ORD 2015-24 Adopted ORDINANCE NO. 2015-24
AN AMENDED AND RESTATED ORDINANCE AUTHORIZING THE CITY OF
NORTH AUGUSTA, SOUTH CAROLINA TO ENTER INTO AN INSTALLMENT
PURCHASE TRANSACTION IN THE PRINCIPAL AMOUNT OF NOT
EXCEEDING THIRTEEN MILLION DOLLARS ($13,000,000) TO REFINANCE
THE COSTS RELATING TO THE CONSTRUCTION AND EQUIPPING OF A
PARKING GARAGE ON CERTAIN REAL PROPERTY OWNED BY THE CITY
AND DESCRIBED HEREIN AND FINANCE THE COSTS RELATING TO THE
CONSTRUCTION AND EQUIPPING OF CERTAIN ROADS, WATER, SEWER
AND RELATED INFRASTRUCTURE LOCATED WITHIN A TAX INCREMENT
FINANCING DISTRICT OF THE CITY; AUTHORIZING THE EXECUTION AND
DELIVERY OF VARIOUS DOCUMENTS INCLUDING THE BASE LEASE
AGREEMENT AND THE INSTALLMENT PURCHASE AND USE AGREEMENT;
DELEGATING THE AUTHORITY TO THE MAYOR AND CITY
ADMINISTRATOR TO DETERMINE CERTAIN MATTERS; AND OTHER
MATTERS RELATING THERETO.
BE IT ORDAINED, BY THE CITY COUNCIL OF THE CITY OF NORTH
AUGUSTA, AS FOLLOWS:
Section 1. Definitions.
The terms defined in this Section for all purposes of this amended and restated
ordinance (this "Ordinance") shall have the respective meanings as set forth in this Section.
The term:
"Bank" means Bank of America, N.A., or any affiliate of Bank of America, N.A. or
such other financial institution as approved by the City Representative.
"Base Lease" means the Amended and Restated Base Lease Agreement by and
between the City and the Corporation to be dated as of the date of its delivery, together with
any amendments, modifications and restatements thereof or substitutions therefor, in each
case the form of which shall be negotiated, determined and finalized by a City
Representative.
"Bond" means, collectively, the Interim Bond and the Permanent Bond.
"Bond Agreement" means the Bond Agreement by and between the Corporation and
the Trustee (or the Bank, as more fully provided herein) to be dated as of the date of its
delivery, together with any amendments, modifications and restatements thereof or
substitutions therefor.
"City"means the City of North Augusta, South Carolina.
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"City Administrator" shall mean the City Administrator of the City and any
individual appointed to act as City Administrator subsequent hereto.
"City Clerk" shall mean the City Clerk of the City of North Augusta.
"City Council"means the City Council of the City of North Augusta.
"City Representative" shall mean the Mayor, the City Administrator or any other
City official or representative selected to act on behalf of the City.
"Corporation" means the North Augusta Public Facilities Corporation, a South
Carolina nonprofit corporation.
"Financing" means, collectively, the Prior Interim Financing, the Interim Financing
and the Permanent Financing, all as more fully described in Sections 2(c) and (d) hereof.
"Financing Documents" means collectively, the Base Lease, the Installment
Purchase Agreement, and the Bond Agreement.
"Installment Payments"has the meaning assigned to such term in Section 2(e).
"Installment Purchase Agreement" means the Amended and Restated Installment
Purchase and Use Agreement by and between the Corporation and the City to be dated as of
the date of its delivery, together with any amendments, modifications and restatements
thereof or substitutions therefor, in each case the form of which shall be negotiated,
determined and finalized by a City Representative.
"Interim Bond' means the installment purchase revenue bond issued by the
Corporation in connection with the Interim Financing in the form of a not exceeding
$13,000,000 Taxable Installment Purchase Revenue Bond (Parking Garage and
Infrastructure Project), Series 2016.
"Interim Financing" means the installment purchase transaction to be entered into
in anticipation of the Permanent Financing, all for the purposes of refinancing or financing
the Project, and consisting of the issuance of the Interim Bond.
"Mayor" shall mean the Mayor of the City.
"Ordinance" means this Ordinance of the City.
