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AMENDED 2/13/06

O-2006-2

AN ORDINANCE

ORDINANCE CONCERNING THE REFUNDING OF CERTAIN OUTSTANDING CERTIFICATES OF PARTICIPATION ISSUED TO FINANCE THE ACQUISITION, CONSTRUCTION AND EQUIPPING OF A CIVIC CENTER PROJECT AND A LIBRARY PROJECT; AUTHORIZING THE EXECUTION AND DELIVERY BY THE CITY OF A FIRST AMENDMENT TO LEASE PURCHASE AND SUBLEASE AGREEMENT AND A FIRST AMENDMENT TO INTERGOVERNMENTAL AGREEMENT AND SUBLEASE; APPROVING THE FORM OF A FIRST SUPPLEMENT TO MORTGAGE AND INDENTURE OF TRUST AND AN ESCROW AGREEMENT; RATIFYING ACTION PREVIOUSLY TAKEN IN CONNECTION THEREWITH; PROVIDING OTHER MATTERS RELATING THERETO; AND DECLARING AN EMERGENCY.

WHEREAS, the City of Lakewood (the "City") is a legal and regularly created, established, organized and existing municipal corporation under the provisions of Article XX of the Constitution of the State of Colorado and the City Charter (the "Charter"); and

WHEREAS, the City is authorized to enter into one or more rental or leasehold agreements for any municipal purpose; and

WHEREAS, pursuant to Ordinance No. 0-98-54, passed by the City Council of the City (the "City Council") on November 23, 1998, the Council has heretofore determined that it is in the best interest of the City and its inhabitants that the projects known as the Civic Center Project and the Library Project (collectively, the "Projects") be acquired, constructed and equipped; and

WHEREAS, the City has previously entered into a Ground Lease Agreement dated as of November 1, 1998 (the "Ground Lease"), whereby the City has leased parcels of land more particularly described in Exhibit A thereto (the "Land") to the Lakewood Public Building Authority (the "Lessor"); and

WHEREAS, for purposes of providing the Projects, the City has previously entered into (i) a Lease Purchase and Sublease Agreement dated as of November 1, 1998 (the "Lease"), with the Building Authority and (ii) an Intergovernmental Agreement and Sublease dated as of November 1, 1998 (the "Library Sublease") with Jefferson County, Colorado and the Board of Trustees of the Jefferson County Library Board, for the sublease of the Library Project and the sub-sublease of the Library Land to the Jefferson County Library Board; and

WHEREAS, the Lessor is a nonprofit corporation, duly organized, existing, and in good standing under the laws of the State of Colorado, duly qualified to do business in the State of Colorado, and authorized under its articles and bylaws to own and hold real and personal property, to lease the same as lessee or as lessor, and to act in the manner contemplated in the Lease and in the Ground Lease; and

WHEREAS, the Base Rentals and Additional Rentals (both as defined in the Lease) payable by the City shall constitute currently budgeted expenditures of the City, and shall not constitute a general obligation or other indebtedness of the City nor a mandatory charge or requirement against the City in any ensuing fiscal year beyond the then current fiscal year; and

WHEREAS, neither the Lease nor the Ground Lease shall directly or indirectly obligate the City to make any payments beyond those appropriated for the City's then current fiscal year; and

WHEREAS, the Lessor has previously entered into a Mortgage and Indenture of Trust dated as of November 1, 1998 (the "Indenture") with U.S. Bank National Association, as Trustee (the "Trustee"); and

WHEREAS, the Lessor, the City and the Trustee have entered into First Supplement to Ground Lease Agreement, Lease Purchase and Sublease Agreement and Mortgage and Indenture of Trust to Reflect Lot Line Adjustment dated November 27, 2001 (the "Lot Line Adjustment Supplement") to reflect a revised description of the Civic Center Land as set forth in Exhibit A thereto, and as also set forth in Section 4.3 of the First Amendment to Lease; and

WHEREAS, all references to the Lease, the Ground Lease and the Indenture herein, shall be deemed to include the Lot Line Adjustment Supplement; and

WHEREAS, there have heretofore been issued, pursuant to the Indenture, the Certificates of Participation, Series 1998 (the "1998 Certificates") to finance the acquisition, construction, and equipping of the Projects; and

WHEREAS, the City Council has determined and hereby determines that it is in the best interests of the City to refund a portion of the outstanding 1998 Certificates (the "2006B Refunding Project"), which 2006B Refunding Project will be financed through the execution and delivery of the 2006B Certificates (as defined below); and

WHEREAS, to accomplish the 2006B Refunding Project, it is necessary for the City to enter into a First Amendment to Lease Purchase and Sublease Agreement (the "First Amendment to Lease") to provide for the 2006B Refunding Project and certain terms in connection therewith, and in connection therewith, to enter into a First Amendment to Intergovernmental Agreement and Sublease (the "First Amendment to Library Sublease"); and

