CITY of ALBUQUERQUE
SIXTEENTH COUNCIL
COUNCIL BILL NO. ___________________ ENACTMENT NO. __________________
SPONSORED BY:
1 ORDINANCE
2 RELATING TO THE CITY OF ALBUQUERQUE, NEW MEXICO CONVENTION CENTER
3 FINANCING; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT
4 BY AND BETWEEN THE CITY AND THE NEW MEXICO FINANCE AUTHORITY IN THE
5 PRINCIPAL AMOUNT OF $6,000,000 SECURED BY CERTAIN HOSPITALITY FEE
6 REVENUES FOR THE PURPOSE OF DEFRAYING THE COST OF EQUIPPING AND
7 FURNISHING THE ALBUQUERQUE CONVENTION CENTER IN THE CITY OF
8 ALBUQUERQUE, NEW MEXICO; PROVIDING FOR THE PAYMENT OF PRINCIPAL OF AND
9 INTEREST ON THE LOAN AGREEMENT; PROVIDING FOR THE COLLECTION OF
10 CERTAIN HOSPITALITY FEES; APPROVING THE FORM OF AND OTHER DETAILS
11 CONCERNING THE LOAN AGREEMENT; RATIFYING ACTION PREVIOUSLY TAKEN;
12 REPEALING ALL ACTIONS INCONSISTENT WITH THIS ORDINANCE; AUTHORIZING THE
13 TAKING OF OTHER ACTIONS IN CONNECTION WITH THE EXECUTION AND DELIVERY
14 OF THE LOAN AGREEMENT AND OTHER AGREEMENTS; AND DECLARING AN
15 EMERGENCY.
16 Capitalized terms used in the following preambles are defined in Section 1 of this Debt
17 Ordinance, unless the context requires otherwise.
18 WHEREAS, the City is a legally and regularly created, established, organized and
19 existing municipal corporation under the general laws of the State and its home rule charter; and
20 WHEREAS, the City has Home Rule Powers; and
21 WHEREAS, the City owns and currently provides for the operation and maintenance of
22 the Convention Center; and desires to further furnish and equip the Convention Center; and
23 WHEREAS, pursuant to Sections 3-38A-1 et seq., NMSA 1978 and City Ordinance
1 Enactment No. __________, the City has imposed a hospitality fee on gross taxable rent paid
2 for lodging within the City; and
3 WHEREAS, on the date of adoption of this Debt Ordinance, no portion of the Hospitality
4 Fee Revenues has been pledged to the payment of any other obligations; and
5 WHEREAS, the City desires to execute and deliver the Loan Agreement in the
6 aggregate principal amount of $6,000,000 to pay a portion of the cost and expenses of the
7 Project; and
8 WHEREAS, the Loan Agreement shall be executed and delivered pursuant to the Act;
9 and
10 WHEREAS, the obligations created under the Loan Agreement shall be secured by a
11 first (but not an exclusive first) lien on the Hospitality Fee Revenues; and
12 WHEREAS, the Council has determined that it is necessary and in the best interests of
13 the City and the residents of the City that the Loan Agreement be authorized pursuant to the
14 Act; and
15 WHEREAS, the Act provides that any law which authorizes the pledge of any or all of
16 the Hospitality Fee Revenues to the payment of any revenue bonds issued pursuant to the Act
17 or which affects the Hospitality Fee Revenues, or any law supplemental thereto or otherwise
18 appertaining thereto, shall not be repealed or amended or otherwise directly or indirectly
19 modified in such a manner as to impair adversely any such outstanding revenue bonds,
20 including the Loan Agreement, unless such outstanding revenue bonds, including the Loan
21 Agreement, have been discharged in full or provision has been fully made therefor; and
22 WHEREAS, the City is authorized by the Act to enter into the Loan Agreement to
23 accomplish the Project; and
24 WHEREAS, there has been on deposit with the City Clerk and presented to the City
25 Council the proposed form of Loan Agreement; and
26 WHEREAS, all required authorizations, consents or approvals of any State
27 governmental body, agency or authority for the authorization, execution and delivery of the Loan
28 Agreement which are required to have been obtained by the date of the adoption of the Debt
29 Ordinance have been obtained, and which will be required to be adopted prior to the Closing
30 Date, will have been obtained by that Closing Date.
31 BE IT ORDAINED BY THE COUNCIL, THE GOVERNING BODY OF THE CITY OF
2
1 ALBUQUERQUE:
2 Section 1. DEFINITIONS AND RULES OF CONSTRUCTION.
3 (A) DEFINITIONS. As used in the Debt Ordinance, the following terms have
4 the meanings specified, unless the context clearly requires otherwise:
5 ACT. Sections 3-31-1 to 3-31-12 and 3-38A-1 to 3-38A-12 NMSA 1978, as
6 amended, the City Charter, the Home Rule Powers and enactments of the Council relating to
7 the execution and delivery of the Loan Agreement made by resolution or ordinance, including
8 the Debt Ordinance.
9 AUTHORIZED OFFICER. The City’s Mayor, Chief Administrative Officer,
10 Director of the Department of Finance and Administrative Services, City Treasurer, or other
11 officer or employee of the City when designated by a certificate signed by the Mayor of the City
12 from time to time.
13 BOND COUNSEL. An attorney at law or a firm of attorneys, designated by the
14 City, of nationally recognized standing in matters pertaining to the issuance of bonds issued by
15 states and their political subdivisions.
16 BOND INSURANCE POLICY. A municipal bond insurance policy issued by a
17 Credit Source insuring the payment when due of the principal of and interest on Hospitality Fee
18 Obligations and any other Insured Obligations.
19 BUSINESS DAY. Any day other than (i) a Saturday or Sunday, or (ii) any day in
20 which the offices of the City or the offices of banks located in the State are authorized or
21 required to remain closed.
22 CITY. The City of Albuquerque, in the County of Bernalillo and State of New
23 Mexico.
24 CITY CHARTER. The City Charter of the City adopted pursuant to the laws of
25 the State at a special election on June 29, 1971 and amended thereafter from time to time.
26 CLOSING DATE. The date on which the Loan Agreement is executed and
27 delivered.
28 COMPLETION DATE. The date of completion of the Project.
29 CONVENTION CENTER. The Albuquerque Convention Center located at 401
30 2nd Street NW, including related parking.
31 COUNCIL. The governing body in which is vested the legislative power of the
3
1 City.
2 COUNSEL. An attorney at law (who may be counsel to the City).
3 CREDIT FACILITY. A letter of credit, line of credit, Bond Insurance Policy or
4 Reserve Fund Insurance Policy, guaranty or similar agreement provided by a Credit Source
5 whose senior unsecured debt is rated no lower than “AAA” by Moody’s and S&P to the extent
6 each such rating agency is then rating Hospitality Fee Obligations to provide support to pay the
7 purchase price of, or the payment when due of the principal of and interest on, Hospitality Fee
8 Obligations.
9 CREDIT SOURCE. Any bank, insurance company or other financial institution
10 which provides a Credit Facility for a series of Hospitality Fee Obligations .
11 DEBT ORDINANCE. This ordinance, being City Sixteenth Council Bill
12 No.____________, as amended or supplemented from time to time.
13 DEBT SERVICE REQUIREMENTS. With respect to Hospitality Fee Obligations,
14 as applicable, and for any given period, the sum of: (1) the amount required to pay the interest,
15 or to make reimbursements for payments of interest, becoming due on Hospitality Fee
16 Obligations during that period, plus (2) the amount required to pay the principal or accreted
17 value, or to make reimbursements for the payment of principal or accreted value, becoming due
18 on Hospitality Fee Obligations during that period, whether at maturity, an accretion term date or
19 upon mandatory sinking fund redemption dates, plus (3) the periodic payments required to be
20 made by the City pursuant to a qualified exchange agreement minus (4) the periodic payments
21 to be received by the City pursuant to a qualified exchange agreement. No payments required
22 for any Hospitality Fee Obligations which may be tendered or otherwise presented for payment
23 at the option or demand of the owners or holders of Hospitality Fee Obligations, or which may
24 occur because of the exercise of an option by the City, or which may otherwise become due by
25 reason of any other circumstance or contingency, including acceleration or exchange
26 termination payments, which constitute other than regularly scheduled payments of principal,
27 accreted value, interest or other regularly scheduled payments on Hospitality Fee Obligations,
28 shall be included in any computation of Debt Service Requirements for that period.
29 Unless, at the time of computation of Debt Service Requirements, payments on
30 Hospitality Fee Obligations are owed to, or Hospitality Fee Obligations are owned or held by,
31 the provider of a Credit Facility pursuant to the provisions of that Credit Facility, the computation
4
1 of interest for the purposes of this definition shall be made without considering the interest rate
2 payable pursuant to a Credit Facility.
