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HomeMy WebLinkAbout05961AS AMENDED 4/24/95 ORDINANCE NO. 5961 AN ORDINANCE CONCERNING THE FINANCING OF THE ACQUISITION, CONSTRUCTION AND EQUIPPING OF A PARKING FACILITY AND THE AUTHORIZATION AND APPROVAL OF A GROUND LEASE AGREEMENT, A LEASE PURCHASE AND SUBLEASE AGREEMENT, A MORTGAGE AND INDENTURE OF TRUST, A CERTIFICATE PURCHASE AGREEMENT, A PRIVATE PLACEMENT MEMORANDUM AND OTHER RELATED DOCUMENTS AND ACTIONS IN CONNECTION WITH THE ISSUANCE OF CERTAIN CERTIFICATES OF PARTICIPATION IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $1,220,000 WHEREAS, the City of Pueblo, Colorado (the "City") has been duly organized and is validly existing as a home rule city under the Colorado Constitution and the home rule charter of the City (the "Charter "); and WHEREAS, the City has previously authorized and directed the creation of the City of Pueblo, Colorado Municipal Building Corporation (the "Corporation "), a nonprofit corporation and an instrumentality of the City for certain limited purposes, under the provisions of the Colorado Nonprofit Corporation Act, articles 20 through 29 of title 7, Colorado Revised Statutes (the "Act "), pursuant to an ordinance duly and regularly adopted by the City Council of the City (the "City Council "); and WHEREAS, pursuant to the Charter and part 8 of article 15 of title 31, Colorado Revised Statutes, the City is authorized to enter into one or more leases or lease - purchase agreements for land, buildings, equipment and other property for governmental or proprietary purposes; and WHEREAS, the City Council hereby determines that the City is in need of the parking facility more fully described in the lease purchase and sublease agreement referred to hereinbelow (the "Project ") and that it is necessary and in the best interests of the City and its residents that the Project be acquired, constructed and equipped on a certain parcel of land more fully described in the ground lease agreement referred to hereinbelow (the "Land "), which Land is presently owned by the City; and WHEREAS, for purposes of financing the acquisition, construction and equipping of the Project, the City Council has previously applied to the Economic Development Administration of the United States Department of Commerce for a grant (the "EDA Grant ") authorized by the Public Works and Development Act of 1965, and expects such grant to be made, and therefore has determined, and hereby determines, (a) that it is in the best interests of the City and its residents that the City lease the Land and the portion of the Project to be financed with the proceeds of the EDA Grant to the Corporation pursuant to that certain Ground Lease Agreement 02/66590.4 (the "Ground Lease ") between the City and the Corporation, presented to this meeting of the City Council, and (b) that the City lease the remainder of the Project and sublease the Land and the portion of the Project to be financed with the proceeds of the EDA Grant from the Corporation pursuant to that certain annually renewable Lease Purchase and Sublease Agreement (the "Lease ") between the City and the Corporation, presented to this meeting of the City Council; and WHEREAS, there has also been presented to this meeting of the City Council (a) a certain Mortgage and Indenture of Trust (the "Indenture") between the Corporation and a corporate trustee to be selected by the City and the Corporation (the "Trustee "), (b) the form of Certificates of Participation (the "Certificates ") to be issued pursuant to the Indenture and the Lease, (c) a Certificate Purchase Agreement (the "Certificate Purchase Agreement "), pursuant to which the Certificates shall be sold by the City to Lewis, De Rozario & Co. Incorporated (the "Placement Agent "), and (d) the form of a Private Placement Memorandum (the "Private Placement Memorandum "), a preliminary draft of which will be distributed to potential investors in connection with the offering of the Certificates and a final draft of which will be executed and distributed in connection with the sale of the Certificates; and WHEREAS, pursuant to certain provisions of the Lease and the Indenture, the Corporation will deposit in escrow with the Trustee a deed and bill of sale for the Project from the Corporation to the City (collectively, the "escrow deed "); and WHEREAS, the City Council is desirous of authorizing, approving and directing the execution and delivery of the Ground Lease, the Lease and the Certificate Purchase Agreement, by the City and the execution and delivery of the Ground Lease, the Lease, the Indenture and the Certificate Purchase Agreement by the Corporation, all in substantially the forms presented to the City Council, and is further desirous of authorizing and approving the issuance of the Certificates pursuant to the Indenture, ratifying the distribution of the preliminary Private Placement Memorandum, authorizing and approving the distribution of the final Private Placement Memorandum, and authorizing and approving the transactions contemplated thereby. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO: Section 1. Rati cation of Prior Actions. All actions heretofore taken (not inconsistent with the provisions of this Ordinance) by (a) the City Council or the officers or employees of the City, or (b) the Board of Directors of the Corporation (the "Board ") or the officers or employees of the Corporation, which actions have been directed toward the financing of the acquisition, construction and equipping of the Project, the leasing of the Land and the portion of the Project to be financed with the proceeds of the EDA Grant by the City to the Corporation, or the leasing of the remainder of the Project and subleasing of the Land and the portion of the Project to be financed with the proceeds of the EDA Grant by the Corporation to the City, are hereby ratified, approved and confirmed. The City Council hereby specifically ratifies, approves and confirms the distribution by the Underwriter of the preliminary Private Placement Memorandum to prospective purchasers of the Certificates. 