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HomeMy WebLinkAbout147 - 12/07/1993 - AUTHORIZING THE ISSUANCE OF REVENUE BONDS FOR THE PHELPS-TOINTON MILLWORK LLC PROJECT ORDINANCE NO. 147 1993 AN ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF CITY OF FORT COLLINS, COLORADO, ADJUSTABLE RATE INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1993 (THE PHELPS-TOINTON MILLWORK LLC PROJECT) IN A TOTAL PRINCIPAL AMOUNT OF $1, 500, 000; MAKING DETERMINATIONS AS TO SUFFICIENCY OF REVENUES AND AS TO OTHER MATTERS RELATED TO THE PROJECT AND APPROVING THE FORM AND AUTHORIZING THE EXECUTION OF CERTAIN DOCUMENTS RELATING THERETO. WHEREAS, the City of Fort Collins, Colorado (the Issuer) , is authorized by part 1 of article 3 of title 29, Colo. Rev. Stat. as amended (the Act) , to issue revenue bonds for the purpose of financing projects to encourage commercial and business enterprises to remain within the Issuer, to enter into financing agreements with others for loans for the purpose of providing revenues to pay such bonds, and further to secure the payment of such bonds; and WHEREAS, by Resolution No. 93-168, duly adopted on November 2 , 1993 (the Inducement Resolution) , the Issuer indicated a willingness to issue such bonds in an aggregate principal amount not to exceed $1, 500, 000, in accordance with the provisions of the Act, for the purpose of making a loan to Phelps-Tointon Millwork LLC, a Colorado limited liability company (the Company) to assist the Company in the financing of improvements consisting of acquiring, constructing, equipping and installing a manufacturing facility for the construction of custom cabinetry and athletic lockers (the Project) to be located within the Issuer; and WHEREAS, the forms of the following documents have been submitted to the City Council (the Council) and filed in the office of the City Clerk (the Clerk) and are there available for public inspection: (a) a Loan Agreement, dated as of December 1, 1993 (the Loan Agreement) , between the Issuer and the Company; and (b) a Trust Indenture, including a form of Bond as Exhibit A, dated as of December 1, 1993 (the Trust Indenture) , between the Issuer and PNC Bank, Ohio, National Association, a national banking association with trust powers (the Trustee) , acceptable to the Issuer and the Company, as trustee; and (c) a Bond Placement Agreement dated as of December 19, 1993, among Bank One, Columbus, NA as placement agent (the Placement Agent) , the Company and the Issuer; and (d) a Letter of Representations among the Issuer, the Trustee, the Remarketing Agent and the Depository Trust Company (the Letter of Representations) ; and (e) an Offering Memorandum (the Offering Memorandum) related to the private placement of the Bonds by the Placement Agent. WHEREAS, the Council desires at this time to authorize the issuance of its City of Fort Collins, Colorado, Adjustable Rate Industrial Development Revenue Bonds, Series -2- 1993, (The Phelps-Tointon Millwork LLC Project) in the total principal amount of $1,500, 000 (the Bonds) , and will loan the proceeds thereof to the Company for the purpose of assisting the Company in financing the Project; and WHEREAS, there has been held a public hearing concerning the Bonds and the nature and location of the Project before the Council; and WHEREAS, it is necessary or desirable to issue 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 CITY COUNCIL OF THE CITY OF FORT COLLINS, COLORADO: Section 1. Approvals and Authorizations. The form of Loan Agreement and the Trust Indenture (including the form of Bond) the Bond Placement Agreement, the Letter of Representations and the Offering Memorandum are hereby approved. The issuance of the Bonds for purposes of Section 147 (f) of the Internal Revenue Code of 1986, as amended (the ffCodey) , is hereby approved. The Mayor or Assistant Mayor and the Clerk or a deputy are hereby authorized and directed to execute the Loan Agreement, the Trust Indenture, the Bond Placement Agreement, the Letter of Representation and the Bonds and to affix the seal of the Issuer thereto, and further to execute and authenticate such other documents, instruments or certificates -3- as are deemed necessary or desirable by bond counsel in order to issue and secure the Bonds. Such documents are to be executed in substantially the form hereinabove approved, provided that such documents may be completed, corrected or revised as deemed necessary by the parties thereto in order to carry out the purposes of this Bond Ordinance. The right, title and interest of the Issuer