The URL can be used to link to this page

Home My WebLink Aboutordinance.council.018-95 -- ORDINANCE NO. 18 (SERIES OF 1995) AN ORDINANCE AUTHORIZING THE ISSUANCE OF $6,455,000, AGGREGATE PRINCIPAL AMOUNT OF CITY OF ASPEN, COLORADO, SALES TAX REFUNDING REVENUE BONDS, SERIES 1995; AUTHORIZING THE USE OF THE PROCEEDS THEREOF FOR THE PURPOSE OF CURRENT REFUNDING THE CITY OF ASPEN, COLORADO, SALES TAX REFUNDING AND IMPROVEMENT REVENUE BONDS, SERIES 1987 AND PAYING COSTS OF ISSUING SAID BONDS; PROVIDING THE FORM, TERMS AND CONDITIONS OF SAID BONDS, THE MANNER AND TERMS OF THEIR ISSUANCE, THE MANNER OF THEIR EXECUTION, THE METHOD OF PAYING THEM AND THE SECURITY THEREFOR; PLEDGING CERTAIN SALES TAX PROCEEDS OF THE CITY, INCLUDING CERTAIN SALES TAX REVENUES RECEIVED FROM PITKIN COUNTY, COLORADO, FOR TIlEPi\.YMENT OF SAID BONDS; PROVIDING CERTAIN COVENANTS AND oTHER. DETAILS CONCERNING THE BONDS AND THE SALES TAX REVENUES; RATIFYING ACTION PREVIOUSLY TAKEN AND APPERTAINING THERETO; AND DECLARING AN EMERGENCY AND PROVIDING FOR THE EFFECTIVE DATE OF THIS EMERGENCY ORDINANCE. cc,_,', L "\\.- WHEREAS, the City of Aspen (the "City"), in the County of Pitkin and State of Colorado, is a legally and regtilarly, created, established, organized and existing municipal corporation under the provisions of Article XX of the Constitution of the State of Colorado. and the home rule charter of the City (the "Charter"); and WHEREAS, under the Charter, the City is possessed of all powers which are necessary, requisite or proper for the government and administration of its local and municipal matters, all powers which are granted to home rule municipalities by the Colorndo Constitution, and all rights and powers that now or hereafter may be granted to municipalities by the laws of the State of Colorado; and WHEREAS, the City has, by the 1970 Sales Tax Ordinance (as defmed herein), levied its Open Space Sales Tax (as defmed herein) and has provided therein that revenue from the Open Space Sales Tax shall be set aside in a separate fund designated the "Park and Open Space Fund" and expended as follows: ~,;!.. ,~, \+,- . . . the acquisition of real property including open space or construction of capital improvements for municipal purposes, and for the payment of indebtedness incurred for such land acquisition including open space or construction of capital improvements, food tax refunds payable by the City, and for such expenditures as maybe necessary to protect the real properties including open space acquired ~" '. 02/64674.4 '-,. ~., or the capital improvements constructed from any and all threatened, or actual damages, loss, destruction or impairment from any cause or occurrences. . . ; and WHEREAS, the Board of County Commissioners of Pitkin County, Colorado, has levied a county sales tax and has provided that a designated portion of such county sales tax shall be distributed to the City and other incorporated municipalities within the County; and WHEREAS, the City has heretofore issued its City of Aspen, Colorado, Sales Tax Refunding and Improvement Revenue Bonds, Series 1987 (the "Refunded Bonds"), currently outstanding in the aggregate principal amount of $6,930,000, and bearing interest at the rates (per annum), payable semiannually on May 1 and November 1 of each year, and maturing on the dates and in the amounts set forth as follows: Principal Interest Maturity Amount Rate 05/01/95 $625,000 6.30 % 11101/95 645,000 6.30 05/01/96 670,000 6.40 11/01/96 690,000 6.40 e 05/01/97 720,000 6.50 11101/97 740,000 6.50 \0< 05/01/98 775,000 6.625 11/01/98 805,000 6.625 05/01/99 620,000 6.75 11/01/99 640,000 6.75 the Refunded Bonds having been issued for the purpose of refunding prior outstanding bonds of the City; and WHEREAS, the Refunded Bonds maturing on and after November 1, 1995 are subject to redemption at the option of the City on and after May 1, 1995 at a redemption price of 101 % of par plus accrued interest to the redemption date; and WHEREAS, the City Council of the City (the "Council") has determined and hereby declares that all of the Refunded Bonds are properly allocable to pUlposes for which the Open Space Sales Tax may be expended pursuant to the 1970 Sales Tax Ordinance and for which!the County Sales Tax (as hereinafter defmed) may be expended; and WHEREAS, the Refunded Bonds are secured by, and constitute a ftrst and prior lien on the Pledged Revenues (as hereinafter defmed); and l,e, ~" 02/64674.4 2 ~,',.., ~:;.. ef ;n.., , jlli '(" .., !s:" rt \ "'~. . WHEREAS, Section 10.6 of the Charter provides in relevant part: The council may authorize, by ordinance, without an election, issuance of refunding bonds or other like securities for the purpose of refunding and providing for the payment of the outstanding bonds or other like securities of the City as the same mature, or in advance of maturity by means of an escrow or otherwise. ; and WHEREAS, the Council has determined and hereby declares that the current refunding of the Refunded Bonds will result in a reduction in total debt service and an interest cost savings and will effect other economies; and WHEREAS, pursuant to and in accordance with Section 10.6 of the Charter, by written ordinance of the Council, and in furtherance of the purposes of the Charter, the City desires to refund the Refunded Bonds; and WHEREAS, to fmance the refunding of the Refunded Bonds and to pay costs of issuing the hereinafter described Bonds, the City deems it advisable and necessary to issue $6,455,000 aggregate principal amount of "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series 1995" (the "Bonds"), payable solely from certain sales tax revenues of the City (including certain sales tax revenues received from Pitkin County, Colorado); and WHEREAS, the Bonds will be issued, sold and delivered by the City to Dougherty, Dawkins, Strand & Bigelow Incorporated, Denver, Colorado (the "Underwriter") as provided herein; and WHEREAS, the City desires to cause the Bonds to be issued, to authorize and direct the application of the proceeds to fmance the refunding of the Refundedl Bonds and pay costs of issuance of the Bonds, as set forth herein, and to provide security for the payment thereof, all in the manner hereinafter set forth; and WHEREAS, upon the refunding of the Refunded Bonds, there will be no other obligations of the City having a lien upon the Pledged Revenues other than the Bonds; and WHEREAS, all things necessary to make the Bonds when authenticated by the Paying Agent (as defmed herein) and issued as provided in this Ordinance, the valid, binding and legal obligations of the City according to the import thereof, and to constitute this Ordinance a valid assignment and pledge of the amounts pledged to the payment of the principal of, premium, if any and interest on the Bonds, have been done and performed, and the creation, execution .and delivery of the Bonds, subject to the terms hereof, have in all respects been duly authorized. 02/64674.4 3 - "." It"',',,. ~, ~"" (,$. ~~.. ~~ NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. Definitions. The terms dermed in this Section shall have the designated meanings for all purposes of this Ordinance and of any amendatory or supplemental ordinance, except where the context by clear implication requires otherwise. "Bond Fund" means the Bond Fund created pursuant to Section 14 hereof. "Bond Year" means the one-year period beginning on the date of the Bonds and ending the day before the first anniversary date of the date of the Bonds, and each one-year period thereafter. "Bonds" means the "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series 1995." "Business Day" shall mean any day on which banks located in the City, located in the City of New York, New York or located in the city in which the principal corporate trust office of the Paying Agent is located are not required or authorized by law to remain closed and on which The New York Stock Exchange is not closed. "Cede" means Cede & Co., the nominee of DTC, and any successor nominee of DTC. "Chaner" means the Home Rule Charter of the City, as amended. "City" means the City of Aspen, Colorado. "Code" means the Internal Revenue Code of 1986, as amended. "Council" means the City Council ofthe City. "County" means Pitkin County, Colorado. "County Sales Tax" means the County 2 % retail sales tax levied upon the purchase price paid or charged upon all sales and purchases of personal property at retail and for the furnishing of services in the County. "County Sales Tax Resolution" means County Resolution No. 78-132, whereby the County agrees to pay to the City a percentage of the sales tax revenues derived from the County Sales Tax. "DTC" means The Depository Trust Company, New York, New York, and its successors and assigns. 02f64674.4 4 f~ .. lia ~. ~,t,.,' Itt f~ "Event of Default" means any occurrence or event specified in and defmed by Section 27 hereof. "Federal Securities" shall have the meaning ascribed to such term in Section 25 hereof. "Investment Instructions" means the letter of instructions provided to the City on the date of issue of the Bonds in accordance with Section 18 hereof. "1970 Sales Tax Ordinance" means Ordinance No. 16 (Series of 1970), adopted by the City Council of the City on July 13, 1970, and approved by the qualified electors of the City on September 1, 1970, which levies the City's Open Space Sales Tax. "Open Space Sales Tax" means the 1 % sales tax levied by the City on the sale of tangible personal property at retail and the furnishing of services in the City, pursuant to the 1970 Sales Tax Ordinance. "Ordinance" means this Ordinance, and any amendments or supplements hereto as may be adopted by the Council in compliance herewith. "Participants" means those broker-dealers, banks and other fmancial institutions from time to time for which DTC holds Bonds as a securities depository. "Paying Agent" means Norwest Bank Colorado, National Association, in Denver, Colorado, or its successors. "Pledged Revenues" means for each fiscal year all of the proceeds of the Sales Tax after deduction of the reasonable and necessary costs and expenses of collecting and enforcing said Sales Tax, if any. "Rebate Fund" means the Rebate Fund created pursuant to Section 14 hereof. "Record Date" means the 15th day of the month (whether or not a business day) prior to each interest payment date with respect to the Bonds. "Reftmded Bonds" means the City of Aspen, Colorado, Sales Tax Refunding and Improvement Revenue Bonds, Series 1987. "Registered Owner" means the person or persons in whose name or names a Bond shall be registered on the books of the City maintained by the Paying Agent kept for that purpose in accordance with provisions of this Ordinance. "Representation Letter" means the representation letter from the City to DTC. "Reserve Fund" means the Reserve Fund created pursuant to Section 14 hereof. 02/64674.4 5 ~, ., ~-'" w ~\ "'.',, ~2 ~L '~00 "Reserve Fund Requirement" means $645,500, which is the maximum principal orand interest on the Bonds in any Bond Year. "Revenue Fund" means the Revenue Fund created pursuant to Section 14 hereof. "Sales Tax" or "Sales Taxes" means the Open Space Sales Tax and that portion of the County Sales Tax which the City receives pursuant to the County Sales Tax Resolution. "Underwriter" means Dougherty, Dawkins, Strand & Bigelow Incorporated, Denver, Colorado. Section 2. Ratification. All action heretofore taken (not inconsistent with the provisions of this Ordinance) by the Council and officers of the City relating to the levy and collection of the Open Space Sales Tax and the County Sales Tax, to the refunding of the Refunded Bonds and to the authorization, sale and issuance of the Bonds, is hereby ratified, approved and confIrmed. Section 3. Authorization of Refunding of the Refunded Bonds. The refunding of the Refunded Bonds is hereby authorized and the necessity thereof declared. Section 4. Authorization and Sale of Bonds. There are hereby authorized and directed to be issued the revenue bonds of the City to be designated "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series 1995" in the aggregate principal amount of $6,455,000. The principal of, premium, if any, and interest (except as herein otherwise provided) on the Bonds are payable from, and secured by, the Pledged Revenues. The Bonds as herein authorized shall be sold to the Underwriter at a price equal to the principal amount thereof, plus accrued interest from May 1, 1995 to the date of their delivery, less an underwriting discount of $48,413. The Preliminary Official Statement, dated April 5, 1995, relating to the Bonds is hereby approved and the use thereof by the Underwriter is hereby ratified and confmned. The Mayor is authorized and directed to execute or deliver to the Underwriter a final Official Statement in substantially the form of the Preliminary Official Statement. Section 5. Bond Details. The Bonds shall be issuable as fully registered bonds without coupons in the denomination of $5,000 or any integral multiple thereof. The Bonds shall be dated as of May 1, 1995 and shall bear interest payable semiannually from their date or such later dates as to which interest has been paid on each May land November 1, commencing November 1, 1995. The Bonds shall bear interest at the rates (per annum), mature in the principal amounts and mature on the dates specified as follows: 02/64674.4 6 e Maturity Principal Amount Interest Rate ~ \,' November 1, 1995 $590,000 4.35% May 1, 1996 715,000 4.50 November 1, 1996 730,000 4.60 May 1, 1997 755,000 4.70 November 1, 1997 770,000 4.80 May 1, 1998 800,000 4.85 November 1, 1998 820,000 4.90 May 1, 1999 630,000 4.95 November 1, 1999 645,000 5.00 The principal of, premium, if any, and interest on the Bonds shall be payable in lawful money of the United States of America, with the principal of and premium, if any, on the Bonds payable at the principal corporate trust office of the Paying Agent. Payment of interest on any Bond shall be made to the Registered Owner thereof and shall be paid! by check or draft of the Paying Agent mailed on the interest payment date to the Registered Owner at his or her address as it appears on the registration books of the City or at such other address as is furnished to the Paying Agent in writing by such Registered Owner as of the Record Date. If any Bond shall remain unpaid upon presentation at maturity, interest shall continue to accrue until paid atthe rate designated in said Bond. e' ~~, \% '< Section 6. Redemption. (a) Optional Redemption. The Bonds maturing on or before May 1, 1998 shall not be subject to redemption prior to their respective maturities. The Bonds maturing on and after November 1, 1998 shall be subject to redemption prior to their maturity, at the option of the City, in whole or in part, in integral multiples of $5,000, and if less than all of the Bonds are to be redeemed, from such maturity or maturities selected by the City and by lot within a maturity as the Paying Agent shall determine (giving proportionate weight to Bonds in denominations larger than $5,000), on May 1, 1998 and on any date thereafter, at a redemption price equal to the principal amount of each Bond or portion thereof so redeemed, plus accrued interest to the redemption date. (b) Panial Redemption. In the case of a Bond of a denomination larger than $5,000, a portion of such Bond ($5,000 or integral multiples thereof) may be redeemed, in which case the Paying Agent shall, without charge to the Registered Owner ofthe Bond, authenticate and issue a replacement Bond or Bonds for the unredeemed portion thereof. '.'.It" ~i' \, '. (c) Notice. The City shall give written instructions of any optional prior redemption pursuant to subsection (a) of this Section to the Paying Agent at least fOrtY- five days prior to such redemption date (provided that the Paying Agent may waive'the right to receive such instructions more than thirty days prior to such redemption date). 02/64674.4 7 tl)'. ~, ~,. ';- \, c<.,. &,'.' It '~. -- - Notice of any optional redemption shall be given by the Paying Agent in the name of the City by sending a copy of such notice by fIrst-class mail, postage prepaid, not more than forty-fIve days and not less than thirty days prior to the redemption date, to the Registered Owner of any Bond which is called for prior redemption at his or her address as it last appears on the registration records kept by the Paying Agent unless waived by such Registered Owner. Failure to give such notice by mail to the Registered Owner of any Bond, or any defect therein, shall not affect the validity of the proceedings fot the redemption of any other Bonds. Such notice shall identify the Bonds or portions thereof to be redeemed (if less than all are to be redeemed) and the date fIxed for redemption, and shall further state that on such redemption date the principal amount thereof will become due and payable at the principal corporate trust offIce of the Paying Agent, and that from and after such date interest will cease to accrue. Accrued interest to the redemption date will be paid by check or draft mailed to the Registered Owner (or by alternative means if so agreed to by the Paying Agent and the Registered Owner). Notice having been given in the manner hereinabove provided, the Bond or Bonds so called for redemption shall become due and payable on the redemption date so designated; and upon presentation thereof at the principal corporate trust offIce of the Paying Agent, the City will pay the Bond or Bonds to be called for redemption. · No further interest shall accrue on the principal of any Bond (or portion thereof) called for redemption from and after the redemption date, provided suffIcient funds are on deposit with the Paying Agent on the redemption date. Section 7. Paying Agent; Transfer and Exchange. The Paying Agent is hereby appointed as bond registrar for the City for purposes of the Bonds, and the City hereby approves the execution and delivery of a paying agency agreement to be in form and substance satisfac~ory to the City Attorney of the City. The Mayor or Mayor Pro Tem is hereby authorized' and directed to execute and deliver the paying agency agreement, and the City Clerk or Deputy or Assistant City Clerk is hereby authorized and directed to attest the paying agency agreement and affIx the seal of the City thereto. The Paying Agent shall maintain on behalf of the City, books for the purpose of registration and transfer of the Bonds, and such books shall specify the person entitled to the Bonds and the rights evidenced thereby, and all transfers of Bonds and the rights evidenced thereby. Bonds may be transferred or exchanged without cost, except for any tax or governmental charge required to be paid with respect to such transfer or exchange and any cost of printing bonds in connection therewith, at the principal corporate trust offIce of the Paying Agent. Bonds may be exchanged for a like aggregate principal amount of Bonds of other authorized denominations of the same maturity and interest rate. Upon surrender for transfer of any Bond, duly endorsed for transfer or accompanied by an assignment duly executed by the Registered Owner or his or her attorneys duly authorized in writing, the City shall executeiand the Paying Agent shall authenticate and deliver in the name of the transferee or transferees a new Bond or Bonds of the same maturity and interest rate for a like aggregate principal amount. The person in whose name any Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, whether or not payment on any Bond shall be overdue, !and neither the City nor the Paying Agent shall be affected by any notice to the contrary. 02/64614.4 8 ~'e'.' ,\ ".." ilt,,'., 10 i('t" .' " ~\ "'~ - Section 8. Execution and Delivery of the Bonds. The Bonds shall be executed in the name and on behalf of the City with the manual or facsimile signature of the Mayor or Mayor Pro Tern, shall bear a manual or facsimile of the seal of the City and shall be attested by the manual or facsimile signature of the City Clerk or Deputy or Assistant City Clerk. Should ,any officer whose manual or facsimile signature appears on the Bonds cease to be such officer before delivery of any Bond, such manual or facsimile signature shall nevertheless be valid and sufficient for all purposes. The Mayor and the City Clerk are hereby authorized and directed to prepare and to execute the Bonds in accordance with the requirements of this Ordinance. When the Bonds have been duly executed, the officers of the City are authorized to, and shall, deliver the Bonds to the Paying Agent for authentication. No Bond shall be secured by this Ordinance or entitled to the benefit hereof, or shall be valid or obligatory for any purpose, unless the certificate of authentication of the Paying Agent, in substantially the form set forth in this Ordinance, has been duly executed by the Paying Agent. Such certificate of the Paying Agent upon any Bond shall be conclusive evidence and the only competent evidence that such Bond has been authenticated and delivered hereunder. The Paying Agent's certificate of authentication shall be deemed to have been duly executed by it if manually signed by an authorized signatory of the Paying Agent, but it shall not be necessary that the same signatory sign the certificate of authentication on all of the Bonds issued hereunder. Upon the authentication of the Bonds, the Paying Agent shall deliver the same to the Underwriter or its designees as directed by the City as hereinafter provided. Prior to the authentication and delivery by the Paying Agent of the Bonds there shall be fIled with the Paying Agent the following: (a) A certified copy of this Ordinance. (b) A request and authorization to the Paying Agent on behalf of the City and signed by the Mayor to authenticate and deliver the Bonds to the Underwriter or! the persons designated therein upon payment to the City of a sum specified in such request and authorization plus accrued interest thereon to the date of delivery. The proceeds of such payment shall be paid to the City and deposited as provided in Section 12 hereof. In the event any Bond is mutilated, lost, stolen or destroyed, the City shall execute a new Bond of like maturity, interest rate and denomination to that mutilated, lost, stolen or destroyed, provided that, in the case of any mutilated Bond, such mutilated Bond shall first be surrendered to the City, and in the case of any lost, stolen or destroyed Bond, there shall be first furnished to the City evidence of such loss, theft or destruction satisfactory to the City, together with an indemnity satisfactory to the City. In the event any such Bond shall have matured, instead of issuing a duplicate Bond, the City may pay the same without surrender thereof, making such requirements as it deems fit for its protection, including a lost instrument bond. The City may charge the Registered Owner of such Bond with its reasonable fees and expenses in this connection. 02/64674.4 9 !_"I' it " "It' ;<\ I"~, i!;j ',; '>;;". el' i~.. " Section 9. SpecioJ Obligations. The Bonds are special, limited revenue obligations of the City and are payable solely out of the Pledged Revenues and other moneys pledged or available therefor under this Ordinance. Except as expressly provided in this Ordinance, the Pledged Revenues shall be and hereby are irrevocably assigned, pledged and set aside to pay the principal of, premium, if any, and interest on the Bonds, as more particularly set forth herein. The Bonds constitute an irrevocable and first lien (but not an exclusive first lien) upon the Pledged Revenues on a parity with any parity debt subsequently issued. The Bonds are equally and ratably secured by a lien on the Pledged Revenues and shall not be entitled to any priority one over the other in the application of the Pledged Revenues regardless of the time or times of the issuance of the Bonds. The Bonds shall not be payable from any general or other fund of the City, and the Bonds shall not constitute general obligations of the City. The Bonds shall not constitute an indebtedness or a debt within the meaning of the Charter or any applidable constitutional or statutory provision or limitation, nor shall they be considered or held to be general obligations of the City. The Bonds shall not be payable in whole or in part from ad valorem taxes of the City, and the full faith and credit of the City is not pledged for the payment of the Bonds. Section 10. Bond Fonn. The Bonds shall be in substantially the form hereinafter set forth, with such variations, omissions and insertions as are permitted or required by this Ordinance: 02/64674.4 10 ~e "e ~'. , ".'.. "It' (*".. '4; ... - (Form of Bond) [FRONT OF BOND] UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS'IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. EXCEPT AS OmERWISEPROVIDED IN THE INDENTURE, TIllS GLOBAL BOND MAY BE lRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO ANOmER NOMINEE OF THE SECURITIES DEPOSITORY (AS DEFINED HEREIN) OR TO A SUCCESSOR SECURITIES DEPOSITORY OR TO A NOMINEE OF A SUCCESSOR SECURITIES DEPOSITORY. UNITED STATES OF AMERICA STATE OF COLORADO COUNTY OF PITKIN CITY OF ASPEN SALES TAX REFUNDING REVENUE BOND SERIES 1995 NO. R- Interest Rate Maturitr Date Original Issue Date May 1, 1995 CUSIP PRINCIPAL SUM: DOLLARS REGISTERED OWNER: The CITY OF ASPEN, in the County of Pitkin and State of Colorado (the "City"), for value received, hereby promises to pay to the order of the Registered Owner named above, or registered assigns, solely from the special funds as hereinafter set forth, on the Maturity Date stated above, the Principal Sum stated above, with interest thereon from the Original Issue Date 02/64674.4 11 _,c..'. ~. .. ~~- fit stated above or such later date as to which interest has been paid at the Interest Rate per annum stated above, payable on November 1, 1995, and semiannually thereafter on the 1st day of May and the 1st day of November of each year, the principal of and premium, if any, on this bond being payable upon the surrender of this bond at the principal corporate trust office of Norwest Bank Colorado, National Association, in Denver, Colorado, as Paying Agent, or its successor (the "Paying Agent"), and the interest hereon to be paid to such person as is the Registered Owner hereof as of the close of business at the principal corporate trust office of the Paying Agent on the Record Date by check or draft of the Paying Agent mailed to said Registered Owner. The Record Date is the 15th day of the month (whether or not a business day) preceding any interest payment date. All payments of principal of, premium, if any, and interest on this bond shall be made in lawful money of the United States of America. REFERENCE IS MADE TO TIIE FURTHER PROVISIONS OF TInS BOND SET FORm ON mE REVERSE HEREOF wmCH SHALL FOR ALL PURPOSES HA VB mE SAME EFFECT AS mOUGH FULLY SET FORm HEREIN. This bond shall not be entitled to any benefit under the Ordinance, or become valid or obligatory for any purpose, until the Paying Agent shall have signed the certificate of authentication hereon. 02/64674.4 12 ,. ~. 'lit',. w Z\" '.'. \\.", -- -- IN WITNESS WHEREOF, the City of Aspen, Colorado, has caused this bond to be signed with the manual or facsimile signature of its Mayor, sealed with the impression of its seal or a facsimile thereof, and attested with the manual or facsimile signature of its City Clerk. [SEAL] CITY OF ASPEN, COLORADO By Attest: Mayor By City Clerk (Form of Paying Agent's Certificate of Authentication) Date of Authentication: This is one of the Bonds described in the Ordinance described herein. NORWEST BANK COLORADO, NATIONAL ASSOCIATION, as Paying Agent By !Manual Sie:nature) Authorized Officer (End of Form of Paying Agent's Certificate of Authentication) 02/64674.4 13 ~ \., I~.e.." k it, (- [BACK OF BOND] This bond is one of a duly authorized series of Bonds designated "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series 1995" (the "Bonds"), limited in aggregate principal amount to $6,455,000, issued under and pursuant to the Constitution land laws of the State of Colorado, and the home rule charter of the City, and pursuant to an ordinance duly adopted by the City Council of the City prior to the issuance hereof (the "Ordinance"). The Bonds are issued for the purpose of refunding the "City of Aspen, Colorado, Sales Tax Refunding and Improvement Revenue Bonds, Series 1987" (the "Refunded Bonds") currently outstanding in the aggregate principal amount of $6,930,000, funding a reserve fund and paying costs of issuing the Bonds. ' The Ordinance provides that upon the terms and conditions set forth therein, the City may issue or incur obligations other than pursuant to the Ordinance which are payable or secured by the Pledged Revenues (as defmed herein) on a parity with the Bonds. In addition, under certain circumstances set forth in the Ordinance, the City may also issue subordinate bonds payable from Pledged Revenues having a lien thereon which is subordinate and junior to the lien on the Pledged Revenues securing the Bonds. "Pledged Revenues" means, for each fiscal year, all of the proceeds of the Sales Tax (as defmed below) after deduction of the reasonable and necessary costs and expenses of collecting and enforcing said Sales Tax, if any. "Sales Tax" means the Open Space Sales Tax established by the City, imposed on all sales of tangible personal property at retail and the furnishing of services, all as provided in the 1970 Sales Tax Ordinance of the City (as defmed in the Ordinance), and that portion of Pitkin County's retail sales tax which the City receives pursuant to the County Sales Tax Resolution (as defmed in the Ordinance). The Bonds are special, limited revenue obligations of the City payable solely out of , and secured by an irrevocable assignment and pledge (but not an exclusive assignment and pledge) of the Pledged Revenues. The Pledged Revenues may also secure parity and subordinate bonds hereafter issued as noted above. This bond shall not constitute an indebtedness or a debt within the meaning of the Charter or any applicable constitutional or statutory provision or limitation, nor shall it be considered or held to be a general obligation of the City. This bond is' not payable in whole or in part from ad valorem taxes of the City, and the full faith and credit of the City is not pledged to pay the principal of or interest on this bond. Payment of the principal of, premium, if any, and interest on this bond shall be made solely from, and as security for such payment there are irrevocably (but not necessl\rily exclusively) pledged, pursuant to the Ordinance, moneys deposited and to be deposited in a special fund of the City (the "Bond Fund") into which fund the City has covenanted under. the Ordinance to pay from the Sales Tax, a sum sufficient to pay when due the principal of, premium, if any, and interest on the Bonds. The Bonds are additionally secured by funds from time to time on deposit in a special fund created under the Ordinance (the "Reserve Fund"). As more fully set forth in the Ordinance, the amounts on deposit in the Reserve Fund are to be used to pay the principal of, premium, if any, and interest on the Bonds whenever amounts on deposit in the Bond Fund shall be insufficient for such purpose. Except as otherwise specified in the 02/64674.4 14 I)' l'i \\<" (e ~I-, . 'i. Ordinance, this bond is entitled to the benefits of the Ordinance equally and ratably as to principal, premium, if any, and interest with all other Bonds issued and to be issued under the Ordinance, to which reference is made for a description of the rights of the registered owners of the Bonds and the rights and obligations of the City. The Bonds are issuable solely in the form of fully registered bonds, without coupons, in the denomination of $5,000 or any integral multiple thereof. This bond may be transferred or exchanged at the principal corporate trust office of the Paying Agent in Denver, Colorado, I but only in the manner, subject to the limitations and upon payment of the charges provided in: the Ordinance (including any tax or governmental charge required to be paid with respect thereto and any cost of printing bonds in connection therewith), and upon surrender and cancellation of this bond. Upon surrender for any transfer, duly endorsed for transfer or accompanied by an assignment duly executed by the Registered Owner hereof or his or her attorneys duly authorized in writing, a new registered Bond or Bonds of the same maturity and interest rate and of authorized denomination or denominations ($5,000 and integral multiples thereof) for the same aggregate principal amount will be issued to the transferee in exchange therefor. In addition, this bond may be exchanged for a like aggregate principal amount of Bonds of other authorized denominations of the same maturity and interest rate. The City and the Paying Agent may deem and treat the Registered Owner hereof as the absolute owner hereof (whether or not payment on this Bond shall be overdue) for the purpose of receiving payment of or on account of prin<;ipal hereof, premium, if any, and interest due hereon and for all other purposes, and neither the City nor the Paying Agent shall be affected by any notice to the contrary. Notwithstanding the foregoing, so long as the ownership of the Bonds is maintained in book-entry form by The Depository Trust Company (the "Securities Depository") or a nominee thereof, this bond may be transferred in whole but not in part only to the Securities Depository or a nominee thereof or to a successor Securities Depository or its nominee. The Bonds maturing on or before May I, 1998 are not subject to redemption prior to maturity. The Bonds maturing on and after November I, 1998 are subject to prior redemption at the option of the City, in whole, or in part, in integral multiples of $5,000 from such maturity or maturities selected by the City and by lot within a maturity as the Paying Agent shall determine (giving proportionate weight to Bonds in denominations larger than $5,000), on May I, 1998 or on any date thereafter, at a redemption price equal to the principal amount of each bond or portion thereof so redeemed, plus accrued interest to the redemption date. In the case of a Bond of a denomination larger than the $5,000, a portion of such Bond ($5,000 or integral multiples thereof) may be redeemed, in which case the Registrar shall, without charge to the registered owner of such Bond, authenticate and issue a replacement Bfmd or Bonds for the unredeemed portion thereof. Redemption shall be made upon not more than 45 and not less than 30 days prior mailed notice to each registered owner as shown onl the registration records kept by the Paying Agent in the manner and upon the conditions prov~ded in the Ordinance. 02/64674.4 15 '- f, 1'. '< ,v,,4i,'_ fii, \ .' ~F \~~, ~ - -- This bond and all other Bonds of the series of which it forms a part are issued pursuant to and in full compliance with the Constitution and laws of the State of Colorado, and the hOme rule charter of the City, and pursuant to the Ordinance which has been duly adopted by the City. THE BONDS SHALL BE SPECIAL, LIMITED REVENUE OBUGATIONS OF THE CITY. THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS SHALL BE PAYABLE SOLELY OUT OF THE PLEDGED REVENUES AND AS OTHERWISE PROVIDED IN THE ORDINANCE. NEITHER THE CITY NOR THE PAYING AGENT WILL HAVE ANY RESPONSffiIUTY OR OBUGATION TO THE SECURITIES DEPOSITORY'S PARTICIPANTS OR INDIRECT PARTICIPANTS, OR THE PERSONS FOR WHOM THEY ACT AS NOMINEES, WITH RESPECT TO THE PAYMENTS TO OR THE PROVIDING OF NOTICE FOR THE SECURITIES DEPOSITORY'S PARTICIPANTS, THE INDIRECT PARTICIPANTS OR THE BENEFICIAL OWNERS OF THE BONDS. No recourse shall be had for the payment of the principal of, premium, if any, or interest on any of the Bonds or for any claim based thereon or upon any obligation, covenant or agreement set forth in the Ordinance, against any past, present or future councilmember, officer, employee or agent of the City, or through the City, or any successor thereof, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such councilmember, officer, employee or agent as such is hereby expressly waived and released as a condition of and in consideration for the adoption of the Ordinance and the execution, issuance and delivery of any of the Bonds. The Ordinance permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the City and the rights of the owners of the Bonds at any time by the City with the consent of the owners of 66-2/3 % in aggregate principal amount of the Bonds at the time outstanding. Any such consent or waiver by the owner of this bond shall be conclusive and binding upon such owner and upon all future owners of this bond and of any Bond issued in replacement thereof whether or not notation of such consent or waiver is made upon this bond. It is hereby certified, recited and declared that all acts and conditions required to be performed precedent to and in the adoption of the Ordinance, and the issuance of this bond, have been performed in due time, form and manner as required by law and that the issuance of! this bond and the series of which it forms a part does not exceed or violate any constitutional, statutory or home rule charter limitation or requirement applicable hereto. 02/64674.4 16 e; , '.< _I..." \, "i... ~_.", 'it; " [Form of Assignment] ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Tax Identification or Social Security No.) this bond of the City of Aspen, Colorado and does hereby irrevocably constitute and appoint , Attorney, to transfer this bond on the books kept for the registration thereof, with full power of substitution in the premises. Dated: NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within bond in every particular, without alteration or enlargement or any change whatever. [Form of Legal Opinion Certificate for the Bonds] STATE OF COLORADO COUNTY OF PITKIN CITY OF ASPEN ] ] ss. ] LEGAL OPINION CERTIFICATE I, the undersigned City Clerk of the City of Aspen, in the State of Colorado, do hereby certify that the following approving opinion of Kutak Rock, Denver, Colorado to wit: (Attorneys' approving opinion to be inserted in submargins, including complimentary closing and "/s/ Kutak Rock") is a true, perfect and complete copy of a manually executed and dated copy thereof on ftle in the records of the City in my office; that a manually executed and dated copy of the opinion was forwarded to Dougherty, Dawkins, Strand & Bigelow Incorporated, Denver, Colorado' for retention in its records; and that the opinion was dated and issued as of the date of the delivery of and payment for the bonds of the series of which this bond is one. 02/64674.4 17 ,&_.,. ~; ~, e'::" '<'c.. &'It.'.'. ~( '", IN WITNESS WHEREOF, I have caused to be hereunto affIxed the facsimile of my offIcial signature, all as of May 1, 1995. (Manual of Facsimile Sig:nature) City Clerk [End of Form of Bond] 02/64674.4 18 -' iW~'"" 1\i. 'V \\, fa ". 'I'. ~. , 'it\ ,,< Section 11. Delivery of Bonds. When the Bonds shall have been duly executed, and payment therefor duly received, the City shall deliver them pursuant to Section 8 hereof. Section 12. Disposition of Bond Proceeds. Upon the issuance, sale and delivery of the Bonds, accrued interest on the Bonds from May 1, 1995 to the date of delivery and payment of the Bonds shall be deposited into the Bond Fund. Of the remaining net proceeds of the sale of the Bonds, an amount equal to $6,369,587 shall be transferred to Norwest Bank Colorado, National Association, as paying agent for the Refunded Bonds, and the remaining proceeds shall be applied to payment of costs of issuance of the Bonds. Section 13. Deposits of Other Moneys. Upon the issuance, sale and delivery of the Bonds, the City Finance Director shall transfer from the reserve fund for the Refunded Bonds to the Reserve Fund an amount equal to $645,500. Section 14. Creation of Funds. There is hereby created by the City the following funds and accounts: (a) the Bond Fund, designated as the "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series 1995, Bond Fund"; (b) the Reserve Fund, designated as the "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series 1995, Reserve Fund"; (c) the Revenue Fund, designated as the "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series 1995, Revenue Fund"; (d) the Rebate Fund, designated as the "City of Aspen, Colorado, Sales Tax Refunding and Improvement Revenue Bonds, Series 1995, Rebate Fund." Section 15. Underwriter Not Responsible. The Underwriter, any associate thereof, and any subsequent Registered Owner of any Bond shall not be responsible for the application or disposal by the City, or by any agent or employee of the City, of the proceeds derived from the sale of the Bonds or of any other moneys herein designated. Section 16. Application of Pledged Revenues. So long as any of the Bonds shall remain outstanding, all Pledged Revenues, as they are received, shall be transferred from any other funds or accounts to which they are required to be deposited by the 1970 Sales Tax Ordinance or otherwise, and shall thereupon be deposited into the Revenue Fund, and the Pledged Revenues are hereby appropriated for such purpose. Moneys on deposit in the Revenue Fund shall be transferred from the Revenue Fund and applied to the following purposes and in the following order of priority: 02/64674.4 19 +-", ., 10_,... ~ ~<~- ,Ie, 1\ '''< (a) First, there shall be credited to the Bond Fuud an amount necessary, together with any moneys therein and available therefor, to pay the next due installment of principal of, premium, if any, and interest on the Bonds; (b) Second, there shall be credited to the Reserve Fund an amount, if any, necessary to increase the amount on deposit in the Reserve Fund to the Reserve Fund Requirement. No payment need be made into the Reserve Fund so long as the moneys therein shall equal not less than the Reserve Fund Requirement. The Reserve Fund Requirement shall be accumulated and maintained in the Reserve Fund as a continuing reserve to be used, except as hereinafter provided, only to prevent deficiencies in the payment of the principal of, premium, if any, and interest on the Bonds resulting from the failure to deposit into the Bond Fund sufficient funds to pay the same as they accrue. No payment need be made into either the Bond Fund or Reserve Fund if the amounts in the Bond Fund and Reserve Fund total a sum at least equal to the entire amount of the outstanding Bonds, as to any principal, premium, if any, and interest requirements, to tj1eir respective maturities, or to any redemption date on which the City shall have exercised its option to redeem the Bonds then outstanding and thereafter maturing, and both accrued and. not accrued, in which case moneys in the two funds in an amount at least equal to such principal, premium, if any, and interest requirements shall be used solely to pay such as the same accrue, and any moneys in excess thereof in the two funds may, subject to any limitations in the 1970 Sales Tax Ordinance or the County Sales Tax Resolution, be used in any lawful manner by the City. If in any period the City shall for any reason fail to pay into the Bond Fund the full amount stipulated above, then an amount shall be immediately paid into the Bond Fund from the Reserve Fund equal to the difference between that paid from the Reserve Fund and the full amount so stipulated. The money so used shall be replaced in the Reserve Fund from the first Pledged Revenues thereafter received not required to be otherwise apjplied by this Section,. but excluding any payments required for any subordinate obligations. In the event other obligations are outstanding the lien to secure the payment of which on the Pledged Revenues is on a parity with the lien thereon of the Bonds, and the proceedings authorizing the issuance of those obligations require the replacement of moneys in a reserve fund therefor, then the moneys replaced in the Reserve Fund and in each such other fund shall be replaced on a pro rata basis as moneys become available therefor. If in any period the City shall for any reason fail to pay into the Reserve Fund the full amount above stipulated from the Pledged Revenues, \ the difference between the amount paid and the amount so stipulated shall in a like manner be therein from the first Pledged Revenues thereafter received not required to be applied otherwise by this Section, but excluding any payments required for any subordinate obligations. The moneys in the Bond Fund and in the Reserve Fund shall be used solely for the purpose of paying the principal of, premium, if any, and interest on the Bonds; provided, however, that any moneys at any time in excess of the Reserve Fund Requirement in the Reserve Fund may be withdrawn therefrom and, subject to any limitation in the 1970 Sales Tax Ordinance or'the County Sales Tax Resolution, used in any lawful manner by the City. The City shall forward 02/64674.4 20 "lit.",., ;W \%, \!-, , ~;. ~, "It., rW ',. \ to the Paying Agent prior to each principal or interest payment on the Bonds, in immediately available funds, amounts sufficient to pay debt service on the Bonds on each such date. Concurrently with (in the case of parity lien obligations) or subsequently to (in the case of subordinate lien obligations) the payments required by paragraphs (a) and (b) of this Section, any remaining amounts in the Revenue Fund shall be used by the City for the payment of principal of, premium, if any, and interest on any additional obligations hereafter authorized to be issued and payable from the Pledged Revenues, including reasonable reserves therefor, as the same accrue. After making the payments required to be made by this Section, any remaining amounts in the Revenue Fund may, subject to any limitations in the 1970 Sales Tax Ordinance or the County Sales Tax Resolution, be used in any lawful manner by the City. Section 17. General Administration of Funds. The funds and accounts established pursuant to this Ordinance, with the exception of the Rebate Fund, shall be administered as follows, subject to the limitations stated in the fIrst paragraph of Section 19 of this Ordinance: (a) Investment of Money. Any moneys in any such fund and account may be invested as provided by law. The obligations in which moneys in each fund or account are invested shall be deemed at all times to be part of the respective fund or account, and any appreciation or loss resulting therefrom shall be recorded to such fund or account. Interest accruing on the investment of any moneys in the Reserve Fund shall be deposited as received into the Revenue Fund, and interest accruing on the investment of any moneys in any other such fund or account shall be credited to the fund or account from which it is derived. The City Finance Director shall present for redemption or sale in the prevailing market any obligations so purchased as an investment of moneys in the fund or account whenever it shall be necessary to do so in order to provide moneys to meet any payment or transfer from said fund or account. (b) Deposits of Funds. The moneys and investments comprising each of such funds and accounts shall be deposited in one or more banks or savings and loans associations, each of which is a member of the Federal Deposit Insurance Corporation. Each payment shall be made into and credited to the proper fund or account on the date specified, but if such date shall be other than a Business Day, such payment shall be made on the next preceding Business Day. Nothing herein shall prevent' the establishment of one or more such bank accounts, for all of such funds and accounts', or shall prevent the combination of such funds and accounts with any other bank account or accounts for other accounts of the City. Section 18. Rebate Fund; Deposits and Disbursements. The Rebate Fund shall be expended in accordance with the provisions hereof and the Investment Instructions. The City shall make deposits and disbursements from the Rebate Fund in accordance with the Investment Instructions, shall invest the Rebate Fund pursuant to said Investment Instructions and shall 02/64674.4 21 -...,',',.'" ~,- ,0_".', VI '''. '< lIe:,'" I"~. ~'" deposit income from said investments immediately upon receipt thereof in the Rebate Fund, all as set forth in the Investment Instructions. The City shall make the calculations, deposits, disbursements and investments as may be required by the immediately preceding sentence, or, to the extent it deems necessary in order to ensure the tax-exempt status of interest on the Bonds, shall employ at its expense a person or fInn with recognized expertise in the area of rebate calculation to make such calculations. The Investment Instructions may be superseded or amended by new Investment Instructions drafted by, and accompanied by an opinion' of, nationally recognized bond counsel addressed to the City to the effect that the use of said new Investment Instructions will not cause the interest on the Bonds to become includable in gross income for purposes of federal income taxation. The City shall make the rebate deposit described in the Investment Instructions. Any required deposits to the Rebate Fund shall be made fIrst from the Pledged Revenues and then from any other lawfully available funds of the City. Records of the determinations required by this Section and the Investment Instructions shall be retained by the City until six (6) years after the fmal retirement of the Bonds. Not later than sixty (60) days after the end of the fIfth Bond Year (Le., the year ending April 31, 2000 and every five (5) years thereafter), the City shall pay to the United States of America ninety percent (90 %) of the amount required to be on deposit in the Rebate Fund as of such payment date. Not later than sixty (60) days after the fmal retirement of the Bonds, the City shall pay to the United States of America one hundred percent (100%) of the balance remaining in the Rebate Fund. Each payment required to be paid to the United States of America pursuant to this Section shall be fIled with the Internal Revenue Service Center, Philadelphia, Pennsylvania 19255. Each payment shall be accompanied by an Internal Revenue Form 8038-T, and, if necessary, a statement summarizing the determination of the amount to be paid to the United States of America. Section 19. Covenants Concerning Compliance With the Code. The City covenants that it shall not use or permit the use of any proceeds of the Bonds or any other funds of the City from whatever source derived, directly or indirectly, to acquire any securities or obligations 'and shall not take or permit to be taken any other action or actions, which would cause any of the Bonds to be an "arbitrage bond" within the meaning of Section 148 of the Code, or would otherwise cause the interest on the Bonds to be includable in gross income for federal income tax purposes. The City covenants that it shall at all times do and perform all acts and things permitted by law and which are necessary or desirable in order to assure that interest paid by the City on the Bonds shall, for purposes of federal income taxation, not be includable in gross income under the Code or any other valid provision of law. In particular, but without limitation, the City further represents, warrants and covenants to comply with the following restrictions of the Code, unless it receives an opinion of nationally recognized bond counsel stating that such compliance is not necessary: 02/64674.4 22 $1_ ~., '<C,.. (A, t. (1_'. \\\ ~< (a) Gross proceeds of the Bonds will not be used in a manner which will cause the Bonds to be considered "private activity bonds" within the meaning of the Code. (b) The Bonds are not and shall not become directly or indirectly "federally guaranteed. " (c) The City shall timely file Internal Revenue Form 8038-G which shall contain the information required to be filed pursuant to Section l49(e) of the Code. (d) The City shall comply with the Investment Instructions delivered to it on the date of issue of the Bonds with respect to the application and investment of Bond proceeds, subject to Section 18 hereof. Section 20. First Lien on Pledged Revenues. The Bonds are secured by a pledge' of, and constitute an irrevocable and fIrst lien (but not an exclusive fIrst lien) on, the Pledged Revenues. Section 21. Equality of Bonds. The Bonds shall be equally and ratably secured by the Pledged Revenues and shall not be entitled to any priority one over the other in the application of the Pledged Revenues. Section 22. Additional Obligations. So long as the Bonds may be outstanding: (a) Limitations Upon Issuance of Parity Obligations. Nothing in this Ordinance shall be constnJed to prevent the issuance by the City of additional obligations (including refunding obligations) payable in whole or in part from the Pledged Revenues (or any designated part thereof) and constituting a lien thereon on a parity with, but not prior or superior to, the lien of the Bonds; provided, however, that before any such additional parity obligations are authorized or actually issued: (i) The City is then current in all payments required to have been accumulated in the Bond Fund and Reserve Fund, and there is not otherwise an Event of Default as defmed in Section 27 hereof. (ii) The revenues derived from the entire Pledged Revenues for the twelve consecutive calendar months immediately preceding the month of issuance of such additional parity obligations shall have been sufficient to pay an amount equal to one hundred and seventy-fIve percent (175 %) of the combined maximum annual principal and interest requirements (to and including the fmal maturity of the Bonds) on the then-outstanding Bonds, any then-outstanding parity lien obligations theretofore issued, and the parity lien obligations then proposed to be issued (including any reserve requirements therefor). 02/64674.4 23 ~e..."" \1, '-", e. ~, . '\, -- ~.. , ~:{ " (ill) The ordinance authorizing such additional parity lien obligations shall require that a reserve fund for such obligations be created or accumulated (in not more than ten semiannual instalbnents) in an amount equal to the leaSt of (i) ten percent (10%) of the principal amount of the parity obligations propqsed to be issued, (ii) maximum annual principal and interest requirements of the parity lien obligations proposed to be issued and (ill) 125 % of the average annual debt service on the parity lien obligations proposed to be issued. The City may, however, comply with the reserve requirement through a surety bond or similar instrument. (b) Certificate of Revenues. A written certification by a certified public accountant who is not a regular salaried employee of the City that such Pledged Revenues are sufficient to pay the amounts required by paragraph (a)(ii) of this Section shall be conclusively presumed to be accurate in detennining the right of the City to authorize, issue, sell and deliver additional obligations on a parity with the Bonds. (c) Subordinate Obligations Permitted. Nothing in this Ordinance shall be construed to prevent the issuance by the City of additional obligations (including refunding obligations) payable from the Pledged Revenues (or any designated part thereof) and having a lien thereon subordinate or junior to the lien of the Bonds. (d) Superior Obligations Prohibited. Nothing in this Ordinance shall be construed to pennit the City to issue additional obligations (including refunding obligations) payable from the Pledged Revenues (or any desiguated part thereof) having a lien thereon prior and superior to the lien of the Bonds. Section 23. Refunding Obligations. The provisions of Section 22 of this Ordinance are subject to the following exceptions: (a) Privilege of Issuing Refimding Obligations. If at any time after the Bonds, or any part thereof, shall have been issued and remain outstanding, the City shall fmd it desirable to refund all or any part of the outstanding Bonds or other outstanding obligations payable in whole or in part from the Pledged Revenues, such Bonds or other obligations, or any part thereof, may be refunded (but only with the consent of the Registered Owner or Registered Owners thereof, unless such Bonds or other obligations, at the time of their required surrender for payment, shall then mature, or shall then be subject to redemption prior to maturity). (b) Limitations Upon Issuance of Parity Refunding Obligations. No refunding obligations payable from the Pledged Revenues (or any desiguated part thereof) shall be issued on a parity with the Bonds, unless: (i) The lien on such Pledged Revenues of the outstanding obligations so refunded is on a parity with the lien thereon of the Bonds; or 02/64674.4 24 Me', ~. '<'" ".'._. ~ IJ '1:~_ Ifr..' 1\", 'i. '",- (ii) The refunding obligations are issued in compliance with paragraph (a) of Section 22 of this Ordinance. (c) Partial Refunding of Bonds. Any refunding obligations so issued to refund any of the Bonds shall enjoy complete equality of lien with any Bonds which are not refunded. (d) Limitations Upon Refundings. Any refunding obligations payable from the Pledged Revenues may be issued with such details as the City may by ordinance provide, but without any impainnent of any contractual obligations imposed upon the City by this Ordinance. Section 24. Protective Covenants. The City hereby additionmlly covenants and agrees with each and every Registered Owner of the Bonds that: (a) Use of Bond Proceeds. The City will proceed to refund the Refunded Bonds without delay, as herein provided. (b) Payment of Bonds Herein Authorized. The City will promptly payor cause to be paid the principal of, premium, if any, and interest on the Bonds at the place, on the dates and in the manner provided in this Ordinance and in the Bonds, according to the true intent and meaning of this Ordinance. (c) No Repeal or Modification of Tax Ordinances. The City shall not repeal the 1970 Sales Tax Ordinance or adopt any modification of such ordinance which would impair the Pledged Revenues derived therefrom. (d) Preservation of County Sales Tax. The City shall take whatever action may be required to preserve and protect the Pledged Revenues derived from the County Sales Tax Resolution. (e) Duty to Impose Sales Tax. If the 1970 Sales Tax Ordinance, the County Sales Tax Resolution or any modifying or supplemental instrument thereto not contravening the limitations of paragraphs (c) and (d) of this Section, or any part of that ordinance or resolution, shall ever be held to be invalid or unenforceable or shall othelWise be terminated, it shall be the duty of the City, to the extent possible under then existing law, to adopt immediately such ordinances, to seek such voter approval, if anY, as may then be required by law, or to take any other action necessary to produce at least the same amount of Pledged Revenues as would have othelWise been produced under the terms of such ordinance and resolution. (f) Impairment of Contract. The City agrees that any law, ordinance or resolution of the City in any manner affecting the Pledged Revenues or the Bonds shall not be repealed or othelWise directly or indirectly modified in such a manner as to impair 02/64674.4 25 Ie:, \is, "~ ~a \. ~e, ~ \,c 02/64674.4 any Bonds outstanding, unless in the case of this Ordinance the required consent of the Registered Owners of the then outstanding Bonds is obtained pursuant to Section 32 of this Ordinance. (g) Records. So long as any of the Bonds remain outstanding, proper books of record and account will be kept by the City, separate and apart from all other records and accounts, showing complete and correct entries of all transactions relating to the Pledged Revenues. The Registered Owners of any Bonds shall have the right at any reasonable time to inspect such records and accounts. (h) Audits. The City further agrees that it will, within 120 days following the close of each fiscal year, cause an audit of such books and accounts to be made by an independent certified public accountant, showing the revenues and expenditures of the Pledged Revenues. The City agrees to furnish forthwith a copy of each such audit to the Registered Owner of any of the Bonds at his request, and without request of the Underwriter. Any such Registered Owner shall have the right to discuss with the accountant or person making the audit its contents and to ask for such additional information as he may reasonably require. (i) Extending Interest Payments. In order to prevent any accumulation of claims for interest after maturity, the City will not directly or indirectly extend or assent to the extension of time for the payment of any claim for interest on any of the Bonds and it will not directly or indirectly be a party to or approve any such arrangement;. and in case the time for payment of any interest shall be extended, such installment or installments of interest after such extension or arrangement shall not be entitled in case of default hereunder to the benefit or security of this Ordinance except subject to the prior payment in full of the principal of all Bonds issued hereunder and then outstanding, and of matured interest on such Bonds the payment of which has not been extended. (j) Peiforming Duties. The City will faithfully and punctually perform all duties with respect to the Pledged Revenues required by the Charter and the Constitution and laws of the State of Colorado, and the ordinances and resolutions of the City, including but not limited to, the proper segregation of the Pledged Revenues and their application to the respective funds. (k) Other Liens. There are presently no other liens or encumbrances of any nature whatsoever on or against the Pledged Revenues. (1) City's Existence. The City will maintain its corporate identity and existence so long as any of the Bonds remain outstanding, unless another body cotpejrate and politic by operation of law succeeds to the duties, privileges, powers, liabilities, disabilities, immunities and rights of the City arid is obligated by law to receive! and distribute the Pledged Revenues in place of the City, without affecting to any substantial degree the privileges and rights of any Registered Owner of any outstanding Bonds. 26 "" "e:.., ~\ ", 11,'..,. ~', .' ~1., ~, "." Section 25. Defeasance. When all Bonds and interest thereon have been duly paid, the pledge and lien and all obligations hereunder shall thereby be discharged as to such Bonds, ,and such Bonds shall no longer be deemed to be outstanding within the meaning of this Ordinance. There shall be deemed to be such due payment when the City has placed in escrow and in ~st with a commercial bank located within or without the State of Colorado and exercising trust powers, an amount sufficient (including the known minimum yield from Federal Securities in which such amount may be initially invested) to make all payments of principal of, premium, if any, and interest on such Bonds as the same become due at their fmal maturities or upon redemption prior to maturity. The Federal Securities shall become due prior to the respective times on which the proceeds thereof shall be needed, in accordance with a schedule established and agreed upon between the City and the bank at the time of the creation of the escrow, or the Federal Securities shall be subject to the redemption at the option of the holders thereof to assure such availability as so needed to meet such schedule. "Federal Securities" within the meaIling of this Section shall include only direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America and which are not callable before maturity by the issuer of such obligations. Section 26. Delegated Powers. The officers of the City hereby are authorized and directed to take all action necessary or appropriate to effectuate the provisions of this Ordinance, including without limitation the printing of the Bonds and the execution of such certificates as may be required by the Underwriter. Section 27. Events of Default. If any of the following events occurs, it is hereby declared to constitute an Event of Default: (a) Default in the due and punctual payment of the principal of, premium, if any, or interest on any Bond or any parity debt whether at maturity thereof, or upon proceedings for redemption thereof; or (b) The City is for any reason rendered incapable of fulfilling its obligations hereunder; or (c) Default in the due and punctual perfonnance of the City's covenants or conditions, agreements and provisions as set forth in the Bonds or in this Ordinance, other than those delineated in paragraphs (a) and (b) of this Section, and such defaultlhas continued for 60 days after written notice specifying the default and requiring the same to be remedied has been given to the City by the Registered Owners of 25 % in principal amount of the Bonds then outstanding; or (d) The City shall fIle a petition for bankruptcy or shall be declared insolvent by a court of competent jurisdiction. Section 28. Remedies for Events of Default. Upon the happening and continuance of any of the Events of Default as provided in Section 27 of this Ordinance, then and in every case, 02/64674.4 27 o "-, f\ '\\,< &,e",.'.". n' i;\ " Ae \~., "'", the Registered Owner or Registered Owners of not less than 25 % in principal amount of the Bonds then outstanding, including but not limited to, a trustee or trustees therefor, may proceed against the City and its agents, officers and employees, to protect and enforce the rights of any Registered Owner of Bonds under this Ordinance by mandamus or other suit, action or special proceedings in equity or at law, in any court of competent jurisdiction, either for the specific performance of any covenant or agreement contained herein or in an award of execution of any power herein granted for the enforcement of any proper legal or equitable remedy as such Registered Owner or Registered Owners may deem most effectual to protect and enforce the rights aforesaid, or thereby to enjoin any act or thing which may be unlawful or in violatioll of any right of any Registered Owner, or to require the governing body to act as if it were the trustee of an express trust, or any combination of such remedies. All such proceedings atlaw or in equity shall be instituted, had and maintained for the equal benefit of all Registered Owners of the Bonds then outstanding. The failure of any such Registered Owner so to proceed shall not relieve the City or any of its officers, agents or employees of any liability for failure to perform any duty. Each right or privilege of any such Registered Owner (or trustee thereof) is in addition and cumulative to any other right or privilege, and the exercise of any right or privilege by or on behalf of any Registered Owner shall not be deemed a waiver of any other right or privilege thereof. Section 29. Duties Upon Default. Upon the happening of any of the Events of Default as provided in Section 27 of this Ordinance, the City will do and perform all proper acts on behalf of and for the Registered Owners of the Bonds to protect and preserve the security created for the payment of their Bonds and to insure the payment of the principal of, premium, if any, and interest on the Bonds promptly as the same become due. All proceeds derived from the Pledged Revenues, during such period of default and so long as any of the Bonds, as to any principal, premium, if any, and interest, are outstanding and unpaid, shall be paid into the Bond Fund, and ratably and equally into similar funds for parity obligations, if any, heretofore or hereafter issued pursuant to the terms hereof, and used for the purposes therein provided. In the event the City fails or refuses to proceed as provided in this Section, the Registered Owner or Registered Owners of not less than 25 % in principal amount of the Bonds then outstanding, after demand in writing, may proceed to protect and enforce the rights ofthe Registered Owners as herein provided. Section 30. Severability Clause. If any section, paragraph, clause or provision ohhis Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Ordinance.b Section 31. Repealer Clause. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any bylaw, order, resolution or ordinance, or part thereof, heretofore repealed. 02/64674.4 28 .., "",-', l\ , '\" 8,8.._' & y, 'V'" "e' (\j, \" Section 32. Amendment. This Ordinance may be amended or supplemented by ordinance adopted by the Council in accordance with law, without receipt by the City of additional considerations and without the consent of the Registered Owners, to make ,any amendment or supplement to this Ordinance which, in the opinion of nationally recognized bond counsel, is not to the material prejudice of the Registered Owners. This Ordinance may be amended or supplemented by ordinance adopted by the Council in accordance with law, without receipt by the City of any additional consideration, but with the written consent of the Registered Owners of 66-2/3 % of the Bonds outstanding at the time of the adoption of the amendatory ordinance, excluding any Bonds held for the account of the City; provided, however, that no such ordinance, without the consent of the Registered Owners of all outstanding Bonds which will be adversely affected, shall have the effect of permitting: (a) An extension of the maturity of any Bond authorized by this Ordinance; or (b) A reduction in the principal amount of any Bond, the rate of interest thereon, or the premium payable thereon; or (c) The creation of a lien upon or pledge of Pledged Revenues ranking prior to the lien or pledge of Pledged Revenues created by this Ordinance; or (d) A reduction of the principal amount of Bonds required for consent to such amendatory or supplemental ordinance; or ( e) The establishment of priorities as between Bonds issued and outstanding under the provisions of this Ordinance; or (t) The modification of or otherwise affecting the rights of the Registered Owners of less than all of the Bonds then outstanding. Section 33. Recordation. A true copy of this Ordinance, as adopted by the governing body of the City, shall be numbered and recorded, and its adoption and publication shall be authenticated by the signatures of the Mayor and the City Clerk and by a certification of publication. Section 34. Further Action. The officers of the City are authorized and directed to take all action necessary or appropriate to effectuate the provisions of this Ordinance, including, without limiting the generality of the foregoing, the printing of the Bonds and the execution of such certificates as may be required by the Underwriter relating to, but not limited to, the signing of the Bonds, the use of the proceeds thereof, the tenure and identity of the municipal officials, the receipt of the Bonds' purchase price, and the absence of litigation, pending or threatened, if in accordance with the facts, affecting the validity thereof. 02/64674.4 29 ~ i_,.". %., 1'_' r \", let" x;: Z. Section 35. Captions. The captions or headings in this Ordinance are for convenience only and in no way defme, limit or describe the scope or intent of any provisions or sections of this Ordinance. Section 36. Applicable Provisions of Law. This Ordinance shall be governed by and construed in accordance with the laws of the State of Colorado. Section 37. Public Hearing. A public hearing on this Ordinance shall be held on the 10th day of April 1995 at 5:00 p.m. in the Council Chambers, Aspen City Hall, 130 South Galena Street, Aspen, Colorado. Section 38. Emergency and Effective Date. Due to fluctuations in municipal bond prices and interest rates, due to currently favorable interest rates and the need to presently call the Refunded Bonds and due to the need to preserve public property, health, peace and safety, it is hereby declared that, in the opinion of the Council, an emergency exists, and therefore this Ordinance shall be in full force and effect upon its passage. Section 39. Book-Entry System; Limited Obligation of Authority. (a) Notwithstanding any other provision hereof, the Bonds shall be initially issued in the form of a separate single certificated fully registered Bond for each of the maturities set forth in Section 5 hereof. Upon initial issuance, the Qwnership of each Bond shall be registered in the registration records kept by the Paying Agent in the name of Cede, as nominee of DTC. Except as provided in Section 39 hereof, all of the outstanding Bonds shall be registered in the registration records kept by the Paying Agent in the name of Cede, as nominee of DTC. (b) With respect to Bonds registered in the registration records kept by the Paying Agent in the name of Cede, as nominee of DTC, the City and the Paying Agent shall have no responsibility or obligation to any Participant or to any person on be~alf of which a Participant holds an interest in the Bonds. Without limiting the immediately preceding sentence, the City and the Paying Agent shall have no responsibility or obligation with respect to (i) the accuracy ofthe records ofDTC, Cede or any Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any Participant or any other person, other than a Registered Owner, as shown in the registration records kept by the Paying Agent, or any notice with respect to the Bonds, including any notice of redemption or (ill) the payment to any Participant or any other person, other than a Registered Owner, as shown in the registration records kept by the Paying Agent, of any amount with respect to principal of, premium, if any, or interest on the Bonds. The City and the Paying Agent may treat and consider the person in whose name each Bond is registered in the registration records kept by the Paying Agent as the absolute owner of such Bond for the purpose of payment of principal, premium and interest with respect to such Bond, for the purpose of giving notices of redemption and other matters with respect to such Bond, for the purpose of registering transfers with respect to such Bond, 02/64674.4 30 ~ ~, \\. /;..:,-,' \w >> '< i'_ 111"., l'. \;" 02/64674.4 and for all other purposes whatsoever. The Paying Agent shall pay all principal of, preminm, if any, the interest on the Bonds only to or upon the order of the respective Registered Owners, as shown in the registration records kept by the Paying Agent, or their respective attorneys duly authorized in writing, as provided in Section 5 hereof, and all such payments shall be valid and effective to fully satisfy and discharge the obligations with respect to payment of principal of, premium, if any, and interest on the Bonds to the extent of the sum or sums so paid. No person other than a Registered Owner, as shown in the registration records kept by the Paying Agent, shall receive a certificated Bond evidencing the obligation to make payments of principal, premium, if any, and interest pursuant to this Ordinance. Upon delivery by DTC to the Paying Agent of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede, and subject to the provisions herein with respect to Record Dates, the word "Cede" in this Ordinance shall refer to such new nominee of DTC. (c) The Representation Letter, with such changes, omissions, insertions and revisions as the City shall approve, is hereby authorized and the Mayor or the Mayor Pro Tern shall execute and deliver such Representation Letter. The approval by the City of any such changes, omissions, insertions and revisions shall be conclusively established by the Mayor's or Mayor Pro Tern's execution and delivery of the Representation Letter which shall not in any way limit the provisions of Section 39 hereof or in any other way impose upon the City any obligation whatsoever with respect to persons having interests in the Bonds other than the Registered Owners, as shown on the registration records kept by the Paying Agent. The Paying Agent shall take all action necessary for all representations of the City in the Representation Letter with respect to the paying agents and the bond registrar, respectively, to at all times to be complied with. (d) (i) DTC may determine to discontinue providing its services with respect to the Bonds at any time by giving notice to the City and the Paying Agent and discharging its responsibilities with respect thereto under applicable law. (ll) The City, in its sole discretion and without the consent of any other person, may terminate the services of DTC with respect to the Bonds if the City determines that: (A) DTC is unable to discharge its responsibilities with respect to the Bonds, or (B) a continuation of the requirement that all of the outstanding Bonds be registered in the registration records kept by the Paying Agent in the name of Cede or any other nominee of DTC, is not in the best interest of the beneficial owners ofthe Bonds. 31 . \".-' @- ~~'" ' '.\:~" ~ ~.\" ,.;".... Me.".., f"\ ;~ 02/64674.4 (ill) Upon the termination of the services of DTC with respect to the Bonds pursuant to subsection 39( d)(ii)(B) hereof, or upon the discontinuance or termination of the services of DTC with respect to the Bonds pursuant to subsection 39 or subsection 39( d)(i) hereof after which no substitute securities depository willing to undertake the functions of DTC hereunder can be found which, in the opinion of the Paying Agent, is willing and able to undertake s~ch functions upon reasonable and customary terms, the Paying Agent is obligated to deliver Bond certificates at the expense of the beneficial owners of the Bonds, as described in this Ordinance, and the Bonds shall no longer be restricted to being registered in the registration records kept by the Paying Agent in the name of Cede as nominee of DTC, but may be registered in whatever name or names Registered Owners transferring or exchanging Bonds shall designate, in accordance with the provisions of this Ordinance. (e) Notwithstanding any other provision of this Indenture to the contrary, so long as any Bond is registered in the name of Cede, as nominee of DTC, all payments with respect to principal of, premium, if any, and interest on such Bond and all notices with respect to such Bond shall be made and given, respectively, in the manner provided in the Representation Letter. 32 . t '0- ,..,'..'"" \{.~ 'It' t~1t. , \~ "'\, a.1 \~ '~;".- INTRODUCED, READ AS AN EMERGENCY MEASURE AND ORDERED PUBliSHED at its regular meeting on March 27, 1995, as provided by law by the Council. [SEAL] Attest: By -l::;- t3~..,.?{ yor By ~.ik FINALLY ADOPTED AND APPROVED AS AN EMERGENCY MEASURE AND ORDERED PUBliSHED at its regular meeting on April 24, 1995 by the Council. pk (3~- Mayor [SEAL] Attest': BY~ City Cle 02/64674.4 By ~~ 33