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HomeMy WebLinkAbout144 - 12/05/1989 - PROVIDING FOR THE ISSUANCE AND SALE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1989, FOR THE PU CERTIFIED RECORD OF PROCEEDINGS OF THE COUNCIL OF THE CITY OF FORT COLLINS , COLORADO RELATING TO AN ORDINANCE AUTHORIZING THE ISSUANCE OF ITS INDUSTRIAL DEVELOPMENT REVENUE BONDS (THE ESAB AUTOMATION, INC. PROJECT) SERIES 1989 IN A PRINCIPAL AMOUNT NOT TO EXCEED $6 , 000 , 000 STATE OF COLORADO ) COUNTY OF LARIMER )ss . CITY OF FORT COLLINS ) The City Council of the City of Fort Collins , Colorado, held a regular meeting in the Council Chambers , at City Hall , on Tuesday, the 7th day of November, 1989 , at the hour of 6: 30 p.m. The following persons were present: Councilmembers : Bob Winokur, Mayor Susan E. Kirkpatrick Gerry Horak David Edwards Loren Maxey Ann Azari City Manager: Steven Burkett City Clerk: Wanda M. Krajicek The following persons were absent: Chuck Mabry withdrew from discussion on this matter . Councilmember Maxey introduced Ordinance No. 144, 1989 , which was read by title, copies of the full Ordinance having been available in the office of the City Clerk at least forty-eight ( 48 ) hours prior to the time said Ordinance was introduced for each Councilmember and for inspection and copying by the general public. - ii - ORDINANCE NO. 144, 1989 AN ORDINANCE RELATING TO THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS UNDER THE PROVISIONS OF THE COLORADO COUNTY AND MUNICIPALITY DEVELOPMENT REVENUE BOND ACT; PROVIDING FOR THE ISSUANCE AND SALE OF CITY OF FORT COLLINS, COLORADO, INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1989 (THE ESAB AUTOMATION, INC. PROJECT ) IN THE PRINCIPAL AMOUNT OF $6, 000, 000 FOR THE PURPOSE OF LOANING FUNDS TO ESAB AUTOMATION, INC. TO FINANCE IMPROVEMENTS RELATING TO ACQUIRING, IMPROVING, CONSTRUCTING, INSTALLING AND EQUIPPING A MANUFACTURING FACILITY IN FORT COLLINS , COLORADO; APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF A TRUST INDENTURE FROM THE CITY TO KEY BANK OF WYOMING, AS TRUSTEE; APPROVING AND AUTHORIZING THE EXECUTION AND ASSIGNMENT OF A LOAN AGREEMENT AND NOTE BETWEEN ESAB AUTOMATION, INC. AND THE CITY; AND AUTHORIZING THE PREPARATION AND EXECUTION OF CERTAIN RELATED DOCUMENTS AND INSTRUMENTS. WHEREAS, The City of Fort Collins , Colorado (the "City" ) , is authorized by part 1 of Article 3 of Title 29, Colorado Revised Statutes , as amended (the "Act" ) , to issue revenue bonds for the purpose of financing projects to the end that business enterprises will locate in the City of Fort Collins , to enter into financing agreements with others for the purpose of providing revenues to pay such bonds, and further to secure the payment of such bonds ; and WHEREAS , pursuant to a Resolution duly adopted on August 1, 1989 (the " Inducement Resolution" ) , the City will take all necessary and advisable steps to issue such bonds in accordance with the provisions of the Act for the purpose of financing a Project ( the "Project" ) to be owned by ESAB Automation , Inc . , a Colorado corporation ( the "Company" ) and to be located within the City of Fort Collins ; and WHEREAS , the following documents have been submitted to the Council of the City ( the "Council" ) and filed in the office of the City Clerk of the City of Fort Collins ( the "Clerk" ) and are there available for public inspection: (a) a Trust Indenture , to be dated as of December 1 , 1989 ( the "Indenture" ) from the City to Key Bank of Wyoming , Trust Division, P.O. Box 648 , Cheyenne , Wyoming 82003 , as trustee (the "Trustee" ) ; ( b) a Loan Agreement , to be dated as of December 1 , 1989 ( the "Loan Agreement" ) , between the City and Company including a form of Company' s Note to the City; -1- (c) a Letter of Credit in the approximate amount of $6, 280, 000 issued by Svenska Handelsbanken New York Branch (the "Bank" ) , pursuant to a Reimbursement Agreement to be dated December 1, 1989 , between the Company and the Bank ; and ( d) a Bond Purchase Agreement to be dated as of the date of its delivery (the "Bond Purchase Agreement" ) among Kirchner Moore & Company, Denver, Colorado, as underwriter ( the "Underwriter" ) , the City and the Company. WHEREAS , the Council desires to issue at this time the City of Fort Collins, Colorado Industrial Development Revenue Bonds , Series 1989 (The ESAB Automation, Inc . Project) in a principal amount not to exceed $6, 000,000 ( the "Bonds" ) ; and WHEREAS , it is necessary to authorize the issuance of the Bonds by ordinance and to approve the form and authorize the execution of the aforementioned documents thereby. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS , COLORADO, THAT: ARTICLE I DEFINITIONS, LEGAL AUTHORIZATION, ELECTION, APPROVALS AND FINDINGS 1 . 1. Definitions The terms used herein , unless the context hereof shall require otherwise, shall have the same meanings when used herein as assigned to them in the Trust Indenture unless the context or use thereof indicates another or different meaning or intent. 