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O-2007-27

AN ORDINANCE

AUTHORIZING THE CITY OF LAKEWOOD TO ACQUIRE CERTAIN REAL PROPERTY (A FACILITY LOCATED AT 1290 HARLAN STREET, LAKEWOOD, COLORADO) FROM ROBERT A. FULCHER, SICO LLC, DIANA S. FULCHER, ALAN BEAVERS AND NEVA BEAVERS FAMILY TRUST; TO LEASE THE FACILITY TO A LEASING COMPANY UNDER A FACILITY LEASE BETWEEN THE CITY, AS LESSOR, AND THE LEASING COMPANY, AS LESSEE; AND LEASING BACK THE FACILITY FOR POLICE EVIDENCE STORAGE SPACE BY ENTERING INTO AN ANNUALLY RENEWABLE LEASE PURCHASE AGREEMENT BETWEEN THE LEASING COMPANY, AS LESSOR, AND THE CITY, AS LESSEE; AUTHORIZING THE EXECUTION OF A PURCHASE AND SALE AGREEMENT, A FACILITY LEASE, A LEASE PURCHASE AGREEMENT AND DOCUMENTS RELATED THERETO; A SUPPLEMENTAL BUDGET APPROPRIATION AND PROVIDING OTHER MATTERS RELATING THERETO.

WHEREAS, the City of Lakewood, Colorado (the "City"), is a municipal corporation duly organized and existing as a home rule city under Article XX of the Colorado Constitution and under the Charter of the City, and is a political subdivision of the State of Colorado (the "State"); and

WHEREAS, subject to certain exceptions, all legislative powers possessed by the City, conferred by Article XX of the State Constitution or contained in the Charter, as either has from time to time been amended, or otherwise existing by operation of law, are vested in the City Council of the City (the "Council"); and

WHEREAS, the City is authorized, pursuant to Article XX of the State Constitution and the Charter and its plenary grant of powers as a home rule city, to enter into lease purchase agreements in order to lease and acquire land, buildings, equipment and other real or personal property; and

WHEREAS, the City desires to enter into an agreement to purchase and sell property with Robert A. Fulcher, SICO LLC, Diana S. Fulcher, Alan E. Beavers and Neva Beavers Family Trust, (Seller), under which the City will purchase land and a building for police evidence storage space (the "Facility") located at 1290 Harlan Street, Lakewood, Colorado; and

WHEREAS, the Council has determined and hereby determines that it is necessary and in the best interests of the City and its residents that the City acquire the Facility from the Seller, lease the Facility for a term of twenty (20) years to a Leasing Company that will be determined by a future competitive bidding process and awarded to the bidder with the quoted terms and conditions most favorable to the City ("Leasing Company") under a Facility Lease to be dated its date of execution and delivery (a "Facility Lease") between the City, as lessor, and a Leasing Company, as lessee, and then lease back such Facility under an annually renewable Lease Purchase Agreement to be dated its date of execution and delivery (a "Lease Purchase Agreement") between a Leasing Company, as lessor, and the City, as lessee, so that the City may use the Facility in connection with its governmental and proprietary purposes.

WHEREAS, the City Council shall make a supplemental budget appropriation of revenues and expenditures in the Capital Improvement Fund for the acquisition and equipping of the Facility in the amount of $1,200,000 in accordance with Section 12.8 of the Lakewood City Charter.

NOW THEREFORE, BE IT ORDAINED by the City Council of the City of Lakewood, Colorado, that:

SECTION 1. Ratification of Actions. All action heretofore taken, not inconsistent with the provisions of this ordinance, by the City or its officers, directed toward the acquisition by the City of the Facility, the leasing by the City of the Facility to the Leasing Company and the leasing back of the Facility by the City are hereby ratified, approved and confirmed.

SECTION 2. Findings; Authorizations. This ordinance is adopted pursuant to the City's powers as a home rule city organized and existing under its Charter and Article XX of the State Constitution; and the City hereby determines that each and every matter and thing as to which provision is made herein is necessary in order to carry out and to effect the purposes hereof.

The Council hereby finds and determines that it is in the best interests of the City and its residents to acquire the Facility and to enter into the lease/purchase financing with the Leasing Company. Accordingly, the Council hereby authorizes (1) the acquisition by the City of the Facility from the Seller; (2) the lease of the Facility by the City to the Leasing Company under a Facility Lease having a term of twenty (20) years; and (3) the leasing back of the Facility by the City from the Leasing Company under a Lease Purchase Agreement for an initial term of up to one (1) year with up to fifteen (15) annual renewals.