02/66590.4 2 Section 2. Funding and Deterneination. The City Council hereby finds and determines, pursuant to the provisions of the Charter, that (a) constructing, acquiring, improving and equipping the Project, (b) leasing the Land and the portion of the Project to be financed with the proceeds of the EDA Grant to the Corporation, and (c) leasing the remainder of the Project and subleasing of the Land and the portion of the Project to be financed with the proceeds of the EDA Grant from the Corporation, all under the terms and provisions set forth in the Ground Lease and the Lease, are necessary, convenient and in furtherance of the governmental purposes of the City and are in the best interests of the City; and the City Council hereby authorizes the construction, acquisition and equipping of the Project, and such leasing and subleasing of the Land t%. a Project under the terms and provisions of the Lease. Section 3. Execution and Delivery of the Ground Lease by the City. The Ground Lease, in substantially the form presented to this meeting of the City Council and with substantially the same content, is in all respects approved, authorized and confirmed, and the President or Vice President of the City Council is authorized and directed to affix his or her signature to the Ground Lease in substantially the form and with substantially the same content as presented to this meeting of the City Council, for and on behalf of the City, but with such changes, modifications, additions or deletions therein as the President or Vice President of the City Council and the City Attorney shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Ground Lease presented to this meeting. Section 4. Execution and Delivery of the Lease by the City. The Lease, in substantially the form presented to this meeting of the City Council and with substantially the same content, is in all respects approved, authorized and confirmed, and the President or Vice President of the City Council is authorized and directed to affix his or her signature to the Lease in substantially the form and with substantially the same content as presented to this meeting of the City Council, for and on behalf of the City, but with such changes, modifications, additions or deletions therein as the President or Vice President of the City Council and the City Attorney shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Lease presented to this meeting. Section S. Execution and Delivery of the Cert'if'icate Purchase Agreement by the City. The Certificate Purchase Agreement, in substantially the form presented to this meeting of the City Council and with substantially the same content, is in all respects approved, authorized and confirmed, and the President or Vice President of the City Council is authorized and directed to affix his or her signature to the Certificate Purchase Agreement in substantially the form and with substantially the same content as presented to this meeting of the City Council, for and on behalf of the City, but with such changes, modifications, additions or deletions therein as the President or Vice President of the City Council and the City Attorney shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval 02IW9o.a 3 of any and all changes, modifications, additions or deletions therein from the form and content of the Certificate Purchase Agreement presented to this meeting. Section 6. Execution and Delivery of the Ground Lease by the Corporation. The City Council hereby approves the execution and delivery by the Corporation of the Ground Lease, in substantially the form and with substantially the same content as presented to this meeting of the City Council, but with such changes, modifications, additions or deletions therein as the Board shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Ground Lease presented to this meeting. Section 7. Execution and Delivery of the Lease by the Corporation. The City Council hereby approves the execution and delivery by the Corporation of the Lease, in substantially the form and with substantially the same content as presented to this meeting of the City Council, but with such changes, modifications, additions or deletions therein as the Board shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Lease presented to this meeting. Section 8. Execution and Delivery of the Indenture by the Corporation. The City Council hereby approves the execution and delivery by the Corporation of the Indenture, in substantially the form and with substantially the same content as presented to this meeting of the City Council, but with such changes, modifications, additions or deletions therein as the Board shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Indenture presented to this meeting. Section 9. Execution and Delivery of the Cen Uate Purchase Agreement by the Corporation. The City Council hereby approves the execution and delivery by the Corporation of the Certificate Purchase Agreement, in substantially the form and with substantially the same content as presented to this meeting of the City Council, but with such changes, modifications, additions or deletions therein as the Board shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Certificate Purchase Agreement presented to this meeting. Section 10. Assignment to the Trustee. The City Council hereby acknowledges and consents to (a) the assignment by the Corporation to the Trustee, pursuant to the Indenture, of the Trust Estate (as such term is defined in the Indenture) including, without limitation, all rights, title and interest of Corporation in, to and under the Lease (with certain exceptions as provided in the Lease and the Indenture) and the Ground Lease, and (b) the delegation by the Corporation to the Trustee, pursuant to the Indenture, of all duties of the Corporation under the Lease and the Ground Lease. 