HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/04/2008 - SECOND READING OF ORDINANCE NO. 022, 2008, AUTHORI ITEM NUMBER: 12
AGENDA ITEM SUMMARY DATE: March 4, 2008
FORT COLLINS CITY COUNCIL STAFF: Chuck Seest
SUBJECT
Second Reading of Ordinance No. 022,2008,Authorizing the Issuance and Sale by the City of Fort
Collins,Colorado of Variable Rate Economic Development Revenue Bonds,Series 2008a(Custom
Blending,Inc.Project)and of Taxable Variable Rate Economic Development Revenue Bonds,Series
2008b(Custom Blending,Inc.Project)in the Combined Aggregate Principal Amount Not to Exceed
$5,000,000 for the Purpose of Financing the Acquisition, Construction and Equipping of a
Manufacturing Facility in the City of Fort Collins,Colorado,and to Pay Certain Costs of Such Bond
Issue; Approving and Authorizing Execution of a Trust Indenture, Loan Agreement, Promissory
Note and Bond Purchase Agreement with Respect to the Bonds; Making Findings and
Determinations with Respectto the Project and the Bonds;Authorizing the Execution and Delivery
of Related Documents; and Repealing All Action Heretofore Taken in Conflict Herewith.
RECOMMENDATION
Staff recommends adoption of this Ordinance on Second Reading.
EXECUTIVE SUMMARY
This Ordinance, unanimously adopted on First Reading on February 19, 2008, authorizes the
issuance of an amount not to exceed $5,000,000 of economic development revenue bonds for the
Custom Blending, Inc. project (a small manufacturing company) from the annual statewide
allocation the City receives. This is not the receipt of dollars,but the right to issue tax exempt bonds
for purposes prescribed in the Internal Revenue Code by the federal government. Economic
development revenue bonds are one type of bond that can be issued for private activity purposes.
For fiscal year 2008, the City of Fort Collins received a private activity bond allocation of
$5,504,218. These bonds are not an obligation of the City of Fort Collins.
Custom Blending, Inc. relocation and expansion on a site within the City limits will result in
additional property taxes for the City as well as use tax on construction materials and equipment
purchases. The prospect of additional manufacturing jobs also provides economic benefit.
ATTACHMENTS
1. Copy of First Reading Agenda Item Summary - February 19, 2008.
(w/o original attachments)
ATTACHMENT 1
ITEM NUMBER: 33 A-B
AGENDA ITEM SUMMARY DATE: February 19, Zoos
FORT COLLINS C ,,CCO I FF: Mike Freeman
Chuck Seest
SUBJECT
Items Relating to the Issuance of Variable Rate Economic Development Revenue Bonds.
RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading and the Resolution.
EXECUTIVE SUMMARY
A. Resolution 2008-024 D � n o ort Collins, Colorado to Issue
Economic Developme evenh and r
e cing for a Manufacturing Facility
for Custom Blending, ; Pres bingrms d Conditions of Such Bonds; and
Containing Other Provis ela tsed - suance of Such Bonds.
B. Hearing and First Reading of Ordinance No. 022, 2008,Authorizing the Issuance and Sale
by the City of Fort Collins, Colorado of Variable Rate Economic Development Revenue
Bonds, Series 2008a (Custom Blending, Inc. Project) and of Taxable Variable Rate
Economic Development Revenue Bonds, Series 2008b (Custom Blending, Inc. Project) in
the Combined Aggregate Principal Amount Not to Exceed $5,000,000 for the Purpose of
Financing the Acquisition, Construction and Equipping of a Manufacturing Facility in the
City of Fort Collins,Colorado,and to Pay Certain Costs of Such Bond Issue;Approving and
Authorizing Execution of a Trust Indenture, Loan Agreement, Promissory Note and Bond
Purchase Agreement with Respect to the Bonds;Making Findings and Determinations with
Respecuo the Project and the Bonds; Authorizing the Execution and Delivery of Related
Documents; and Repealing All Action Heretofore Taken in Conflict Herewith.
This Ordinance and Resolution OtmPnodcs
y
ount not to exceed$5,000,000
of economic development r enueding, Inc. project (a small
manufacturing company) fro a armCity receives. This is not the
receipt of dollars, but the right sstfeses prescribed in the Internal
Revenue Code by the federal government. Economic development revenue bonds are one type of
bond that can be issued for private activity purposes. For fiscal year 2008, the City of Fort Collins
received a private activity bond allocation of$5,504,218. These bonds are not an obligation of
the City of Fort Collins.