SECTION 3. Lease Purchase Agreement Provisions. The provisions of the Lease Purchase Agreement from the Leasing Company to the City shall include:

(1) the Lease Purchase Agreement shall be renewable annually each City fiscal year, the base rentals due under the Lease Purchase Agreement shall be subject to appropriation by the City, the initial term of the Lease Purchase Agreement shall commence on its date of execution and delivery by the City, as lessee, and shall end on December 31 of the year of execution, and the maximum number of renewal terms of the Lease Purchase Agreement shall not exceed fifteen (15) additional renewal terms;

(2) the total aggregate base rentals principal portion payable under the Lease Purchase Agreement shall not exceed $1,200,000;

(3) the base rentals interest portion payable under the Lease Purchase Agreement shall be determined using a per annum interest rate not to exceed 6.0%; and

(4) the base rentals (including both the base rentals principal portion and the base rentals interest portion) payable under the Lease Purchase Agreement shall be payable in annual base rental payments not to exceed $125,000 for each such annual payment.

SECTION 4. Preparation of Documents; Execution of Documents. The City Attorney is hereby authorized and directed to prepare, or direct the preparation of, the Purchase and Sale Agreement, the Facility Lease and the Lease Purchase Agreement (consistent with the terms set forth in Section 3 above) and all additional certificates or documents and to perform all other acts deemed necessary or appropriate in order to implement and carry out the transactions and other matters authorized by this ordinance. The City Manager is hereby authorized and directed to execute and deliver, and the City Clerk is hereby authorized and directed to affix the seal of the City to, and attest, the Purchase and Sale Agreement, the Facility Lease and the Lease Purchase Agreement substantially in accordance with the terms set forth in this ordinance. By his execution thereof, the City Manager shall have determined that the Facility Lease and the Lease Purchase Agreement are with the bidder with the quoted terms and conditions most favorable to the City as set forth in such documents.

SECTION 5. No General Obligation or Other Indebtedness. The obligation of the City to make rental payments under the Lease Purchase Agreement is subject to annual appropriation by the Council and constitutes an undertaking of the City to make current expenditures. No provision of this ordinance or any of the documents authorized hereunder shall be construed as constituting or giving rise to a general obligation or other indebtedness or a multiple fiscal year direct or indirect debt or other financial obligation of the City within the meaning of any home rule, constitutional or statutory debt limitation nor a mandatory charge or requirement against the City in any ensuing fiscal year beyond the current fiscal year. The City may choose to not renew, and thereby terminate its obligations under the Lease Purchase Agreement on an annual basis.

SECTION 6. Reasonable Rentals. The Council hereby determines and declares that the base rentals, as limited by Section 3 above, to be due under the Lease Purchase Agreement do not exceed a reasonable amount so as to place the City under an economic compulsion to renew and therefore not to terminate the Lease Purchase Agreement.

SECTION 7. Supplemental Budget Appropriation. In accordance with Section 12.8 of the Lakewood City Charter, the Council hereby appropriates $1,200,000 in the Capital Improvement Fund in 2007 for the acquisition and equipping of the Facility.

SECTION 8. Additional Documents; Delegated Powers. 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 ordinance. The City Manager, the City Clerk and the City Attorney and other officials and employees of the City are hereby authorized to execute and deliver for and on behalf of the City any and all additional certificates, documents and other papers and to perform all other acts that they may deem necessary or appropriate in order to implement and carry out the transactions and other matters authorized by this ordinance.

SECTION 9. Severability. If any section, paragraph, clause or provision of this ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this ordinance.

SECTION 10. Recordation and Authentication. After its passage, this ordinance shall be authenticated by the signature of the Mayor and attested by the City Clerk and recorded in the records of the City kept for that purpose.

SECTION 11. Effective Date. This ordinance shall take effect thirty (30) days after its passage and publication by title.

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 13th day of August, 2007; published by title in the Rocky Mountain News and in full on the City of Lakewood's website, www.lakewood.org, on the 16th day of August, 2007; set for public hearing on the 27th day of August, 2007, read, finally passed and adopted by the City Council on the 27th day of August, 2007, and, signed and approved by the Mayor on the 28th day of August, 2007.

Stephen A. Burkholder, Mayor

ATTEST:
Margy Greer, City Clerk

APPROVED AS TO FORM:
Paul Kennebeck, Interim City Attorney

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