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HomeMy WebLinkAbout041 - 03/20/2007 - AUTHORIZING THE EXECUTION AND DELIVERY BY THE CITY OF AN AMENDED AND RESTATED SITE AGREEMENT AND LEA ORDINANCE NO. 041, 2007 AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY BY THE CITY OF AN AMENDED AND RESTATED SITE AGREEMENT AND LEASE AGREEMENT, A CONTINUING DISCLOSURE UNDERTAKING, AN OFFICIAL STATEMENT, AND RELATED DOCUMENTS, CONCERNING THE LEASING OF THE MASON OFFICE BUILDING AND THE MASON STREET PARKING STRUCTURE; RATIFYING ACTION PREVIOUSLY TAKEN; AND PROVIDING OTHER MATTERS. WHEREAS, the City of Fort Collins, Colorado (the "City") is a duly organized and existing home rule municipality of the State of Colorado, created and operating pursuant to Article XX of the Constitution of the State of Colorado and the home rule charter of the City(the "Charter"); and WHEREAS, the City is authorized by Article XX, Section 6 of the Colorado Constitution, its Charter and part 8 of article 15 of title 31, Colorado Revised Statutes, 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 property; and WHEREAS, the City and Fort Collins Capital Leasing Corporation, a Colorado non-profit corporation (the "Corporation") have previously entered into a Site Agreement dated as of August 1, 1998 (the "1998 Site Agreement"), pursuant to which the City leased the Mason office building and the Mason Street parking Structure to the Corporation; and WHEREAS, the City and the Corporation simultaneously entered into a Lease Agreement dated as of August 1, 1998 (the "1998 Lease") pursuant to which the City became a subtenant of the Mason office building and the Mason Street parking structure (collectively, the "1998 Leased Property"); and WHEREAS, the City and the Corporation have previously entered into a Site Agreement, dated as of August 15, 1999 (the"1999 Site Agreement") pursuant to which the City leased an offsite police facility to the Corporation; and WHEREAS, the City and the Corporation simultaneously entered into a Lease Agreement dated as of August 15, 1999 (the "1999 Lease") pursuant to which the City became a subtenant of the offsite police facility(the"1999 Leased Property"); and WHEREAS, the City Council of the City has determined and now hereby determines that it is in the best interests of the City and its inhabitants that the City enter into an Amended and Restated Site Agreement, dated as of April 1, 2007 (the "Site Agreement") and an Amended and Restated Lease Agreement, dated as of April 1, 2007 (the"Lease") with respect to the Mason office building and the Mason Street parking structure for the purpose of restructuring the City's payments pursuant to the Lease so as to effect certain financial benefits for the City 1 (the "Refunding") and in order to exercise the City's option to purchase the Corporation's interest in the 1999 Leased Property; and WHEREAS, the Site Agreement will replace and supercede in its entirety the 1998 Site Agreement and the Lease will replace and supercede in its entirety the 1998 Lease; and WHEREAS, upon the exercise of the City's option to purchase the Corporation's interest in the 1999 Leased Property, the 1999 Site Agreement and the 1999 Lease will be terminated, and the Corporation's interest in the 1999 Leased Property will be conveyed to the City in accordance with the provisions of the 1999 Lease; and WHEREAS, pursuant to the Lease, and subject to the right of the City to terminate the Lease and other limitations as therein provided, the City will pay certain recalculated Base Rentals and Additional Rentals (as such terms are defined in the Lease) in consideration for the right of the City to use the 1998 Leased Property (defined in the Lease as the "Leased Property"); and WHEREAS, the City's obligation under the Lease to pay Base Rentals and Additional Rentals (both as defined in the Lease) shall be from year to year only; shall constitute currently budgeted expenditures of the City; shall not constitute a mandatory charge or requirement in any ensuing budget year; and shall not constitute a general obligation or other indebtedness or multiple fiscal year financial obligation of the City within the meaning of any constitutional, statutory or Charter limitation or requirement concerning the creation of indebtedness or multiple fiscal year financial obligation, nor a mandatory payment obligation of the City in any ensuing fiscal year beyond any fiscal year during which the Lease shall be in effect; and WHEREAS, the Corporation and The Bank of Cherry Creek, N.A. (now known as American National Bank) previously entered into a Trust Indenture, dated as of August 1, 1998 (the "1998 Indenture") pursuant to which certain Lease Certificates of