February 19, 2008 -2- Item No. 33 A-B
Custom Blending, Inc. relocation and expansion on a site within the City limits will result in
additional property taxes for the City as well as use tax on construction materials and equipment
purchases. The prospect of additional manufacturing jobs also provides economic benefit.
BACKGROUND
The Project
Under the federal and state laws governing the use of tax-exempt private activity bonds, the City
may issue the bonds, but may not use its own revenues to support the project. (See Attachment 1)
The project will generate the revenue required to repay the bonds. In the event the project does not
generate sufficient revenue,the bondholders may request payment from the letter of credit provider
or the insurer of the transaction. The total amount of private activity bonds to be issued will not
exceed $5,000,000. The project proponent, CBI Real Estate Holdings, LLC, a Colorado limited
liability corporation,may use its resources to pay for the bonds or issue additional taxable bonds to
finance the project.
The proceeds of the bonds, together with the proceeds of certain taxable bonds to be issued by the
City concurrently with the Bonds, will be loaned to CBI Real Estate Holdings, LLC (the
"Borrower")to finance the acquisi ' n f a ufa n ' ity f the production of spices,spice
blends and liquid flavorings (t Pro T P je co ist of a purchase of a parcel of land
located in the Harmony Techn gy Par the" and n the north by Harmony Road, on
the west by Zeigler Road, on th ast d oo Drive an n the south by Rock Creek Drive.
The property will consist of a three acre parcel which is the third lot west of the southeast corner
of the Park and will be accessed from the proposed Precision Drive. Construction of an
approximately 33,000 square foot tilt-up concrete building is to be located there, as well as the
purchase of certain equipment. The Project will be owned by the Borrower and operated and
managed by Custom Blending, Inc., an entity under common ownership with the Borrower. (See
Attachment 2)
In late 2007, Custom Blending, Inc. approached the City with the concept for this Project. An
inquiry was made by Custom Blending,Inc. as to the availability of private activity bonds for small
manufacturing. Custom Blending, Inc. was established in 1984 and initially provided the food
service industry in Colorado with spices and flavoring extracts. Today it is a multi-functional
manufacturer of spices, spice blends and liquid flavorings for wholesale operations and retail
grocery stores. Custom Blending, Inc. is also a silver level partner in the City's Climate Wise
program. The facility that Custo endi IncPBI'enydinffic.
' ing with the bond proceeds is
being designed to achieve mini al i on a criteria regarding Leadership
in Energy and Environmental sign(L D)G g System,developed by the US
Green Building Council is bein ur e C t
The City's Prior Usage of Private Activity Bonds
The most recent direct usage of the City's annual allocation of private activity bonds occurred
during 2001 for the Oakridge Affordable Housing Project. Since that time, no direct issuance of
private activity bonds by the City has occurred. In the event a project is not identified and approval
granted by the City Council prior to September 15th of a given year, the annual allocation is
relinquished to the statewide pool and becomes available for projects throughout the State.
February 19, 2008 -3- Item No. 33 A-B
Given that the last two projects which utilized this funding seven years ago related to affordable
multi-family housing (Oakridge and Comridge), staff inquired of both the Fort Collins Housing
Authority and Advance Planning staff responsible for housing. A letter is attached from the Fort
Collins Housing Authority stati he wi a thi ear. (See Attachment 3) Staff
also presented this funding o on to
plic r CDBG funds last month. The
response was interest in the fu e but n for 2 8
As a result of no affordable housing projects currently coming forward to utilizez this funding
option, staff desired to see the funding remain within the City and not revert to the statewide pool
as has been the case in the prior six years. In the event a project does come forward, the City will
still have a portion of the 2008 allocation of$5.5 million to issue directly and can also recommend
a project to the Colorado Housing and Financing Authority(CHFA).
The last time the City used private activity bonds for a small manufacturing entity was in 1993 for
a $1.5 million bond for Phelps Tointon Millwork, LLC, a manufacturer of wood cabinetry and
athletic lockers.