1 . 2. Legal Authorization The City is a political subdivision of the State of Colorado and, in the opinion of Bond Counsel , is authorized under the Act to finance the Project herein referred to, and to issue and sell the Bonds for the purpose , in the manner and upon the terms and conditions set forth in the Act and in this Ordinance . 1 . 3 . Findings The Council , based on the representations of the Company, has heretofore determined and found, and does hereby determine and find , as follows : (a) In authorizing the Project the City' s purpose is , and in its judgment the effect thereof will be, the promotion and development of trade and other economic activities within -2- the City by inducing the Company to acquire and construct facilities in the City and to secure and maintain a balanced and stable economy within the City; (b) The amount estimated to be necessary to finance the Project Costs , including the costs and estimated costs permitted by the Act , will require the issuance of the Bonds in the principal amount of $6, 000 , 000 as hereinafter provided; ( c) It is desirable , feasible and consistent with the objects and purposes of the Act to issue the Bonds , for the purpose of financing the construction of the Project ; (d ) The Bonds and the interest accruing thereon shall never constitute the debt or indebtedness of the City within the meaning of any provision or limitation of the constitution or statutes of the State of Colorado or the home Rule Charter of the City of Fort Collins, Colorado and shall not constitute nor give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers ; (e) Pursuant to Sections 113 and 114 of the Act the City hereby determines: ( i ) the total amount necessary in each year to pay the principal of and interest on the Bonds is as more particularly set forth in the Indenture , and ( ii ) since the Loan Agreement provides that the Company shall maintain the Project and carry all proper insurance with respect thereto, no determination of the estimated cost of maintaining the Project need be made; and ( f ) Pursuant to Section 120 of the Act , the City hereby determines that the revenues of the Company will be sufficient to, and that the Loan Agreement provides that the Company shall , pay all taxes which may be due and owing with respect to the Project . 1 . 4 . Authorization and Ratification of Project The City hereby authorizes the Company to provide for the acquisition, construction and installation of the Project by such means as shall be available to the Company and in the manner determined by the Company. 1 . 5. Election by Issuer The City hereby elects , with respect to the Bonds , to be within the limitation imposed by the provisions of Section 144 (a) (4 ) (A) of the Internal Revenue Code of 1986 , as amended ( the "Code" ) and the Clerk of the Issuer is hereby directed to keep this election in such person ' s official records of the proceedings of Council , and any and all acts heretofore taken pertaining to such election and relating to such requirements are hereby ratified and confirmed. -3- 1. 6. Approval Pursuant to Section 147 (f) of the Code For purposes of complying with Section 147 (f ) of the Code , this Council has heretofore conducted a public hearing with respect to the Project and the use of proceeds of the Bonds , notice of which hearing was published at least 14 days prior thereto for purposes of approving the issuance of the Bonds in the maximum aggregate principal amount of $6, 000, 000 and the use of the proceeds to finance the costs of the acquisition , renovation, equipping and installation of manufacturing facilities which facilities are owned and operated by the Company and used by the Company in the manufacturing of robotic welding systems and metal fabricating and shape cutting machines . ARTICLE II BONDS 2. 1 . Issuance and Sale of Bonds ; Interest Rates The Issuer shall issue its Industrial Development Revenue Bonds, Series 1989 (The ESAB Automation, Inc. Project) to be dated the date of issuance, in a principal amount not to exceed $6, 000, 000, for the purpose , in the form and upon the terms set forth in the Bonds and the Indenture. The Bonds shall be subject to redemption as set forth in the Indenture. The Bonds shall be sold to the Underwriter pursuant to the terms of the Bond Purchase Agreement. The Bonds shall be numbered consecutively from "R-1 " upward , shall be issued in denominations of $5, 000 or any integral multiple thereof and shall be dated the date of issuance . Interest on the Bonds shall be payable commencing on June 1 , 1990 , and thereafter on June 1 and December 1 of each year until maturity. Each Bond shall bear interest until the principal sum thereof has been paid; provided , however , that if Bonds have been called for redemption and funds are available for the payment on the redemption date thereof in full accordance with the terms of this Ordinance and the Indenture , the Bonds shall then cease to bear interest . The Bonds shall mature on the 1st day of December in the principal amounts and years , and shall bear interest at the per annum rates shown in the following schedule: Maturity Dates Principal Interest (December 1 ) Amounts Rates 1990 $ 140, 000 6. 30% 1991 $ 150 , 000 6. 50% 1992 $ 160, 000 6. 60% 1993 $ 170 , 000 6. 70% 1994 $ 185, 000 6. 80% -4- 1995 $ 195, 000 6. 90% 1996 $ 210, 000 7. 00% 1997 $ 225 , 000 7. 10% 1998 $ 245, 000 7. 20% 2000 $ 540 , 000 7. 30% 2009 $3, 780, 000 7. 60% The maximum net effective interest rate authorized for the Bonds is eight percent ( 8% ) per annum. The actual net effective interest rate on the Series 1989 Bonds is 7. 616% per annum. Bonds maturing on December 1 , 2009, shall be initially issued at a 0. 50% original issue discount; that is , the purchase price of such bonds shall be 99. 50% of the par amount thereof . The amount of such original issue discount is $18, 900 . 00. The City hereby authorizes the distribution of an Official Statement pertaining to the Bonds , in substantially the form submitted to the City, but with such changes as the Director of Finance may approve; provided , however , that the City does not warrant or represent that any information contained in the Official Statement is true and correct in all material respects or that such information does not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to be stated therein in order to make the statements therein , in the light of the circumstances under which they were made, not misleading. ARTICLE III GENERAL COVENANTS 3. 1. Payment of Principal and Interest The principal and interest are payable solely from and secured by revenues and proceeds derived from the Project and payable pursuant to the Indenture , the Loan Agreement, the Company Note, and the Letter of Credit ; and nothing in the Bonds or in this Ordinance shall be considered as assigning , pledging or otherwise encumbering any other funds or assets of the City. 3 . 2. Performance of and Authority for Covenants The City covenants that it will faithfully perform at all times any and all covenants, undertakings , stipulations and provisions contained in this Ordinance , the Indenture , the Loan Agreement , in the Bonds executed, authenticated and delivered hereunder and in all proceedings of the City Council pertaining thereto ; that it is duly authorized under the Constitution and laws of the State of Colorado, including particularly and without limitation the Act, to issue the Bonds authorized hereby, pledge the revenues and assign the Loan Agreement and endorse the Company Note in the manner and to the extent set forth in this Ordinance, the Indenture , the Bonds and the Loan Agreement and -5- Assignment of Loan Agreement ; that all action on its part for the issuance of the Bonds and for the execution and delivery thereof has been duly and effectively taken; and that the Bonds are and will be a valid and enforceable obligation of. the City according to the terms thereof. In making these representations , the City relies upon the opinion of Bond Counsel as to the truth of matters asserted and the efficacy of actions taken . 3. 3. Nature of Security Notwithstanding anything contained in the Bond , the Indenture , the Loan Agreement , the Bond Purchase Agreement , the Letter of Credit or any other document referred to in this Ordinance , the Bonds shall never constitute the debt or indebtedness of the City within the meaning of any provision or limitation of the constitution or statutes of the State of Colorado or Charter of the City of Fort Collins , Colorado and shall not constitute nor give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers ; and the City, its agents , officers and employees shall not be subject to any personal or pecuniary liability thereon. ARTICLE IV MISCELLANEOUS 4 . 1 . Facsimile Signatures Pursuant to the Uniform Facsimile Signature of Public Officials Act of the State of. Colorado, Section 11-55-101 et seq. , C.R.S. , as amended , the Mayor, the City Clerk and the Finance Director of the City shall forthwith, but in any event prior to the time the Bonds are delivered to the purchasers thereof, file with the Colorado Secretary of State their manual signatures , certified by them under oath, using a suitable Facsimile Signature Certificate for such purpose. 4. 2. CUSIP Numbers Pursuant to recommendations promulgated by the Committee on Uniform Security Identification Procedures , "CUSIP" identifica- tion numbers may be imprinted on the Bonds, but such numbers shall not constitute a part of the contract evidenced by the Bonds, and no liability shall hereafter attach to the City or any of the officers or agents thereof because of or on account of said numbers . Any error or omission with respect to said numbers shall not constitute cause for refusal by any person to accept delivery of and pay for the Bonds nor shall it affect the validity of such Bonds. -6- 4 . 3. Severability If any provision of this Ordinance , except Section 3 . 