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O-2002-51
AN ORDINANCE
AUTHORIZING THE ISSUANCE, SALE AND DELIVERY OF THE CITY OF LAKEWOOD, COLORADO $3,000,000 DEVELOPMENT REVENUE BONDS (CARMEL OAKS PROJECT), SERIES 2003, THE EXECUTION AND DELIVERY BY THE CITY OF A SUPPLEMENT TO TRUST INDENTURE, AN AMENDMENT TO LOAN AGREEMENT WITH CARMEL OAKS OF LAKEWOOD, AND THE BONDS, APPROVING A NOTE, AN AMENDMENT TO MORTGAGE AND CLOSING DOCUMENTS RELATED TO THE BONDS, AND AUTHORIZING OFFICIALS OF THE CITY TO DO ALL OTHER THINGS NECESSARY OR ADVISABLE WITH RESPECT TO THE ISSUANCE OF THE BONDS
WHEREAS, the City of Lakewood, Colorado (hereinafter referred to as the "City"), is a municipal corporation organized and existing under the laws and constitution of the State of Colorado and its home rule charter, and is authorized and empowered by Article XI of its charter and the County and Municipality Development Revenue Bond Act, C.R.S. Section 29-3-101 et. seq. (hereinafter referred to as the "Act"), to issue revenue bonds and loan the proceeds from the sale of said bonds to one or more parties for the purpose of acquiring, constructing and improving, and equipping land, buildings and other improvements located within or near the corporate boundaries of the City which shall be suitable for the use as residential facilities for low- and middle- income families or persons intended for use as the sole place of residence by the owners or intended occupants and as a commercial or business enterprise consisting of a housing unit or complex for the elderly; and
WHEREAS, the City has determined there is a public need in the City for a housing complex for the elderly, including units for low- and middle- income individuals; as proposed by the Company (as hereinafter defined); and
WHEREAS, the City has made the necessary arrangements with Carmel Oaks of Lakewood (the "Company") for the location of facilities which constitutes a "project", as defined in the Act (the "Project"), within the corporate boundaries of the City; and caused to be issued its $6,000,000 Development Revenue Bonds (Carmel Oaks Project) Series 2002 (the "Series 2002 Bonds") under and in accordance with the provisions of a Trust Indenture between the City and Great Western Bank (the "Trustee"), dated as of August 1, 2002 (the "Indenture") and loaned the proceeds of the Series 2002 Bonds to the Company pursuant to the provisions of a Loan Agreement dated as of August 1, 2002 between the City and the Company (the "Loan Agreement"); and
WHEREAS, Notice of Intention to issue Development Revenue Bonds in the amount of $9,000,000 has been published one time in the Lakewood Sentinel on July 4, 2002, as required by law, and the City has conducted a public hearing at the time and place as specified in said notice of hearing on the proposal to issue the Bonds, all in the manner required by the Act and the Internal Revenue Code of 1986, as amended, and any and all objections or other comments relating to such Bonds have been heard.