in the Loan Agreement when executed, shall, by the terms thereof, have been assigned to the Trustee except as therein provided. The Issuer elects to have the provisions of the $10, 000, 000 limit in Section 144 (a) of the Code apply to the Bonds. The proper officers of the Issuer are hereby authorized and directed to prepare and furnish to bond counsel certified copies of all proceedings and records of the Issuer relating to the Bonds and such other affidavits and certificates as may be required to show the facts relating to the authorization and issuance thereof, as such facts appear from the books and records in such officers' custody and control. The approval hereby given to the various documents referred to above includes the approval of such additional details therein as may be necessary and appropriate for their completion and such modifications thereof, deletions therefrom, and additions thereto as may be approved by bond -4- counsel prior to the execution of the documents. The execution of any instrument by the appropriate officers of the Issuer herein authorized shall be conclusive evidence of the approval by the Issuer of such instrument in accordance with the terms hereof. The approval hereby given is subject to final approval by the Mayor or Assistant Mayor of all documents and the issuance of the Bonds. Section 2 . Issuance and Sale of Bonds. The Issuer shall issue the Bonds to be in registered, book entry only form, in one or more series, and to be dated as of their date of delivery or as otherwise provided in the Loan Agreement and the Trust Indenture, in a total principal amount of $1, 500, 000, for the purposes, in the form and upon the terms set forth in this Bond Ordinance, the Trust Indenture, the Bond Placement Agreement, the Offering Memorandum and the Loan Agreement, including the form of the Bond set forth as in the Trust Indenture. The Bonds shall mature and be subject to prior optional redemption or mandatory redemption, including mandatory sinking fund redemption at the times and in the amounts set forth in the Trust Indenture and shall bear interest at the rate or rates to be determined as set forth in the Trust Indenture. The Bonds shall be payable in the manner and to the persons set forth in the Trust Indenture and the form of the Bond set forth therein. -5- The maximum net effective interest rate authorized for the Bonds is ten percent (10%) per annum. The actual net effective interest rate for the Bonds does not exceed ten percent (10%) per annum. The Issuer hereby approves and ratifies the use and distribution of a Preliminary Offering Memorandum and the Offering Memorandum, in substantially the form submitted to and now on file with the Issuer in connection with the issuance, sale and delivery of the Bonds. However, the Issuer has not confirmed, and assumes no responsibility for, the accuracy, sufficiency or fairness of any statements in the Preliminary Offering Memorandum, the Offering Memorandum or any other written materials used in connection with the offer and sale of the Bonds. Section 3 . Determinations. It is hereby found, determined and declared, in accordance with Sections 29-3-113, 29-3-114 and 29-3-120 of the Act, that: (a) The financing of the Project will promote the public health, welfare, safety, convenience and prosperity and promote and develop trade or other economic activity by inducing commercial and business enterprises to locate, expand, or remain in the Issuer and the State of Colorado, in order to mitigate the serious threat of extensive unemployment and to secure and maintain a balanced and stable economy for the Issuer and the State of Colorado. -6- (b) The maximum amounts necessary in each year to pay the principal of and interest on the Bonds and the interest rate to be borne by the Bonds are as provided in the Trust Indenture. (c) The amounts necessary to be paid each year into any reserve funds which the Council may deem advisable to establish in connection with the retirement of the Bonds and the maintenance of the Project are as provided in the Indenture. (d) The payments required in the Loan Agreement to be made are sufficient to pay the principal of and interest on the Bonds when due, and to pay all other costs required in the Loan Agreement to be paid, including all sums referred to in paragraphs (e) and (f) of this section. (e) The Loan Agreement provides that the Company shall maintain the Project in good repair and carry all proper insurance with respect thereto. (f) The Loan Agreement requires that the Company pay the taxes and