3 In any computation of Debt Service Requirements relating to the issuance of additional
4 Hospitality Fee Obligations, there shall be deducted from that computation of Debt Service
5 Requirements amounts and investments which are irrevocably committed to make designated
6 payments on the Hospitality Fee Obligations during the applicable period, including, without
7 limitation money on deposit in any debt service account, amounts on deposit in an escrow
8 account irrevocably committed to make designated payments on the Hospitality Fee
9 Obligations, during the applicable period and earnings on such investments which are payable
10 during the applicable period.
11 For the purpose of the definition of Debt Service Requirements, the accreted value of
12 capital appreciation bonds becoming due shall be included in the calculation of accrued and
13 unpaid and accruing interest and principal only from and after the date which is one year prior to
14 the date on which the accreted value becomes payable. In addition, the definition of Debt
15 Service Requirements shall include any Expense Component.
16 ELECTRONIC MEANS. Telephone, telecopy, telegraph, facsimile transmission
17 or any other similar means of electronic communication. Any communication by telephone as
18 an Electronic Means shall promptly be confirmed in writing, which may be by one of the other
19 means of electronic communication listed in this definition.
20 EXCHANGE ACT. Section 6-18-8.1 NMSA 1978, as amended and
21 supplemented.
22 EXPENSE ACCOUNT. The Expense Account created in the Hospitality Fee
23 Loan Agreement pursuant to the Indenture, to be held and administered by the Trustee to pay
24 Expenses.
25 EXPENSE COMPONENT. The portion of the Loan Agreement Payment paid as
26 payment of Expenses relating to the administration of the Loan Agreement, to be set forth in the
27 Loan Agreement.
28 EXPENSES. The cost of execution and delivery of the Loan Agreement and
29 issuance of NMFA Bonds, if any, and periodic and regular fees and expenses incurred by the
30 NMFA in administering the Loan Agreement.
31 FISCAL YEAR. The twelve month period beginning on the first day of July of
5
1 each year and ending on the last day of June of the next succeeding year, or any other twelve
2 month period, which the City or other appropriate authority may establish as the fiscal year for
3 the City.
4 FITCH. Fitch, Inc., its successors and their assigns, and, if such corporation is
5 dissolved or liquidated or no longer performs the function of a securities rating agency, any
6 other nationally recognized securities rating agency designated by the City.
7 GOVERNMENT OBLIGATIONS. Direct obligations of, or obligations the
8 principal of and interest on which are unconditionally guaranteed by, the United States of
9 America or certificates or receipts established by the United States Government or its agencies
10 or instrumentalities representing direct ownership of future interests or principal payments on
11 direct obligations of, or obligations fully guaranteed by, the United States of America or any of
12 its agencies or instrumentalities the obligations of which are backed by the full faith and credit of
13 the United States, which obligations are held by a custodian in safekeeping on behalf of the
14 holders of such receipts.
15 HOME RULE POWERS. The authority of the City to exercise legislative powers
16 given pursuant to the City Charter adopted by the City pursuant to Article X, Section 6 of the
17 State Constitution.
18 HOSPITALITY FEE BOND FUND. The “City of Albuquerque Hospitality Fee
19 Bond Fund” established in Section 9 hereof.
20 HOSPITALITY FEE LOAN. The $6,000,000 loan evidenced by the Loan
21 Agreement.
22 HOSPITALITY FEE OBLIGATIONS. All bonds and other similar indebtedness
23 payable solely or primarily from Hospitality Fee Revenues, including, without limitation, the Loan
24 Agreement.
25 HOSPITALITY FEE PROGRAM ACCOUNT. The Program Account established
26 in the name of the City and administered by the Trustee pursuant to the Indenture.
27 HOSPITALITY FEE REVENUE FUND. The “City of Albuquerque Hospitality Fee
28 Revenue Fund” established in Section 9 of the Debt Ordinance.
29 HOSPITALITY FEE REVENUES. The revenues received by the City pursuant to
30 the Hospitality Fee Act from the hospitality fee imposed by City Ordinance Enactment No.
31 _____, imposed on gross taxable rent for lodging within the City in an amount (at the time of the
6
1 adoption of the Debt Ordinance) equal to one percent (1%) of the gross taxable rent paid for
2 lodging (not including State or local gross receipts tax) collected by the City from persons
3 furnishing such lodging.
4 INDENTURE. The General Indenture of Trust and Pledge between the NMFA
5 and Sunwest Bank of Albuquerque, N.A., Albuquerque, New Mexico, dated as of June 1, 1995
6 (which indenture has been assigned to Bank of Albuquerque, N.A., Albuquerque, New Mexico
7 as successor trustee) and all supplemental indentures thereto.
8 INDEPENDENT ACCOUNTANT. Any certified public accountant, registered
9 accountant, or firm of accountants duly licensed to practice and practicing as such under the
10 laws of the State, appointed and paid by the City who (a) is, in fact, independent and not under
11 the domination of the City, (b) does not have any substantial interest, direct or indirect, with the
12 City, and (c) is not connected with the City as an officer or employee of the City, but who may
13 be regularly retained to make annual or similar audits of the books or records of the City.
14 INSURED BANK. Any federally or state-chartered savings and loan association
15 or federally or state-chartered commercial bank, the deposits of which are insured by the
16 Federal Deposit Insurance Corporation and which has, or is the lead bank of a parent holding
17 company which has, combined capital, surplus and undivided profits of not less than
18 $10,000,000.
19 INSURED OBLIGATIONS. Hospitality Fee Obligations insured by a Bond
20 Insurance Policy or payable with the proceeds of another Credit Facility.
21 INTEREST PAYMENT DATE. January 1 and July 1 of each year (or if such day
22 is not a Business Day, then the next succeeding Business Day.
23 INTEREST COMPONENT. The portion of the Loan Agreement Payment paid as
24 interest on the Hospitality Fee Loan Agreement, to be set forth in the Loan Agreement.
25 LOAN AGREEMENT. The Loan Agreement entered into between the NMFA and
26 the City to provide for a portion of the financing of the Project with the Loan and which requires
27 Loan Agreement Payments by the City to the NMFA.
28 LOAN AGREEMENT PAYMENTS. Collectively, the Principal Component, the
29 Interest Component and the Expense Component to be paid by the City as payment on the
30 Loan Agreement, to be set forth in the Loan Agreement.
31 MOODY’S. Moody’s Investors Service, Inc., a corporation organized and
7
1 existing under the laws of the State of Delaware, its successors and their assigns, and, if such
2 corporation is dissolved or liquidated or no longer performs the functions of a securities rating
3 agency, any other nationally recognized securities rating agency designated by the City.
4 NMFA. The New Mexico Finance Authority.
5 NMFA BONDS. The public projects revolving fund revenue bonds, if any, issued
6 hereafter by the NMFA and specifically related to the Loan Agreement and the Loan Agreement
7 Payments.
8 NMSA. New Mexico Statutes Annotated, 1978 Compilation, as amended and
9 supplemented.
10 OUTSTANDING. When used in reference to Hospitality Fee Obligations, on any
11 particular date, the aggregate of all Hospitality Fee Obligations issued and delivered under the
12 applicable City ordinance or resolution authorizing the issuance of Hospitality Fee Obligations,
13 except:
14 (1) those canceled at or prior to such date or delivered to or acquired
15 by the City at or prior to such date for cancellation;
16 (2) those which have been paid or are deemed to be paid in
17 accordance with the City ordinance or resolution authorizing the issuance of the applicable
18 Hospitality Fee Obligations or otherwise relating thereto, provided that the payment of Insured
19 Obligations with the proceeds of a Bond Insurance Policy shall not result in those Insured
20 Obligations ceasing to be Outstanding;
21 (3) in the case of Variable Rate Obligations, any Hospitality Fee
22 Obligations deemed tendered but not yet presented for payment; and
23 (4) those in lieu of or in exchange or substitution for which other
24 Hospitality Fee Obligations shall have been delivered, unless proof satisfactory to the City and
25 the Paying Agent for the applicable Hospitality Fee Obligations is presented that any Hospitality
26 Fee Obligations for which new Hospitality Fee Obligations were issued or exchanged are held
27 by a bona fide holder or in due course.
28 PERMITTED INVESTMENTS. Any of the following which at the time of the
29 investment are legal investments for the City for the money to be invested and any other
30 investments which at the time of investment are legal investments of the City for the money to
31 be invested:
8
1 (1) Government Obligations;
2 (2) Obligations of, or obligations guaranteed as to principal and
3 interest by any agency or instrumentality of the United States which are backed by the full faith
4 and credit of the United States, but not including: General Services Administration --
5 participation certificates; Government National Mortgage Association (GNMA) -- GNMA
6 guaranteed mortgage backed securities and GNMA guaranteed participation certificates; U.S.
7 Department of Housing & Urban Development -- local authority bonds; and U.S. Export Import
8 Bank -- all fully guaranteed obligations;
9 (3) Obligations of the following government sponsored agencies:
10 Federal Home Loan Mortgage Corporation -- participation certificates and senior debt
11 obligations; Farm Credit System (formerly: Federal Land Banks and Banks for Cooperatives) --
12 consolidated system wide bonds and notes; Federal Home Loan Banks -- consolidated debt
13 obligations; Federal National Mortgage Association -- senior debt obligations and mortgage-
14 backed securities (excluding stripped mortgage securities which are valued greater than par on
15 the portion of unpaid principal); Student Loan Marketing Association -- senior debt obligations
16 (excluding securities that do not have a fixed par value and/or whose terms do not promise a
17 fixed dollar amount at maturity or call date) and letter of credit backed issues; Financing
18 Corporation -- debt obligations; and Resolution Funding Corporation -- debt obligations;
19 (4) Certificates of deposit, time deposits and banker’s acceptances of
20 any bank or savings and loan association, the short term obligations of which are rated in the
21 highest Rating Categories by S&P, Moody’s or Fitch, provided that such deposits must be fully
22 secured by securities designated in paragraphs (1), (2), (3) and (9) of this definition and held in
23 safe keeping for, or on behalf of, or held in book entry form in the name of, the City;
24 (5) Accounts with banks and savings and loan associations located in
25 Bernalillo County, provided that the banks and savings and loan associations, and the collateral
26 securing the investments permitted by this paragraph, satisfy the requirements of applicable
27 State law;
28 (6) Obligations, the interest on which is excluded from gross income
29 of the recipient for federal income tax purposes, which are rated in the highest Rating Category
30 by S&P, Moody’s or Fitch;
31 (7) Money market instruments and other securities of commercial
9
1 banks, broker dealers or recognized financial investors, which securities or institutions are rated
2 in the highest Rating Category by S&P, Moody’s or Fitch, or which securities are guaranteed by
3 a person or entity whose long term debt obligations are rated in the highest Rating Category by
4 S&P, Moody’s or Fitch, including, without limitation, securities of, or other interests in, any open
5 end or closed end management type investment company or investment trust registered under
6 the provisions of 15 U.S.C. Sections 80(a) 1 et seq., which invest only in, or whose securities
7 are secured only by, obligations of the type set forth in paragraphs (1), (2), (3) and (9) of this
8 definition;
9 (8) The “short term investment fund” described in Section 6 10 10.1
10 N.M.S.A. 1978 or other similar pooled fund maintained by the State for the investment of public
11 funds of local public bodies of the State;
12 (9) Stripped Securities: (i) U.S. Treasury STRIPS and (ii) REFCORP
13 STRIPS (stripped by Federal Reserve Bank of New York);
14 (10) Repurchase agreements involving the purchase and sale of, and
15 guaranteed investment contracts, the par value of which is collateralized by a perfected first
16 pledge of, or security interest in, or the payments of which are unconditionally guaranteed by,
17 securities described in parts (1), (2), (3) and (9) of this definition, which collateral is held by the
18 City, or for the benefit of the City, by a party other than the provider of the guaranteed
19 investment contract or repurchase agreement, with a collateralized value of at least 102% of the
20 par value of such repurchase agreement or guaranteed investment contract or 102% of the
21 market value thereof, valued at intervals of no less than monthly and which collateral is not
22 subject to any other pledge or security interest;
23 (11) Cash insured at all times by the Federal Deposit Insurance
24 Corporation or otherwise collateralized with Government Obligations; and
25 (12) Agreements which permit the City to require a commercial bank,
26 broker-dealer or recognized financial institution to purchase from the City at a fixed price
27 obligations described in paragraphs (1), (2), (3), and (9) of this definition; provided that, if
28 required by law, the contract relating to such agreement is approved by resolution of the Council
29 and all other requirements of law relating to any such investment are satisfied and provided
30 further that such institution, or the guarantor of such institution or agreement, shall be rated in
31 one of the top two Rating Categories by S&P, Moody’s or Fitch, or by another national rating
10
1 agency.
2 PERSON. Any individual, corporation, partnership (in which case each partner
3 shall be deemed a Person), joint venture, association, joint stock company, limited liability
4 company, trust, unincorporated organization, or government or any agency or political
5 subdivision of a government.
6 PLEDGED REVENUES. Fifty percent (50%) of the Hospitality Fee Revenues
7 received by the City, after deduction of the administrative costs pertaining to the Hospitality Fee
8 to the extent required by the Hospitality Fee Act, provided that the City is not pledging, and the
9 term “Pledged Revenues” does not include, any of the “Hospitality Fee Revenues” in excess of
10 fifty percent (50%) thereof.
11 PRINCIPAL COMPONENT. The portion of the Loan Agreement Payment paid
12 as principal on the Loan Agreement as set forth in the Loan Agreement.
13 PRINCIPAL PAYMENT DATE. July 1 of each year (or if such day is not a
14 Business Day, then the next succeeding Business Day), commencing July 1, 2005.
15 PROJECT. Equipping and furnishing the Convention Center, including related
16 parking.
17 RATING CATEGORY. A generic securities rating category, without regard, in
18 the case of a long term rating category, to any refinement or gradation of such long-term rating
19 category by a numerical modifier or otherwise.
20 RESERVE FUND. The “City of Albuquerque Hospitality Fee Reserve Fund”
21 established in Section 9 hereof.
22 RESERVE FUND INSURANCE POLICY. Any policy of insurance or surety bond
23 or other Credit Facility issued to the City to be deposited in a reserve account, the proceeds of
24 which shall be used to prevent deficiencies in the payment of the principal of or interest on a
25 series of Hospitality Fee Obligations written by an insurer whose policies of insurance, or issued
26 by a Credit Source whose Credit Facility, would not adversely affect the rating of the Hospitality
27 Fee Obligations by Moody’s, S&P or Fitch. At the time of the issuance of such policy, such
28 insurer or the component insurance companies thereof or the obligations thereof shall have
29 received the highest policy claims rating accorded insurers by the A. M. Best Company or any
30 comparable service and either of the two highest rating categories of Moody’s, S&P or Fitch.
31 S&P. Standard & Poor’s Ratings Services, a division of the McGraw Hill
11
1 Companies, Inc., its successors and their assigns, and, if such corporation is dissolved or
2 liquidated or no longer performs the functions of a securities rating agency, any other nationally
3 recognized securities agency designated by the City.
4 STATE. The State of New Mexico.
5 SUBORDINATE HOSPITALITY FEE OBLIGATIONS. Any Hospitality Fee
6 Obligations hereafter issued or incurred payable from the Hospitality Fee Revenues and issued
7 with a lien thereon junior and inferior to the lien thereon of the Hospitality Fee Loan Agreement.
8 TRUSTEE. Bank of Albuquerque, N.A., Albuquerque, New Mexico, or any
9 successor trust company, national or state banking association or financial institution at the time
10 appointed Trustee by NMFA.
11 VALUE. The value of any investment shall be calculated as follows:
12 (a) as to investments the bid and asked prices of which are published
13 on a regular basis in The Wall Street Journal (or, if not there, then in The New York Times): the
14 average of the bid and asked prices for such investments so published on or most recently prior
15 to such time of determination;
16 (b) as to investments the bid and asked prices of which are not
17 published on a regular basis in The Wall Street Journal or The New York Times: the average
18 bid price at such time of determination for such investments by any two nationally recognized
19 government securities dealers (selected by the City in its absolute discretion) at the time making
20 a market in such investments or the bid price published by a nationally recognized pricing
21 service;
22 (c) as to certificates of deposit and bankers acceptances: the face
23 amount thereof, plus accrued interest; and
24 (d) as to any investment not specified above: the value thereof
25 established by prior agreement between the City and the Credit Source.
26 VARIABLE RATE OBLIGATIONS. Hospitality Fee Obligations, including
27 reimbursement obligations pursuant to a Credit Facility, the interest rate on which is subject to
28 change from time to time.
29 (B) RULES OF CONSTRUCTION. For purposes of the Debt Ordinance,
30 unless otherwise expressly provided or unless the context require otherwise:
31 (1) Unless otherwise stated in the Debt Ordinance, all references in
12
1 the Debt Ordinance to designated Sections and other subdivisions are to the designated
2 Section and other subdivision of the Debt Ordinance.
3 (2) The words “herein,” “hereof,” “hereunder,” and “herewith” and
4 other words of similar import in the Debt Ordinance refer to the Debt Ordinance, as a whole, and
5 not to any particular Section or other subdivision.
6 (3) All accounting terms not otherwise defined in the Debt Ordinance
7 have the meanings assigned to them in accordance with generally accepted accounting
8 principles.
