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HomeMy WebLinkAboutordinance.council.025-95 ~.,.' :~ . . ~.~_..../ ,.&Ii!A "~ -- ORDINANCE NO. 6" (SERIES OF 1995) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO AUTHORIZING AND APPROVING A GROUND LEASE AGREEMENT, A LEASE PURCHASE AND SUBLEASE AGREEMENT, A MORTGAGE AND INDENTURE OF TRUST, AN ESCROW AGREEMENT, A CERTIFICATE PURCHASE AGREEMENT, A FINANCIAL GUARANTY AGREEMENT, AN OFFICIAL STATEMENT AND ornER RELATED DOCUMENTS AND ACTIONS IN CONNECTION WITH THE ISSUANCE OF CERTAIN CERTIFICATES OF PARTICIPATION IN THE AGGREGATE PRINCIPAL AMOUNT OF $6,470,000; AND DECLARING AN EMERGENCY AND PROVIDING FOR THE EFFECTIVE DATE OF THIS EMERGENCY ORDINANCE. WHEREAS, the City of Aspen, Colorado (the "City") has been duly organized and is validly existing as a home rule city under the Colorado Constitution and the home rule charter of the City (the "Charter"); and WHEREAS, the City has previously authorized and directed the creation of the City of Aspen Public Facilities Authority (the"Lessor"), a nonprofit corporation and an instrumentality of the City for certain limited purposes, under the provisions of the Colorado Nonprofit Corporation Act, articles 20 through 29 of title 7, Colorado Revised Statutes (the "Act"), pursuant to an ordinance duly and regularly adopted by the City Council of the City (the "City Council"); and WHEREAS, pursuant to Section 1.4 of the Charter and part 8 of article 15 of title 31 , Colorado Revised Statutes, 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 02/65576.3 It, " ,&,'i.'... 8; \\,' ~...' 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(~ \~ ",- WHEREAS, the City Council has previously determined that the City was in need ofthe parking facility more fully described in the Lease referred to hereinbelow (the"Project") and that it was necessary and in the best interests of the City and its residents that certain certificates of participation (the "Refunded Certificates") be issued to fmance the acquisition and construction of the Project, on a certain parcel of land more fully described in the Ground Lease referred to hereinbelow (the "Site") owned by the City; and WHEREAS, for purposes of refmancing the acquisition and construction of the Project and refunding the Refunded Certificates, the City Council has determined, and hereby determines (a) that it is in the best interests of the City and its residents that the City continue to lease the Site to the Lessor pursuant to that certain Ground Lease Agreement, dated as of July 15, 1995 (the "Ground Lease"), between the City and the Lessor, presented to this meeting of the City Council, and (b) that the Lessor continue to lease the Project and sublease the Site to the City pursuant to that certain annually renewable Lease Purchase and Sublease Agreement, dated as of July 15, 1995 (the "Lease"), between the City and the Lessor, presented to this meeting of the City Council; and WHEREAS, the Lessor will Issue certificates of participation (the "Series 1995 Certificates") in the aggregate principal amount of $6,470,000 evidencing assignments of proportionate undivided interests in rights to receive payments under the Lease; and WHEREAS, payment of the principal of and interest on the Series 1995 Certificates when due will be insured by a municipal bond insurance policy to be issued simultaneously with the delivery of the Series 1995 Certificates by MBIA Insurance Corporation (the "Certificate Insurer"); and 02/65576,3 2 ~,.'_.1 ~~ \~\< ,&- ~ ''\< e" 1m 'n- "'i '" - WHEREAS, the Certificate Insurer has agreed to provide a surety bond to further secure the payments to be made on the Series 1995 Certificates pursuant to the terms and provisions of a Financial Guaranty Agreement, dated as of July 15, 1995 (the "Financial Guaranty Agreement"), between the City and the Certificate Insurer; and WHEREAS, there has also been presented to this meeting of the City Council (a) a certain Mortgage and Indenture of Trust, dated as of July 15, 1995 (the "Indenture"), between the Lessor and Norwest Bank Colorado, National Association, a national banking association, as trustee (the "Trustee"), (b) the form of the Series 1995 Certificates, (c) a Certificate Purchase Agreement, dated June 28, 1995 (the "Certificate Purchase Agreement"), pursuant to which the Series 1995 Certificates shall be sold by the City to Bigelow & Company, A division of Dougherty, Dawkins, Strand & Bigelow, Incorporated (the "Underwriter"), (d) an Escrow Agreement, dated as of July 15, 1995 (the "Escrow Agreement"), between the Lessor and Norwest Bank Colorado, National Association, as escrow agent, (e) the Financial Guaranty Agreement, (f) a Preliminary Official Statement (the "Preliminary Official Statement"), which has been distributed to potential investors in connection with the sale of the Series 1995 Certificates, and (g) a fmal Official Statement (the "Final Official Statement") which is proposed to be executed and distributed in connection with the sale of the Series 1995 Certificates; and WHEREAS, the City Council is desirous of authorizing, approving and directing the execution and delivery of the Ground Lease, the Lease, the Escrow Agreement, the Financial Guaranty Agreement and the Certificate Purchase Agreement, by the City and the execution and delivery of the Ground Lease, the Lease, the Indenture and the Certificate Purchase Agreement by the Lessor, all in substantially the forms presented to this meeting of the City Council, and 02/65576.3 3 0.'