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HomeMy WebLinkAboutordinance.council.001-07ORDINANCE NO. I (SERIES OF 200'n AN ORDINANCE OF IHE CIIY OF ASPEN, COLORADO, AUTHORIZII~'G AND APPROVING A LEASE PURCHASE AGREEMENT, AN OFFICIAL STATEMENT AND OTHER DOCUMENTATION RELATING IO SUCH LEASE PURCHASE AGREEMENT; ACKNOWLEDGING A MORTGAGE AND INDENTURE OF IRUSI, CERTAIN CERTIFICATES OF PARTICIPATION ISSUED PURSUANT THERETO, A CERTIFICATE PURCHASE AGREEMENI AND RELAIED DOCUMENTAIION; DELEGATING THE AUTHORITY TO THE CITY'S FINANCE DII2ECTOR IO DEIERMINE CERTAIN PROVISIONS OF THE LEASE PURCHASE AGREEMENT AND OIHER DOCUMENIS; AND PROVIDING OIHER DETAILS IN CONNECTION WITH SUCH LEASE PURCHASE AGREEMENT AND RELATED DOCUMENTATION. WHEREAS, the City of Aspen (the "City"), in the County of Pitkin and State of Colorado (the "State"), is a legally and regulazly created, established, organized and existing municipal corporation under the provisions of Article XX of the Constitution of the State of Colorado and the home rule charter of the City (the "Chazter") (all capitalized terms used and not otherwise defined in the recitals hereof shall have the respective meanings assigned in Section 1 of this Ordinance); and WHEREAS, under the Chazter, the City is possessed of all powers which aze necessazy, requisite or proper for the government and administration of its local and municipal matters, all powers which are granted to home mle municipalities by the Colorado Constitution, and all rights and powers that now or hereafter maybe granted to municipalities by the laws of the State of Colorado; and WHEREAS, pursuant to Section 1.4 of the Chazter; the City is authorized to enter into one or more leases or lease-purchase agreements for land, buildings, equipment and other property for govermnental or proprietary purposes; and WHEREAS, the City Council of the City (the "City Council") has, in the Memorandum of Understanding (the "MOU") by and among the City, Independent Films, Inc, a Colorado nonprofit corporation doing business as Aspen FihnFest ("AspenFilm'~, and Isis Property Group LLC, a Colorado limited liability company ("Isis Group"), approved by the City Council in its Resolution No.. 99, Series of 2006, expressed its determination that it is the best interests of the City and its inhabitants to retain a theater in the downtown azea suitable for the exhibition of films to the public; and WHEREAS, the City of Aspen Public Facilities Authority, a Colorado nonprofit corporation (the "Corporation', will acquire certain property within the boundaries of the City, which property contains theaters commonly known as the Isis Theater; and WHEREAS, the Corporation desires to make certain improvements to such property and to lease such improved property (the "Leased Property") to the City pursuant to a Lease Purchase Agreement between the Corporation, as lessor; and the City, as lessee (the "Lease"); and asaa-seoz-sam a WHEREAS, the City has determined in the MOU that the lease by the City of the Leased Property serves a public purpose, and the City consequently desit es to lease the Leased Property from the Corporation pursuant to the Lease; and WHEREAS, the Corporation will finance the acquisition of and, pursuant to a Renovation Agreement (the "Renovation Agreement") between the Corporation and the City, the improvement of the Leased Property with the proceeds of its "City of Aspen Public Facilities Authority Iaxable Certificates of Pazticipation (Isis Theater Project), Series 2007A" (the "Certificates"), which Certificates will be delivered pursuant to a Mortgage and Indenture of Trust dated as of the date of the Lease (the "Indentur'e") between the Corporation and American National Bank, as trustee (the "Trustee"); and WHEREAS, the Lease shall expire on December 31 of any City fiscal year (a "Fiscal Year") if the City has, on such date, failed, for any reason, to appropriate sufficient amounts to pay all Base Rentals (as defined in the Lease) scheduled to be paid and all Additional Rentals (as defined in the Lease) estimated to be payable in the next ensuing Fiscal Yeaz, and in certain other circumstances set forth in the Lease, and shall not constitute a mandatory chazge or requirement against the City in any ensuing budget yeaz unless the City decides to renew the Lease by appropriating the necessazy such amounts; and WHEREAS, the City currently expects that the Corporation will enter into a commitment (the "Commitment") for the delivery by a AAA/Aaa-rated insurer of municipal obligations (the "Certificate Insurer") of an insurance policy (the "Certificate Insurance Policy") guaranteeing the payment of the principal of and interest on the Certificates when due; and WHEREAS, to further secure the payments to be made on the Certificates, the Corporation may purchase from the Certificate Insurer a surety bond (the "Reserve Fund Surety Bond") to fund the Reserve Fund established by the Indenture for the payment of the Certificates pursuant to the terms and provisions of a guaranty ageement between the Corporation and the Certificate Insurer (the "Financial Guaranty Agreemenf~; and WHEREAS, the Certificates shall evidence assignments of proportionate undivided interests in certain payments pursuant to the Lease and shall be payable solely from the sources provided in the Lease and the Indenture; and WHEREAS, no provision of the Certificates, the Indenture, the Lease or any other document described herein shall be construed or interpreted (a) to directly or indirectly obligate the City to make any payment in any Fiscal Yeaz in excess of amounts appropriated for such Fiscal Yeaz; (b) as creating a debt or multiple fiscal yeaz direct or ind'ir'ect debt or other financial obligation whatsoever of the City within the meaning of Article XI, Section 6 or Article X, Section 20 of the Colorado Constitution or any other constitutional or statutory limitation or provision; (c) as a delegation of governmental powers by the City; (d) as a loan or pledge of the credit or faith of the City or as creating any responsibility by the City for any debt or liability of any person, company or corporation within the meaning of Article XI, Section I of the Colorado Constitution; or (e) as a donation or grant by the City to, or in aid of; any person, company or corporation within the meaning of Article XI, Section 2 of the Colorado Constitution; and 4845-6602-8801 4 WHEREAS, the City has been presented with forms of the Lease, the Indenture, the Renovation Agx'eement and a Certificate Purchase Agreement (the "Certificate Purchase Agreement") pursuant to which the Certificates are to be sold to Stifel, Nicolaus & Company, Incorporated (the "Underwxitex'~ and the Preliminazy Official Statement relating to the offer and sale ofthe Certificates (the "Pxeliminazy Official Statement"); and WHEREAS, pwsuant to Section 6.8 of the Chazter, the City's Director of Finance (the "City Finance Director's shall perform such duties pertaining to the City's department of fmance as required by the City Council; and WFIEREAS, the City Council desires to delegate the authority to the City Finance Director to determine certain terms of the Lease and other documents as set forth herein, all in accordance with the provisions of this Ordinance; and WHEREAS, in order to implement the transactions described above, the City Council desires (a) to authorize and approve the execution and delivery by the City of; and the performance by the City of its obligations under, the Lease and certain other documents described herein; (b) to authorize, and approve the use in the offering and sale of the Certificates of, the Preliminazy Official Statement and a final official statement substantially in the form of the Preliminazy Official Statement (the "Official Statemenf~; (c) to authorize the execution of the Official Statement; (d) to acknowledge the Indenture, the Certificates, the Certificate Purchase Agreement, the Commitment and the Financial Guazanty Agreement; and (e) to authorize, approve, ratify, make findings and take other actions with respect to the foregoing and related matters. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. Definitions. All capitalized terms used and not otherwise defined in this Ordinance shall have the respective meanings assigned in the Lease. Section 2. Approval and Authorization of Documents. The City Council hereby approves the following documents, copies of which have been made available to the City Council, authorizes the Mayor, the Mayor Pm Tem and all other appropriate officers and employees of the City to execute and deliver, and to affix the seal of the City to, such documents in the forms made available to the City Council, with such changes therein, not inconsistent herewith, as az'e approved by the persons executing the same (whose signature thereon shall constitute conclusive evidence of'such approval) and authorizes and directs the pexfoxmance by the City of its obligations under such documents in the forms in which they are executed and delivered: (a) the Lease; provided that: (1) the Base Rentals payable by