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HomeMy WebLinkAboutordinance.council.014-2020 CITY OF ASPEN, COLORADO ORDINANCE NO. 14 (SERIES OF 2020) AN ORDINANCE CONCERNING THE REFINANCING OF THE CITY OF ASPEN PUBLIC FACILITIES AUTHORITY TAXABLE CERTIFICATES OF PARTICIPATION (ISIS THEATER PROJECT), SERIES 2007A, AND IN CONNECTION THEREWITH AUTHORIZING THE EXERCISE OF THE CITY'S OPTION TO PURCHASE THE ASPENFILM PROPERTY FROM THE AUTHORITY AND THE EXECUTION AND DELIVERY OF A SITE LEASE AGREEMENT,A LEASE PURCHASE AGREEMENT AND OTHER DOCUMENTS RELATED THERETO. WHEREAS, the City of Aspen, Pitkin County, 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, pursuant to Section 10.8 of the Charter, the City is authorized to enter into one or more leases or lease-purchase agreements for land,buildings,equipment and other property for governmental or proprietary purposes; and WHEREAS, for the purpose of financing the cost of acquiring certain property in the City known as the Isis Theater Condominiums(the"Prior Project"),there has previously been executed and delivered: i. A Special Warranty Deed dated as of February 15, 2007, conveying the Prior Project from CC Aspen, LLC, an Arizona limited liability company, to the Authority (the"Leased Property"); and ii. A Lease Purchase Agreement dated as of February 1, 2007 (the "2007 Lease"), by and between the City, as lessee, and the City of Aspen Public Finance Authority, as Lessor(the"Authority"); and iii. A Mortgage and Indenture of Trust dated as of February 1, 2007 (the"2007 Indenture"), by and between the Authority and The Bank of Cherry Creek, N.A. (now UMB Bank, n.a.), as Trustee (the "2007 Trustee"); and WHEREAS, pursuant to the 2007 Indenture, there were issued to investors the City of Aspen Public Facilities Authority Taxable Certificates of Participation (Isis Theater Project), Series 2007A(the "2007 Certificates"); and WHEREAS, pursuant to the 2007 Indenture, the 2007 Certificates are subject to redemption prior to maturity on any date on and after March 1, 2017, from moneys received by the 2007 Trustee from exercise of the City of its option to purchase the Leased Property; and 1 WHEREAS, pursuant to the 2007 Lease, the City has the option to purchase the Leased Property and to cause the redemption of the 2007 Certificates; and WHEREAS, a portion of the Leased Property was previously acquired by the City and conveyed to Isis Aspen Holdings, LLC and a portion of the 2007 Certificates was redeemed in connection with the acquisition and conveyance; and WHEREAS, the Leased Property now consists of a condominium unit currently subleased by the City to AspenFilm, f/k/a Independent Films, Inc. d/b/a AspenFilm (the "AspenFilm Sublease"); and WHEREAS, the City Council of the City (the "Council") hereby determines that it is in the best interests of the City and its inhabitants that the City exercise its option to acquire the Leased Property in order to refinance the 2007 Certificates and to construct additional improvements to the Leased Property (collectively,the"2020 Project"); and WHEREAS, pursuant to a request for proposals from the City, Zions Bancorporation, a national banking association ("Zions") has proposed to fund the refinancing of the 2007 Certificates by purchasing Taxable Refunding and Improvement 2020 Certificates of Participation, Series 2020, dated as of their date of delivery in the aggregate principal amount of not to exceed $2,500,000 (the "2020 Certificates") which will be issued pursuant to an Indenture of Trust (the "2020 Indenture")entered into by Zions Bancorporation,National Association,acting solely in its capacity as trustee under the 2020 Indenture (the "2020 Trustee"); and WHEREAS, concurrently with the acquisition of the Leased Property the City will (i) enter into a Site Lease Agreement with the 2020 Trustee to lease the Leased Property to the 2020 Trustee (the "2020 Site Lease") and (ii) enter into a Lease Purchase Agreement with the 2020 Trustee(the"2020 Lease",and together with the"2020 Site Lease",the"Transaction Documents") for the purpose of refinancing the 2007 Certificates and restructuring the City's payments pursuant to the 2007 Lease so as to effect certain financial benefits for the City; and WHEREAS,pursuant to the 2020 Lease, and subject to the right of the City to terminate the 2020 Lease and other limitations as therein provided, the City will pay certain Base Rentals and Additional Rentals(as such terms are defined in the 2020 Lease)in consideration for the right of the City to use the Leased Property; and