.11t.. Ii! '<\~,. ,~-'... \e '\ r_.. ,. is further desirous of authorizing and approving the issuance of the Series 1995 Certificates pursuant to the Indenture, ratifying the distribution of the Preliminary Official Statement, authorizing and approving the distribution of the Final Official Statement, and authorizing and approving the transactions contemplated thereby. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section 1. Ratification of Prior Actions. All actions heretofore taken (not inconsistent with the provisions of this Ordinance) by (a) the City Council or the officers or employees of the City, or (b) the Board of Directors of the Lessor (the "Board") or the officers or employees of the Lessor, which actions have been directed toward the refmancing of the acquisition and construction of the Project, the continued leasing of the Site by the City to the Lessor, or the continued leasing of the Project and subleasing of the Site by the Lessor to the City, are hereby ratified, approved and confirmed. The City Council hereby specifically ratifies, approves and confirms the distribution by the Underwriter of the Preliminary Official Statement to prospective purchasers of the Series 1995 Certificates. Section 2. Execution and Delivery of the Ground Lease by the City. The Ground Lease, in substantially the form presented to this meeting of the City Council and with substantially the same content, is in all respects approved, authorized! and! confmned, and the Mayor or Mayor Pro Tern of the City is authorized and directed to affix his signature to the Ground Lease in substantially the form and with substantially the same content as presented to this meeting of the City Council, for and on behalf of the City, but with such changes, modifications, additions or deletions therein as the Mayor of the City and the City Attorney shall 02/65576.3 4 @.1.._,. %: \\< ~- I:.... 'i\~, "It'.. II '~ deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Ground Lease presented to this meeting. Section 3. Execution and Delivery of the Lease by the City. The Lease, in substantially the form presented to this meeting of the City Council and with substantially the same content, is in all respects approved, authorized and confirmed, and the Mayor or Mayor Pro Tern of the City is authorized and directed to affIx his signature to the Lease in substantially the form and with substantially the same content as presented to this meeting of the City Council, for and on behalf of the City, but with such changes, modifications, additions OJ!" deletions therein as the Mayor of the City and the City Attorney shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Lease presented to this meeting. Section 4. Execution and Delivery of the Certificate Purchase Agreement by the City. The Certificate Purchase Agreement, in substantially the form presented to this meeting ofthe City Council and with substantially the same content, is in all respects approved, authorized and confirmed, and the Mayor or Mayor Pro Tern of the City is authorized and directed to affix his signature to the Certificate Purchase Agreement in substantially the form and with substantially the same content as presented to this meeting of the City Council, for and on behalf of the City, but with such changes, modifications, additions or deletions therein as the Mayor of the City and the City Attorney shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions 02/65576.3 5 "It ~" I.}\<. it_ ,ll <,;" "It. /@..'.' i(~ ,,~'" or deletions therein from the form and content of the Certificate Purchase Agreement presented to this meeting. Section 5. Execution and Delivery of the Escrow Agreement by the City. The Escrow Agreement, in substantially the form presented to this meeting of the City Council and with substantially the same content, is in all respects approved, authorized and confIrmed, and the Mayor or Mayor Pro Tern of the City is authorized and directed to affIx his signature to the Escrow Agreement in substantially the form and with substantially the same content as presented to this meeting of the City Council, for and on behalf of the City, but with such changes, modifications, additions or deletions therein as the Mayor of the City and the City Attorney shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Escrow Agreement presented to this meeting. Section 6. Execution and Delivery of the Financial Guaranty Agreement by the City. The Financial Guaranty Agreement, in substantially the form presented to this meeting ofthe City Council and with substantially the same content, is in all respects approved, authorized and confirmed, and the Mayor or Mayor Pro Tern of the City is authorized and directed to affIx his signature to the Financial Guaranty Agreement in substantially the form and with substantially the same content as presented to this meeting of the City Council, for and on behalf of the City, but with such changes, modifications, additions or deletions therein as the Mayor of the City and the City Attorney shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions 02/65576.3 6 - t-. ~., 'e" ~ 'l\\:!~ or deletions therein from the form and content of the Financial Guaranty Agreement presented to this meeting. Section 7. Execution and Delivery of the Escrow Agreement by the Lessor. The City Council hereby approves the execution, and delivery by the Lessor of the Escrow Agreement, in substantially the form and with substantially the same content as presented to this meeting of the City Council, but with such changes, modifications, additions or deletions therein as the Board shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Escrow Agreement presented to this meeting. Section 8. Execution and Delivery of the Ground Lease by the Lessor. The City Council hereby approves the execution and delivery by the Lessor of the Ground Lease, in substantially the form and with substantially the same content as presented to this meeting of the City Council, but with such changes, modifications, additions or deletions therein as the Board shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Ground Lease presented to this meeting. Section 9. Execution and Delivery of the Lease by the Lessor. The City Council hereby approves the execution and delivery by the Lessor of the Lease, in substantially the form and with substantially the same content as presented to this meeting of the City Council, but with such changes, modifications, additions or deletions therein as the Board shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval 02/65576.3 7 ~e,..... \':\, ">'-. "...'It'..... .w Q), ~-'. \Th, '~~ of any and all changes, modifications, additions or deletions therein from the form and content of the Lease presented to this meeting. Section 10. Execution and Delivery of the Indenture by the Lessor. The City Council hereby approves the execution and delivery by the Lessor of the Indenture, in substantially the form and with substantially the same content as presented to this meeting of the City Council, but with such changes, modifications, additions or deletions therein as the Board shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Indenture presented to this meeting. Section 11. Execution and Delivery of the Certificate Purchase Agreement by the Lessor. The City Council hereby approves the execution and delivery by the Lessor of the Certificate Purchase Agreement, in substantially the form and with substantially the same content as presented to this meeting of the City Council, but with such changes, modifications, additions or deletions therein as the Board shall deem necessary, desirable or appropriate, the execution thereofto constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Certificate Purchase Agreement presented to this meeting. Section 12. Execution and Delivery of the Escrow Agreement by the Lessor. The City Council hereby approves the execution and delivery by the Lessor of the Escrow Agreement, in substantially the form and with substantially the same content as presented to this meeting of the City Council, but with such changes, modifications, additions or deletions therein as the Board shall deem necessary, desirable or appropriate, the execution thereof to constitute 02/65576.3 8 ~.'.".'. \'. ~.... \., ~... \t. conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Escrow Agreement presented to this meeting. Section 13. Assignment to the Trustee. The City Council hereby acknowledges and consents to (a) the assignment by the Lessor to the Trustee, pursuant to the Indenture, of the Trust Estate (as such term is defmed in the Indenture) including, without limitation, all rights, title and interest of Lessor in, to and under the Lease (with certain exceptions as provided in the Lease and the Indenture) and the Ground Lease, and (b) the delegation by the Lessor to the Trustee, pursuant to the Indenture, of all duties of the Lessor under the Lease and the Ground Lease. Section 14. Issuance of the Series 1995 Certificates. The issuance of the Series 1995 Certificates, pursuant to the Indenture, in the aggregate principal amount of $6,470,000 is, in all respects, hereby approved by the City. The Series 1995 Certificates shall be issued solely as fully registered certificates without coupons in the denomination of $5,000, and any integral multiple thereof. The Series 1995 Certificates shall bear interest payable semiannually on March 1 and September 1 of each year, commencing March 1, 1996, at the rates and will mature in the amounts and on the dates set forth below: 02/65576.3 9 ,- Date Principal IJ!lterest Rate \\ (September 1) Maturities (Per Annum) 1996 $240,000 4.20% 1997 290,000 4.35 1998 335,000 4.50 1999 370,000 4.65 2000 405,000 4.70 2001 435,000 4.80 2002 455,000 4.90 2003 475,000 5.00 2006 1,595,000 5.25 2009 1,870,000 5.50 The Series 1995 Certificates shall be subject to redemption prior to their maturity, including mandatory sinking fund redemption, in the manner, on the dates and at the prices set forth in the Indenture. The City Council hereby authorizes and approves the form, and the further terms 6'1t.' ~L '"'< and provisions of, the Series 1995 Certificates contained in the Indenture, in substantially the form and with substantially the same content as that presented to this meeting of the City Council. The City Clerk and the Mayor of the City are hereby authorized and directed to affix their facsimile signatures and the City seal, or a facsimile thereof, to authenticate the Series 1995 Certificates, as provided in the Lease and the Indenture. Section 15. Sale of the Series 1995 Certificates. The City Council hereby authorizes, approves and directs the sale of the Series 1995 Certificates to the Underwriter under the terms and conditions of, and for the price set forth, in the Certificate Purchase Agreement. Section 16. Final Official Statement. The Mayor or Mayor Pro Tern of the City 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 and with substantially the content presented to this ilie. rd.'. '" \0Zt 02/65576,3 10 ~- ~. Itv ~'~. .~,. Mrt'. (F \\, meeting of the City Council, but with such changes, modifications, additions or deletions therein as the Mayor of the City and the City Attorney may deem necessary or appropriate, the execution thereof to constitute conclusive evidence of their approval of such changes, modifications, additions or deletions therein from the form presented to this meeting. The distribution by the Underwriter of the Final Official Statement to prospective purchasers of the Series 1995 Certificates is hereby approved. Section 17. Attestation by the City Clerk and Other Actions in Furlherance of the Contemplated Transactions. The City Clerk is hereby authorized and directed to attest all signatures and acts of any official of the City Councilor the City in connection with the matters authorized by this Ordinance, and to place the seal of the City on the Ground Lease and the Lease authorized and approved by this Ordinance. The Mayor or Mayor Pro Tern of the City and other officials of the City Council or the City 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 that they may deem necessary or appropriate in order to implement and carry out the transactions and other matters authorized and contemplated by this Ordinance. The appropriate officers of the City Council or the City are authorized to execute on behalf of the City agreements concerning the deposit and investment of funds in connection with the transactions contemplated by this Ordinance. The execution and delivery, by the Lessor, of any and all additional certificates, documents and other papers and the performance of all other acts necessary or appropriate in order to implement and carry out the transactions and other matters authorized and contemplated by this Ordinance is hereby approved and authorized by the City. 02/65576.3 11 -' ""'.... \\),\'" a_'. ~~ <t\: e'. w \~, ~ Section 18. No General Obligation of the City Created. NO PROVISION OF THIS ORDINANCE, THE GROUND LEASE, THE LEASE, THE INDENTURE, THE ESCROW AGREEMENT, THE FINANCIAL GUARANTY AGREEMENT, THE SERIES 1995 CERTIFICATES, THE CERTIFICATE PURCHASE AGREEMENT, THE ESCROW AGREEMENT OR THE FINAL OFFICIAL STATEMENT SHALL BE CONSTRUED AS CREATING OR CONSTITUTING A GENERAL OBUGATION OR OTHER INDEBTEDNESS OF THE CITY OR A MANDATORY PAYMENT OBLIGATION OF THE CITY IN ANY FISCAL YEAR BEYOND A FISCAL YEAR FOR wmCH THE CITY HAS APPROPRIATED AMOUNTS TO MAKE PAYMENTS UNDER THE LEASE. THE CITY SHALL HAVE NO OBUGATION TO MAKE ANY PAYMENT WITH RESPECT TO THE SERIES 1995 CERTIFICATES EXCEPT IN CONNECTION WITH THE PAYMENT OF THE BASE RENTALS AND ADDITIONAL 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. IN ADDITION, NO PROVISION OF THIS ORDINANCE, THE GROUND LEASE, THE LEASE, THE INDENTURE, THE ESCROW AGREEMENT, THE FINANCIAL GUARANTY AGREEMENT, THE SERIES 1995 CERTIFICATES, THE CERTIFICATE PURCHASE AGREEMENT, THE ESCROW AGREEMENT OR THE FINAL OFFICIAL STATEMENT SHALL BE CONSTRUED TO PLEDGE OR TO CREATE A UEN ON ANY CLASS OR SOURCE OF CITY MONEYS; HOWEVER, THE CITY CURRENTLY ANTICIPATES THAT A ONE-QUARTER PERCENT SALES TAX IMPOSED PURSUANT TO ORDINANCE NO. 24-A (SERIES OF 1988) AND REVENUES GENERATED BY THE 02/65576.3 12 -.'...... \ \\~. -' \f '-" .,<- It, "'$'. {#: \~1 (\ ...z; PROJECT SHALL BE SOURCES OF REVENUES AVAILABLE TO PAY BASE RENTALS, SUBJECT TO APPROPRIATION. Section 19. Determination of Rental Value and Purchase Option Price Under the Lease. The City Council hereby determines and declares that the Base Rentals represent the fair value of the use of the Project; and that the Purchase Option Price (as defmed in the Lease) represents the fair purchase price of the Project. The City Council hereby determines and declares that the Base Rentals do not exceed a reasonable amount so as to place the City under an economic or practical compulsion to renew the Lease or to exercise its option to purchase the Project pursuant to the Lease. In making such determinations, the City Council has given consideration to the cost of constructing the Project, the uses and purposes for which the Project will be employed by the City, the benefit to the citizens and residents of the City by reason of the acquisition of the Project and the use of the Project pursuant to the terms and provisions of the Lease, the option of the City to purchase the Project, and the expected eventual vesting of title to the Project in the City. The City Council hereby determines and declares that the acquisition and construction of the Project and the leasing of the Project pursuant to the Lease will result in facilities of comparable quality and meeting the same requirements and standards as would be necessary if the acquisition of the Project were performed by the City other than pursuant to the Lease. The City Council hereby determines and declares that the period during which the City has an option to purchase the Project (i.e., the maximum term of the Lease, including all Renewal Terms) does not exceed the useful life of the Project. Section 20. Determination of Rental Value of Site. The City Council hereby detennines and declares that Rent to be received for the Site under the Ground Lease after a Termination 02/65576.3 13 '_.1..'..'. v> ''<"" i.' '~\,'- ~e( ., -'" Event under the Lease (all as defmed in the Ground Lease and the Lease) represents the fair rental value of the Site. The City Council hereby determines and declares that the amount of the Rent is not less than the fair rental value of the Site so as to place the City under an economic or practical compulsion to renew the Lease or to exercise its option to purchase the Project pursuant to the Lease. In making such determinations, the City Council has given consideration to an evaluation by the staff of the City of the fair market rental value of the Site, the user and purposes for which the Site will be employed by the City, the benefit to the citizens and residents of the City by reason of the acquisition of the Project on the Site, the option of the City to purchase the Project, and the expected eventual vesting of title to the Project in the City. Section 21. Exercise of Home Rule Powers of the City. In authorizing and approving the actions herein set forth, it is the intent of the City Council of the City to exercise the home rule powers of the City granted pursuant to the Colorado Constitution and the Charter, and the City Council of the City hereby fmds, determines and declares that the matters herein referred to are matters of local or municipal concern and are appropriate for the exercise of the home rule powers of the City. Section 22. Repealer. All prior ordinances, acts, orders or resolutions, or parts thereof, by the City in conflict with this Ordinance are hereby repealed, except that this repealer shall not be construed to revive any ordinance, act, order or resolution, or part thereof, heretofore repealed. Section 23. Severability. If any section, paragraph, clause or provision of this Ordinance shall be adjudged to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining sections, 02/65576.3 14 '1.~. '<.,. If..... Ii .'C. "It' It.' . , paragraphs, clauses or provisions of this Ordinance, it being the intention that the various parts hereof are severable. Section 24. Public Hearing. A public hearing on this Ordinance shall be held onthe 5th day of June 1995, at 5:00 p.m., in the City Council Chambers, Aspen City Hall, Aspen, Colorado. Section 25. Emergency and Effective DoJe. Due to fluctuations in municipal bond prices and interest rates, due to currently favorable interest rates and due to the need to preserve public property, health, peace and safety, it is hereby declared that, in the opinion of the Council, an emergency exists, and therefore this Ordinance shall be in full force and effect upon its passage. INTRODUCED, READ AS AN EMERGENCY MEASURE AND ORDERED PUBLISHED as provided by law by the City Council of The City of Aspen on the 15th day of May 1995. [SEAL] By ~ l5~r M:iyor Attest: BY~V~ '. City Cle 02/655763 15 '. .."'.... . ,"b "\ ''\, ...1,'..,. W \: \\< !...'.'.... f IW \S, "< FINALLY ADOPTED AND APPROVED AS AN EMERGENCY MEASURE AND ORDERED PUBUSHED this 10th day of July 1995. [SEAL] Attest: By~AI~ City C k 02/65576.3 By ~ r5~4/- MlllYor 16