010, and Petitioner having submitted a verified Petition for Judicial
Confirmation ("Petition"), and a memorandum of law and affrdavits in support of its Petition,
and it appearing that proper notice of the filing of the Petition for Judicial Confirmation has been
given as provided in Title 7, Chapter 13, Idaho Code, and the Court having examined the
allegations of the Petition, the exhibits annexed thereto, the memorandum of law and affidavits
in support thereof, the testimony of citizens relative to the Petition and the exhibits submitted by
citizens relative to the Petition, and the matter having been fully submitted; the Court, being fully
advised in the premises, now makes the following:
鋭P272010
FINDINGS OF FACT AND CONCLUSIONS OF LAW―Page l
FINDI],\rGS OF FAqT
I.
Petitioner, city of Rexburg, Madison county, Idaho (the "Petitioner"), is a political
subdivision within the definition contained in SectionT-1303(6), Idaho Code, and has filed this
action pursuant to Sections 7-1301, et seq., Idaho code (the "Judicial confirmation Law"),
seeking judicial confirmation of the validity of a certain Loan Agreement (the "Loan
Agreement,') and of the issuance of its promissory note or other evidence of indebtedness,
between the petitioner and the State of ldaho, Bond Bank (the "State"), whereby Petitioner seeks
to borrow funds for improvements to Petitioner's waste water treatment system, to cause to be
issued its promissory note or other evidence of indebtedness, and pledge the net revenues of its
waste water teatment system and other lawfully available funds of Petitioner to the payment
thereof.
il.
pursuant to Section 7-1304,Idaho Code, the City Council (the "Council") of Petitioner,
on June znd,20l0, held and conducted a public hearing to consider whether it should adopt a
resolution authorizing the filing of a petition under the Judicial Confirmation Law. A notice of
thepublic hearing, in the form and content described in Section 7-1306(2),Idaho Code, setting
forth the time, place, and summary of the matter, was published once in The Stand4rd Joufnal. a
newspaper of general circulation within Petitioner's boundaries and the official newspaper of
petitioner, at least fifteen (15) days prior to the public hearing. Following the public hearing,
and after the passage of at least fourteen (14) days, the Council, on August l8th, 2010, adopted
FINDINGS OF FACT AND CONCLUSIONS OF LAW-Page2
Resolution No. 201 0-0g, autho rizingthe filing of a petition for judicial confirmation and making
certain fi ndings and determinations.
Iil.
pursuantto Sections 7-1305 andT-1306. Idaho Code, notice of the filing of the Petition
for Judicial Confirmation was duly served by publication once a week for three (3) consecutive
weeks by three (3) weekly insertions in The Standard Journal, a newspaper of general circulation
within petitioner, and by posting in a prominent place at or near the main door of the
administrative office of Petitioner at least thirty (30) days prior to the date fixed in the notice of
hearing on the petition, all as more fully shown by the Affidavit of City Clerk Blair Kay' the
Affrdavit of Publication, and the Affidavit of Posting of Notice on file herein.
IV.
petitioner has submitted with its Petition for Judicial Confirmation a copy of the
proposed Loan Agreement between Petitioner and the State, which Petitioner proposes to
execute, petitioner has also submitted an Affidavit of City Clerk Blair Kay with exhibits, an
Afhdavit of posting, and an Affrdavit of City Engineer John Millar, P.E., with exhibits.
petitioner,s proof was unopposed and the documents are conclusively deemed to be true and
correct in accordance with their terms.
V.
Petitioner owns, maintains, and operates, and has for many years owned, maintained, and
operated, pursuant to Title 50, Chapters 3 and 10, Idaho Code, a waste water treatment system
(the ,,System") for the treatment of waste water for its residents in accordance with state and
FINDINGS OF FACT AND CONCLUSIONS OF LAW―Pagc 3
federal regulatory mandates. The System serves the city and is the sole provider of wastewater
treatment available to the CitY'
VI.