02/ft590.4 4 Section 11. Issuance of the Certificates. The issuance of the Certificates, pursuant to the Indenture, in an aggregate principal amount not to exceed $1,220,000 is, in all respects, hereby approved by the City. The Certificates shall be issued solely as fully registered certificates without coupons in the denominations of $100,000 or $100,000 plus integral multiples of $5,000 in excess thereof. The Certificates shall bear interest payable semiannually on January 1 and July 1 of each year, commencing July 1, 1996, at the rates and will mature in the amounts and on the dates to be set forth in the Indenture upon approval by the Corporation. The net effective interest rate of the Certificates shall not exceed 8.0%. The Certificates shall be subject to redemption prior to their maturity, including mandatory sinking fund redemption, in the manner, on the dates and at the prices set forth in the Indenture. The City Council hereby authorizes and approves the form, and the further terms and provisions of, the Certificates contained in the Indenture, in substantially the form and with substantially the same content as that presented to this meeting of the City Council. The City Clerk and the President of the City Council of the City are hereby authorized and directed to affix their facsimile signatures and the City seal, or a facsimile thereof, to authenticate the Certificates, as provided in the Lease and the Indenture. Section 12. Sale of the Certificates. The City Council hereby authorizes, approves and directs the sale of the Certificates to the Placement Agent under the terms and conditions of, and for the price set forth in, the Certificate Purchase Agreement. Section 13. Private Placement Memorandum. The President or Vice President of the City Council is hereby authorized and directed to affix his or her signature to the final Private Placement Memorandum, for and on behalf of the City, in basically the form and with basically the content as the Private Placement Memorandum presented to this meeting of the City Council, but with such changes, modifications, additions or deletions therein as the President or Vice President of the City Council and the City Attorney may deem necessary or appropriate, the execution thereof to constitute conclusive evidence of their approval of such changes, modifications, additions or deletions therein from the form presented to this meeting. The distribution by the Placement Agent of the final Private Placement Memorandum to prospective purchasers of the Certificates is hereby approved. Section 14. Attestation by the City Clerk and Other Actions in Flurtherance of the Contemplated Transactions. The City Clerk is hereby authorized and directed to attest all signatures and acts of any official of the City Council or the City in connection with the matters authorized by this Ordinance, and to place the seal of the City on the Ground Lease and the Lease authorized and approved by this Ordinance. The President or Vice President of the City Council and other officials of the City Council or the City are hereby authorized to execute and deliver for and on behalf of the City any and all additional certificates, documents and other papers and to perform all other acts that they may deem necessary or appropriate in order to implement and carry out the transactions and other matters authorized and contemplated by this Ordinance. The appropriate officers of the City Council or the City are authorized to execute on behalf of the City agreements concerning the deposit and investment of funds in connection with the transactions contemplated by this Ordinance. The execution and delivery, by the 02/66590.4 5 Corporation, of any and all additional certificates, documents and other papers and the performance of all other acts necessary or appropriate in order to implement and carry out the transactions and other matters authorized and contemplated by this Ordinance is hereby approved and authorized by the City. Section 15. No General Obligation of the City Created. NO PROVISION OF THIS ORDINANCE, THE GROUND LEASE, THE LEASE, THE INDENTURE, THE CERTIFICATES, THE CERTIFICATE PURCHASE AGREEMENT OR THE PRIVATE PLACEMENT MEMORANDUM SHALL BE CONSTRUED AS CREATING OR CONSTITUTING A GENERAL OBLIGATION OR OTHER INDEBTEDNESS OF THE CITY OR A MANDATORY PAYMENT OBLIGATION OF THE CITY IN ANY FISCAL YEAR BEYOND A FISCAL YEAR FOR WHICH THE CITY HAS APPROPRIATED AMOUNTS TO MAKE PAYMENTS UNDER THE LEASE. THE CITY SHALL HAVE NO OBLIGATION TO MAKE ANY PAYMENT WITH RESPECT TO THE CERTIFICATES EXCEPT IN CONNECTION WITH THE PAYMENT OF THE BASE RENTALS AND ADDITIONAL RENTALS (AS DEFINED IN THE LEASE) AND CERTAIN OTHER PAYMENTS UNDER THE LEASE, WHICH PAYMENTS MAY BE TERMINATED BY THE CITY IN ACCORDANCE WITH THE PROVISIONS OF THE LEASE. IN ADDITION, NO PROVISION OF THIS ORDINANCE, THE GROUND LEASE, THE