The City's Role in Issuance of Private Activity Bonds
Under the federal tax laws and the Colorado Revised Statutes, the City's role in this transaction is
to be the Issuer of the Bonds. Ci ha§,alse4evivelkh9eplyation and related federal income
tax returns
THE BONDS SHALL BE SP , L LIGA NS OF THE CITY. THE CITY
WILL NOT BE OBLIGATED TO PAY THE BONDS OR THE INTEREST THEREON,EXCEPT
FROM THE ASSETS OR REVENUES PLEDGED THEREFOR. IN NO EVENT SHALL THE
STATE, THE CITY (OTHER THAN THE FROM THE BORROWER'S ASSETS PLEDGED
THEREFORE)OR ANY POLITICAL SUBDIVISION THEREOF BE LIABLE FOR THE BONDS,
AND THE BONDS SHALL NOT CONSTITUTE A DEBT OF THE STATE,THE CITY OR ANY
SUCH POLITICAL SUBDIVISION THEREOF.
The proceeds of the Bonds will be loaned to CBI Real Estate Holdings,LLC. according to the terms
of the Loan Agreement to provide the financing of the project.
C
OPY
February 19, 2008 -4- Item No. 33 A-B
SOURCES AND USES
The estimated sources and uses of funds relating to the Bonds are summarized below:
V Y Estimated
Amount
SOURCES OF FUNDS:
Proceeds of Series 2008A Bonds $4,375,000*
Proceeds of Series 2008B Bonds 275,000*
Additional Equity Contribution 1,000,000
TOTAL SOURCES OF FUNDS $ 5,650,000
USES OF FUNDS:
Deposit to Project Fun
Construction AFaciliA $5,500,000
For payment of Costs of ssuance, tncludtng nder%Aer's fee (1)(2) 150,000
TOTAL USES OF FUNDS 000
* Preliminary, subject to change
(1) Any such costs treated as allocable costs of issuance of the Series 2008A Bonds under present
Treasury Department regulations and rulings which in the aggregate exceed 2%of Series 2008A Bond
proceeds(net of certain ineligible proceeds)will be paid by the Borrower or from proceeds of the
Series 2008B Bonds.
Sources and uses are estimates and will likely change prior to second reading.
STRUCTURE OF BOND IS
The objective of this financial sact'o 's to Pthe to st possible borrowing costs for the
Project through tax-exempt finan g. In tx- pt financing, the City is able to
assist and retain a small manufacturing company that has been a long standing member of the
community. The underwriter believes this can best be accomplished by structuring the transaction
using variable rate bonds. Using this technique, interest rates fluctuate and reset periodically. The
underwriter is estimating an interest rate of about 3.50% on the variable rate bonds issued for 25
years.
February 19, 2008 -5- Item No. 33 A-B
The Bond documents set up the repayment schedule. The documents supporting this transaction
have estimated the following principal repayment schedule:
Date of Principal rin�1 Amount
Redemption hc�Redeemed
2009 - 0
2010 155,000
2011 165,000
2012 170,000
2013 180,000
2014 190,000
2015 195,000
2016 205,000
2017 215,000
2018 225,000
2019 235,000
2020 250,000
2021 260,000
2022 275,000
2023 2h�,000
2024 00,000
C
20250P 315,000
2026 30,000
2027 345,000
2028 365,000
TOTAL 4 660 000
Debt service schedule includes the $275,000 of taxable bonds in addition to the not to exceed
$5,000,000 of tax-exempt financing. Payments are scheduled to be made on June 1 and December
1 of each year.
According to the City of Fort Collins policies regarding issuance of tax-exempt financing for this
type of project, the City charges an issuer's fee when the bonds are issued. This fee is estimated to
be $3,400 based on the projected debt service.
General Description of Bond oeerdostom
In connection with the issuan of thele mg Proj t Bonds, the City Council will be
asked to take the following acts d F 008: (1- old a"TEFRA" hearing, (2) adopt
an inducement resolution (Resolution 2008-024) and (3) consider on First Reading an ordinance
authorizing the bonds. The purpose of the ordinance is addressed elsewhere in the summary, but
the other two actions are described more fully below:
February 19, 2008 -6- Item No. 33 A-B
TEFRA Public Approval Requirement
As a condition of federal tax exemption for all private activity bonds, the Internal Revenue Code
requires that such bonds be appr y e d, ici subsequent to a public hearing
for which reasonable public lice provi d T r i ment is typically referred to as
"TEFRA" because it was add by a fe ral a p e in 19 called the Tax Equity and Fiscal
Responsibility Act. Reasonable ris er be by lication in a local newspaper over
14 days in advance of the hearing. Accordingly, notice of the hearing on February 19th was
published in the Coloradoan on January 27,2008. The Council can declare the hearing open during
the meeting and simply ask if anyone from the public would like to say anything with respect to the
project. More often than not, no one from the public appears to speak. After providing such
opportunity, the hearing can be closed and this federal requirement will be met.