Participation, Series 1998 (the"1998 Certificates")were executed and delivered; and WHEREAS, the Corporation and The Bank of Cherry Creek, N.A. previously entered into a Trust Indenture, dated as of August 15, 1999 (the "1999 Indenture") pursuant to which certain Lease Certificates of Participation, Series 1999 (the "1999 Certificates") were executed and delivered; and WHEREAS, the Corporation and American National Bank, as trustee (the "Trustee"), will enter into an Amended and Restated Mortgage and Indenture of Trust, dated as of April 1, 2007 (the "Indenture") which will replace and supercede the 1998 Indenture and will replace and supercede the Leasehold Deed of Trust, Assignment of Rents, Security Agreement and Financing Statement, dated as of August 1, 1998, from the Corporation, as grantor, to the Public Trustee of Larimer County, Colorado, as grantee, for the benefit of The Bank of Cherry Creek,N.A.; and WHEREAS, pursuant to the Indenture there will be issued Refunding Certificates of Participation, Series 2007, dated as of their date of delivery in the aggregate principal amount of not to exceed $16,000,00 (the"2007 Certificates"); and 2 WHEREAS, the net proceeds of the 2007 Certificates will be used to refund and defease all of the outstanding 1998 Certificates and 1999 Certificates; and WHEREAS, the 2007 Certificates shall evidence assignments of the rights to receive certain Revenues (as defined in the Lease), shall be payable solely from the sources therein provided and shall not directly or indirectly obligate the City to make any payments beyond those appropriated for any fiscal year during which the Lease shall be in effect; and WHEREAS, there has been presented to the City Council and are on file at the City offices the following: (i) the proposed form of the Site Agreement; (ii) the proposed form of the Lease; (iii) the proposed form of the Continuing Disclosure Certificate to be provided by the City (the "Disclosure Certificate"); and (iv) the Preliminary Official Statement (the "Preliminary Official Statement")relating to the 2007 Certificates; and WHEREAS, Section 11-57-204 of the Supplemental Public Securities Act, constituting Title 11, Article 57, Part 2, Colorado Revised Statutes (the "Supplemental Act"), provides that a public entity, including the City, may elect in an act of issuance to apply all or any of the provisions of the Supplemental Act. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS, COLORADO: Section 1. Ratification and Approval of Prior Actions. All action heretofore taken (not inconsistent with the provisions of this ordinance) by the City Council or the officers or agents of the City Council or the City relating to the Site Agreement, the Lease, the completion of the Refunding and the exercise by the City of its option to purchase the Corporation's interest in the 1999 Leased Property is hereby ratified, approved and confirmed. The designation of the Preliminary Official Statement by the Financial Officer of the City (the "Financial Officer") as a "nearly final Official Statement" for purposes of Rule 15c2-12 of the U.S. Securities and Exchange Commission is hereby ratified, approved and confirmed. Section 2. Findine of Best Interests. The City Council hereby finds and determines, pursuant to the Constitution, the laws of the State of Colorado and the Charter, that the Refunding and the exercise of the City's option to purchase the Corporation's interest in the 1999 Leased Property under the terms and provisions set forth in the Site Agreement, the Lease and the Indenture is necessary, convenient and in furtherance of the City's purposes and is in the best interests of the inhabitants of the City and the City Council hereby authorizes and approves the same. Section 3. Supplemental Act. Parameters. The City Council hereby elects to apply all of the Supplemental Act to the Site Agreement and the Lease and in connection therewith delegates to each of the Mayor or the Financial Officer of the City the authority to independently make any determination delegable pursuant to Section 11-57-205(1)(a-i), Colorado Revised Statutes, in relation to the Site Agreement and the Lease, and to execute a sale certificate (the "Sale Certificate") setting forth such determinations, subject to the following parameters and restrictions: (a)the aggregate principal amount of the Base Rentals relating to the 2007 Certificates shall not exceed $16,000,000; (b) the maximum net effective interest rate 3 on the interest component of the Base Rentals relating to the 2007 Certificates shall not exceed 4.75%; (c) the Site Agreement Tenn and the Lease Term for the Site Agreement and the Lease, respectively, shall not be longer than 20 years; and (d)the