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HomeMy WebLinkAboutresolution.council.036-81 RESOLUTION NO. 56 A RESOLUTION AGREEING TO ISSUE CITY OF ASPEN, COLORADO, INDUSTRIAL DEVELOPMENT REVENUE BONDS TO FINANCE SPOR~S AND RECREATIONAL FACILITIES FOR LITTLE ANNIE, LIMITED PARTNERSHIP AND AUTHORIZING THE EXECUTION AND DELIVERY OF A MEMORANDUM OF AGREEMENT IN CONNECTION ~I~RfWITH BETWEEN THE CITY OF ASPEN, COLORADO, AND LITTLE ANNIE, LIMITED PARTNERSHIP. WHEREAS, the City of Aspen, Colorado ("the City"), is a legally and regularly created, established, organized and existing municipal corporation under the provisions of Article XX of the Constitution of the State of Colorado and the Charter of the City; and WHEREAS, the City is authorized by the Colorado County and Municipality Development Revenue Bond Act, constituting Article 3 of Title 29, Colorado Revised Statutes 1973, as amended (the "Act"), to finance one or more projects to provide more adequate facilities for sports events and activities and recreational activities which are available for use by members of the general public either as partici- pants or as spectators, upon such conditions as the City Council of the City may deem advisable; and WHEREAS, the City is further authorized by the ;~t to issue revenue bonds for the purpose of defraying the cost of financing any such project; and WHEREAS, Little Annie, Limited Partnership, a limited part- nership organized and existing under the laws of the State of Colorado (together with any successor entity thereto, the "Partnership"), desires to acquire, construct and install sports and recreational facilities in the City or within eight miles from the nearest point of its city limits, which sports and recreational facilities (the "Facilities") are more specifically described in the -2- Whereupon, it was moye~ by Councilmember ~.z~/ and seconded by Councilm~mher /~tt~ that said resolution--- be now placed on final passage, and that all rules of the Council which might prevent, unless suspended, the final passage and adoption of said resolution at this meeting be, and the same are, hereby sus- pended for the purpose of permitting the final passage and adoption of said resolution at this meeting. The question being upon the adoption of said motion and the suspension of the rules, the roll was called with the following result: Those Voting Yes: ~~ Those Voting No: Those Absent: ~ members of the City Council having voted in favor of said motion, the presiding officer declared said motion carried and the rules suspended. Whereupon C?uncilmember ~ moved that said resolution be now finally passed and ad~pted. Councilmember seconded the motion. The question being upon the the roll was called with the passage and adoption of said resolution, following result: Those Voting Yes: Those Voting No: Those Absent: -7- The presiding office~r thereupon declared ried and said resolution duly passed and adopted. (SEAL) said motion car- Mayor~ Attest: ~ity Clerk -8- STATE OF COLORADO COUNTY OF PITKIN CITY OF ASPEN ) ) ) SS. ) ) ing has 2. said meeting. I, Kathryn Koch, City Clerk of the City of Aspen, Pitkin County, Colorado (the "City"), do hereby certify: 1. The foregoing pages numbered 1 through 7, inclusive, are a true, full and correct copy of the proceedings of the City Council of the City insofar as said proceedings relate to Resolution No. ~ , a copy of which is set forth in full therein, at the meet- of the City Council held July 13, 1981 and that said resolution been numbered and recorded in the official records of the City. All members of the City Council were duly notified of 3. The Mayor and ~ members of the City Council were present at said meeting and the members of the City Council voted on said resolution as in said minutes set forth. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the City this 13th day of July, 1981. (SEAL) -9- EXHIBIT A MEMORANDUM OF AGREEMENT This Memorandum of Agreement is between the City of Aspen, Colorado, a legally and regularly created, established, organized and existing municipal corporation under, the provisions of Article XX of the Constitution of the State of Colorado ("the City"), and Little Annie, Limited Partnership, a limited partnership organized and existing under the laws of the State of Colorado (together with any successor entity thereto, the "Partnership"), for the purpose of pro- moting the public purposes of the City as stated in Article 3 of Title 29, Colorado Revised Statutes 1973, as amended (the "Act"). 1. Preliminary Statement. A~ong the matters of mutual inducement which have resulted in the execution of this Agreement are the following: (a) The City is a municipal corporation authorized and empowered by the Act to issue revenue bonds for the purpose of defraying the cost of financing one or more projects or parts thereof to provide more adequate facili- ties for sports events and activities and recreational activities available for use by members of the general public either as participants or as spectators and to enter into a financing agreement, as defined in the Act (the "Financing Agreement"), with respect to such projects, upon such terms and conditions as the City Council may deem advisable. (b) The Partnership desires to acquire, construct and install sports and recreational facilities in the City or within eight miles from the nearest point of its city limits, which sports and recreational facilities (the "Facilities") are more specifically described on Schedule I attached hereto. (1) (c) In order to provide more adequate facilities for sports events and activities and recreational activities which will be available for use by members of the general public either as participants or as spectators, the City proposes to finance the Facilities. It is possible that the description of the Facilities includes some items that may be found to be unnecessary, that similarly other items may become necessary, and that certain items may be con- structed but deleted from the Facilities for financing pur- poses (based upon determinations as to qualification under the Act and under the provisions of Section 103(b)(6) of the Internal Revenue Code of 1954, as amended, and the reg- ulations promulgated thereunder). It is estimated that the cost of the Facilities may be as much as approximately $15,000,000. (d) It is deemed necessary and advisable for the providing of more adequate facilities for sports events and activities and recreational activities available for use by members of the general public either as participants or as spectators that the financing of the Facilities be com- pleted at the earliest possible date. (e) Representatives of the City have indicated the willingness of the City to proceed with and effect such financing in order to assist the Partnership in the financ- ing of the Facilities and have advised the Partnership that subject to due compliance with all requirements of law and obtaining all necessary consents and approvals and to the happening of all acts, conditions and things required precedent to such financing, the City, pursuant to the Act, will issue and sell in one or more series its revenue bonds in the aggregate principal amount presently estimated not to exceed $15,000,000 (the "Bonds") to pay the costs of the Facilities, interest on the Bonds during the construction (2) period of the Facilities (not to exceed three years) and the expenses incidental to the issuance of the Bonds. (f) The City considers that the financing of the Facilities and the entering into of the Financing Agreement with the Partnership will be consistent with the objectives of the Act, will provide more adequate sports and recrea- tional facilities for use by members of the general public either as participants or as spectators and will thereby promote the public health, welfare, safety, convenience and prosperity. This commitment is an affirmative official action of the City toward the issuance of the Bonds as herein contemplated in accordance with the purpose of the Act and Section 1.103-8(a)(5) of the regulations promul- gated under Section 103(b) of the Internal Revenue Code of 1954, as amended. 2. Undertakinqs on the Part of the City. Subject to the conditions stated above, the City agrees as follows: (a) It will authorize or cause to be authorized the issuance and sale of the Bonds in one or more series in an aggregate principal amount presently estimated not to exceed $15,000,000. (b) It will adopt such proceedings and authorize the execution of such documents as may be necessary or advis- able for the authorization, issuance and sale of the Bonds and the financing of the Facilities including one or more Financing Agreements and one or more Indentures of Trust between the City and a trustee or trustees to be named under which the Bonds will be issued and secured and such other instruments and documents as shall be necessary or desirable in connection with the Bonds and the financing of the Facilities, all as shall be authorized by law and mutually satisfactory to the City and the Partnership. (3) (c) The aggregate sums payable under the Financing Agreement or Financing Agreements shall be sufficient to pay the principal of, premium, if any, and interest on the Bonds, all trustee's and paying agent's fees and all expenses of the City in connection with the Bonds, as and when the same shall become due and payable. (d) It will take or cause to be taken such other acts and adopt such further proceedings as may be required to implement the aforesaid undertakings or as it may deem appropriate in pursuance thereof. (e) In authorizing the issuance of the Bonds pursu- ant to this Agreement, the City will make no warranty, either express or implied, that the proceeds of the Bonds will be sufficient to pay all costs of the Facilities. (f) The Bonds shall specifically provide that they shall be payable solely by a pledge of the revenues derived from the Partnership pursuant to the Financing Agreement or Financing Agreements (except to the extent payable out of Bond proceeds and other funds or property, if any, pledged under such Indenture or Indentures of Trust), that they shall never constitute a debt or indebtedness of the City within the meaning of any provision or limitation of the Constitution or statutes of the State of Colorado or the home rule charter of the City and that they shall not give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers. 3. Undertakinas on the Part of the Partnership. Subject to the conditions stated above, the Partnership agrees as follows: (a) It will enter into such contract or contracts as may be necessary for the acquisition, construction and installation of the Facilities. (4) (b) Contemporaneously with the delivery of each series of Bonds, it will enter into a Financing Agreement with the City under the terms of which the Partnership will be obligated to complete or cause to be completed the acquisition, construction and installation of the Facilities financed by such series of Bonds and to pay the City sums sufficient in the aggregate to pay the principal of, premium, if any, and interest on such series of Bonds, all trustee's and paying agent's fees, and all expenses of the City in connection with the Bonds, as and when the same shall become due and payable. Such Financing Agreement shall also contain such other provisions as may be required by law and such other provisions as shall be mutually acceptable to the City and the Partnership. (c) If the Bonds are not issued and sold, it will reimburse the City for all reasonable and necessary direct out-of-pocket expenses which the City may incur at the request of the Partnership arising from the execution of this Agreement and the performance by the City of its obli- gations hereunder. (d) It will indemnify and hold the City free and harmless from any loss, claim, damage, tax, penalty, liability, disbursement, litigation expense, attorneys' fee and expense or court cost arising out of, or in any way relating to, the execution or performance of this Agreement or the financing of the Facilities by the City pursuant to this Agreement. (e) It will take such further action and adopt such further proceedings as may be required to implement its aforesaid undertakings or as it may deem appropriate in pursuance thereof. (5) 4. General Provisions. (a) All covenants and agreements herein contained by or on behalf of the City and the Partnership shall bind and inure to the benefit of the respective successors and assigns of the City and the Partnership. (b) This Agreenent shall not constitute the debt or indebtedness of the City within the meaning of the Constitution or statutes of the State of Colorado or the home rule charter of the City nor give rise to a pecuniary liability or a charge against the general credit or taxing powers of the City. (c) Nothing contained deemed to be or construed as in this Agreement shall be the approval by the City of any other aspect of the Facilities other than the financing of the Facilities. IN WITNESS WHEREOF, the/~rties hereto have entered this Agreement this /3 day of~-~/~.~ , 1981. into (SEAL) Attest: Clerk CITY OF ASPEN, COLORADO Mayor ~-- (6) STATE OF COLORADO COUNTY OF PITKIN CITY OF ASPEN ) ) ) SS. ) ) The City Council of the City of Aspen, Pitkin County, Colorado, met in regular session in full conformity with law, the City Charter and the ordinances and rules of the Council, in the Council Chambers in the City Hall, 130 $. Galena, on Monday, July 13, 1981 at the hour of 5:00 p.m. Upon roll call the following were found to be present, constituting a quorum: Present: Mayor: Councilmembers: Absent: constituting all the members thereof. There were also present: City Manager: Clerk: City Attorney: Thereupon, Councilmember following resolution, Herman Edel Richard Knecht George Parry Charles Collins Wayne Chapman Kathryn Koch aul Taddune introduced the text of which is ~s follows: the LITTLE ANNIE, LIMITED General Partner (7) FACILITIES Sports and recreational facilities to be acquired, con- structed and installed in the City of Aspen, Colorado, or within eight miles from the nearest point of its city limits in connection with the Little Annie Ski Area: Chairlifts and accessories, T-bar lifts, gondolas and ancillary facilities, ski trails, roads, parking facilities, vehicles including construction equipment, snowgrooming equipment and wheel vehicles, buildings including, without limitation, office and supply center, maintenance building, restaurants, ski lift building and ski patrol room, ticket offices, ski rental equipment, snowmaking equip- ment, water storage facilities and utility extensions, sewage and water treatment facilities, together with other functionally related and subordinate facilities. (8) Memorandum of Agreenent attached hereto as Exhibit A (the "Memorandum of Agreement"); and WHEREAS, the City Council desires to take the necessary action to authorize, issue, sell and deliver its revenue bonds pursu- ant to the Act in an aggregate principal amount presently estimated not to exceed $15,000,000 (the "Bonds") in one or more series to pay the cost of the Facilities, interest on the Bonds during the con- struction period of the Facilities (not to exceed three years) and the costs incidental to the authorization, issuance and sale of the Bonds; and W~EREAS, acquisition, construction, and installation of the Facilities has not yet commenced and it is deemed necessary and advisable that the Memorandum of Agreement be executed by the City and the Partnership, which Memorandum of Agreement sets forth the preliminary agreements of the parties with respect to the financing of the Facilities. NOW, T~EREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. The City hereby agrees that, subject to the provisions hereof and upon the terms provided in the Memorandum of Agreement, it will authorize and issue the Bonds, in one or more series, to pay the cost of the Facilities, interest on the Bonds during the construction period of the Facilities (not to exceed three years) and costs incidental to the authorization, issuance and sale of the Bonds, and will take all further action which is necessary or desirable in connection therewith, and its officers are hereby autho- rized and directed to take all actions necessary or desirable in con- nection with such financing. Section 2. The City, subject to the terms and conditions set forth in the Memorandum of Agreement, will authorize and execute (a) one or more Financing Agreements, as defined in the Act (the "Financing Agreement"), whereby the Partnership will make payments -3- sufficient to pay all of the principal of, premium, if any, and interest on the Bonds and all expenses of the City in connection with the Bonds, as the same become due and payable, (b) one or more Indentures of Trust (the "Indenture") under which the Bonds will be issued and secured, and (c) such other instruments and documents as shall be necessary or desirable in connection with such financing. Section 3. The form, terms and provisions of the Memorandum of Agreement be and they hereby are approved and the Mayor and the City Clerk be and they hereby are authorized and directed to execute and deliver the Memorandum of Agreement for and on behalf of the City. Section 4. Mr. Kurt A. Kaufmann and Mr. David Thomas of Messrs. Sherman & ~oward, 2900 First of Denver Plaza, Denver, Colorado 80202 are hereby appointed attorney-in-fact, either of whom may represent the City with respect to any requests for revenue rul- ings to be submitted to the Internal Revenue Service in connection with the Facilities and the Bonds, and the Mayor and the City Clerk be and they hereby are authorized to deliver any documents deemed necessary or desirable to evidence such appointments. Section 5. The Bonds and interest coupons, if any, appur- tenant thereto shall never constitute the debt or indebtedness of the City within the meaning of any provision or limitation of the Constitution or statutes of the State of Colorado or the home rule charter of the City and shall not give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers, but shall be secured and payable only by a pledge of the revenues derived from the Partnership pursuant to the Financing Agreement and other funds and property to be pledged under the Indenture. Section 6. Nothing contained in this resolution, in any such request for a revenue ruling or in the Memorandum of Agreement shall constitute the debt or indebtedness of the City within the meaning of any provision or limitation of the Constitution or -4- statutes of the State of Colorado or the home rule charter of the City or give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers. Section 7. If the Bonds are not issued and sold, the Partnership will reimburse the City for all reasonable and necessary direct out-of-pocket expenses which the City may incur at the request of the Partnership arising from the adoption of this resolution, the execution of the Memorandum of Agreement and the performance by the City of its obligations under this resolution and the Memorandum of Agreement. Section 8. Nothing contained in this resolution or in the Memorandum of Agreement shall be deemed to be or construed as the approval by the City of any other aspect of the Facilities other than the financing of the Facilities. Section 9. If any section, paragraph, clause or provision of this resolution 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 resolution. Section 10. All orders, bylaws and resolutions, or parts thereof, in connection with this resolution are hereby repealed to the extent of such conflict. This repealer shall not be construed to revive any order, bylaw or resolution, or parts thereof, heretofore repealed. Section 11. All action not inconsistent with the provi- sions of this resolution heretofore taken by the City Council and the officers of the City with respact to the Facilities, and the authori- zation, issuance and sale of the Bonds be, and the same hereby is, ratified, approved and confirmed. Section 12. This resolution shall take effect irmmediately upon its introduction and passage. -5- 1981. (SEAL) INTRODUCED, READ, PASSED AND ADOPTED this 13th day of July, Mayor ~ Attest: ~City Clerk -6-