The hearing can take place any time prior to the issuance of the bonds. However, the meeting on
February 19th was selected because the City will already be discussing the bond issue.
Inducement Resolution
The primary reason for adopting an inducement resolution is also found in federal tax law. If a
municipal borrower or private activity bond beneficiary (e.g., CBI Real Estate Holdings, LLC)
desires the ability to reimburse ' �andu
m bon roceeds for expenditures that
accrue before the issuance of t and , ev ue o will permit such reimbursement
provided that the public issue doptsresolut n and the expenditure accrued no
earlier than 60 days prior tot e n was opted. Accordingly, inducement
resolutions are often adopted very early in the bond process to maximize the project costs to which
the tax exempt proceeds can be applied. However, as made clear in the resolution, adoption does
not create an obligation on the part of the City to authorize the bonds.
ATTACHMENTS
1. PowerPoint presentation on Private Activity Bonds.
2. PowerPoint presentation on Custom Blending Private Activity Bonds Overview.
3. Letter from the Fort Collins Housing Authority.
ORDINANCE NO. 022, 2008
AN ORDINANCE AUTHORIZING THE ISSUANCE AND SALE BY THE CITY OF FORT
COLLINS, COLORADO OF VARIABLE RATE ECONOMIC DEVELOPMENT REVENUE
BONDS, SERIES 2008A (CUSTOM BLENDING, INC. PROJECT) AND OF TAXABLE
VARIABLE RATE ECONOMIC DEVELOPMENT REVENUE BONDS, SERIES 2008B
(CUSTOM BLENDING, INC. PROJECT) IN THE COMBINED AGGREGATE PRINCIPAL
AMOUNT NOT TO EXCEED $5,000,000 FOR THE PURPOSE OF FINANCING THE
ACQUISITION, CONSTRUCTION AND EQUIPPING OF A MANUFACTURING FACILITY
IN THE CITY OF FORT COLLINS, COLORADO, AND TO PAY CERTAIN COSTS OF
SUCH BOND ISSUE; APPROVING AND AUTHORIZING EXECUTION OF A TRUST
INDENTURE, LOAN AGREEMENT, PROMISSORY NOTE AND BOND PURCHASE
AGREEMENT WITH RESPECT TO THE BONDS; MAKING FINDINGS AND
DETERMINATIONS WITH RESPECT TO THE PROJECT AND THE BONDS;
AUTHORIZING THE EXECUTION AND DELIVERY OF RELATED DOCUMENTS; AND
REPEALING ALL ACTION HERETOFORE TAKEN IN CONFLICT HEREWITH.
WHEREAS, the City of Fort Collins, Colorado (the "City") is a duly organized and
existing home rule municipality of the State of Colorado, created and operating pursuant to
Article XX of the Constitution of the State of Colorado and the home rule charter of the City;
and
WHEREAS, the County and Municipality Development Revenue Bond Act, constituting
Article 3 of Title 29, Colorado Revised Statutes, as amended (the "Act"), authorizes cities and
counties in the State to finance or refinance one or more manufacturing projects, including any
land, buildings or other improvements, and all real and personal properties, whether or not in
existence, necessary therefor, which projects promote industry or other economic activity to
mitigate unemployment and secure and maintain a balanced and stable economy; and
WHEREAS, the City is further authorized by the Act to issue its revenue bonds for the
purposes of defraying the costs of financing or refinancing any such project, including all
incidental expenses incurred in issuing such bonds, and to secure the payment of such bonds as
provided in the Act; and
WHEREAS, representatives of CBI Real Estate Holdings, LLC, a Colorado limited
liability company (the `Borrower") have requested that the City issue its economic development
revenue bonds pursuant to terms of the Act to finance a portion of the cost of a project under the
Act, which project consists of. (a) the acquisition, construction and improvement of an
approximately 33,000 square foot manufacturing facility located at Harmony Technology Park,
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within the boundaries of the City, and (b) the payment of the costs of issuing such bonds
(collectively, the"Project"); and
WHEREAS, the City has considered the request of the Borrower and has concluded that
the Project will mitigate unemployment and promote trade and a balanced and stable economy
within the City, and that the City should issue its economic development revenue bonds under
the Act to finance a portion of the cost of the Project, subject to the conditions set forth herein;
and
WHEREAS, the City will issue, sell and deliver its City of Fort Collins, Colorado
Variable Rate Economic Development Revenue Bonds, Series 2008A (Custom Blending, Inc.
