HomeMy WebLinkAboutord042-05THE CITY O~ AS?IN
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Memorandum
To: Aspen City Council
From: Paul Menter, Director of Finance and Administrative Services
Scott Newman, CFA, Senior Financial Analyst - Debt &.Investment
Management
Date: September- 20, 2005
Att: Bond Ordinance, City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds, Series 2005B
Re: Bond Issue Ordinance, Parks and Open Space Sales Tax Revenue Bonds,
Second Reading, September 2{5, 2005
Sunmaary: Attached please find the ordinance in final form for Council review on
'September 26, 2005. The ordinance passed on first reading at the September 19, 2005
special meeting of Council.
The following changes have been incorporated:
1. Provisions regarding the Bond Insurer as required by the Bond Insurance
Commitment throughout the document.
2. Parameters within which Bonds are to be priced (e.g., mardmum principal
amount, maximum interest rates as found on page 11.
The primary purpose of the Ordinance is to authorize the issuance by the City of
Aspen, Colorado, of its Parks and Open Space Sales Tax Revenue Bonds, Series
2005B and delegate authority to the City's Finance Director to make a final
determination of certain terms of the Series 2005B bonds. In addition, the
Ordinance authorizes the Mayor, the Finance Director, and other officers of the City
to execute the necessary documents in connection with such Series 2005B bonds.
Finally, in order to take advantage of current market conditions, th(Ordinance
declares an emergency and provides that the Ordinance will be effective upon
second reading and final passage. Please fed flee to contact me if you have any
questions or concerns regarding this information.
September 20, 2005
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Background: Ordinance No. 16, Series of 1970 (the "Original Parks and Open
Space Sales Tax Ordinance") authorized a one percent (1.00%) salestax (the
"Original Parks and Open Space Sales Tax") on all sales of tangible property and
services in the City and are required by Section 23.32.060(c)(3) of the City's
Municipal Code to be expended for the acquisition, maintenance or improvement of
parks, trails or open space.
In November, 2000, the electors of the City approved an additional 0.5% sales tax
(the "Additional Parks and Open Space Sales Tax") and the issuance of sales tax
revenue bonds for the purpose of buying, improving and maintaining trail, recreation
and open space.
On August 21, 2001, the City issued its Parks and Open Space Sales Tax Revenue
Bonds, Series 2001 (the "Series 2001 Bonds") for the purpose ofprovidir~g funds for
buying, improving and maintaining trail, recreation and open space properties and
ancillary Facilities and the funding of reserves for, and the costs of issuance of, the
Series 2001 Bonds.
On March 24, 2005, the City issued its Sales Tax Revenue Refunding Bonds, Series
.2005, in the aggregate principal mount of $12,380,000 (the "Series 2005A Bonds"),
for the purposes of advance refunding all of the City's Sales Tax Revenue Bonds,
Series 1999.
The net revenues of the Original and Additional Parks and Open Space Sales Taxes
are pledged on a parity lien basis to the payment of the principal of and interest on
the Series 2001 Bonds and the Series 2005A Bonds; and
The City Council has determined that it is in the best interests of the City and its
residents to issue the City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds, Series 2005B (the ."Series 2005B Bonds") ~for the purpose of
financing the costs of buying, improving and maintaining trail, recreation and open
space properties and ancillary facilities. The Series 2005B Bonds shall be issued
hereunder and shall be secured by a pledge of and lien on certain revenues from the '
OSginal and Additional Parks and Open Space Sales Taxes on parity with the lien
thereon of the Series 2001 Bonds and the Series 2005A Bonds.
The City Council desires to delegate the authority to the City Finance Director to
make a final determination of the final par amount not to exceed $14,900,000,
interest rates, amount of principal maturing in any year, redemption price or prices,
denominations and price or prices at which the Series 2005B Bonds shall be sold. It
· is estimated that annual debt service for the term of the issuance will not exceed
$2,800,000.
KUTAK ROCK DRAFT OF 09/19/05
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CERTIFIED RECORD
OF
PROCEEDINGS OF THE CITY COUNCIL
OF TFtE~ CITY OF ASPEN, COLORADO
RELATING TO AN ORDINANCE
AUTHORIZING THE. ISSUANCE OF:
City of Aspen, Colorado
Parks and Open Space Sales Tax Revenue Bonds
Series 2005B
This cover page is not a part of the following ordinance and is included solely for the
convenience of the reader.
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Section 1.
Section 2.
Secti(Yn 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23.
Section 24.
Section 25.
Section 26.
Section 27.
Section 28..
Section 29.
Section 30.
Section 31.
Section 32.
Section 33.
Section 34.
Section 35.
Section 36.
Section 37.
Section 38.
APPENDIX
TABLE OF CONTENTS
Page
Definitions .................................................................................................. : ...... 4
Authorization and Purpose of Series 2005B Bonds ........... ~ ............................... 10
Series 2005B Bond Details ............................................................................... 10
Form of Series 2005B Bonds ...................................... ' ...................................... 12
Registration, Transfer and Exchange of Series 2005B Bonds ............... : ............ 12
Replacement of Lost, Destroyed or Stolen Series 2005B Bonds ........................ 12
Execution of Series 2005B Bonds ..................................................................... 12
Redemption of Series 2005B Bonds Prior to Maturity ...................................... 13
Delivery of Series 2005B Bonds Upon Original Issuance ................................. 14
Creation and Reaffirmation of Funds and Accounts .......................................... 14
Application of Proceeds of Series 2005B Bonds ............................................... 14
Special Obligations; Pledge and Lien for Payment of Bonds ............................. 15
Conditions to Issuance of Additional Parity Bonds ........................................... 16
Application of Pledged Revenues ..................................................................... 18
Bond Fund ........................................................................................................ 19
Series 2005B Reserve Fund .............................................................................. 19
Rebate Fund ...... ~ .............................................................................................. 21
Payments to and by Paying Agent ...................... : .............................................. 21
General Administration of Funds ...................................................................... 21
Additional General Covenants ...................................................................... i... 22
Covenants Regarding Exclusion of Interest on Series 2005B Bonds from
Gross Income for Federal Income Tax Purposes ............................................... 24
Defeasance ....................................................................................................... 24
Events of Default .............................................................................................. 25
Remedies for and Duties Upon Events of Default ............................................. 25
Amendment of Ordinance .................................................................. , ......... :...~ 26
Appointment and Duties of Paying Agent ...................................... , .................. 27
Authorization of the Bond Insurance Policy ....... ................ .....: .......................... 27
Bond Insurance Provisions ................................................... : ........................... 28
Parties Interested Herein ................................................................................... 33
Events Occurring on Days That Are Not Business Days ................................. ~. 34
ApprovaI of Documents and Authorization of Officers ..................................... 34
Findings and Determinations ............................................................................ 34
Ratification of Prior Actions ........................................................ ~ .................... 34
Repeal of Inconsistent Resolutions; Contract with Owners of Series 2005B
Bonds; Resolution Irrepealable ..................................................... .................... 35
Headings, Table of Contents and Cover Page ................................................... 35
Severability ...................................................................................................... 35
Recordation ...................................................................................................... 35
Declaration of Emergency and Effective Date .................................................. 35
A FORM OF SERIES 2005 BOND
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ORDINANCE NO. 42 (SERIES OF 2005)
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AN ORDINANCE AUTHORiZING THE ISSUANCE BY TIlE CITY OF
ASPEN, COLORADO, OF 1TS PARKS AND OPEN SPACE SALES TAX
REVENUE BONDS, SERIES 2005B, IN THE AGGREGATE PRINCIPAL
AMOUNT NOT TO EXCEED $14,900,000, FOR THE PURPOSE OF BUYING,
IMPROVING, AND MAINTAINING TRAIL, RECREATION AND OPEN
SPACE PROPERTIES AND ANCILLARY FACILITIES; PRESCRiBING THE
FORM OF THE SERIES 2005B BONDS; PROVIDING FOR THE PAYMENT
OF THE SERIES 2005B BONDS FROM THE CITY'S ORiGINAL 1.0% OPEN
SPACE SALES TAX AND ITS ADDITIONAL 0.5% OPEN SPACE SALES
TAX; PROVIDING OTHER DETAILS AND APPROVING OTHER
DOCUMENTS IN CONNECTION WITH THE SERiES 2005B BONDS;
DELEGATING THE AUTHORiTY TO THE CITY'S FINANCE DIRECTOR
TO MAKE A FINAL DETERMINATION OF CERTAIN TERMS OF THE
SERiES 2005B BONDS; DIRECTING THE CITY'S MAYOR, FINANCE
DIRECTOR, AND OTHER CITY OFFICIALS TO EXECUTE CERTAIN
DOCUMENTS IN CONNECTION WITH SUCH SERiES 2005B BONDS; AND
DECLARING AN EMERGENCY
WHEREAS, the City of Aspen (the "City"), in the ~County of Pitkin and State of
Colorado, is a legally and regularly created, established, organized and e¥isting municipal
corporation under the provisions of Article XX of the Constitution of the State of Colorado and
the home rule charter of the City (as more particularly defined in ~ection 1 herein, the "Charter")
(all capitalized terms used and not otherwise defined in the recitals hereof shall have the meaning
assigned in Section 1 of this Ordinance); and
WHEREAS, under the Charter, the City is possessed of all pow.ers 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 municipalkies by the Colorado 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, Section 10.5 of the Charter provides in relevant part:
The City shall, in addition, have the authority to issue revenue bonds...
payable in whole or in part from the imposition ora sales or use tax by the State
of Colorado, or any agency thereof.... No revenue bonds shall be issued until
the question of their issuance shall have been approved by a majority of the
electors voting on the question at a regular or special election; ....