WHEREAS, the Company has requested that the City issue Additional Bonds under and in accordance with the Indenture in order to pay for the cost of completing the Project; and
WHEREAS, the Company has represented to the City that the provisions of the Indenture pertaining to the issuance of Additional Bonds have been or will be complied with; and
WHEREAS, the City, at this time, deems it necessary and advisable to proceed with the issuance, sale and delivery of Development Revenue Bonds (Carmel Oaks Project), Series 2003 (the "Series 2003 Bonds") in the amount of $3,000,000 as authorized and permitted by the Act to finance the cost of the Project in accordance with a Supplement to Trust Indenture dated as of February 1, 2003 (the "Supplemental Indenture"); and
WHEREAS, the City will loan the proceeds of the Series 2003 Bonds to the Company pursuant to the provisions of a Loan Agreement dated as of August 1, 2002 as amended by an Amendment to Loan Agreement dated as of February 1, 2003, between the City and the Company (the "Amended Loan Agreement"), the obligations of which will be sufficient to pay the principal of and interest and prepayment premium, if any, on the Series 2003 Bonds as and when the same shall be due; and
WHEREAS, the City will sell the Series 2003 Bonds to Great Western Bank (the "Purchaser") at a price of par and accrued interest and the City will execute and deliver the Supplemental Indenture to Great Western Bank, (the "Trustee"), as Trustee for the bondholders; and
WHEREAS, as additional security for payment of the Series 2003 Bonds, the Company has agreed to execute an Amendment to the Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Financing Statement dated as of August 1, 2002 which Amendment is dated as of February 1, 2003 (the "Amendment to Mortgage" and collectively with said mortgage the "Mortgage"), between the Company, as the mortgagor and debtor, and the City and the Trustee (as the assignee of the City), as the mortgagee and secured party, thereunder, pursuant to which the Company grants and conveys to the City and Trustee a first mortgage lien in the real estate described in the Mortgage, subject to Permitted Encumbrances (as defined in the Loan Agreement), and a security interest in the personal property described in the Mortgage; and
WHEREAS, the rights and interests of the City in and to the Amended Loan Agreement and the Mortgage will be assigned by the City to the Trustee pursuant to the Indenture.
NOW, THEREFORE, BE IT ORDAINED by the City Council of Lakewood, Colorado, that:
Section 1. A public hearing has been held on the Series 2002 Bonds and the proposal to issue the Series 2003 Bonds.
Section 2. The Series 2003 Bonds in an aggregate principal amount of $3,000,000 be and the same are hereby authorized and ordered to be issued by the City. In order to secure the Series 2003 Bonds under the Act, to finance the Project and pay necessary expenses incidental thereto and to prescribe the terms and conditions upon which the Series 2003 Bonds are to be issued, secured, executed, authenticated, accepted and held, the Mayor is hereby authorized and directed to execute the Supplemental Indenture, including necessary counterparts, and the City Clerk is hereby authorized and directed to attest the same and to affix the seal of the City thereto, substantially in the form presented to the Council, and the Series 2003 Bonds, the form and content of which are set forth in the Supplemental Indenture, to be in substantially in the form and containing the provisions set forth in the form of the Supplemental Indenture, but with such insertions, changes, modifications, additions or deletions to the Supplemental Indenture and the Series 2003 Bonds as shall to the Mayor, the City Clerk or City Attorney seem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of the approval of and authorization by the City and the approval by the Mayor and City Clerk of any and all insertions, changes, modifications, additions or deletions therein from the form and content of the Supplemental Indenture and Series 2003 bond presented to the Council.
Section 3. The City loan to the Company the proceeds of the Series 2003 Bonds pursuant to the Amended Loan Agreement. The City hereby confirms the determinations as set forth in the Amended Loan Agreement relating to reserves, insurance and the Project. There is hereby authorized the execution of such Amendment to Loan Agreement, and the Mayor is hereby authorized and directed to execute the Amendment to Loan Agreement, including necessary counterparts, and the City Clerk is hereby authorized and directed to attest the same and affix the seal of the City thereto, in substantially the form and containing the provisions set forth in the Amendment to Loan Agreement presented to the Council, but with such changes, modifications, additions or deletions therein as shall to the Mayor, the City Clerk or City Attorney to the City seem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of the approval by the Mayor and City Clerk of any and all changes, modifications, additions or deletions therein from the form and content of the Amendment to Loan Agreement presented to the Council.
Section 4. The form and content of the Mortgage, constituting a conveyance and grant by the Company to the City and the Trustee (as the assignee of the City) of a mortgage lien and security interest in and to the property subject to Permitted Encumbrances as defined in the Amended Loan Agreement, and the assignment to the Trustee of the City's rights and interests in and to the Mortgage, pursuant to the Indenture, be and the same hereby are in all respects authorized, approved and confirmed, and the Mayor is hereby authorized and directed to execute, acknowledge and deliver the Amendment to Mortgage for and on behalf of the City, as a mortgagee and secured party thereunder, including necessary counterparts, and the City Clerk is hereby authorized and directed to attest the same and affix the seal of the City thereto, the Amendment to Mortgage to be in substantially the form, text and containing the provisions set forth in the form of Amendment to Mortgage presented to the Council, but with such changes, additions, modifications and deletions therein as shall to the Mayor, the City Clerk or City Attorney to the City seem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval by the Mayor and City Clerk of any and all changes, modifications, additions or deletions from the form and content of the Amendment to Mortgage presented to the Council.
Section 5. Great Western Bank is hereby appointed Trustee under the Indenture, and the assignment of the City's rights and interests in and to the Amended Loan Agreement (and Series 2003 Note) and Mortgage (with certain exceptions as stated in the Indenture), be and the same hereby are in all respects authorized, approved and confirmed.
Section 6. The sale of the Series 2003 Bonds to the Purchaser in the amounts set forth above, upon the terms of par and accrued interest, be and the same is hereby directed and approved.
Section 7. The City hereby designates the Series 2003 Bonds as its "qualified tax exempt obligations" under Section 265(b)(3)(B)(i)(III) of the Internal Revenue Code of 1986 and covenants and warrants that the City does not reasonably expect to issue bonds or other obligations aggregating in the principal amount of more than $10,000,000 during the calendar year in which the Series 2003 Bonds are to be issued.
Section 8. From and after the execution and delivery of the documents identified above, the Mayor and the City Clerk are hereby authorized and directed to execute any and all certificates, documents and other papers and do any and all things and to perform all other acts (including without limitation the filing of Internal Revenue Service Form 8038 and the filing of any financing statements necessary to create or maintain a security interest on the properties pledged or assigned under the Indenture, the Amended Loan Agreement and the Mortgage) deemed necessary in order to effect the accomplishment of the Project, the issuance and sale of the Series 2003 Bonds and the execution and delivery of the Amendment to Loan Agreement, the Supplemental Indenture, and the Amendment to Mortgage and to carry out the intent and purpose of this Ordinance.
Section 9. THE SERIES 2003 BONDS ARE SPECIAL, LIMITED OBLIGATIONS OF THE CITY PAYABLE SOLELY FROM THE TRUST ESTATE AS PROVIDED IN THE SUPPLEMENTAL INDENTURE. NOTWITHSTANDING ANYTHING IN THIS ORDINANCE OR THE SERIES 2003 BONDS TO THE CONTRARY, THIS ORDINANCE, THE SUPPLEMENTAL INDENTURE, THE SERIES 2003 BONDS, OR THE AMENDED LOAN AGREEMENT SHALL NOT REPRESENT OR CONSTITUTE AND INDEBTEDNESS OR A MULTIPLE-FISCAL YEAR FINANCIAL OBLIGATION OF THE CITY WITHIN THE MEANING OF ANY STATE CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION, AND SHALL NOT CONSTITUTE NOR GIVE RISE TO A PECUNIARY LIABILITY OF THE CITY OR A CHARGE AGAINST ITS GENERAL CREDIT OR TAXING POWERS, AND EACH SERIES 2003 BOND SHALL CONTAIN ON ITS FACE A STATEMENT TO THAT EFFECT.
Section 10. That the provisions of this Ordinance are hereby declared to be separable and if any section, phrase or provision shall for any reason be declared to be invalid, such declaration shall not affect the validity of the remainder of the sections, phrases and provisions.
Section 11. All ordinances, resolutions and orders of the City or parts thereof
in conflict herewith are hereby repealed to the extent of such conflict.
Section 12. This Ordinance shall take effect thirty (30) days after final publication.
I hereby attest and certify that the within and foregoing ordinance was introduced and read on first reading at a regular meeting of the Lakewood City Council on the 9th day of December, 2002; published in full in the Lakewood Sentinel on the 12th day of December, 2002; set for public hearing on the 13th day of January, 2003; read, finally passed and adopted by the City Council on the 13th day of January, 2003; and signed and approved by the Mayor on the 14th day of January, 2003
Stephen A. Burkholder, Mayor
ATTEST:
Margy Greer, City Clerk
Approved as to form:
City Attorney
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