Project) (the "2008A Bonds"), and its City of Fort Collins, Colorado Taxable Variable Rate
Economic Development Revenue Bonds, Series 2008B (Custom Blending, Inc. Project) (the
"2008B Bonds") (together, the 2008A Bonds and the 2008B Bonds are referred to herein as the
"Bonds"), pursuant to the terms of a Trust Indenture dated as of March 1, 2008 (the "Indenture")
between the City and Wells Fargo Bank, National Association, as trustee (the"Trustee") to pay a
portion of the cost of financing the Project; and
WHEREAS, the Borrower will enter into a Loan Agreement, dated as of March 1, 2008
(the "Loan Agreement") between the City and the Borrower pursuant to which the proceeds of
the Bonds will be loaned to the Borrower; and
WHEREAS, the Borrower will execute a Promissory Note (the "Promissory Note")
evidencing its obligations under the Loan Agreement which Promissory Note evidences the
Borrower's obligation to repay the principal of, premium, if any, and interest on the Bonds; and
WHEREAS, Wells Fargo Bank, National Association (the "Bank") will issue its
irrevocable direct pay letter of credit (the "Letter of Credit") for the benefit of the Trustee which
Letter of Credit will secure the payment of the purchase price of the Bonds, including certain
interest thereon and the payment of the principal of the Bonds and certain interest thereon when
due whether upon prior redemption, acceleration or maturity of the Bonds; and
WHEREAS, pursuant to the terms of a Reimbursement Agreement dated as of March 1,
2008, between the Borrower and the Bank, the Borrower will be obligated to reimburse the Bank
for draws upon the Letter of Credit, including interest thereon, and to pay certain fees and
expenses of the Bank related thereto; and
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WHEREAS, Wells Fargo Bank Brokerage Services, LLC (the "Remarketing Agent")
will act as the initial remarketing agent for the Bonds pursuant to the terms of a Remarketing
Agreement dated as of March 1, 2008 between the Borrower and the Remarketing Agent; and
WHEREAS, the Bonds shall be sold by Wells Fargo Bank Brokerage Services, LLC (the
"Underwriter"), pursuant to the terms of a Bond Purchase Agreement (the "Bond Purchase
Agreement") among the City, the Borrower and the Underwriter; and
WHEREAS, there have been presented to the City Council of the City (the "Council')
and is on file at the City offices the forms of the following documents: (a) the proposed form of
the Loan Agreement, including therein the proposed form of the Promissory Note, (b) the
proposed form of the Indenture, (c) the proposed form of the Bond Purchase Agreement and (d)
the proposed form of Official Statement (the "Official Statement") prepared in connection with
the offering and sale of the Bonds; and
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS,
COLORADO:
Section 1. Definitions. Unless the context indicates otherwise, as used herein,
capitalized terms shall have the meanings ascribed by the preambles hereto and the Indenture,
and the following capitalized terms shall have the respective meanings set forth below:
C.R.S.: the Colorado Revised Statutes, as amended and supplemented as of the
date hereof.
Official Statement: the final version of the Official Statement.
Ordinance: this Ordinance which authorizes the issuance of the Bonds, and any
amendment or supplement lawfully made hereto.
Sale Certificate means a certificate executed by the Mayor, the City Manager, or
the Finance Director dated on or before the date of delivery of the Bonds, setting forth the price
at which the Bonds will be sold, the total principal amount of the Bonds, the amount of principal
maturing or subject to mandatory redemption on each date, and the final maturity of the Bonds,
subject to the parameters and restrictions contained in this Ordinance.
Supplemental Act: the Supplemental Public Securities Act, being Title 11,
Article 57, Part 2, C.R.S.
Section 2. Legal Authorization. The City is a duly organized and existing home
rule municipality of the State of Colorado, created and operating pursuant to Article XX of the
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Constitution of the State of Colorado and the home rule charter of the City and is authorized
under the Act to issue and sell its economic development revenue bonds in the form of one or
more debt instruments, such as the Bonds, for the purpose, in the manner and upon the terms and
conditions set forth in the Act, in this Ordinance, and in the Indenture.
Section 3. Findings. The Council has heretofore determined, and does hereby
determine, based upon the representations of the Borrower, as follows:
(a) The Project is an eligible "project," as defined in the Act.
(b) The issuance of the Bonds will effectuate the public purposes of the City
and carry out the purposes of the Act by, among other things, mitigating unemployment and
promoting trade and a balanced and stable economy within the City.