WHEREAS, the City, pursuant to Ordinance No. 16, Serle~s of 1970 (the "Original Parks
and Open Space Sales Tax Ordinance"), levies a one percent (1.00%) sales tax (the "Original
Parks and Open Space Sales Tax") on all sales of tangible property and services specified in
Section 23.32.090 of the City's Municipal Code for the payment of food tax refunds, and for the
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acquisition of re~I property including open space or construction of capital improvements for
municipal purposes, or the payment of indebtedness incurred for such acquisition or construction
of capital improvements for municipal purposes, for the expenditures necessary to protect such
property against loss, damage or destruction; and
WHEREAS, receipts from the Original Parks and Open Space Sales Tax are required by
Section 23.32.060(c)(3) of the City's Municipal Code to be set aside in a separate fund entitled
"Parks and Open Space Fund" and expended by the City Council solely for the acquisition of
parks, trails and open space real property, for the construction of improvements on any real
property, owned or purchased by the City for parks, trails and open space purposes, for the
maintenance of real property owned by the city and used for parks, trails and open space, and for
payment of indebtedness incurred for acquisition or improvement of parks, trails and open space.
real property, food tax refunds payable by the City, and for such expenditures as may be
necessary to protect real property or the improvements thereon owned by the City for parks,
trails and open space purposes and for the payment of sales tax revenue bonds issued by the City;
and
WHEREAS, the following question (the "Ballot Question") regarding the imposition of
an additional 0.5% sales tax (as defined herein, the "Additional Parks and Open Space Sales
Tax" and, collectively with the Original Parks and Open Space Sales Tax, the "Parks and Open
Space Sales Tax") and the issuance of sales tax revenue bonds for the purpose of buying,
improving and maintaining trail, recreation and open space properties and ancillary facilities was
submitted to the electors of the City at the City's November 7, 2000 election, and was approved
by a majority of those voting on the question:
SHALL CITY OF ASPEN TAXES BE INCREASED UP TO
$2,280,000.00 (FIRST FULL FISCAL YEAR DOLLAR INCREASE, NET OF
ANY CONSTITUTIONALLY REQUIRED TAX CUTS) ANNUALLY BY THE
IMPOSITION OF AN ADDITIONAL 0.5% SALES TAX COMMENCING ON
JANUARY 1, 2001, AND TERMINATING ON DECEMBER 31'~ 2025, AND
SHALL CITY OF ASPEN DEBT BE INCREASED BY AN AMOUNT NOT TO
EXCEED $38.0 MILLION WITH A MAXIMUM REPAYMENT COST OF
$91,065,000.00 FOR THE PURPOSE OF BUYING, IMPROVING AND
MAINTAINING TRAIL, RECREATION AND OPEN SPACE PROPERTIES
AND ANCILLARY FACILITIES;
SUCH DEBT TO CONSIST OF REVENUE BONDS PAYABLE FROM
CITY SALES TAXES THAT BEAR INTEILEST, MATURE, ARE SUBJECT
TO REDEMPTION, WITH OR WITHOUT PREMIUM, AND ARE ISSUED,
DATED, AND SOLD, AT SUCH TIMES AS NEEDED TO FINANCE THE
PURCHASES OR IMPROVEMENTS AS DESCRIBED ABOVE, AT SUCH
PRICES (AT, ABOVE OR BELOW PAR) AND IN SUCH MANNER AND
CONTAIN SUCH TERMS AS THE CITY COUNCIL MAY DETERMINE;
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SHALL ANY EARNINGS (REGARDLESS OF AMOUNT) FROM THE
INVESTMENT OF THE PROCEEDS OF SUCH TAXES AND SUCH BONDS
CONSTITUTE A VOTER-APPROVED REVENUE CHANGE7
WHEREAS, the City, pursuant to Ordinance No. 7, Series of 2001 (the "Additional Parks
and Open Space Sales Tax Ordinance" and, together with the Original Parks and Open Space
Sales Tax Ordinance, the "Parks and Open Space Tax Ordinances"), has since January 1, 2001
levied the Additional Parks and Open Space Sales Tax and, pursuant to Section 23.32.060(c)(7)
of the City's Municipal Code, deposits the revenues of the Additional Parks and Open Space
Sales Tax in the Parks and Open Space Fund; and
WHEREAS, on August 21, 2001, the City. issued its Parks and Open Space Sales Tax
Revenue Bonds, Series 2001 (the "Series 2001 Bonds") for the purpose of providing funds for
buying, improving and maintaining trail, recreation and open space properties and ancillary
Facilities and the funding of reserves for, and the costs of issuance of, the Series 2001 Bonds;
and
WHEREAS, on March 24, 2005, the City issued its Sales Tax Revenue Refunding
Bonds, Series 2005, in the aggregate principal amount of $12,380,000 (the "Series 2005A
Bonds"), for the purposes of advance refunding all of the City's Sales Tax Revenue Bonds,
Series 1999; and
WHEREAS, the net revenues of the Parks and Open Space Sales Tax are pledged on a
parity lien basis to the payment of the principal of and interest on the Series 2001 Bonds and the
Series 2005A Bonds; and
WHEREAS, the City Council has determined that it is in the best interests of the City
and its residents to issue the City of Aspen, Colorado, Parks and Open S~Sace Sales Tax Revenue
Bonds, Series 2005B (the "Series 2005B Bonds") for the purpose of financing the costs of
buying, improving and maintaining trail, recreation and open space properties and ancillary
facilities; and
WHEREAS, the City Council has determined and does hereby determine that the Series
2005B Bonds shall be issued hereunder and shall be secured by a pledge of and lien on certain
revenues from the Parks and Open Space Sales Tax on parity with the lien thereon of the Series
200I Bonds and the Series 2005A Bonds; and
WHEREAS, pursuant to Section 6.8 of the Charter, the City's Director of Finance (the
"Finance Director") shall perform such duties pertaining to the City's department of f'mance as
required by the City Council; and
WHEREAS, the City Council desires to delegate the authority to the Finance Director to
make a final determination of the par amount, interest rates, amount of principal maturing in any
year, redemption price or prices, denominations and price or prices at which the Series 2005B
Bonds shall be sold; and
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WHEILEAS, the City Council also desires to delegate the authority to the Finance
Director to determine whether it is economically beneficial to obtain a financial guaranty
insurance pclicy insuring the payment of the Series 2005B Bonds and, if so determined, to
identify the Bond Insurer and execute the Commitment; to determine whether a surety bond is to
be obtained to secure payments on the Series 2005B Bonds, and to execute and deliver the Bond
Purchase Agreement and approve certain terms thereof, all in accordance with the provisions of
this Ordinance;
WHEREAS, pursuant to Section 4.11 of the Charter, the City is authorized to adopt
emergency ordinances for the preservation of public property, health, peace, or safety; and
WHEREAS, the rates of interest at which the Series 2005B Bonds can be issued are
expected to be lower if the Series 2005B Bonds can be issued in a timely fashion, thus benefiting
the City's inhabitants with lower financing costs; and
WHEtLEAS, there is a need for issuing ~he Series 2005B Bonds in a timely manner in
order to take advantage of existing market conditions and obtain lower financing costs, thus
freeing up amounts which would have otherwise be expended on such financing costs for the
purpose of preserving public property, health, peace and safety; and
WHEREAS, this ordinance is being adopted to authorize the issuance, sale and delivery
of the Series 2005B Bonds, and to provide for the details of and the security for the Series 2005B
Bonds;
NOW, THEREFORE, BE IT ORDAINED by the City Council of City of Aspen,
Colorado:
Section 1. Definitions. The following terms shall have the following meanings as used
in this Ordinance:
"Additional Park$ and Open Space Sales Tax" means the 015% sales tax that is levied in
addition to the Original Parks and Open Space Sales Tax by the City pursuant to the authority
granted by the Ballot Question, the Additional Parks and Open Space Sales Tax Ordinance and
Section 23.32.060(c)(7) of the City's Municipal Code;
"Additional Parity Bonds" means any bonds or other obligations ~which may or may not
be multiple-fiscal year financial obligations) permitted to be issued pursuant to Section 13 hereof
with a lien that is equal and on a parity with the lien of the Series 2001 Bonds, the Series 2005A
Bonds, and the Series 2005B Bonds on the Pledged Revenues, the Bond Fund and the Revenue
Fund.
"Ballot Question" means the ballot question approved by City voters on November 7,
2000 authorizing the Additional Parks and Open Space Sales Tax.
"Bond Counsel" means (a) as of the date of issuance of the Series 2005B Bonds, Kutak
Rock LLP, and (b) as of any other date, Kutak Rock LLP or such other attorneys selected by the
City with nationally recognized expertise in the issuance of municipal bonds.
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"Bond Fund' means the "City of Aspen, Colorado, Parks and Open Space Sa!es Tax
Revenue Bon~ts Bond Fund" which fund is reaffirmed as such in Section l 0(b) hereof.
"Bond Insurance Policy" means the municipal bond insurance policy issued by the Bond
Insurer insuring the payment when due of the principal of and interest on the Series 2005B
Bunds as provided therein.
"Bond Insurer" means Financial Security Assurance Inc., a New York stock insurance
company, or any successor thereto or assignee thereof.
"Bond Purchase Agreement" means the Bond Pumhase A~eement dated
2005 pursuant to which the Original Purchaser has agreed to purchase the Series 2005B Bonds at
the price and on the terms set forth therein.
"Bonds" means, collectively, the Series 2001 Bonds, the Series 2005A Bonds, the Ser~es
2005B Bonds and any Additional Parity Bonds.
"Business Day" means any day other than (a) a Saturday or Sunday or (b) a day on which
banking institutions in the State are authorized or obligated by law 'or executive order to be
closed for business.
"Charter" means the Charter of the City of Aspen, adopted June 16, 1970, as amended.
"City" means the City of Aspen, Colorado, and any successor thereto.
"City Council" means the City Council of the City, and any successor body.
"Code" means th~ Internal Revenue Code of 1986, as amended. Each reference to a
section of the Code herein shall be deemed to include the United States Treasury Regulations
proposed or in effect thereunder and applicable to the Series 2005B Bonds or the use of proceeds
thereof, unless the context clearly requires otherwise.
"Commitment" means that certain offer to issue the Bond Insurance Policy issued by the
Bond. Insurer.
"Defeasance Securities" means Permitted Investments that are bills, certificates of
indebtedness, notes, bonds or similar securities which are direct non-callable obligations of the
United States of America or which are fully and unconditionally guaranteed as to the timely
payment of principal and interest by the United States of America.
"Event of Defaulf' means any of the events specified in Section 23 hereof.
"Fitch" means Fitch Investors Service, Inc. and its successors.
