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TC Ord. No. 2003-05 Authorizing the issuance of not to exceed $2745000 adjustable rate demand industrial development revenue refunding bonds series 2003TOWN OF AVON, COLORADO ORDINANCE NO. 03-05 SERIES OF 2003 AN ORDINANCE AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $2,745,000 ADJUSTABLE RATE DEMAND INDUSTRIAL DEVELOPMENT REVENUE REFUNDING BONDS, SERIES 2003 (THE KROGER CO.) OF THE TOWN OF AVON, COLORADO (THE "ISSUER"), THE PROCEEDS OF WHICH SHALL BE LOANED-TO THE KROGER CO. FOR THE PURPOSE OF PROVIDING FUNDS FOR THE PERMANENT FINANCING OF COSTS OF A PROJECT WHICH CONSTITUTES A "PROJECT" WITHIN THE MEANING OF THE COUNTY AND MUNICIPALITY DEVELOPMENT BOND ACT; AUTHORIZING A LOAN AGREEMENT AND TRUST INDENTURE APPROPRIATE FOR THE PROTECTION AND DISPOSITION OF SUCH REVENUES AND TO FURTHER SECURE SUCH BONDS; AUTHORIZING A BOND PURCHASE AGREEMENT, TAX REGULATORY AGREEMENT AND OFFERING CIRCULAR AND AUTHORIZING OTHER ACTIONS IN CONNECTION WITH THE ISSUANCE OF SUCH BONDS. WHEREAS, the Town of Avon, Colorado (the "Issuer"), a political subdivision of the State of Colorado, is authorized and empowered, by virtue of the laws of the State of Colorado, including without limitation, Part I of Article 3 of Title 29 (29-3-101 et seq.) of the County and Municipality Development Revenue Bond Act of the Colorado Revised Statutes, as amended (the "Act"), (a) to make a loan for the refunding and retiring of outstanding revenue bonds issued under the Act, (b) to issue and sell its revenue refunding bonds to provide moneys for such loan for the purpose of refunding its previously issued $2,745,000 Floating/Fixed Rate Industrial Development Refunding Revenue Bonds (Dillon Real Estate Co., Inc. Project), dated as of March 20, 1985 (the "Prior Bonds"), which refunded the Issuer's $2,800,000 Industrial Development Revenue Bonds (City Market, Inc. Project), the proceeds of which were used to finance the acquisition, construction and equipping of a retail supermarket facility and related equipment, improvements and fixtures (the "Project") which constitutes a "Project" within the meaning of the Act, and (c) to enact this Bond Legislation and.execute and deliver the agreements and instruments hereinafter identified; and WHEREAS, this Town Council (the "Legislative Authority") of the Issuer has determined and does hereby confirm that the sale and delivery of the $2,745,000 Adjustable Rate Demand Industrial Development Revenue Refunding Bonds, Series.2003 (The Kroger Co.) (the "Bonds") issued for the purpose of refunding and retiring of the Prior Bonds is consistent with and in furtherance of the public purposes of the Act; NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Definitions. All defined terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Trust Indenture with respect to the Bonds (the "Indenture") between the Issuer and U.S. Bank National Association, Cincinnati, Ohio, and its successors in trust, as trustee (the "Trustee"). - Any reference herein to the Issuer or the Legislative Authority, or to any officers or members thereof, shall include those which succeed to their functions, duties or responsibilities pursuant to or by operation of law or who are lawfully performing their functions. Unless the context shall otherwise indicate, words importing the singular number shall include the plural number, and vice versa, and the terms "hereof," "hereby," "hereto," "-`hereunder," and similar terms, mean this Bond Legislation. Section 2. Determination of Issuer. This Legislative Authority determines that: (i) the Project constitutes a "Project" within the meaning of the Act and is consistent with and in furtherance of the public purposes of the Act; (ii) the refunding of the Prior Bonds and the provisions of permanent financing of the costs of the Project will require the issuance, sale and delivery of the Bonds in the principal amount of $2,745,000; and (iii) following reasonable notice, and prior to adoption of the bond legislation, a public hearing was held, as required by Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code"). The Issuer hereby further determines that the Issuer shall and does hereby elect to have the provisions as to the $10,000,000 limit in Section 144(a)(4) of the Code, apply to the Bonds. Section 3. Authorization of Bonds. It is hereby determined to be necessary to, and the Issuer shall, issue, sell and deliver, as provided herein and-pursuant to the authority of the Act, the Bonds for the purpose of refunding and retiring the Prior.Bonds, all in accordance with the provisions of the Loan Agreement dated as of February 1, 2003 (the "Agreement") between the Issuer and the Borrower. The Bonds shall be designated "Adjustable Rate Demand Industrial Development Revenue Refunding Bonds, Series 2003 (The Kroger