Loading...
HomeMy WebLinkAboutResolution 29, 2021 CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 29 Series of 2021 TITLE: A RESOLUTION CONCERNING THE PROPOSED FINANCING OF CERTAIN ACTIVITIES AND UNDERTAKINGS WITHIN THE I-70/KIPLING CORRIDORS URBAN RENEWAL PLAN AREA, AND THE PROPOSED ISSUANCE OF CERTAIN TAX INCREMENT REVENUE REFUNDING AND IMPROVEMENT BONDS BY THE WHEAT RIDGE URBAN RENEWAL AUTHORITY IN CONNECTION THEREWITH; DECLARING THE CITY COUNCIL’S PRESENT INTENT TO APPROPRIATE FUNDS TO REPLENISH THE RESERVE FUND SECURING SUCH BONDS, IF NECESSARY; AND AUTHORIZING A COOPERATION AGREEMENT AND OTHER RELATED ACTIONS WHEREAS, the City is a home rule municipality and political subdivision of the State of Colorado organized and existing under a home rule charter pursuant to Article XX of the Constitution of the State of Colorado; and WHEREAS, the City Council of the City (the “City Council”) established the Wheat Ridge Urban Renewal Authority d/b/a/ Renewal Wheat Ridge (the “Authority”) on October 18, 1981, as an urban renewal authority pursuant to Colorado Revised Statutes, Part 1 of Title 31, Article 25, as amended (the “Act”); and WHEREAS, the City Council has adopted the I-70/Kipling Corridors Urban Renewal Plan, as amended (the “Urban Renewal Plan” or the “Plan”) for the area described therein (the “Plan Area”); and WHEREAS, pursuant to and in accordance with the Act, the Plan provides for the undertaking of urban renewal projects within the meaning of the Act; and WHEREAS, pursuant to Section 31-25-109 of the Act, the Authority has the power and authority to issue bonds (including refunding bonds), notes and other obligations to finance the activities or operations of the Authority permitted and authorized under the Act; and WHEREAS, the Authority previously entered into a Loan Agreement, dated as of October 18, 2018, with BOKF, NA d/b/a Colorado State Bank and Trust (the “2018 Lender”) pursuant to which the 2018 Lender made a loan to the Authority in the original principal amount of $6,375,000, bearing interest at a per annum interest rate equal to 4.650% (the “2018 Loan”) to finance certain projects in the Plan Area (as described in the Plan) located at the southwest corner of the intersection of Interstate 70 and Colorado Highway 58; and 2 59025506.v2 WHEREAS, the 2018 Loan may be prepaid, in whole or in part, at any time after the third anniversary of the closing date of the 2018 Loan without prepayment penalty, upon not less than 15 days written notice to the 2018 Lender; and WHEREAS, the Authority desires to refund, pay and defease in whole all of the outstanding 2018 Loan (the “2021 Refunding Project”) and to provide additional moneys to undertake additional urban renewal projects within the Plan Area (the “2021 Improvement Project” and together with the 2021 Refunding Project, the “2021 Project”); and WHEREAS, in order to finance the 2021 Project, the Authority desires to issue its Wheat Ridge Urban Renewal Authority d/b/a/ Renewal Wheat Ridge, Tax Increment Revenue Refunding and Improvement Bonds (I-70/Kipling Corridors), Series 2021 (the “Series 2021 Bonds”); and WHEREAS, effectuating the 2021 Refunding Project and financing the 2021 Improvement Project in order to remediate blight is consistent with and in furtherance of the purposes of the Authority and the Plan; and WHEREAS, the Plan contemplates that a primary method of financing projects within the Plan Area will be through the use of property tax increment revenues; and WHEREAS, the Plan authorizes the Authority to pledge such property tax increment revenues to finance public infrastructure that benefits the Plan Area; and WHEREAS, the Authority has determined that it is necessary, desirable and in the best interest of the Authority to authorize, approve and direct the issuance, sale and delivery of the Series 2021 Bonds to finance the 2021 Project; and WHEREAS, the Series 2021 Bonds will be issued under and pursuant to the Indenture of Trust dated as of the date of delivery of the Series 2021 Bonds (the “Indenture”) between the Authority and BOKF, N.A., as trustee (the “Trustee”); and WHEREAS, the Series 2021 Bonds will be special and limited obligations of the Authority payable solely from and secured by the Trust Estate (as defined in the Indenture), which includes the Pledged Property Tax Increment Revenues (as defined in the Indenture); and WHEREAS, the Series 2021 Bonds will be secured by a reserve fund (the “Reserve Fund”) that will be maintained in an amount equal to the Reserve Fund Requirement (as defined in the Indenture); and WHEREAS, the City Council has conducted a public hearing on this Resolution pursuant to Section 12.10 of the City’s home rule charter (the “Charter”); and WHEREAS, the City Council has determined and hereby determines that it is in the best interests of the City and its citizens to assist in the financing of the 2021 Project; and 3 59025506.v2 WHEREAS, in connection with the issuance of the Series 2021 Bonds in order to