"Interest Payment Date" means any date on which a payment of principal of, premium, if
any, or interest on the Series 2005B Bonds is due pursuant to Section 3(c) hereof.
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"Lettev of Instructions" means the Letter of Instructions, dated the date of issuance of the
Series 2005B Bonds, delivered by Bond Counsel to the City, as it may be superseded or amended
in accordance with its terms.
"Moody's" means Moody's Investor Service and its successors.
"Ordinance" means this Ordinance, which authorizes the issuance of the Series 2005B
Bonds, including any amendments or supplements hereto.
"Original Parks and Open Space Sales Tax" means the 1..0% Open Space Sales Tax
levied by the City pursuant to the Original Parks and Open Space sales Tax Ordinance.
"Original Parks and Open Space Sales Tax Ordinance" means the City's Ordinance No.
16, Series of 1970.
"Original Purchaser" means Stifel, Nicolaus & Company, Incorporated Hanifen'Imhoff
Division.
"Outstanding" means, as of any date, all Bonds, except the following:
(a) anY Bond cancelled by the City or the Paying Agent, or otherwise on the
City's behalf, at or before such date;
(b) any Bond held by or on behalf of the City;
(c)' any Bond for the payment or the redemption of which moneys or
Defeasance Securities sufficient to meet all of the payment requirements of the principal
of, interest on, and any premium due in connection with the redemption of such Bond to
the date of maturity or any redemption date thereof, shall have theretofore been deposited
in trust for such purpose in accordance with Section 22 hereof; and ..
(d) any lost, apparently destroyed, or wrongfully taken Bond in lieu of or in
substitution for which another bond or other security shall have been executed and
delivered.
"Owner" means the Person or Persons in whose name or names a Series 2005B Bond is
registered on the registration books maintained by the Paying Agent pursuant hereto.
"Parks and Open Space Fund" means the City's Parks and Open Space Fund maintained
by the City pursuant to Section 23.32.060(c)(3) of the City's Municipal Code.
"Parks and Open Space Sales Tax" means, collectively, the Original Parks and Open
Space Sales Tax and the Additional Parks and Open Space Sales Tax.
"Parks and Open Space Sales Tax Ordinances" means, collectively the Original Parks
and Open Space Sales Tax Ordinance and the Additional Parks and Open Space Sales Tax
Ordinance.
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"Paying Agent" means American National Bank, and its successors in interest or assigns
approved by the City.
"Permitted Investments" means any investment which is permitted for investment of City
Funds by the Charter and ali other applicable laws which are included on the foiiowing list:
(a) Cash (insured at all times by the Federal Deposit Insurance Corporation);
(b) Direct obligations of (including obligations issued or held in book entry
form on the books of) the Department of the Treasury of the United States of Amerlca;
(c) obligations of any of the fpllowing federal agencies which obligations
represent full faith and credit of the United States of America, including:
-- Export-Import Bank
-- Rural Economic Community Development Administration
-- U.S. Maritime Administration
-- Small Business Administration
-- U.S. Department of Housing & Urban Development (PHA's)
-- Federal Housing Administration
-- Federal Financing Bank;
(d) direct obligations of any of the following federal agencies which
obligations are not fully guaranteed by the full faith and credi.t. 9f the United States of
America: senior debt obligations issued by the Federal National Mortgage Association
(FNMA) or the Federal Home Loan Mortgage Corporation (FHLMC); obligations of the
Resolution Funding Corporation (REFCORP); senior debt obligations of the Federal
Home Loan Bank System; and senior debt obligations of other Government Sponsored
Agenc. ies approved by Ambac;
.(e) U.S. dollar denominated deposit accounts, federal funds and banker's
acceptances with domestic commercial banks which have a rating on their short-term
certificates of deposit On the date of purchase of"A 1" or "A 1+" by S&P and "P 1" by
Moody's and maturing no more than 360 days after the date of purchase, where ratings
on holding companies are not considered as the rating of the bank;
(0 . commercial paper which is rated at the time of purchase in the single
highest classification, "A l+" by S&P and "P I" by Moody's, and which matures not
more than 270 days after the date of purchase;
(g) investments in a money market fund rated "AAAm" or "AAAm--G" or
better by S&P;
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(h) pre-refunded municipal obligations defined as follows:
Any bonds or other obligations of any state of the United States of America or of any
agency, instrumentality or local governmental unit of any such state which are not
callable at the option of the obligor prior to maturity or as to which irrevocable
instructions have been given by the obligor to call on the date specified in the notice; and
(i) which are rated, based on an irrevocable escrow account or fund (the "escrow"), in the
highest rating category of S&P and Moody's or any successors thereto; or (ii)(A) which
are fully secured as to principal and interest and redemption premium, if any, by an
escrow consisting only of cash or obligations described in paragraph (a) above, which
escrow may be applied only to the payment of such principal of and interest and
redemption premium, if any, on such bonds or other obligations on the maturity date or
dates thereof or the specified redemption date or dates pursuant to such irrevocable
instructions, as appropriate; and (B) which escrow is sufficient, as verified by a nationally
recognized independent certified public accountant, to pay principal of and interest and
redemption premium, if any, on the bonds or other obligations described in this paragraph
on the maturity date or dates thereof or on the redemption date or dates specified in the
irrevocable instructions referred to above, as appropriate;
(i) municipal obligations rated "Aaa/AAA", or general obligations of states
with a rating of at least "A2/A", or higher by both Moody's and S&P; and
(j) investment a~eements and other forms of investments approved in
writing by the Bond Insurer.
"Person" means a corporation, firm, other body corporate, partnership, association or
individual and also includes an executor, administrator, trustee, receiver or other representative
appointed according to law.
"Pledged Revenues" means, for each fiscal year, all of the proce'~ds of the Parks and
Open Space Sales Tax after deduction of the reasonable and necessary costs and expenses of
collecting and enforcing the Parks and Open Space Sales .Tax, if any.
"Rebate Fund' means the City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds, Series 2005B, Rebate Fund created in Section I0 hereof
"Reserve Fund" means, as the context requires, any one or more of the Series 2001
Reserve Fund, the Series 2005A Reserve Fund, the Series 2005B Reserve Fund, and/or any
reserve fund or funds established for Additional Parity Bonds.
"Reserve Fund Contract" has the meaning specified in Section 16(c)(i) hereof.
"Reserve Fund Requiremenf' means, as of any date on which it is calculated, with respect
to each series of Bonds, the least of (a) 10% of the principal amount of such series of Bonds,
(b) the maximum annual debt service in any calendar year on the Outstanding Bonds of such
series or (c) 125% of the average annual debt service on the Bonds of such series; provided,
however, that the Reserve Fund Requirement may be reduced if, in the opinion of Bond Counsel,
the funding or maintenance of it at the level otherwise determined .pursuant to this definition will
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adversely affect the exclusion from gross income tax for federal income tax purposes of interest
on any of the Bonds.
"Revenue Fund' means the "City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds Revenue Fund" which fund is reaffirmed as such pursuant to Section 10(b)
hereof.
"Sale Certificate" means the bond sale certificate executed by the Finance Director under
the authority delegated pursuant to this Ordinance, including but not limited to the Sections
hereof entitled "Bond Details," "Redemption of Bonds Prior to Maturity," "Approval of Related
Documents" and "Authorization of Bond Insurance" which set forth, among other things, the
prices at which the Series 2005B Bonds will be sold, the delivery date of the Series 2005B
Bonds, the dated date of the Series 2005B Bonds, the principal and interest payment dates for the
Series 2005B Bonds, interest rates and annual maturing principal for the Series 2005B Bonds, as
well as the dates on which the Series 2005B Bonds may be redeemed and the redemption prices
therefor. The Finance Director also has been delegated the authority to determine if the'
repayment of the Series 2005B Bonds shall be secured by the issuance of the Bond Insurance
Policy, whether the Reserve Fund shall be funded with a Reserve Fund Contract issued by the
Bond Insurer and the terms of any a~eement with the Bond Insurer.
"S&?" means Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies, Inc., and its successors.
"Series 1999 Ordinance" means the City's Ordinance No. 31, Series of 1999, pursuant to
which the City of Aspen, Colorado, Sales Tax Revenue Bonds, Series 1999 were issued (ali of
which were subsequently advance refunded with proceeds of the Series 2005A Bonds).
"Series 2001 Bonds" means the City of Aspen, Colorado, Open Space Sales Tax Revenue
Bonds, Series 2001, authorized pursuant to the Series 2001 Ordinance.
"Series 2001 Ordinance" means the City's Ordinance No. 29, Series of 2001, pursuant to
which the Series 2001 Bonds were issued.
"Series 2001 Reserve Fund" means the Reserve Fund established for the Series 2001
Bonds pursuant to Section I 0(a)(ii) of the Series 2001 Ordinance.
"Series 2005A Bonds" means the City of Aspen, Colorado, Sales Tax Revenue Refunding
Bonds, Series 2005A, authorized pursuant to the Series 2005A Ordinance.
"Series 2005A Ordinance" means the City's Ordinance No. 19, Series of 2005, pursuant
to which the Series 2005A Bonds were issued.
"Series 2005A Reserve Fund" means the City of Aspen, Colorado, Sales Tax Revenue
Refunding Bonds, Series 2005A, Reserve Fund created in Section 10(a)(ii) of the Series 2005A
Ordinance.
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"Series 2005A Surety Bonc?' means the Reserve Fund Contract issued by Ambac
Assurance Corporation guaranteeing certain payments from the Series 2005A Reserve Fund with
respect to the Series 2005A Bonds.
"Series 2005B Bonds" means the City of Aspen, Colorado, Parks and Open Space Sales
Tax Revenue Bonds, Series 2005B, authorized pursuant to this Ordinance.
"Series 2005B Reserve Func~' means the City of Aspen, Colorado, Parks and Open Space
Sales Tax Revenue Bonds, Series 2005B, Reserve Fund created in Section 10(a)(ii) hereof.
"Series 2005B Sure~y Bond' means the Reserve Fund Contract issued by the Bond
Insurer guaranteeing certain payments from the Series 2005B Reserve Fund with respect to the
Series 2005B Bonds.
"Stale" means the State of Colorado.
