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HomeMy WebLinkAbout128 - 08/04/1998 - AN ORDINANCE APPROVING AND AUTHORIZING THE CITY TO ENTER INTO A SITE AGREEMENT BETWEEN THE CITY AND ORDINANCE NO. 128, 1998 AN ORDINANCE APPROVING AND AUTHORIZING THE CITY TO ENTER INTO A SITE AGREEMENT BETWEEN THE CITY AND FORT COLLINS CAPITAL LEASING CORPORATION,A LEASE AGREEMENT BETWEEN THE CORPORATION AND THE CITY, A PARKING STRUCTURE LICENSE AGREEMENT BETWEEN THE CITY AND LARIMER COUNTY, COLORADO, A FINANCIAL GUARANTY AGREEMENT BETWEEN THE CITY AND MBIA INSURANCE CORPORATION AND A CERTIFICATE PURCHASE AGREEMENT AMONG THE CORPORATION,THE CITY AND GEORGE K. BAUM& COMPANY AND APPROVING A TRUST INDENTURE BETWEEN THE CORPORATION AND THE BANK OF CHERRY CREEK,N.A., AS TRUSTEE,A LEASEHOLD DEED OF TRUST FROM THE CORPORATION TO THE PUBLIC TRUSTEE OF LARIMER COUNTY FOR THE BENEFIT OF THE TRUSTEE AND A PRELIMINARY OFFICIAL STATEMENT RELATING TO CERTAIN LEASE CERTIFICATES OF PARTICIPATION WHEREAS, the City of Fort Collins, Colorado (the "City"), has need for and desires to provide certain real and personal property for City purposes; and WHEREAS, the City is authorized by Colo. Const. art. XX, § b, its home rule charter and Section 23-114 of the City code to lease City property; and WHEREAS, the City is authorized by Colo. Const. art. XX, § b, its home rule charter and part 8 of article 15 of title 31,Colorado Revised Statutes,as amended(the"Act"),to enter into rental or leasehold agreements in order to provide necessary land,buildings,equipment and other property for governmental or proprietary purposes,and such agreements may include options to purchase and acquire title to such leased or rented property; and WHEREAS,Fort Collins Capital Leasing Corporation,a Colorado nonprofit corporation(the "Corporation"), has offered to lease certain real property from the City pursuant to the Site Agreement,dated as of August 1, 1998(the"Site Agreement"),between the City,as lessor,and the Corporation,as lessee, and lease such property and improvements thereto back to the City under a Lease Agreement,dated as of August 1, 1998(the"Lease"),between the Corporation,as lessor,and the City,as lessee; and WHEREAS, the Lease does not constitute a "multiple-fiscal year direct or indirect debt or other financial obligation" of the City within the meaning of art.X, §24(4)(b)and may therefore be entered into without voter approval; and 1 WHEREAS,the Corporation proposes to acquire its interest in such property for lease to the City and to acquire, construct and install improvements thereto with the proceeds of Lease Certificates of Participation(Civic Center Facilities Project), Series 1998,dated August 1, 1998,in the aggregate principal amount of $17,210,000 (the "Certificates") evidencing assignments of proportionate interests in its right to receive rental payments under the Lease; and WHEREAS, in order to provide security for the payment of the principal of and interest on the Certificates the Corporation proposes to assign its interest in the leased property and its right to receive rental payments under the Lease to The Bank of Cherry Creek, N.A., as trustee (the "Trustee"), under a Leasehold Deed of Trust, Assignment of Rents, Security Agreement and Financing Statement, dated as of August 1, 1998 (the "Deed of Trust"), between the Corporation, as grantor, and the Public Trustee of Larimer County, as grantee, for the benefit of the Trustee, as beneficiary, and a Trust Indenture, dated as of August 1, 1998 (the "Indenture"), between the Corporation, as grantor, and the Trustee, as trustee; and WHEREAS, the Ieased property includes a parking structure in which Larimer County, Colorado(the"County"),will acquire an interest pursuant to a Parking Structure License Agreement, dated as of August 1, 1998 (the "License Agreement"), between the City and the County; and WHEREAS,MBIA Insurance Corporation(the"Certificate Insurer")has offered to provide a debt service reserve surety bond in lieu of a cash reserve otherwise required as security for the Certificates pursuant to a Financial Guaranty Agreement,dated as of August 1, 1998(the"Financial Guaranty Agreement"), between the City and the Certificate Insurer; and WHEREAS,George K.Baum&Company and A.G.Edwards&Sons,Inc.(collectively,the "Underwriters") have made a public offering of the Certificates under a Preliminary Official Statement, dated July 22, 1998, relating thereto (the "Preliminary Official Statement") and have offered to purchase the Certificates under a Certificate Purchase Agreement,dated July 29,1998(the "Purchase Agreement"), among the Corporation,the City and the Underwriters; and WHEREAS the forms of the Site Agreement,the Lease,the Deed of Trust,the Indenture,the License Agreement,the Financial Guaranty Agreement,the Preliminary Official Statement and the Purchase Agreement have been filed with the City Clerk. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS, COLORADO: 1. The forms of the Site Agreement, the Lease, the Deed of Trust, the Indenture, the License Agreement,the Financial Guaranty Agreement,the Preliminary Official Statement and the Purchase Agreement are hereby approved,together with any revisions thereto as may be considered necessary or desirable by the Financial Officer in consultation with the City Attorney. 2. The City Council (the "Council") hereby finds that the lease of the leased property as provided in the Lease is in the best interests of the City. In addition,the determinations set forth in Section 6.5 of the Lease are incorporated herein by this reference as if set forth in full herein. 2 3. The Mayor and the City Clerk are hereby authorized and directed to execute the Site Agreement, the Lease, the License Agreement, the Financial Guaranty Agreement and any other document which in the opinion of the City Attorney is necessary to effect the transaction contemplated thereby and not inconsistent therewith. The City Manager is hereby authorized to accept the Purchase Agreement on behalf of the City immediately following the marketing of the Certificates and prior to final adoption of this Ordinance, but the Purchase Agreement shall not become effective according to the terms thereof until the effective date of this Ordinance. 4. The City hereby waives any available defense of governmental immunity from liability in tort for any failure to surrender possession of the leased property as provided in the Lease. 5. 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. 6. All action not inconsistent with the provisions of this Ordinance heretofore taken by the City or its officers,and otherwise by the City directed toward the completion of the transactions described herein is hereby ratified, approved and confirmed. 7. All ordinances, resolutions and orders, or parts thereof, of the City inconsistent herewith and with the documents approved hereby are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed as reviving any ordinance,resolution or order, or part thereof. 8. Any inconsistency between the provisions of this Ordinance and those of the Act is intended by the Council. To the extent of any such inconsistency the provisions of this Ordinance shall be deemed made pursuant to the home rule charter of the City and shall supersede to the extent permitted by law the conflicting provisions of the Act. Introduced,considered favorably on first reading,and ordered published by number and title only this 21st day of July, 1998. CITY OF FO LINS, COLO (SEAL) BY: Mayor ATTEST: City Clerk 3 Read, amended, finally passed as amended on second reading and ordered published by number and title only this 4th day of August, 1998. CITY OF FORT CO , COLORA (SEAL) By: r ATTEST: City Clerk