Co.)". The maximum amount of all Bonds to be outstanding at any one time is $2,745,000. Section 4. Terms and Execution of the Bonds. The Bonds shall be issued in the forms and denominations, shall be numbered, dated and payable as provided in the Indenture. The Bonds shall mature as provided in the Indenture, and have such terms, bear such interest, and be subject to mandatory and optional redemption as provided in the Indenture. This Legislative Authority hereby fixes and establishes the interest rate.in effect from time to time on the Bonds in the manner and pursuant to the provisions of the Indenture. The Bonds shall be executed on behalf of the Issuer by the manual or facsimile signature of the Mayor (or in the absence of the Mayor, the Mayor pro tempore) and attested to by the clerk (or, in the absence of the clerk, the acting clerk) of the Issuer, and the seal of the Issuer [may] be impressed thereon or a facsimile of such seal placed .thereon. In case any officer whose signature or a facsimile -2- thereof shall appear on the Bonds shall cease to be such officer before the issuance or delivery of the Bonds, such signature or facsimile thereof shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until after that time. The form of the Bonds submitted to this meeting, subject to appropriate insertions and revisions in order to comply with the provisions of the Indenture, is hereby approved, and when the same shall be executed on behalf of the Issuer by the appropriate officers thereof in the manner contemplated hereby and by the Indenture, in an aggregate principal amount of not to exceed $2,745,000, shall represent the approved form of Bonds of the Issuer. Section 5. Sale of the Bonds. In accordance with a request of the Borrower, that the sale of the Bonds be made privately upon a negotiated basis, the Bonds are hereby awarded to Thornton Farish Inc. (the "Underwriter") at the purchase price set forth, and on the terms and conditions described, in the Bond Purchase Agreement with respect to the Bonds (the "Bond Purchase Agreement") among the Issuer, the Borrower, U.S. Bank National Association and the Underwriter. The members of the Legislative Authority, the Mayor (or in the absence of the Mayor, the Mayor pro tempore) and the clerk (or in the absence of the clerk, the acting clerk) of the Issuer, or their legally permissible designees or appointees, each are hereby separately authorized and directed to make on behalf of the Issuer the necessary arrangements to establish the date, location, procedure and conditions for the delivery of the Bonds to the Underwriter, and to take all steps necessary to effect due execution and delivery to the Underwriter (or temporary bonds delivered in lieu of definitive Bonds until their preparation and delivery can be effectuated) under the terms of this Bond Legislation, the Bond Purchase Agreement, the Agreement and the Indenture. It is hereby determined that the price for and the terms of the Bonds, and the sale thereof, all as provided in the aforesaid documents, are in the best interests of the Issuer and consistent with all legal requirements. Section 6. Arbitrage Provisions. The Issuer will restrict the use of the proceeds of the Bonds in such manner and to such extent, if any, as may be necessary, after taking into account reasonable expectations at the time the Bonds are delivered to the Underwriter, so that they will not constitute arbitrage bonds under Section 148 of the Code. The Mayor (or in the absence of the Mayor, the Mayor pro tempore), the clerk (or in the absence of the clerk, the acting clerk) or any other member of the Legislative Authority or officer having responsibility with respect to the issuance of the Bonds, is authorized and directed, alone or in conjunction with any of the foregoing or with any other officer, employee, consultant or, agent of the Issuer, to deliver a certificate for inclusion in the transcript of proceedings for the Bonds, setting forth the facts, estimates and circumstances and reasonable expectations pertaining to said Section 148 and regulations thereunder. Section 7. Authorization of Agreement, Indenture, Bond Purchase Agreement, Tax Regulatory Agreement and All Other Document's to be Executed by the Issuer. In order to better secure the payment of the principal of, premium, if any, and interest on the Bonds as the same shall become due and payable, any member of the Legislative Authority, the Mayor (or in the absence of the Mayor, the Mayor pro tempore), the clerk (or in the absence of the clerk, the acting clerk) of the Issuer, or their designees.or appointees, is authorized and directed to execute, acknowledge and deliver`in the name and on-behalf of the Issuer, the -3- Indenture, Agreement, Tax Regulatory Agreement and Bond Purchase Agreement in substantially the forms submitted