Section 2. Authorization and Purpose of Series 2005B Bonds. Pursuant to and in
accordance with the Charter, the City hereby authorizes, and directs that there shall be issued, the
"City of Aspen, Colorado, Parks and Open Space Sales Tax Revenue Bonds, Series 2005B" in
the aggregate principal amount set forth in the Sale Certificate (the "Series 2005B Bonds") for
the purpose of buying, improving, and maintaining trail, recreation and open space properties
and ancillary facilities; purchasing the Series 2005B Surety Bond; and paying the costs of
issuance of the Series 2005B Bonds. The City Council hereby delegates to the Finance Director
the authority to determine the aggregate principal amount of the Series 2005B Bonds, provided,
however, that such f-mai determination shall be withih the parameters set forth in Section 3(b)(i)
below.
Section 3. Series 2005B Bond Details.
(a) Registered Form, Denominations, Original Dated 1Yale and Numbering.
The Series 2005B Bonds shall be issued as fully registered bonds in the denominations
set forth in the Sale Certificate, shall be dated as of the date set forth in the Sale
Certificate, shall be consecutively numbered in the manner determined by the Paying
Agent and shall be registered in the names of the Persons identified in the registration
books of the City maintained by the Paying Agent.
(b) Maturity Dates, Principal Amounts and Interest Rates. The Series
2005B Bonds shall mature on November 1 of the years and in the principal amounts, and
shall bear interest at the rates per annum (calculated based on a 360-day year of twelve
30-day months) set forth in the Sale Certificate. The City Council hereby delegates to the
Finance Director the authority to determine the dated date of the Series 2005B Bonds, the
price or prices at which the Series 2005B Bonds will be sold, the amount of principal of
the Series 2005B Bonds maturing in any particular year, the price or prices at which the
Series 2005B Bonds may be redeemed, and the denominations in which the Series 2005B
Bonds shall be sold; provided, however, that such final determination made by the
Finance Director shall be within the parameters set forth below:
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(i) The aggregate original principal amount of the Series 2005B
Bonds shall not exceed $14,900,000;
(ii) The net effective interest rate of the Series 2005B Bonds shall not
exceed 5.25% per annum;
(iii) The price or prices at which the Series 2005B Bonds are sold shall
be not less than 98% or more than 108%; and
(iv) The redemption price or prices of the Series 2005B Bonds shall not
exceed 101% (stated as a percentage of the principal amount so redeerr?d).
(c) Accrual and Dates of Payment of lnterest. Interest on the Series 2005B
Bonds shall accrue at the rates set forth in the Sale Certificate from the later of the
original dated date or the latest interest payment date (o/' in the case of defaulted interest,
the latest date) to which interest has been paid in full and shall be payable dn May 1 and
November 1 of each year, commencing on the date set forth in the Sale Certificate. The
Finance Director is hereby authorized to determine the first interest payment date for the
Series 2005B Bonds.
(d) Manner and Form of Payment. Principal of, premium, if any, and the
final installment of interest on each Series 2005B Bond shall be payable to the Owner
thereof upon presentation and surrender Of such bond at the principal office of the Paying
Agent in the city identified in the definition of Paying Agent in Section 1 hereof. Interest
(other than the final installment of interest) on e~ach Series 2005B Bond shall be payable
by check or draf~ of the Paying Agent mailed on the interest payment date to the Owner
· thereof as of the close of business on the fifteenth day (whether or not such day jsa
Business Day) of the month preceding the month in which the Interest Payment Date
occurs. All payments of the principal of, premium, if any, a~d~ interest on the Series
2005B Bonds shall be made in lawful money of the United States of America.
(e) Book-Entry Registration. Notwithstanding any other provision hereof,
the Series 2005B Bonds shall be delivered only in book-entry form registered in the name
of Cede & Co., as nominee of The Depository Trust Company ("DTC"), New York, New
York, acting as securities depository of the Series 2005B Bonds and principal of,
premium, if any, and interest on the Series 2005B Bonds shall be paid by wire transfer to
DTC; provided, however, if at any time the Paying Agent determines, and notifies the
City of its determination, that DTC is no longer able to act as, or is no longer
satisfactorily performing its duties as, securities depository for the Series 2005B Bonds,
the Paying Agent may, at ks discretion, either (i) designate a substitute securities
depository for DTC and reregister the Series 2005B Bonds as directed by such substitute
securities depository or (ii) terminate the book-entry registration system and reregister the
Series 2005B Bonds in the names of the beneficial owners thereof provided to it by DTC.
Neither the City nor the Paying Agent shall have any liability to DTC, Cede & Co., any
substitute securities depository, any Person in whose name the Series 2005B Bonds are
reregistered at the direction of any substitute securities depository, any beneficial owner
of the Series 2005B Bonds or any other Person for (A) any determination made by the
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Paying Agent pursuant to the proviso at the end of the immediately preceding sentence or
(B) any action taken to implement such determination and the procedures related thereto
that is taken pursuant to any direction of or in reliance on any information provided by
DTC, Cede & Co., any substitute securities depository or any Person in whose name the
Series 2005B Bonds are reregistered.
Section 4. Form of Series 2005B Bonds. The Series 2005B Bonds shall be in
substantially the form set forth in Appendix A hereto, with such changes thereto, not inconsistent
herewith, as may be necessary or desirable and approved by the officials of the City executing
the same (whose manual or facsimile signatures thereon shall constitute conclusive evidence of
such approval). Although attached as an appendix for the convenience of the reader, Appendix
A is an integral part of this Ordinance and is incorporated herein as if set forth in full in the body
.of this Ordinance.
Section 5. Registration, Transfer and Exchange of Series 2005B Bonds. The Paying
Agent shall maintain registration books in which the ownership, transfer and exchange of Series
2005B Bonds shall be recorded. The Person in whose name any Series 2005B Bond shall be
registered on such registration books shall be deemed to be the absolute owner thereof for all
purposes, whether or not payment on any Series 2005B Bond shall be overdue, and neither the
City nor the Paying Agent shall be affected by any notice or other information to the contrary.
The Series 2005B Bonds may be transferred or exchanged, at the principal office of the Paying
Agent in the city identified in the definition of Paying Agent in Section 1 hereof, for a like
aggregate principal amount of Series 2005B Bonds of other authorized denominations of the
same maturity and interest rate, upon payment by the transferee of a transfer fee, 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. Upon surrender for transfer of any Series 2005B
Bond, duly endorsed for transfer or accompanied by an assignment duly executed by the Owner
or his or her attorney duly authorized in writing, the City shall execute and the Paying Agent
shall authenticate and deliver in the name of the transferee a new Series 200.5B Bond.
Section 6. Replacement of Lost, Destroyed or Stolen Series 2005B Bonds. If any
Series 2005B Bond shall become lost, apparently destroyed, stolen or wrongfully taken, it may
be replaced in the form and tenor of the lost, destroyed, stolen or taken bond and the City shall
execute and the Paying Agent shall authenticate and deliver a replacement Series 2005B Bond
upon the Owner furnishing, to the satisfaction of the Paying Agent: (a) proof of ownership
(which shall be shown by the registration books of the Paying Agent), (b)proof of loss,
destruction or theft, (c) an indemnity to the City and the Paying Agent with respect to the Series
2005B Bond lost, destroyed or taken, and (d) payment of the cost of preparing and executing the
new bond or bonds.
Section 7. Execution of Series 2005B Bonds. The Series 2005B 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 of the City, 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, all of whom are hereby authorized and directed to prepare and execute the Series
2005B Bonds in accordance with the requirements hereof. Should any officer whose manual or
facsimile signature appears on the Series 2005B Bonds cease to be such officer before delivery
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of any Series 2005B Bond, such manual or facsimile signature shall nevertheless be valid and
sufficient for all purposes. When the Series 2005B Bonds have been duly executed, the officers
of the City are authorized to, and shall, deliver the Series 2005B Bonds to the Paying Agent for
authentication. No Series 2005B Bond shall be secured by or entitled to the benefit of this
Ordinance, or shall be valid or obligatory for any purpose, unless the certificate of authentication
of the Paying Agent has been manually executed by an authorized signatory of the Paying Agent.
The executed certificate of authentication of the Paying Agenl upon any Series 2005B Bond shall
be conclusive evidence, and the only competent evidence, that such Series 2005B Bond has been
properly authenticated and delivered hereunder.
Section 8. Redemption of Series 2005B Bonds Prior to Maturity.
(a) Optional Redemption. The Series 2005B Bonds shall be subject to
redemption, at the option of the City, in whole or in part, and if in part in such order of
maturities as the City shall determine and by lot within a maturity on such dates as set
forth in the Sale Certificate. The City Council hereby delegates to the Finance Director
the authority to determine the dates on which the Series 2005B Bonds shall be subject to
optional redemption and the redemption price or prices at which such redemption may be
made, provided, however, that such redemption price or prices shall not exceed 101% of
the principal amount so redeemed.
(b) Mandatory Sinking Fund Redemption. The Series 2005B Bonds shall be
subject to mandatory sinking fund redemption by lot on November I of the years and in
the principal amounts specified inthe Sale Certificate, at a redemption price equal to the
principal amount to be redeemed (with no redemption premium), plus accrued interest to
"the redemption date. The City Council hereby delegates to the Finance Director the
authority to determine the dates on which the Series 2005B Bonds shall be subject to
mandatory sinking fund redemption.
If the Sale Certificate designates mandatory sinking fund redemption dates for the
Series 2005B Bonds, the City, at its option, to be exercised on or before the forty-filth
day next preceding each sinking fund redemption date, may (i) purchase and cancel any
Series 2005B Bonds with the same maturity date.as the Series 2005B Bonds subject to
such sinking fund redemption and (ii)receive a credit in respect of its sinking fund
redemption obligation for any Series 2005B Bonds with the same maturity date as the
Series 2005B Bonds subject to such sinking fund redemption which prior to such date
have been redeemed (otherwise than through the operation of the sinking fund) and
cancelled and not theretofore applied as a credit against any sinking fund redemption
obligation. Each Series 2005B Bond so purchased and cancelled or previously redeemed
shall be credited at the principal amount thereof to the obligation of the city on such
sinking fund redemption date, and the principal mount of Series 2005B Bonds to be
redeemed by operation of such sinking fund on such date shall be accordingly reduced.