The main components of the City's System consist of a headworks, 3 ditches, 3 clarifiers,
a belt dryer, several thousand square feet of drying beds, and various buildings housing a shop, a
laboratory and other equipment necessary to the operation of a waste water treatment system'
The existing system has been in service since the 1960's, and the last major capacity upgrade
took place approximately 17 years ago.
Aqua Engineering, Inc., a Utah Engineering Firm performed a Waste Water Facilities
Improvement Study for the City of Rexburg, Idaho which was completed in 2008, and updated in
the Fali of 2009 and Spring of 2010 (the "Study"), to assess the ability of the existing System to
meet present and future demand, together with performance of the System and its components
with respect to standards established. by the State of Idaho through its Department of
Environmental euality (,.DEe") and the United States Environmental Protection Agency
("EPA").
The Study showed that the City's system is in imminent peril of failing to meet the
Environmental protection Agency's ("EPA") standards, and will not meet the NPDES permit
standards if anticipated growth occuls in the next 12 months.
uI.
Based on the Study and other available information, Petitioner's Mayor and Council have
identified a number or expansion components consistent with the recommendations of the Study,
FINDINGSoFFACTANDCONCLUSIONSoFLAw-Page4
(hereinafter, collectively, the "Project"), as essential additions to the existing waste water
treatment system if the needs of Petitioner and its residents are to be met'
Such improvements to waste water treatment system and related facilities within the City
are necessary for the purpose of preserving the health, safety, and welfare of the Petitioner's
population.
VIII.
The total cost of the Proiect has been estimated as Ten Million Dollars ($10,000,000'00).
Petitioner does not have funds available to it within its present budget to meet the cost of the
Project, and has determined that such cost must be financed over a term of years from the
revenues of the System and other lawfully available funds of Petitioner. The loan agreement
provides funding for the Project.
x.
In order to finance the cost of the Project, Petitioner has made application to the State for
a loan. The State has determined that Petitioner is eligible for such loan and has indicated its
approval of such loan, substantially on the terms and conditions set forth in the draft Loan
Agreement which is annexed to Petitioner's verified Petition herein'
X.
Petitioner does not have the necessary $10,000,000 available in its current funds or in its
System revenues for the current or ensuing fiscal year, and therefore must finance the costs over
a term of years. petitioner has determined to finance the cost of the Project by entering into the
Loan Agreement with the State, pursuant to which the State will loan to Petitioner the
$10,000,000 required to finance the Project, and the Petitioner will issue its promissory note or
FINDINGS OF FACT AND CONCLUSIONS OF LAW- Page 5
other evidence of such indebtedness and will repay the loan over a term not to exceed 20 years
from System revenues together with other lawfully available funds of Petitioner.
XI.
The loan, if incurred pursuant to the proposed Loan Agreement, and the promissory note
or other evidence of indebtedness thereof, would constitute an indebtedness of Petitioner
extending beyond its current year's revenues. Petitioner has not sought or obtained an approving
vote of the electors at a special election called for the purpose of approving such indebtedness,
nor has petitioner made provision for the levying of an annual property tax to constitute a sinking
fund for the payment of the interest on or principal of such indebtedness'
XiI.
Article 8, Section 3, Idaho Constitution, provides, in relevant part, that no county, city, or
other political subdivision shall incur any indebtedness or liability, in any manner or for any
purpose, exceeding in that year the income and revenue provided to it for such year, without the
assent of two-thirds (or, in the case of certain revenue bonds, the assent of the majority) of the
qualified electors thereof voting at an election held for that purpose, but said Article 8, Section 3,
contains the following exception: "provided, that this section shall not be construed to apply to
the ordinary and necessary expenses authorized by the general laws of the state . . . ."
XIII.
Petitioner, by and through its Council, has determined that the proposed Loan Agreement
for the financing of the Project Services and the promissory note to be issued pursuant thereto
constitute "ordinary and necessary expenses" of Petitioner within the meaning of the above-
FINDINGS OF FACT AND CONCLUSIONS OF LAW- Page 6
quoted proviso to Article 8, Section 3, Idaho Constitution, for which no approving vote of the
electors is required. This determination is based upon the following factors:
A.The legal issue, arising under Article 8, Section 3, Idaho Constitution, as to
whether or not the proposed loan agreement and any promissory note or other
obligation evidencing such agreement constitutes an "ordinary and necessary
expense" of Petitioner, authorized by the general laws of the State, for which an
approving vote ofthe electors is not required'
The requirement contained in the State's proposed Loan Agreement that judicial
confirmation of the validity of the Loan Agreement be obtained as a condition
precedent to the execution of the Loan Agreement.