(c) The Bonds are special, limited obligations of the City payable solely out
of the income, revenues and receipts specifically pledged pursuant to the Indenture. The Bonds,
the premium, if any, and the interest thereon shall never constitute the debt or indebtedness of the
City within the meaning of any provision or limitation of the State Constitution, State statutes,
and shall not constitute nor give rise to a pecuniary liability of the City or a charge against its
general credit or taxing power and shall not constitute a "multiple fiscal year direct or indirect
debt or other financial obligation" of the City under Article X, Section 20 of the Colorado
Constitution. None of the State of Colorado, the City or any political subdivision thereof shall be
obligated to pay the principal of, premium, if any, or interest on the Bonds (except the City to the
extent of the revenues pledged under the Indenture) or other costs incident thereto. The Bonds
do not constitute a debt, loan, credit or pledge of the faith and credit or taxing power of the State,
the City or any political subdivision thereof.
Section 4. Authorization of Issuance of Bonds. To defray the cost of the Project
(including incidental expenses incurred in issuing the Bonds), there is hereby authorized and
created two series of variable rate revenue bonds designated "City of Fort Collins, Colorado,
Variable Rate Economic Development Revenue Bonds, Series 2008A (Custom Blending, Inc.
Project)" and "City of Fort Collins, Colorado, Taxable Variable Rate Economic Development
Revenue Bonds, Series 2008B (Custom Blending, Inc. Project)" in a combined aggregate
principal amount not to exceed $5,000,000. The Bonds shall be in such principal amounts, shall
be dated as of their date and shall bear interest at the rates determined pursuant to the terms of
the Indenture and Sale Certificate. The Bonds shall be payable, shall be subject to redemption or
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purchase in lieu of redemption and tender prior to maturity and shall be in substantially the forms
as provided in the Indenture. Furthermore, the Bonds shall be payable at such place and in such
form, shall carry such registration privileges, shall be executed, and shall contain such terms and
conditions, as set forth in the Indenture.
Section 5. Sale of Bonds. The purchase and sale of the Bonds pursuant to the terms
of the Bond Purchase Agreement be and the same are in all respects hereby approved, authorized
and confirmed, and the Mayor is hereby authorized and directed to execute the Bonds and the
City Clerk is hereby authorized and directed to affix the seal of the City and to attest the Bonds
and each is hereby authorized to deliver the Bonds for and on behalf of the City to the Trustee
for authentication pursuant to the Indenture. The Bonds shall be sold to the Underwriter for the
purchase price as set forth in the Bond Purchase Agreement (subject to the parameters set forth
herein).
Section 6. Application of Supplemental Act. The Council hereby elects to apply all
of the Supplemental Act to the issuance of the Bonds.
Section 7. Parameters. The Council hereby delegates to the Mayor and the City
Manager of the City the authority to make any determination delegable pursuant to Section 1 I-
57-205(l)(a-i) of the Supplemental Act in relation to the Bonds, subject to the following
parameters and restrictions: (a) the combined aggregate principal amount of the 2008A Bonds
and the 2008B Bonds shall not exceed $5,000,000; (b) the combined maximum net effective
interest rate shall not exceed 10%; (e) neither the 2008A Bonds nor the 2008B Bonds shall
mature later than December 1, 2032; (d) the combined maximum annual repayment cost shall not
exceed $650,000; (e) the combined total repayment cost shall not exceed $16,500,000; and (0
the combined purchase price of the Bonds shall not be less than 99%.
Section 8. Approval and Authorization of Documents. The Indenture, the Loan
Agreement, the Promissory Note and the Bond Purchase Agreement be and the same are in all
respects hereby approved, authorized and confirmed, and the Mayor is hereby authorized and
directed to execute and the City Clerk is hereby authorized and directed to affix the seal of the
City and to attest the Indenture, the Loan Agreement and the Bond Purchase Agreement in
substantially the forms and content as presented to the City on this date, subject to the approval
of bond counsel to the City, but with such changes, modifications, additions and deletions therein
as shall to them seem necessary, desirable or appropriate, their execution thereof to constitute
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conclusive evidence of their approval of any and all changes, modifications, additions and
deletions from the forms thereof as before this date.
Section 9. All Actions Heretofore Taken. All actions (not inconsistent with the
provisions of this Ordinance) heretofore taken by the Council and the officers of the City
directed toward the issuance and sale of the Bonds therefor are hereby ratified, approved and
confirmed.