(c) Redemption Procedures. Notice of any redemption of Series 2005B
Bonds shall be given by sending a copy of such notice by first-class, postage prepaid
mail, not less than 30 days prior to the redemption date, to the Owner of each Series
2005B Bond being redeemed. Such notice shall specify the number or numbers of the
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Series 2005B Bonds so to be redeemed (if redemption shall be in part) and the
redemption date. If any Series 2005B Bond shall have been duly called for redemption
and if, on or before the redemption date, the City shall have set aside funds sufficient to
pay the redemption price of such Series 2005B Bond on the redemption date, then such
Series 2005B Bond shall become due and payable at such redemption date, .and from and
after such date interest will cease, to accrue thereon. Failure to deliver any redemption
notice or any defect in any redemption notice shall not affect the validity of the
proceeding for the redemption of Series 2005B Bonds with respect to which such failure
or defect did not occur. Any Series 2005B Bond redeemed prior to its maturity by prior
redemption or otherwise shall not be reissued and shall be cancelled.
Section 9. Delivery of Series 2005B Bonds Upon Original Issuance. Prior to the
authentication and delivery by the Paying Agent of the Series 2005B Bonds in connection with
their original issuance there shall be filed with the Paying Agent (a) a certified copy of this
O/'dinance and (b) a request and authorization to the Paying Agent on behalf of the City and
signed by the Mayor or Mayor Pro Tern to authenticate the Series 2005B Bonds and to deliver
the Series 2005B Bonds to the Original Purchaser 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. Upon the authentication of the Series 2005B Bonds, the Paying
Agent shall deliver the same to the Original Purchaser or its designee as directed in such request
and authorization.
Section 10'. Creation and Reaffirmation of Funds and Accounts.
(a) There are hereby created by the City the following funds and accounts:
(i) the Series 2005B Rebate Fund, designated as the "City of Aspen,
Colorado, Parks and Open Space Sales Tm,( Revenue Bonds, Series 2005B,
Rebate Fund;" and
(ii) the Series 2005B Reserve Fund, designated as the ',City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds, Series 2005B,
Reserve Fund."
(b) The following funds, originally created pursuant to Section 13 of the
Series 1999 Ordinance and renamed pursuant to Section 10(b) of the Series 2001
Ordinance, are hereby reaffirmed as follows:
(i) the Bond Fund is hereby reaffirmed as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds Bond Fund;" and
(ii) the Revenue Fund is hereby reaffa-med as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds Revenue Fund."
Section 11. Application of Proceeds of Series 2005B Bonds. The proceeds received by
the City from the sale of the Series 2005B Bonds shall be applied in the manner set forth in the
Sale Certificate. The City Council hereby authorizes the Finance Director to make such
determinations as to the application of such proceeds in accordance with the provisions of this
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Ordinance. The City Council hereby authorizes the Finance Director to allocate Such proceeds to
the purchase of the Series 2005B Surety Bond or to deposit proceeds in the Series 2005B
Reserve Fund, as determined by the Finance Director.
Section 12. Special Obligations; Pledge and Lien for Payment of B0nds.
(a) Series 2005B Bonds. The City hereby pledges the Pledged Revenues, the
Bond Fund, the Series 2005B Reserve Fund and the Revenue Fund for the payment of the
principal of, premium, if any, and interest on the Series 2005B Bonds at any time
Outstanding, and grants an irrevocable and first lien (but not necessarily an exclusive
such lien) for such purpose on the Pledged Revenues, the Bond Fund, the Series 2005B
Reserve Fund and the Revenue Fund. The lien of the Series 2005B Bonds on the Pledged
Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series
2001 Bonds, the Series 2005A Bonds, and any Additional Parity Bonds.
(b) Series 2001 Bonds. The City hereby further pledges the Pledged
Revenues, the Bond Fund, the Series 2001 Reserve Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on the Series 2001 Bonds at
any time Outstanding, and grants an irrevocable and first lien (but not necessarily an
exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the
Series 2001 Reserve Fund and the Revenue Fund. The lien of the Series 2001 Bonds on
the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of
the Series 2005A Bonds, the Series 2005B Bonds, and any Additional Parity Bonds.
(c) Series 2005A Bonds. The City hereby further pledges the Pledged
Revenues, the Bond Fund, the Series 2005A Reserve Fund and the Revenue Fund for.the
payment of the principal of, premium, if any, and interest on the Series 2005A Bonds at
any time Outstanding, and ~ants an irrevocable and first lien (but not necessarily an
exclusive such lien) for such purpose on the Pledged Revenue, the Bond Fund, the
· Series 2005A Reserve Fund and the Revenue Fund. The lien of the Series 2005A Bonds
on the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien
of the Series 2001 Bonds, the Series 2005B Bonds, and any Additional Parity Bonds.
(d) Additional Parity Bonds. Subject to Section 13 hereof, the City also
hereby pledges the Pledged Revenues, the Bond Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on any Additional Parity Bonds
at any time Outstanding, and grants an irrevocable and first lien (but not necessarily an
exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund and the
Revenue Fund. The lien of any Additional Parity Bonds, if issued, on the Pledged
Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series
2001 Bonds, the Series 2005A Bonds, and the Series 2005B Bonds.
(e) Equally and Ratably Secured. The Bonds shall be equally and ratably
secured by the pledge of and llen on the Pledged Revenues, the Bond Fund and the
Revenue Fund granted by this Section and shall not be entitled to any priority one over
the other in the application of Pledged Revenues or the moneys on deposit at any time in
the Bond Fund and the Revenue Fund.
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(f) Superior Liens Prohibited. The City shall not pledge or create any other
lien on the revenues and moneys pledged pursuant to this Section that is superior to the
pledge thereof or lien thereon pursuant hereto.
(g) Subordinate Liens Permitted. Nothing herein shall prohibit the City from
pledging or creating a lien on the revenues and moneys pledged and the lien created
pursuant to subsections (a), (b) and (c) of this Section that is subordinate to the pledge
thereof or lien thereon pursuant to such subsections, provided that no such subordinate
pledge or lien shall be created unless 'and until there is delivered to the Paying Agent a
written certification by the Mayor that no Event of Default has occurred and is
continuing.
(h) No Prohibition on Additional Security. Nothing herein shall prohibit the
City from (i) using, pledging or granting a lien on any revenues from the Parks and Open
Space Sales Tax that are not Pledged Revenues or any other moneys for the payment of
the principal of, premium, if any, or interest on the Bonds or (ii) depositing any revenues
from the Parks and Open Space Sales Tax that are not Pledged Revenues or any other
moneys into the Bond Fund or the Revenue Fund (and thereby subjecting the moneys so
deposited to the pledge made and lien ~anted by this Section).
(i) Bonds are Special, Limited Obligations of the City. The Bonds are
special, limited obligations of the City payable solely from and secured solely by the
Pledged Revenues and the other sources specified in this Ordinance and shall not be
deemed or construed as creating a debt or indebtedness of the City within the meaning of
any constitutional or statutory limitation.
Section 13. Conditions to Issuance of Additional Parity Bonds. So long as any Bonds
may be Outstanding:
(a) Limitations Upon Issuance of Additional Parity ~d'nds. Nothing in this
Ordinance shalI be construed to prevent the issuance by the City of Additional Parity
Bonds (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 Series 2001 Bonds, the Series 2005A Bonds,
the Series 2005B Bonds, and any previously issued Additional Parity Bonds; provided,
however, that before any such Additional Parity Bonds are authorized or actually issued,
the following conditions shall be satisfied:
(i) The City is then current in all payments required to have been
accumulated in the Bond Fund, the Series 2005A Reserve Fund, the Series 2005B
Reserve Fund, the Series 2001 Reserve Fund and any reserve fund maintained
with respect to any then Outstanding series of Additional Parity Bonds, and there
is not otherwise an Event of Default as defined in Section 23 hereof.
(ii) The revenues derived fi'om the entire Pledged Revenues for the
twelve consecutive calendar months immediately preceding the month of issuance
of such Additional Parity Bonds shall have been sufficient to pay an amount equal
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to 150% of the combined maximum annual principal and interest requirements (to
and including the final maturity of each then-Outstanding series of Bonds) on the
then-Outstanding Bonds and on the Additional Parity Bonds then proposed to be
issued (including any reserve requirements therefor).
(iii) The ordinance authorizing such Additional Parity Bonds shall
i-equire that a reserve fund for Additional Parity Bonds be created in an amount
equal to the Reserve Fund Requirement for such Additional Parity Bonds. The
City may, however, comply with the Reserve Fund Requirement through a
Reserve Fund Contract that meets the standards established in Section 16 hereof.
(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 determining the right of the City to authorize,
issue, sell and deliver Additional Parity 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 permit the City to issue additional obligations (including refunding
obligations) payable from the Pledged Revenues (or any designated part thereof) having a
lien thereon prior and superior to the lien of the Bonds.
(e) Refunding Obligations. The provision~ of this Section are subject to the
following exception: ...
(i) Privilege of Issuing Refunding Obligations. If at any time after
any of the Bonds, or any part thereof, shall have been issued and remain
Outstanding, the City shall find it desirable to refund all or any part of the
Outstanding Bonds, such Bonds, or any part thereof, may be refunded (but only
with the consent of the Owner or Owners thereof, unless such Bonds, at the time
of their required surrender for payment, shall then mature, or shall then be subject
to redemption prior to maturity).
(ii) Limitations Upon Issuance of Parity Refimding Obligations. No
refunding obligations payable from the Pledged Revenues (or any designated part
thereof) shall be issued on a parity with the Series 2001 Bonds, the Series 2005A
Bonds, and Series 2005B Bonds, unless:
(A) the lien on such Pledged Revenues of the outstanding
obligations so refunded is on a parity with the lien thereon of the Series
2001 Bonds, the Series 2005A Bonds, and the Series 2005B Bonds; or
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(B) the refunding obligations are issued in compliance with
subsection (a) of this Section.
(iii) £artial 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.
(iv) 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 impairment of any contractual obligations
imposed upon the City by this Ordinance..