to the Issuer, which are hereby approved, with such changes therein not inconsistent with'this Bond Legislation and not substantially adverse to the Issuer as may be permitted by the Act and approved by the officer executing the same on behalf of the Issuer. The approval'of such changes by said officer, and that such are not substantially adverse to the Issuer, shall be conclusively evidenced by the execution of such Indenture, Agreement, Tax Regulatory Agreement and Bond Purchase Agreement by such members or officers. The Offering Circular prepared by the Underwriter in connection with the sale of the Bonds is hereby authorized and is deemed to be in final form. Each member of the Legislative Authority, the Mayor (or in the absence of the Mayor, the Mayor pro tempore), the clerk (or in the absence of the clerk, the acting clerk) of the Issuer, or their legally permissible designees or appointees, are each hereby separately authorized to take any and all actions and to execute such financing statements, assignments, certificates and other instruments that may be necessary or appropriate in the opinion of Peck, Shaffer & Williams LLP, as Bond Counsel, in order to effect the issuance of the Bonds and the intent of this Bond Legislation. The clerk (or in the absence of the clerk, the acting clerk) of the Issuer, or other appropriate officer or employee or agent of the Issuer, shall certify a true transcript of all proceedings had with respect to the issuance of the Bonds, along with such information from the records of the Issuer as is necessary to determine the regularity and validity of the issuance of the Bonds. Section 8. Covenants of Issuer. In addition to other covenants of the Issuer in this Bond Legislation, the Issuer further covenants and agrees as follows: (a) Payment of Principal, Premium and Interest. The Issuer will, solely from the sources herein or in the Indenture provided, pay or cause to be paid the principal of, premium, if any, and interest on each and all Bonds on the dates, at the places and in the manner provided herein, in the Indenture and in the Bonds. (b) Performance of Covenants, Authority and Actions. The Issuer will at all times faithfully observe and perform all agreements, covenants, undertakings, stipulations and provisions contained in the Bonds, Agreement, Tax Regulatory Agreement, Bond Purchase Agreement and Indenture, and in all proceedings of the Issuer pertaining to the Bonds. The Issuer warrants and covenants that it is, and upon delivery of the Bonds will be, duly authorized by the laws of the State of Colorado, including particularly and without limitation the Act, to issue the Bonds and to execute the Agreement, the Indenture, the Tax Regulatory Agreement and the Bond Purchase Agreement, and all other documents to be executed by it, to provide for the security for payment of the principal of, premium, if any, and interest on the Bonds in the manner and to the extent herein and in the Indenture set forth; that all actions on its part for the issuance of the Bonds and execution and delivery of the Agreement, the Indenture, the Tax Regulatory Agreement, the Bond Purchase Agreement and all other documents to be executed by it in connection with the issuance of the Bonds, have been or will be duly and effectively taken; and that the Bonds will be valid and enforceable special, limited obligations of the Issuer according to the terms thereof.. Each provision of the Bond Legislation, the Indenture, the Agreement, the Tax Regulatory Agreement, the Bond Purchase Agreement and each Bond, and -4- all other documents to be executed by the Issuer in connection with the issuance of the Bonds, is binding upon each officer of the Issuer as may from time to time have the authority under law to take such actions as may be necessary to perform all or any part of the duty required by such provision; and each duty of the Issuer and of its officers and employees undertaken pursuant to such proceedings for the Bonds is established as a duty of the Issuer and of each such officer and employee having authority to perform such duty. Section 9. No Personal Liability. No recourse under or upon any obligation, covenant, acceptance or agreement contained in this Ordinance, or in any Bond, or in the Agreement, the Indenture, the Tax Regulatory Agreement or the Bond Purchase Agreement, or under any judgment obtained against the Issuer or by the enforcement of any assessment or by any legal or equitable proceeding by virtue of any constitution or statute or otherwise, or under any circumstances, shall be had against any officer as such, past, present, or future, of the Issuer, either directly or through the Issuer, or otherwise, for the payment for or to the Issuer or any receiver thereof, or for or to any holder of any Bond, or otherwise, of any sum that may be