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HomeMy WebLinkAbout099 - 07/06/2004 - APPROVING AND AUTHORIZING THE CITY TO ENTER INTO A QUITCLAIM DEED FROM THE CITY TO CAPITAL LEASING C ORDINANCE NO. 099, 2004 AN ORDINANCE APPROVING AND AUTHORIZING THE CITY OF FORT COLLINS, COLORADO, TO ENTER INTO A QUITCLAIM DEED FROM THE CITY TO FORT COLLINS CAPITAL LEASING CORPORATION, A SITE AGREEMENT BETWEEN THE CITY AND THE CORPORATION, A LEASE AGREEMENT BETWEEN THE CORPORATION AND THE CITY, A CERTIFICATE PURCHASE AGREEMENT AMONG THE CORPORATION, THE CITY AND GEORGE K. BAUM & COMPANY AND A GUARANTY AGREEMENT BETWEEN THE CITY AND AMBAC ASSURANCE CORPORATION AND APPROVING A TRUST INDENTURE BETWEEN THE CORPORATION AND U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, A DEED OF TRUST AND 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 AND A FINAL OFFICIAL STATEMENT RELATING TO CERTAIN LEASE CERTIFICATES OF PARTICIPATION, SERIES 2004A. 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, §6, Chapter 23, Article IV, Division 2 of the Code of the City of Fort Collins (the "City Code") and part 7 of article 15 of title 31, Colorado Revised Statutes, as amended, to lease City property as lessor; and WHEREAS, the City is authorized by Colo. Const. art. XX, §6 and part 8 of article 15 of title 31, Colorado Revised Statutes, as amended, 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 accept a conveyance of certain real property from the City pursuant to a Quitclaim Deed, dated its delivery date (the "Quitclaim Deed"), from the City, as seller, to the Corporation, as buyer, and to lease certain other real property from the City pursuant to a Site Agreement, dated its delivery date (the "Site Agreement'), between the City, as lessor, and the Corporation, as lessee, and to lease such real property (collectively, the "Site") and the improvements and equipment to be acquired, constructed and installed thereon (collectively, the "Improvements") to the City under a Lease Agreement, dated its delivery date (the "Lease"), between the Corporation, as lessor, and the City, as lessee; and WHEREAS, the Corporation proposes to acquire its interests in the Site and to acquire, construct and install the Improvements for lease to the City with the proceeds of Lease Certificates of Participation, Series 2004A, dated their delivery date, in the aggregate principal amount of $48,650,000 (the "Series 2004A Certificates") evidencing assignments of proportionate interests in its right to receive rental payments and certain other revenues under the Lease; and WHEREAS, in order to provide security for the payment of the principal of and interest on the Series 2004A Certificates, the Corporation proposes to assign its interests in the Site and the Improvements (collectively, the "Leased Property") and its right to receive rental payments and certain other revenues under the Lease to U.S. Bank National Association, as trustee (the "Trustee"), under a Trust Indenture, dated its delivery date (the "Indenture"), between the Corporation, as grantor, and the Trustee, as trustee, and a Deed of Trust, Security Agreement and Financing Statement and a Leasehold Deed of Trust, Security Agreement and Financing Statement, each dated its delivery date (collectively, 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 WHEREAS, Ambac Assurance Corporation (the "Certificate Insurer") has offered to provide a surety bond in lieu of a cash reserve otherwise required as security for the Series 2004A Certificates pursuant to a Guaranty Agreement, dated its delivery date (the "Guaranty Agreement"), between the City and the Certificate Insurer; and WHEREAS, neither the Lease nor the Guaranty Agreement constitutes a "multiple-fiscal year direct or indirect debt or other financial obligation" of the City within the meaning of Colo. Const. art. X, §20(4)(b) and may therefore be entered into without voter approval in advance; and WHEREAS, George K. Baum & Company (the "Underwriter") has offered to purchase the Series 2004A Certificates pursuant to a Certificate Purchase Agreement, dated its execution date (the "Purchase Agreement"), among the Corporation, the City and the Underwriter; and WHEREAS the forms of the Quitclaim Deed, the Site Agreement, the Lease, the Indenture, the Deed of Trust, the Guaranty Agreement, the Purchase Agreement and the Preliminary Official Statement relating to the Series 2004A Certificates (the "Preliminary Official Statement") 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 Quitclaim Deed, the Site Agreement, the Lease, the Indenture, the Deed of Trust, the Guaranty Agreement 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. The preparation and use of the Preliminary Official Statement is hereby ratified, approved and confirmed. The City is authorized to prepare or cause to be prepared a final Official Statement (the "Official Statement") in connection with the offering and sale of the Series 2004A Certificates. The Mayor is 2 authorized to execute and deliver the Official Statement, and the execution of the Official Statement by the Mayor shall be conclusively deemed to evidence the approval of the form and contents thereof by the City. 2. The City Council (the "Council") hereby finds that the execution of the Quitclaim Deed, the Site Agreement and the Lease and the sale and lease of the Leased Property as provided therein is in the best interests of the City and its inhabitants. 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. 3. The Mayor and the City Clerk are hereby authorized and directed to execute the Quitclaim Deed, the Site Agreement, the Lease, the Guaranty Agreement and any other documents or certificates that, in the opinion of the City Attorney, are necessary to effect the transactions contemplated thereby and not inconsistent therewith. The City Manager is hereby authorized to accept and execute the Purchase Agreement on behalf of the City immediately following the marketing of the Series 2004A 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. The Council hereby authorizes the amendment of the Site Agreement and the Lease, and consents to the amendment of the Indenture and the Deed of Trust, to revise the definitions of "Site" and "Leased Property" as provided in the Site Agreement, the Lease, the Indenture and the Deed of Trust. 6. 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. 7. 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. 8. 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. 9. Any inconsistency between the provisions of this Ordinance and those of any applicable statute, including parts 7 and 8 of article 15 of title 31, Colorado Revised Statutes, as amended, is intended by the Council. To the extent of any such inconsistency the provisions of this Ordinance shall be deemed made pursuant to Colo. Const. art. XX, §6 and shall supersede to the extent permitted by law any such conflicting provisions. 3 READ, AMENDED, FINALLY PASSED AS AMENDED ON SECOND READING, AND ORDERED PUBLISHED BY NUMBER AND TITLE ONLY this 6th day of July, 2004. CITY OF FORT COLLINS, COLORADO `Mayor (CITY) (SEAL) ATTEST: City Clerk 4