help facilitate the financing of the 2021 Project, the City Council wishes to make a non-binding statement of its present intent with respect to the appropriation of funds for the replenishment of the Reserve Fund, if necessary, and to authorize and direct the City Manager to take certain actions for the purpose of causing requests for any such appropriation to be presented to the City Council for consideration; and WHEREAS, in connection with the financing of the 2021 Project and the issuance of the Series 2021 Bonds by the Authority, it is necessary and in the best interests of the City to enter into a Cooperation Agreement (the “Cooperation Agreement”) between the City and the Authority; and WHEREAS, there has been filed with the City Clerk of the City (the “City Clerk”) the proposed form of the Cooperation Agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, that: Section 1. Finding of Best Interests and Public Purpose. The City Council hereby finds and determines, pursuant to the Constitution, the laws of the State and the Charter, and in accordance with the foregoing recitals, that adopting this Resolution, entering into the Cooperation Agreement, and facilitating the issuance of the Series 2021 Bonds by the Authority to effectuate the 2021 Refunding Project and the development of the 2021 Improvement Project are necessary, convenient, and in furtherance of the City’s purposes and are in the best interests of the inhabitants of the City. Section 2. Replenishment of Reserve Fund; Declaration of Intent. To the extent that the Authority issues the Series 2021 Bonds in accordance with the terms and provisions of the Indenture and the Series 2021 Bonds are secured by a Reserve Fund, the following provisions shall apply. The Indenture shall provide that in the event of a draw on the Reserve Fund the Authority shall, within 120 days of such draw, replenish the Reserve Fund up to the Reserve Fund Requirement, from available Pledged Revenue, in accordance with the terms and provisions of the Indenture. If at any time the Reserve Fund is not funded at an amount equal to the Reserve Fund Requirement, and to the extent any such deficiency is not replenished from Pledged Revenues as set forth in the Indenture or from another source, the Trustee shall be required under the Indenture to provide written notice to the Executive Director of the Authority and the City Manager setting forth the amount of any deficiency (the “Written Notice”) and requesting that the City replenish the Reserve Fund pursuant to and as provided in this Resolution. Any such Written Notice shall include instructions for making the payment to the Trustee. Within 90 days after the City’s receipt of the Written Notice of a draw or a deficiency in the Reserve Fund, to the extent that such draw or deficiency has not been replenished by another source, the City shall replenish the Reserve Fund to the Reserve Fund Requirement from legally available funds of the City, subject to appropriation by the City Council in its sole discretion. Any such City payment (the “City Payment”) shall be deposited in the Reserve Fund in immediately available funds pursuant to the instructions set forth in the Written Notice. In the event 4 59025506.v2 that the Trustee receives money from the City in excess of the amount necessary to restore the Reserve Fund to the Reserve Fund Requirement, any such excess shall be returned to the City. It is the present intention and expectation of the City Council to appropriate the City Payment requested in any such Written Notice received by the City, within the limits of available funds and revenues, but this declaration of intent shall not be binding upon the City Council or any future City Council in any future fiscal year. The City Payments shall constitute currently appropriated expenditures of the City. This Resolution shall not create a general obligation or other indebtedness or multiple fiscal year direct or indirect debt or other financial obligation of the City within the meaning of its Charter or any constitutional debt limitation, including without limitation Article X, Section 20 of the Colorado Constitution. Neither this Resolution nor the issuance of the Series 2021 Bonds by the Authority shall obligate or compel the City to make City Payments in the event of a draw on or deficiency in the Reserve Fund beyond those appropriated in the City Council’s sole discretion. Section 3. Direction to City Manager. Upon receipt of a Written Notice by the City Manager requesting that the City replenish the Reserve Fund securing the Series 2021 Bonds in accordance with this Resolution, the City Council hereby authorizes and directs the City Manager to prepare and submit to the City Council a request for an appropriation of the amount set forth in the Written Notice. Such request shall be made in sufficient time to enable the City to make the City Payment within 90 days of receipt of the Written Notice as provided in Section 2 hereof. Section 