due and unpaid by the Issuer upon any of the Bonds. Any and all personal liability of every nature, whether at common law or in equity, or by statute or by constitution or otherwise, of any such officer, as such, to respond by reason of any act or omission on his or her part, or otherwise, for, directly or indirectly, the payment for or to the Issuer or any receiver thereof, or for or to the owner or any holder of any Bond, or otherwise, of any sum that may remain due and unpaid upon any Bond, shall be deemed to be expressly waived and released as a condition of and consideration for the execution and delivery of the Agreement, Indenture, the Tax Regulatory Agreement and Bond Purchase Agreement and the issuance of the Bonds. Section 10. No Debt or Tax Pledge. The Bonds do not constitute an indebtedness or pledge of the faith and credit or taxing powers of the Issuer within the meaning of the Constitution of the State of Colorado. The Bonds shall be payable solely from the revenues and security interests pledged for their payment as provided in the Indenture, and neither moneys raised by taxation nor any other general or special revenues of the Issuer shall be obligated or pledged for the payment of principal of, premium (if any) or interest on the Bonds. Section 11. Severabiliity. If any section, paragraph or provision of this Bond Legislation shall be held to be invalid or unenforceable for any reason, the invalidity or, unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Bond Legislation. Section 12. Sunshine Law. This Legislative Authority hereby finds and determines that all formal actions relative to the adoption of this Bond Legislation were taken in an open meeting of this Legislative Authority, and that all deliberations of this Legislative Authority and of its committees, if any, which resulted in formal action, were in meetings open to the public, in full compliance with applicable legal requirements. Section 13. Approval of Financing. The Legislative Authority hereby approves the issuance of the Bonds in the maximum aggregate principal amount of $2,745,000 to be loaned to the Borrower for the refunding and retiring of the Prior Bonds which refunded bonds were issued to finance the acquisition, construction and equipping of a retail supermarket facility -5- and related equipment, improvements and fixtures, located within the jurisdiction of the Issuer, which Project is currently owned by the Borrower. Section 14. Notice of Issuance. After the issuance of the Bonds, the Mayor (or in the absence of the Mayor, the Mayor pro tempore) and/or the clerk (or in the absence of the clerk, the acting clerk) of the Issuer are hereby authorized to execute, and any of the aforementioned individuals of the Issuer or Peck, Shaffer & Williams LLP is hereby authorized to deliver and file on behalf of the Issuer, the Notice of Issuance of the Bonds to the State of Colorado or any of its agencies; if required. Section 15. Effective Date. This Bond Legislation shall take effect and be in force immediately upon its adoption. . INTRODUCED, READ BY TITLE, APPROVED ON FIRST READING AND ORDERED PUBLISHED ONCE IN FULL AND ORDERED SET FOR A PUBLIC HEARING ON FF99R;MAY 2003, this day of 12003. • 9 A L l0RA® TOWN OF AVON, COLORADO Mayor 9 ccv U Town Cl~ k -6- n READ, ADOPTED ON SECOND READING this P -tday of l'' lgk~- , 2003. OF qy0 S E, A 1. Attest: 3 A4. I~ Town Clerk (Seal) TOWN OF AVON COLORADO • Mayor -7- STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 11TH DAY OF MARCH 2003, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF THE FOLLOWING ORDINANCES: Ordinance No. 03-05, Series of 2003 An Ordinance Authorizing The Issuance Of Not To Exceed $2,745,000 Adjustable Rate Demand Industrial Development Revenue Refunding Bonds, Series 2003 (The Kroger Co.) Of The Town Of Avon, Colorado (The "Issuer), The Proceeds Of Which Shall Be Loaned To The Kroger Co. For The Purpose Of Providing Funds For, The Refunding Of Bonds Previously Issued By The Issuer To Refinance Costs Of A "Project" Within The Meaning Of The Colorado County And Municipality Development Revenue'Bond Act; Authorizing A Loan Agreement And Trust Indenture Appropriate For The Protection And Disposition Of Such Revenues And To Further Secure Such Bonds; Authorizing A Bond Purchase Agreement And Tax Regulatory Agreement And Authorizing Other Actions In Connection With The Issuance Of Such Bonds. Ordinance No. 03-06, Series of 2003 An Ordinance Authorizing Conveyance of Lots 2, and 3, Resubdivision of Lots 1,2,3,4, and 5 McGrady Acres. A copy of said Ordinances are attached hereto, and are also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado TOWN OF AVON, COLORADO BY: Patty Mc enny Tow rk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON FEBRUARY 28, 2003 AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY