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HomeMy WebLinkAboutOrdinance-1985-0633IN7RODIICED BY COUNCILMEMBER ,TILDE ORDINANCE 110. h33 All ORDINANCE AUTHORIZING THE ISSUAI INDUSTRIAL DEVELOPMENT REVENUE BOND CORPORATION PROJECT), SERIES 1985, AMOUNT OF $11200,000; AND APPROVING ORIZING THE EXECUTION OF CERTAIN THERETO. ICE AND SALE OF AN (WADSWORTH BUILDING IN THE PRINCIPAL THE FORM AND AUTH- DOCUMENTS RELATING WHEREAS, the City of Wheat Ridge, in the County of Jefferson and State of Colorado (the City), is a political subdivision of the State of Colorado (the State) and a home rule city, duly organized and existing pursuant to the Constitution and laws of the State and the City's home rule charter (the Charter); and WHEREAS, Section 12.1 of the Charter authorizes the City to issue revenue bonds and other- like securities; and WHEREAS, Section 1.3 of the Charter provides that the City has all powers that may be granted to municipalities by the statutes of the State and that such powers may be exercised in the manner prescribed in the Charter or, if not provided for therein, in such manner as shall be provided by ordinance of the City Council of the City (the City Council); and WHEREAS, the City is authorized by the County and Municipality Development revenue Bond Act, constituting Title 29, Article 3, Colorado Revised Statutes (the Act), to finance, acquire, own, lease, improve, and dispose of properties to the end that the City may be able to promote industry and develop trade or other economic activity by inducing profit or nonprofit corporations, federal governmental offices, hospitals, and agri- cultural, manufacturing, industrial, commercial, or business enterprises to locate, expand, or remain in the State of Colorado, to mitigate the serious threat of extensive unemploy- ment in parts of the State, to secure and maintain a balanced and stable economy in all parts of the State, and to further the use of its agricultural products or natural resources; and WHEREAS, the City is further authorized to issue revenue bonds for the purpose of defraying the costs of financing, refinancing, acquiring, improving, and equipping any such pro- ject; and WHEREAS, the City has heretofore adopted its Resolution No. 724, Series of 1980 wherein is set forth the City's policy and criteria for the consideration of requests for industrial revenue bond financing and for the issuance of such bonds by the City; and WHEREAS, by Resolution No. 943 duly adopted on April 22, 1985 (the Inducement Resolution), the City agreed to issue its industrial development revenue obligations in a maximum aggregate -2- principal amount not exceeding $2,700,000 in accordance with the provisions of the Act for the purpose of financing the acquisi- tion of certain real property and the building and equipping of one or nore buildings thereon to be used as a bank facility (the Project) located or to be located in the City for International Bancorp, a Colorado corporation and regulated bank holding com- pany, or its assigns; and WHEREAS, International Bancorp has created a wholly owned subsidiary incorporated as Wadsworth Building Corporation, a Colorado corporation (the Borrower), for the purpose of accom- plishing the acquisition and construction of the Project and has assigned all of International Bancorp's rights and obligations in the financing of the Project to the Borrower; and WHEREAS, pursuant to the Tax Equity Fiscal Responsibility Act of 1982, the City Council held a public hearing on the issuance of the bond following reasonable public notice on Monday, September 9, 1985; and WHEREAS, the Borrower has requested that the City proceed to issue its S1,200,000 Industrial Development Revenue Bond (Wads- worth Building Corporation Project), Series 1985, (the Bond) for the purpose of financing the Project located or to be located in the City; and WHEREAS, the following documents have been submitted to the City Council and filed in the office of the City Clerk (the Clerk) and are there available for public inspection: (a) a Loan Agreement, to delivery of the Bond (the Loan and entered into among the City, Bank of Lakewood (the Bank); and be dated as of the date of Agreement), proposed to be made the Borrower and First Rational (b) a Deed of Trust to be dated as of the date of delivery of the Bond (the Deed of Trust), proposed to be made and entered into between the Borrower- (as grantor), the Public Trustee of the County of Jefferson, State of Colorado (the Public Trustee) and the Bank (as beneficiary); and (c) a Bond Purchase Agreement (the Bond Purchase Agreement) dated August 12, 1985 made and entered into among the City, the Borrower and the Bank; and (d) a Placement Agent Agreement (the Placement Agent Agreement) dated August 12, 1985 between the City and International Bank (the Placement Agent); and WHEREAS, the City Council desires to issue at this time the City of Wheat Ridge, State of Colorado Industrial Development Revenue Bond (Wadsworth Building Corporation Project) Series -3- 1985, to be dated as of the date of issuance and delivery thereof, in the maximum aggregate principal amount of 51,200,00 (the Series 1985 Bond or the Bond); and WHEREAS, it is necessary to issue the Series 1985 Bond by ordinance (the ordinance or the Bond Ordinance) and to approve the form and authorize the execution of the aforementioned docu- ments thereby; NOW THEREFORE, BE IT ORDAINED BY THE CITY C0014CIL OF THE CITY OF WHEAT RIDGE: Section. 1. Aporovals and Authorizations. The forms of Loan Agreement, Bond Purchase Agreement and Placement Agent Agreement are hereby approved. The Mayor and the Clerk are hereby authorized and directed to execute the Loan Agreement, Bond Purchase Agreement and Placement Agent Agreement and affix the seal of the City thereto and further to execute and authenticate such other documents, instruments or certificates as are deemed necessary or desirable by bond counsel in order to issue and secure the Series 1985 Bond. Such documents are to be executed in substantially the fora hereinabove approved, provided that such documents may be completed, corrected or revised as deemed necessary by the parties and approved by the City Attorney's office in order- to carry out the purposes of this Bond Ordinance. Copies of all of the documents shall be delivered, filed and recorded as provided therein. The proper officers of the City are hereby authorized and directed to prepare and furnish to bond counsel certified copies of all proceedings and records of the City relating to the Series 1985 Bond and such other affidavits and certificates as may be required to show the facts relating to the authorization and issuance thereof as such facts appear from the books and records in such officers' custody and control or as otherwise known to them. All such certified copies, certificates and affidavits, including any heretofore furnished, shall constitute representa- tions of the City as to the truth of all statements contained therein. 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, includ- ing interest rates and any numbers derived therefrom or deletions therefrom and additions thereto as may be approved by bond counsel and the City Attorney 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. -4- Section 2. Bond Details. The City shall issue its City of Wheat Ridge, State of Colorado Industrial Development Revenue Bond (Wadsworth Building Corporation Project) Series 1985, to be dated as of the date of issuance and delivery thereof, consisting of one bond, numbered R-1, in the denomination of 51,200,000 for the purpose, in the form and upon the terms set forth in this Bond ordinance and the Loan Agreement. The Series 1985 Bond shall be payable in the manner and to the persons set forth in the Loan Agreement and shall bear inter- est at the rate of nine percent (995) per annum. The Bond shall be amortized and paid in quarterly install- ments of interest only during the first year following the first allowable advance of principal of the Bond commencing on December 1, 1985; commencing October 1, 1986, principal and interest on the Bond shall be amortized and paid monthly on the first day of each month on a 30-year basis for the period from September 1, 1986 through September 11 2016. The interest is always paid one month in arrears, thus the first payment of principal and inter- est is October 1, 1986. The interest payable on the Bond during the first year following the first advance of principal of the Bond shall not exceed One Hundred Nine Thousand Five Hundred Dollars ($109,500). The principal of and interest on the Bond for the period from September_ 1, 1986 through September 1, 2016, shall not exceed the amounts set forth on Exhibit A attached hereto and made a part hereof by this reference. In the event of a Determination of Taxability, as defined below, the Bond shall bear interest at the rate of 14% per annum from the effective date of such Determination of Taxability. The Bond is subject to mandatory redemption on any date in full at a redemption price equal