Section 14. Application of Pledged Revenues. So .long as any of the Bonds shall
remain Outstanding, all Pledged Revenues, as they are received, shall be transferred fi.om the
Parks and Open Space Fund or any other funds or accounts to which they are required to be
deposited by the Section 23-32-060(c)(7) of the City's Municipal Code 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 p~rposes and in the following order of priority:
(a) FIRST, there shall be credited to the Bond Fund 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, on a pro rata basis, to the Series 2005A
Reserve Fund, the Series 2005B Reserve Fund, the Series 2001 Reserve Fund and any
reserve fund or funds created with respect to any series of Additional Parity Bonds an
amount, if any, necessary to increase the amount on deposit in each of such funds to the
Reserve Fund Requirement for such fund or to repay the provider of a Reserve Fund
Contra~t for a drawing thereon. No payment need be made into any'such fund so long as
the moneys therein shall equal not less than the Reserve Fund Requirement for such fund
and no draw has been made on any Reserve Fund Contract deposited in such fund. The
Reserve Fund Requirement for each such fund shall be accumulated and maintained in
each such 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 applicable series of the Bonds.
(c) THIRD, there shall be credited to the Parks and Open Space Fund or,
subject to any limitation in the Charter, the Parks and Open Space Sales Tax Ordinances
and the City's Municipal Code, used in any lawful manner by the City, any amounts
remaining after making the deposits required by subsections (a) and (b) of this Section.
(d) Notwithstanding subsections (a) and (b) of this Section, no payment need
be made pursuant to subsection (a) or (b) of this Section into either the Bond Fund, the
Series 2005A Reserve Fund, the Series 2005B Reserve Fund, the Series 2001 Reserve
Fund or any reserve fund created for a series of Additional Parity Bonds if the on deposit
in such funds total a sum at least equal to the entire amount of the Outstanding Bonds as
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to any principal, premium, if any, and interest requirements, to their respective maturities,
or to any redemption date on which the City shall have exercised its option to redeem ail
or a portion of the Bonds then Outstanding and thereafter maturing, and both accrued and
not accrued, in which case moneys in such 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 such funds may, subject to any
limitations in the Parks and Open Space Sales Tax Ordinances or the City's Municipal
Code, be used in any lawful manner by the City.
Section 15. Bond Fund. Moneys in the Bond Fu~d shall be used solely for the purpose
of paying the principal of, premium, if any, and interest on the Bonds.
Section 16. Series 2005B Reserve Fund.
(a) Use of Moneys in Series 2005B Reserve Fund. If on any date specified
in Section 18 hereof, the City shall have for any reason failed to pay to the Paying Agent
the full amount required to pay the next installment of principal of or interest on the
Series 2005B Bonds, then an amount equal to the amount needed to bring the amount in
the Bond Fund to the full amount so required shall be immediately paid, pro rata, to the
Paying Agent from: (i) the Series 2005B Reserve Fund with respect to the portion of the
deficiency corresponding to the amounts due on the Series 2005B Bonds; (ii) the Series
2005A Reserve Fund with respect to the portion of the deficiency corresponding to the
amounts due on the Series 2005A Bonds; (iii) the Series 2001 Reserve Fund with respect
to the portion of the deficiency corresponding to the amounts due on the Series 2001
Bonds; and (iv) any reserve fund or funds created with respect to any series of Additional
Parity Bonds with respect to the portion of the deficiency corresponding to the amounts
due on such series of Additional Parity Bonds. The money so used shall be replaced in
the Series 2005A Reserve Fund, the Series 2005B Reserve Fund, the Series 2001 Reserve
Fund and any such other reserve fund or funds on a pro rata basis from the first Pledged
Revenues thereafter received not required to be otherwise applied hereunder, but
excluding any payments required for any subordinate obligations. If in any period the
City shall for any reason fail to pay into the Series 2005A Reserve Fund, the Series
2005B Reserve Fund, the Series 2001 Reserve fund or any such other reserve fund or
· funds 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 deposited
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. Moneys in the Series 2005A Reserve Fund, the Series 2005B Reserve Fund,
the Series 2001 Reserve Fund and any such other reserve fund shall be used solely for the
purpose of paying the principal of, premium, if any, and interest on the series of Bonds
with respect to which such fund is maintained.
(b) Use of Moneys in Excess 'of Reserve Fund Requirement Any moneys at
any time in excess of the Reserve Fund Requirement in the Series 2005A Reserve Fund,
the Series 2005B Reserve Fund, the Series 2001 Reserve Fund or any reserve fund or
funds maintained with respect to any series of Additional Parity Bonds may be
withdrawn therefrom and, subject to any limitation in the Charter, the Parks and Open
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Space Sales Tax Ordinances and the City's Municipal Code, used in any lawful manner
by the City.
(c) Reserve Fund Contract.
(i) The City may substitute for the cash or P. ermitted Investments in
any Reserve Fund a surety bond issued by an insurance company rated in the
highest rating category by S&P and Moody's (a "Reserve Fund Contract"), so
long as the amount on deposit in any Reserve Fund after such substitution is at
least equal to the Reserve Fund Requirement applicable to such Reserve Fund. In
the event the'City shall substitute a Reserve Fund Contract for the cash or
Permitted Investments in any Reserve Fund, the amount on deposit in any
Reserve Fund shall be that amount available to be drawn or otherwise paid
pursuant to such surety bond at the time of calculation, lfany Reserve Fund shall
include both cash or Permitted Investments and a Reserve Fund Contract, the cash
and Permitted Investments shall be used before any demand is made on any
Reserve Fund Contract. Notwithstanding the foregoing, prior to such substitution,
(A) the City must receive an opinion of nationally recognized municipal bond
counsel to the effect that such substitution and the intended use by the City of the
cash or Permitted Investments to be released from any Reserve Fund will not
adversely affect the exclusion from gross income for federal income tax purposes
of interest on the Bonds to which such Reserve Fund applies and (B) other than
the Series 2005B Surety Bond provided by the Bond Insurer, the prior written
consent of the Bond Insurer shall be a condition precedent to the deposit of any
Reserve Fund Contract or Permitted Investments in lieu of a cash deposit into the
Series 2005B Reserve Fund.
(ii) The Series 2005B Surety Bond is hereby recognized to be a
Reserve Fund Contract described in paragraph (i) of this sgbsection (c). Upon
issuance thereof by the Bond Insurer, the Series 2005B Surety Bond shall be
deposited in the Series 2005B Reserve Fund and shall be used in the manner
described in paragraph (i) of this subsection (c).
(d) Valaation of Deposits. Cash shall satisfy the Reserve Fund Requirement
for the Series 2005B Reserve Fund by the amount of cash on deposit. Permitted
Investments shall satisfy the Reserve Fund Requirement by the value of such
investments. The value of each Permitted Investment on deposit in the Series 2005A
Reserve Fund, the Series 2005B Reserve Fund, the Series 2001 Reserve Fund and any
reserve fund or funds created with respect to any series of Additional Parity Bonds shall
be (i) its purchase price from the date of purchase until the first date thereafter on which
the Reserve Fund Requirement is calculated pursuant to subsection (e) of this Section and
(ii) following each date on which the Reserve Fund Requirement is calculated pursuant to
subsection (e) of this Section until the next date on which the Reserve Fund Requirement
is so calculated, its fair market value determined as of such calculation date. A Reserve
Fund Contract shall smisfy the Reserve Fund Requirement by the amount payable to the
City pursuant to such contract.
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(e) Calculation of Reserve Fund Requirement and Transfers Resulting
from Calculation. The Reserve Fund Requirement for each of the Series 2005A Reserve
Fund, the Series 2005B Reserve Fund, the Series 200I Reserve Fund and any reserve
fund or funds created with respect to any series of Additional Parity Bonds shall be
calculated as of (i) the date of issuance of the Series 2005B Bonds, (ii) the date of
issuance of each series of Additional Parity Bonds and (iii)each November 1,
commencing November 1, 2005. If, on any calculation date, the amount on deposit in
any of such funds is less than the Reserve Fund Requirement for such fund, Pledged
Revenues shall be deposited into such fund as provided in Section 14 hereof to the extent
necessary to satisfy the Reserve Fund Requirement in cash or by the purchase of
Permitted investments or a Reserve Fund Contract.
Section 17. Rebate Fund. The City shall deposit earnings from the investment of
proceeds of the Series 2005B Bonds, earnings from the investment of moneys on deposit in the
Bond Fund, the Series 2005B Reserve Fund and the Revenue Fund or other legally available
moneys in the Rebate Fund in the amounts and at the times provided in the Letter of Instructions.
Earnings from the investment of moneys on deposit in the Rebate Fund shall be retained in the
Rebate Fund. Moneys on deposit in the Rebate Fund shall be used as provided in the Letter of
Instructions.
Section 18. Payments to and by Paying Agent.
(a) Payments to Paying Agent. No later than the Business Day immediately
preceding each Interest Payment Date, the City shall deliver moneys to the Paying Agent
in an amount sufficient to pay the principal of, premium, if any-, and interest on the Bonds
on such date from the Sources and in the priority order set forfla below:
First, from moneys on deposit in the Bond Fund; and
Second, if and to the extent the moneys on deposit in the .Bond Fund are
not sufficient to pay the principal of, premium, if any, or interest due on the
· Bonds on such date, from the Series 2005A Reserve Fund, the Series 2005B
Reserve Fund, the Series 2001 Reserve Fund and any reserve fund maintained
with respect to any series of AdditionaI Parity Bonds, on a pro rata basis, pursuant
to Section 16 hereof.
(b) Payments by Paying Agent. The Paying Agent shall use the moneys
delivered to it pursuant to subsection (a) of this Section to pay the principal of, premium,
if any, and interest on the Bonds when due.
Section 19. 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 Sections 16 and 21 of this Ordinance:
(a) Investment of Money. Any moneys in any such fund and account may be
invested in Permitted Investments. 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
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or acanunt. Interest accruing on the investment of any moneys in the Series 2005B
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 c3edited to
the fund or account from which it is derived. The 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 20. Additional General Covenants. In addition to the other covenants of the
City contained herein, the City hereby further covenants for the benefit of Owners of the Series
2005B Bonds that:
(a) Payment of Series 2005B Bonds. The City will promptly pay or cause to
be paid the principal of, premium, if any, and interest on the Series~2005B Bonds, at the
place, on the dates and in the manner provided in this Ordinance, according to the true
intent and meaning of this Ordinance.
