HomeMy WebLinkAbout1993 Ordinance No. 022•
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ORDINANCE NO~
SERIES OF 1993
BY AUTHORITY
COUNCIL BILL NO . 19
INTRODUCED BY COUNCIL
MEMBER HABENICHT
10 C
AN ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF NOT TO EXCEED
$3 ,85 0,000 CITY OF ENGLEWOOD, COLORADO INDUSTRIAL DEVELOPMENT
REVENUE BONDS (SAFEWAY INC. PROJECT) SERIES 1993 TO CURRENT REFUND
ON AUGUST 1, 1993, CITY OF ENGLEWOOD, COLORADO'S OUTSTANDING $4,500,000
INDUSTRIAL DEVELOPMENT REVENUE BONDS (SAFEWAY STORES,
INCORPORATED PROJECT) SERIES 1983; RATIFYING CERTAIN ACTIONS
llERETOFORE TAKEN; AUTHORIZING THE EXECUTION AND DELIVERY BY CITY
OF ENGLEWOOD, COLORADO OF A LOAN AGREEMENT, BOND INDENTURE OF
TRUST, TAX REGULATORY AGREEMENT, PAYING AGENT AGREEMENT,
REMARKETING AGREEMENT, BOND PURCHASE AGREEMENT, SAID BONDS AND
CLOSING DOCUMENTS IN CONNECTION THEREWITH; MAKlNG CERTAIN
FINDINGS NECESSARY TO ADOPT THIS ORDINANCE; AND REPEALING ACTION
HERETOFORE TAKEN IN CONFLICT HEREWITH.
WHEREAS, The City of Englewood, Colora~o (the "Issuer") is a legally and regularly
created, established municipal corporation dul)' organized and validly existing as a home•
rule city pur&uJlllt to Article XX of the Constitution of the State of Colorado (the •state"); and
WHEREAS, the provisions of the Co unty and Municipality Development Revenue Bond
Act, Article 3, Ti,le 29 , Colorado l!e\ised Statutes, 11 amended (the "Aet"), authorize
municipalities to 6-,1ance, refinance, acquire, dwn, )ease, improve and dispo ■e ur one or
more projects, including any land, building er other improvement and all real or personal
properties s uitable er used for or in connection with commercial or business enterprises
(inclutling, without limitation, enterprises engaged in ••lling any products of agricul ture,
industry, commerce, limititi«l, enterprises engaged in selling any products of agriculture,
in du stry, commerce, manufacturing or business), upon such contlitions as the municipality
may deem advisable ; and
WHEREAS, in order to accompli sh the purposes of the Aet, the Issuer is further authorized
by the Act to issue revenue refunding bonds fo r the purpose of refunding any project,
including the payment of all incidental expenses incurred in issuing s uch bonds, and to
secure payment of such bonds as provided in the Act; and
WHEREAS , pursuant to the Act, the Issuer on September 16, 1983 iuued ita $4,500,000
Industrial Development Revenue Bonds (Safeway Stores, Incorporated Project) Series 1983
(the "Prio r Bonds"); and
WHEREAS, the proceeds of the Prior Bonds were uti!ized by Safeway Stores, Incorporated
(now known as Safeway Inc . and referred to herein as "Safeway") to finance a retail
grocery store facility within th o City of Englewood, Colorado (the "Project"); and
WHEREAS , the Act provides that the Issuer may issue refunding bonds to provide fund s
for the refunding of any outatanding bonds ; and
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WHEREAS, Safeway i1 a corporation duly orpniaed and validly ui1ti111 under the laws
of the State of Delaware and is authorized to conduct buaineu in the State and ha ■ preaented to
the hauer a propou) whereby the laauer will, punuant to the ,'l,t, i11ue the indutrial
development revenue refunding bonds hereinaft.er described ar,d loan the p,oceed1
therefrom to Safeway in order to efl'ectuate a current refundinr of the Prior Bonds on Aurust
1, 1993 and pay a portion of the coste ofi11uance 11aociated therewith; and
WHEREAS, Safeway h11 (iven it■ 11111rance to the City that Safeway will pay, or
reimbune the City for payment of, and all lepl fees and upen1e1 and admini1trative costs