to one hundred percent (1000) of the aggregate amount of principal outstanding plus accrued interest to the date of redemption from and after_ the date the Project shall have been damaged or destroyed or there occurs condemnation of all or sub- stantially all of the Project or the taking by eminent domain of such use or control of the Project as in each case renders the Project unsatisfactory to the Borrower for its intended use and the Borrower has not elected, as expressed in a certificate delivered to the Bank within one hundred twenty (120) days after the occurrence of such event of damage, destruction or condemna- tion, to rebuild or restore the Project. The Bond is also subject to mandatory prepayment prior to maturity at the option of the Bank at par, plus accrued interest on September. 1, 1990 and on any interest payment date thereafter as provided in the Loan. Agreement. Determination of Taxability shall mean the issuance of a statutory notice of deficiency by the Internal Revenue Service, or a ruling of the National office or any District Office of the Internal Revenue Service, or a final decision of a court of -5- competent jurisdiction which holds in effect that the interest payable on the Bond is includable in the gross income of the owner(s) of the Bond for federal income tax purposes. Section 3. Fora and Execution of Series 19,95 Bond. The Series 1985 Bond shall be signed by the manual signature of the Mayor , sealed with a manual impression of the seal of the City, and attester] and countersigned by the manual signature of the Clerk, should any officer whose manual signature appears on the Bond cease to be such officer before delivery of the Bond to the purchaser, such manual signature shall nevertheless be valid and sufficient for all purposes. The Series 1985 Bond shall be in substantially the following form (any blanks in the forms will he completed on the date of delivery of the Bond): -6- UNITED STATES OF AMERICA STATE OF COLORADO COUNTY OF JEFFERSON CITY OF WHEAT RIDGE INDUSTRIAL DEVELOPrIENT REVENUE BOND (WADSWORTH BUILDING, CORPORATION PROJECT) SERIES 1985 No. R-1 $1,2001000 The City of Wheat Ridge, State of Colorado, a home rule city and body corporate and politic (the City), for value received, hereby promises to pay to the order of First National Bank of Lakewood (the Bank), or its assigns, from the source and in the manner hereinafter provided, the maximum aggregate principal sum of ONE MILLION TWO HUNDRED THOUSAND DOLLARS ($1,200,000), or so much thereof as is borrowed and remains unpaid from time to time (the Principal Balance), with interest on the Principal Balance from the date of issuance and delivery hereof to the Bank at the rate of nine percent (90) per annum. Interest only on the Bond shall be paid quarterly during the first year following the first allowable advance of principal of the Bond pursuant to the Loan Agreement commencing December 1, 1985 and the Principal Balance of the Bond and the interest thereon shall be amortized and paid on a 30-year basis for the period from September 1, 1986 through September 1, 2016 payable monthly on the first day of each month commencing on October 1, 1986 pursuant to the payment schedule attached hereto as Exhibit I which is incorporated herein by this reference. In the event of a Determination of Taxability, as defined in the Loan Agreement described hereinafter, the Bond shall bear interest at the r-ite of 14% per annum from the effective date of such Determination of Taxability and the pay- ment schedule attached hereto shall be modified to reflect the change in interest rate. The principal of and interest on this Bond are payable in lawful money of the United States at the principal office of the Bank in Denver, Colorado. Payments shall be applied first to interest due on the Principal Balance and thereafter to reduction of the Principal Balance. This Bond is the single bond of a series (the Series 1985 Bond), issued under the County and Municipality Development Revenue Bond Act, constituting Title 29, Article 3, Colorado Revised Statutes (the Act) and the home rule charter of the City, -7- and in conformity with the provisions, restrictions and limita- tions thereof. Both principal and interest are payable solely from revenues payable to the City under the provisions of a Loan Agreement, dated and executed as of the date of delivery of the Series 1985 Bond (the Loan Agreement) among the City, the Bank and Wadsworth Building Corporation (the Borrower). This Bond does not constitute a charge