WHEREAS, the Colorado Springs Urban Renewal Authority (the “Authority” or the “Borrower”) is a public body corporate and politic duly established by the City of Colorado Springs, Colorado (the “City”) under and pursuant to the laws of the State of Colorado (the “State”) and a resolution adopted by the City Council of the City of Colorado Springs, all under and pursuant to the Colorado Urban Renewal Law, constituting part 1 of article 25 of title 31, Colorado Revised Statutes (the “Act”); and
WHEREAS, the Authority is authorized to transact business and exercise its powers as an urban renewal authority, including the power and authority to borrow money and to apply for and accept loans to accomplish the purposes, all under and pursuant to the Act;
WHEREAS, an urban renewal plan, known as the “Ivywild Neighborhood Urban Renewal Plan” approved June 28, 2011 (the “Urban Renewal Plan”) has been duly and regularly approved by the City Council of the City for an urban renewal project (the “Urban Renewal Project”) under the Act; and
WHEREAS, as contemplated by the Urban Renewal Plan, the Authority and the City have agreed to enter into a Cooperation Agreement dated January 24, 2012 (the “City Cooperation Agreement”), to implement the allocation of certain incremental sales tax revenues, in accordance with the Plan and the Act; and
WHEREAS, in furtherance of the foregoing, the Authority has determined to enter into an Urban Renewal Agreement for Redevelopment of Ivywild Renewal Area (the “Development Agreement”) with Ivywild School Inc. (the “Developer”) to provide for the carrying out of a portion of the Urban Renewal Project, including the Authority’s undertaking to fund certain eligible public costs specified in Exhibit B thereof (the “Capital Project Costs”); and
WHEREAS, for the purpose of funding the Capital Project Costs, the Authority has determined that it is in the best interest of the Authority and the citizens and taxpayers of the City to incur indebtedness in the form of a loan in the principal amount of $778,000 to be advanced to the Authority (the “Loan”) by The Culebra Properties Limited Liability Company (the “Lender”), in accordance with a Loan Agreement between the Authority and the Lender (the “Loan Agreement”), and to further evidence the Authority’s obligation to repay the same with interest thereon from Pledged Revenue (as defined in the Loan Agreement) by the execution and delivery of a promissory note in the form attached to the Loan Agreement (the “Note”); and
WHEREAS, the net proceeds of the Loan are anticipated to be held under and disbursed in accordance with a Project Fund Escrow Agreement (the “Project Fund Escrow Agreement”) among the Authority, the Lender and Wells Fargo Bank National Association, in its capacity as escrow agent thereunder; and
WHEREAS, the Authority’s authority to execute and deliver the Note (as defined in the Loan Agreement) and the Loan Agreement and perform its obligations hereunder is authorized pursuant to this Resolution, the Act, the provisions of Title 11, Article 57, Part 2, C.R.S. (the “Supplemental Public Securities Act”) and all other laws thereunto enabling; and
WHEREAS, the Loan shall constitute a special revenue obligation of the Authority payable from and secured solely by the Pledged Revenue, subject to the limitations set forth in the Loan Agreement; and
WHEREAS, the Board specifically elects to apply the provisions of the Supplemental Act to the Loan Agreement and the Note; and
WHEREAS, in addition to this Resolution, the Board has been presented with substantially final drafts of the following documents: (i) the Loan Agreement (including a form of the Note); (ii) the City Cooperation Agreement; (iii) the Project Fund Escrow Agreement; and (iv) the Development Agreement; and
WHEREAS, there is no known conflict of interest of any member of the Board of Commissioners of the Authority.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF COLORADO SPRINGS URBAN RENEWAL AUTHORITY:
Section 1. Definitions. Unless the context indicates otherwise, as used herein, capitalized terms shall have the meanings ascribed by the preambles hereto and the Loan Agreement, and the following capitalized terms shall have the respective meanings set forth below:
“Bond Counsel” means Kutak Rock LLP.
“Closing Date” means March 15, 2012, or such later date as may be determined by the Chairperson of the Board to be necessary and convenient to accomplishing the purposes hereof.