9 (4) Words of the masculine gender shall be deemed and construed to
10 include correlative words of the feminine and neuter genders.
11 (5) The headings used in the Debt Ordinance are for convenience of
12 reference only and shall not define or limit the provisions of the Debt Ordinance.
13 Terms in the singular include the plural and vice versa.
14 Section 2. RATIFICATION. All actions previously taken (not inconsistent with the
15 provisions of the Debt Ordinance) by the Council and the officers of the City, directed toward (1)
16 the Project and (2) the execution and delivery of the Loan Agreement are ratified, approved and
17 confirmed.
18 Section 3. FINDINGS. The Council declares that it has considered all relevant
19 information and data and makes the following findings:
20 (A) BENEFIT TO PUBLIC. The execution and delivery of the Loan
21 Agreement pursuant to the Act to provide a portion of the funds to finance the Project is
22 necessary and in the interest of the public health, safety and welfare of the residents of the City.
23 (B) PLEDGED REVENUES. The Pledged Revenues may lawfully be
24 pledged to secure Loan Agreement Payments to the extent and in the manner provided in the
25 Debt Ordinance.
26 (C) EXECUTION AND DELIVERY OF THE LOAN AGREEMENT. The Loan
27 Agreement will be executed and delivered pursuant to the Act.
28 Section 4. AUTHORIZATION OF PROJECT AND EXPENSES.
29 (A) PROJECT. The Project is authorized and approved.
30 (B) EXPENSES. The payment of Expenses and the Expense Component is
31 authorized and approved.
13
1 Section 5. LOAN AGREEMENT.
2 (A) AUTHORIZATIONS. The Debt Ordinance has been adopted by the
3 affirmative vote of at least three-fourths of all of the members of the Council. For the purpose of
4 protecting the public health, conserving the property, protecting the general welfare and
5 prosperity of the citizens of the City and constructing and acquiring the Project, it is necessary
6 that the City execute and deliver, and the City is hereby authorized to execute and deliver,
7 pursuant to the Act, the Loan Agreement.
8 The Loan Agreement shall be executed and delivered in the aggregate principal
9 amount of $6,000,000 with the proceeds of the Loan Agreement to be used to finance a portion
10 of the Project including related expenses and the reimbursement of the City for amounts
11 previously advanced by the City to pay costs of the Project. The average interest rate (taking
12 into account each annual interest rate set forth on the Debt Service Schedule for the Loan
13 Agreement) on the Loan will be ______%, which interest rate includes the .25% administrative
14 fee imposed by the NMFA.
15 (B) APPROVAL OF LOAN AGREEMENT. The terms and provisions of the
16 Loan Agreement are hereby approved with such changes therein as are not inconsistent with
17 this Debt Ordinance.
18 (C) TERMS OF THE LOAN AGREEMENT. To defray the cost and expense
19 of a portion of the Project, the Loan Agreement shall be executed and delivered by the City in
20 an aggregate principal amount of $6,000,000 bearing interest at an average rate of _____% per
21 annum which includes the NMFA administrative fee of .25% per annum. Principal amounts
22 payable under the Loan Agreement shall be amortized over nine (9) years commencing
23 January 1, 2005 and the final Loan Agreement Payment shall be made no later than
24 July 1, 2013 or the next Business Day thereafter. The Loan Agreement shall be dated the
25 Closing Date, be payable and be subject to prepayment without penalty or premium at any time
26 beginning on a date one year after the date of the Loan Agreement, on the terms set forth in the
27 Loan Agreement. The Loan Agreement Payments shall be due and payable in the amounts set
28 forth in the Loan Agreement and approved by an Authorized Officer of the City by execution of
29 the Loan Agreement.
30 (D) EXECUTION OF LOAN AGREEMENT. The Mayor and the Chief
31 Administrative Officer of the City, on behalf of the City, are hereby authorized and directed to
14
1 execute and deliver the Loan Agreement, any agreement between the NMFA or the Trustee and
2 the City and any extension of or amendments to any of those documents or any substitutions
3 therefor, with such terms and changes as are not inconsistent with this Debt Ordinance and as
4 are approved by the Mayor or Chief Administrative Officer of the City, whose execution of any
5 such document, or any extensions thereof or substitutions therefor, in their final forms shall
6 constitute conclusive evidence of the executing officer’s approval and compliance with this
7 Section with respect to such documents. The City Clerk is authorized to affix the seal of the City
8 to and to attest those documents signed by an Authorized Officer, as necessary.
9 (E) PAYMENTS. The Loan Agreement Payments shall be payable to the
10 NMFA. In the event that any Principal Component is not paid in full when due, that unpaid
11 Principal Component shall continue to draw interest at the interest rate until that Principal
12 Component is paid in full. All such payments shall be made in lawful money of the United
13 States of America.
14 (F) PAYMENTS OR PERFORMANCE DUE ON NON-BUSINESS DAY.
15 Except as otherwise required in this Debt Ordinance, any covenant required to be performed on
16 any date which is not a Business Day may be performed on the first Business Day thereafter. If
17 the date for any Loan Agreement Payment shall be other than a Business Day, then payment
18 shall be made on the next succeeding Business Day, and no interest shall accrue for the
19 intervening period other than as specifically provided for in this Debt Ordinance.
20 (G) ADDITIONAL DOCUMENTS. The officers, agents and employees of the
21 City are hereby authorized and empowered to do all acts and things and to execute and deliver
22 all documents relating to or requested by the NMFA or the Trustee to carry out and comply with
23 the provisions of the Loan Agreement.
24 (H) DELEGATED POWERS. Authorized Officers are hereby authorized and
25 directed to take all action necessary or appropriate to effectuate the provisions of this Debt
26 Ordinance, including, without limiting the generality of the foregoing, the establishment of final
27 calculations relating to the interest rate on the Loan presented on the Loan Agreement, the
28 execution and delivery of such certificates as may reasonably be required by the NMFA relating
29 to, among other matters, the execution and delivery of the Loan Agreement, the tenure and
30 identity of the municipal officials, the delivery of the Loan Agreements, and the absence of
31 litigation pending or threatened affecting the validity of the Loan Agreements, if such is in
15
1 accordance with the facts.
2 The Director of the Department of Finance and Administrative Services of the
3 City, or her successor in interest, is hereby authorized and directed to make such changes or
4 corrections to the procedures established in this Debt Ordinance relating to the times of day or
5 the days on which actions are required to be taken, or the Persons responsible for particular
6 actions, the form of notice of the occurrence of events, the types and forms of actions required
7 and other similar administrative matters which, in her judgment, are necessary or appropriate to
8 accomplish the purposes of this Debt Ordinance and to provide for the efficient administration of
9 the program relating to the Loan Agreement. Notice of any such changes or corrections shall
10 be given to all Persons affected thereby and to bond counsel for the City and a certificate of
11 such changes and corrections shall be filed with the City Clerk.
12 Section 6. DELIVERY OF LOAN AGREEMENT TO NMFA; USE OF PROCEEDS;
13 AND APPROPRIATIONS.
14 (A) DELIVERY OF LOAN AGREEMENT. When the Loan Agreement has
15 been duly executed, the City Treasurer shall deliver the Loan Agreement to the NMFA on
16 receipt of the proceeds of the Loan Agreement. The Loan shall be supplied solely for the
17 purposes permitted by this Debt Ordinance. The NMFA shall not be responsible for the
18 application by the City, or any of its officers, of the Loan.
19 (B) USE OF LOAN PROCEEDS; APPROPRIATIONS. The Loan shall be
20 used to finance the Project and to pay certain Expenses. Proceeds of the Loan in the amount of
21 $6,000,000 shall be used as follows:
22 (1) $______________ shall be deposited in the Expense Account and
23 used to pay, and is hereby appropriated for the payment of, expenses relating to costs of
24 executing and delivering the Loan Agreement. Any money appropriated for the payment of
25 Expenses which is not necessary for that purpose shall be deposited in the Program Account.
26 (2) $_________________ shall be deposited to the Hospitality Fee
27 Program Account and is hereby appropriated for the Project. Any amount deposited in the
28 Hospitality Fee Program Account which is not necessary for the Project shall be deposited in the
29 Hospitality Fee Bond Fund and used, and is hereby appropriated, for payments to be made in
30 accordance with the Loan Agreement.
31 Section 7. RESERVED.
16
1 Section 8. LIMITED OBLIGATIONS. The obligations of the City under the Loan
2 Agreement and this Debt Ordinance shall be payable solely from Pledged Revenues. The
3 obligations created by the provisions of this Debt Ordinance shall not be construed or held to
4 make the obligations of the City under the Loan Agreement general obligations of the City, the
5 State or the NMFA, and NMFA and the Trustee shall have no claim of or on any general or
6 other fund for the payment thereof, except as heretofore provided in this Debt Ordinance. The
7 obligations of the City under the Loan Agreement shall not be debts of the City within the
8 meaning of any constitutional, charter or statutory limitation on debt of the City. The full faith
9 and credit of the City is not pledged for payment of the City’s obligations under the Loan
10 Agreement. The payment of the City’s obligations under the Loan Agreement is not secured by
11 any encumbrance, mortgage or other pledge of property of the City.