3 of Article III hereof , shall be held or deemed to be , or shall , in fact , be , inoperative or unenforceable as applied in any particular case in any jurisdictions or in all cases because it conflicts with any provisions of any constitution or statute or rule or public policy, or for any other reason, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatever. The invalidity of any one or more phrases , sentences , clauses or paragraphs in this Ordinance , except Section 3 . 3 of Article III hereof, shall not affect the remaining portions of this Ordinance or any part hereof. In the event Section 3. 3. of Article III hereof is held to be inoperative or unenforceable for any reason, no other provision or section of this Ordinance shall be given effect in any manner so as to impose any indebtedness or liability upon the City. 4 . 4. Authorization to Execute Documents The forms of the proposed Indenture , the Loan Agreement , the Assignment of Loan Agreement , the Company Note and the Bond Purchase Agreement are hereby approved in substantially the form presented to the Council ; and the Mayor and the City Clerk are authorized to endorse the Company Note and execute the Loan Agreement, the Indenture and the Assignment of Loan Agreement in the name of and on behalf of the City and such other documents as Bond Counsel considers appropriate in connection with the issuance of the Bonds , including an IRS Form 8038 . The City Manager or the Assistant City Manager or the Director of Finance , in the absence of the City Manager, is authorized to execute the Bond Purchase Agreement on behalf of the City. The officials and officers of the City specified in the Indenture are authorized to execute and deliver the Bonds. In the event of the absence or disability of the Mayor or the City Clerk, such officers of the City as , in the opinion of the City Attorney, may act in their behalf, shall without further act or authorization of the Council do all things and execute all instruments and documents required to be done or executed by such absent or disabled officers . 4 . 5. Authority to Correct Errors, Etc. The Mayor and the Clerk are hereby authorized and directed to make or agree to any alterations , changes or additions in the instruments hereby approved as the Mayor and the City Attorney deem necessary or proper to accomplish the purposes of this Ordinance , the signatures of the Mayor and the Clerk on the instruments to be conclusive evidence of such approval ; provided, however , no alteration , change or addition shall be made which shall alter the maximum net effective interest rate , denomination, date , maturities , form, interest rates , -7- registration privileges , manner of execution, places of payment or terms of prepayment of the Bonds or which shall increase the aggregate principal amount of the Bonds authorized by the City Council or in any way give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers with respect to the Bonds. 4 . 6. Further Authority The Mayor and the City Clerk and other proper City officials, and each of them, 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 they may deem necessary or appropriate in order to implement and carry out the matters herein authorized. 4 . 7. Repealer All ordinances or parts thereof in conflict with this Ordinance are hereby repealed. 4 . 8. Ordinance Irrepealable ; Amendments After said bonds are issued this Ordinance shall be and remain irrepealable until said bonds and the interest thereon shall have been fully paid, satisfied and discharged. In the event this Ordinance is amended , modified or changed in any manner, written notice of same shall be given by the City to the Trustee. 4 . 9 . Recording and Authentication This Ordinance, as adopted by the City Council , shall be numbered and recorded, and the adoption and publication by title shall be authenticated by the signatures of the Mayor and City Clerk and by the certificate of the publisher, respectively. Introduced, considered favorably on first reading and ordered published by title this 7th day of November, 1989, and to be presented for final passage on the 5th day of December, 1989 . (SEAL) ATTEST: City Clerk Mayor -8- Passed and adopted on final reading on this 5th day of December, 1989. (SEAL) ATTEST: J� City Clerk Q, TTayor Councilmember Maxey moved that the foregoing Ordinance heretofore introduced and read by title be approved on first reading. Councilmember Kirkpatrick seconded the motion. The question being upon the approval on first reading of the Ordinance , the roll was called with the following results : Councilmembers voting "AYE" : Bob Winokur, Mayor Susan E. Kirkpatrick Loren Plaxey Gerry Horak David Edwards Ann Azari Councilmembers voting "NAY" : None The Mayor thereupon declared that , a majority of the Councilmembers present having voted in favor thereof, the motion was carried and the Ordinance duly approved on first reading. Thereupon the Mayor ordered said Ordinance published once by number and title only together with a notice giving the date when said Ordinance will be presented for final passage in The Coloradoan, a newspaper of general circulation published in the City, at least seven (7 ) days before presentation for final passage. After consideration of other business to come before the Council, the meeting was adjourned. (SEAL) ATTEST: T City Clerk Mayor City of Fort Collins , City of Fort Collins , Colorado Colorado -9- STATE OF COLORADO ) COUNTY OF LARIMER ) CITY OF FORT COLLINS ) The Council of the City of Fort Collins , Colorado, held a regular meeting at City Hall, on Tuesday, the 5th day of December, 1989 , at the hour of 6 : 30 p.m. The following persons were present : Councilmembers : Bob Winokur, Mayor Susan E. Kirkpatrick Loren Maxey Gerry Horak David Edwards Ann Azari City Manager: Steven Burkett City Clerk : Wanda M. Krajicek The following persons were absent: Chuck Mabry withdrew from discussion on this matter. The Mayor informed the Council that Ordinance No. 144, 1980 which was introduced , approved on first reading, and ordered published once by number and title only at a regular meeting of the Council held on Tuesday, November 7 , 1989 , was duly published in The Coloradoan , a newspaper of general circulation published in the City, in its issue of Sunday, November 12 , 1989 . Councilmember Azari then read said Ordinance by its title , and the amendments thereto. Thereupon, Councilmember Azari moved the final passage of Ordinance No. 144 lg8g , as amended, and the question being upon the final passage of said Ordinance , the roll was called with the following results: -10- Councilmembers voting "AYE" : Councilmembers : Bob Winokur, [Mayor_ Susan E. Kirkpatrick Loren Maxey Gerry Horak David Edwards Ann Azari Councilmembers voting "NAY" : None The Mayor thereupon declared that the requisite majority of the Councilmembers present having voted in favor thereof, the motion was carried, and the Ordinance finally passed. Thereupon the Mayor ordered said Ordinance , as amended, published together with a notice of the final passage of the Ordinance in The Coloradoan , a newspaper of general circulation published in the City, within seven (7 ) days after said final passage. After consideration of other business to come before the Council the meeting was adjourned. (SEAL) ATTEST: �p r J�O�M21! City Clerk Mayor City of Fort Collins , Colorado City of Fort Collins , Colorado STATE OF COLORADO ) ss . COUNTY OF LARIHER ) CITY OF FORT COLLINS ) I , Wanda M. Krajicek, City Clerk of the City of Fort Collins , Colorado, do hereby certify that the attached copy of Ordinance No. 144 , 1989 , is a true and correct copy ; that said Ordinance was introduced and approved on first reading by the Council of the City of Fort Collins , Colorado, at a regular meeting thereof_ held at City Hall , the regular meeting place thereof , on Tuesday, the 7th day of November, 1989 , that said Ordinance was finally passed on second reading by said Council at a regular meeting -11- L passed on second reading by said Council at a regular meeting thereof held at City Hall , the regular meeting place thereof , on Tuesday, the 5th day of December, 1989, that a true copy of said Ordinance has been authenticated by the signatures of the Mayor of said City and myself as City Clerk thereof, sealed with the Seal of the City, and numbered and recorded in a book marked "Ordinance Record" kept for such purpose in my office; and that said Ordinance was duly published by number and title only together with a statement that the text thereof was available for public inspection and acquisition in the office of the City Clerk and a notice giving the date when said Ordinance would be presented for final passage and again by number and title only together with a statement that the text thereof was available for public inspection and acquisition in the office of the City Clerk and a notice of the final passage thereof in The Coloradoan , a newspaper of general circulation published in the City, in its issues of Sunday, November 12, 1989, and Sunday, December 10 , 1989 , as evidenced by the certificates of the publisher attached hereto at pages 13 and 14. I further certify that the foregoing pages 1 through 12, inclusive, constitute a true and correct copy of the record of the proceedings of said Council at its regular meetings of November 7, 1989, and December 5, 1989, insofar as said proceedings relate to said Ordinance; and that said proceedings were duly had and taken, that the meetings were duly held; and that the persons were present at said meetings as therein shown. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the City of Fort Collins, Colorado this llth day of December , 1989 . City Clerk City of Fort Collins , Colorado STATE OF COLORADO ) COUNTY OF LARIMER )ss . CITY OF FORT COLLINS ) (Attach affidavit of publication of the Ordinance and notice giving date when Ordinance to be presented for final passage . ) ESB1004 -12-