"Permanent Bond" means the installment purchase revenue bond(s) issued in
connection with the Permanent Financing to refinance or refund the Interim Bond.
"Permanent Financing" means the installment purchase transaction to be entered
into in order to refund or refinance the Interim Financing, all for the purpose of financing the
Project, and consisting of the issuance of the Permanent Bond.
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"Prior Interim Bond" means the installment purchase revenue bond issued by the
Corporation in connection with the initial Interim Financing in the form of a $10,000,000
Taxable Installment Purchase Revenue Bond (Parking Garage Project), Series 2015A dated
January 21, 2015.
"Prior Interim Financing"means the initial installment purchase transaction entered
into on January 21, 2015 through the issuance of the Prior Interim Bond, in anticipation of
the Permanent Financing, all for the purpose of financing the Prior Project.
"Prior Ordinance" means an ordinance enacted by the City Council on December
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15, 2014, the provisions of which, in part, authorized the Prior Project, the Prior Interim
Financing and the approval of the issuance of the Prior Interim Bond by the Corporation.
"Prior Project"means the construction and equipping of a parking garage facility.
"Project" means (a) the Prior Project, and (b) the construction and equipping of
roads, water, sewer and related infrastructure of the City, such infrastructure to be located
generally and bound by the Savannah River to the south, Georgia Avenue to the east, the
brick ponds to the north and the Hammond's Ferry subdivision to the west, and those
portions of Center Street and Railroad Avenue adjacent to such parcels, as applicable.
"Real Property" means all those certain pieces, parcels or tracts of land as described
on Exhibit A hereto, including the existing improvements thereon as of the date hereof
"State" shall mean the State of South Carolina.
"Trustee" means a financial institution that shall act as trustee in connection with the
consummation of the Financing Documents, such institution to be selected by a City
Representative; provided that the Financing Documents may provide that so long as the
Bank is the sole owner of the Bond, the Bond Agreement will function as a loan agreement
between the Bank, for its own account and not as a bond trustee, and the Corporation and, if
the Bond Agreement provides for the role of a Trustee, then, except as otherwise provided
in the Bond Agreement, (a) the Bank shall succeed to all of the rights and obligations of the
Trustee thereunder and (b) all references therein to the Trustee shall be deemed to be
references to the Bank.
Section 2. Findings and Determinations.
The City Council hereby finds and determines:
(a) The City is a body politic and corporate of the State and as such possesses all
g eneral powers granted to municipalities of the State.
(b) Under South Carolina law, the City is authorized to sell, lease or dispose of
personal and/or real or mixed property.
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(c) The City Council enacted the Prior Ordinance to provide for the authorization
of the Prior Project, the entering into of the Prior Interim Financing and the approval of the
issuance by the Corporation of the Prior Interim Bond. The provisions of the Prior
Ordinance allowed for the extension of the Prior Interim Financing subject to the approval
of the Bank. This Ordinance is being enacted for the purposes of: (i) providing for the
refinancing of the Prior Interim Financing and providing funds to payoff the Prior Interim
Bond; (ii) expanding the original scope of the Prior Project by increasing the par amount of
the original authorization contained within the Prior Ordinance by $3,000,000 and
expanding the scope of the Prior Project to include the construction and equipping of roads,
water, sewer and related infrastructure of the City; (iii) authorizing the entering into and
execution of the Financing Documents; (iv) authorizing the consummation of the Interim
Financing and the approval of the issuance and delivery by the Corporation of the Interim
Bond; and (v) amending and restating the Prior Ordinance.
(d) The Financing of the Project will be effected through an installment purchase
transaction pursuant to which the City will enter into the Base Lease and the Installment
Purchase Agreement; provided that it is understood that the installment purchase transaction
initially will be structured as the Interim Financing and that the maturity of such Interim
Financing will be approximately one year from the closing thereof, subject to a one year
extension as determined by the Bank in its sole discretion, and that the Permanent Financing
will occur on or before the maturity of the Interim Financing, all as more fully contemplated
in the Financing Documents.
(e) Pursuant to the provisions of the Base Lease, the City will lease the Real
Property to the Corporation in consideration of (i) the issuance by the Corporation of the
Bond pursuant to the provisions of the Bond Agreement, and (ii) the payment of Base Lease
Rent (as defined in the Base Lease) to the City. The Bond will be paid by the Corporation
from the receipts of certain payments (the "Installment Payments") made by the City to the
Corporation under the provisions of the Installment Purchase Agreement. Pursuant to the
provisions of the Installment Purchase Agreement, the City will agree to purchase from the
Corporation the Facilities (as defined in the Installment Purchase Agreement) by making the
Installment Payments. Notwithstanding the foregoing, the Financing Documents will
provide that the refunding or refinancing of the Interim Bond with the Permanent Bond will
be permitted and, when consummated, will not constitute one or more Installment Payments,
but rather, in such case, the Installment Payments will be provided for in the definitive
documents relating to the issuance of the Permanent Bond.
(f) The proceeds of the Bond will be used (i) to defray all or a portion of the
costs of the financing or refinancing of the Project (or, in the case of the Permanent Bond, to
refund the Interim Bond), and(ii) to pay the costs of issuance of the Bond.
(g) It is understood that the Interim Bond evidencing the Interim Financing shall
be purchased initially by the Bank.
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(h) The rights to receive Installment Payments, together with all rights, but not
obligations of the Corporation under the Base Lease and the Installment Purchase
Agreement, shall be assigned by the Corporation to the Trustee, or the Bank, as applicable,
under the Bond Agreement as security and a source of payment for the Bond. In addition,
the revenues generated by the Project shall be assigned by the Corporation and the City to
the Trustee, or the Bank, as applicable, under the Bond Agreement as security and a source
of payment for the Bond. It is also understood that the Interim Bond evidencing the Interim
Financing will be secured in part by a covenant of the Corporation to consummate the
Permanent Financing described herein through the issuance of the Permanent Bond on or
prior to the maturity of the Interim Bond and the proceeds of the Permanent Bond will be
used, among other purposes, to refund the Interim Bond.
(i) As previously discussed, in order to finance or refinance all or a portion of
the costs of the Project, the City Council has determined that it is necessary and in the best
interest of the City to enter into the Financing authorized by this Ordinance with the
Corporation. The Financing will serve a proper public and corporate purpose of the City.
(j) It is understood that the Permanent Financing shall be subject to approval of a
separate ordinance of the City to be enacted by City Council prior to the consummation of
such Permanent Financing.
Section 3. Authorization for the Project; Pledge of Revenues.
The Project is hereby approved. The City Representative or such other appropriate
officers and agents of the City are empowered and directed to negotiate, execute and deliver
contracts, agreements, certificates and conveyances necessary or convenient to accomplish
the Project and pledge the revenues therefrom as security for payment of the Bond,
including, without limitation, the Financing Documents. In connection with the
consummation of the Interim Financing, the City is authorized to pay or is authorized to
cause the Corporation to pay to the Bank all accrued interest and any unused fees with
respect to the Prior Interim Bond, such payment of accrued interest and any unused fees to
be paid to the Bank at or prior to the closing of the Interim Financing.
Section 4. Approval of Corporation and Issuance of Bond.
The City hereby ratifies the formation of the Corporation, the appointment of the
Corporation's initial Board of Directors and the issuance by the Corporation of the Bond.
The City also acknowledges that, in accordance with the provisions of the Installment
Purchase Agreement, the City will acquire absolute title to the Facilities upon payment of all
amounts due under the Installment Purchase Agreement; provided, however, that the City
does not hereby waive its right to terminate the Installment Purchase Agreement prior to
such payment in accordance with the provisions of the Installment Purchase Agreement.
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Section 5. Delegation of City Representative to Approve Base Lease, Installment
Purchase Agreement, and Bond Agreement.
The City Council hereby approves the City Representative to negotiate, make such
determinations as may be necessary, and finalize the Base Lease. The Mayor or the City
Administrator is hereby authorized, empowered and directed to execute, acknowledge and
deliver, and the City Clerk is hereby authorized, empowered and directed to attest, the Base
Lease in the name and on behalf of the City, and thereupon to cause the Base Lease to be
delivered to the Corporation and to cause the Base Lease (or memorandum thereof) to be
recorded in the office of the Register of Deeds for Aiken County, South Carolina. Any
amendment to the Base Lease shall be executed in the same manner.
The City Council hereby approves the City Representative to negotiate, make such
determinations as may be necessary, and finalize the Installment Purchase Agreement. The
Mayor or the City Administrator is hereby authorized, empowered and directed to execute,
acknowledge and deliver, and the City Clerk is hereby authorized, empowered and directed
to attest, the Installment Purchase Agreement in the name and on behalf of the City, and
thereupon to cause the Installment Purchase Agreement to be delivered to the Corporation
and to cause the Installment Purchase Agreement (or memorandum thereof) to be recorded
in the office of the Register of Deeds for Aiken County, South Carolina. Any amendment to
the Installment Purchase Agreement shall be executed in the same manner.
The City is not a party to the Bond Agreement, but the City acknowledges that the
Bond Agreement is an integral part of the documents related to the Financing. A City
Representative is hereby authorized to provide for the review and approval of the form of
the Bond Agreement with such additions, deletions, amendments and changes as may be
deemed necessary by the parties thereto and approved by the City Representative prior to the
consummation of the Financing.
Section 6. Execution of Documents.
The Mayor and the City Administrator, or either one of them acting alone, and the
City Clerk are fully empowered and authorized to take such further actions and to execute
and deliver such additional documents as may be deemed necessary or desirable in order to
effectuate the execution and delivery of the Base Lease and the Installment Purchase
Agreement in accordance with the terms and conditions therein set forth, and the
transactions contemplated hereby and thereby, and the action of such officers in executing
and delivering any of such documents, in such form as the Mayor and the City
Administrator shall approve, is hereby fully authorized; provided, however, that that after
the issuance of the Interim Bond but before any drawdown of funds thereunder by the
Corporation in excess of the amount of the Prior Interim Bond ($10,000,000), the City
Council shall have adopted a resolution, in meeting duly called and with a quorum present,
authorizing the Mayor and the City Administrator to request that the Corporation effect one
or more draws under the Interim Bond in amounts up to but not to exceed, together with the
principal amount of the Prior Interim Bond, the available principal amount of the Interim
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1 Bond ($13,000,000). The City Council hereby retains the law firm of Pope Flynn, LLC as
bond counsel with respect to the transactions authorized by this Ordinance.
Section 7. Severability.
If any section, phrase, sentence, or portion of this Ordinance is for any reason held
invalid or unconstitutional by any court of competent jurisdiction, such portion shall be
deemed a separate, distinct, and independent provision, and such holding shall not affect the
validity of the remaining portions thereof.
Section 8. Amendment and Restatement; Repeal of Inconsistent Ordinances and
Resolutions.
This Ordinance amends and restates the Prior Ordinance. All ordinances and
resolutions of the City, and any part of any ordinance or resolution, inconsistent with this
Ordinance are hereby repealed to the extent of such inconsistency.
Section 9. Effective Date.
This Ordinance shall be effective upon its enactment by the City Council.
DONE, RATIFIED AND ENACTED BY THE MAYOR AND CITY COUNCIL
OF THE CITY OF NORTH AUGUSTA, SOUTH CAROLINA IN MEETING DULY
ASSEMBLED ON THIS 4TH DAY OF JANUARY, 2016.
(SEAL)
Lark W. Jones, Mayor
ATTEST:
el I-v.—. R .