WHEREAS, for the purpose of financing the 2006B Refunding Project, the City Council has determined and does hereby determine that it is in the best interest of the City and the residents of the City that the City enter into the First Amendment to Lease and the First Amendment to Library Sublease in substantially the respective forms presented to this meeting of the City Council; and

WHEREAS, there has also been presented to this meeting of the City Council a First Supplement to Mortgage and Indenture of Trust (the "First Supplement") to be entered into between the Lessor and the Trustee; and

WHEREAS, there will be executed and delivered by the Trustee pursuant to the Indenture and the First Supplement the "Refunding Certificates of Participation, Series 2006B, Evidencing Assignment of a Proportionate Undivided Interest in Rights to Receive Certain Revenues Pursuant to the Lease Purchase and Sublease Agreement, as Amended, Between Lakewood Public Building Authority, as Lessor and Sublessor, and City of Lakewood, Colorado, as Lessee and Sublessee" (the "2006B Certificates") evidencing assignments of the right to receive certain revenues under the Lease, which rights have been assigned to the Trustee by the Lessor; and

WHEREAS, MBIA Insurance Corporation will deliver to the Trustee a municipal bond insurance policy (the "2006B Policy") guaranteeing the scheduled payment of the principal of and interest on the 2006B Certificates when due; and

WHEREAS, there has also been presented to this meeting of the City Council a copy of the Escrow Agreement (the "Escrow Agreement") between the Lessor and U.S. Bank National Association, as escrow agent, relating to the 2006B Refunding Project; and

WHEREAS, the City Council desires to approve the forms of the First Amendment to Lease, the First Amendment to Library Sublease, the Escrow Agreement and the First Supplement and authorize the execution and performance, as applicable, by the City of such documents; and

WHEREAS, none of the members of the City Council has any potential conflicting interests in connection with the matters referred to herein, nor are any of the members of the City Council interested, directly or indirectly, in the profits of any contract or job for work or services to be performed for the City in connection therewith; and

WHEREAS, Section 11-57-204 of the Supplemental Public Securities Act, constituting Title 11, Article 57, Part 2, Colorado Revised Statutes (the "Supplemental Act"), provides that a public entity, including the City, may elect in an act of issuance to apply all or any of the provisions of the Supplemental Act.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LAKEWOOD, COLORADO:

Section 1. Ratification and Approval of Prior Actions. All action heretofore taken (not inconsistent with the provisions of this Ordinance) by the City Council or the officers or agents of the City Council or the City relating to the Lease, the Ground Lease, the Library Sublease and the 2006B Refunding Project is hereby ratified, approved and confirmed.

Section 2. Finding of Best Interests. The City Council hereby finds and determines, pursuant to the Constitution and laws of the State of Colorado, that the 2006B Refunding Project and continuing to lease and sublease the Leased Property (as defined in the Lease) from the Lessor under the terms and provisions set forth in the Lease, are necessary, convenient, and in furtherance of the governmental purposes of the City, and are advantageous to and in the best interests of the City and its citizens and inhabitants; and the City Council hereby authorizes such 2006B Refunding Project and such continued leasing and subleasing of the Leased Property under the terms and provisions of the Lease.

Section 3. Approval of City Documents. The First Amendment to Lease and the First Amendment to Library Sublease, each in substantially the form presented to this meeting of the City Council, are in all respects approved, authorized and confirmed, and the Mayor of the City is authorized and directed to execute and deliver the First Amendment to Lease and the First Amendment to Library Sublease in substantially the forms and with substantially the same contents as presented to this meeting of the City Council, for and on behalf of the City.

Section 4. Acknowledgment of First Supplement, Escrow Agreement and 2006B Certificates. The City Council hereby acknowledges and consents to the execution and delivery by the Lessor and the Trustee of the First Supplement in substantially the form and with substantially the same content as presented to this meeting of the City Council. The City Council hereby acknowledges and consents to the execution and delivery by the Lessor and U.S. Bank National Association, as escrow agent, of the Escrow Agreement in substantially the form and with substantially the same content as presented to this meeting of the City Council. The City Council hereby further acknowledges the execution and delivery of the 2006B Certificates pursuant to the First Supplement and the Indenture and acknowledges and approves the form, terms and provisions of the 2006B Certificates contained in the First Supplement.

Section 5. Authorization to Execute Collateral Documents. The officers of the City and members of the City Council are authorized and directed to take any and all other actions necessary or appropriate to effectuate the provisions of this Ordinance. The appropriate officers of the City are authorized to execute on behalf of the City agreements concerning the deposit and investment of funds in connection with the transactions contemplated by this Ordinance. The execution of any instrument by the aforementioned officers or members of the City Council shall be conclusive evidence of the approval by the City of such instrument in accordance with the terms hereof and thereof.