the City pursuant to the Lease shall not exceed $700,000 per year; and (2) the Scheduled Lease Term (as defined in the Lease) shall not extend beyond September 1, 2038; 4843-8602-8801 4 (b) the Renovation Agreement; and (c) the Continuing Disclosue Undertaking of the City (the "Continuing Disclosure Undertaking") dated as of the date of delivery of the Certificates Section 3. Acknowledgement and Approval of Corporation Documents.. The City Council hereby acknowledges and approves the execution and delivery by the Corporation of; and the performance by the Corporation of its obligations under, the following documents, in substantially the forms made available to the City Council: (a) the Indenture; provided that: (]) the aggregate principal amount of the Certificates shall not exceed $10,000,000; (2) the aggregate principal of and interest on the Certificates maturing in any yeaz during the term thereof'shall not exceed $700,000; (3) the final maturity of Certificates shall be not later than September 1, 2038; and (4) the net effective interest rate shall not exceed 6..375%; (b) the Certificates; provided that the Certificates shall not be inconsistent with the Indenture; and (c) the Certificate Purchase Agreement. Section 4. Certificate Insurance Policy and Reserve Fund Surety Bond Documents. The City Council hereby acknowledges and approves the execution and delivery by the Corporation of; and the performance by the Corporation of its obligations under, the following documents: (a) the Commitment; provided that the Corporation may opt to issue the Bonds without the Certificate Insurance Policy, and may accordingly opt not to enter into the Commitment, if; in the judgment of the City Finance Director, it is not feasible to obtain such a Commitment or the cost of doing so is uneconomic; and (b) the Financial Guaranty Agreement; provided that the Corporation may opt to issue the Bonds without the Reserve Fund Surety Bond, and may accordingly opt not to enter into the Financial Guazanty Agreement, if; in the ,judgment of'the City Finance Director, it is not feasible to obtain such a Reserve Fund Surety Bond or the cost of doing so is uneconomic.. Section 5. Approval of Official Statement and Miscellaneous Documents.. The City Council hereby: ratifies and approves the distribution and use of the Preliminary Official Statement; authorizes and directs the City staff to prepare the Official Statement for use in connection with the sale of the Certificates in substantially the form thereof presented at or prior 4843-8602-8801 4 to the meeting at which this Ordinance is adopted or as otherwise made available to the City Council, with such changes therein, if' any, not inconsistent herewith, as aze approved by the Mayor; or in the Mayor's absence, the Mayor Pro Tem (whose execution thereof'shall constitute conclusive evidence of approval of the City); and authorizes and approves the execution of all documents and certificates necessazy or desirable to effectuate the execution and delivery of the Lease, the issuance of the Certificates and the hansactions contemplated hereby. The Mayor, or in the Mayor's absence, the Mayor Pro Iem, is hereby authorized and d'ir'ected to execute the Official Statement and the Mayor, the Mayor Pro Iem, the City Clerk or, in the absence thereof; the Deputy City Clerk, and all other officers of the City aze hereby authorized and du'ected to execute all of the documents and certificates necessazy or desirable to effectuate the execution and delivery of the Lease, the issuance of the Certificates and the transactions contemplated hereby (execution by the parties thereto shall constitute the City Council's approval of such documents and certificates in the form so executed). Section 6. Delegation of Authority to City Finance Director. The City Council hereby delegates to the City Finance Director the authority to determine the terms of the documents set forth in each of the provisos in Sections 2 through 4 hereof; subject to the parameters set forth in each of'such provisos. Section 7. Consent to Assignment and Sale of Proportionate Interests.. The City Council hereby acknowledges and consents to the assignment by the Corporation of all tights, title and interest of the Corporation in, to and under the Lease to the Trustee, and the delegation by the Corporation of all duties of the Corporation under the Lease to the Trustee. The City Council hereby acknowledges and approves the assignment or sale of proportionate interests in rights to receive certain payments under the Lease.. Section 8. Additional Authorizations. The officers, employees and agents of the City aze authorized and directed to take all action necessazy or appropriate to cazry, out the provisions of this Ordinance and the documents referred to herein and to carry out the t<ansactions described herein or in such documents, including, without limitation, the execution and delivery of'such certificates as may reasonably be required by the Underwriter and the Certificate Insurer, relating, among other' matters, to the tenure and identity of the officials of the City and the City Council, the receipt of the purchase price for the Certificates, the absence of litigation, pending or threatened, the sale and delivery of the Certificates and the investment of the proceeds of the Certificates. Section 9. Year to Year Obligations of the City. No prevision of this Ordinance, the Lease, the Indenture, the Certificates, or any other document described herein shall be construed or interpreted (a) to directly or indirectly obligate the City to make any payment in any Fiscal Yeaz in excess of amounts appropriated for such Fiscal Year; (b) as creating a debt or multiple fiscal yeaz direct or ind'ir'ect debt or other financial obligation whatsoever of the City within the meaning of Article XI, Section 6 or Article X, Section 20 of the Colorado Constitution or any other constitutional or statutory limitation or provision; (c) as a delegation of governmental powers by the City; (d) as a loan or pledge of the credit or faith of the City or as creating any responsibility by the City for any debt or liability of any person, company or corporation within the meaning of Article XI, Section 1 of the Colorado Constitution; or (e) as a donation or grant 4843-8602$801 4 5 by the City to, or in aid of; any person, company or torpor ation within the meaning of Article XI, Section 2 of the Colorado Constitution. Section 10. Ratification of Prior Actions.. All actions heretofore taken {not inconsistent with the provisions of this Ordinance) by the City Council, the City Finance I?uector, or the other officers and employees of the City that are directed towazd the lease purchase financing for the purposes herein set forth are hereby ratified, approved and confirmed. Section I1. Headings the headings to the vazious sections and paragraphs to this Ordinance have been inserted solely for the convenience of the reader, are not a part of this Ordinance, and shall not be used in any manner to interpret this Ordinance. Section 12.. Severability. It is hereby expressly declazed that all provisions hereof' and their application aze intended to be and az'e severable. In order to implement such intent, if' any provision hereof or the application thereof is determined by a court or administrative body to be invalid or unenforceable, in whole or in part, such determination shall not affect, impair or invalidate any other provision hereof or the application of the provision in question to any other situation; and if' any provision hereof' or the application thereof is determined by a court or administrative body to be valid or enforceable only if its application is limited, its application shall be limited as required to most fully implement its purpose.. Section 13. Repealer. All orders, bylaws, ordinances and resolutions of the City, or parts thereof; inconsistent or in conflict with this Ordinance, aze hereby repealed to the extent only of'such inconsistency oz conflict, Section 14. Declaration and Description of Emergency. The City Council hereby declazes that, because there is currently an opportunity to issue and sell the Certificates in a favorable interest rate market, and because of the impending scheduled termination of the option to purchase the Leased Property, an emergency exists. The City Council herby further declazes that, due to such emergency, this Ordinance is necessazy to the immediate preservation of the public property, health, peace and safety of the residents of the City and is being adopted as an emergency ordinance pursuant to Section 4.11 of the Chazter. [remainder of page intentionally left blank} 4843-8602$801 4 6 INTRODUCED at a regularly scheduled meeting of the City Council of the City of As non the 22"d day of January, 2007, AND PASSED ON FIRST READING by a vote of FOR and AGAINST. 4843.8602.8601.4 FINALLY PASSED on second and final eading at a special meeting of the City Council of the City of Aspen on the o~ day of -.~ w 2007, by a vote of ~ FOR and AGAINST; and ordered published v~ithin ten days of uch final passage.