against the general credit or taxing powers of the City and does not grant to the Bank or any subse- quent owner of this Bond any right to have the City levy any taxes or appropriate any funds for the payment of the principal hereof or interest hereon, nor is this Bond a general obligation of the City or the individual officers or agents thereof. The Series 1985 Bond is issued for the purpose of funding a loan from the City to the Borrower to enable the Borrower to acquire certain real property and to construct and equip a build- ing thereon for use as a bank facility (the Project), pursuant to the Loan Agreement and a Bond ordinance of the City finally passed and adopted prior to the delivery of the Series 1985 Bond. The Series 1985 Bond is secured by the Loan Agreement, that certain promissory note dated as of the date of delivery of the Bond (the Note), payable by the Borrower to the order of the City and endorsed to the Bank, the Bond Ordinance and a Deed of Trust (the Deed of Trust) dated as of the date of delivery of the Bond, from the Borrower (as grantor) to the Public Trustee of the County of Jefferson, State of Colorado (the Public Trustee) for the benefit of the Bank (as beneficiary), to which Loan Agree- ment, Mote, Bond Ordinance and Deed of Trust and amendments thereof, reference is hereby made for a description and limita- tion of the revenues and property pledged and mortgaged to secure the payment of the Series 1985 Bond, the nature and extent of the security thereby created, the rights of the Borrower, the rights, duties and immunities of the Bank, and the rights, immunities and obligations of the City thereunder. Certified copies of the Bond ordinance and executed counterparts of the Loan Agreement and Deed of Trust are on file at the office of the Bank and at the office of the City Clerk. The series 1985 Bond is subject to mandatory redemption on any date in full if all or substantially all of the Project shall have been damaged or destroyed or there occurs condemnation of all or substantially all of the Project or the taking by eminent domain of such use or control of the Project as in each case renders the Project unsatisfactory to the Borrower- for its intended use and the Borrower has not elected, as expressed in a certificate delivered to the Bank within 120 days after the occurrence of such event of damage, destruction or condemnation, to rebuild or restore the Project. Upon the occurrence of any of the events specified in this paragraph, the Series 1995 Bond shall be redeemed at a redemption price equal to 100% of the outstanding Principal Balance of the Series 1985 Bond so redeemed plus accrued interest to the date of redemption without premium. The Bond is also subject to mandatory prepayment prior to -8- maturity at the option of the Bark at par, plus accrued interest on September 1, 1990 and on any interest payment date thereafter as provided in the Loan. Agreement. Installments of principal are subject to optional redemption prior to maturity at the option of the City (on the request of the Borrower), on any interest payment date, in inverse numerical order of payment, at a redemption price equal to 100% of such principal amount and accrued interest to the date of redemption, without premium. In case an Event of Default as defined in the Loan Agreement occurs, the outstanding Principal Balance of the Series 1985 Bond may he declared or may become due and payable prior to the stated maturity hereof in the manner and with the effect and subject to the conditions provided in the Loan Agreement. It is hereby certified and recited and the City Council of the City has found: That the Project is an eligible "project" defined in Section 29-3-103(10) of the Act; that the issuance of the Series 1985 Bond and the acquisition and construction of the Project will promote the pubic welfare and carry out the purposes of the Act; that all acts, conditions and things required to be done precedent to and in the issuance of this Bond have been properly done, have happened and have been performed in regular and due time, form and manner as required by law; and that this Bond does not constitute a debt of the City within the meaning of any constitutional, statutory or charter limitation. IN WITNESS WHEREOF, the City of Wheat Ridge, in the State of Colorado, has caused this Bond to be signed in its behalf by the manual signature of the Mayor and attested and countersigned by the manual signature of the City Clerk, and sealed with a manual impression of the corporate