Section 6. Parameters. The aggregate principal amount of the Base Rentals (as defined in the Lease) attributed to the 2006B Certificates, the total amount of such Base Rentals, and the amount of such Base Rentals payable in each year and the payment dates of such Base Rentals shall be set forth in a supplemental resolution to be adopted by the City Council, subject to the following parameters and restrictions: (a) the aggregate principal amount of the Base Rentals attributable to the 2006B Certificates shall not exceed $26,675,000; (b) the maximum total amount of the Base Rentals attributable to the 2006B Certificates shall not exceed $36,340,000; (c) the maximum amount of the Base Rentals attributable to the 2006B Certificates payable in any year shall not exceed $3,175,000; and (d) the last payment date of the Base Rentals attributable to the 2006B Certificates shall be no later than December 1, 2020. The portion of the Lease attributable to the 2006B Certificates shall be subject to mandatory prepayment in connection with the mandatory redemption of the 2006B Certificates as provided in the First Supplement.

Section 7. Supplemental Act. The City Council hereby elects to apply Sections 11-57-207, 11-57-208, 11-57-209, 11-57-210, 11-57-211, 11-57-212 and 11-57-214 of the Supplemental Act to the 2006B Certificates and the Lease.

Section 8. No Indebtedness. No provision of this Ordinance, the First Amendment to Lease, the First Amendment to Library Sublease, the Lease, the Ground Lease, the First Supplement, the Indenture, the Escrow Agreement, the 2006B Certificates or any other documents executed in connection therewith shall be construed as creating or constituting a general obligation or other indebtedness of the City within the meaning of any constitutional, statutory or Charter debt limitation, nor a mandatory charge or requirement against the City in any ensuing budget year beyond the then current budget year. No provision of the foregoing shall be construed or interpreted as creating a multiple-fiscal year direct or indirect City debt or other financial obligation whatsoever within the meaning of Article X, Section 20 of the Colorado Constitution. The City shall have no obligation to make any payment with respect to the 2006B Certificates except in connection with the payment of the Base Rentals and certain other payments under the Lease, which payments may be terminated by the City in accordance with the provisions of the Lease. No provision of the First Amendment to Lease, the First Amendment to Library Sublease, the Lease, the Ground Lease, the Library Sublease or the 2006B Certificates shall be construed or interpreted as creating an unlawful delegation of governmental powers nor as a donation by or a lending of the credit of the City within the meaning of Sections 1 or 2 of Article XI of the Colorado Constitution. Neither the First Amendment to Lease, the Lease, the Ground Lease nor the 2006B Certificates shall directly or indirectly obligate the City to make any payments beyond those budgeted and appropriated for the City's then current fiscal year.

Section 9. Reasonableness of Rentals. The City Council hereby determines and declares that the Base Rentals do not exceed a reasonable amount so as to place the City under an economic compulsion to renew the Lease.

Section 10. No Recourse Against Officers and Agents. Pursuant to Section 11-57-209 of the Supplemental Act, if a member of the City Council, or any officer or agent of the City acts in good faith, no civil recourse shall be available against such member, officer or agent for payment of the principal or interest on the 2006B Certificates. Such recourse shall not be available either directly or indirectly through the City Council or the City, or otherwise, whether by virtue of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of the 2006B Certificates and as a part of the consideration of their sale or purchase, any person purchasing or selling such certificate specifically waives any such recourse.

Section 11. Repealer. All bylaws, orders, resolutions and ordinances of the City, or parts thereof, inconsistent herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any other such bylaw, order, resolution or ordinance of the City, or part thereof, heretofore repealed.

Section 12. Severability. If any section, subsection, paragraph, clause or other provision of this Ordinance for any reason is invalid or unenforceable, the invalidity or unenforceability of such section, subsection, paragraph, clause or other provision shall not affect any of the remaining provisions of this Ordinance, the intent being that the same are severable.

Section 13. Safety Clause. The City Council finds and declares that this Ordinance is promulgated and adopted for the public health, safety and welfare and this Ordinance bears a rational relation to the legislative object sought to be obtained.

Section 14. Declaration of Emergency. In order to complete the execution and delivery of the 2006B Certificates while favorable market conditions exist to effect the 2006B Refunding Project, it is hereby declared, pursuant to Section 7.4(b) of the Charter, that an emergency exists and that this Ordinance is necessary for the immediate preservation of the public peace, health, safety and financial well-being of the City. This Ordinance is hereby declared, pursuant to Section 13.2(a) of the Charter, exempt from referendum.

Section 15. Effective Date, Recording and Authentication. This Ordinance shall be in full force and effect immediately upon enactment and publication following final passage. This Ordinance shall be recorded in the City Book of Ordinances kept for that purpose, and shall be authenticated by the signatures of the Mayor and City Clerk, and published in accordance with law.
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 23rd day of January, 2006; published by title in the Rocky Mountain News and in full on the City of Lakewood's website, www.lakewood.org., on the 26th day of January, 2006; set for public hearing on the 13th day of February, 2006; read, finally passed and adopted by the City Council on the 13th day of February, 2006, and, signed and approved by the Mayor on the 14th day of February, 2006.

Stephen A. Burkholder, Mayor

ATTEST:
Margy Greer, City Clerk

APPROVED AS TO FORM:
Roger Noonan, City Attorney

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