(b) No Repeal or Modification of Parks and Open Space Sales Tax
· Ordinances orApplicable Sections of City's Municipal Code. The City shall not repeal
the Parks and Open Space Sales Tax Ordinances or adopt any i~odification of such
ordinances or any provisions of the City's Municipal Code which would impair the
Pledged Revenues.·
(c) Duty to Impose Open Space Sales Tax. If the Parks and Open Space
Sales Tax Ordinances, the provisions of the City's Municipal Code referred to in
subsection (b) of this Section or any modifying or supplemental instrument thereto not
contravening the limitations of subsection (b) of this Section, or any part of such
ordinances or such portions of the City's Municipal Code, shall ever be held to be invalid
or unenforceable or shall otherwise 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
otherwise been produced under the terms of such ordinances and such portions of the
City's Municipal Code.
(d) Impairment of Contract. The City agrees that any law, ordinance or
resolution of the City in any manner affecting the Pledged Revenues or the Series 2005B
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Bonds, shall not be repealed or otherwise directly or indirectly modified in such a manner
as to impair any Series 2005B Bonds Outstanding, unless in the case of this Ordinance
the required consent of the Owners of the then Outstanding Series 2005B Bonds is
obtained pursuant to Section 25 of this Ordinance.
(e) Records. So long as any of the Series 2005B 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 Owners of any Bonds shall have the right at .any
reasonable time to inspect such records and accounts.
(f) Audits. The City further agrees that it will, within 120 days follo~ving the
close of each fiscal year, cause an audit of such books and accounts to be made by an
indei~endent 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
Owner of any Bond at his request, and without request to the Original Purchaser. Any
such 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.
(g) 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 Series
2005B 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 b~ 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 Series 2005B Bonds then
Outstanding, and of matured interest on such Series 2005B Bonds, the payment of which
has not been extended ....
(h) Performing 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.
(i) Other Liens. Other than that granted for the Bonds herein, there are
presently no other liens or encumbrances of any nature whatsoever on or against the
Pledged Revenues.
(j) City's Existence. The City will maintain its corporate identity and
existence so long as any of the Series 2005 Bonds remain Outstanding, unless another
body corporate and politic by operation of taw succeeds to the duties, privileges, powers,
liabilities, disabilities, immunities and rights of the City and 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 Owner of any Outstanding Series
2005B Bond.
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Section 21. Covenants Regarding Exclusion of Interest on Series 2005B Bonds from
Gross Income for Federal Income Tax Purposes. For purposes of ensuring that the interest on
the Series 2005B Bonds is and remains excluded from gross income for federal income tax
purposes, the City hereby covenants that:
(a) Prohibited Actions. The City will not use or permit the use of any
proceeds of the Series 2005B 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 Series 2005B
Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code, or would
otherwise canse the interest on any Series 2005B Bond to be includible in gross income
for federal income tax purposes.
(b) Affirmative Actions. The City will at all times do and perform all acts
permirted by law that are necessary in order to assure that interest paid by the City on the
Series 2005B Bonds shall not' be includible in gross income for federal income tax
purposes under the Code or any other valid provision of law. In particular, but without
limitation, the City represents, warrants and covenants to comply with the following rules
unless it receives an opinion of Bond Counsel stating that such compliance is not
necessary: ~i) gross proceeds of the Series 2005B Bonds will not be used in a manner that
will cause the Series 2005B Bonds to be considered "private activity bonds" within the
meaning of the Code; (ii) the Series 2005B Bonds are not and will not become directly or
indirectly "federally guaranteed"; and (iii)the City will timely file Internal Revenue
Form 8038-G which shall contain the information required to be filed pursuant to
Section 149(e) of the Code.
(c) Letter of Instructions. The City will comply with the Letter of
Instructions, including but not limited by the provisions of the Letter of Instructlons
regarding the application and investment of Series 2005B. Bond proceeds, the
calculations, the deposits, the disbursements, the investments and the retention of records
described in the Letter of Instructions; provided that, in the event the original Letter of
instructions is superseded or amended by a new Letter of Instructions drafted by, and
accompanied by an opinion of, Bond Counsel stating that the use of the new Letter of
Instructions will not cause the interest on the Series 2005B Bonds to become includible in
gross income for federal income tax purposes, the City will thereafter comply with the
new Letter of Instructions.
Section 22~ Defeasance. Any Series 2005B Bond shall not be deemed to be Outstanding
hereunder if it shall have been paid and cancelled or if cash or Defeasance Securities shall have
been deposited in trust for the payment thereof (whether upon or prior to the maturity of such
Series 2005B Bond, but if such Series 2005B Bond is to be paid prior to maturity, the City shall
~ave given the Paying Agent irrevocable directions to give notice of redemption as required by
this Ordinance, or such notice shall have been given in accordance with this Ordinance). In
computing the amount of the deposit described above, the City may include interest to be earned
on the Defeasance Securities. If less than all the Series 2005B Bonds are to be defeased pursuant
to this Section, the City, in its' sole discretion, may select which of the Series 2005B Bonds shall
be defeased.
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Notwithstanding anything in this Bond Ordinance to the contrary, in the event that the
principal and/or interest due on the Series 2005B Bonds shall be paid by the Bond Insurer
pursuant to the Bond Insurance Policy, the Series 2005B Bonds shall remain Outstanding for all
purposes, not be defeased or otherwise satisfied and not be considered paid by the City, and the
assignment and pledge of the Pledged Revenues and all covenants, a~eements and other
obligations of the City to the Owners shall continue to exist and shall run to the benefit of the
Bond Insurer, and the Bond Insurer shall be subrogated to the rights of such Owners.
Section 23. Events of Default. If any of ~he follo~ving 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 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 performance of the City's covenants or
conditions, a~eements and provisions as set forth in this Ordinance, other than those
delineated in paragraphs (a) and Co) of this Section, and such default has continued for 30
days after written notice specifying the default and requiring the same to be remedied has
been given to the City by the Owners of 25% in principal amount of the Series 2005B
Bonds then Outstanding, which cure period shah not be extended for more than 60 days,
cumulatively, without the prior written consent of the Bond Insurer; or
(d) the City shall file a petition for bankruptcy or shall be declared insolvent
by a court of competent jurisdiction.
Section 24. Remedies for and Duties Upon Events of DefaultS"
(a) Remedies for Events of Default. Upon the happening and continuance of
any of the Events of Default as provided in Section 23 of this Ordinance, then and in
every case, the Owner or Owners of not less than 25% in principal amount of the Series
2005B 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 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 Owner or 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 violation of any right 6f any 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 at law or in equity .shall be instituted, had and maintained
for the equal benefit of ail Owners of the Series 2005B Bonds then Outstanding. The
failure of any such Owner so to proceed shall not relieve the City or any of its officers,
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agents or employees of any liability for failure to perform any duty. Each right or
privilege of any such 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
Owner shall not be deemed a waiver of any other right or privilege thereof.
(b) Duties Upon Events of Default. Upon the happening of any of the Events
of Default as provided in Section 23 of this Ordinance, the City will do and perform all
proper acts on behalf of and for the Owners of the Series 2005B Bonds to protect and
preserve the security created for the payment of their Serles.2005B Bonds and to insure
the payment of the principal of, premium, if any, and interest on Series 2005B 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 Series 2005B Bonds, as to any
principal, premium, if any, and interest are Outstanding and unpaid, shall be paid into the
Bond Fund, and used for the purposes herein provided. In the event the City fails or
refuses to proceed as provided in this Section, the Owner or Ownem of not less than 25%
in principal amount of the Series 2005B Bonds then Outstanding, after demand in
writing, may proceed to protect and enforce the rights of the Owners as herein provided.
(c) Bond Insurer Third Party Beneficiary; Right to Control Remedies. To
the extent that this Ordinance confers upon or gives or grants to the Owners any right,
remedy or claim under or by reason of this Ordinance, the Bond Insurer is hereby
explicitly recognized as being a third party beneficiary hereunder and may enforce any
such right, remedy or claim conferred, given or granted hereunder. Upon the occurrence
and continuance of an Event of Default, so long as it is not in default of its obligations
under the Bond Insurance Policy, the Bond Insurer shall be entitled to control and direct
the enforcement of all rights and remedies granted to the Owners under this Ordinance
and pursuant to State law.
(d) Acceleration Not a Remedy. Acceleration shall not b.e a r~medy upon the
occurrence and continuance of an Event of Default hereunder.
Section 25. Amendment of Ordinance.
(a) Consent of Owners. This Ordinance may be amended or supplemented by
ordinance adopted by the City Council in accordance with law, without receipt by the
City of additional considerations and without the consent of the Owners, to make any
amendment or supplement to this Ordinance which, in the opinion of Bond Counsel, is
not to the material prejudice of the Owners. This Ordinance may be amended or
supplemented by ordinance adopted by the City Council in accordance with law, without
receipt by the City of any additional consideration, but with the written consent of the
Owners of 66-2/3% of the Series 2005B 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 Owners of all
Outstanding Bonds which will be adversely affected, shall have the effect of permitting:
(i) an extension of the maturity of any Bond; or
Kutak Rock - Firm Libra~y4835-2340-S896.1 26
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(ii) a reduction in the principal amount of any Bond, the rate of interest
thereon, or the premium payable thereon; or
(iii) 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
(iv) a reduction of the principal amount of Bonds required for consent
to such amendatory or supplemental ordinance; or
(v) the establishment of priorities as between Bonds issued and
Outstanding under the provisions of this Ordinance; or
(vi) the modification of or otherwise affecting the rights of the Owners
of less than all of any series of Bonds then Outstanding.
(b) Consent of the Bond Insurer in Addition to Consent of Owners. The
Bond· Insurer's consent shall be required in addition to the consent of Owners, when
required, for the following purposes: (i) execution and delivery of any supplemental
Ordinance or any amendment, supplement or change to or modification of the Ordinance;
(ii) removal of the Paying Agent and selection and appointment of a successor; and (iii)
initiation or approval of any action not described in (a) above which requires the consent
of Owners.
