(A) Defined Terms. As used in this Formation Resolution, the following terms will have the meanings specified, unless the context clearly requires otherwise (such meanings to be equally applicable to both the singular and the plural forms of the terms defined):
“Act” means Sections 5-11-1 through 5-11-27 NMSA 1978, as supplemented and amended, the home rule powers and all enactments of the City Council, including this Formation Resolution.
“Bond Resolution” means a resolution authorizing issuance of District Bonds in an aggregate principal amount not to exceed $5,345,000 for the purpose of financing the District Improvements and containing certain provisions set forth in Section 6 of this Formation Resolution.
“City” means the City of Albuquerque, New Mexico.
“Clerk” means the City Clerk.
“Developer Improvements” means the infrastructure improvements to be constructed by the Petitioner, through financing or resources other than the proceeds of District Bonds, as described in and according to the construction schedule provided in the Feasibility Study.
“Development Agreement” means the development agreement entered by and between the City and the Petitioner in accordance with Section 6-9-4(I), ROA 1994, of the PID Ordinance.
“District” means Saltillo Public Improvement District.
“District Bonds” means bonds proposed to be issued by the District pursuant to the Act.
“District Boundary Map” means the map attached as Exhibit A to the General Plan.
“District Improvements” means the infrastructure improvements to be financed with the proceeds of District Bonds as described and in the approximate locations set forth in the Feasibility Study
“Expenses” means the City’s costs of reviewing the Petition and other documentation related to the Petition, including legal fees.
“Feasibility Study” means the report of the study of the estimated costs and financing methods of the District Improvements submitted by the Petitioner in connection with its Petition.
“Formation Documents” means the Petition and such other documents as are required by the Act and the PID Ordinance to be submitted by a petitioner in connection with a petition for the formation, implementation and governance of the District.
“Formation Resolution” means this resolution adopted by the City in connection with its approval of the formation of the District.
“Infrastructure Improvements” means the Developer Improvements and the District Improvements.
“General Plan” means the general plan submitted by the Petitioner in connection with the Petition.
“Land” means the real property described in the District Boundary Map.
“Petition” means the petition for formation of Saltillo Public Improvement District, including all supporting documentation, submitted to the City pursuant to the Act and the PID Ordinance for formation of the proposed District.
“Petitioner” means Sapphire, LLC, a New Mexico limited liability company, Vantage Builders, Inc., a New Mexico corporation, and Calabacillas Properties LLC, a New Mexico limited liability company, collectively.
“PID Ordinance” means Albuquerque Ordinance 12-2003, codified at Sections 6-9-1 et seq., ROA 1994, the City’s Public Improvement District Ordinance.
“Rate and Method of Special Levy Apportionment” means the rate, method of apportionment and manner of collection of the Special Levy, the proposed form of which was submitted by the Petitioner in connection with the Petition.
“Special Levy” means the special levy to be imposed on the Land pursuant to Section 5-11-20 NMSA 1978.
“State” means the State of New Mexico.
(B) Construction of Formation Resolution. Except as otherwise expressly provided in this Formation Resolution, or unless the context otherwise requires:
(1)
The singular includes the plural and the plural includes the singular.
(2)
All accounting terms not otherwise defined in this Formation Resolution have the meanings assigned to them in accordance with generally accepted accounting principles in the United States.
(3)
All references to Sections will refer to Sections of this Formation Resolution, unless otherwise stated.
(4)
Words importing any gender include the other gender.
(5)
“Hereby” refers to this Formation Resolution and not solely to the particular portion of this Formation Resolution in which such word is used. All times will be local time in the City unless otherwise designated in this Resolution.
(C) Findings. The City hereby declares that it has considered the Petition and all other relevant information and data, and makes the following findings:
(1)
The persons named as the owners of the Land in the Petition own 100% of the Land located within the District.
(2)
As planned and proposed by the Petitioner, the District Improvements will be constructed to City specifications and will be subject to inspection, approval and acceptance by the City as provided in the Development Agreement.
(3)
The District Bonds proposed to be issued by the District will be the obligations solely of the District, and will not be backed by the faith, credit, general funds or resources of the City in any manner. Owners of District Bonds will have no right to require that the City or the District impose ad valorem property taxes to pay District Bonds.
(4)
The District will serve the interests, convenience and necessity of Petitioner, future owners of parcels located within the District and the citizens of the City, as follows:
(a)
The cost of constructing the District Improvements will be allocated in a fair and equitable manner to the owners of Land who will utilize the District Improvements, and will not be passed on to the citizens of the City or the City itself; and
(b)
The City will receive the benefit of the District Improvements through dedication of the District Improvements as described in the Development Agreement.
(5)
The financing of the District Improvements is feasible and, based upon the Feasibility Study, will not impose an undue burden on the future owners of property located within the District or served by the District Improvements.
(6)
The financing of the District Improvements will enable the District to construct those improvements in a cost-effective manner.
(7)
The District is planned and will be implemented in a manner that provides for the Expenses to be paid by the District.
(8)
As planned, the District Improvements and the Developer Improvements are consistent with the City’s development goals and growth control policies.
(9)
The formation of the District, subject to the requirements and limitations specified in this Formation Resolution, is consistent with the requirements of the PID Ordinance.
(D)
Waiver of Additional Hearing and Election. Based on the information provided by the Petitioner in the Petition, the Petition has been signed by and on behalf of the owners of 100% of the Land to be included in the proposed District, and on that basis the City waives the requirements for posting, publication, mailing, notice, hearing and owner election, as authorized by Section 5-11-7(I) NMSA 1978.
(E) Approval of Petition and Formation Documents; Formation of District; Approval of District Foreclosure Procedures for Delinquent Special Levy Installments.
(1) Approval of Petition. The Petition is hereby accepted and approved.
(2) Approval of District pursuant to submitted documents. Saltillo Public Improvement District is hereby ordered approved and formed to carry out the purposes set forth in, and according to the provisions of, this Formation Resolution.
(a)
The General Plan is hereby accepted and approved.
(b)
The Development Agreement is hereby accepted and approved.
(c)
The Rate and Method of Special Levy Apportionment, and the apportionment and manner of collection of Special Levy, is hereby accepted and approved.
(d)
The Notice of Special Levy attached to the Petition is hereby approved.
(e)
The District will have the powers necessary and convenient to finance and construct the District Improvements as provided in the General Plan, the Feasibility Study, the Rate and Method of Special Levy Apportionment and the Development Agreement, as those documents may be amended or modified with the approval of the City. The District and the City shall be bound by the terms of those documents.
(3) The purpose of the District will be to provide financing of the District Improvements set forth in the Petition.
(4) The District Bonds will not exceed the principal amount set forth in the Petition and will be within the value-to-lien ratio described in the Petition.
(5) The Special Levy will not exceed the amounts set forth in the Petition, except as otherwise approved by the City Council in this Formation Resolution.
(6) The District will be self-supporting, as provided in Section 6-9-1(F), ROA 1994, of the PID Ordinance.
(7) The District shall comply with existing City policies for development, growth management and conservation, as provided in Sections 6-9-1(A) and -1(I) of the PID Ordinance.
(8) Compliance with PID Ordinance. The PID financing proposed in the Petition and other Formation Documents meets the applicable requirements of Sections 6-9-5 and 6-9-6, ROA 1994, of the PID Ordinance.
(9) Development Agreement. The Mayor and the Chief Administrative Officer of the City, on behalf of the City, are hereby authorized and directed to execute and deliver the Development Agreement to the Petitioners, and any agreement between the City and the Petitioners, and any extension of or amendments to any of those documents or any substitutions therefore, with such terms and changes as are not inconsistent with this Formation Resolution and as are approved by the Mayor or Chief Administrative Officer of the City, whose execution of any such document, or any extensions thereof or substitutions therefore, in their final forms shall constitute conclusive evidence of the executing officer's approval and compliance with this Section with respect to such documents. The Clerk is authorized to affix the seal of the City and to attest those documents signed by an Authorized Officer, as necessary.
(10) Execution of Documents. The officers, agents and employees of the City are hereby authorized and empowered to take all actions necessary and to execute and deliver all documents relating to or requested by the District to carry out and comply with the provisions of the Formation Documents.
(11) District Governing Body Initial Meeting. As provided in the Development Agreement, the District’s governing body will hold a public meeting within 40 days after the date of adoption of this Formation Resolution. At that meeting, the District’s governing body will adopt an open meetings policy and bylaws for the District and will take such other action toward or in connection with the issuance of District Bonds as is authorized by this Formation Resolution.
(12) District Procedures for Foreclosure in Connection with Delinquent Special Levy Installments. The District will establish procedures for foreclosure of delinquent Special Levies and for redemption of foreclosed property, which procedures will comply with Sections 5-11-20(G) and 5-11-23(F) NMSA 1978 and will be substantially similar to the foreclosure and redemption procedures applicable to Municipal Improvement Districts set forth in Sections 3-33-28 through 3-33-30 NMSA 1978, and as set forth for the District in the Development Agreement approved by this Formation Resolution.
(F) Authorization of District Bonds. The District may issue District Bonds pursuant to the Bond Resolution in the amounts and subject to the requirements and limitations set forth in this Formation Resolution.
(1) The Bond Resolution will be approved by the City’s Debt Committee before its enactment by the District.