purchase price of the 2007 Certificates shall not be less than 99%. Further, each of the Mayor or the Financial Officer of the City is independently authorized by the City Council to execute and deliver a commitment for the issuance of a municipal bond insurance policy on the 2007 Certificates, if any, with a bond insurer, and enter into any related documents or agreements to secure the payment of principal of and interest on the 2007 Certificates, subject to the provisions of this ordinance, the Sale Certificate and the Supplemental Act. Section 5. Approval of Documents. The Site Agreement, the Lease and the Disclosure Certificate, in substantially the forms presented to the City Council and on file with the City, are in all respects approved, authorized and confirmed, and the Mayor of the City is hereby authorized and directed for and on behalf of the City to execute and deliver the Site Agreement, the Lease and the Disclosure Certificate in substantially the forms and with substantially the same contents as presented to the City Council, 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 ordinance. Section 6. Approval of Official Statement. A final Official Statement, in substantially the form of the Preliminary Official Statement presented to the City Council and on file with the City, is in all respects approved and authorized. The Mayor is hereby authorized and directed, for and on behalf of the City, to execute and deliver the final Official Statement in substantially the form and with substantially the same content as the Preliminary Official Statement on file with the City, with such changes as may be approved by the Financial Officer. The distribution of the Preliminary Official Statement and the final Official Statement to all interested persons in connection with the sale of the 2007 Certificates is hereby ratified, approved and authorized. Pursuant to Section 3 hereof, the Mayor and the Financial Officer shall each have the independent authority to determine if the 2007 Certificates will be sold pursuant to a public sale or whether the 2007 Certificates will be sold by negotiated sale. If it is determined that the 2007 Certificates shall be sold by public sale, the City Council hereby authorizes the preparation, use and distribution of a Notice of Public Sale (a"Notice of Sale") that will set forth the terms of the sale of the 2007 Certificates. Section 7. Authorization to Execute Collateral Documents. The City Clerk is hereby authorized and directed to attest all signatures and acts of any official of the City in connection with the matters authorized by this ordinance and to place the seal of the City on any document authorized and approved by this ordinance. The Mayor and City Clerk and other appropriate officials or employees of the City are hereby authorized to execute and deliver for and on behalf of the City any and all additional certificates, documents, instruments and other papers, and to perform all other acts that they deem necessary or appropriate, in order to implement and carry out the transactions and other matters authorized by this ordinance. The approval hereby given to the various documents referred to above includes an approval of such 4 additional details therein as may be necessary and appropriate for their completion, deletions therefrom and additions thereto as may be approved by bond counsel prior to the execution of the documents. The execution of any instrument by the aforementioned officers or members of the City Council shall be conclusive evidence of the approval by the City of such instrument in accordance with the terms hereof and thereof. Section 8. No General Obligation Debt. No provision of this ordinance, the Site Agreement, the Lease, the Indenture, the 2007 Certificates, the Preliminary Official Statement, the final Official Statement or the Notice of Sale (if any) shall be construed as creating or constituting a general obligation or other indebtedness or multiple fiscal year financial obligation of the City within the meaning of any constitutional, statutory or home rule charter provision, nor a mandatory charge or requirement against the City in any ensuing fiscal year beyond the then current fiscal year. The City shall have no obligation to make any payment with respect to the 2007 Certificates except in connection with the payment of the Base Rentals (as defined in the Lease) and certain other payments under the Lease, which payments may be terminated by the City in accordance with the provisions of the Lease. Neither the Lease nor the 2007 Certificates shall constitute a mandatory charge or requirement of the City in any ensuing fiscal year beyond the then current fiscal year or constitute or give rise to a general obligation or other indebtedness or multiple fiscal year financial obligation of the City within the meaning of any constitutional, statutory or Charter debt limitation and shall not constitute a multiple fiscal year direct or indirect City debt or other financial obligation whatsoever. No provision of the Site Agreement, the Lease or the 2007 Certificates shall be construed or interpreted as creating an unlawful delegation of governmental powers nor as a donation by or a lending of the credit of the City within the meaning of Sections I or 2 of Article XI of the Colorado Constitution. Neither the Lease nor the 2007 Certificates shall directly or indirectly obligate the City to make any payments beyond those budgeted and appropriated for the City's then current fiscal year. Section 9. Reasonableness of Rentals. The City Council hereby determines and declares that the Base Rentals, as recalculated pursuant to the Lease, do not exceed a reasonable amount so as to place the City under an economic compulsion to renew the Lease or to exercise its option to purchase the Leased Property pursuant to the Lease. The City Council hereby determines and declares that the period during which the City has an option to purchase the Corporation's interest in the Leased Property (i.e., the entire maximum term of the Lease) does not exceed the useful life of the Leased Property. Section 10. Exercise of Redemption Option, Direction to Trustee. In order to effect the Refunding, the City Council has elected and does hereby declare its intent to exercise on the behalf and in the name of the City its option to redeem the 1998 Certificates on December 1, 2008 and its option to redeem the 1999 Certificates on the earliest practicable redemption date after the execution and delivery of the 2007 Certificates. The City hereby irrevocably instructs the Trustee to give notice of refunding and defeasance to the Owners of the 1998 Certificates and the 1999 Certificates as soon as practicable after the execution and delivery of the 2007 Certificates, in accordance with the provisions of the 1998 Indenture with respect to the 1998 Certificates and the 1999 Indenture with respect to the 1999 Certificates. Section 11. No Recourse against Officers and Agents. Pursuant to Section 1I- 57-209 of the Supplemental Act, if a member of the City Council, or any officer or agent of the 5 City acts in good faith, no civil recourse shall be available against such member, officer, or agent for payment of the principal, interest or prior redemption premiums on the 2007 Certificates. Such recourse shall not be available either directly or indirectly through the City Council or the City, or otherwise, whether by virtue of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of the 2007 Certificates and as a part of the consideration of their sale or purchase, any person purchasing or selling such 2007 Certificate specifically waives any such recourse. Section 12. R ealer. All bylaws, orders, resolutions and ordinances of the City, or parts thereof, inconsistent with this ordinance or with any of the documents hereby approved are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed as reviving any bylaw, order, resolution or ordinance of the City, or part thereof, heretofore repealed. Section 13. Severability. If any section, subsection, paragraph, clause or provision of this ordinance or the documents hereby authorized and approved (other than provisions as to the payment of Base Rentals by the City during the Lease Term, provisions for the quiet enjoyment of the Leased Property by the City during the Lease Term and provisions for the conveyance of the Corporation's interest in the Leased Property to the City under the conditions provided in the Lease) shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, subsection, paragraph, clause or provision shall not affect any of the remaining provisions of this ordinance or such documents, the intent being that the same are severable. Section 14. Charter. Pursuant to Article XX of the State Constitution and the Charter, all State statutes that might otherwise apply in connection with the provisions of this ordinance are hereby superseded to the extent of any inconsistencies between the provisions of this ordinance and such statutes. Any such inconsistency is intended by the City Council and shall be deemed made pursuant to the Charter. INTRODUCED, READ, APPROVED ON FIRST READING AND ORDERED PUBLISHED BY NUMBER AND TITLE ONLY this 6 h day of March, 2007. CITY O�tT COLLINS, COL DO May Ur (SEAL) ATTESTED: UIL NUL4-t" City C erk 6 INTRODUCED, READ, APPROVED ON SECOND READING AND ORDERED PUBLISHED BY NUMBER AND TITLE ONLY this 20 of March, A.D. 2007. Mayo ATTEST: City Clerk