(A) Defined Terms. As used in this Formation Resolution, the following terms shall 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's Governing Body, including this Resolution.
ADDITIONAL IMPROVMENTS
means the infrastructure improvements to be constructed by the Applicant, through financing or resources other than the proceeds of District Bonds, as described in and according to the construction schedule provided in the Application and as described, and in the approximate locations shown, in the Master General Plan and Supplemental General Plans.
ADJUSTED MAXIUM SPECIAL LEVY
means the maximum Special Levy that may be imposed by each District on specific categories of Levyable Property, as determined by the Adjusted Rate and Method applicable to that District, which Adjusted Maximum Special Levy shall, at the time of imposition, not exceed the 1.95% maximum tax and assessment burden, as provided in Section 5(g) of the PID Ordinance and in accordance with State law and City policies and procedures in effect at that time.
ADJUSTED RATE AND METHOD
means an adjusted Rate and Method of Special Levy Apportionment to be implemented in connection with a specific District prior to the issuance of Bonds by that District, for the purpose of establishing the Adjusted Maximum Special Levy amounts for that District.
APPLICANT
means Mesa del Sol, LLC.
APPLICATION
means the petition for formation of the Mesa del Sol Public Improvement District Nos. 1-5 and documentation incorporated by reference in the revised Application submitted to the City on November 14, 2007 pursuant to the Act and the PID Ordinance.
BOND RESOLUTION
means a resolution of each District authorizing issuance of District Bonds in an aggregate principal amount for Districts 1 through 5 not to exceed the costs of Public Infrastructure serving Districts 1 through 5, for the purpose of financing the PID Infrastructure 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.
COUNTY
means Bernalillo County, New Mexico.
DISTRICT
or
DISTRICTS
means, as the context requires, all or any one of the Mesa del Sol Public Improvement Districts 1 through 5.
DISTRICT BONDS
means bonds proposed to be issued by Districts 1 through 5 collectively or individually pursuant to the Act.
DISTRICT BOUNDARY MAP
means the map attached as Exhibit 1 to the General Plan.
DISTRICT SPECIAL LEVIES
or
SPECIAL LEVIES
means the special levies to be imposed on the Real Property pursuant to Section 5-11-20, NMSA 1978."Expenses" means the City's costs of reviewing the Application and other documentation related to the Application, including legal fees.
FEASIBILITY STUDY
means the study of the estimated costs and financing methods of the PID Infrastructure Improvements and Additional Improvements submitted by the Applicant in connection with its Petition for formation of Mesa del Sol Public Improvement Districts 1 through 5.
FORMATION DOCUMENTS
means the Application 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 Districts.
FORMATION RESOLUTION
means this resolution adopted by the City in connection with its approval of the formation of the Districts.
MASTER GENERAL PLAN
means the Master General Plan submitted by the Applicant in connection with the Application.
MASTER PID DEVELOPMENT AGREEMENT
means the development agreement dated March 3, 2007 by and between the City and the Applicant in accordance with Section 4(I) of the PID Ordinance, which Development Agreement shall be ratified by the Districts and supplemented by Supplemental PID Development Agreements entered into by each District, the Applicant and the City, in accordance with the provisions of the Master PID Development Agreement.
PETITION
means a petition for formation of the Districts submitted pursuant to the Act and the PID Ordinance for formation of the proposed Districts.
PID INFRASTRUCTURE IMPROVEMENTS
means the infrastructure improvements to be financed with the proceeds of District Bonds or special levy revenue, if applicable, as described and in the approximate locations shown in the Master Development Agreement and Supplemental Development Agreements.
PID ORDINANCE
means City Council Ordinance Enactment No. O-2003-012.
RATE AND METHOD OF SPECIAL LEVY APPORTIONMENT
means the rate, method of apportionment and manner of collection of the District Special Levies submitted by the Applicant in connection with the Application.
REAL PROPERTY
means the real property described in the District Boundary Map.
STATE
means the State of New Mexico.
SUPPLEMENTAL GENERAL PLAN
means the supplemental general plans for each District to be authorized in accordance with the terms of this Formation Resolution and supplemental to the Master General Plan.
SUPPLEMENTAL PID DEVELOPMENT AGREEMENT
means an agreement supplementing the Master PID Development Agreement to be entered into by each District, the Applicant and the City to provide more specific details concerning the development, construction and financing of PID Infrastructure Improvements for that District through the issuance of District Bonds or special levy revenue, if applicable, by that District.
