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HomeMy WebLinkAboutOrd.995.04-15-1991BILL NO. 91--49 ORDINANCE NO. qt ORDINANCE AUTHORIZING THE CAPE GIRARDEAU (MISSOURI) PUBLIC FACILITIES AUTHORITY TO ISSUE $5,000,000 PRINCIPAL AMOUNT OF BUILDING AND EQUIPMENT LEASEHOLD REVENUE BONDS (FLOOD CONTROL PROJECT), SERIES 1991, FOR THE PURPOSE OF PROVIDING FUNDS TO PAY THE COSTS OF A FLOOD CONTROL PROJECT FOR THE CITY OF CAPE GIRARDEAU, MISSOURI; AUTHORIZING AND APPROVING CERTAIN DOCUMENTS IN CONNECTION WITH THE ISSUANCE OF SAID SERIES 1991 BONDS; AND AUTHORIZING CERTAIN OTHER ACTIONS IN CONNECTION WITH THE ISSUANCE OF SAID SERIES 1991 BONDS. WHEREAS, the City of Cape Girardeau, Missouri (the "City") is authorized pursuant to Section 70.220 of the Revised Statutes of Missouri, 1986, as amended (the "Act"), to contract and cooperate with any private person, firm, association or corporation for the planning, development, construction, acquisition or operation of any public improvement or facility; and WHEREAS, the Cape Girardeau (Missouri) Public Facilities Authority (the "Authority"), is a not-for-profit corporation duly organized and existing under The General Not for Profit Corporation Law, Chapter 355 of the Revised Statutes of Missouri, 1986, as amended, for charitable purposes, including the establishment, promotion, development, construction, ownership, operation, furnishing, equipping, maintenance and leasing of facilities and equipment for the benefit or use of the City; and WHEREAS, the City Council of the City has previously approved the formation, purposes, activities, Articles of Incorporation, Bylaws and the initial members of the Board of Directors of the Authority; and WHEREAS, the Authority has previously entered into a Mortgage, Indenture and Deed of Trust and Security Agreement dated as of August 1, 1988 (the "Original Indenture," and with all amendments and supplements thereto, the "Indenture") with The Boatmen's National Bank of St. Louis, as Trustee (the "Trustee") and Terry A. Tuschhoff, as Mortgage Trustee (the "Mortgage Trustee"), pursuant to which the Authority authorized and issued a series of Bonds of the Authority, designated Building and Equipment Leasehold Revenue Bonds, Series 1988, in the aggregate principal amount of $3,720,000 (the "Series 1988 Bonds"); and WHEREAS, in connection with the issuance of the Series 1988 Bonds, the Authority entered into a Lease Purchase Agreement dated as of August 1, 1988 (the "Original Lease Purchase Agreement," and with all amendments and supplements thereto, the "Lease Purchase Agreement"), with the City, pursuant to which the City transferred certain real estate described in the Original Lease Purchase Agreement, and the Authority leased a fire station and solid waste transfer station (the "1988 Project") to the City; and WHEREAS, the Authority entered into a First Supplemental Mortgage, Indenture and Deed of Trust and Security Agreement dated as of June 1, 1989 (the "First Supplemental Indenture") with the Trustee and the Mortgage Trustee, and pursuant to the Original Indenture and the First Supplemental Indenture the Authority issued a series of Bonds designated Building and Equipment Leasehold Revenue Bonds (Street and Sewer Improvement Projects), Series 1989 (the "Series 1989 Bonds"); and WHEREAS, in connection with the issuance of the Series 1989 Bonds, the Authority entered into a First Supplemental Lease Purchase Agreement dated as of June 1, 1989 (the "First Supplemental Lease Purchase Agreement") with the City, pursuant to which the City transferred its right, title and interest to certain real estate described in the First Supplemental Lease Purchase Agreement to the Authority, and the Authority leased certain streets and sewers (the "1989 Project") to the City; and WHEREAS, the Authority entered into a Second Supplemental Mortgage, Indenture and Deed of Trust and Security Agreement dated as of July 15, 1990 (the "Second Supplemental Indenture") with the Trustee and the Mortgage Trustee, and pursuant to the Original Indenture, the First Supplemental Indenture and the Second Supplemental Indenture the Authority issued a series of Bonds designated Building and Equipment Leasehold Revenue Bonds (Flood Control and Airport Improvement Projects), Series 1990 (the "Series 1990 Bonds"); and WHEREAS, in connection with the issuance of the Series 1990 Bonds, the Authority entered into a Second Supplemental Lease Purchase Agreement dated as of July 15, 1990 (the "Second Supplemental Lease Purchase Agreement") with the City, pursuant to which the Authority agreed to finance or reimburse the City for the costs of financing the 1990 Project (as defined therein) in exchange for rental payments from the City to the Authority; and WHEREAS, the City Council of the City finds and determines that it is necessary and desirable that the City authorize the Authority to (i) issue its Building and Equipment Leasehold Revenue Bonds (Flood Control Project), Series 1991, in the aggregate principal amount of $5,000,000 (the "Series 1991 Bonds"), for the purpose of providing funds to finance or reimburse the City for the costs of constructing, improving, -2- extending, widening, enlarging and repairing certain creek channels and a dry detention reservoir of the City (the 111991 Project"), (ii) enter into a Third Supplemental Mortgage, Indenture and Deed of Trust and Security Agreement (the "Third Supplemental Indenture") with the Trustee and the Mortgage Trustee, for the purpose of issuing and securing the Series 1991 Bonds, as therein provided and (iii) enter into a Third Supplemental Lease Purchase Agreement (the "Third Supplemental