XIV.
Petitioner's Council has determined that the loan obligation may be validly secured by
Petitioner's execution of the proposed Loan Agreement, by the issue of its promissory note and
by repayment of the same from its System revenues and other lawfully available funds of
Petitioner.
Based upon the foregoing Findings of Fact, the Court now makes the following:
CONCLUSIONS OF LAW
I.
Proceedings under the Judicial Confirmation Law, Title 7, Chapter 13, Idaho Code, are
proceedings in rem, and jurisdiction of the subject matter and of all interested parties is lawfully
obtained through publication and posting as provided therein. Publication and posting as
B.
FINDINGS OF FACT AND CONCLUSIONS OF LAW- Page 7
authorized by the Judicial Confirmation Law is a
Court over all interested parties and over the subject
valid method of vesting jurisdiction of this
matter.
II.
Jurisdiction of this Court over the subject matter of the Petition for Judicial Confirmation
and over all interested parties has, as a matter of law, been obtained herein by publication and
posting as provided bY law'
IIi.
The Judicial confirmation Law is valid and constitutional.
IV.
The allegations of the petition for Judicial Confirmation are deemed to be admitted by all
interested parties who failed to appear in objection thereto. This Court is authorized to render
the judgment as prayed for in Petitioner's Petition for Judicial Confirmation and as set forth
hereinafter.
V.
The project proposed to be made by Petitioner, and the indebtedness proposed to be
incurred therefor, meets the criteria articulated by the Idaho Supreme Court to qualifu under the
,.ordinary and necessary expenses?' exception to Article 8, Section 3, Idaho Constitution. The
Idaho Supreme Court has held that the impact of a proposed expenditure on public safety is
fundamental to the determination of whether a project is "necessaty ." City of Boise v. Frazier,
143 Idaho 1, r37 p.3'd 3gg (2006). If the expense is necessary to protect the health and safety of
the inhabitants of the municipality, it is both "ordinary and necessary." Thomas v Glindeman,33
Idaho 3g4,Ig5 p. 92 (lg2l), in this case, the court concludes that Petitioner has established by
FINDINGS OF FACT AND CONCLUSIONS OF LAW- Page 8
affidavit (as cited in the Findings of Fact) that the proposed Loan Agreement and Project are
',ordinary and necessary expenses" required for the protection of public health and safety as
articulated by the idaho Supreme Court. See Affidavit of John Millar, u 8 (August23,2070X"."
failure[to take immediate action]. . .would jeopardize the health and safety of the residents of the
service are[a]...).
u.
As "ordinary and necessa.ry expenses" within the meaning of Article 8, Section 3, Idaho
Constitution, no approval of the electors of Petitioner at a special election called for such purpose
is required.
VII.
The Loan Agreement, when duly executed by Petitioner and the State and the promissory
note when issued pursuant thereto will be valid and binding special obligations of Petitioner,
payable in accordance with their terms.
VIII.
Petitioner may validly pledge its wastewater treatment system revenues and other
lawfully available funds of Petitioner appropriated by Petitioner for such pu{pose, as security for
its required payments under the Loan Agreement.
Based on the Findings of Fact and Conclusions of Law, and good cause appearing
therefor,
THE COURT HEREBY DIRECTS that Judgment be entered in accordance with the
petition for Judicial Confirmation, to the effect that the Loan Agreement constitutes a valid,
FINDINGS OF FACT AND CONCLUSIONS OF LAW―Page 9
binding, and enforceable obligation of Petitioner and may be entered
accordance with its terms.
DATED tns AThy of SePtember,2010.
into and performed in
FINDINGS OF FACT AllD CONCLUSIONS OF LAW- Page 10