other governmental charges which the taxing entities specified in Section 29-3-120 of the Act are entitled to receive from the Company with respect to the Project, and sufficient revenues for such purpose are thereby provided. Section 4. Nature of Obligation. Under the provisions of the Act, and as provided in the Loan Agreement and the Trust Indenture, the Bonds shall be special, limited -7- obligations of the Issuer payable solely from, and secured by a pledge of, the revenues derived from the Loan Agreement, the Letter of Credit, and the Trust Indenture. The Issuer will not pledge any of its property or secure the payment of the Bonds with its property. The Bonds and the interest thereon shall never constitute the debt or indebtedness of the Issuer within the meaning of any provision or limitation of the Colorado Constitution, statutes of the State of Colorado or the Charter of the City of Fort Collins, Colorado and shall not constitute or give rise to a pecuniary liability of the Issuer, its agents, employees or officers, or a charge against its general credit or taxing powers. The Issuer will not pay out of its general fund or otherwise contribute any part of the Cost of the Project (as said term is defined in the Loan Agreement) . No costs are to be borne by the Issuer in connection with the issuance of the Bonds. The Loan Agreement provides that all fees and expenses of the Issuer shall be paid by the Company. Section 5. Bond Printing and Related Matters. The officers of the Issuer are hereby authorized and directed to cooperate with the Company in the printing of the Bonds, provided that no costs are to be borne by the Issuer in connection with the printing of the Bonds. The Bonds shall be privately placed by the Placement Agent, which the Council determines is in the best interest of the Issuer, and the -8- proper officers of the Issuer are hereby authorized to execute any Bond Placement Agreement in connection therewith. Section 6. Facsimile Signatures. Pursuant to the Uniform Facsimile Signature of Public Officials Act, part 1 of article 55 of title 11, Colorado Revised Statutes, as amended, the Mayor and the Clerk shall forthwith, and in any event prior to the time the Bonds are delivered to the Purchaser, file with the Colorado Secretary of State their manual signatures certified by them under oath. Section 7. Bond Ordinance Irrenealable. After the Bonds are issued, this Bond Ordinance shall constitute an irrevocable contract between the Issuer and the holders of the Bonds and shall be and remain irrepealable until the Bonds, both principal and interest, shall be fully paid, cancelled and discharged. Section 8. Ratification. All actions heretofore taken by the Issuer and by the officers thereof or on their behalf not inconsistent herewith directed toward the financing of the Project and the issuance and sale of the Bonds, or the conduct of a public hearing relating to the issuance of the Bonds or the location and nature of the Project, are hereby ratified, approved and confirmed. Section 9. Repealer. All acts, orders, resolutions or parts thereof, taken by the Issuer and in conflict with this Bond Ordinance, are hereby repealed except that this -9- repealer shall not be construed so as to revive any act, order, resolution, or part thereof, heretofore repealed. Section 10. Other Matters. By the passage of this Bond Ordinance, the Council does not intend to approve, nor is it approving hereby, any matters relating to licensing, subdivision zoning, planning or landscaping of the Project. Approval of such matters must be obtained under normal procedures of the Issuer. Section 11. Severability. If any paragraph, clause, section or provision of this Bond Ordinance, except Section 4 hereof, is judicially adjudged invalid or unenforceable, such judgment shall not affect, impair or invalidate the remaining paragraphs, clauses, sections or provisions hereof. Section 12. Effective Date. This Ordinance shall be effective 10 days after final passage. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 7 to 0 on the 16th day of November, 1993, ordered published by title only in a newspaper of general circulation in the City of Fort Collins, Colorado and consideration on final passage set for December 7, 1993, at 6: 30 o'clock p.m. , in the Council Chambers. READ AND ADOPTED on second and final reading by a vote of 6 to 0 , the 7th day of December, 1993 . -10- SIGNED by the Mayor on this 7th day of December , 1993. CITY OF FORT COLLINS, COLORADO By: ayor (SEAL) ATTEST: 1 �MDIs City Clerk Publication Date: -11-