WATER AND WASTEWATER IMPROVEMENTS
means water and/or wastewater improvements that are dedicated to the Albuquerque Bernalillo County Water Utility Authority.
(B) Construction of Formation Resolution. Except as otherwise expressly provided in this 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 shall refer to Sections of this Formation Resolution, unless otherwise stated.
(4) Words importing any gender include the other gender.
(5) "Herein," "hereby," "hereunder," "hereof," "hereinbefore" and "hereafter" refer to this Formation Resolution and not solely to the particular portion of this Formation Resolution in which such word is used.
(6) 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 Application and all other relevant information and data, and hereby makes the following findings:
(1) The Applicant and persons who have authorized the Applicant to submit the Application on their behalf own 100% of the real property located within the Districts.
(2) As planned and proposed by the Applicant, the PID Infrastructure Improvements (other than the Water and Wastewater Improvements which will be dedicated to the Albuquerque Bernalillo County Water Utility Authority, certain drainage improvements to be dedicated to the Albuquerque Metropolitan Arroyo Flood Control Authority and certain road and related improvements that will be dedicated to the State and the County) will be constructed to City specifications, will be subject to inspection, approval and acceptance by the City prior to dedication to the City.
(3) The District Bonds proposed to be issued by Districts 1 through 5 will be the obligations solely of the respective Districts, 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 Districts impose ad valorem property taxes to pay District Bonds.
(4) The Districts will serve the interests, convenience and necessity of Applicant, future owners of parcels located within the Districts and the citizens of the City:
(a) The cost of constructing the PID Infrastructure Improvements will be allocated to the owners of Real Property who will utilize the PID Infrastructure Improvements, in a fair and equitable manner, 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 PID Infrastructure Improvements (other than Water and Wastewater Improvements, certain road and related improvements that will be dedicated to the State and the County and certain drainage improvements that will be dedicated to the Albuquerque Metropolitan Arroyo Flood Control Authority) through dedication of the PID Infrastructure Improvements.
(5) The financing of the PID Infrastructure Improvements is feasible and, based upon the Feasibility Study, will not impose an undue burden on the future owners of property located within the Districts or served by the PID Infrastructure Improvements.
(6) The financing of the PID Infrastructure Improvements will enable the Districts to construct those improvements in a cost-effective manner.
(7) The Districts are planned and will be implemented in a manner which provides for the Expenses to be paid by the Districts.
(8) As planned, the PID Infrastructure Improvements and Additional Improvements are consistent with the City's development goals and growth control policies.
(9) The formation of the Districts and the issuance of District Bonds subject to the requirements and limitations specified in this Formation Resolution are consistent with the requirements of the PID Ordinance.
(D) Waiver of Additional Hearing and Election.
Based on the information provided by the Applicant in the Application, the Petition has been signed by and on behalf of the owners of 100% of the Real Property to be included in the proposed Districts, 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 Application and Formation Documents; Formation of Districts; Approval of District Foreclosure Procedures for Delinquent Special Levies.
(1) The Petition is hereby accepted and approved.
(2) The Mesa del Sol Public Improvement Districts 1-5 are hereby ordered approved and formed to carry out the purposes set forth in, and according to the provisions of, this Formation Resolution.
(a) The Master General Plan and the Supplemental General Plan relating to District 1 and attached hereto as Exhibit 1 are hereby accepted and approved. Supplemental General Plans relating to Districts 2-5 must be approved by the City Council unless otherwise provided in the City PID Ordinance in effect at that time. The Districts shall include the Real Property.
(b) The Master PID Development Agreement attached hereto as Exhibit 2, and the Supplemental PID Development Agreement relating to District 1 attached hereto as Exhibit 3 are hereby accepted and approved. The Chief Administrative Officer of the City is authorized and directed to execute the Master PID Development Agreement and the Supplemental PID Development Agreement relating to District 1 on behalf of the City, with such changes as are consistent with the provisions of this Formation Resolution. Supplemental PID Development Agreements relating to Districts 2-5 must be approved by the City Council and Chief Administrative Officer of the City unless otherwise provided in the City PID Ordinance in effect at that time.
(c) The Rate and Method of Special Levy Apportionment attached hereto as Exhibit 4, and the Adjusted Rate and Method of Special Levy Apportionment relating to District 1, attached hereto as Exhibit 5, are hereby accepted and approved. The provisions for implementation of an Adjusted Rate and Method in connection with Districts 2-5 and for establishment of sufficient Adjusted Maximum Special Levies, and the apportionment and manner of collection of District Special Levies, are hereby accepted and approved.
(d) The Notice of Special Levy substantially in the form attached hereto as Exhibit 6 is hereby approved.
(e) The Districts shall have the powers necessary and convenient to finance and construct the PID Infrastructure Improvements as provided in the Master General Plan, Supplemental General Plans, Feasibility Study, Rate and Method of Apportionment, Master PID Development Agreement and Supplemental PID Development Agreements, as those documents may be amended or modified with the approval of the City. The Districts and the City shall be bound by the terms thereof.
(3) The purpose of the Districts shall be to provide financing of the PID Infrastructure Improvements set forth in the Application.
(4) The District Bonds shall not exceed the principal amount set forth in the Application and shall be within the value to lien ratio described in the Application, except as otherwise approved in a supplemental resolution by a District's governing board and, to the extent required by the PID Ordinance then in effect, the City Council, and provided further that the value to lien ratio must be in compliance with Section 5 of the PID Ordinance or as otherwise provided in the PID Ordinance then in effect.
(5) The District Special Levies shall not exceed the amounts set forth in the Adjusted Rate and Method for each District at the time that Bonds are issued.
(6) The Districts shall be self-supporting, as provided in Section 1(F) of the PID Ordinance.
(7) The Districts shall comply with existing City policies for development, growth management and conservation, as provided in Sections 1(A) and 1(I) of the PID Ordinance.
(8) The public improvement district financing proposed in the Petition and other Formation Documents meet the applicable requirements of Sections 5 and 6 of the PID Ordinance.
(9) 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 Districts to carry out and comply with the provisions of the Formation Documents.
(10) The governing body of each District shall hold a public meeting following the date of adoption of this Formation Resolution. At that meeting, the governing body shall adopt an open meetings policy and by-laws for the Districts and shall take such other action, toward or in connection with the issuance of District Bonds, as authorized by this Formation Resolution.
(11) Pursuant to the authority granted by sections 5-11-23(F) and 5-11-20(G), NMSA 1978, the Districts shall establish procedures for foreclosure of delinquent Special Levies and for redemption of foreclosed property, which procedures shall 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 Districts in the Master PID Development Agreement approved by this Resolution.
(F) Authorization of District Bonds. Districts 1 through 5 are hereby authorized to issue Bonds pursuant to Bond Resolutions in a maximum principal amount not to exceed the costs of public infrastructure allocated as provided in the Rate and Method of Apportionment of the Special Levy and the Adjusted Rate and Method of Apportionment of the Special Levy for each of Districts 1 through 5, which amount is $528,849,646, which amount may be adjusted for inflation as provided in the Master Development Agreement, and which shall further be subject to the requirements set forth in this Formation Resolution, including the limitation that the financing of District PID Infrastructure Improvements to be dedicated to governmental entities other than the City, including without limitation the Albuquerque Bernalillo County Water Utility Authority, shall not exceed the greater of $80,000,000 or 25% of the aggregate costs of public infrastructure eligible for financing by PIDs 1-5. Mesa del Sol or its designee shall be entitled to a construction management fee not to exceed 5% of the contract price for the PID Infrastructure Improvements which may be payable from proceeds of District Bonds to the extent permitted by applicable state and federal law. Any construction management fee payable from proceeds of District Bonds shall be disclosed by Mesa del Sol or its designee in connection with a requisition of District Bond proceeds to be used to pay such fees.
(1) Except as provided in Section 6(B) of this Formation Resolution, or as otherwise provided by the PID Ordinance then in effect, each Bond Resolution shall be approved by the City's Debt Committee and the City Council and shall include, at minimum, the following provisions for the protection of owners of the Bonds:
(a) Reasonably Required Reserve Fund. Each Bond Resolution shall, if necessary, 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 all outstanding 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) Each Bond Resolution shall include provisions for the public offering or private placement of District Bonds in accordance with Section 5(E)(5) of the PID Ordinance unless, in accordance with the PID Ordinance then in effect, the City's Debt Committee and the City Council, determines otherwise, based upon the recommendations made by underwriters or financial consultants to the City.
(c) Minimum Denomination. Each Bond Resolution shall provide that District Bonds sold pursuant to a limited public offering or a private placement must be issued in minimum denominations of at least $100,000.
(d) Maximum Maturity. The final maturity date for any series of District Bonds shall not be more than 30 years after the date of issuance of that series.
(e) Appointment of Trustee. Each Bond Resolution shall 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. Each Bond Resolution shall provide that the trustee may exercise the rights and remedies of the Districts for the protection of bondholders, including, without limitation, the following:
1. the trustee's collection of Special Levies;
2. the trustee's foreclosure of delinquent Special Levies; and
3. the trustee's appointment of a receiver or other agent to complete the construction of the PID Infrastructure Improvements in the event of a default in the payment of debt service on the District Bonds, which default cannot be cured by either (x) drawing on the debt service reserve fund established for the District Bonds, (y) through payment pursuant to a letter of credit or other guaranty provided by the Applicant or (z) through the Applicant's direct payment of the amount necessary to pay the debt service on the District Bonds then due, which appointment may be made irrespective of whether foreclosure remedies are exercised.
(2) This Formation Resolution hereby approves the issuance and sale of one series of senior lien bonds and one series of subordinate lien bonds by District 1 (the "District 1 Bonds"). The following parameters with respect to District 1 Bonds are established:
(a) The maximum principal amount of the senior lien District 1 Bonds shall not exceed $25,000,000 and the maximum principal amount of the subordinate lien District 1 Bonds shall not exceed $3,000,000.
(b) The District 1 Bonds shall be sold to "qualified institutional buyers" (as such term is defined in Rule 144A of the Securities and Exchange Commission) and may not be resold except to "qualified institutional buyers" in a private placement.
(c) The District 1 Bonds shall be issued in minimum denominations of at least $100,000.
(d) The maximum net effective interest shall not exceed 12 percent per annum, which rates will be specifically determined in connection with the sale of the District 1 Bonds and approved in the sale resolution adopted by District 1.
(e) The value to lien ratio on senior lien District 1 Bonds, after the completion of the PID Infrastructure Improvements and the Additional Improvements, shall be at least 3 to 1.
(f The issuance and sale of District 1 Bonds shall satisfy in all respects the requirements provided in this Formation Resolution, the PID Ordinance and the Act for the issuance of District Bonds.
(G) District Governance.
(1) The Districts' governing body shall initially be composed of five members, including:
(a) Isaac Benton, Jacques Blair, Jon Zaman, Cilia Aglialoro and Sheila Duffy.
(2) Sheila Duffy, Cilia Aglialoro and Jacques Blair shall serve 6-year terms.
(3) Isaac Benton and Jon Zaman shall serve 4-year terms.
(4) Pursuant to Section 5-11-6 of the Act, Jon Zaman is appointed to be the clerk of the Districts and Sheila Duffy is appointed to be treasurer of the Districts.
(5) Within six years following the date of formation of the Districts the Council shall serve as the governing body, or, at the Council's option, hold an election of new directors by majority vote of the residents of the district.
(H) Prior Agreements. Pursuant to Sections 5-15-1 through 5-15-28 NMSA 1978, City Ordinance Bill No. F/S O-06-44, Enactment No. O-36-2006 (the "TIDD Ordinance"), City Council Bill F/S R-06-146, Enactment No. R-2006-126, and City Council Enactment R-2007-0001 (collectively, the "TIDD Legislation"), the City also has formed tax increment development districts ("TIDDs 1-5") for the financing of public infrastructure to serve the Property and established the tax increment revenue available in each financing, and has entered into a Master Tax Increment Development Agreement (the "TIDD Master Development Agreement") and other agreements, for the implementation of TIDDs 1-5. Nothing in the Master PID Development shall be considered to diminish the rights or obligations of Mesa del Sol or the City in connection with the TIDD Legislation or the TIDD Master Development Agreement, including, without limitation, rights and obligations concerning workforce housing, transportation and school facilities in connection with TIDDs 1-5. No workforce housing is contained within the boundaries of District 1.
(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 ordinances or resolutions, or parts thereof in conflict with the provisions of this Formation Resolution, are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any ordinance or resolution, or part thereof, heretofore repealed.
(K) Severability. If any section, paragraph, clause or provision of this Formation Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall in no manner affect any remaining provisions of this Resolution.