(2) The Bond Resolution will include, at minimum, the following provisions for the protection of owners of the District Bonds:
(a)
Reasonably Required Reserve Fund. The Bond Resolution will provide for the establishment of a debt service reserve fund in an amount, on the date of issuance of the District Bonds, equal to the least of (i) the maximum annual debt service requirements on the District Bonds; (ii) 125% of the average annual debt service requirements on the District Bonds; or (iii) 10% of the aggregate principal amount of the District Bonds;
(b)
Developer Contribution. The Bond Resolution will include provisions for a contribution agreement or a credit facility to be provided by the Petitioner (either, the “Developer Contribution”), in an amount deemed appropriate by the City’s Debt Committee and shall provide, at a minimum, for payment from the Petitioner of a Developer Contribution in an amount equal to the maximum annual principal and interest due in connection with the District Bonds in the event the amount on deposit in the debt service reserve fund established in connection with the District Bonds is not sufficient at any time while the Petitioner is obligated to maintain the Developer Contribution to meet the debt service requirements next coming due. The Developer Contribution will be provided by the Petitioner in the form of a letter of credit, through the Petitioner’s covenant to maintain a cash reserve of the required amount, through a combination of those methods, or through alternative methods satisfactory to the City’s Debt Committee. The Developer Contribution will be in addition to the debt service reserve fund.
(c)
Public Offering; Minimum Denominations. The Bond Resolution will provide that the District Bonds will be sold pursuant to a public offering and issued in minimum amounts of $25,000.
(d)
Maximum Maturity. The final maturity date for the District Bonds will not be more than 30 years after the date of issuance.
(e)
Appointment of Trustee. The Bond Resolution will include provisions for appointment of a trustee pursuant to an indenture of trust or other similar instrument.
(f)
Exercise of District Rights and Remedies by Trustee. The Bond Resolution will provide that the trustee may exercise the rights and remedies of the District for the protection of bondholders, including without limitation the trustee’s collection of Special Levy revenues, the trustee’s foreclosure of delinquent Special Levy installments, and the trustee’s appointment of a receiver or other agent to complete the construction of the District Improvements in the event of a default in the payment of debt service on the District Bonds, which default cannot be cured (x) by drawing on the debt service reserve fund established for the District Bonds, or (y) through payment pursuant to the Developer Contribution, which appointment may be made irrespective of whether foreclosure remedies are exercised.
(G) City Ratification of District Bond Resolution. Before the issuance of District Bonds, the District’s Bond Resolution shall be presented to the City Council for approval as being consistent with the provisions of Section 6 of this Resolution.
(H) District Governance.
(1) The District’s governing body will be composed of five members, including:
(a)
two members appointed by the Council, one of which will be a City Official employed in the Department of Municipal Development, and one of which will be a City Official employed in the Department of Finance and Administration; which members will initially be the current City Treasurer and the current Director of the City Department of Municipal Development, a position that is currently held by John Castillo;
(b)
two members appointed by Petitioner, and consented to by the City Council, which members will be initially be Rex Wilson, member of Petitioner, and Vincent Pizzonia, member of a member of Petitioner; and
(c)
one member agreed upon by the City Council and by Petitioner, which member may be the current District 5 City Councilor, a position that is currently held by Jon Zaman.
(2) Vincent Pizzonia, the current City Treasurer, and the current Director of the Department of Municipal Development will serve 6-year terms.
(3) Rex P. Wilson and the current District 5 City Councilor will serve 4-year terms.
(4) Pursuant to Section 5-11-6 of the Act, Cilia Aglialoro is appointed to be the clerk of the District and Rex Wilson is appointed to be treasurer of the District.
(5) Within six years following the date of formation of the District, the District will hold an election of members of the governing body of the District as required by law, unless no District Bonds are then outstanding, in which case the Council may, at the request of the District, appoint five then-sitting City Councilors to serve as the governing body.
(I) Amendments. This Formation Resolution may be amended or supplemented by ordinance or resolution adopted by the City Council in accordance with the laws of the City and the State.
(J) Repealer. All resolutions, or parts thereof in conflict with the provisions of this Formation Resolution, are hereby repealed to the extent only of such inconsistency. To the extent, if any, that this Formation Resolution conflicts with any provision of the PID Ordinance, that provision is waived solely with respect to the formation of and other matters concerning the District, and the PID Ordinance will remain in full force and effect in connection with any other application or project to which the PID Ordinance applies or may apply in the future. This repealer will not be construed to revive any resolution, or part thereof, heretofore repealed.
(K) Severability. If any section, paragraph, clause or provision of this Formation Resolution will for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision will in no manner affect any remaining provisions of this Formation Resolution.
(L) Publication of Notice of Adoption of Formation Resolution. The Clerk is hereby directed to publish a notice of this Formation Resolution, in substantially the following form:
“Notice is hereby given of the title and general summary of the subject matter contained in a resolution duly adopted and approved by the City Council of the City of Albuquerque, New Mexico, relating to the approval of Saltillo Public Improvement District. Complete copies of the resolution are available for public inspection during the regular business hours of the City Clerk, City of Albuquerque, New Mexico.
(Res. R-2007-150, approved 12-4-07; Am. Res. R-2008-047, approved 4-17-08)