12 Nothing herein shall prevent or prohibit the City from applying other funds of the
13 City legally available therefor to the payment of the City’s Obligations under the Loan
14 Agreement, in its sole discretion.
15 Section 9. FUNDS AND ACCOUNTS.
16 (A) HOSPITALITY FEE REVENUE FUND. The City shall create the “City of
17 Albuquerque Hospitality Fee Revenue Fund” to be maintained by the City into which the City
18 shall deposit the Hospitality Fee Revenues.
19 (B) HOSPITALITY FEE PROGRAM ACCOUNT. The City hereby consents to
20 the creation of the Hospitality Fee Program Account established in the name of the City and
21 administered by the Trustee pursuant to the Indenture.
22 (C) EXPENSE ACCOUNT. The City hereby consents to the creation of the
23 Expense Account established in the name of the City and administered by the Trustee pursuant
24 to the Indenture.
25 (D) HOSPITALITY FEE BOND FUND. The Hospitality Fee Bond Fund is
26 hereby established and shall be maintained by the City.
27 (E) HOSPITALITY FEE RESERVE FUND. The City shall create the “City of
28 Albuquerque Hospitality Fee Reserve Fund” to be maintained by the City into which the City
29 shall deposit a portion of the Hospitality Fee Revenues.
30 Section 10. ADMINISTRATION OF HOSPITALITY FEE REVENUE FUND.
31 (A) HOSPITALITY FEE BOND FUNDS. So long as any obligations pursuant
17
1 to the Loan Agreement remain Outstanding, either as to principal or interest, or both, the
2 Hospitality Fee Revenues shall be set aside and deposited as follows:
3 The Hospitality Fee Revenues shall be deposited upon receipt in the Hospitality
4 Revenue Fund. The following payments shall be made from the Hospitality Fee Revenues:
5 First, as a first charge on the Hospitality Fee Revenues, the following amounts
6 shall be withdrawn from the Hospitality Fee Revenue Fund and deposited in the Hospitality Fee
7 Bond Fund:
8 (1) Quarterly, commencing in the third quarter of 2004, an amount in
9 substantially equal quarterly installments necessary, together with any moneys therein and
10 available therefor, to pay the amount of the Interest Component and the Expense Component
11 on the Hospitality Fee Loan which will become due on the Interest Payment Date next following
12 the date of deposit.
13 (2) Quarterly, commencing in the third quarter of 2004, an amount in
14 equal quarterly installments necessary, together with any moneys therein and available therefor,
15 to pay the next installment of principal becoming due on the Hospitality Fee Loan.
16 If, prior to any Interest Payment Date or Principal Payment Date, there has been
17 accumulated in the Hospitality Fee Bond Fund the entire amount necessary to pay the next
18 maturing installment of interest or principal, or both, the payment required in paragraphs (1) or
19 (2) (whichever is applicable) above may be appropriately reduced and the required quarterly
20 amount again shall be so deposited to such account commencing on such Interest Payment
21 Date or Principal Payment Date (whichever is applicable). If, prior to the final Principal Payment
22 Date, there has been accumulated in the Hospitality Fee Reserve Fund the entire amount
23 necessary to make the final Loan Agreement Payment, or some lesser amount of funds, the
24 payment required to be made to the Hospitality Bond Fund may be appropriately reduced and
25 funds in the Hospitality Fee Reserve Fund shall be used for the final Loan Agreement Payment.
26 Second, and concurrently with the deposits and withdrawals required above, the
27 amounts necessary to pay the Debt Service Requirements on any additional parity Hospitality
28 Fee Obligations at the time Outstanding shall be withdrawn from the Hospitality Fee Revenue
29 Fund and shall be credited to the Hospitality Fee Bond Fund with the same priority as all other
30 additional parity Hospitality Fee Obligations, and, if insufficient to pay all of the enumerated Debt
31 Service Requirements, prorated to the amounts of such Debt Service Requirements.
18
1 Third, quarterly, commencing in the third quarter of 2004, to the extent not
2 required to be deposited in the Hospitality Fee Bond Fund as described in this Section 10(A), an
3 amount equal to twenty percent (20%) of Hospitality Fee Revenues received by the City shall be
4 deposited into the Hospitality Fee Reserve Fund. Amounts on deposit in the Hospitality Fee
5 Reserve Account shall be used (i) to prevent deficiencies in the payment of Loan Agreement
6 Payments resulting from failure to deposit into the Hospitality Fee Bond Fund sufficient funds to
7 make such Loan Agreement Payments when due and (ii) to make the final Loan Agreement
8 Payment.
9 (B) OTHER HOSPITALITY FEE OBLIGATIONS. To the extent not required
10 to be deposited or paid pursuant to Section 10(A), Hospitality Fee Revenues available in the
11 Hospitality Fee Revenue Fund shall be used as necessary to pay (i) payment obligations owed
12 by the City to a Credit Source for any additional Hospitality Fee Obligations with a lien on the
13 Hospitality Fee Revenues on a parity with the lien of the Loan Agreement, including the tender
14 price of and certain interest payments on such obligations paid by that Credit Source; and (ii)
15 fees, expenses and interest owed by the City to any other provider of fiscal services for a series
16 of any additional Hospitality Fee Obligations with a lien on the Hospitality Fee Revenues on a
17 parity with the lien of the Loan Agreement. Amounts from the Hospitality Fee Revenue Fund to
18 be used to pay interest pursuant to this Section 10(B) shall be deposited by the City into a
19 separate account maintained by the City on or before the due date thereof.
20 (C) DEBT SERVICE RESERVE REQUIREMENTS. To the extent not
21 required to be deposited or paid pursuant to Sections 10(A) or 10(B), Hospitality Fee Revenues
22 available in the Hospitality Fee Revenue Fund shall be used, as necessary, to pay any debt
23 service reserve account as required by the terms of any ordinance or resolution authorizing the
24 issuance of any additional Hospitality Fee Obligations with a lien on the Hospitality Fee
25 Revenues on a parity with the lien of the Loan Agreement.
26 (D) SUBORDINATE HOSPITALITY FEE REVENUE OBLIGATIONS. To the
27 extent not required to be deposited or paid pursuant to Sections 10(A), 10(B) or 10(C),
28 Hospitality Fee Revenues available in the Hospitality Fee Revenue Fund shall be used, as
29 necessary, to pay Debt Service Requirements on Subordinate Hospitality Fee Obligations as
30 the same become due.
31 (E) USE OF SURPLUS HOSPITALITY FEE REVENUES. To the extent not
19
1 required in any month to be deposited or paid pursuant to Sections10(A), 10(B), 10(C) or 10(D),
2 any moneys remaining in the Hospitality Fee Revenue Fund shall be used in accordance with
3 the terms of Sections 3-38A-1 to 3-38A-12 NMSA 1978.
4 Section 11. TRANSFERS TO PAY PRINCIPAL COMPONENT, INTEREST
5 COMPONENT AND EXPENSE COMPONENT OF THE LOAN AGREEMENT.
6 (A) TRANSFER TO NMFA OF PRINCIPAL COMPONENT, EXPENSE
7 COMPONENT AND INTEREST COMPONENT. The City shall transfer the funds set aside
8 pursuant to Section 10 for the payments of Principal Component, Expense Component and
9 Interest Component of the Loan Agreement Payments to the NMFA on or before the date on
10 which each such payment is due.
11 (B) EXPENSES. The cost of execution and delivery of the Loan Agreement
12 shall be paid by the Trustee on the Closing Date from Loan proceeds deposited in the Expense
13 Account in accordance with Section 6(B)(1) of this Debt Ordinance. The City shall pay all
14 Expenses, including any administrative fee of the NMFA, incurred after the Closing Date directly
15 to the NMFA.
16 Section 12. GENERAL ADMINISTRATION OF FUNDS . The funds and accounts
17 designated in Section 9 shall be administered as follows:
18 (A) MONEY IN BOND FUND AND RESERVE FUND. Except as provided
19 herein, the money credited to the Hospitality Fee Bond Fund and the Hospitality Fee Reserve
20 Fund shall be used by the City only to pay the Debt Service Requirements of the Loan
21 Agreement and other Hospitality Fee Obligations and as provided in Section 10. Money on
22 deposit in the Hospitality Fee Bond Fund and any account therein (or the Hospitality Fee
23 Reserve Fund, as the case may be) sufficient to pay amounts due under the Loan Agreement
24 shall be transferred to the NMFA on or before each relevant payment date.
25 (B) INVESTMENT OF MONEY. All of the amounts on deposit in the
26 accounts created and established by this Debt Ordinance and all amounts pledged to the
27 payment of obligations created under the Loan Agreement shall be invested in compliance with
28 the requirements of this Debt Ordinance. Any moneys in any other fund designated in Section 9
29 may be invested in any Permitted Investment; except that when monies are transferred to the
30 NMFA or the Trustee, those monies shall be invested as permitted by the Indenture.
31 Obligations purchased as an investment of money in any fund or account shall be deemed at all
20
1 times to be part of that fund or account, and the interest accruing and any profit realized on
2 those Investments shall be credited to that fund or account, unless otherwise stated in the Debt
3 Ordinance or the Indenture (subject to withdrawal at any time for the uses directed and
4 permitted for such money by the Debt Ordinance, as applicable), and any loss resulting from
5 such investment shall be charged to that fund or account. The custodian for any such fund or
6 account shall present for redemption or sale on the prevailing market any Permitted Investment
7 in a fund or account when necessary to provide money to meet a required payment or when
8 required to be transferred from that fund or account.
9 (C) DEPOSITS OF FUNDS. The money and investments which are part of
10 the funds and accounts designated in Section 9 shall be maintained and kept in an Insured
11 Bank or Banks or may be held in book-entry form in the name of the City by an agent or
12 custodian of or for the City for the benefit of the City. Each payment or deposit shall be made
13 into and credited to the proper fund or account at the designated time, except that when the
14 designated time is not a Business Day, then the payment shall be made on the next succeeding
15 Business Day unless otherwise required in the Debt Ordinance. The City may establish one or
16 more accounts in Insured Banks for all of the funds and accounts or combine such funds and
17 accounts with any other Insured Bank account or accounts for other funds and accounts of the
18 City.
19 (D) VALUATION OF INVESTMENTS. In the computation of the amount in
20 any account or fund for any purpose under the Debt Ordinance, except as otherwise expressly
21 provided in the Debt Ordinance, Permitted Investments shall be valued in accordance with the
22 definition of Value herein.
23 (E) TERMINATION UPON DEPOSITS TO MATURITY. No payment need be
24 made into the Hospitality Fee Bond Fund or the Hospitality Fee Reserve Fund if the amount in
25 such funds totals a sum at least equal to the entire amount of the Loan Agreement then
26 Outstanding, both as to principal and interest, both accrued and not accrued, in which case,
27 moneys in the Hospitality Fee Bond Fund and the Hospitality Fee Reserve Fund in an amount at
28 least equal to such principal and interest requirements shall be used solely to pay such as the
29 same accrue, and any moneys in excess thereof in the Hospitality Fee Bond Fund, the
30 Hospitality Fee Reserve Fund and any other moneys derived from the Pledged Revenues may
31 be used in accordance with Section 10(E).
21
1 (F) VARIABLE RATE OBLIGATIONS. In making computations required by
2 Sections 10, 10A, 10B and 12, interest on Variable Rate Obligations which cannot be computed
3 exactly shall be deemed to bear the interest at the maximum interest rate then permitted on
4 such obligations by the City ordinance authorizing the issuance of such obligations. To
5 determine the amount required to be on deposit in any Bond Fund for the payment of interest,
6 computations of the interest rate on Variable Rate Obligations shall be made whenever there is
7 a change in the interest rate on the applicable Variable Rate Obligations except that the
8 computation need not be made more often than once in any month.
9 Section 13. PLEDGE OF PLEDGED REVENUES. The Pledged Revenues are
10 hereby authorized to be pledged to, and are hereby pledged, and the City grants a security
11 interest therein, for the payment of Loan Agreement Payments and any other amounts due
12 under the Loan Agreement, subject to the uses thereof permitted by, and the priorities set forth
13 in, this Debt Ordinance and the Loan Agreement. The obligations created under the Loan
14 Agreement constitute an irrevocable and first lien (but not necessarily an exclusive first lien) on
15 the Hospitality Fee Revenues.
16 Section 14. ADDITIONAL HOSPITALITY FEE OBLIGATIONS.
17 (A) LIMITATIONS UPON ISSUANCE OF ADDITIONAL HOSPITALITY FEE
18 OBLIGATIONS. Before any additional Hospitality Fee Obligations with a lien on the Hospitality
19 Fee Revenues on a parity with the Loan Agreement are issued (excluding refunding bonds the
20 proceeds of which are used to refund such Hospitality Fee Obligations as provided in
21 Section 15, but including such Hospitality Fee Obligations which are refunding bonds which
22 refund subordinate obligations), the following conditions shall be met:
23 (1) The additional Hospitality Fee Obligations must be Hospitality Fee
24 Obligations; and
25 (2) The City shall then be current in all of the deposits required to be
26 made with respect to Hospitality Fee Obligations (including, if applicable, any obligation to fund
27 any reserve account required by the terms of any ordinance authorizing the issuance of any
28 such Obligations), and
29 (3) No additional Hospitality Fee Obligations shall be issued unless
30 the Hospitality Fee Revenues received for the Fiscal Year preceding the adoption of the
31 ordinance authorizing the issuance of such Hospitality Fee Obligations shall have been
22
1 sufficient to pay an amount equal to at least one hundred ten percent (110%) the combined
2 maximum annual Debt Service Requirements coming due in any subsequent Fiscal Year on the
3 Loan Agreement, on the then outstanding Hospitality Fee Obligations with a lien on the
4 Hospitality Fee Revenues on a parity with the Loan Agreement, and the additional Hospitality
5 Fee Obligations proposed to be issued (excluding any reserves therefor).
6 (B) SUBORDINATE HOSPITALITY FEE OBLIGATIONS PERMITTED;
7 SUPERIOR HOSPITALITY FEE OBLIGATIONS PROHIBITED. No provision of this Debt
8 Ordinance shall be construed in such a manner as to permit the issuance by the City of
9 additional Hospitality Fee Obligations payable from the Hospitality Fee Revenues with a lien
10 thereon superior to the lien of the Loan Agreement thereon. No provision of this Debt
11 Ordinance shall be construed in such a manner as to prevent the issuance by the City of
12 additional Hospitality Fee Obligations payable from the Pledged Revenues with a lien thereon
13 subordinate and junior to the lien of the Loan Agreement thereon, nor to prevent the issuance of
14 Hospitality Fee Obligations refunding all or part of the Loan Agreement as permitted by Section
15 15.
16 (C) VARIABLE INTEREST RATE. In making the computations required by
17 this Section, Hospitality Fee Obligations which bear a Variable Interest Rate shall be deemed to
18 bear interest at the maximum rate then permitted on such obligations by the City ordinance
19 authorizing the issuance of such obligations.
20 (D) CERTIFICATE OF INDEPENDENT ACCOUNTANT. A written certificate
21 or opinion of an Independent Accountant that the Hospitality Fee Revenues for the applicable
22 Historic Test Period are sufficient to pay the amounts required in this Section shall be required
23 in making a determination that the requirements set forth in this Section have been satisfied and
24 shall be conclusively presumed to be accurate in determining that such requirements have been
25 satisfied.
26 Section 15. REFUNDING BONDS PAYABLE FROM HOSPITALITY FEE
27 REVENUES. The provisions of Section 14 of the Debt Ordinance are subject to the following
28 exceptions:
29 (A) PRIVILEGE OF ISSUING REFUNDING HOSPITALITY FEE
30 OBLIGATIONS. If at any time while the Loan Agreement remains Outstanding, the City desires
31 to refund or refinance the Loan Agreement or other obligations payable from Hospitality Fee
23
1 Revenues, said bonds or other obligations, or any part thereof, may be refunded or refinanced
2 regardless of whether the priority of the lien for the payment of the refunding Hospitality Fee
3 Obligations on the Hospitality Fee Revenues is changed (except as provided in paragraph A of
4 Section 14 and in paragraphs B and C of this Section).
5 (B) LIMITATIONS UPON ISSUANCE OF REFUNDING HOSPITALITY FEE
6 OBLIGATIONS. No refunding bonds or other refunding obligations payable from the Hospitality
7 Fee Revenues shall be issued on a parity with the Loan Agreement herein authorized, unless:
8 (1) The lien on the Hospitality Fee Revenues of the outstanding
9 obligations so refunded is on a parity with the lien thereon of the Loan Agreement herein
10 authorized; or
11 (2) The refunding bonds or other refunding obligations are issued in
12 compliance with paragraph A of Section 14 of this Debt Ordinance.
13 (C) REFUNDING PART OF AN ISSUE PAYABLE FROM HOSPITALITY FEE
14 REVENUES. The refunding bonds or other obligations so issued shall enjoy complete equality
15 of lien with the portion of any bonds or other obligations of the same issue which is not
16 refunded, if any there be; and the registered owner or owners of such refunding bonds or such
17 other refunding obligations shall be subrogated to all of the rights and privileges enjoyed by the
18 registered owner or owners of the bonds or other obligations of the same issue refunded
19 thereby.
20 (D) LIMITATIONS UPON ISSUANCE OF ANY REFUNDING OBLIGATION
21 PAYABLE FROM HOSPITALITY FEE REVENUES. Any refunding bonds or other refunding
22 obligations payable from the Hospitality Fee Revenues shall be issued with such details as the
23 City may by ordinance provide, subject to the inclusion of any such rights and privileges
24 designated in paragraph C above, but without any impairment of any contractual obligations
25 imposed upon the City by any proceedings authorizing the issuance of any unrefunded portion
26 of such outstanding obligations of any one or more issues (including but not necessarily limited
27 to the issue herein authorized). If only a part of the outstanding bonds and any other
28 outstanding obligations of any issue or issues payable from the Hospitality Fee Revenues is
29 refunded, then such obligations may not be refunded without the consent of the Credit Source, if
30 any, and the registered owner or owners of the unrefunded portion of such obligations, unless:
31 (1) The refunding bonds or other refunding obligations do not
24
1 increase any aggregate annual principal and interest requirements evidenced by such refunding
2 obligations and by the outstanding obligations not refunded on and prior to the last maturity date
3 of such unrefunded obligations, or
4 (2) The refunding bonds or other refunding obligations are issued in
5 compliance with paragraph A of Section 14 hereof, or
6 (3) The lien on the Hospitality Fee Revenues, whichever is applicable,
7 for the payment of the refunding obligations is subordinate to each such lien for the payment of
8 any obligations not refunded.
9 Section 16. PROTECTIVE COVENANTS. In addition to the covenants set forth in the
10 Loan Agreement, the City hereby covenants and agrees so long as any Hospitality Fee
11 Obligations remain Outstanding, not to repeal the ordinance requiring the collection of the
12 Hospitality Fee Revenues and to enforce the provisions of such ordinance in accordance with its
13 terms.
14 Section 17. DEFEASANCE. If the City pays or makes provisions for payment of
15 amounts due under the Loan Agreement in accordance with its terms, then the Loan Agreement
16 shall be deemed to have been paid, the City’s obligation shall be discharged and the pledge of
17 the Loan Agreement released. Unless otherwise provided in the Loan Agreement, such
18 payment will be deemed made when the City has deposited with the Trustee or other escrow
19 agent, in trust, (i) moneys sufficient to make such payment, and/or (ii) noncallable Government
20 Obligations maturing as to principal and interest in such amount and at such times as will
21 ensure the availability of sufficient moneys to make such payment and when all necessary and
22 proper fees, compensation and expenses of the Trustee and the NMFA have been paid or
23 provided for.
24 Section 18. NOTICES. Except as otherwise specifically required in this Debt
25 Ordinance, notices shall be effective when received and it shall be sufficient service of any
26 notice, request, demand or other paper if the same is given by: (i) telephone, or (ii) certified or
27 registered mail, or (iii) telegraph, telex, facsimile or other electronic transmission, or (iv) hand
28 delivery. However, any notice given by telephone must be confirmed by notice in writing as set
29 forth in clause (ii), (iii) or (iv) above initiated within one Business Day that oral notice is given.
30 Notice shall be given as follows:
31 (A) If to the City:
25
1 City of Albuquerque, New Mexico
2 One Civic Plaza, NW, First Floor (87102)
3 Post Office Box 1293 (87103)
4 Albuquerque, New Mexico
5 Attention: Treasurer
6 Telephone: (505) 768-3396
7 Facsimile: (505) 768-3447
8 (B) If to the NMFA:
9 409 St. Michael’s Drive
10 Santa Fe, New Mexico 87505
11 Attention: Executive Director
12 (C) If to the Trustee:
13 Bank of Albuquerque, N.A.
14 201 Third Street NW
15 Suite 1400
16 Albuquerque, New Mexico 87102
17 Attention: Corporate Trust Division
18 Each party shall designate its address for notices, certificates, requests or other
19 communications to be sent under this Debt Ordinance to each other and to the City. Any of the
20 foregoing may designate any further or different addresses to which subsequent notices
21 certificates, requests or other communications shall be sent under this Debt Ordinance, by
22 notice given in the manner provided by this Debt Ordinance to each of the others.
23 Section 19. AMENDMENTS. This Debt Ordinance may only be amended or
24 supplemented by ordinance or resolution adopted by the Council in accordance with the laws of
25 the State, without receipt by the City of any additional consideration but with the written consent
26 of the NMFA.
27 Section 20. REPEALER. All ordinances or resolutions, or parts thereof in conflict with
28 the provisions of this Debt Ordinance, are hereby repealed to the extent only of such
29 inconsistency. This repealer shall not be construed to revive any ordinance or resolution, or
30 part thereof, heretofore repealed and this Debt Ordinance shall be irrepealable until the Loan
31 Agreement and the interest thereon shall be fully and indefeasibly paid and discharged, as
26
1 provided therein and in this Debt Ordinance.
2 Section 21. SEVERABILITY. If any section, paragraph, clause or provision of this
3 Debt Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or
4 unenforceability of such section, paragraph, clause or provision shall in no manner affect any
5 remaining provisions of this Debt Ordinance.
6 Section 22. EMERGENCY DECLARATION. Because of the fact that it is necessary
7 to defray promptly the cost of the Project and because this Debt Ordinance deals with an
8 emergency hereby declared by the Council, the President of the Council, and the Mayor to be
9 an immediate danger to the public health, safety and welfare of the City of Albuquerque, this
10 Debt Ordinance immediately upon its final passage, shall be recorded in the book of ordinances
11 in the City kept for that purpose, authenticated by the signatures of the President of the City
12 Council and the Mayor and attested by the City Clerk, shall be published one time by title and a
13 general summary in a newspaper which maintains an office in the City and which is of general
14 circulation in the City, and this Debt Ordinance shall be in full force and effect after such
15 publication.
16 Section 23. SUMMARY FOR PUBLICATION. The form of this Debt Ordinance for the
17 purpose of publication shall be substantially as set forth in this Section, and the Council hereby
18 declares that the publication prescribed shall be conclusive of the sufficiency of such form:
19 (Form of Ordinance for Publication)
20 NOTICE OF ADOPTION OF ORDINANCE
21 The City Council of the City of Albuquerque, New Mexico, hereby gives notice of the
22 adoption of its Ordinance Sixteenth Council Bill No. _________ on ____________, 2004.
23 Complete copies of the Ordinance are available for public inspection during the normal and
24 regular business hours of the City Clerk, City of Albuquerque/Bernalillo County Government
25 Center, One Civic Plaza, NW, Albuquerque, New Mexico.
26 The title of the Ordinance is:
27 RELATING TO THE CITY OF ALBUQUERQUE, NEW MEXICO CONVENTION CENTER
28 FINANCING; AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT
29 BY AND BETWEEN THE CITY AND THE NEW MEXICO FINANCE AUTHORITY IN THE
30 PRINCIPAL AMOUNT OF $6,000,000 SECURED BY CERTAIN HOSPITALITY FEE
31 REVENUES FOR THE PURPOSE OF DEFRAYING THE COST OF EQUIPPING AND
27
1 FURNISHING THE ALBUQUERQUE CONVENTION CENTER IN THE CITY OF
2 ALBUQUERQUE, NEW MEXICO; PROVIDING FOR THE PAYMENT OF PRINCIPAL OF AND
3 INTEREST ON THE LOAN AGREEMENT; PROVIDING FOR THE COLLECTION OF
4 CERTAIN HOSPITALITY FEES; APPROVING THE FORM OF AND OTHER DETAILS
5 CONCERNING THE LOAN AGREEMENT; RATIFYING ACTION PREVIOUSLY TAKEN;
6 REPEALING ALL ACTIONS INCONSISTENT WITH THIS ORDINANCE; AUTHORIZING THE
7 TAKING OF OTHER ACTIONS IN CONNECTION WITH THE EXECUTION AND DELIVERY
8 OF THE LOAN AGREEMENT AND OTHER AGREEMENTS; AND DECLARING AN
9 EMERGENCY.
10 The following is a general summary of the subjects matter contained in the Ordinance
11 (the “Ordinance”):
12 Preambles recite or include such matters as: the operation of the City of Albuquerque,
13 New Mexico (the “City”) as a constitutional home rule city; the City owns and provides for the
14 operation of a convention center (the “Convention Center”) and desires to further equip and
15 furnish the Convention Center; the City has imposed and collects a hospitality fee in the amount
16 of 1% of gross taxable rent paid for lodging within the City; and that it is in the best interests of
17 the City to enter into a loan agreement (the “Loan Agreement”) with the New Mexico Finance
18 Authority (“NMFA”) to finance a portion of the cost and expense of furnishing and equipping the
19 Convention Center (the “Project”) pursuant to the Ordinance payable from and with a first lien
20 on the hospitality fee revenues collected by the City (the “Pledged Revenues”).
21 SECTIONS 1 THROUGH 3 define terms used in the Ordinance; ratify prior action of the
22 City relating to the Loan Agreement; and include findings that the financing of the Project is
23 necessary and in the best interests of the residents of the City.
24 SECTIONS 4 THROUGH 8 authorize the Project and expenses; approve the Loan
25 Agreement and its delivery to the NMFA in an aggregate principal amount of $6,000,000 for the
26 Project; provide the use of proceeds of the loan; and provide that the Loan Agreement shall be
27 a special limited obligation of the City, payable solely from Pledged Revenues.
28 SECTIONS 9 THROUGH 15 provide for the continuation, creation and administration of
29 certain funds and accounts related to the Pledged Revenues and the Loan Agreement; provide
30 for the priority for the use of Pledged Revenues; provide that the Loan Agreement shall
31 constitute an irrevocable lien on the Pledged Revenues; and provide the limitations upon which
28
1 the City may issue additional obligations and refunding obligations payable from Pledged
2 Revenues.
3 SECTIONS 16 THROUGH 23 provide protective covenants; provide provisions for the
4 discharge and release of the Loan Agreement; provide notice provisions; provide details relating
5 to amendments to the Ordinance; provide that the Ordinance shall remain irrepealable; provide
6 severability and repealer clauses; contain an emergency provision; provide that the Ordinance
7 will become effective upon publication of a notice; and provide for a general summary for
8 publication.
9 WITNESS my hand and the Seal of the City of Albuquerque as of _____________,
10 2004.
11 /s/ Margie Baca Archuleta
12 City Clerk
13
14 PASSED AND ADOPTED THIS _________ DAY OF ________________, 2004 BY A VOTE
15 OF: _______________ FOR _______________ AGAINST.
16
17 YES:
18 NO:
19
20
21
22
23 Michael J. Cadigan, President
24 City Council
25
26 APPROVED THIS _______ DAY OF ________________, 2004.
27
28 F/S Bill No. __________
29
30
31 Martin Chavez, Mayor
29
1 City of Albuquerque
2
3 ATTEST:
4
5
6 City Clerk
7 [END OF FORM OF SUMMARY OF ORDINANCE FOR PUBLICATION]
30
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND RULES OF CONSTRUCTION.............................................. 3
(A) DEFINITIONS ........................................................................................................ 3
(B) RULES OF CONSTRUCTION .............................................................................. 12
SECTION 2. RATIFICATION .................................................................................................. 13
SECTION 3. FINDINGS ......................................................................................................... 13
(A) BENEFIT TO PUBLIC .......................................................................................... 13
(B) PLEDGED REVENUES ....................................................................................... 13
(C) EXECUTION AND DELIVERY OF THE LOAN AGREEMENT ............................. 13
SECTION 4. AUTHORIZATION OF PROJECT AND EXPENSES .......................................... 13
(A) PROJECT ............................................................................................................ 13
(B) EXPENSES .......................................................................................................... 13
SECTION 5. LOAN AGREEMENT ......................................................................................... 13
(A) AUTHORIZATIONS.............................................................................................. 14
(B) APPROVAL OF LOAN AGREEMENT .................................................................. 14
(C) TERMS OF THE LOAN AGREEMENT ................................................................ 14
(D) EXECUTION OF LOAN AGREEMENT ................................................................ 14
(E) PAYMENTS ......................................................................................................... 15
(F) PAYMENTS OR PERFORMANCE DUE ON NON-BUSINESS DAY .................... 15
(G) ADDITIONAL DOCUMENTS ............................................................................... 15
(H) DELEGATED POWERS ...................................................................................... 15
SECTION 6. DELIVERY OF LOAN AGREEMENT TO NMFA; USE OF PROCEEDS;
AND APPROPRIATIONS............................................................................................. 16
(A) DELIVERY OF LOAN AGREEMENT ................................................................... 16
(B) USE OF LOAN PROCEEDS; APPROPRIATIONS ............................................... 16
SECTION 7. RESERVED ....................................................................................................... 16
SECTION 8. LIMITED OBLIGATIONS ................................................................................... 16
SECTION 9. FUNDS AND ACCOUNTS ................................................................................. 17
(A) HOSPITALITY FEE REVENUE FUND ................................................................. 17
(B) HOSPITALITY FEE PROGRAM ACCOUNT ........................................................ 17
(C) EXPENSE ACCOUNT ......................................................................................... 17
(D) HOSPITALITY FEE BOND FUND ........................................................................ 17
SECTION 10. ADMINISTRATION OF HOSPITALITY FEE REVENUE FUND ........................ 17
(A) HOSPITALITY FEE BOND FUNDS...................................................................... 17
-i-
TABLE OF CONTENTS
(continued)
Page
(B) OTHER HOSPITALITY FEE OBLIGATIONS ........................................................ 18
(C) DEBT SERVICE RESERVE REQUIREMENTS ................................................... 19
(D) SUBORDINATE HOSPITALITY FEE REVENUE OBLIGATIONS ........................ 19
(E) USE OF SURPLUS HOSPITALITY FEE REVENUES .......................................... 19
SECTION 11. TRANSFERS TO PAY PRINCIPAL COMPONENT, INTEREST
COMPONENT AND EXPENSE COMPONENT OF THE LOAN AGREEMENT............ 19
(A) TRANSFER TO NMFA OF PRINCIPAL COMPONENT, EXPENSE
COMPONENT AND INTEREST COMPONENT ............................................... 19
(B) EXPENSES .......................................................................................................... 19
SECTION 12. GENERAL ADMINISTRATION OF FUNDS ..................................................... 19
(A) MONEY IN BOND FUNDS ................................................................................... 20
(B) INVESTMENT OF MONEY .................................................................................. 20
(C) DEPOSITS OF FUNDS ........................................................................................ 20
(D) VALUATION OF INVESTMENTS......................................................................... 21
(E) TERMINATION UPON DEPOSITS TO MATURITY.............................................. 21
(F) VARIABLE RATE OBLIGATIONS ........................................................................ 21
SECTION 13. PLEDGE OF PLEDGED REVENUES. ............................................................. 21
SECTION 14. ADDITIONAL HOSPITALITY FEE OBLIGATIONS........................................... 21
(A) LIMITATIONS UPON ISSUANCE OF ADDITIONAL HOSPITALITY FEE
OBLIGATIONS ................................................................................................. 21
(B) SUBORDINATE HOSPITALITY FEE OBLIGATIONS PERMITTED;
SUPERIOR HOSPITALITY FEE OBLIGATIONS PROHIBITED ....................... 22
(C) VARIABLE INTEREST RATE .............................................................................. 22
(D) CERTIFICATE OF INDEPENDENT ACCOUNTANT ............................................ 23
SECTION 15. REFUNDING BONDS PAYABLE FROM HOSPITALITY FEE
REVENUES ................................................................................................................. 23
(A) PRIVILEGE OF ISSUING REFUNDING HOSPITALITY FEE OBLIGATIONS ...... 23
(B) LIMITATIONS UPON ISSUANCE OF REFUNDING HOSPITALITY FEE
OBLIGATIONS ................................................................................................. 23
(C) REFUNDING PART OF AN ISSUE PAYABLE FROM HOSPITALITY FEE
REVENUES ..................................................................................................... 23
(D) LIMITATIONS UPON ISSUANCE OF ANY REFUNDING OBLIGATION
PAYABLE FROM HOSPITALITY FEE REVENUES ......................................... 24
SECTION 16. PROTECTIVE COVENANTS ........................................................................... 24
SECTION 17. DEFEASANCE ................................................................................................ 24
-ii-
TABLE OF CONTENTS
(continued)
Page
SECTION 18. NOTICES ......................................................................................................... 24
SECTION 19. AMENDMENTS ............................................................................................... 25
SECTION 20. REPEALER...................................................................................................... 26
SECTION 21. SEVERABILITY ............................................................................................... 26
SECTION 22. EMERGENCY DECLARATION........................................................................ 26
SECTION 23. SUMMARY FOR PUBLICATION ..................................................................... 26
-iii-
End of TOC - Do not delete this paragraph!
Z:\08796 - City of Albuquerque, New Mexico\00020 - Hospitality Fee Loan\Ordinance (without GRT)_v1_5-17-04.doc
DRAFT 12/19/11 7:04 AM
-i-