4. Repayment of Amounts Appropriated. In the event that the City Council appropriates funds to make the City Payment as contemplated by Section 2 hereof, any amounts actually transferred by the City to the Reserve Fund in accordance with the provisions of Section 2, shall be treated as an advance under the Cooperation Agreement and shall be repaid by the Authority in accordance with the provisions of the Cooperation Agreement, on a basis expressly subordinate and junior to that of the Series 2021 Bonds and any other obligations or indebtedness that are secured or payable in whole or in part by the Pledged Revenues on a parity with the Series 2021 Bonds. Section 5. Limitation to Series 2021 Bonds. Unless otherwise expressly provided by a subsequent resolution of the City Council, the provisions of this Resolution relating to the replenishment of the Reserve Fund shall apply only to the replenishment of the Reserve Fund that secures the payment of the Series 2021 Bonds and shall not apply to any other reserve funds established in connection with the issuance of any other obligations, including the issuance of Additional Bonds under the Indenture. Section 6. Approval of Cooperation Agreement. The Cooperation Agreement, in substantially the form on file with the City Clerk, is in all respects approved, authorized and confirmed. The Mayor is hereby authorized and directed to execute and deliver the Cooperation Agreement, for and on behalf of the City, in 5 59025506.v2 substantially the form and with substantially the same content as is on file with the City Clerk, provided that such document may be completed, corrected or revised as deemed necessary by the parties thereto in order to carry out the purposes of this Resolution. The execution of the Cooperation Agreement by the Mayor shall be conclusive evidence of the approval by the City Council of such document in accordance with its terms. Section 7. Direction to Act. 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 Resolution and to place the seal of the City on any document authorized and approved by this Resolution. The Mayor, the City Manager, the City Clerk, the City Attorney, and all other appropriate officials or employees of the City are hereby authorized and directed 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 facilitate the financing of the 2021 Project and implement and carry out the transactions and other matters authorized by this Resolution. In the event that any individual or individuals who are authorized to execute the Cooperation Agreement or the additional certificates, documents, instruments and other papers authorized hereby (collectively, the “Authorized Documents”) are not able to be physically present to manually sign such Authorized Documents, such individual or individuals are hereby authorized to execute such Authorized Documents electronically via facsimile or email signature. This authorization to use electronic signatures is made pursuant to Article 71.3 of Title 24, C.R.S., also known as the Uniform Electronic Transactions Act. Any electronic signature so affixed to an Authorized Document shall carry the full legal force and effect of any original, handwritten signature. Section 8. Ratification. All actions (not inconsistent with the provisions of this Resolution) heretofore taken by the City Council or the officers, employees or agents of the City directed toward effectuating the 2021 Refunding Project, the development of the 2021 Improvement Project, the issuance of the Series 2021 Bonds by the Authority, and the execution and delivery of the Cooperation Agreement are hereby ratified, approved and confirmed. Section 9. Severability. If any section, subsection, paragraph, clause or provision of this Resolution or the documents hereby authorized and approved 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 Resolution or such documents, the intent being that the same are severable. Section 10. Repealer. All prior resolutions, or parts thereof, inconsistent herewith are hereby repealed to the extent of such inconsistency. Section 11. Effectiveness. This Resolution shall take effect immediately. DONE AND RESOLVED this 14th day of June 2021. 6 59025506.v2 Bud Starker, Mayor [SEAL] Attest: Steve Kirkpatrick, City Clerk COOPERATION AGREEMENT BETWEEN THE CITY OF WHEAT RIDGE AND WHEAT RIDGE URBAN RENEWAL AUTHORITY THIS COOPERATION AGREEMENT (this “Agreement”) dated as of June 14, 2021, is made and entered into between the CITY OF WHEAT RIDGE, COLORADO (the “City”) and the WHEAT RIDGE URBAN RENEWAL AUTHORITY d/b/a/ RENEWAL WHEAT RIDGE (the “Authority”). WHEREAS, the City is a Colorado home rule municipality with all the powers and authority granted pursuant to Article XX of the Colorado Constitution and its home rule charter (the “Charter”); and WHEREAS, the Authority is a Colorado Urban Renewal Authority, with all the powers and authority granted to it pursuant to Title 31, Article 25, Part 1, Colorado Revised Statutes (“C.R.S.”) (the “Act”); and WHEREAS, pursuant to Article XIV of the Colorado Constitution, and Title 29, Article 1, Part 2, C.R.S., the City and the Authority are authorized to cooperate and contract with one another to provide any function, service or facility lawfully authorized to each governmental entity; and WHEREAS, the City Council of the City (the “City Council”) has previously adopted the I-70/Kipling Corridors Urban Renewal Plan, as amended (the “Urban Renewal Plan” or the “Plan”) for the area described therein (the “Plan Area”); and WHEREAS, pursuant to and in accordance with the Act, the Plan provides for the undertaking of urban renewal projects within the meaning of the Act; and WHEREAS, pursuant to Section 31-25-109 of the Act, the Authority has the power and authority to issue bonds (including refunding bonds), notes and other obligations to finance the activities or operations of the Authority permitted and authorized under the Act; and WHEREAS, the Authority previously entered into a Loan Agreement, dated as of October 18, 2018, with BOKF, NA d/b/a Colorado State Bank and Trust (the “2018 Lender”) pursuant to which the 2018 Lender made a loan to the Authority in the original principal amount of $6,375,000, bearing interest at a per annum interest rate equal to 4.650% (the “2018 Loan”) to finance certain projects in the Plan Area (as described in the Plan) located at the southwest corner of the intersection of Interstate 70 and Colorado Highway 58; and WHEREAS, the 2018 Loan may be prepaid, in whole or in part, at any time after the third anniversary of the closing date of the 2018 Loan without prepayment penalty, upon not less than 15 days written notice to the 2018 Lender; and WHEREAS, the Authority desires to refund, pay and defease in whole all of the outstanding 2018 Loan (the “2021 Refunding Project”) and to provide additional moneys to 2 59029569.v2 undertake additional urban renewal projects within the Plan Area (the “2021 Improvement Project” and together with the 2021 Refunding Project, the “2021 Project”); and WHEREAS, in order to finance the 2021 Project, the Authority desires to issue its Wheat Ridge Urban Renewal Authority d/b/a/ Renewal Wheat Ridge, Tax Increment Revenue Refunding and Improvement Bonds (I-70/Kipling Corridors), Series 2021 (the “Series 2021 Bonds”); and WHEREAS, the 2021 Project is being undertaken to facilitate the elimination and prevention of blighted areas; and WHEREAS, pursuant to section 31-25-112, C.R.S., the City is specifically authorized to do all things necessary to aid and cooperate with the Authority in connection with the planning or undertaking of any urban renewal plans, projects, programs, works, operations, or activities of the Authority, to enter into agreements with the Authority respecting such actions to be taken by the City, and appropriating funds and making such expenditures of its funds to aid and cooperate with the Authority in undertaking the 2021 Improvement Project and carrying out the Plan; and WHEREAS, the Authority has determined that effectuating the 2021 Refunding Project and financing the 2021 Improvement Project in order to remediate blight is consistent with and in furtherance of the purposes of the Authority and the Plan; and WHEREAS, the Plan contemplates that a primary method of financing projects within the Plan Area will be through the use of property tax increment revenues; and WHEREAS, the Plan authorizes the Authority to pledge such property tax increment revenues to finance or refinance public infrastructure that benefits the Plan Area; and WHEREAS, the Authority has determined that it is necessary, desirable and in the best interest of the Authority to authorize, approve and direct the issuance, sale and delivery of the Series 2021 Bonds to finance the 2021 Project; and WHEREAS, the Series 2021 Bonds will be issued under and pursuant to the Indenture of Trust dated as of the date of delivery of the Series 2021 Bonds (the “Indenture”) between the Authority and BOKF, N.A., as trustee (the “Trustee”); and WHEREAS, capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Indenture; and WHEREAS, the Series 2021 Bonds will be special and limited obligations of the Authority payable solely from and secured by the Trust Estate, which includes the Pledged Property Tax Increment Revenues; and WHEREAS, the Series 2021 Bonds will be secured by the Reserve Fund that will be maintained in an amount equal to the Reserve Fund Requirement; and WHEREAS, in order to help facilitate the financing of the 2021 Project, the City Council has adopted Resolution No. 29, Series of 2021 (the “Replenishment Resolution”) declaring its 3 59029569.v2 non-binding present intent and expectation that the City Council will appropriate funds sufficient to replenish the Reserve Fund to the Reserve Fund Requirement in the event of a deficiency thereunder, within the limits of available funds and revenues, to the extent that Pledged Revenues or other available moneys are not available to fully replenish the Reserve Fund, in the sole discretion of the City Council; and WHEREAS, the City Council has conducted a public hearing on this Agreement pursuant to Section 12.10 of the Charter; and WHEREAS, in connection with the financing of the 2021 Project and the issuance of the Series 2021 Bonds by the Authority, it is necessary and in the best interests of the City and the Authority to enter into this Agreement. NOW, THEREFORE, in consideration of the mutual promises set forth below, the City and the Authority agree as follows: 1. LOAN. If the City Council appropriates funds pursuant to the Replenishment Resolution to replenish the Reserve Fund as set forth therein and in the Indenture, such funds shall be a loan from the City to the Authority to be repaid as provided herein. 2. PAYMENT. All amounts payable by the Authority to the City hereunder shall be repaid from and to the extent of available Pledged Revenues (as defined in the Indenture), or from other available revenues of the Authority, provided that any such repayment from Pledged Revenues shall be made on a basis expressly subordinate and junior to the payments due on the Series 2021 Bonds and any other obligations or indebtedness that are secured or payable in whole or in part by the Pledged Revenues on a parity with the Series 2021 Bonds. 3. FURTHER COOPERATION. (a) The City shall continue to make available such employees of the City as may be necessary and appropriate to assist the Authority in carrying out any authorized duty or activity of the Authority pursuant to the Act, the Plan, or any other lawfully authorized duty or activity of the Authority. (b) The City agrees to pay to the Authority any Pledged Property Tax Increment Revenues when, as, and if received by the City, but which are due and owing to the Authority pursuant to the Plan and the Act. 4. GENERAL PROVISIONS. (a) Separate Entities. Nothing in this Agreement shall be interpreted in any manner as constituting the City or its officials, representatives, consultants, or employees as the agents of the Authority, nor as constituting the Authority or its officials, representatives, consultants, or employees as agents of the City. Each entity shall remain a separate legal entity pursuant to applicable law. Neither party shall be deemed hereby to have assumed the debts, obligations, or liabilities of the other. 4 59029569.v2 (b) Third Parties. Neither the City nor the Authority shall be obligated or liable under the terms of this Agreement to any person or entity not a party hereto, provided, however, that the Trustee is a third party beneficiary to the provisions in Section 3(b) hereof related to the City’s obligation to remit to the Authority any Pledged Property Tax Increment Revenues received by the City that are due and owing to the Authority. (c) Modifications. No modification or change of any provision in this Agreement shall be made, or construed to have been made, unless such modification is mutually agreed to in writing by both parties and incorporated as a written amendment to this Agreement. Memoranda of understanding and correspondence shall not be construed as amendments to the Agreement. (d) Entire Agreement. This Agreement shall represent the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior negotiations, representations, or agreements, either written or oral, between the parties relating to the subject matter of this Agreement and shall be independent of and have no effect upon any other contracts. (e) Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. (f) Assignment. Except for the pledge under the Indenture, this Agreement shall not be assigned, in whole or in part, by either party without the written consent of the other. (g) Waiver. No waiver of a breach of any provision of this Agreement by either party shall constitute a waiver of any other breach or of such provision. Failure of either party to enforce at any time, or from time to time, any provision of this Agreement shall not be construed as a waiver thereof. The remedies reserved in this Agreement shall be cumulative and additional to any other remedies in law or in equity. (h) Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. (i) Electronic Signatures. In the event that any individual who is authorized to execute this Agreement on behalf of the Authority or the City is not able to be physically present to manually sign this Agreement, such individual is hereby authorized to execute this Agreement electronically via facsimile or email signature. The authorization to use electronic signatures is made pursuant to Article 71.3 of Title 24, C.R.S., also known as the Uniform Electronic Transactions Act. Any electronic signature so affixed to this Agreement shall carry the full legal force and effect of any original, handwritten signature. The transactions described herein may be conducted and related documents may be stored by electronic means. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be authentic and valid