and e:rpenaes theretofore incurred or hereaft.er to be incurred by the City related to the Project
and it■ refinancing, and that uch agreement to pay or reimburse the City i1 not contingent
upon the refinancing of the Project; and
WHEREAS, The Cit.) of Englewood, Colorado lnduetrial Development Revenue
Refunding Bonds (Safeway Inc. Project) Seriea 1993 in the aarepte princii:111 amount not to
exc eed $3,850,000 (the "Bonds") will be iuued, ■old and delivered by the l11uer to L'ougherty,
Dawkins, Strand & Birelow Incorporated, Denver, Colorado (the "C',ri(inal Purchaaer"), in
order to provide funds to efl'ectuate the current refunding of the Prior ilonds on August 1, 1993,
and to pay a portion of certain incidental cost■ incurred in ' connection with the i11uance of
the Bonds; and
WHEREAS, there have been presented to the City Council of the Issuer: (a) the proposed
form of Loan Agreement, dated II of May 1, 1993 (the "Loan Agreement"), by and between lhe
Issuer and Safeway, (b)the proposed fonn of Bond Indenture ofTruat, Dated II of May I, 1993
(the "Indenture"), by and between the Issuer end Fint lntentate Bank of Denver, N.A.,
Denv er , Colorado (the "Trustee"), (c) the proposed form of Bond Purchase Agreement, dated
May 3, 1993 (the "Bond Pun:hase Agreement"), by and between the lnuer and the Original
Purchaser, (d) the proposed form of Paying Agent Agreement, dated as of Ma.,, 1, 1993 (the
"Payi ng Agent Agreement"), by and among the lnuer, the Trustee, Safeway and
BankAmerica National Trust Company, New York, New York, u paying ag,,nt (the
"Paying Agent"), (e) the proposed form ofRemarketing Agreement, dated u of May 1, 1993
(the "Remarketing Agreement"), by and &JDO"i the Issuer, Safew111, the Paying Agent and
the Original Purchaser (in its capacity II remarketing arent thereunder and referred to
herein as I.h t ("Remarketing Agent"), (0 the proposed form of Tax Regulatory Agreement,
dated as o:May 1, 1993 (the "Tas Regulatory Agreement"), by and among the luuer, the
Trustee and Safeway, (g) the Preliminary Official Statement of the Issuer with respect to the
offering of the Bonds (the "Preliminary Official Statement") and (h) the proposed' form of
final Official Statement to be provided to purchasers of the Bonds by the Original Purchaser ;
and
WHEREAS, Safeway has informed the Issuer that its plan of financing necessitates that
•.he Bonds be iuued on or prior to June 2, 1993;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD, COLORADO, THAT:
~-All action (not inconsistent with the provisions of this Ordinance) heretofore
taken by the City Council of the Issuer and the efl'orts of the luuer directed toward the
issuance e.nd sale of the Bonds therefor, and loaning the pror.eeds thereof to Safeway therefo r
be, end the same hereby are ratified, approved and confirmed.
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~ The Issuer ,~all deposit the proceeds of the Bonda with the Trustee to current
refund the Prior Bonds on Aurust 1, 1993 in accordance with the provisions and conditions of
the Indenture. •
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&l:tilm.a-There i1 hereby authorised, approved and created an iaaue of induatrial
development revenue refundinc bonds deaicnaled u "City of Enpwood, Colorado
Industrial Development Revenue &fwidinc Bonda (Safeway Inc. Prqjeol) Series 1993" in
the agregate principal amount not lo H-.i 13,850,000, lo be dated u provided in the
Indenture. The Bonds shall bur interest from the dale or iuuanoe, and shall bear interest at
the rate ■, on the dales and in the manner u provided in the Indenture. The Bonds shall
mature on AU{.,"11t I , 2003.
~ the following determinations and findinp are hereby made in accordance with
the Act : .
(a) The Bonds shall be repayable by the Issuer solely from revenues constituting, or
derived from, payments lo be made by Safeway wider the Loan A&,eement;
(b) ·n,e Loan Acreement, as amended from time to time, will require Safeway lo make
paym en~• therewider sufficient to pay the principal and purchue price of,
premium , if any, and interut on the Bonds, u well aa all expense• incurred by the
Issuer in connection with the issuance and aale of the Bonds. Safew~v has agreed
that all coste of current refundinc the Prior Bonda on Aucust 1, 1993 m excess of the
amowite made available by reason of the isauance of the Bonda will be paid for by
Safeway in accordance with the Loan Agreement and the Indenture;
(c) The Issuer acknowledges that the avai lability of financing for the Project through
the issuance of the Prior Bonds was a material consideration in the decision of
Safeway to es~lish the Project within th e boundaries of the Issuer and to expand its
rewl aales operations within the bowidaries or the luuer and that the issuance of
the Bonds in order to curren t refund the Prior Bonds on Aucust 1, 1~93 further
supports and advances this finding and determination ;
(d) The Issuer is 1.uthorized by the M to enter inlo the Loan A&,eement for the public
purposes expr,,ased in the Act and lo auign its interest therein to the Trustee
punuant to the Indenture;
(e) The amowit estimated to be necessary lo finance the current refunding of the Prior
Bonda on Aucust 1, 1993, including the costs and estimates costs perm itted by the
Act , will require the issuan ce of Bonds in the principal amount not to exceed
$3,850,000 as herei nafter provided;
(0 It is de sirable, feasible and consistent with the objects and purpo se ■ of the Aet to
issue th e bond s for the purpr,se offinancing the current refunding of the Prior
Bond s on Aucust I, 1993;
(g) The Bonds and the interest accruing thereon shall be 1pecial limited obligatio ns of
the luuer , payable solely from revenues derived under the Loan Acree ment;
neither the Issuer, the Stele nor any public body or political subdivision thereof
shall be obligated to pay the principal or purchase price of the Bonds or the interest
accruing thereon or any premiums due in connection therewith or other co at.a
incident thereto except from the payments, receip ts , revenues , income and mon ey s
expressly pl edged t herefor; the Bonds and the interest afcruing thereon are not
general oblieations of the laauer, or the Stele nor any public body or political
1ubdivision thereof, and do not constitute or give rilO to a pecuniary liability of th e
Issuer, or a charge against its or their general credit or taxin g power;
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(h) The Bondo are an iuue ofrefundinc bondo permitted by Saction 1313(a) of the Tu
Reform Att of 1986, u amended. 'The Prior Bondo are indldtrial devolopment -
bond, within the muninc of Section 103(b) of the Intemal Revonue Code of 11154, u
amended, and were luu&, within tho uemptlon provided under 1ubpar&lf""ph (D)
of Section 103CbX8) of die lnlemal llennue Code of 1954, u amended, with •-ct to
en iuue ofSl0,000,000 or leu; provided dial nothinc herein lhall provent the
luuer, with the prior written oppnrval of Safeway, f'rom hereafter qualifyi"i the
Bonda under a dif!'erent uemption if, and lo the extent, web exemption 11 permitted
by la¥: and conoi ■t,,nt with the object■ and purpo■eo of the Project and the Ad;
(i) The loan payment. lo be made by Safeway lo the luuer under the Loan Agreement
are 1ufficient in an,ount lo pay the principal and purchaoe price of and the interest
on the Bonda authorized lo be iaoued herein for the purpooe of6nancinc the current
refunding of the Prior Bonda on Aucu•t 1, 1993, u oet forth in the Loan Agreemen t;
(j) Neither Safeway not the Original Purchuer of the Bonda have stipulated that part of
the Bond proceeds will be paid into a reserve fund, and no reserve fund shall be
ealabliohed or maintained in connection with the retirement,. the Bonda and the
maintenance of the Project u provided by the le lll Agreement and the Indenture;
(k) Pursuant lo the Loan Agreemert , Safeway shall be required lo maintain and carry
proper and adequate insuran<~ on the Project; and
0) Safeway shall pay ad valorem tuea or a payment in lieu of taxeo ao provided for the
Loan Agreement.
5.ut '..al..4. The forms, termo and provisions of the Loan Agreement, the Indenture, the Tax
Regulatory Agreement, the Payinc Acent Acreement, the Rl!marlteting Agreement and the
Bond Purchase Agreement be , and they h ereby are, approved, and the luuer ohall enter into
th e Loan Agreement, the Indenture, th, Tu Regulatory Acreement, the Paying Agent
Agreement, the Rl!marketing Acreement and the Bond Purchue Agreement 1ub1tantially
in the forms of each of such documents attached hereto but with such change• therein as the
offi cers of the Issuer executing such document■ ohall approve, their execution thereof being
deemed conclusive of their approval of any ouch changes; and the Chairman is hereby
authorized and directed to affix the oeal of the Issuer lo, and to attest, such documents in
substantially the forms of each of 1uch documents attached hereto.
~-The form , terms and provision a of the Bonds, in substantially the form
contai ned in Exhibit A to the Indenture, be end they hereby •re, a pproved ; and the Mayor is
hereby authorized and directed lo cause hi ■ manuel and/or facain,il e 1ignature to be affixed
to the Bonda ; the City Clerk is hereby authorized and directed to attest the Bonda by cauoing
his or her manual an d/or facsimile 1ignature to be affixed to the Bonda, and each ia
authorized to deliver the Bonds in the form contained in Exhibit A to the Indenture but with
such changes therein as the officen of the luuer executing the Bonda shall approve, their
execution thereof being deemed conclusive of their approval of-any such changes. The seal of
the Is suer i1 hereby authorized and direeled to be affixed to or imprinted on the Bonds.
Swi.!m.1. First Interstate Bank of Denver, N.A., Denver, Colorado, is herP.by appointed as
Trustee and BankAmerica National Trust Company, New York, New York, i1 hereby
app ointed as Paying Agent under th e lnd•nture.
~-Th• officen of the Issuer are hereby authorized to take all a,ijon which they
dee m necessary or reasonably required in conformity with the Act to finance the current
refund ing of the Prior Bonds on August 1, 1993 which ia hereby authorized , including the
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paying of incidental iuuance e,ipen1H, a,,,d for carrying out, eivine effect to and
conoummatins the tranaaction1 c:ontamplatod ~ thl1 Ordinanca, the Loan agreement, the
Indenture, the Tu Regulatory Agreement, !he Payinc Apnt Agreement, the Remarketing
Agreement and the Bond Purchue A,reement, ineludlne without limitation the execution
and delivery of any closine documenta to be delivered in eonnection with the sale and
delivery of th■ Bonda and the final Offidal Statement. The distribution of the Preliminary
Official Statement by the Orieinal Purehuer i1 hereby ratified, eonfirmed and approved .
The di•tribution of the final Official Statement ■ub■tantially in the form of the Preliminary
Official Statement ia hereby approved. The l11uer hereby agrees t,, cooperate with and to take
all action ■ r eaaonably neceuary to u si st the Orieinal Purehaser in complying with
Securitie■ and Exchange Commission Rule 15c2-12 promulpted under the Securities
Exchange Ad of 1934, u amended, to the extent ouch role i1 deemed to apply to the Bonds,
including, without limitation, providing to the Original Purchaser at the expense of
Safeway, sufficient copies of offering, reoffering, remarketing or other di sclosure
documents.
~-The cost of current refunding the Prior Bond ■ on August 1, 1993, including the
paying ,r inciden I ,n uance expenoec, will be paid out of the proceeds of the Bonds or
directly by Safeway. The Bonds together with intere1t paya le thereon are special limited
obl igations of the Issuer payable solely as provided in the Indenture. The Bonde or interest
payable th ereon are not general obligations of the Issuer, or the State of Colorado or any public
body or r, lil1 J ;ubdivision thereof within the meaning of any provision r limitation of the
Co n stiluti~n q. ·; .!utes of the Stat. of Colorado or Home Ruie Charter of the Issuer, n,r shall
anything r ,ntainod in this Ordinance or in the Bonds, th o Loan Agreement, the Indenture,
the Tax lv,~ulatory Agreement, the Paying Agent Agreement, the Remarketing Agreement,
the Bon d Purchase Agreement or any other instrument constitute or give rise to a pecuniary
liability of, or a chorge again st the general credit or taxing power of, the Issuer, nor shall the
breach of any agreem,!nt contained in this Ordinance, or any of the above-mentioned
documents 01 instruments impo ;e any pecuniary liability upon the Issuer.
~-After any of the l:onds are issued, this Ordinance shall be and remain
irrepealable until the Bonds and interest thereon shall have been fully psid, canceled and
discharged pursuant to the Indenture.
~-If any section, paragraph, clause or provision of this Ordinance shall for any
reason be held to be invalid or unenforeeable, the invalidity or unenforceability of such
section, paragraph, clause or provision shall not affect any of the remaining provi sions of
this Ordinance.
5.ed.iluLJ.2 , All bylaws, orders, ordinances and resolutions or parts thereof, inconsistent
herewith and with the documents hereby approved, are hereby repealed to the extent only of
such inconsistency. This repealer shall not be construed as reviving ony bylaw , order
ordinance or resolution, or part thereof.
~. Immediately upon its final passage, this Ordinance shall be reeorded in the
Issuer's book of ordinances k ept for that purpose, shall be authenticated by the signatures of
the Mayor and City Clerk, and shall be published in the Englewood Herald, a legal
newspaper of general circulation in the City of Englewood, Colorado.
Introduced, read in full , and passed on first reading on the 19th day of April, 1993 .
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P-Jbliahed u a Bill for an Onli11&11ce on Ille 22nd day of April, 1993.
Read by uUe and puaed on final reading 011 Ille 3rd day of M8,y, 1993.
Published by uUe u Ordinance No ... _ _s..8eriu of 1993, on the 6C, clay of May, 1993.
ATTE:ST :
Oo~ r; .r..~ 111;~· CJ E. Wiggin,, or
I, Patr'·i· 1-1. Crow, City Clerk of the City ofEr11lewood, Colorado, hereby cerUfy that the
above ana , lOing i1 a trua copy of the Ordinance pulled on final reading and published
by title u ' dinauce No~eries of 1993.
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Pat ricia H. Crow
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KEGARDING :
FROM :
DATE :
COUNCIL COi,'MUNICATION
1·.B. 19 -SAFEWAY llliOUSTRIAL DEVELOPMENI'
~E BONDS REF1NANCING .
Rick DeWitt, City Attorn..!}'
April 19, 1993
On September 16, 1983 the City ol :...,1glewood was the "Issuer" of
$4,500,000 lndm,trial Development Revenue Bond~ (Safeway Stores,
Incorporated Pro).ect) Ge.ies 1983. The 1983 Bonds bear Interest at rates
ranging from 8 .00% to ·10.625% per annum. Safeway wishes to refinance
these Bonds and ti. · Sertes 1993 Bonds will be structured and Issued In a
"flexible " Interest rate mode and the Interest rate ts anticipated to b e
approximately 3 .00%-4.00% per annum. The City of Englewood lndustrtal
Development Revenue Refunding Bonds (Safeway Inc. Project) Sertes of 1993 In
the aggregate principal amount not to exceerl $3,ll50.000.
F1NANClAL IMPACT
The financial Impact on the •Ctty will be none as Safeway has agreed to pay
all reasonable charges tncurreu by the City or Its agents. Safeway will
Indemnify the City for any and all litigation or any other case arising from the
Issuance of the 1993 Bonds.
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Pn-,1ed on Re cvc rea Paper ~