WHEREAS, the City's obligation under the 2020 Lease to pay Base Rentals and Additional Rentals will be from year to year only; will constitute currently budgeted expenditures of the City;will not constitute a mandatory charge or requirement in any ensuing budget year; and will 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 (except as provided in Section 10.4 of the Charter concerning the limitation of City indebtedness to 20% of the assessed valuation of taxable property in the City), nor a mandatory payment obligation of the City in any ensuing fiscal year beyond any fiscal year during which the 2020 Lease shall be in effect; and 2 WHEREAS, the 2020 Certificates will evidence proportionate interests in the right to receive certain revenues under the 2020 Lease, will 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 2020 Lease shall be in effect; and WHEREAS, the proceeds of the sale of the 2020 Certificates will be utilized to effect the 2020 Project; and WHEREAS, the Leased Property will continue to be subleased by the City to AspenFilm, f/k/a Independent Films, Inc. d/b/a AspenFilm pursuant to an amended AspenFilm Sublease; and WHEREAS, Section 11-57-204 of the Supplemental Public Securities Act, constituting Title 11, Article 57, Part 2, Colorado Revised Statutes, as amended (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; and WHEREAS, there has been presented to the Council and are on file with the City Clerk the proposed forms of Transaction Documents; and WHEREAS, capitalized terms used herein and not otherwise defined shall have the meanings set forth in the 2020 Lease. NOW,THEREFORE,BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,the following: Section 1. Short Title. This Ordinance shall be known and may be cited by the short title "2020 AspenFilm Lease Purchase Ordinance." Section 2. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Council. Section 3. Ratification and Approval of Prior Actions. All action heretofore taken(not inconsistent with the provisions of this Ordinance) by the Council or the officers, agents or employees of the Council or the City relating to the acquisition of the Leased Property pursuant to the 2007 Lease, the redemption of the 2007 Certificates, the lease of the Leased Property by the City to the Trustee pursuant to the 2020 Site Lease,the leasing of the Leased Property to the City by the Trustee pursuant to 2020 Lease, and the financing of the costs of the 2020 Project by the issuance of the 2020 Certificates and the execution and delivery of the Transaction Documents is hereby ratified, approved and confirmed. Section 4. Finding of Best Interests. The Council hereby finds and determines,pursuant to the Constitution, the laws of the State of Colorado and the Charter, that the 2020 Project, and the financing of the costs thereof pursuant to the terms set forth in the 2020 Lease are necessary, convenient,and in furtherance of the City's purposes and are in the best interests of the inhabitants of the City and the Council hereby authorizes and approves the same. 3 Section 5. Supplemental Act; Parameters. The Council hereby elects to apply all of the Supplemental Act to the Transaction Documents and in connection therewith delegates to each of the Mayor, the City Manager or the Finance Director of the City the independent authority to make any determination delegable pursuant to Section 11-57-205(1)(a-i), Colorado Revised Statutes, in relation to the Transaction Documents, and to execute a sale certificate (the "Sale Certificate") setting forth such determinations, including without limitation, the term of the 2020 Lease and the rental amount to be paid by the City pursuant to the 2020 Lease, subject to the following parameters and restrictions: a) the 2020 Lease term shall not extend beyond December 31, 2037; b) the term of the 2020 Site Lease shall not extend more than 10 years beyond the term of the 2020 Lease; c) the aggregate principal amount of the Base Rentals payable by the City pursuant to the 2020 Lease shall not exceed $2,500,000; d) the maximum annual repayment amount of Base Rentals payable by the City pursuant to the 2020 Lease shall not exceed $200,000; e) the maximum total repayment amount of Base Rentals payable by the City pursuant to the 2020 Lease shall not exceed $3,000,000; f) the maximum interest rate on the interest component of the Base Rentals relating to the 2020 Certificates shall not exceed 5.00%. Pursuant to Section 11-57-205 of the Supplemental Act, the Council hereby delegates to each of the Mayor,the City Manager or the Finance Director the independent authority to sign or to accept a binding bid for purchase of the 2020 Certificates and to execute any agreement or agreements in connection therewith. The Council hereby agrees and acknowledges that the proceeds of the 2020 Certificates will be used to finance the 2020 Project and to pay other costs of issuance. Section 6. Approval of Documents. The Transaction Documents, in substantially the forms on file with the City Clerk, 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 Transaction Documents, in substantially the form and with substantially the same content as on file with the City Clerk, 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 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, the City Clerk, the City Manager, the Finance Director and other employees and officials of the City are hereby authorized and directed to execute and deliver for and on behalf of the City any and all additional 2020 Certificates, 4 documents and other papers, and to perform all other acts that they may deem necessary or appropriate in order to'implement and carry out the transactions and other matters authorized by this Ordinance, including, without limitation, the modification or amendment of the AspenFilm Sublease. The approval hereby given to the various documents referred to above includes an approval of such additional details therein as may be necessary and appropriate for their completion, deletions therefrom and additions thereto as may be approved by the City Manager or the Finance Director prior to the execution of the documents. The execution of any instrument by the appropriate officers of the City herein authorized shall be conclusive evidence of the approval by the City of such instrument in accordance with the terms hereof. Section S. No General Oblisation Debt. No provision of this ordinance, the 2020 Lease, the Indenture, or the 2020 Certificates, 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 (except as provided in Section 10.4 of the Charter concerning the limitation of City indebtedness to 20% of the assessed valuation of taxable property in the City), 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 2020 Certificates except in connection with the payment of the Base Rentals and certain other payments under the 2020 Lease,which payments may be terminated by the City in accordance with the provisions of the 2020 Lease. No provision of the 2020 Lease or the 2020 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 1 or 2 of Article XI of the Colorado Constitution. Neither the 2020 Lease nor the 2020 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 Council hereby determines and declares that the Base Rentals due under the 2020 Lease, in the maximum amounts authorized pursuant to Section 5 hereof, constitute the fair rental value of the Leased Property and do not exceed a reasonable amount so as to place the City under an economic compulsion to renew the 2020 Lease or to exercise its option to purchase the Leased Property pursuant to the 2020 Lease. The Council hereby determines and declares that the period during which the City has an option to purchase the Leased Property from the Trustee (i.e., the entire maximum term of the 2020 Lease) does not exceed the useful life of the Leased Property. Section 10. No Recourse asEainst Officers and Aizents. Pursuant to Section 11-57-209 of the Supplemental Act, if a member of the Council, or any officer or agent of the City acts in good faith, no civil recourse shall be available against such member, officer, or agent for payment of the principal or interest on the 2020 Certificates. Such recourse shall not be available either directly or indirectly through the 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 2020 Certificates and as a part of the consideration of their sale or purchase,any person purchasing or selling such certificate specifically waives any such recourse. Section 11. Reyealer. 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 5 reviving any bylaw,order,resolution or ordinance of the City,or part thereof,heretofore repealed. All rules of the Council, if any, which might prevent the final passage and adoption of this ordinance as an emergency measure at this meeting of the Council be, and the same hereby are, suspended. Section 12. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The City Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term "provision" means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term "application" means and includes an application of an ordinance or any part thereof,whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the City. Section 13. Interpretation. This Ordinance shall be so interpreted and construed as to effectuate its general purpose. Section 14. Charter Controls. 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 or conflicts between the provisions of this Ordinance and the Sale Certificate authorized hereby and such statutes. Any such inconsistency or conflict is intended by the Council and shall be deemed made pursuant to the authority of Article XX of the State Constitution and the Charter. Section 15. Safety Clause. The Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the City,that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Council further determines that this Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 16. Electronic Signatures. In the event the Mayor, City Clerk, City Manager, Finance Director or other employee or official of the City that is authorized or directed to execute any agreement,document,certificate, instrument or other paper in accordance with this Ordinance (collectively, the "Authorized Documents") is not able to be physically present to manually sign any such Authorized Document, such individual or individuals are hereby authorized to execute Authorized Documents electronically via facsimile or email signature. Any electronic signature so affixed to any Authorized Document shall carry the full legal force and effect of any original, handwritten signature. This provision is made pursuant to Article 71.3 of Title 24, C.R.S., also known as the Uniform Electronic Transactions Act. Section 17. Publication. The City Clerk is ordered to publish this Ordinance in accordance with Article IV of the Charter. 6 Section 18. Effective Date. This Ordinance shall be effective thirty (30) days after final passage of the Ordinance upon second reading by the Council, as provided in Section 4.9 of the Charter. INTRODUCED,READ AND PASSED ON FIRST READING by the City Council of the City of Aspen at its regular meeting on September 8, 2020, as provided by the City's Charter and applicable law. [SEAL] By: Mayor Attest: By: City Clerk READ,PASSED ON SECOND READING,FINALLY ADOPTED AND APPROVED AND ORDERED PUBLISHED WITHIN 10 DAYS OF SUCH FINAL PASSAGE by the City Council of the City of Aspen at its regular meeting on September 22, 2020, as provided by the City's Charter and applicable law. [SEAL] By: Mayor Attest: By: City Clerk 7 STATE OF COLORADO ) COUNTY OF PITKIN )ss. CITY OF ASPEN ) I,Nicole Henning,the City Clerk of the City of Aspen, Colorado, do hereby certify that: 1. The foregoing pages are a true and correct copy of an ordinance (the "Ordinance")passed and adopted by the City Council (the"Council")at a regular meeting held on September 8, 2020. 2. The passage of the Ordinance on first reading on September 8, 2020, was duly moved and seconded and the Ordinance was approved by a vote of to of the members of the Council as follows: Name "Yes" "No" Absent Abstain Torre, Mayor Ward Hauenstein Skippy Mesirow Ann Mullins Rachael Richards 3. The passage of the Ordinance on second and final reading was duly moved and seconded at a regular meeting of the Council on September 22, 2020, and the Ordinance was approved on second and final reading by a vote of _to of the members of the Council as follows: Name "Yes" "No" Absent Abstain Torre, Mayor Ward Hauenstein Skippy Mesirow Ann Mullins Rachael Richards 4. The members of the Council were present at such meetings and voted on the passage of such Ordinance as set forth above. 8 5. The Ordinance was authenticated by the signature of the Mayor, sealed with the City seal, attested by the City Clerk, and recorded in the minutes of the Council. 6. There are no bylaws,rules or regulations of the Council that might prohibit the adoption of the Ordinance. 7. Notices of the meetings of September 8, 2020 and September 22, 2020, in the forms attached hereto as Exhibit A were posted at the City Hall not less than 24 hours prior to each meeting in accordance with law. 8. The Ordinance was published in full on September _, 2020 after first reading, and published by title only on September_, 2020, after second reading, by posting on the City's internet website, www.cityofaspen.com, as provided by Section 4.10(h) of the City's Home Rule Charter. WITNESS my hand and the seal of the City affixed this day of September, 2020. City Clerk (SEAL) 9 EXHIBIT A (Attach Notice of Meetings of September 8, 2020 and September 22, 2020) 10 54328686.v2 54462827.v 1