Section 10. Compliance with the Act. The following determinations and findings are
hereby made in accordance with Sections 29-3-113, 29-3-1 l4 and 29-3-120 of the Act:
(a) The maximum amount necessary in any year to pay the principal
of and the interest on the Bonds is $650,000, assuming that the Bonds bear interest at a rate of
10%, which is the maximum rate permitted under the Indenture.
(b) No reserve funds have been established pursuant to the Indenture
and a determination is hereby made that it is not necessary to establish any reserve funds for
payment of the Bonds and maintenance of the facilities constituting the Project, except those
required pursuant to the Reimbursement Agreement.
(c) In the Loan Agreement, the Borrower has covenanted to maintain,
or cause to be maintained, the facilities constituting Project and to carry, or cause to be carried,
all proper insurance with respect thereto.
(d) The revenues and other amounts payable under the Loan
Agreement are sufficient to pay, in addition to all other requirements of the Loan Agreement and
this Ordinance, all sums referred to in paragraphs (a) and (c) of this Section and all taxes or
payments in lieu of taxes levied upon the facilities constituting the Project
Section 11. Investments. Proceeds from the sale of the Bonds and special funds from
the revenues from the facilities constituting the Project shall be invested and reinvested in such
securities and other investments specified in, and otherwise in accordance with, the Indenture
and Section 29-3-109 of the Act.
Section 12. Authority to Execute and Deliver Additional Documents. The officers,
employees and agents of the City shall take all action in conformity with the Act necessary or
reasonably required to effectuate the issuance of the Bonds and shall take all action necessary or
desirable in conformity with the Act to financing the portion of the costs of the Project to be
financed with proceeds of the Bonds and for carrying out, giving effect to and consummating the
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transactions contemplated by this Ordinance, the Loan Agreement, the Promissory Note, the
Indenture and the Bond Purchase Agreement, including without limitation the execution,
delivery and filing of any documents, statements or reports with the United States Internal
Revenue Service or with the Secretary of the United States Treasury or his delegate necessary to
maintain the exclusion of interest on the Bonds from gross income for federal income tax
purposes, the execution of any letter of representation or similar document required of any
securities depository, and the execution and delivery of additional security documents and any
closing documents to be delivered in connection with the sale and delivery of the Bonds.
Section 13. Bonds are Special, Limited Obligations. The Bonds shall be special,
limited obligations of the City payable solely from the receipts and revenues of the City under
the Loan Agreement that are specifically pledged therefor under the Indenture; the Bonds shall
never constitute a debt or indebtedness of the City, the State or any county, municipality or
political subdivision of the State within the meaning of any provision or limitation of the
Constitution or statutes of the State or the home rule charter of the City or of any political
subdivision of the State; and the Bonds shall never constitute nor give rise to any pecuniary
liability of, or a charge against the general credit or taxing powers of, the City, the State or any
county, municipality or political subdivision of the State. The Bonds shall not constitute a
"multiple fiscal year direct or indirect debt or other financial obligation" of the City under
Article X, Section 20 of the Colorado Constitution.
Section 14. No Pecuniary Liability. Nothing contained in this Ordinance or in the
Bonds, the Indenture, the Loan Agreement or the Bond Purchase Agreement or any other
instrument shall give rise to a pecuniary liability of, or a charge upon the general credit or taxing
powers of, the City, the State or any county, municipality or political subdivision of the State.
The breach by any party of any agreement contained in this Ordinance, the Bonds, the Indenture,
the Loan Agreement, the Bond Purchase Agreement or any other instrument shall not impose
any pecuniary liability upon, or any charge upon the general credit or taxing powers of, the City,
the State or any county, municipality or political subdivision of the State, none of which has the
power to pay out of its general fund, or otherwise contribute, any part of the cost of financing or
refinancing of the Project, or power to operate the Project as a business or in any manner.
Section 15. No Condemnation by City. The City shall not condemn any land or
other property for the Project.
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Section 16. Trustee and Remarketing Agent. Wells Fargo Bank West, National
Association, located in Denver, Colorado, is hereby appointed as Trustee, paying agent and
registrar under the Indenture and Wells Fargo Brokerage Services, LLC, is hereby appointed as
Remarketing Agent under the Indenture.
Section 17. Official Statement. The City hereby acknowledges the Underwriter's use
of the Official Statement, substantially in the form presented to the Council, in the marketing of
the Bonds.