LEASE, THE INDENTURE, THE CERTIFICATES, THE CERTIFICATE PURCHASE AGREEMENT OR THE PRIVATE PLACEMENT MEMORANDUM SHALL BE CONSTRUED TO PLEDGE OR TO CREATE A LIEN ON ANY CLASS OR SOURCE OF CITY MONEYS; HOWEVER, THE CITY CURRENTLY ANTICIPATES THAT THE REVENUES GENERATED BY THE PROJECT SHALL BE THE FIRST SOURCE OF REVENUES USED TO PAY BASE RENTALS, SUBJECT TO APPROPRIATION. Section 16. Determination of Rental Value and Purchase Option Price Under the Lease. The City Council hereby determines and declares that the Base Rentals represent the fair value of the use of the Project; and that the Purchase Option Price (as defined in the Lease) represents the fair purchase price of the Project. The City Council hereby determines and declares that the Base Rentals do not exceed a reasonable amount so as to place the City under an economic or practical compulsion to renew the Lease or to exercise its option to purchase the Project pursuant to the Lease. In making such determinations, the City Council has given consideration to the cost of constructing the Project, the uses and purposes for which the Project will be employed by the City, the benefit to the citizens and residents of the City by reason of the acquisition of the Project and the use of the Project pursuant to the terms and provisions of the Lease, the option of the City to purchase the Project, and the expected eventual vesting of title to the Project in the City. The City Council hereby determines and declares that the acquisition, construction and equipping of the Project and the leasing of the Project pursuant to the Lease will result in facilities of comparable quality and meeting the same requirements and standards as would be necessary if the acquisition, construction and equipping of the Project were performed by the City other than pursuant to the Lease. The City Council hereby determines and declares that the period during which the City has an option to purchase the 02/W9o.a 6 Project (i.e., the maximum term of the Lease, including all Renewal Terms) does not exceed the useful life of the Project. Section 17. Determination of Rental Value of Land. The City Council hereby determines and declares that Rent to be received for the Land under the Ground Lease after a Termination Event under the Lease (all as defined in the Ground Lease and the Lease) will represent the fair rental value of the Land. The City Council hereby determines and declares that the procedure for determining the amount of the Rent to be paid after a Termination Event will result in a Rent which is not less than the fair rental value of the Land so as to place the City under an economic or practical compulsion to renew the Lease or to exercise its option to purchase the Project pursuant to the Lease. In making such determinations, the City Council has given consideration to an evaluation by the staff of the City of the fair market rental value of the Land, the user and purposes for which the Land will be employed by the City, the benefit to the citizens and residents of the City by reason of the acquisition, construction and equipping of the Project on the Land, the option of the City to purchase the Project, and the expected eventual vesting of title to the Project in the City. Section 18. Designation of Bonds as Qual{ fled Tax - Exempt Obligations. The City represents that it reasonably anticipates to issue (and has issued), together with governmental entities which derive their issuing authority from the City or are subject to substantial control by the City, not more than an aggregate total of $10,000,000 of governmental or qualified section 501(c)(3) organization bonds (as defined in the Code) during calendar year 1995. The City recognizes that governmental bonds include tax- exempt obligations such as notes, leases, loans and warrants. The City hereby designates the Certificates as qualified tax- exempt obligations within the meaning of Section 265 of the Code, allowing banks, thrift institutions and other financial institutions to avoid the loss of 100% of any otherwise available interest deduction in direct proportion to such institutions' tax- exempt holdings. Section 19. Exercise of Home Rule Powers of the City. In authorizing and approving the actions herein set forth, it is the intent of the City Council of the City to exercise the home rule powers of the City granted pursuant to the Colorado Constitution and the Charter, and the City Council of the City hereby finds, determines and declares that the matters herein referred to are matters of local or municipal concern and are appropriate for the exercise of the home rule powers of the City. Section 20. Repealer. All prior ordinances, acts, orders or resolutions, or parts thereof, by the City in conflict with this Ordinance are hereby repealed, except that this repealer shall not be construed to revive any ordinance, act, order or resolution, or part thereof, heretofore repealed. Section 21. Severability. If any section, paragraph, clause or provision of this Ordinance shall be adjudged to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining sections, OV"590A 7 paragraphs, clauses or provisions of this Ordinance, it being the intention that the various parts hereof are severable. Section 22. Public Hearing. A public hearing on this Ordinance shall be held on the 24th day of April 1995, at 7:30 p.m., in the City Council Chambers, One City Hall Place, Pueblo, Colorado. INTRODUCED APREL 10, 1995 By SAMUEL CORSENTINO Councilperson APPROVED: APPROVED AS TO FORM BY CITY ATTORNEY City Attorne B d", y 4 Z/� � � President of the City Council 02166590.4 8