“Project Documents” means, collectively, this Resolution, the Loan Agreement, the Note, the Cooperation Agreement, the Project Fund Escrow Agreement, the Development Agreement and the Tax Certificate.
“Loan Agreement” means the Loan Agreement to be dated the Closing Date and executed by and between the Authority, as Borrower and the Lender.
“Note” means the promissory note executed by the Authority in favor of the Lender to evidence its repayment obligations under the Loan Agreement, to be dated the Closing Date.
“Resolution” means this Resolution which authorizes the execution and delivery of the Project Documents.
“Tax Certificate” means that certain Tax Compliance Certificate executed by the Authority, and dated the Closing Date, setting forth certain representations and covenants of the Authority required to establish the tax status of interest on the Loan.
Section 2. Approval, Ratification and Authorization of Project Documents and Payment of Transaction Costs. The Project Documents are incorporated herein by reference and are hereby approved. The Authority shall enter into and perform its obligations under the Project Documents in the form of such documents presented at or prior to this meeting, with such changes as are made pursuant to this Section 2 and are not inconsistent herewith (including specifically the provisions of Section 5 hereof). The Chair, any Vice Chair and the Executive Director of the Authority are hereby authorized and directed to execute and attest the Project Documents, and the Chair, any Vice Chair and the Executive Director of the Authority, and other appropriate officers of the Authority are further authorized to execute and authenticate such other documents, instruments, or certificates as are deemed necessary or desirable in order to execute, deliver, issue, secure, sell, deliver and administer the Loan Agreement, and the Note. Payment of the transaction costs set forth in the Loan Agreement from Loan proceeds is hereby authorized. The net proceeds of the Loan shall be applied to accomplish the payment of the Capital Project Costs and certain administrative fees of the Authority, as provided in the Loan Agreement and the Project Fund Escrow Agreement. The Project Documents and such other documents are to be executed in substantially the form presented at or prior to this meeting of the Board, provided that such documents may be completed, corrected, or revised as deemed necessary or convenient and approved by the officer of the Authority executing the same and by general counsel to the Authority in order to carry out the purposes of this Resolution, including to comport with the terms and conditions of the Loan Agreement, subject to the limitations of Section 5 hereof, such approval to be evidenced by their execution thereof. To the extent any Project Document has been executed prior to the date hereof, then said execution is hereby ratified and affirmed. Copies of all of the Project Documents shall be delivered, filed, and recorded as provided therein.
Upon execution of the Project Documents, the covenants, agreements, recitals, and representations of the Authority therein shall be effective with the same force and effect as if specifically set forth herein, and such covenants, agreements, recitals, and representations are hereby adopted and incorporated herein by reference.
The appropriate officers of the Authority are hereby authorized and directed to prepare and furnish to any interested person certified copies of all proceedings and records of the Authority relating to the Project Documents and such other affidavits and certificates as may be required to show the facts relating to the authorization and issuance thereof.
The officers of the Authority are authorized to take all other actions which they deem necessary or reasonably required in conformity with the Act to accomplish the transactions contemplated by the Loan Agreement and the Project Documents, and for carrying out, giving effect to and consummating the transactions contemplated by this Resolution, the Loan Agreement and the Project Documents including, without limitation, the execution and delivery of any necessary or appropriate closing and tax documents or other documents necessary or desirable in connection with the issuance, sale and delivery of the Loan Agreement and Note and the execution and delivery of the Project Documents.
The execution of any instrument by the Chair, any Vice Chair and the Executive Director of the Authority or other appropriate officer of the Authority in connection with the issuance, sale, execution, delivery or administration of the Loan Agreement and the Note not consistent herewith shall be conclusive evidence of the approval by the Authority of such instrument in accordance with the terms thereof and hereof.
Section 3. Purpose of and Security for Loan Agreement and Note. In accordance with the Constitution of the State of Colorado; the Act; the Supplemental Act; and all other laws of the State of Colorado thereunto enabling, there shall be executed and delivered the Loan Agreement, and there shall be issued the Note, for the purpose of funding Capital Project Costs, paying the costs of issuance of the Loan Agreement and certain administrative fees of the Authority, all as further provided in the Loan Agreement. The Loan Agreement and the Note shall constitute special revenue obligations of the Authority as provided in the Loan Agreement, secured by the Pledged Revenue.
Section 4. Loan Details. The principal amount of the Authority’s obligation under the Loan Agreement and the Note shall be $778,000. The Loan and the Note shall mature, be payable, be subject to optional prepayment prior to maturity, and shall bear interest as provided in the Loan Agreement.
Section 5. Permitted Amendments to Resolution. Except as otherwise provided herein, the Authority may amend this Resolution in the same manner, and subject to the same terms and conditions, as apply to an amendment or supplement to the Loan Agreement.
Section 6. Appointment of Authorized Person. The Chairperson of the Board or Executive Director of the Authority is hereby appointed as the Authorized Person for the Authority, as defined in the Loan Agreement. A different Authorized Person may be appointed by resolution adopted by the Board and a certificate filed with the Lender.
Section 7. Disposition and Investment of Proceeds; Tax Covenants.
(a) The Authority hereby designates the Loan as a qualified tax exempt obligation within the meaning of Section 265(b)(3) of the Code. The Authority covenants that the aggregate original issue amount of all tax exempt obligations issued by the Authority, together with governmental entities which derive their issuing authority from the Authority or are subject to substantial control by the Authority, shall not be more than $10,000,000 during calendar year 2012. The Authority recognizes that such tax exempt obligations include notes, leases, loans and warrants, as well as bonds. The Authority further recognizes that any bank, thrift institution or other financial institution that owns the Loan will rely on the Authority’s designation of the Loan as a qualified tax exempt obligation for the purpose of avoiding the loss of 80% of any otherwise available interest deduction attributable to such institution’s tax exempt holdings.
(b) The proceeds of the Loan shall be used for the purposes aforesaid. All or any portion of the Loan proceeds may be temporarily invested or reinvested, pending such use, in securities or obligations which are both lawful investments and which are Permitted Investments (as defined in the Loan Agreement) but only in compliance with the terms of the Tax Certificate. It is hereby covenanted and agreed by the Authority that it will not make, or permit to be made, any use of the proceeds of the Loan, or of any moneys treated as proceeds of the Loan within the meaning of the Code and applicable regulations, rulings, and decisions, or take, permit to be taken, or fail to take any action, which would cause the Loan to be an “arbitrage bond” within the meaning of Section 148 of the Code, or would adversely affect the exclusion from gross income of the interest on the Loan under Section 103 of the Code and applicable regulations, rulings, and decisions.
(c) In addition to the other funds and accounts created pursuant hereto, the Authority shall establish and maintain hereafter a fund separate from any other fund or account established and maintained under the Loan Agreement designated the “Colorado Springs Urban Renewal Authority, 2012 Loan, Rebate Fund” (the “Rebate Fund”). There shall be deposited in the Rebate Fund such amounts as are required to be deposited therein pursuant to the Tax Certificate. All money at any time deposited in the Rebate Fund shall be held by the Authority in trust, to the extent required to satisfy the rebate requirements of the Code, for payment to the United States of America. All amounts required to be deposited into or on deposit in the Rebate Fund shall be governed exclusively by this Resolution and by the Tax Certificate (which is incorporated herein by reference).
(d) The Authority will at all times do and perform all acts permitted by law that are necessary in order to assure that interest paid on the Loan shall not be includible in gross income for federal income tax purposes under the Code or any other valid provision of law. In particular, but without limitation, the Authority represents, warrants and covenants to comply with the following rules unless it receives an opinion of bond counsel stating that such compliance is not necessary: (i) gross proceeds of the Loan will not be used in a manner that will cause the Loan to be considered a “private activity bond” within the meaning of the Code; (ii) the Loan is not and will not become directly or indirectly “federally guaranteed”; and (iii) the Authority will timely file Internal Revenue Form 8038-G which shall contain the information required to be filed pursuant to Section 149(e) of the Code.
(e) The Authority will comply with the Tax Certificate, including but not limited by the provisions thereof regarding the application and investment of Loan proceeds, the calculations, the deposits, the disbursements, the investments and the retention of records described therein.
Any funds remaining in the Rebate Fund after payment in full of all of the Loan shall be withdrawn and retained by the Authority to the extent that it does not conflict with the terms of the Tax Certificate.
Section 8. Costs and Expenses. All costs and expenses incurred in connection with the execution and delivery of the Project Documents shall be paid either from the proceeds of the Loan or from legally available moneys of the Authority, or from a combination thereof, and such moneys are hereby appropriated for that purpose.
Section 9. Pledge of Revenues. The creation, perfection, enforcement, and priority of the revenues pledged to secure or pay the Loan Agreement and the Note as provided herein and in the Loan Agreement and the Note shall be governed by § 1157-208 of the Supplemental Act, this Resolution, the Loan Agreement, and the Note. The revenues pledged for the payment of the Loan Agreement and the Note, as received by or otherwise credited to the Authority or the Lender shall immediately be subject to the lien of such pledge without any physical delivery, filing, or further act. The lien of such pledge on the revenues of the Authority and the obligation to perform the contractual provisions made herein and in the Loan Agreement shall have priority over any or all other obligations and liabilities of the Authority. The lien of such pledge shall be valid, binding, and enforceable as against all persons having claims of any kind in tort, contract, or otherwise against the Authority irrespective of whether such persons have notice of such liens.
Section 10. No Recourse against Officers and Agents. Pursuant to § 11-57209 of the Supplemental Act, if a member of the Board of Commissioners, or any officer or agent of the Authority acts in good faith, no civil recourse shall be available against such member, officer, or agent for payment of the principal, interest or prepayment penalties on the Loan Agreement and the Note. Such recourse shall not be available either directly or indirectly through the Board of Commissioners or the Authority, or otherwise, whether by virtue of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of the Loan Agreement and the Note, the Lender specifically waives any such recourse.
Section 11. Conclusive Recital. Pursuant to § 11-57210 of the Supplemental Act, the Loan Agreement and the Note shall contain a recital that they are issued pursuant to certain provisions of the Supplemental Act. Such recital shall be conclusive evidence of the validity and the regularity of the issuance of the Loan Agreement and the Note after their delivery for value.
Section 12. Limitation of Actions. Pursuant to § 11-57212, C.R.S., no legal or equitable action brought with respect to any legislative acts or proceedings in connection with the execution and delivery of the Loan Agreement and the authorization or issuance of the Note shall be commenced more than thirty days after the authorization of such securities.
Section 13. Ratification and Approval of Prior Actions. All actions heretofore taken by the officers of the Authority and the members of the Board of Commissioners, not inconsistent with the provisions of this Resolution, relating to the authorization, sale, issuance, execution and delivery of the Project Documents, or the execution of any documents in connection with the Project Documents, are hereby ratified, approved, and confirmed.
Section 14. Resolution Irrepealable. After the execution and delivery of the Loan Agreement, this Resolution shall constitute a contract between the Lender and the Authority and shall be and remain irrepealable until the Loan Agreement and the interest accruing thereon shall have been fully paid, satisfied, and discharged, as herein provided and as provided in the Loan Agreement.
Section 15. Repealer. All orders, bylaws, and resolutions of the Authority, or parts thereof, inconsistent or in conflict with this Resolution, are hereby repealed to the extent only of such inconsistency or conflict.
Section 16. Severability. If any section, paragraph, clause, or provision of this Resolution 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 Resolution, the intent being that the same are severable.
Section 17. Effective Date. This Resolution shall take effect immediately upon its adoption and approval.
BE IT RESOLVED BY THE COMMISSIONERS OF THE URBAN RENEWAL AUTHORITY OF THE CITY OF COLORADO SPRINGS, COLORADO, THAT:
The Ivywild School Project Redevelopment Agreement, Ivywild School Project Loan Agreement and the Sales Tax Cooperation Agreement are hereby approved.
Motion was made by Commissioner Noyes, seconded by Commissioner Olson, that Resolution #1755 be adopted.
Upon a Call for the Vote, the following Commissioners voted: