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HomeMy WebLinkAbout193 - 12/16/1986 - RELATING TO THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS FOR THE VIPONT LABORATORIES, INC. P ORDINANCE NO. 193, 1986 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 1986 (THE VIPONT LABORATORIES , INC. PROJECT) IN THE PRINCIPAL AMOUNT OF $3, 800, 000 FOR THE PURPOSE OF LOANING FUNDS TO VIPONT VENTURES TO FINANCE IMPROVEMENTS RELATING TO ACQUIRING, IMPROVING, CONSTRUCTING, INSTALLING AND EQUIPPING OF A COMMERCIAL FACILITY IN FORT COLLINS , COLORADO; APPROVING AND AUTHORIZING THE EXECUTION AND ASSIGNMENT OF A LOAN AGREEMENT AND NOTE BETWEEN VIPONT VENTURES 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 19 , 1986 ( 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 Vipont Ventures , a general partnership ( the "Company" ) and leased to Vipont Laboratories , Inc. , a Delaware corporation ( the "Lessee" ) , 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) an Indenture of Trust , to be dated as of December 15, 1986 ( the " Indenture" ) from the City, as grantor, and the United Bank of Fort Collins , National Association, as trustee ( the "Trustee" ) ; and (b) a Loan Agreement , to be dated as of December 15 , 1986 ( the "Loan Agreement" ) , between the City and Company including a form of Company' s Note to the City; and (c ) a Deed of Trust and a Security Agreement , both to be dated as of December 15 , 1986 ( the "Deed of Trust" and the -1- "Security Agreement" ) , between the Company, as grantor and debtor, and the Trustee, as beneficiary and secured party ; and (d) a Guaranty Agreement , to be dated as of December 15, 1986 ( the "Guaranty" ) between Vipont Laboratories , Inc . ( in the capacity of Guarantor) and the Trustee ; and (e) a Collateral Assignment of Rents to be dated as of December 15 , 1986 ( the "Collateral Assignment of Rents" ) from the Company to the Trustee ; and ( f ) a Bond Purchase Agreement to be dated as of the date of its delivery ( the "Bond Purchase Agreement" ) among Dean Witter Reynolds Inc. , 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 1986 (The Vipont Laboratories , Inc . Project ) in a principal amount not to exceed $3, 800, 000 ( the "Bonds" ) to be dated as of December 15 , 1986 ; 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 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 Loan Agreement 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 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. -2- 1 . 3. Findings The City 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 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 $3 , 800, 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, ( ii ) the establishment by this Ordinance of a Bond reserve fund for the retirement of the Bonds is deemed advisable and shall be initially funded in the amount of $380 , 000 and thereafter maintained in an amount equal to ten percent ( 10% ) of the principal balance of Outstanding Bonds, and ( iii ) 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. -3- 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, and the City hereby ratifies, affirms and approves all actions heretofore taken by the Company. ARTICLE II BONDS 2. 1 . Issuance and Sale of Bonds ; Interest Rates The Issuer shall issue its Industrial Development Revenue Bonds, Series 1986 (The Vipont Laboratories, Inc. Project ) to be dated December 15 , 1986 , in a principal amount not to exceed $3, 800, 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 denomimation of $5 , 000 or any integral multiple thereof and shall be dated as of December 15 , 1986 . Interest on the Series 1986 Bonds shall be payable commencing on June 1 , 1987 , and semiannually thereafter on June 1 and December 1 of each year until maturity. Each Series 1986 Bond shall bear interest until the principal sum thereof has been paid ; provided , however, that if Series 1986 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 , the Series 1986 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 per annum interest at the rates shown in the following schedule: Maturity Dates Principal Interest ( December 1 ) Amounts Rates 1989 $ 60 , 000 6 . 50% 1990 65 , 000 6.75 1991 70, 000 7 . 00 1992 75, 000 7 . 25 1993 80 , 000 7 . 50 1994 85 , 000 7 .75 1995 95, 000 8 . 00 1996 100 , 000 8. 20 1997 110, 000 8 . 40 1998 120, 000 8 . 50 -4- 1999 130 , 000 8, 60 2000 140, 000 8 . 70 2001 155 , 000 8 .75 2002 165 , 000 8 . 75 2011 2, 350 , 000 9 .00 The maximum net effective interest rate authorized for the Series 1986 Bonds is fifteen percent ( 15% ) per annum. The actual net effective interest rate on the Series 1986 Bonds is 8 . 9672% per annu.m. The Preliminary Official Statement , in substantially the form presented to the Council , is in all respects ratified, approved and authorized for use by the Underwriter in connection with the pricing, sale and marketing of the Series 1986 Bonds. The Mayor is hereby authorized and directed to affix his signature to the Final Official Statement, for and on behalf of the City, in substantially the form presented at this meeting, but with such changes therein as the administrative staff may deem necessary or appropriate , as evidenced by his execution thereof. The distribution by the City and use by the prospective purchasers of the Series 1986 Bonds, including the Underwriter and its associates , of the Final Official Statement, to contain appropriate amendments and supplements , is hereby further authorized. ARTICLE III GENERAL COVENANTS 3. 1 . Payment of Principal and Interest The City covenants that it will promptly pay or cause to be paid the principal of and interest on the Bonds at the place, on the dates , from the source and in the manner provided herein and in said Bonds. 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, the Guaranty, the Collateral Assignment of Rents , the Security Agreement and the Deed of Trust ; 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 -5- 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 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 in the hands of the Lender 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 Deed of Trust, the Indenture, the Loan Agreement or any other document referred to in Section 2.4 of 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 seg. , 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 . CUSIP identification 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 . Emergency Ordinance . Pursuant to Article II , Section 6 and 7 of the Charter of the City, The Council declares this to be an Emergency Ordinance for the reason that it is necessary for the preservation of the public property, health, peace or safety in that the State private activity bond allocation authorizing the issuance of the Bonds herein-described to finance the Project, and the public benefits to accrue therefrom will expire if the Bonds are not issued on or before December 23 , 1986. 4 .4 . 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 . 4 . 5 . Authorization to Execute Agreements 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 City Council ; and the Mayor and the City Clerk are authorized to endorse the Company Note and execute the Loan Agreement, the Assignment of Loan Agreement and the Bond Purchase 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 . 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 City Council do all things and execute all instruments and documents required to be done or executed by such absent or disabled officers. 4 . 6 . Authority to Correct Errors, Etc . The Mayor and the City 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 City Clerk on the instruments to be conclusive evidence of such approval ; -7- 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 , 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 .7 . 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 . 8 . Repealer All ordinances or parts thereof in conflict with this Ordinance are hereby repealed. 4 . 9 . Ordinance Irrepealable 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. 4 . 10. Recording and Authentication This Ordinance, as adopted by the City Council, shall be numbered and recorded, and the adoption and publication 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 this 4th day of December, 1986, and to be presented for final passage on the 16th day of December, 1986 . Mayor ( SEAL) ATTEST: City Clerk -8- Passed and adopted on final reading on this 16th day of December, 1986. AkA4 Mayor ATTEST: City Clerk Councilmember Rutstein 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" : 0h1son, Estrada, Kirkpatrick, Councilmembers voting "NAY" : Liebler, Horak, Stoner, and Rutstein. 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 in full 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. ATT� City Clerk Mayor — City of Fort Collins , City of 96rt 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 16th day of December, 1986 , at the hour of 6: 30 p.m. The following persons were present: Councilmembers: Kelly Ohlson , Mayor Larry Estrada, Assistant Mayor Susan E . Kirkpatrick Barbara Liebler Gerald C. Horak Ed Stoner Barbara Rutstein City Manager: Steven Burkett City Clerk: Wanda M. Krajicek The following persons were absent: None The Mayor informed the Council that Ordinance No. 193, 1986 which was introduced, approved on first reading , and ordered published once in full at a regular meeting of the Council held on December 4 , 1986 ? was duly published in The Coloradoan, a newspaper of general circulation published in the City, in its issue of December 9 1986 . Councilmember Horak then read said Ordinance by its title, and the amendments thereto declaring said Ordinance to be an Emergency Ordinance pursuant to Article II , Section 6 and 7 of the City' s Charter. Thereupon, Councilmember Horak moved the final passage of Ordinance No. 193 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: Ohl son Estrada Kirkpatrick Liebler Horak Stoner Rutstein Councilmembers voting "NAY" : None The Mayor thereupon declared that at least five of the Councilmembers present having voted in favor thereof , the motion was carried, the Ordinance finally passed, and effective immediately. 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. Mayor City of F t Collins , Colorado 'TEST- City Clerk City of Fort Collins, Colorado STATE OF COLORADO ) ss . COUNTY OF LARIMER ) 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• 193 , 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 Thursday, the -11- 4th day of December, 1986 , which meeting was a continuation of its regular meeting on December 2 , 1986, that said Ordinance was finally passed on second reading by said Council at a regular meeting thereof held at City Hall , the regular meeting place thereof , on Tuesday, the 16th day of December, 1986 , that a true COPY of said Ordinance has been authenticated by the signatures of the Mayor of said City and myself as recorded in a book marked "Ordinance Record" kept for such purpose in my iffice; ana i-hat said Ordinance was duly published once by title together with a notice giving the date when said Ordinance would be presented for final passage and once in accordance with the City Charter together with a notice stating the date when said Ordinance would be presented for the final passage thereof , in The Coloradoan, a newspaper of general circulation published in the City, in its issues of December 9 , 1986 , and December 21 , 1986 , as evidenced by the certificates of the publisher attached hereto at rages 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 December 4 , 1986, and December 16 , 1986, insofar as said proceedings relate to said Ordinance ; and that said proceedings were duly had and taken, that the meetings were duly hell ; 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 17th day of December, 1986 . City Clerk City of Fort Collins , Colorado STATE OF COLORADO ) COUNTY OF LARIMER ) ss . CITY OF FORT COLLINS ) (Attach affidavit of publication by title of Ordinance and notice giving date when Ordinance to be presented for final passage . ) VIP24 -12-