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O-2002-24

AN ORDINANCE

AUTHORIZING THE ISSUANCE, SALE AND DELIVERY OF THE CITY OF LAKEWOOD, COLORADO $6,000,000 DEVELOPMENT REVENUE BONDS (CARMEL OAKS PROJECT), SERIES 2002, THE EXECUTION AND DELIVERY BY THE CITY OF A TRUST INDENTURE, A LOAN AGREEMENT WITH CARMEL OAKS OF LAKEWOOD, AND THE BONDS, APPROVING A NOTE, 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 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

WHEREAS, Notice of Intention to issue Development Revenue Bonds in the amount of $9,000,000 (the "Proposed Bonds") has been published one time in the Jefferson 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 City, at this time, deems it necessary and advisable to proceed with the issuance, sale and delivery of its Development Revenue Bonds (Carmel Oaks Project), Series 2002 (the "Bonds") in the amount of $6,000,000 (and to issue the remainder of the Proposed Bonds at a later date) as authorized and permitted by the Act to finance the cost of the Project to that amount; and

WHEREAS, the City will loan the proceeds of the 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"), the obligations of which will be sufficient to pay the principal of and interest and prepayment premium, if any, on the Bonds as and when the same shall be due; and

WHEREAS, the City will sell the Bonds to Great Western Bank (the "Purchaser") at a price of par and accrued interest and the City will execute and deliver a Trust Indenture dated as of August 1, 2002, (the "Indenture") to Great Western Bank, (the "Trustee"), as Trustee for the bondholders; and

WHEREAS, as additional security for payment of the Bonds, the Company has agreed to execute a Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Financing Statement (the "Mortgage") dated as of August 1, 2002, 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 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 proposal to issue not more than $9,000,000 of the Proposed Bonds at the time and place as specified in said notice of hearing and all persons who appeared were given an opportunity to express their views for or against the proposal to issue said Bonds, and all objections or other comments relating to the issuance of not more than $9,000,000 of the Proposed Bonds have been heard and considered, and the City Council hereby finds and determines to issue one series of Bonds in the amount of $6,000,000 during calendar year 2002.

Section 2. The Bonds in an aggregate principal amount of $6,000,000 be and the same are hereby authorized and ordered to be issued by the City, and to provide for the authorization of and to secure the Bonds under the Act, to finance the Project and necessary expenses incidental thereto and to prescribe the terms and conditions upon which the Bonds are to be issued, secured, executed, authenticated, accepted and held, the Mayor is hereby authorized and directed to execute the 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 Bonds, the form and content of which are set forth in the Indenture, to be in substantially in the form and containing the provisions set forth in the form of the Indenture, but with such insertions, changes, modifications, additions or deletions to the Indenture and the 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 Indenture and Bond presented to the Council.

Section 3. The City loan to the Company the proceeds of the Bonds pursuant to the Loan Agreement. The City hereby confirms the determinations as set forth in the Loan Agreement relating to reserves, insurance and the Project. There is hereby authorized the execution of such Loan Agreement, and the Mayor is hereby authorized and directed to execute the 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 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 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 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 and deliver the 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 Mortgage to be in substantially the form, text and containing the provisions set forth in the form of 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 the approval by the Mayor and City Clerk of any and all changes, modifications, additions or deletions from the form and content of the 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 Loan Agreement (and Note related thereto) 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 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 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 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 Loan Agreement and the Mortgage) deemed necessary in order to effect the accomplishment of the Project, the issuance and sale of the Bonds and the execution and delivery of the Loan Agreement, the Indenture, and the Mortgage and to carry out the intent and purpose of this Ordinance.

Section 9. THE BONDS ARE SPECIAL, LIMITED OBLIGATIONS OF THE CITY PAYABLE SOLELY FROM THE TRUST ESTATE AS PROVIDED IN THE INDENTURE. NOTWITHSTANDING ANYTHING IN THIS ORDINANCE OR THE BONDS TO THE CONTRARY, THIS ORDINANCE, THE INDENTURE, THE BONDS, OR THE LOAN AGREEMENT SHALL NOT REPRESENT OR CONSTITUTE AN 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 BOND SHALL CONTAIN ON ITS FACE A STATEMENT TO THAT EFFECT.

Section 10. 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 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 8th day of July, 2002; published in full in the Lakewood Sentinel on the 11th day of July, 2002; set for public hearing on the 22nd day of July, 2002; read, finally passed and adopted by the City Council on the day of July, 2002; and signed and approved by the Mayor on the day of July, 2002.

Stephen A. Burkholder, Mayor

ATTEST:
Margy Greer, City Clerk

Approved as to form:
City Attorney