NORTON ROSE FULBRIGHT Fulbright & Jaworski LLP November 11, 2013 By Federal Express 2200 Ross Avenue, Suite 2800 Dallas, Texas. 75201-2784 United States Ms. Sylvia Firth Paul A. Braden City Attorney Partner City of El Paso, Texas Direct line +1 214 855 8189 300 N. Campbell paul [email protected] El Paso, Texas 79901 Tel-+1 214 855 8000 Fax +1 214 885 8200 nortonrosefulbright.com ATTORNEY ~ CLIENT PRIVILEGE Re: Special Report to the Mayor Dear Syivia: Enclosed are two bound copies of the final Special Report to the Mayor of the City of El Paso on te Downtown Ballpark. This Report is covered by the attorney-client privilege, is marked confidential and should be treated accordingly. If you have any questions or concerns, please do not hesitate to contact me, Thank you for the ‘opportunity to be of service to the City. Sincerely, 22 A. Brad — Paul A. Braden PABIrkp Enclosures Fonght 8 Jsnorah LLP med tobity patnersnp reiteres under ne lave of Texas, s30s7ea7.4 Fuorgn § Jaworo LLP, Nofon Rote Fubratt LLP, Nonon Rose Fuh Austato, Noten Rose Fulbrgrt Canada LLP. Noron Rose Fuicht Sout Alea (neorprates at Deneve Rete Ine) each sf neni a saparate egal eniy ave memders of Neten Rose Fubrgtt Vere, a Swiss ‘eroinDetals of ach enti. certain esas hlornain, ae st retorvoseubrgh com Novon Rose Fulbrgm Veren Fels coos he ils ofthe membe’s Bu doesnt eo arava aga serweos oceans.NORTON ROSE FULBRIGHT SPECIAL REPORT TO THE MAYOR OF THE CITY OF EL PASO ON THE DOWNTOWN BALLPARK November 11, 2013 ‘Submitted by Paul A. Braden Norton Rose Fulbright Bond Counsel to the City ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR 29860794Ml. Vi. Vil TABLE OF CONTENTS: Page EXECUTIVE SUMMARY BACKGROUND ............++ oo A. Plan for Downtown Revitalization... 4 B. Triple-A Baseball as Additional Tool For Downtown Revitalization I C. Economic Impact of Triple-A Baseball 3 D. —_Non-Quantitative Impacts of Triple-A Baseball... TEAM NEGOTIATIONS. oo Recent History with Moving Downtown Location. Term Sheet and June 26 Resolution. Ballpark Development Agreement ... Team Lease. Non-Relocation Mountain Star Acquires Team... THER CITY COUNCIL AUTHORIZATIONS ee . Comptroller Venue Project Election Construction Manager-At-Risk and Architect Formation of the Local Government Corporation . PPOSITION TO THE BALLPARK... Citizens’ Petition in Opposition. Voters Approve... . Opponents Resort to Litigation. HE BOND VALIDATION SUIT. Filing of Suit.... Chapter 1205 on Travis County Court Notice of Lawsui Attempted Remand by Citizen Group... Legal Arguments Advanced by the City Ruling in Favor of the City FINANCING OF THE BALLPARK. General Governance of Local Government Corporation . Financing Professionals... Financing Structure. Preliminary Schedule.. May 28th Bond Authorization CMAR Project Delay Letter. anmgop> OTR SORE A= MENErE OErg spEPg ATTORNEY-CLIENT PRIVILEGED: "ECIAL REPORT TO THE MAYOR i saosso79TABLE OF CONTENTS (continued) Page Additional Negotiations with Mountain Stat... Outside Market Factors Impact Pricing of Bond Sale... Original Attempt to Sell the Special Revenue Bonds. August | LGC Board Meeting.. ¥ Sale of the Special Revenue Bonds... Sources and Uses of the Bond Procee Attorney General Approval and Closing. Repayment of Ballpark Construction Costs VII SUBSEQUENT EVENTS . IX. CONCLUSION... ozZErASS EXHIBIT A Historical Timeline EXHIBITB Final Judgment in Bond Validation Suit EXHIBITC Memo from Paul Braden to Sylvia Firth regarding Par Amount of Bonds ... bl EXHIBIT D June 5, 2013 Letter from Jordan/tlunt regarding Notice of Project Delay : D-l EXHIBITE Memo From First Southwest Company reva Pricing... EXHIBIT F City Manager’s Report to City Attorney Regarding Chronology of Events. - ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR i Sasseo79.4L EXECUTIVE SUMMARY As part of its economic development and downtown revitalization goals, the City of El Paso, Texas (the “City”) negotiated a series of agreements in the Spring and Summer of 2012 that created @ public-private partnership to relocate an out-of-town Triple-A Minor League Baseball team to downtown El Paso. The City agreed to finance and construct a state-of-the-art, ‘minor league baseball ballpark (the “Ballpark”) in downtown El Paso, and Mountain Star Sports Group LLC (“Mountain Star LLC"), together with its affiliate Mountain Star Sports Group LLC -El Paso Baseball Club Series (“Mountain Star Baseball’) (collectively “Mountain Star) agreed to purchase a Triple-A Minor League Baseball franchise currently located in Tucson, Arizona and bring that team to El Paso. The agreements call for the team to begin playing baseball at the Ballpark for the 2014 season. The City Council took numerous steps to authorize, finance and implement the Ballpark project throughout 2012 and 2013. In addition, the voters of El Paso approved the Ballpark as a venue project and authorized an additional hotel occupancy tax to fund the project at an election held on November 6, 2012. Following several open meetings with extensive public participation and comment, the City determined that constructing the Ballpark on the site then occupied by City Hall (the “Former City Hall Site”) would provide the greatest opportunity for sustained downtown revitalization, while also minimizing the cost to the City that would arise from the purchase of additional property and the expensive repairs that would have otherwise been needed to the then-current Hall, Despite these determinations, this decision became one of the most controversial aspects to the transaction and brought forth various forms of opposition, including, citizen petitions and lawsuits. Ultimately, in January 2013, the City filed a bond validation suit to definitively address the issues raised by such petitions and lawsuits related to the site location ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR sassso79.4and to validate the proposed bond financing structure created to finance the Ballpark. In February 2013, the City successfully prevailed in its bond validation suit, and on March 8, 2013, the court rendered its final written judgment in support of the City’s position. Following the rendering of the final judgment, the City moved forward with the financing of the Ballpark through the City of El Paso Downtown Development Corporation (the “Local Government Corporation”), the entity that the City had previously created for this purpose. Several events, some City-related and some market-driven, delayed the issuance and sale by the Local Government Corporation of its $43,125,000 par amount of Special Revenue Bonds, Series 2013A and $15,660,000 par amount of Special Revenue Bonds, Taxable Series 2013B (collectively, the “Special Revenue Bonds”) until August 2013. ‘The Special Revenue Bonds are secured by lease payments to be paid by the City to the Local Government Corporation on a subject-to-appropriation basis in an amount equal to pay the debt service on the Special Revenue Bonds when due (the “Lease Payments”). The City intends to make Lease Payments from lawfully available City revenues which include: (1) the additional 2% hotel occupancy tax approved by the voters at the November 6, 2012 venue project election (the “Additional HOT”); (2) payments received from Mountain Star for the lease of the Ballpark (the “Team: Payments”); and (3) certain other lawfully available revenues of the City as necessary. ‘The Additional HOT revenue is dedicated to the Ballpark project and cannot be used for any other purpose. Similarly, the Team Payments are dedicated solely to the payment of the Taxable Series 2013B Special Revenue Bonds. ‘The City may not use any revenues derived from ad valorem property taxes to make Lease Payments. As required by law, the issuance of the Special Revenue Bonds was approved by the Texas Attorney General and the transaction closed on August 29, 2013. ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR snous974Attached hereto as Exhibit A is an historical timeline outlining certain key events in the development and financing of the Ballpark. This Report was prepared by Norton Rose Fulbright at the request of Mayor Oscar Leeser in our professional capacity as bond counsel to the City. As such, this Report and certain of the attached exhibits are confidential and privileged. Neither this Report nor any of its exhibits should be circulated to any parties which are not covered by the City’s attorney- client relationship and no portion hereof should be copied or extracted, To the extent any information contained herein or in the exhibits is otherwise publicly available from non- confidential sources, such other sources should be used to provide that information to other parties. Any questions with respect to this Report or the attorney-client privilege of the City should be directed to the City Attorney. ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT 10 THE MAYOR - so58so79.¢nL. BACKGROUND, A. Plan for Downtown Re In 2006, as part of its comprehensive plan, the City Couneil adopted the “El Paso Downtown 2015 Plan” which described detailed goals, policies and guidelines for the future of including specific land use patterns and program the City’s downtown area (“Downtown implementation strategies. The stated objectives of the Downtown 2015 Plan include ereating a dynamic, mixed-use Downtown inviting to all El Pasoans; introducing new investments that are catalysts for the entire Downtown area; and creating opportunities for private investment. This, revitalization plan initially began as a private sector project but the City adopted and modified the plan after citizen input and public meetings. The Downtown 2015 Plan established redevelopment and incentive areas; created districts (including an “entertainment district” in which the Ballpark will be located), each with different focus and objectives; provided a land use framework to guide types of land uses; established flexible uses, building types, building h and massing: provided development guidelines and standards; identified public investments to connect and enhance new development; created implementation options; and provided relief for project impacts. In addition, in March of 2012, the City Council unanimously adopted a detailed comprehensive plan (“Plan Et Paso”) built around the principles of smart growth and green development which also prioritized reinvestment in Downtown El Paso. In discussing Downtown, Plan El Paso emphasizes that the City’s character is found in its compact, connected, walkable historic neighborhoods with Downtown being the most important of these neighborhoods since it is the central gathering place for the entire City. Plan El Paso encouraged ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR 4 Snosso79.¢the restoration and reuse of Downtown’s historic buildings and highlighted the importance of increased connectivity, public and civie space and great streets. B. Triple-A Baseball as Additional Tool For Downtown Revitalization Triple-A baseball is the highest classification of minor league teams affiliated with Major League Baseball franchises. There are only 30 cities in the nation that host Triple-A baseball teams. Triple-A Minor League Baseball has two leagues, one that plays predominantly in the eastem half of the United States (International League) and one that predominantly plays in the western half (the Pacific Coast League). The Ballpark will be the home stadium of the Triple-A. affiliate of the San Diego Padres (the “Teamt”) which will participate in the Pacific Coast League (the “PCL”), The PCL has sixteen teams comprised of two conferences. The Team will be a member of the western PCL conference, The Ballpark will host approximately 72 Triple-A baseball home games per season in addition to serving as a venue for certain additional special events to be held in the Downtown area. Visiting teams, officials, media and spectators will be drawn to El Paso as part of this development. Based on the PCL’s average attendance numbers for the 2011 season, the City projects that Triple-A baseball will bring an estimated 436,000 patrons to the Downtown area annually.' c. Economic Impact of Triple-A Baseball At various stages throughout the public debate on the Ballpark, representatives of the City have stated that the acquisition of a Triple-A Baseball team to be located wi the City will be a tremendous economic development opportunity for the City of El Paso, Upon the acquisition of a Triple-A baseball team, many cities experience considerable growth in the area ' Sce City’s original Downtown Ballpark Summary/Supporting Documentation Fact Sheet, available on the City's website at _http:/home-elpasotexas.gov/ documents/FACT_SHEET-Ballpark (last visited on September 13, 2013). ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR 3+ ‘soseso73 4where the ballpark is located’. In addition to the direct economic activity that occurs within the ballpark such as ticket sales, concessions, merchandise sales, advertising, naming rights, and sponsorships, surrounding proprietors benefit from hotel stays, restaurants visits, retail purchases, entertainment opportunities, transportation needs, and parking. Based on the City’s ilar local entertainment events, the City estimated that the analysis of certain studies of average Ballpark visitor will spend an average of approximately $41 per game, which translates to over $17.9 million a year in direct spending if you assume per game attendance equal to the PCL average for the 2011 season and a 71 game home season. Moreover, the construction of the Ballpark will have a multiplier effect which will greatly increase the Ballpark’s total economic impact on the City in excess of the Ballpark’s direct construction cost. D. _ Non-Quantitative Impacts of Triple-A Baseball The evaluation process surrounding the decision to move forward with the Ballpark also indicated that there are additional benefits associated with bringing Triple-A baseball to El Paso which are more difficult to quantify. Such benefits include enhanced affordable entertainment altematives for families in the local area; increased civic and community pride; and opportunities for growth in the existing complementary entertainment areas. In addition, Triple-A baseball should promote a more positive self-image for the City and increase its national exposure and reputation. Professional sports venues are widely considered important assets and attractions necessary for enhanced tourism and business development, William F. Studer, Jr, Deputy City Manager to the City, has cited Reno, Nevada and Oklahoma City, Oklahoma as examples, among others, > Ibid, ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT 10 THE MAYOR ~6- Si98i979.4Mm. TEAM NEGOTIATIONS A. Recent History with Moving Triple-A Baseball to El Paso In 2010, a local El Paso investor group first tried to acquire a Triple-A baseball franchise the hopes of relocating it to El Paso. As part of their economic development discussions with the City, representatives of the potential ownership group and the PCL toured Cohen Stadium as part of their due diligence. Ultimately, this initial attempt to acquire a Triple-A baseball team by the local group failed and Jeff Moorad, owner of the San Diego Padres, acquired the Triple-A team in 2010. Based on published reports, Jeff Moorad successfully negotiated with Escondido, California for that ¢} ty to build a new ballpark as the home for his newly-acquired Triple-A baseball team and temporarily moved the team to Tueson pending construction of such a ballpark. However, a change in California state law in 2011 invalidated the proposed structure which would have allowed Escondido to finance the stadium and the City of Escondido could not move forward with the project. Unable to locate another city near San Diego which would be a viable home for the team, Moorad put the Triple-A baseball team back up for sale in December 2011 and the group of local El Paso investors once again approached the City about the possible re-location of a Triple-A baseball team to El Paso. Downtown Location ly on in their negotiations, both the City and Mountain Star determined that locating the Ballpark in Downtown El Paso would ereate the best opportunity for both economic development and the long-term financial success of the Team. Mountain Star also indicated that a downtown location would be preferred by the PCL and would increase the viability of Mountain Star's bid to acquire the Team. A majority of the City Council believed that a ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT T0 THE MAYOR “7 ‘29809794downtown Ballpark will both contribute to, and benefit from, other revitalization efforts targeting Downtown. In addition to its own internal evaluation and seeking community input, the Ci also engaged Urban Design* to identify sites for three major sports facilities (Triple-A Baseball, MLS Soccer and a multi-purpose events arena) within the Downtown area, The key objective of the Urban Designt study was to identify potential locations that would minimize takings of private properties (ie., prioritize city-owned properties), facilitate fast track development, especially for the Triple-A facility, and support the continuing improvements in Downtown and create synergies between uses.’ Such objectives were consistent with the Downtown 2015 Plan. From the beginning of their discussions, the City was told by Mountain Star that the window of opportunity to secure a team was a narrow one: the deal would largely depend on the abi ity of the Team to play its 2014 season in a new Downtown ballpark. In addition, Mountain Star indicated that based on the PCL and Mountain Star's preference for a Downtown loci Cohen Stadium would not be a viable alternative location for Triple-A baseball. While still not without controversy, the City chose the Former City Hall Site only after reviewing the Urban Design* study which identified the Former City Hall Site as the best location for a Triple-A baseball stadium because (i) the size of the site could accommodate baseball in the required orientation the adjacent historic sites add critical authenticity to the facility—a hallmark of successful new ballparks; (iii) location at the entry to Downtown provides an opportunity for iconic architecture: (iv) strong synergies with the City’s existing Conver in Center; (y) the former City Hall was not a State or National historic landmark and was in need of extensive repairs; (vi) the selection of the Former City Hall Site allowed for ‘A presentation based, in part, on the Urban Design+ report was presented at the City Council Meeting on June 26, 2012 and is available at; http:/home.elpasotexas.zov/ documents/CityHallProject pdf (last visited September 6, 2013) ‘ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR “8 Sa9mo7e4relocation of City Hall operations to the government center area of Downtown; (vii) the site could work with the proposed Team relocation timeline; and (viii) other sites which would be consistent with the City’s Downtown 2015 Plan would have had significant size, schedule, and acquisition/price constraints.® C. Term Sh olut and June 26 Re n At its regular meeting on June 26, 2012, after significant public comment, the City Council approved several resolutions relating to the Ballpark, including a resolution (the “June 26 Resolution”), which authorized the City Manager to (i) sign a term sheet with Mountain Star for the relocation of the Team to El Paso and development of the Ballpark, (ii) proceed with plans to build the Ballpark on the Former City Hall Site, (iii) relocate affected City operations, (iv) proceed with proposed financing plans for the Ballpark, and (v) negotiate definitive agreements (to be brought back to Council) which reflect the final terms of the Ballpark transaction, ‘The term sheet specified that it was non-binding and was intended as a tool to assist with the drafting of definitive binding agreements, namely the Development Agreement, the Team Lease, and the Non-Relocation Agreement. D. Ballpark Development Agreement ‘The City and Mountain Star Baseball entered into a Ballpark Development Agreement on September 18, 2012 as amended on June 18, 2013 (collectively, the “Development Agreement”). Under the Development Agreement, the City agreed to finance, own, design, develop and construct a new, first class, state-of-the-art, natural turf, open-air Minor League Baseball ballpark and related facilities within Downtown that will serve as the home of the Triple-A Minor League Professional Baseball Franchise of the San Diego Padres. The Ballpark will also host concerts, Comparable downtown stadiums analyzed included Redhawks Field, Oklahoma City, OK; Aces Ball Patk i Reno, NV; and Canal Park, Akron, OH, ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT 10 THE MAYOR = ‘Soonother sporting events and community-oriented events. Under the Development Agreement, Mountain Star Baseball agreed to relocate the Team to the City with the Ballpark serving as the Team's home field. The National Association of Professional Baseball Leagues, Inc. (the “NAPBL") and the PCL. approved the Team relocation under the assumption that a new ballpark. will be constructed in downtown El Paso as the home of the Team. ‘The Development Agreement specifies that the parties to that agreement intend that the design, development, construction and furnishing of the Ballpark be a cooperative process. ‘The intent is that both parties have full access to any information available to the City from the Owner's Representative, the Construction Management at Risk, the Project Architect and all other contractors, consultants and other persons retained in connection with the design, development, construction and furnishing of the Ballpark; provided however, that all contractually required communications, obligations and ultimate authority with respect to the Ballpark rests with the City. FE, Team Lease Pursuant to a Ballpark Lease Agreement dated October 11, 2012, as amended on June 18, 2013 (collectively, the “Team Lease”) among the City, Mountain Star Baseball and Mountain Star LLC, the City will lease the Ballpark to Mountain Star Baseball and Mountain Star Baseball will pay to the City fixed annual rent and certain other fees as specified in the Team Lease. Unless sooner terminated pursuant to its terms, the initial term of the Team Lease (the “Znitial Term:") begins on the date a certificate of occupancy is issued for the Ballpark (and the Ballpark is tendered to Mountain Star Baseball by the City) and ends on September 30 (or such later date as is reasonably necessary to accommodate any Team ballpark events) of that year in which the thirtieth (30th) fullbaseball season after the commencement date has occurred. In addition, ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR =10- ‘SavasMountain Star Baseball has the option to extend the Initial Term for three (3) consecutive additional periods of five (5) years each, Under the terms of the Team Lease, Mountain Star Baseball as Tenant will pay to the City a “Fixed Rental” fee, certain “Parking Fees” based on Ballpark parking usage and “Ticket Fees” based on the number of tickets sold for various events held at the Ballpark. Mountain Star LLC unconditionally and irrevocably guarantees to the City the due, punctual and full payment and performance of all covenants, agreements, obligations and liabilities of Mountain Star Baseball under the Team Lease. 1. Operating, Maintenance & Capital Expenses. Except as otherwise provided in the Team Lease, Mountain Star Baseball is responsible for all aspects of operating the Ballpark and the “Routine Maintenance”® of the Ballpark and shall be responsible for all operating expenses and costs for the Ballpark. including all direct or indirect expenses associated with the Team or Ballpark events. The City is responsible for the installation, repair and replacement of all capital improvements to the Ballpark and, as noted below, a portion of the Fixed Rental is required to be set aside in a reserve fund to help the City satisfy this obligation. With respect to the utilities associated with the Ballpark, (i) the City contracts and pays for electric service to the Ballpark, subject to reimbursement by Mountain Star Baseball for 100% of the costs for such services; (ii) Mountain Star Baseball is responsible for contracting and paying for all water and sewer costs at the Ballpark, subject to the City’s reimbursement of fifty percent (30%) of these © “Routine Maintenance” is defined as all work (including all labor, supplies, materials and equipment) that is of ‘a routine nature and is reasonably necessary for the cleaning and routine care of and preventative maintenance tnd repair for any property, structures, surfaces, facilities, fixtures, equipment, furnishings, improvements and components that form any part of the Ballpark or the Ballpark surface parking in a manner reasonably consistent with the standards at other comparable facilities; provided however, Routine Maintenance shall not include eapital improvements. ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR “Te So0n69794annual water and sewer costs; and (iii) Mountain Star Baseball is responsible for contracting and paying costs and fees for all other utilities to the Ballpark during the term of the Team Lease. 2. Fixed Rental. Initially, the Fixed Rental amount is established at $400,000 a year for the first five calendar years of the Initial Term and then increases at the rate of 5% every fifth year for the remainder of the Initial Term. The Fixed Rental amount is not contingent on any attendance numbers. Years Fixed Rental Amount 15 ‘$400,000 6-10 440,000 1-5, 484,000 16-20 532,400 21-25 585,640 26+ 644,204 3. Capital Repairs. Commencing with the third full payment of the Fixed Rental amount and continuing throughout the term of the Team Lease, the City is obligated to deposit seventy-five percent (75%) of each Fixed Rental payment into a “Capital Repairs Reserve Fund” up to a total not-to-exceed deposit of One Hundred Fifty Thousand and No/100 Dollars($150,000) per year. The City may only use amounts in the Capital Repairs Reserve Fund for capital improvements for the Ballpark. 4. Parking Fees. Under the terms of the Team Lease, the “Parking Fee” is a seasonal parking fee for each parking space requested by Mountain Star Baseball in certain existing City-owned parking garages which are located close to the Ballpark. Such Parking Fees are calculated as follows: ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR TR Sasss979Years Parking Fees Per Space (multiplied by number of Season Parking Events) 1s $1.00 6-10 110 U-Is 121 16-20 133 21-25 146 26+ 1.60 5. Split Parking Revenues. In addition, the City and Mountain Star Baseball have agreed to split certain additional parking revenues (the “Split Revenues”), fifly percent (50%) to City and fifty percent (30%) to Mountain Star Baseball, at other offsite City garage facilities for certain hours associated with events to be held at the Ballpark. 6. Ticket Fees, Under the terms of the Team Lease, the icket Fee” is a fixed admission surcharge of: Years Ticket Fee (multiplied by munber of tickets purchased) 13 $0.50 6-10 035 11-15 0.61 16-20 0.67 21-25 0.73 26+ 0.80 7. Revenwe Cap. Under the terms of the Team Lease, the Parking Fees, Split Revenues and Ticket Fees are subject to a contractual limitation which caps the amount of revenues which the City can receive from such sources. This revenue cap was put in place to address certain federal income tax issues and allows a greater portion of the Ballpark to be financed on a tax exempt basis. Such revenue cap is established as follows: ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT 10 THE MAYOR -B- 258979Calendar Years (Initial Term) Revenue Cap 15 $655,000 6-10 745,000 11-15 840,000 16-20 940,000 21+ 1,040,000 None of the City’s revenue projections set forth in the Official Statement or presented to City Council assumed revenues at or near the cap. ‘The payments received by the City under the Team Lease (the “Team Payments” required to be kept separate from other Ballpark funds, and such funds will be used only to pay principal of and interest on taxable Ballpark bonds such as the Taxable Series 2013B Special Revenue Bonds. All revenue derived from Team Payments received by the City pursuant to the ‘Team Lease are solely pledged to and for the benefit of the holders of the Taxable Series 20133 Special Revenue Bonds and any other outstanding taxable parity bonds that may be issued in the future. F. Non-Relocation Agreement 1. General Overview. As a material inducement for the City to enter into the Development Agreement and the Team Lease, the City, Mountain Star LLC and Mountain Star Baseball entered into a non-relocation agreement (“VR Agreement’) to assure that Mountain Star Baseball will continuously maintain and operate the Ballpark as home field to the Team for the term of the Team Lease. Pursuant to the NR Agreement, Mountain Star Baseball and the Mountain Star LLC covenanted (a) to maintain its franchise and prineipal business offic City; and (b) not to enter into an agreement, contract, or request or application to Major League Baseball to (i) relocate Mountain Star Baseball's franchise outside of the City or (ii) except as otherwise permitted, play any regular season or playoff home game in any location other than the Ballpark. Mountain Star Baseball and Mountain Star LLC also agreed not to cause, permit, ATTORNEY: Ssa5es979.4 ‘LIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR 71apply for or seek approval from, nor participate in, any negotiations with any third part including Major League Baseball, with respect to any agreement, legislation, or financing which contemplates or could result in violation of the aforementioned covenants (together such covenants being the “Non-Relocation Covenants”). ‘The PCL has acknowledged the NR Agreement and affirmed by signature that the Non-Relocation Covenants do not violate current PCL rules or regulations. 2. Remedies for Breach. Under the terms of the NR Agreement, in the event of any actual or threatened breach by Mountain Star Baseball or Mountain Star LLC of anyone of the Non-Relocation Covenants, the City is entitled to seek and obtain, a temporary restraining order, together with temporary, preli /e or other equitable relief, from inary and permanent injune any court of competent jurisdiction, to restrain or enjoin any actual or threatened breach by Mountain Star Baseball or Mountain Star LLC of any Non-Relocation Covenant without the necessity of posting a bond or other security and without any further showing of irreparable harm, balance of harms, consideration of the public interest or the inadequacy of monetary damages as a remedy. The NR Agreement also states the administration of an order for injunctive relief would not be impractical and, in the event of any breach of any Non-Relocation Covenant by Mountain Star Baseball or Mountain Star LLC, the balance of hardships would weigh in favor of entry of injunctive relief; and the City may enforce any Non-Relocation Covenant contained in the NR Agreement through specific performance. If the City is unable to obtain specific performance or declaratory relief oF junctive relief, the City has the right to to recover any and all institute any and all proceedings or claims permitted by law or equit amounts necessary to compensate the City for all damages proximately caused by Mountain Star Baseball's or Mountain Star LLC’s breach under the NR Agreement ATIORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR -15= sapgeore.43. Right of First Refusal, The NR Agreement also grants the City a right of purchase, If Mountain Star Baseball or Mountain Star LLC attempts, directly or indirectly, to, or does, relocate the Team in violation of any provision of the NR Agreement, the City has the right to purchase, or identify a qualified potential purchaser to purchase, the Team (and all associated ‘Team operations) at fair market value, as determined by the NR Agreement. 4. Termination, Unless the Team Lease expires or is terminated for reasons other than a default by Mountain Star Baseball as tenant under the terms of the Team Lease, Mountain Star Baseball or Mountain Star LLC has no right to terminate the NR Agreement. G. Mountain Star Acquires Team On October 11, 2012, Mountain Star announced the closing of its acqui jon of the Team, ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR =16-B, Venue Project Election The City Council instructed staff and counsel to move forward with a bond election and a venue election to take place on November 6, 2012. The venue project election sought voter approval to impose the Additional HOT and to designate the stadium project as an “approved venue project” pursuant to Chapter 334 of the Texas Local Government Code (“Chapter 334”) ‘On August 14, 2012, the City Council adopted Ordinance No. 017850 ordering a special election to be held on November 6, 2012 to authorize the designation of the Ballpark as a “venue project” and the imposition of the Additional HOT to finance the Ballpark, On September 18, 2012, and in addition to the approval of the Mountain Star agreements noted above, the City Council adopted Ordinance No. 017881 to clarify the language set to appear on the ballot. C. Construction Manager-At-Risk and Architect On September 18, 2012, the City Council approved the Construction Manager-At Risk (°CMAR") Procurement Policy’. -y’, and subsequently took a number of steps to design and construct the Ballpark project, including approving traffic, technical and environmental studies and surveys. Also on September 18, the City Council authorized the City Manager to enter into several contracts for the purchase or lease of property to house city operations in preparation for vacating and demolishing City Hall. Tike Ballpark isthe first project undertaken by’ the City under the CMAR method of constuction. Under the CMAR method, the owner typically selects the CMAR, wich will later serve as the project general contractor, atthe outset of or early in the design stage. After conducting a selection process that focuses on qualifications land fees, the owner executes an initial CMAR contract with the selected CMAR firm, As the design process progresses, the CMAR firm provides construction management services, such as constructabilty reviews of the design, construction scheduling, and project cost estimates, fo the owner, AL some point during the design stage, the owner and the CMAR firm negotiate a guaranteed maximum price ("GMP") for the project. When the contract is amended to include the GMP, the CMAR contract becomes a cost-plus contract with a GMP, and the CMAR firm assumes responsibility for the performance of the work, including the work performed by project subcontractors. The owner pays the CMAR firm the actual cost of the work plus the agreed-upon CMAR fee up to the GMP: however: change orders resulting from scope changes and unamicipated site conditions encountered during construction may inerease the final contract cost ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR =18-The City subsequently issued a Request for Qualification for the CMAR, who is charged with overseeing the entire project, including utility relocation and demolition, Responses were received on December 5, 2012. and on January 8, 2013, the City Council approved the selection of Jordan/Hunt, a Texas Joint Venture as the “CMAR.” Jordan/Hunt is a joint venture of CF Jordan Construction LLC, an E] Paso, Texas based general construction services company with over 43 years’ experience and over $5 billion in completed projects."’ and Hunt Construction Group. which was established in Indianapolis, Indiana and has been in the construction industry 4" since 1944, and that has constructed over 40 different arenas and multipurpose venues.'' In November 2012, the City Council approved a contract with Populous, Ine. to serve as the principal architect responsible for designing the Ballpark in accordance with the specifications, ‘eam Lease." set forth in the Development Agreement and thi D. Formation of the :al Government Corporation ‘On December 18, 201 the City Council adopted a resolution approving the formation of the Local Government Corporation to “aid, assist and act for and on behalf of the City in the financing and development” of the Ballpark.'* On December 27, 2012. the articles of incorporation of the Local Goverment Corporation were accepted by and filed with the Secretary of State of Texas. The Local Government Corporation had its organizational meeting (On August 12, 2013, C.F, “Paco” Jordan, Chairman of CF Jordan Construction, LLC, and Paul L. Foster, through his company Franklin Mountain JEC, LLC, announced the formation of a new company, Jordan Foster Construction, LLC. Mr, Foster is one of the principals of Mountain Star. According to a statement issued by CF Jordan Construction, CF Jordan Construction will continue to perform all work currently under contract, with the same teams, management and resources (including its role with the CMAR). All new projects starting after August th will be performed by Jordan Foster Construction. Hunt Construction Group’s stadium experience includes: Busch Stadium (St. Louis Cardinals), Lucas Oil Field (NFL's Indianapolis Cols), and Marlins Park (Miami Marlins) ‘The resolution is entitled “Resolution to authorize the creation of the City of El Paso 2013 City Hall Relocation and Ballpark Capital Improvement Plan. Additional consulting and design contraets were also approved in November and December 2012, and are identified on the City's website available at bhup:/home.elpasorexas gov ballpark/index. php (last visited September 6, 2013). Also on December 18, 2012, the City Council adopted ordinances and resolutions to authorize imposition and collection ofthe voter-approved HOT and established the Venue Project Fund, “CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR 71on January 8, 2013 and is legally functioning as a Texas nonprofit local government corporation acting on behalf of the City ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOROPPOSITION TO THE BALLPARK A zens’ Petition in Opposition 1. Following the passage of the June 26 Resolution but prior to the November 6, 2012 election, displeased registered voters led primarily by Mr. Salvador Gomez and Mr. Carl jon entitled “Save City Hall Initiative Petition” opposing and Starr circulated and signed a peti attempting to repeal the June 26 Resolution (the “Gomes/Starr Petition”). Attempting to invoke the initiative provision contained in the City Charter, the Gomez/Starr Petition called for the adoption of an “ordinance repealing a resolution approved by City Council on June 26, 2012.” For a discussion of the substantive flaws associated with the Gomez/Starr Petition, see Section VI. F. herein, The Bond Vali lation Suit - Legal Arguments Advanced by the Cit 2. The City Charter establishes a two-step process for petition-initiated proposals of ordinances, allowing an ordinance advanced by petition, within the charters scope, to be presented first to the City Council for consideration and then, if necessary, to the people. - ‘The relevant provision of the City Charter, Section 3.11, entitled “Initiative,” reads as follows: Whenever a number of registered voters equal to at least five percent of the voters who voted in the last general City election sign a petition setting forth the precise content of an ordinance desired by the sizners, the Couneil must place that ordinance on the agenda of » Council meeting, to be held within thirty working days of the receipt, by the City Clerk, of the petition bearing the authenticated names and addresses of the Issuers. Such an item shall be teated by the Council ‘exactly as any other proposed ordinance: Should an ordinance proposed by such petition not be enacted by the Council, or should it be enacted in an amended form, a second petition, signed by a number of registered voters equal 10 at Teast five petcent of the voters who voted in the last yeneral City election, may be submitted to the City Clerk and that offical shall have twenty working days in which to authenticate the signatures and thereafter must place the re-proposed ordinance on the ballot at the next zeneral election Specified in State law, ifthe proposal received the favorable vote of a majority of those voting i that election it shall thereupon become a Cty ordinance. The Council is not obligated to consider the same ordinance initiated by petition, or one that is substantially the same, more than once in two yeats. ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR “21+B. Voters Approve At the November 6, 2012 general election, the people voted overwhelmingly in favor of the ballot proposition designating the Ballpark as a “venue project” and imposing the Additional HOT to finance its construction. ” In addition, two Quality of Life bond propositions passed by wide margin.” The venue project proposition, despite the publicly aired opposition from many of the petition’s signers, passed with a little more than 60% of the vote.’ Certain citizen opposition to the Ballpark itself ceased following the successful venue project election, but the debate over the site location intensified, C. Opponents Resort to Litigation While the Gomez/Starr Petition was working it way through the bifurcated initiative process pursuant 10 the City Charter, certain of the petit igners turned to litigation, first in (Cont'd rom presious pase) ‘make the site available for the construction, including termination of leasehold interests, and to move forward to formulate long erm and short term execution plans for the relocation of City operations from the City Hall site to other locations in the downtown aea for the construction of ‘the Ballpark; that the City Manager be authorized 10 proceed with proposed financing plan to include the possible use of (i) a venue hotel occupancy tax if approved by the voters at a duly- called election; (ji) lease revenue bonds issued by a local government corporation formed by the s andior (ii) other debt obligations issued by or on behalf of the City far the construction and development of the Ballpark: and that the City Manager of her designee be authorized to negotiate contract containing the terms and conditions set forth in the term sheet for the construction and. future operations and maintenance of the Ballpark and to present it 10 City Council for consideration upon completion ofthe negotiations. (All Districts) The full text of the venue project election proposition as set forth in City Ordinance NO. 017850 is as follows: Authorizing the City of El Paso 10 provide for the planning, acquisition, establishment, development, construction end financing of a sports and community venue project within the City of the type described and defined in Section 334.001(4(A) of and permitted by Chapter 334, Local Government Code, as amended (the “ei"), designated by a City Resolution adopted on June 26, 2012 (the “Resolurion”) and described in summary form as a multipurpose coliseum, stadium or other type of arena or facility that is planned for use for one ot more professional oF amateur sports events. including minor league baseball games, and related infrastructure as defined in the Act, and to impose a tax on the occupancy of a room in hotel located within the City, at a maximum rate of two percent (2%) of the price paid for such room, as authorized by Subchapter H ofthe Act, and approving the Resolution, In addition to the proposition regarding the financing of the downtown Ballpatk, the November 6, 2012 ballot included to propositions for the issuance of general obligation bonds for quality of life improvements, including patk, recreation, 200, museum, cultural, performing arts, and library facilities. See, Resolution Canvassing the Returns and Declaring the Results of the Special Venue Project Election Held November 6, 2012, dated November 19, 2012. ATTORNEY-CLIENT PRIVILEGED, SPECIAL REPORT TO THE MAVOR “3 sonofederal court, and later in state court. In a federal suit filed on October 4, 2012 and amended on November 7, 2012 (the “Federal Court Action”), several signers of the petition (including former Mayor Ray Salazar” and former attorney Jesus B. Ochoa, Jr.) sought to enjoin the City from taking steps to demolish City Hall, asserting that they had a right to vote on that particular issuc.”* The Court dismissed the suit on November 29, 2012 on jurisdictional grounds. Following the dismissal of the Federal Court Action, a number of the Gomez/Starr Petition igners again pursued litigation in state court, In a suit filed in County Court at Law No. I Paso on November 21, 2012 (the “State Court Action”), an association of petition signers sought to enjoin the City from taking steps to demolish City Hall, asserting that the issue should action.’ On December 26, 2012 and while the be settled by a vote rather than by City Coun State Court Action was pending, the ity was presented with an additional, similar petition by Mr. Salazar and Mr. Ochoa (the “Salazar/Ochoa Petition) also seeking to require that the decision to demolish City Hall be submitted to an additional vote of the citizens at the next city election in May, 2013.°° On January 10, 2013, the City received notice that a state court action (the “Second State Court Action”) had been filed by Mr. Salazar and Mr. Ochoa and that it sought a temporary injunction to prevent the demolition of City Hall.”° Mr. Salazar was mayor of the City from 1977 to 1979, during which time the former City Hall was constructed, See, Salazar v. City of El Paso, No. EP-12-CV-00403-DCG, 2012 WL 5986674 * 1 (W.D. Tex, Nov, 29, 2012). This state court lawsuit was styled as Salvudor Perez Gomes, Jose A, Lozano, and Cart Starr (Coalition for Responsive Government) v. City of El Paso, John Cook, Ann Lilly, Susie Byrd, Eddie Holguin Jr, Steve Ortega, Carl Robinson, Courtney Niland, Michael Noe, Emma Acasta, and Joyce Wilson, Cause No. 2012-DCWO6SR2, As noted above, Section 3.11 of the City Charter provides that City Couneil is not required to consider the same ‘or substantially the same ordinance initiated by petition more than once every two Years. % This setion was styled as Ray Salacar, Richard |, Najera. Julie Reynolds, Guillermo Acosta, amd Othon Medina, and Jesus B. Ochoa Jr v. City of #1 Paso, John Cook, Josce Wilson, stan Lily. Susie Byrd, Michiet Noe, Steve Ortega, and Courtney Niland, Cause No 2012 -DCV07234 was filed in the 41* District Court of El Paso. ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT 10 THE MAYOR ~ae 29869704Given the importance of the Ballpark to the City’s economic development and Downtown revitalization efforts, and the need to timely resolve any uncertainty regarding the City’s authority to meet its contractual obligations with Mountain Star and others, the City and the Local Government Corporation passed resolutions on January 8, 2013 authorizing the filing of a declaratory judgment lawsuit commonly known as a “bond validation suit” under Chapter 1205 of the Texas Government Code. ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR 725Vi. ‘THE BOND VALIDATION SUIT A. Eiling of Sui On January 13, 2013, the City and the Local Government Corporation filed an expedited bond validation action (the “Bond Validation Suit’) in District Court in Travis County, Texas pursuant to Chapter 1205 (“Chapter 1205") of the Texas Government Code. Given the ‘compressed timeframe under which the City was obligated to begin construction of the Ballpark, the City and the Local Government Corporation brought this action under Chapter 1205 to late the State Court Action and the Second State Court Action (and any other possible conso related claims) and receive court validation to allow the City and Local Government Corporation to proceed with confidence and certainty in the development, construction and financing of the Ballpark, including the issuance and delivery of the Special Revenue Bonds. and construction of the Ballpark on the Former City Hall Site. B. Chapter 1205 Chapter 1205 provides issuers of public securities such as the City and the Local Government Corporation with an efficient procedure for confirming the validity of public securities and their associated contracts and obligations, either before ot after the public securities are authorized, issued, or delivered.” An action under Chapter 1205 simultaneously provides a single forum for timely addressing and adjudicating any concerns that could conceivably be raised by the Attorney General or any Interested Party (as defined below). Section 1204.025 provides: “An issuer may bring an action under this chapter: (1) concurrently with or after the use of another procedure to obtain a declaratory judgment, approval, or validation; (2) before or after the public securities are authorized, issued, or delivered: (3) before or afer the attorney general approves the public securities; and (4) regardless of whether another proceeding is pending in any court relating to a matter to be adjudicated inthe suit.” ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR, = 26- Soomo79+Chapter 1205 provides that all persons who reside within the territory of the issuers of the in the boundaries of such issuers; or who have public securities; who own property located wi . or interest in any property or money to be affeeted by a public security or claim a right, tt authorization or the issuance of the public security (individually, an “Iaterested Party” and collectively, the “Interested Parties”) are therefore parties to the Bond Validation Suit and any jinding upon all Interested Parties.” Therefore, defendants judgment rendered in such action is in the Bond Validation Suit included all Interested Parties, as well as the Honorable Greg Abbott, in his official capacity as Attorney General of the State of Texas as specifically provided in Chapter 1205. & f is County Court Chapter 1205 would have allowed the City to file its Bond Validation Suit in district court in either El Paso County or Travis County. However, after consultation with litigation counsel, the City decided to file the suit in Travis County because (i) Travis County district courts have a greater familiarity with bond validation suits (and their expedited time frame), having seen many more of these type of suits than El Paso district courts; (ji) having the trial in ‘Austin would case the participation by the State Attorney General who is a defendant in the case as a matter of law; and (iii) a Travis County venue was determined to be less politically volatile thereby enabling more efficient court proceedings and increasing the likelihood of a judicial determination free of undue influence and based on applicable substantive law. D. Notice of Lawsui Jurisdiction over the Interested Parties was established through publication of notice as provided by Chapter 1205, including publication of notice of the suit in a newspaper of general Tex. Gov't Code Ann § 1205.023. ‘NTTORNEY-CLIENT PRIVILEGED: SPECIAL S2oeis79. ORT TO THE MAYOR -2T-circulation in Travis County, Texas, and in a newspaper of general circulation in El Paso County The El Paso Times). ‘The notice was published once a week for two (2) consecutive calendar weeks, with the first publication not less than fourteen (14) days prior to the date set for tial. As specified by Chapter 1205, the Attorney General of the State of Texas was specifically served with notice. In addition, the City provided copies of the notice to the citizen petitioners and parties in the State Court Action and the Second State Court Action to ensure actual receipt of notice. E, Attempted Remand by Citizen Group On February 4, 2013, the City and the Local Government Corporation appeared in Travis County District Court and announced ready by and through their counsel of record to move forward with the trial. The Attorney General of the State of Texas (the “Attorney General”) also appeared. The Court convened the trial and noted the appearances of certain citizen intervenors who were made parties to the Bond Validation Suit by publication of notice and an Order of Consolidation of the State Court Action and Second State Court Action, Certain of such citizen intervenors presented the court with a notice of removal to federal court. As required by law, the district court immediately recessed pending the determination by the federal court of the remand action Pursuant to an Order of Remand signed by U.S. District Judge Sam Sparks on February 6, 2013, the Bond Validation Suit was remanded back to the Travis County District Court. ‘The citizen petitioners who attempted to remove the case were ordered to pay all costs of the removal and were sanctioned for $5,000. F, Legal Arguments Advanced by the City In both its ws en brief and during oral arguments, the City made the following arguments with respect to the merits of the various citizens’ petitions and state court cases: ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR 7381. Gomez/Starr Proposed Ordinance Has No Substantive Effect. Subsequent to June 26, 201 the City Couneil took additional lawful action at various public meetings to move forward the venue project election, development of plans for the re-location of City Hall and the development of the Ballpark. Many of those subsequent resolutions and ordinances authorized the execution of definitive legally-binding agreements with respect to such matters All of these matters were openly discussed in the press and at various public meetings where all sides (including numerous voices in favor of the Ballpark) were given an opportunity to be heard. For example and as outlined above, at the City Council's September 18, 2012 meeting. after more than six hours of discussion on the issue, the Development Agreement and the Team Lease were authorized to be signed (and were subsequently signed). Those agreements obligated the City to construct and develop the Ballpark, specified various milestones that needed to be achieved with respect to the Ballpark and specified the location of the Ballpark as the Former City Hall Site. In addition, the City Council also took separate action to approve a resolution to authorize the creation of the City of El Paso 2013 City Hall Relocation and Ballpark Capital Improvement Plan which specified the terms of the City Hall relocation.” The Gomez/Starr proposed ordinance only related to a rescission of the June 26 Resolution which preliminarily authori id tasks which had already been performed or which had been superseded by subsequent City Council action. Therefore, even if the Gomez/Starr proposed ordinance had been adopted at the May 2013 election, it would not have prohibited the demolition of City Hall or the development of the Ballpark since those actions were further authorized by actions of the City s position was vali Council following the June 26 Resolution. ‘T ited by both the filing of the Salazar/Ochoa Petition (which was an attempt to address the flaw in the Gomez/Starr Pet lems 16A-161, September 18, 2012 City Council Meeting, ATTORNEY-CLIENT PRIVI 29869794 ED: SPECIAL REPORT TO THE MAYOR 2and and the City Couneil’s decision on February 26, 2013 to repeal the June 26 Resolutio thereby obviate the need to place the Gomez/Starr ordinance on the ballot.” The City Council Resolution repealing the June 26 Resolution specifically stated it had no effect on other City Council actions which approved the Ballpark, the agreements with Mountain Star, the site location or City Hall relocation. Initiative vs. Referendum. Currently, in Texas, there is no general right to tive or referendum in a home rule city under State or federal law''. The only entitlement to initiative or referendum are those specified in a home rule city’s charter. ‘The power of initiative involves the ht to pass ordinances by direct democratic action. The power of referendum is the power to repeal action taken by the elected represent Jes in a republican form of government.” There is no inherent right of delay in an initiative petition because ordinances passed by initiative (like all ordinances) are intended to be effective prospectively The citizens’ right to petition under Section 3.11 of the City Charter is a right of initiative, not referendum. ‘The City Charter does not provide for the right of referendum except ‘on collective bargaining agreements®. The citizen petitioners were attempting to pass by initiative an ordinance that is actually a referendum and such efforts (which really should be invalid and void) led to confusion as to the effect of such a petition, The City Charter (the law See “Resolution Repealing Previously Adopted Resolution of City Council Dated June City Council on February 26, 2013. Lee v. Commissioners” Court of Jefferson County. Texas, 81 F. Supp. 2d 712 (2000). Black's Law Dictionary (8th ed. 2004) defines “initiative” as “an electoral process by which a percentage of voters can propose legislation and compel a vote on it by the legislature or by the full electorate” and eferendum” as “the process of referring a state legislative act, a state constitutional amendment, or an important public issue to the people for final approval by popular vate.” See also John Boe No. Ly, Reed, 130 S.CL 2811, 2837 n.1 (2010) (Thomas, dissenting) ("Generally speaking, ina referendum, voters approve or reject an Act already passed by the legislawre. In a initiative, voters adopt or reject an entirely nev law, either a staiuie oF constitutional amendment. Seo T Cronin, Direct Democracy: The Poliies of Inkiatve. Referendum, and Recall 2(1989)") Section 3.11, El Paso City Charter. - 2012" as adopted by ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT 10 THE MAYOR ~30-which governs the City initiative process) does not include any right or entitlement to delay. or set aside a lawfully authorized action pending the scheduling and outcome of a potential election on a ballot initiative, This is not inequitable. It is completely consistent with the prospective nature of an ordinance whether instituted by initiative or otherwise. The fact that the citizen petitioners were trying to accomplish by initiative something that could only be done by referendum resulted in the apparently conflicting situation where the ballot initiative (even if written correctly) would have rescinded an action that at the time would be moot. However, since the Charter does not include provisions suspending action pending a ballot initiative, all authorized and lawful action should be entitled to proceed in due course regardless of any proposed ballot initiative. 3. State Law Supersedes City Initiative on an Approved Venue Project. Chapter 334 governs venue projects and should be read to supersede the Charter right to initiative with respect to any “approved venue project,” including an initiative impos conditions that would directly impede or materially change the terms of an “approved venue project.” Article 11, jes that “4 section 5 of the Texas constitution pro 10 charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of t An initiative right which would clearly and effectively prevent a voter approved venue project from moving forward would be inconsistent with Chapter 334. The voter approval process required by Chapter 334 is the mechanism by which the voices of the people are heard with respect to a venue project. Just like the citizen petitioners could not submit an ordinance directly prohibiting the voter approved “In addition, see Glass v. Smith, 244 S.W. 24 645 (1951): “Any rights conferred by or claimed under the provisions of a city charter, including the right to an initiative election, are subordinate to the provisions ofthe general law ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR Tae ‘Sosweo79 4venue project from proceeding, they also could not accomplish the same result by couching their proposed ordinance (if it had been drafied correctly) in terms of prohibiting a key component of the approved venue project. Such a proposed ordinance would be “inconsistent” with the voter approval process specifically set forth in Chapter 334. A small group of disgruntled citizens, through the misuse of a Charter initiative right, should not be able to impede the clear will of the majority of City voters who approved the Ballpark in accordance with State law. 4. Interference with Contract. Pursuant to lawful action of the City Council, the City entered into legally-binding agreements with various third parties with respect to the development of the Ballpark and the City Hall relocation, In justifiable reliance on those agreements, both the City and such third parties expended considerable sums of money, including the multimillion dollar purchase of a Triple-A baseball team by Mountain Star. These binding agreements contain various covenants which a delay associated with the citizens’ group proposed initiative would have caused the City to breach, While the Development Agreement does allow for some delay associated with various force majeure events, Mountain Star stated that a delay which prevents them from occupying the Ballpark for most or all of the 2014 baseball season would literally cost them millions of dollars. ‘The citizen petitioners were aware of this and attempted to circumvent the will of a majority of the City’s voters through the misuse of the initiative process. Any City ordinance, whether passed by initiative or otherwise, cannot impair rights under exi cts. This constitutional limitation on the authority and power ng contr of the City to adopt ordinances would apply whether such ordinances are adopted by City Couneil or by initiative. The City’s duly executed contracts should not be subject to continuing, uncertainty associated with the improper use of a right of initiative. ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT 10 THE MAYOR -325. Election Results are Conclusive. The venue project election authorized the development of the Ballpark and the Additional HOT in support of the Ballpark. An integral part of the Ballpark development is its location on the Former City Hall Site which was openly discussed at every public meeting in which the Ballpark was debated.”® Prior to the venue project election, the City Cou il passed several resolutions and ordinances that clearly provided for the site of the Ballpark to be the Former City Hall Site. Arguably, the location of the Ballpark was part of the “contract with the voters” approved on November 6, 2013; and, even in the midst of the controversy surrounding the location, the venue project proposition was approved by over 60% of the voters. Despite the approval of the majority of the City’s voters, the citizen petitioners tried to use a Charter right of initiative to effectively set aside the results of this very public, lawful process simply because they disagreed with the outcome. G. Ruling in Favor of the City On February 19 & 20, 2013, the Bond Validation Suit was heard on its merits in Travis County District Court. After hearing and considering the arguments of counsel and all Interested Parties and evidence presented relative thereto, the court ruled in favor of the City. On March 8, 2013, the court issued its final judgment in the bond validation case, a copy of which is attached hereto a Exhibit B. Note that the original term sheet with Mountain Star specified City Hall as the site for the Ballpark ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR “3: so9ss9794vu. OF THE BALLPARK A. General The City financed the Ballpark as an “approved venue project” under Chapter 334, The City used the Local Government Corporation, which was created by the City under Subchapter D of Chapter 431 of the Texas Transportation Code, to aid and act on its behalf in financing the Ballpark project. Funding for the Ballpark comes largely from the voter-authorized Additional HOT. Mountain Star will be the primary tenant of the Ballpark, The Ballpark is being built on land owned by the City (which includes the Former City Hall Site) and the City has executed a Development Agreement with Mountain Star with respect to the development and construction of the Ballpark by the City. Governance of Local Government Corporation Pursuant to its Bylaws, the Local Government Corporation is governed by a 9-member board of directors (the “LGC Board”), whose members (the “Members”) are the members of the ity Council, including the Mayor of the City. The term of service of each Member is coterminous with his or her term on the City Council. The Members serve in such capacity without compensation, except that they are reimbursed for their actual expenses incurred in the performance of their official duties. In addition, the Bylaws provide that the Executive Director of the Local Government Corporation shall at all times be the person serving as the City Manager of the City. The Treasurer of the Local Government Corporation shall at all times be the person serving in the capacity of the Chief Financial Officer of the City and the Secretary of the Local Government Corporation shall at all times be the person serving as the City Clerk of the City. By resolution of the LGC Board, the Ci s Deputy City Manager for Development and Tourism and the City’s Comptroller have been appointed as Deputy Executive Director of the ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR 7dLocal Government Corporation, and Assistant Treasurer of the Local Government Corporation, respectively C.— Finaneing Professionals In December 2012, City staff selected Morgan Stanley & Co., LLC (“Morgan Stantey”) and Citigroup from its existing pool of underwriters as the underwriting firms to lead the yee with stadium Ballpark transaction.” ‘These firms were selected because of their experi transactions and their experience with taxable bond sales, including recent experience with the City of El Paso taxable pension bonds.” First Southwest Company (the “Financial Advisor”) and Fulbright & Jaworski LLP (Norton Rose Fulbright) (‘Bond Counsel’) acted as the City’s fi ancial advisor and its bond counsel, respectively, on the Ballpark transaction pursuant to their standing engagements. D. Financing Structure 1. LGC/Master Lease Structure. ‘The City and the Local Government Corporation, as authorized by the City Council and the LGC Board, entered into a Master Lease Agreement (the “Master Lease”) whereby the City conveyed to the Local Government Corporation a leasehold estate in the Ballpark project (the “Primary Lease”) and the Local Government Corporation immediately leased back the same leasehold estate to the City (the “Sublease”). ‘The consideration given by the Local Government Corport n for entering into the Primary Lease was the issuance of the Special Revenue Bonds by the Corporation to fund the Ballpark. project construction and a nominal annual dollar amount of rent, The City’s consideration to the Local Government Corporation for the Sublease was its commitment to make Lease Payments As indicated below. these intial underwriting firms were replaced by the City following the August 1, 2013, ‘meeting of the LGC Board. Me. Studer had previously worked on the successful Texas Rangers Arlington Ballpark transaction with the lead ‘banker from Morgan Stanley and Citigroup was the sole underwriter on the sale of the City’s Taxable General Obligation Pension Bonds, Series 2009, ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR 35 saasia79.sequal to the debt service on the Special Revenue Bonds; provided, however, that such Lease Payments are subject to annual appropriation by the City. ‘The City will make Lease Payments from lawfully available revenues which may include: (i) revenues generated from the Additional ) revenues generated by Team Payments received by the City under the terms of the Team Lease; and (iii) certain other additional lawfully available revenues (as necessary). 2. Benefits of Structure. By using the LGC/Master Lease structure, the City did not have to issue bonds to fund a debt service reserve fund nor did the City have to make higher lease payments to the Local Government Corporation to maintain an artificially-high debt service coverage rati negotiated away” such costly but typical revenue bond In essence, the City covenants by providing the repayment assurance associated with the subject-to-appropriation Lease Payments under the Master Lease. Moreover, since the general sales tax revenues (even those associated with the Ballpark) cannot be pledged to the project, the sole pledgeable revenues for any direct issue of City revenue bonds for the Ballpark would have been the Additional HOT and Team Revenues and those amounts are not projected to be sufficient to pay for 100% of the debt service (nor the additional debt service coverage which would have been required) on the Spe Revenue Bonds, especially in the early years. Without some legal mechanism by which the City could use other lawfully available revenues to make up any shortfall (a “back-stop”), the City could not have financed a ballpark of the size or nature which had been discussed or agreed to with Mountain Star. In Texas, the legally authorized method by which such a subject-to-appropriation back-stop is created is typically a lease between a city and ‘a corporation created by the city.** The City of San Antonio, Texas successfully restructured its outstanding HOT revenue debt as subjectto- appropriation debt using a comparable structure. See $550,373,641.50 City of San Antonio, Texas Public (Cont'd on nes page.) ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR 236Finally, the lease-leaseback aspect to the structure allows the City to avoid some unnecessary costs associated with real property transfers and eases administration of the project construction for the City. The lease-leaseback provisions in the Master Lease also ensure that the Ballpark is continuously owned by the City for the ultimate benefit ofits citizens. 3. Flow of Funds in the Sublease. The City’s payments under the Sublease will be payable from monies on deposit in the venue project fund (the “Venue Project Fund”).” Pursuant to Section 334.042(d) of Chapter 334, the City is authorized to use money in the Venue Project Fund to: (reimburse or pay the costs of planning, acquiring, establishing, developing, constructing, or renovaling one or more approved venue projects in the municipality or county 2) pay the principal of. interest on, and other costs relating to bonds ot other obligations issued by the municipality oF county or to refund bonds, notes, or other obligations; or (3) pay the costs of operating or maintaining one or more approved venue projects.” Section 334.042 of Chapter 334 requires the Additional HOT collected by the City to be deposited into the Venue Project Fund. Without an additional subsequent vote of the citizens, Section 334.041(1) of Chapter 334 prohibits the use of revenue derived from an ad valorem tax in in, the Master Lease support of an approved venue project such as the Ballpark. In addit requires all Team Payments received by the City under the Team Lease to be deposited into a subaccount of the Venue Project Fund; and, such Team Payments may be used only to pay debt service on the Taxable Series 2013B Special Revenue Bonds. The Master Lease also contains an additional covenant that the City, subject to annual appropriation, will, prior to each payment ‘Cond from previons page) Facilites Corporation Improvement and Refunding Lease Revenue Bonds, Series 2012 (Convention Center Refinancing and Expansion Project, Pursuant to Seetion 334.042 of Chapter 334, the City is required o establish a “venue project fund” and deposit the HOT proceeds into such fund. Section 334,042(d) of Chapter 334 ATTORNEV-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR “aT suomonadate, deposit into the Venue Project Fund, an amount of money (if any) which, when added to ‘the amount then on deposit in the Venue Project Fund, will equal the amount of the next Lease Payment (which would equal the amount of principal and interest then due on all the outstanding Special Revenue Bonds as of the next payment date).’' Said another way, the City, subject to annual appropriation, has agreed to make up any shortfall if Additional HOT revenues and Team Payment revenues, in the case of the Taxable Series 2013B Special Revenue Bonds. are not sufficient to make the required Lease Payments. 4. Reimbursement_of City Appropriated Funds. In the event the City ever fon-HOT contributes appropriated funds other than the Additional HOT and Team Payments (* Appropriated Funds”) to the Venue Project Fund for the purpose of making Lease Payments, or otherwise pays any amounts owed under the Master Lease and/or under the Trust Agreement (as, defined below) from Non-HOT Appropriated Funds, then the City shall be entitled to repayment of such contributions in the manner, to the extent and as described in Section 6.07 of the Master Lease. Section 6.07 provides that commencing on the fifth anniversary of the effective date of the Master Lease, the City shall have the continuous right, to the extent permitted by law, to twansfer to its general fund (or other appropriate fund designated by the City), from funds on deposit in the Venue Project Fund, an amount not to exceed the aggregate amount of all Non- HOT Appropriated Funds which have been contributed by the City (and for which the City has not been previously reimbursed) and used to pay costs under the Master Lease and/or the Trust Agreement, including Lease Payments and underlying debt service payments on any Parity “Section 334.042 (c) (5) of Chapter 334 provides that a City may deposit into the venue project fund “any other revenue the municipality by ordinance ... determines is appropriate for use in financing a venue project and related infrastructure, ATTOR ‘25069792 CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR =38=Bonds (defined therein);** provided, however, that the Venue Project Fund shall at all times contain funds in an amount sufficient to make the Lease Payments and other payments due and payable under the Master Lease and under the Trust Agreement during the then current Fiscal Year: and provided further that the City may not reimburse itself from the Taxable Series 20138 Subaccount of the Venue Project Fund pursuant to such Section 6.07 as long as any of the Taxable Series 2013B Special Revenue Bonds or any other taxable parity bonds are outstanding under the Master Lease and/or the Trust Agreement. 5. Trust Agreement, ‘The Special Revenue Bonds (both taxable and tax-exempt) are special limited obligations of the Local Government Corporation issued under the terms of a ‘Trust Agreement, dated as of August 1, 2013 (the “Trust Agreement’), between the Local Government Corporation and Wells Fargo Bank, National Association, Dallas, Texas, as trustee thereunder (the “Trustee"). ‘The Local Government Corporation entered into the Trust Agreement with the Trustee primarily for the purposes of (1) establishing and pledging the Trust Estate for the benefit of the owners of the Special Revenue Bonds; (2) providing for the issuance of the Special Revenue Bonds and any Additional Bonds (as defined in the Trust Agreement) which may be issued in the future on a parity with the Special Revenue Bonds; (3) establishing the Trust Fund, the Operating Fund, and certain accounts and subaccoumts related thereto, and (4) providing for remedies upon the occurrence of an Event of Nonappropriation or upon an Event of Default under the Trust Agreement. ‘The principal of, premium, if any, and interest on the Special Revenue Bonds are secured by and payable from the “Trust Estate” created and existing under the Trust Agreement, which consists primarily of Lease Payments to be made by the City to the Local Goverment Corporation pursuant to the Sublease. The Lease Payments Capi Lease ized terms used herein and not defined hercin shall have the me ing aseribed to them in the Master ATTORNEY-CLIENT PRIVIL Stoese79 ED: SPECIAL REPORT 10 THE MAYOR afrom the Master Lease will be assigned to the Trustee and held in the Trust Estate created under the Trust Agreement and will serve as the primary security for the Special Revenue Bonds: provided, however, any portion of a Lease Payment derived from Team Payments may only be used to pay debt service on the Taxable Series 2013B Special Revenue Bonds, 6. Taxable and Tax Exempt Debi. \n order for municipal debt to be tax exempt, the project generally must be owned, operated, used and managed solely by a state or local governmental entity. Because the Ballpark is leased to a non-governmental entity (i.¢., Mountain Star), at least a portion of the Special Revenue Bonds were required to be taxable. The financing team was able to size the taxable debt to absorb all of the Team Payments and other private payments, in order to issue a portion of the bonds as tax exempt. That is, the maximum amount of annual payments under the Team Lease in each year that the Special Revenue Bonds are outstanding is less than the annual debt service payments on the taxable Special Revenue Bonds in such year. All payments under the Team Lease will be used to pay debt service on the Taxable Series 2013B Special Revenue Bonds; and, the City and the Local Government Corporation allocated all payments under the Team Lease to the Taxable Series 20138 Special Revenue Bonds. In the absence of this special allocation permitted by the Treasury Regulations, the entire financing would have been required to be taxable because of the long-term lease of the Ballpark. E. Preliminary Schedule The Financial Advisor originally put together tentative financing schedules which set forth taking the Special Revenue Bonds to market as soon as possible following resolution of the Bond Validation Suit. Substantially final drafts of the primary bond documents and the preliminary official statement were prepared either in connection with the filing of the Bond Validation Suit on January 13, 2013 or for the February 2013 rating agency meetings. With the ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR ~40- saoN979expectation that the Bond Validation Suit would be resolved during the week of February 4, 2013*°, the Financial Advisor set up rating meetings for the City in Dallas on February 6, 2013. ratings of the Special Revenue On February 13, 2013, Standard & Poor's and Fitch released thei Bonds as “AA-" and “A+", respectively On February 20, 2013, the court in the Bond Validation Suit ruled from the bench in favor of the City, but Bond Counsel advised the City and the Financial Advisor that the offering and sale of the Special Revenue Bonds should not move forward until the appeal period for the Bond Validation Suit had expired.“ ‘The final written judgment in the Bond Validation Suit was issued by the court on Mareh 8, 2013 and the appeal period expired on March 28, 2013. Upon consultation with City staff. the Financial Advisor proposed an April 23, 2013 City Council and the LGC Board approval date, but that date was delayed to April 30, 2013 to allow for appropriate publication of the necessary City ordinances, The agenda items, with all appropriate back-up, were submitted by the City’s Chief Financial Officer for the April 30, 2013 meeting and the appropriate notifications were published in the newspaper; however, prior to posting of the agenda, the City Manager removed the items from the April 30" agenda because of concerns raised by certain City Council members. At that time, the Financial Advisor advised the City’s CFO of the general market rate risks associated with further delaying the financing and the CFO relayed such concerns to the City Manager.*° © As stated elsewhere in this Report, the Bond Validation Suit was originally set for tral on February 4, 2013 but citizen intervenors (Ochow'Salazar) attempted to remove the ease 10 federal court. Eventually, the case was remanded back to State court and the Bond Validation Suit was heard on February 19 & 20, 2013, Bond Counsel did advise City staff and the Financial Advisor that the City and LGC Board could adopt a bond resolution authorizing the sale pursuant to delegated parameters prior to the expiration of the appeal period, but just not market or sell the bonds until the appeal period passed, ‘According to the City Manager, several Council members raised concerns about the timing of these agenda items in relation to the upcoming general election, specifically because of the ongoing controversy aver the Ballpark. The City Manager asked staff i there were any problems with delaying the action until after May 13. ‘The City's CFO advised the City Manager of the market rate risks that the Financial Advisor had expressed but (Com don nex page) ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT 10 THE MAYOR “ae 2989794F, May 28" Bond Authorization ‘On May 28, 2013, the LGC Board adopted a bond resolution authorizing the issuance of the Special Revenue Bonds and authorized each of the pricing officers to finalize all terms of the sale of the Special Revenue Bonds pursuant to certain specified parameters, including a not-to- exceed par amount of $52.8 million, City staff originally proposed a not-to-exceed amount of $57 mil n, but in a very heated public debate, City Council changed that amount to be $52.8 million, representing $50 million of Ballpark project costs, $1 million for public arts projects (the “Arts’) and $1.8 million (approximately) for costs of issuance. City Couneil vehemently emphasized that there was no authorization for the budgeted Ballpark cost to exceed $50 million. ‘The other parameters established by the LGC Board at such meeting were: a true interest cost for the tax exempt Special Revenue Bonds not to exceed 5.0%; a true interest cost for the taxable Special Revenue Bonds not to exceed 5.75%; and a maximum maturity date for the Special Revenue Bonds not to exceed December 31, 2040. In addition, Morgan Stanley and Citigroup were named in the bond resolution as the underwriters for the Ballpark transaction. City Council approved the bond issuance on the same date, Immediately following the May 28, 2013 meeting, Bond Counsel informed the City Attomey that in light of the pointed, public discussion of the Council about the cost of the Ballpark being limited to $50 million and the provisions of the Development Agreement which govern how excess proceeds are to be expended, his recommendation was that the City only (Coma from previous pose? the City Manager, not seeing any immediate market indicators of inereasing raes, was more focused on the City's need for bond proceeds to fund construction and any drain on the City's general fund because of its interim use to fund construction. The CFO confirmed that from a cash flow perspective there was not an ‘immediate need for funds but there may’ be in the not-oo-distant future. In light ofthese facors, the City Manager determined thatthe City could delay moving forward for another 30 days but probably not any longer. The City Manager indicated that she advised the former Mayor and Mayor Pro-Tem of the Council members’ request for delay and both concurred that it was better to hold off until after the general election if it was practical 19 do so. See Exhibit F hereto. ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR aeissue the par amount of bonds that would be necessary to fund $50 million for Ballpark costs. 2% suance. Bond Counsel also stated that it was his for the Arts and to pay the related costs of i view that a bond transaction sized to fund $50 million of project costs would be most consistent with the legal requirements of the not-to-exceed delegation and Council's publie discussions (as ‘well as taking into account Section 5.3 of the Development Agreement)". As a result of the then current market conditions for premium bonds, the City would not have needed to issue $52.8 million of bonds to receive $52.8 million of proceeds. For example, the City may only have needed to sue $48 or $49 million of par amount to generate proceeds to fund the Ballpark costs at $50 million, fund the 2% for the Arts and pay costs of issuance. By that same analysis and those same market conditions, an issuance of $52.8 million of Special Revenue Bonds may very well have resulted in the City having approximately $55 million for Ballpark costs instead of $50 million. That result would seem inconsistent with Council's deliberations. A copy of Bond Counsel's Memo to the City Attorney regarding the par amount of the Special Revenue Bonds is attached hereto as Exhibit C ‘The City Attorney concurred with Bond Counsel’s recommendation but the City Manager believed that the transaction should be sized at the maximum $52.8 million par amount to avoid unnecessary costs associated with any future issuance of completion bonds. ‘The City Manager and City Atorney agreed to immediately take an item back to City Council to clarify this question, but subsequent events with the CMAR and negotiations with Mountain Star rendered the need for such a separate discussion moot. ~ Section 5.3 of the Development Agreement sels out in detail how any excess bond proceeds remaining afer the ‘completion ofthe Ballpark will be spent. That contractual provision limits the City’s ability to place any excess bond proceeds into the debt service fund for the Special Revenue Bonds and could have resulted in the City ‘being obligated to spend some or all of such proceeds on the Ballpark even if City Council did not increase the previously authorized Ballpark costs above $50 million. Again, that result did not seem to be consistent with Council's articulated position on the Ballpark costs. ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR ==G. CMAR Project Delay Letter On June 5, 2013, the City received a letter from the CMAR regarding inereased costs and ct construction budget would exceed project delay, indicating that the CMAR’s estimated proj $57 million (excluding design costs). The letter from the CMAR stated that they had been requesting an increase in their contract amount by at least $18 million since January 31, 2013. It also set forth a detailed summary of various meetings and communications between the CMAR, the Cit ty, Mountain Star, the Project Architect’’ and the Owner's Representative where these concerns were raised and requests had been made. ‘The letter also specifically stated that the Ballpark would not meet the current substantial completion target date of April 4, 2014. In light of this letter, Bond Counsel advised the City and the Financial Advisor that at the very least additional disclosure would have to be added to the preliminary official statement to explain the CMAR’s stated position and status; however, the Financial Advisor and the underwriters stated that such disclosure, while necessary, would make it more difficult to market the Special Revenue Bonds. They advised it would be better to resolve the underlying situation. Attached hereto as Exhibit D is a copy of the June 5, 2013 letter from Jordan/Hunt, a Texas Joint Venture, to the City. H. Additional Negotiati Mountain Star Follow g City Couneil’s action on May 28, 2013 and clear direction to maintain the Ballpark Costs at $50 million, the City staff began discussions with Mountain Star on the necessary changes to the Ballpark design to make it conform to an overall construction and design budget of $50 million. Instead, Mountain Star indicated a preference to increase its payments over time in exchange for a Ballpark design which was more consistent with the © Populous, Ine International Facilities Group LLC (IFG") is acting as the Owners Representative on the Ballpark ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR a 2985794original conceptual drawings, Negotiations between the City and Mountain Star proceeded and ‘culminated in a meeting where Mountain Star agreed to increase its lease payments and the lease term in exchange for the City agreeing to build the Ballpark pursuant to specified construction plans at an agreed not-to-exceed budgeted cost of $64 million, all contingent upon City Council approval. Both Mountain Star and the City agreed that the $64 million should be adequate to pay for the design and construction of the Ballpark in accordance with the final blueprints. At the June 18, 2013 City Council and LGC Board meetings, the City Council authorized an amendment to the Team Lease to increase lease payments and extend the initial term to 30 years and an amendment to the Development Agreement to specify definitive Ballpark design plans, set the Ballpark budget not to exceed S64 million and extend the financing deadline until August 18, 2013. The LGC Board amended its bond resolution to increase the not-to-exceed par amount of the bonds to $60.8 million. No other changes to the previously-established maximum parameters for the sale of the Special Revenue Bonds were made at that time, Ll Outside Market Factors Impact Pricing of Bond Sale On June 19, 2013, a statement was released by the Federal Reserve System's Federal Open Market Committee regarding the Federal Reserve's plans to taper its bond buy program. Over the next three days, the municipal bond market experienced the greatest rising interest rate movement in the last 25 years as illustrated by the fact that the yields for Municipal Market Data (MMD) index increased by nearly 60 basis points. In addition, on July 18, 2013, the City of Detroit filed for the largest municipal bankruptcy in US history, an event which further shocked the municipal market, For a discussion of various pricing factors affecting the bond sale, see the memo from First Southwest Company to the City regarding the Ballpark pricing which is attached hereto as Exhibit ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR ~5- Saoss979¢Original Attempt to Sell the Special Revenue Bonds On June 27, 2013, a preliminary official statement relating to the Special Revenue Bonds ‘was posted and Morgan Stanley and Citigroup began marketing the bonds to potential investors. Because of the July 4" holiday the following week, the underwriting team suggested the week of July 8" as the first week to price the Special Revenue Bonds. On July 11, 2013, the underwriters ‘went out into the market to try and sell the Special Revenue Bonds, but ultimately pulled the deal ‘when there was not enough investor interest at the established interest rate parameters to sell the bonds. After de d discussions with City staff and the Financial Advisor about restructuring debt service to make the Special Revenue Bonds more appealing to investors, the underwriters offered the Special Revenue Bonds to the public again on July 2013. Morgan Stanley successfully found buyers of the taxable bonds with a 10 year bullet structure, but then was unsuccessful in finding buyers for a similar structure on the tax exempt bonds.”? Although they had suggested the structure, Morgan Stanley declined to underwrite the tax exempt bonds on a 10 year bullet structure when asked by the City. Upon consultation with the Mayor, City staff decided to request that the LGC Board increase its interest rate parameters. August 1 LGC Board Meeting On August 1, 2013, the LGC Board met in public session to review the pricing parameters. The LGC Board quickly adjourned to Executive Session to consult with counsel The City Attorney and Bond Counsel briefed the City Council on the various events leading up to the failed bond pricings and the legal ramifications of the options available to the City. City Council asked many pointed questions about the roles of the City staff, the City’s Financial © Federal tax law requires that the tax exempt Special Revenue Bonds remain outstanding no longer than the taxable Special Revenue Bonds because the Team Payments must be allocated to taxable bond debt service in ‘each year that there are outstanding tax exempt bonds, ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR =46- Saoss979.sAdvisor and the underwriters in the bond issuance process. City Council directed the City Manager to investigate the roles of the City’s financing staff and the Financial Advisor in connection with the Ballpark financing. A copy of the City Manager's analysis and report to the City Attorney pursuant to City Couneil’s direction is attached hereto as Exhibit F. After reconvening in public session and following further public discussion, the City “s pricing Council increased the previously established interest rate parameters and gave the Cit officers greater authority with respect to the structure of the bond financing and choice of the underwriting team.” L. Sale of the Special Revenue Bonds On August 2, 2013, the City received Morgan Stanley's resignation from the underwriting team (as requested by the City) and the Financial Advisor sent out an expedited REP for underwriters to the City’s existing underwriting pool with responses due by August 6". On August 7, 2013, the City staff selected a new underwriting team of Goldman Sachs, Raymond James and Wells Fargo. ‘The new underwriters conducted their necessary due diligence and significant revisions were made to the preliminary official statement, A revised preliminary official statement and an internet road show were posted on August 13, 2013. On August 22, 2013, the Special Revenue Bonds were successfully priced with the tax exempt Series 2013A Special Revenue Bonds being placed with investors and Goldman Sachs underwriting all of the Taxable Series 2013B Special Revenue Bonds (which they were not able © Final parameters established by the LGC Board were that (a) the aggregate original principal amount of the Special Revenue Bonds would not exceed 60.8 million; (b) the true interest rate (federal arbitrage yield) forthe tax exempt Special Revenue Bonds would not exceed 6.50% (c) the true interest rate (federal arbitrage yield) for the taxable Special Revenue Bonds would not exceed 7.25%; and (@) the maximum maturity date for the Special Revenue Bonds would not exceed December 31, 2045, ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT 10 THE MAYOR ~47-to sell), The following is a summary of certain key terms of the tax exempt Series 2013A Special Revenue Bonds and the Taxable Series 2013B Special Revenue Bonds: Series 2013A (Tax-Exempt © $45,123,000 Par Amount ¢ 25 Year Amortization (Final Maturity: FYE 2038) with back-loaded prineipal © Call Features: ‘© $17.455,000 Callable on 8/15/2017 (or any date thereafter) ‘© $22,500,000 Callable on 8/15/2023 (or any date thereafter) © Structure: Projected to minimize impact to the General Fund, 23 Year Amortization with large bullet payment in year 2023. Market drove bullet maturity structure, Dual call provides additional flexibility to restructure, repay with excess Adgitional HOT and/or refund bullet maturity ‘© If interest rates are lower, the City can refund and restructure for economic savings as soon as four years. If interest rates are higher in 2017, the City ean ‘wait to refund and/or restructure at any point thereafter, ‘© Assumption is that the bullet maturity will be refunded and restructured prior to ts due date, © True Interest Rate/Federal Arbitrage Yield: 5.48% Series 2013B (Taxable) © $15,660,000 Par Amount © 30 Year Amortization (Final Maturity: FYE 2043) © Call Features: ‘© Make-Whole Call at any time (redemption price would include premium equal to present value of remaining payments) © Structure: # Sized to offset Team Revenues at contractual caps. # Results in less taxable debt than originally projected. © 30 Year Amortization with ascending payments as increase. © True Interest Rate/Federal Arbit ‘eam Revenues projected to ge Yield: 7.24% ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR ~48- S29409794M. — Sources and Uses of the Bond Proceeds ‘The proceeds for the sale of the Special Revenue Bonds will be applied approximately as follows: s-Exempt ‘Vasable Series 20138 Series 20138 Total ‘Sources of Funds Par Amount $45.125,000.00 15,660,000.00 360,785,000.00 Prom 4.270,568.90 18,322.20 4.288,891.10 “Total Sources of Funds $49,395,568.90 515,678.32 $65,073,891.10 Uses of Funds: Ballpark Construction Fund $15.247.089.71 963.400,000.00 Cosis of Issuance 322,036.69 1.250,000.00 Underwriting Discou 423,848.48 Rounding 42.62 Total Uses of Funds 49,395 568.90 315,678,322.20 SOTSBIL.10 For additional information with respect to the Special Revenue Bonds, please see the final Official Statement with respect to the sale of the Special Revenue Bonds dated August 22, 2013, as supplemented (the “Official Statement”) which is included as part of the bond transcript delivered to the City in connection with the bond closing. N. Attorney General Approval and Closing Generally, all bonds issued by State or local government issuers in Texas must be approved by the Texas Attorney General and registered with the State Comptroller. The Special Revenue Bonds are no different and Section 334.043 of Chapter 334 requires that bonds issued to finance an approved venue project must be submitted for approval to the Texas Attomey General! Because of the complexities associated with the Ballpark transaction, Bond Counsel began a dialog with the Texas Attorney General beginning in March of 2012. Moreover, after the successful election and as it became evident that the Bond Validation Suit would have to be filed, Bond Counsel formally met with the Chief of the Public Finance Division of the State © Section 334.043(b) provides that “[{Jhe bonds or other obligations and the proceedings authorizing the bonds or other obligations shall be submitted to the attomey general for review and approval as required by Chapter 1202, Government Code.” ATTORNEV-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR a S2540H794Attomey General’s office and other members of her staff to discuss the various issues associated with the Ballpark and the need to file the Bond Validation Suit. Following the Bond Validation Suit, Bond Counsel continued to be in communication with the Public Finance Division of the Attorney General's office, periodically updating them on the status of the bond transaction. Finally on July 11, 2013, Bond Counsel filed a preliminary transcript with respect to the issuance of the Special Revenue Bonds with the Attorney General. That transcript could not be completed until final pricing information was available on August 22, 2013. Once the Special Revenue Bonds were priced, Bond Counsel made several supplemental filings with the Attorney General to provide final documents and address questions of law and fact raised by the Attorney General with respect to the final structure of the transaction. On August 28, 2013, the Office of the Texas Attorney General released its approving opinions with respect to the Special Revenue Bonds and the bonds were registered with the Comptroller. Under Texas law, bonds which are approved by the Texas Attomey General and registered with the Comptroller are valid and incontestable in a court or other forum and are binding for all purposes in accordance with their terms."* The bond transaction closed on August 29, 2013. As with every bond transaction, complete transcript of the proceedings related to the sale of the Special Revenue Bonds will be provided to the City’s Chief Financial Officer (in both hard copy and CD format) shortly following the closing of the bond transaction. ©. Repayment of Ballpark Construction Costs In the interests of trying to adhere to a schedule which has the Team playing in the Ballpark in 2014, the City began construction of the Ballpark prior to obtaining financing. In © See Section 1202,006(a) of the Texas Government Code. The incontestable validity of bonds approved by the “Texas Attorney’ General does not extend to issues of fraud or consttutionality and the approving opinion of the ‘Texas Attorney General does not address federal tax aw issues. ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR ~50- 869794addition to the award of contracts associated with the design and construction of the Ballpark in 2012 and early 2013, the former Insights Museum was demolished in March 2013 and the former City Hall was dem¢ red in April of 2013. As necessary, the City advanced the funds needed to move forward with construction of the Ballpark with the expectation that it would be reimbursed upon closing of the bond transaction. On closing of the Special Revenue Bonds, approximately $11,072 24 of the proceeds from the sale of the Bonds were used to reimburse the City for Ballpark expenditures made by it prior to the date thereof."* 6.07 of the Master Lease provides that in the event the City ever appropriates funds other than the ‘Additional HOT or Team Payments to pay amounts owed under the Master Lease or the Trust Agreement, then the City shall be entitled to repayment of such funds from the Additional HOT in accordance with the terms of the Master Lease, See Section VIL D. hereof ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR -5i- 29865794vu. SEQUENT EVENT! 5, 2013, the CMAR provided the City with a preliminary estimate of a On September guaranteed maximum price for the Ballpark (“GMP”) that was in excess of the approximately $52.5 million which had been previously authorized by City Council. The CMAR’s preliminary cost estimate would have also resulted in a Ballpark Budget in excess of the $64 million, to which Mount in Star and the City had previously agreed. ‘The higher amount of the CMAR’S preliminary cost estimate was largely attributable to definitive subcontractor bids coming in at levels greater than what was reasonably expected by the City and Mountain Star at the time the Ballpark Budget was established. While the City had the right to instruct the CMAR to make changes to the Ballpark, on a basis consistent with the requirements of the Development Agreement, to cause the aggregate Ballpark Costs not to exceed the Ballpark Budget of $64 million, Mountain Star indicated its willingness to take on additional financial responsibility for the Ballpark. On September 27, 2013, Mountain Star memorialized its commitment in writing by signing a Supplement to the Ballpark Development Aj sment whereby (i) Mountain Star agreed to be responsible for any Cost Overruns: (ii) Mountain Star affirmed the City’s responsibility to fund no more than $64 million of Ballpark Costs; (ili) to the extent the final GMP as agreed to by the City, the CMAR and Mountain Star exceeds $52,545,810, Mountain Star will be responsible for payment of any amount by which the approved GMP exceeds such amount (“Developer Portion of GMP’) ATTORNEY: TIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR 752s(iv) Mountain Star agreed to deposit cash or an irrevocable and unconditional letter of credit (the “Letter of Credit”) with the Trustee to fund the Developer Portion of GMP by 5:00 pm., MST, on October 7, 2013; () after Mountain Star makes the required deposit of the Developer Portion of GMP with the Trustee, the Ballpark Budget is to be revised in a form that is mutually acceptable to Mountain Star and the City. To the extent such revised Ballpark Budget exceeds the sum of $64 million plus the Developer Portion of GMP, then Mountain Star shall deliver funds equal to sueh additional amount to the Trustee in the form of a cash deposit or an increase in the amount of the Letter of Credit: (vi) Mountain Star may reduce the approved Ballpark Budget (and modify the Ballpark Project Plans) by utilizing value engineering as long as such value engineering will not cause the approved Ballpark Budget to be less than S64 ns and (vii) any future change orders requested by Mountain Star shall also be accompanied by payment for such change order delivered to the Trustee in the form of a cash deposit or an inerease in the amount of the Letter of C ‘On September 30, 2013, the City, the CMAR and Mountain Star agreed to a GMP of $60,691,560 which resulted in the Developer Portion of GMP being $8,145,750. On October 7, 2013, Mountain Star delivered to the City Attorney Irrevocable Letier of Credit No. 90900227 and Irrevocable Letter of Credit No. 90900228, each in the amount of $4,072,875 (aggregating $8,143,750) and drawn on WestStar Bank, Paso, Texas, to fund the Developer Portion of GMP (as necessary). Collectively, these two letters of credit constitute the “Lester of Credit.” ATTORNEY: StaRa79 TIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR -33-Pursuant to City Council action on October 15, 2013, the City Couneil accepted the Supplement to the Ballpark Development Agreement dated September 27, 2013. In addition, the LGC Board authorized the execution of a First Amendment to the Trust Agreement dated as of October 15, 2013 whereby the Trustee was instructed to accept the Letter of Credit for the Developer Portion of GMP and any future deposits made by Mountain Star to cover additional Ballpark Costs. Capitalized terms used in this section and not defined herein shall have the meanings ascribed to them in the Development Agreement. ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR Th SosKeo73 8Ix. CONCLUSIO! As the foregoing Report illustrates, the City of El Paso and its elected officials have a keen focus on viable economic development projects that enrich the El Paso community in many ways, both fiscally (in terms of aggregate economic impact) and by way of non-quantitative impact (in terms of enhancing the El Paso community and the quality of life of its residents). This focus is evidenced by the development of the El Paso Downtown 2015 Plan and its Plan El Paso. On a bas consistent with the City’s comprehensive development plans, the City and its officials determined that the Ballpark proposal would be a worthwhile economic development project. The City Council then took numerous steps to authorize, finance and implement the Ballpatk project throughout 2012 and 2013. A key aspect of this process was the successful November 6, 2012 election during which the El Paso voters approved the Ballpark as a venue project and authorized the Additional HOT to fund the project. At various stages of this process, the City and its officials encountered challenges and issues that required solutions aimed at ensuring completion of the Ballpark project in a timely manner given its projected future economic impact on the El Paso communit One of the most significant carly controversies associated with the Ballpark was the selection of the Former City Hall Site as its home, A group of citizens took issue with that location, even though it was a decision based largely on saving the taxpayers of El Paso millions of dollars and expediting the development of the Ballpark and its contemplated economic impact. Nevertheless, the City and its officials took affirmative steps to ensure that it properly responded to this challenge in a way that complied with applicable law. As part of this response, the City filed and secured a favorable judgment in a bond validation suit based on the substantive and ATTORNE S997 LIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR 5Procedural arguments summarized in this Report. Upon the expiration of the appeal period associated with this bond validation suit, the City and its officials moved on to the next stage of the Ballpark project ~ structuring and finalizing the necessary financing. To this end, the City, its Financial Advisor, its Bond Counsel and the underwriting team chosen by the City, worked d rently to develop the optimal deal structure. Based on this objective, the City opted for a master lease/sublease structure facilitated by the strategie use of a local government corporation. The City and its officials, together with its team of advisors, worked collaboratively with the various other counterparties to hammer out other key aspects of the transaction. In the midst of all this act ity, conditions in the bond market deteriorated, in large part due to two er ical events: (i) the Federal Reserve's announcement of its decision to reduce the scope of its bond buying program (and the resulting adverse impact on interest rates) and (ii) the collateral impact of the Detroit municipal bankruptey filing on the municipal bond market. The cumulative effect of these two events contributed greatly to the failure of the initial underwriting group's attempts to market and sell the Special Revenue Bonds. The City and the Local Government Corporation made key changes to the financing parameters to make the bond offering more appealing to potential investors, As part of this process, the City also made the decision to retain the help of a new group of underwriters and again went to market, This time, the City was successful and the deal closed. In conclusion, only time will tell whether the Ballpark project will be the economic and social success that the City envisioned it would be when the City Couneil first decided to move forward with the project. Currently, Ballpark construction is underway and on schedule, Initial concerns about cost overruns have been addressed collaboratively by the City and Mountain Star, ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT 10 THE MAVOR ~36- susesorsbut with a construction project of this size and complexity, there are bound to be additional challenges. Irrespective of these future challenges, at every step of the process thus far, the ly’s staff and its outside professionals have diligently put forth their best efforts to develop, finance and implement this very complicated project in accordance with the policy directives of City Council and applicable laws This Report was prepared by Norton Rose Fulbright at the request of Mayor Oscar Leeser in our professional capacity as bond counsel to the City. As such, this Report and certain of the attached exhibits are confidential and privileged. Neither this Report nor any of its exhibits should be circulated to any parties which are not covered by the City’s attorney- ient relationship and no portion hereof should be copied or extracted. To the extent any information contained herein or in the exhibits is otherwise publicly available from non- confidential sources, such other sources should be used to provide that information to other parties. Any questions with respect to this Report or the attorney-client privilege of the City should be directed to the City Attorney. ATTORNEY-CLIENT PRIVILEGED: SPECIAL REPORT TO THE MAYOR

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