seal of the City, all as of the day of September 1985. (S E A L) ATTESTED AND COUIITERSIGPIED: CITY OF WHEAT RIDGE STATE OF COLORADO ([Manual Signature) By: (Do Not .Sign) City Clerk (Manual Signature) By: (Do Not Sign) Mayor -9- section 4. Determinations. and declared that: It is hereby found, determined (a) The Project, as more fully described in the Loan Agree- merit referred to in Section 1 hereof, constitutes a "project" authorized by and described in Section 29-3-103(10) of the Act; (b) Based upon the information supplied by the Borrower in Exhibit "B" attached hereto and made a part hereof by this reference, the public purpose of the Project is and, in the judg- ment of the City Council, the effect thereof will be to promote the public welfare by: creating or additional employment oppor- tunities and mitigating a serious threat of extensive unemployment in parts of the State; and promoting industry and developing trade or economic activity by inducing a commercial business enterprise to locate, expand, or remain in this State; and to secure and maintain a balanced and stable economy in all parts of this State; and to further the use of the State's agricultural products or natural resources; and expanding the tax base by increasing sales, property, or other tax revenues to the city. Furthermore, the City will benefit from the financing of the Project in the following ways: the creation of meaningful employment benefits; the creation of meaningful new tax revenues; the creation of other facilities or services which benefit the community; or meet a stated policy goal of the City Council that will result in a meaningful benefit to the City. (c) PIo reserve fund will be established in connection with the retirement of the Bond or the maintenance of the Project; (d) The Borrower has agreed to pay the costs of maintaining the Project in good repair and keeping it properly insured; ) The Borrower has agreed to pay all property taxes on the Project; ( f ) The Project has been approved by the Inducement Resolution of the City Council as tending to further the purposes and policies of the Act; (g) The issuance and sale of the Bond, the execution and delivery of the Loan Agreement, Bond Purchase Agreement and Placement Agent Agreement and the performance of all covenants and agreements of the City contained in the Loan Agreement, Bond Purchase Agreement and Placement Agent Agreement and things required under the laws of the State of Colorado to make the Loan Agreement, Bond Purchase Agreement and Placement Agent Agreement and Bond valid and binding obligations of the City in accordance with their terms, are authorized by the Act; -10- (h) There is no litigation pending or, to the best of its knowledge, threatened against the City relating to the Project or to the Bond, Loan Agreement, Bond Purchase Agreement or Placement Agent Agreement or questioning the organization, powers or auth- ority of the City; (i) The execution and delivery of the Bond and the Loan. Agreement, Bond Purchase Agreement and Placement Agent Agreement and the performance of the City's obligations thereunder have been fully authorized by all requisite action and do not and will not violate any law, any charter provision, any order of any court or other agency of government, or any indenture, agreement or other instrument to which the City is a party or by which it or any of its property is bound, or be in conflict with, result in breach of, or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument; (j) Under the provisions of the Act, and as provided in the Loan Agreement, the Bond is not to be payable from nor charged upon any funds other than amounts payable by the Borrower pur- suant to the Loan Agreement, and the property pledged by the Borrower under the Deed of Trust; the City is not subject to any liability thereon; neither the Bank nor any subsequent owner of the Series 1985 Bond shall ever have the right to compel the exercise of the taxing power of the City to pay the Series 1985 Bond or the interest thereon, nor to enforce payment thereof against any property of the City; the Series 1985 Bond shall not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the City; and the Series 1985 Bond issued under the Loan Agreement shall recite that the Series 1985 Bond, including interest thereon, shall not constitute nor give rise to a charge against the general credit or taxing powers of the City and that the Series 1985 Bond does not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation; (k) Neither