Lease Purchase Agreement") with the City, under which the City will use the proceeds of the Series 1991 Bonds to finance the 1991 Project in consideration of rental payments to the Authority in an amount sufficient, during the Lease Term (as defined in the Lease Purchase Agreement), to pay the principal of, redemption premium, if any, and interest on the Series 1991 Bonds as the same become due; and WHEREAS, the City Council of the City further finds and determines that it is necessary and desirable in connection with the issuance of the Series 1991 Bonds that the City enter into certain documents and that the City take certain other actions and approve the execution of certain other documents as herein provided; NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: Section 1. Findings and Determinations. (a) The Authority will engage in activities that are essentially public in nature. The purposes and activities of the Authority are those permitted under The General Not for Profit Authority Law, Chapter 355 of the Revised Statutes of Missouri, 1986, as amended, and the 1991 Project is located within the geographic boundaries of the City or has a substantial connection with the City; (b) The Authority is not organized for profit except to the extent of retiring indebtedness, and the Articles of Incorporation so provide; (c) The income of the Authority will not inure to any private person, and the Articles of Incorporation so provide; (d) The City will have a beneficial interest in the Authority and will have exclusive beneficial possession and use of the 1991 Project while the Series 1991 Bonds remain outstanding; (e) The City will have full legal title to the 1991 Project upon payment in full of the Series 1991 Bonds; and (f) The Authority will be performing activities which otherwise would be the responsibility of the City. Section 2. Approval of Issuance of the Series 1991 Bonds by the Authority. The City hereby approves the issuance and sale by the Authority of its Building and Equipment Leasehold -3- Revenue Bonds (Flood Control Project), Series 1991, in the aggregate principal amount of $5,000,000, for the purpose of providing funds to pay the costs of acquiring, constructing, improving, extending, widening and repairing the 1991 Project. The Series 1991 Bonds shall be issued and secured pursuant to the Original Indenture, the First Supplemental Indenture, the Second Supplemental Indenture and the herein approved Third Supplemental Indenture. The Series 1991 Bonds shall be dated April 15, 1991, shall mature on March 1 in the years and in the respective amounts and shall bear interest from the date thereof payable semiannually on March 1 and September 1 in each year, beginning September 1, 1991, at the respective rates per annum, as follows: Maturity Principal Interest March 1 Amount Rate 1992 $ 430,000 5.100% 1993 420,000 5.250 1994 440,000 5.400 1995 465,000 5.550 1996 490,000 5.700 1997 520,000 5.850 1998 550,000 6.000 1999 575,000 6.125 2000 1,110,000 6.250 The Series 1991 Bonds shall be sold to the hereinafter defined Underwriters at a purchase price of 98.852% of the principal amount thereof ($4,942,600.00), plus accrued interest from April 15, 1991, to the date of delivery of the Series 1991 Bonds. The Series 1991 Bonds shall be in such denominations, shall be in such forms, shall be subject to redemption prior to maturity, shall have such other terms and provisions, and shall be issued, executed and delivered in such manner subject to such provisions, covenants and agreements, as are set forth in the Indenture. Section 3. Limited Obligations. The Series 1991 Bonds and the interest thereon shall be limited obligations payable solely out of the rents, revenues and receipts received by the Authority from the City pursuant to the herein authorized Third Supplemental Lease Purchase Agreement. The Series 1991 Bonds and the interest thereon shall not constitute a debt or liability of the City, or of the State of Missouri or of any political subdivision thereof, and the Series 1991 Bonds shall not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction. The payment of the principal of, premium, if any, and interest on the Series 1991 Bonds shall be further secured by a mortgage of the 1988 Project and the 1989 Project under the Indenture. The payment of the principal of and interest on the Series 1991 Bonds when due will be guaranteed under the herein approved 1991 Bond Insurance Policy issued by Financial Guaranty insurance Company. Section 4. Ratification of Bond Purchase Agreement. The City hereby ratifies and confirms the execution of the Bond Purchase Agreement dated April 4, 1991 (the "Bond Purchase Agreement"), among the Authority, the City and A.G. Edwards & Sons, Inc. and Zahner and Company (the "Underwriters"), under which the Authority agreed to sell the Series 1991 Bonds to the Underwriters upon the terms and conditions as set forth in the Bond Purchase Agreement. Section 5. Authorization of Third Supplemental Lease Purchase Agreement. The City is hereby authorized to enter into the Third Supplemental Lease Purchase Agreement dated as of April 15, 1991 (the "Third Supplemental Lease Purchase Agreement"), between the Authority and the City, under which the City shall construct, extend, improve, widen, repair and enlarge the 1991 Project upon the terms and conditions as set forth in said Third Supplemental Lease Purchase Agreement, which shall be substantially in the form presented to and approved by the City Council and attached as Exhibit A, with such changes therein as shall be approved by the officers of the City executing such document, such officers' signatures thereon being conclusive evidence of their approval thereof. Section 6. Approval of Bond Insurance Policy. The City hereby approves the Municipal Bond New Issue Insurance Policy to be dated the date of delivery of the Series 1991 Bonds, to be issued by Financial Guaranty Insurance Company, New York, New York, which policy will unconditionally guarantee payment of the principal of and interest on the Series 1991 Bonds as the same become due. Section 7. Approval of Third Supplemental Indenture. The City hereby approves the Third Supplemental Mortgage, Indenture and Deed of Trust and Security Agreement dated as of April 15, 1991 (the "Third Supplemental Indenture"), among the Authority, The Boatmen's National Bank of St. Louis, St. Louis, Missouri, as Trustee (the "Trustee") and Terry A. Tuschhoff, as Mortgage Trustee (the "Mortgage Trustee"), pursuant to which the Series 1991 Bonds shall be issued and the Authority shall pledge and assign the rents, revenues and receipts received pursuant to the Third Supplemental Lease Purchase Agreement to the Trustee for the benefit of and security of the holders of the Series 1991 Bonds upon the terms and conditions as set forth in the Third Supplemental Indenture, which shall be in substantially the form approved by the City Council of the City at this meeting and attached to this Ordinance as Exhibit B (copies of which shall be filed with the records of the City). -5- Section 8. Official Statement. The Preliminary Official Statement, attached hereto as Exhibit C, is hereby ratified and approved and the final Official Statement, attached hereto as Exhibit D, is hereby adopted, and the Mayor of the City is hereby authorized to execute the Official Statement and the hereinafter described Underwriters are hereby authorized to use the Official Statement in connection with the sale of the Series 1991 Bonds. Section 9. Execution of Documents. The City is hereby authorized to enter into and the Mayor or the Mayor Pro Tempore of the City Council of the City are hereby authorized and directed to execute and deliver, for and on behalf of and as the act and deed of the City, the Third Supplemental Lease Purchase Agreement and such other documents, certificates and instruments as may be necessary or desirable to carry out and comply with the intent of this Ordinance. Section 10. Exception from Rebate Requirements. The City makes the following representations with respect to the Series 1991 Bonds in connection with the exception for small governmental units from the arbitrage rebate requirements under Section 148(f)(4)(C) of the Internal Revenue Code of 1986, as amended (the "Code"): (a) The Authority is issuing the Series 1991 Bonds on behalf of the City pursuant to Revenue Procedure 82-26; (b) the City has general taxing powers; (c) 95% or more of the net proceeds of the Series 1991 Bonds are to be used for local governmental activities of the City; and (d) the aggregate face amount of all tax-exempt bonds (other than private activity bonds) to be issued by the Authority, the City and all entities subordinate to the City during calendar year 1991, including the Series 1991 Bonds, is not reasonably expected to exceed $5,000,000. Pursuant to Section 148(f)(4)(C)(iv) of the Code, the City hereby allocates $5,000,000 of its $5,000,000 limitation for calendar year 1991 to the Authority. Section 11. Designation of Bonds as Qualified Tax Exempt Obligations. The City hereby designates the Series 1991 Bonds as "qualified tax-exempt obligations" as such term is defined in Section 265(b)(3) of the Code. In addition, the City hereby represents that: (a) the reasonably anticipated amount of tax-exempt obligations (other than private activity bonds) which will be issued by or on behalf of the Authority, the City and all entities subordinate to the City during calendar year 1991 does not exceed $10,000,000; and MM. (b) the aggregate principal amount of obligations designated by the City to be "qualified tax-exempt obligations" during calendar year 1991, including the Series 1991 Bonds, does not exceed $10,000,000. The Mayor is hereby authorized to take such other action as may be necessary to make effective the designation in this Section. Section 12. Further Authority. The officers, agents and employees of the City, including the Mayor or Mayor Pro Tempore and City Clerk or Deputy City Clerk, shall be, and they hereby are, authorized and directed to execute all documents and take such actions as they may deem necessary or advisable in order to carry out and perform the purposes of this Ordinance, and to carry out, comply with and perform the duties of the City with respect to the Third Supplemental Lease Purchase Agreement and the Bond Purchase Agreement, to make alterations, changes or additions in the foregoing agreements, statements, instruments and other documents herein approved, authorized and confirmed which they may approve, and the execution or taking of such action shall be conclusive evidence of such necessity or advisability. Section 13. Transfer_ of 1988 Proiect and 1989 Project to City when Bonds are Paid The City Council of the City hereby declares that the City will accept from the Authority all of its right, title and interest to the 1988 Project and the 1989 Project after all the Bonds have been paid or payment therefor has been provided for in accordance with the Indenture. Section 14. Effective Date. This Ordinance shall take effect and be in full force ten (10) days after its adoption by the City Council of the City. Adopted by the City Council of Cape Girardeau, Missouri this 15th day of April, 1991. Mayor (Seal) ATTEST: e uty City C1 rk -7-