Donna B. Young, City erk
First Reading: December 21, 2015
Second Reading: December 21, 2015
Public Hearing: January 4, 2016
Third Reading: January 4, 2016
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EXHIBIT A
Description of the Real Property
ALL THAT LOT, TRACT OR PARCEL OF LAND, WITH ANY IMPROVEMENTS
THEREON, SITUATE, LYING AND BEING IN THE CITY OF NORTH AUGUSTA,
AIKEN COUNTY, SOUTH CAROLINA, HAVING THE FOLLOWING METES AND
BOUNDS, TO WIT:
COMMENCING AT THE SOUTHEAST INTERSECTION OF BLUFF AVENUE AND
WEST AVENUE AT A PK NAIL FOUND BEING THE POINT OF COMMENCEMENT;
THENCE SOUTH 19 DEGREES 27 MINUTES 31 SECONDS WEST (s19°27'31"W), A
DISTANCE OF 185.93 FEET TO A #4 REBAR SET BEING THE POINT OF
BEGINNING: THENCE SOUTH 70 DEGREES 18 MINUTES 41 SECONDS EAST
(S70°18'41"E), A DISTANCE OF 324.42 FEET TO A #4 REBAR SET; THENCE SOUTH
17 DEGREES 04 MINUTES 52 SECONDS WEST (S 17°04'52"W), A DISTANCE OF
194.71 FEET TO A #4 REBAR FOUND; THENCE NORTH 72 DEGREES 55 MINUTES
08 SECONDS WEST (N72°55'08"W), A DISTANCE OF 18.43 FEET TO A #4 REBAR
FOUND; THENCE ALONG A CURVE HAVING A RADIUS OF 118.00 FEET AND AN
ARC LENGTH OF 78.37 FEET, WITH A CHORD BEARING OF SOUTH 88 DEGREES
03 MINUTES 18 SECONDS WEST (S88°03'18"W) AND A CHORD DISTANCE OF
76.94 FEET TO #4 REBAR SET; THENCE NORTH 67 DEGREES 48 MINUTES 09
SECONDS WEST (N67°48'09"W), A DISTANCE OF 42.59 FEET TO A #4 REBAR
FOUND; THENCE NORTH 19 DEGREES 25 MINUTES 18 SECONDS EAST
(N19°25'18"E), A DISTANCE OF 24.57 FEET TO A #4 REBAR SET; THENCE NORTH
70 DEGREES 19 MINUTES 10 SECONDS WEST (N70°19'10"W), A DISTANCE OF
199.89 FEET TO A #4 REBAR SET; THENCE NORTH 19 DEGREES 27 MINUTES 31
SECONDS EAST (N19°27'31"E), A DISTANCE OF 28.39 FEET TO A #4 REBAR SET;
THENCE SOUTH 70 DEGREES 12 MINUTES 34 SECONDS EAST (S70°12'34"E), A
DISTANCE OF 5.00 FEET TO A #4 REBAR SET; THENCE NORTH 19 DEGREES 27
MINUTES 31 SECONDS EAST (N19°27'31"E), A DISTANCE OF 77.21 FEET TO A #4
REBAR SET; THENCE NORTH 70 DEGREES 12 MINUTES 34 SECONDS WEST
(N70°12'34"W), A DISTANCE OF 5.00 FEET TO A #4 REBAR SET; THENCE NORTH
19 DEGREES 27 MINUTES 31 SECONDS EAST (N 19°27'31"E), A DISTANCE OF 91.71
FEET TO A #4 REBAR SET BEING THE POINT OF BEGINNING CONTAINING 1.51
ACRES.
A-1
STATE OF SOUTH CAROLINA )
)
COUNTY OF AIKEN )
I, the undersigned, City Clerk of the City of North Augusta, South Carolina (the
"City"), Do HEREBY CERTIFY THAT:
The foregoing constitutes a true, correct and verbatim copy of an ordinance (the
"Ordinance") enacted on January 4, 2016 by the City Council of the City of North Augusta
(the "City Council"), the governing body of the City, which was given three readings on
three separate days, with an interval of not less than seven days between the second and
third readings. The original of the Ordinance is duly entered in the permanent records of
minutes of meetings of the City Council, in my custody as such City Clerk.
Said meetings were duly called, and all members of the City Council were notified of
the same; that a quorum of the membership attended and remained throughout the
proceedings incident to the enactment of the Ordinance.
As required by Chapter 4, Title 30 of the Code of Laws of South Carolina 1976, as
amended, a notice of the meeting (including the date, time, and place thereof, as well as an
agenda) was posted prominently in the offices of the City at least twenty-four hours prior to
said meetings. In addition, the local news media and all persons requesting notification of
meetings of the City Council were notified of the time, date, and place of such meetings, and
were provided with a copy of the agendas therefor at least twenty-four hours in advance of
such meetings.
The Ordinance is now of full force and effect, and has not been modified, amended
or repealed.
IN WITNESS WHEREOF, I have hereunto set my hand and the official seal of the City,
this 41A-day of January, 2016.
(SEAL)
City Clerk
City of North Augusta, South Carolina
First Reading: December 21, 2015
Second Reading: December 21, 2015
Public Hearing: January 4, 2016
Third Reading: January 4, 2016
4849-4655-5436,v. 3