the Mayor nor any member of the City Council having acted upon this ordinance in his official capacity (i) has a direct or indirect interest in the Project, Loan Agreement, Deed of Trust or Series 1985 Bond, (ii) owns any interest in the Project or the Borrower, (iii) is a partner or employee of the Borrower, (iv) will be involved in supervising the completion of the Project on behalf of the Borrower, or (v) will receive any commission, bonus or other remuneration for or in respect to the Project, the Loan Agreement, the Series 1985 Bond, or the Deed of Trust; and (1) The City, pursuant to the Loan agreement, hereby preserves the option to issue, at its discretion, upon request of the Borrower, and only with the terms set forth therein, such Additional Bonds as are necessary to complete the Project, - -11- ' provide funds for improvements to the Project and to refund or advance refund the Principal Balance of the Bond then outstand- irg. Section 5, filature of obligation. Under the provisions of the Act, and as provided in the Loan Agreement, the Series 1985 Bond shall be a special, limited obligation of the City payable solely from, and secured by a pledge of, the revenues derived from the Loan Agreement and shall be further secured by the Note and the lien of the Deed of Trust upon the Project. The City will not pledge any of its property or secure the payment of the Series 1985 Bond with its property. The Series 1995 Bond shall never constitute the debt or indebtedness of the City within the meaning of any provision or limitation of the State Constitution or statutes and shall not constitute nor give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers. In entering into the Loan Agreement, the City will not obligate itself, except with respect to the Project and the application of the revenues therefrom and Bond proceeds therefor. The City will not pay out of its general fund or otherwise contribute any part of the Costs of the Project (as said term is defined in the Loan Agreement). Section 6. Election Under Internal Revenue Code. The City shall do all acts necessary to complete the election for the application of the Ten [Million Dollar small issue exemption pur- suant to Section 103(b)(6)(D) of the Internal Revenue Code of 1954, as amended, and all regulations thereunder. Section 7. Bond ordinance Irrepeal3ble. After the Series 1985 Bond is issued, this Bond Ordinance shall constitute an irrevocable contract between the City and the Bank or subsequent owners of the Series 1935 Bond and shall be and remain irrepeal- able until the Series 1985 Bond, both principal and interest, shall be fully paid, cancelled and discharged. Section 8. Ratification. All action heretofore taken by the City and by the officers thereof not inconsistent herewith directed toward the financing of the Project and the issuance and sale of the Series 1985 Bond is hereby ratifier], approved and confirmed. Sectior: 9. Charter and Statutorv Limitations Poet. The City Council hereby determines that the provisions and limitations of the City's Charter and any other applicable law imposed on the issuance of the Bond have been met. Sectior. 10. Repealer. All acts, orders, resolutions, ordinances, or parts thereof, taken or adopted by the City and in conflict with this Bond Ordinance are hereby repealed, except that this repealer shall not be construed so as to revive any act, order, resolution, ordinance, or part thereof, heretofore repealed. -12- Section 11. Severability. If any paragraph, clause or provision of this Bond Ordinance is judicially adjudged invalid or unenforceable, such judgment shall not effect, impair or invalidate the remaining paragraphs, clauses or provisions. Section 12. Effective Date. This Ordinance shall take effect one day after final publication. * * * * * * * * * * -13- INTRODUCED, READ AND ADOPTED on first reading by a vote of ,7 to 1 on the 12th day of August 1985, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge and Public Hearing and consideration on final passage set for September 23, 1985 at 7:30 o'clock p.m., in Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED IN FULL on second and final reading by a vote of to I this 23rd day of September 1985. SIGNED by the Mayor on this 24th day of September 1985. i FRAUK STITES, R-NYOR ATTEST: Wanda Sang, City Perk 1st Publication: August 22 1985 2nd Publication: q~,ntrmhpr 26 , 1985 Wheat Ridge Sentine Effective Date: Sentprnb2r 27_ 1985. APPROVED AS TO FORM BY OFFICE OF CITY ATTOR14EY: s JOHt HAYES, CITY ATT RIIEY a