Section 18. Supplemental Ordinances. The City may, subject to the terms and
conditions of the Indenture, pass and execute Ordinances supplemental to this Ordinance which
shall not be inconsistent with the tenns and provisions hereof.
Section 19. Limitation of Rights. With the exception of any rights herein expressly
conferred, nothing expressed or mentioned in or to be implied from the Ordinance or the Bonds
is intended or shall be construed to give to any person, other than the City, the Borrower and the
Underwriter, any legal or equitable right, remedy or claim under or with respect to this
Ordinance or any covenants, conditions and provisions herein contained; this Ordinance and all
of the covenants, conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of the City, the Borrower and the Underwriter as herein provided.
Section 20. Pledge of Revenues. The creation, perfection, enforcement, and priority
of the pledge of the Security(as defined in the Indenture) to secure or pay the Bonds as provided
herein and in the Indenture shall be governed by Section 11-57-208 of the Supplemental Public
Securities Act, Article 57 of Title 11 of Colorado Revised Statutes, as amended (the "Public
Securities Act"), which is hereby adopted for such purpose, and this Ordinance. The Security for
the payment of the Bonds, as received by or otherwise credited to the City and the Trustee, shall
immediately be subject to the lien of such pledge without any physical delivery, filing, or further
act. The lien of such pledge on the Security shall have priority over any or all other obligations
and liabilities of the City. The lien of such pledge shall be valid, binding, and enforceable as
against all persons having claims of any kind in tort, contract, or otherwise against the City
irrespective of whether such persons have notice of such liens.
Section 21. Immunity of Officers. Pursuant to Section 11-57-209 of the Public
Securities Act, if a member of the Council, or any officer or agent of the City acts in good faith,
no civil recourse shall be available against such commissioner, officer, or agent for payment of
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the principal of or interest on the Bonds. No recourse for the payment of any part of the
principal of, premium, if any, or interest on the Bonds for the satisfaction of any liability arising
from, founded upon or existing by reason of the issue, purchase or ownership of the Bonds shall
be had against any official, officer, commissioner or agent of the City or the State, all such
liability to be expressly released and waived as a condition of and as a part of the consideration
for the issue, sale and purchase of the Bonds.
Section 22. Limitations on Actions. In accordance with the Act, no action shall
be brought questioning the legality of any contract, financing agreement, mortgage, trust
indenture, proceeding relating to the Bonds or the Bonds, or the Project on and after thirty days
from the effective date of this Ordinance.
Section 23. Counterparts. This Ordinance may be simultaneously executed in
several counterparts, each of which shall be an original and all of which shall constitute but one
and the same instrument.
Section 24. Captions. The captions or headings in this Ordinance are for convenience
only and in no way define, limit or describe the scope or intent of any provisions or sections of
this Ordinance.
Section 25. Validity of Bonds. Each Bond shall contain a recital that such Bond is
issued pursuant to the Act and the Public Securities Act, and such recital shall be conclusive
evidence of its validity and of the regularity of its issuance.
Section 26. Irrepea[ability. After any of the Bonds are issued, this Ordinance shall
be and remain irrepealable until the Bonds and the interest thereon shall have been fully paid,
canceled and discharged.
Section 27. Repealer. All orders, resolutions, bylaws or regulations of the City, or
parts thereof, inconsistent with this Ordinance are hereby repealed to the extent only of such
inconsistency.
Section 28. Severability. If any section, paragraph, clause or provision of this
Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or
unenforceability of such section, paragraph, clause or provision shall not affect any of the
remaining provisions of this Ordinance.
Section 29. Charter. Pursuant to Article XX of the State Constitution and the
Charter, all State statutes that might otherwise apply in connection with the provisions of this
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ordinance are hereby superseded to the extent of any inconsistencies between the provisions of
this ordinance and such statutes. Any such inconsistency is intended by the City Council and
shall be deemed made pursuant to the Charter.
INTRODUCED, READ, APPROVED ON FIRST READING AND
ORDERED PUBLISHED BY NUMBER AND TITLE ONLY this 19`h day of February,
2008.
CITY OF T COLLINS, COLOR-ADO
Mayor
(SEAL)
ATTESTED:
City Cle —
INTRODUCED, READ, APPROVED ON SECOND READING AND
ORDERED PUBLISHED BY NUMBER AND TITLE ONLY this 41n day of March, 2008.
CITY OF FORT COLLINS, COLORADO
Mayor
(SEAL)
ATTESTED:
City Clerk
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