Section 26. Appointment and Duties of Paying Agent.
(a) The Paying Agent identified in Section 1 hereof is hereby appointed as
paying agent, registrar and authenticating agent for the Series 2005B Bonds unless and
until the City or the Bond Insurer removes it as such and appoints a successor Paying
Agent, in which event such successor shall, subject to subsection (b) of this Section,
automatically succeed to the duties of the Paying Agent heredri~er and its predecessor
shall immediately turn over all its records regarding the Series 2005B Bonds to such
successor. The Paying Agent, by accepting its duties as such, agrees to perform all duties
and to take all actions assigned to it hereunder in accordance with the terms hereof.
(b) Any successor Paying Agent appointed as such pursuant to subsection (a)
of this Section must: (i) be a trust company or bank in good standing located in or
incorporated under the laws of the State; (ii) be duly authorized to exercise trust powers
and subject to examination by federal or State authority; (iii) have a capitaI and surplus at
the time of such appointment of not less than $75,000,000; and (iv) be acceptable to the
Bond Insurer.
· (c) Notwithstanding any other provision of this Ordinance, no removal,
resignation or termination of the Paying Agent shall take effect until a successor,
acceptable to the Bond Insurer~ shall be appointed.
Section 27. Authorization of the Bond In.surance Policy. Financial Security
Assurance Inc. has submitted a bid to issue the Bond Insurance Policy. In the event that the
Finance Director determines, based in part upon information provided by the Underwriter, that
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the premium bid for issuance of the Bond Insurance Policy is less then the interest cost savings
to be realized by the City as a result of the issuance of the Bond Insurance Policy, the City
Council hereby delegates to the Finance Dkector the authority to execute the Commitment with
the lowest bidder. The officers of the City are also hereby authorized and dkected to take all
actions necessary to cause the Bond Insurer to issue the Bond Insurance Policy in accordance
with the Commitment, including without limitation, payment of the premium due in connection
therewith and entering into any authorizing agreement. The execution of the Commitment by the
Finance Director or appropriate officer of the City is hereby ratified and approved.
Section 28. Bond Insurance Provisions.
(a) Covenant Default Grace Period Limitation. No grace period for a covenant
default hereunder shall exceed 30 days or be extended for more than 60 days, without the prior
written consent of the Bond Insurer. No grace period shall be permitted for payment defaults.
(b) Bond Insurer Sole Holder. The Bond Insurer shall be deemed to be the sole
holder of the Series 2005B Bonds for the purpose of exercising any voting right or priviJege or
giving any consent or direction or taking any other action that the Owners are entitled to take
pursuant to the provisions of this Ordinance pertaining to (i) defaults and remedies and (ii) the
duties and obligations of the Paying Agent. Remedies granted to the Owners expressly include
mandamus pursuant to Section 24(a) of this Ordinance.
(c) Bond Insurer Third Party Beneficiary. To the extent that this Ordinance confers
upon or gives or grants ~o the Owners any right, remedy or claim under or by reason of this
Ordinance, the Bond Insurer is hereby explicitly recognized as being a third party beneficiary
hereunder and may enforce any such right, remedy or claim conferred, given or granted
hereunder. Upon the occurrence and continuance of an Event of Default, so long as it is not in
default of its obligations under the Bond Insurance Policy, the Bond Insurer shall be entitled to
control and direct the enforcement of all rights and remedies granted to. the Owners under this
Ordinance and pursuant to State law.
(d) Amendments Require Bond Insurer Consent. Any amendment, supplement,
modification to, or waiver of, this Ordinance or any other transaction document including any
underlying security agreement (each a "Related Document"), that requires the consent of the
Owners or adversely affects the rights and interests of the Bond Insurer shall be subject to the
prior written consent of the Bond Insurer.
(e) Use of Unexpended Bond Proceeds Upon Event of Default. .Unless the Bond
Insurer otherwise directs, upon the occurrence and continuance of an Event of Default or an
event which with notice or lapse of time would constitute an Event of Default, amounts
representing proceeds of the Bonds then on deposit in the City!s Parks and Open Space Fund
shall be applied solely to the'payment of debt service or redemption price of the Series 2005B
Bonds.
(f) Related Documents. Any amendment, supplement, modification to, or waiver of,
this Ordinance or any other transaction document including any underlying security agreement
(each a "Related Document"), that requires the consent of the Owners or adversely affects the
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rights and interests of the Bond Insurer shall be subject to the prior written consent of the Bond
Insurer.
(g) Exercise of Contractual Rights. The rights granted to the Bond Insurer under
this Ordinance or any other Related Document to request, consent to or direct any action are
rights granted to the Bond Insurer in consideration of its issuance of the Bond Insurance Policy.
Any exercise by the Bond Insurer of such fights is merely an exercise of the Bond Insurer's
contra&ual rights and shall not be construed or deemed to be taken for the benefit, oron behalf,
of the Owners and such action does not evidence any position of the Bond Insurer, affirmative or
negative, as to whether the consent of the Owners or any other person is required in addition to
the consent of the Bond Insurer.
(h) Defeasance. Only (1) cash, (2) non callable direct obligations of the United
States of America ("Treasuries"), (3) evidences of ownership of proportionate interests in ~uture
interest and principal payments on Treasuries held by a bank or trust company as custodian,
under which the owner ofthe investment is the real party in interest and has the right to proceed
directly and individually against the obligor and the underlying Treasuries are not available to
any person claiming through the custodian or to whom the custodian may be obligated, (4)
subject to the prior written consent of the Bond Insurer, pre-refunded municipal obligations rated
"AAA" and "Aaa" by S&P and Moody's, respectively, or (5) subject to the prior written consent
of the Bond Insurer, securities eligible for "AAA" defeasance under then existing criteria of S &
P or any combination thereof, shall be used to effect defeasance of the Series 2005B Bonds
unless the Bond Insurer otherwise approves.
(i) To accomplish defeasance, the City shall Cause to be delivered (i) a
report of an independent firm of nationally recognized certified public
accountants or such other accountant as shall be acceptable to the Bond Insurer
("Accountant") verifying the sufficiency of the escrow established to pay the
Series 2005B Bonds in full on the maturity or redemption date ("Verification"),
(ii) an Escrow Deposit Agreement (which shall be acceptable in form and
substance to the Bond Insurer), (iii) an opinion of nationally recognized bond
counsel to the effect that the Series 2005B Bonds are no longer "Outstanding"
under this Ordinance and (iv) a certificate of discharge of the Paying Agent with
respect to the Series 2005B Bonds; each Verification and defeasance opinion shall
be acceptable in form and substance, and addressed, to the City, Paying Agent and
Bond Insurer. The Bond Insurer shall be provided with £mal drafts of the above
referenced documentation not less than five business days prior to the funding of
the escrow.
(ii) Bonds shall be deemed "Outstanding" under this Ordinance unless
and until they are in fact paid and retired or the above criteria are met.
(iii) Amounts paid by the Bond Insurer under the Bond Insurance
Policy shall not be deemed paid for purposes of this Ordinance and the Series
2005B Bonds relating to such payments shall remain Outstanding and continue to
be due and owing until paid by the City in accordance with this Ordinance. This
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(i)
Insurer.
Ordinance shall not be discharged unless all amounts due or to become due to the
Bond Insurer have been paid in full or duly provided for.
Claims Upon the Bond Insurance Policy and Payments by and to the Bond
(i) If, on the third Business Day prior to the related scheduled interest
payment date or principal payment date (each, a "Paynient Date") there is not on
deposit with the Paying Agent, alfer making all transfers and deposits required
under this Ordinance, moneys sufficient to pay the principal of and interest on the
Series 2005B Bonds due on such Payment Date, the Paying Agent shall give
notice to the Bond Insurer and to its designated agent (if any) (the "Bond Insurer's
Fiscal Agent") by telephone or telecopy of the amount of such deficiency by
12:00 noon, New York City time, on such Business Day. If, on .the second
Business Day prior to the related Payment Date, there continues to be a deficiency
in the amount available to pay the principal of and interest on the Series 2005B
Bonds due on such Payment Date, the Paying Agent shall make a claim under the
Bond Insurance Policy and give notice to the Bond Insurer and the Bond Insurer's
Fiscal Agent (if any) by telephone of the amount of such deficiency, and the
allocation of such deficiency between the mount required to pay interest on the
Series 2005B Bonds and the amount required to pay principal of the Series 2005B
Bonds, confirmed in writing to the Bond Insurer and the Bond Insurer's Fiscal
Agent by 12:00 noon, New York City time, on such second Business Day by
filling in the form of Notice of Claim and Certificate delivered with the Bond
Insurance Policy.
(ii) The Paying Agent shall designate any portion of pa35ment of
. principal on Series 2005B Bonds paid by the Bond Insurer, whether by virtue of
mandatory sinking fund redemption, maturity or other a&va.ncement of maturity,
on its books as a reduction in the principal amount of Bonds'registered to the then
current Owner, whether DTC or its nominee or otherwise, and shall issue a
replacement Series 2005B Bond to the Bond Insurer, registered in the name of
Financial Security Assurance Inc., in a principal amount equal to the amount of
principal so paid (without regard to authorized denominations); provided that the
Paying Agent's failure to so designate any payment or issue any replacement
Series 2005B Bond shall have no effect on the amount of principal or interest
payable by the City on any Series 2005B Bond or the subrogation rights of the
Bond insurer.
(iii) The Paying Agent shall keep a complete and accurate record of all
funds deposited by the Bond Insurer into the Policy Payments Account (defined
below) and the allocation of such funds to payment of interest on and principal of
any Series 2005B Bond. The Bond Insurer shall have the right to inspect such
records at reasonable times upon reasonable notice to the Paying Agent.
(iv) Upon payment of a claim under the Bond Insurance Policy, the
Paying Agent shall establish a separate special purpose trust account for the
Kutak Rock - Firm I.ibraey4835-2340-8896. I 3 0
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benefit of the Owners referred to herein as the "Policy Payments Accoun? and
over which the Paying Agent shall have exclusive control and sole right of
withdrawal. The Paying Agent shail receive any amount paid under the Bond
Insurance Policy in trust on behalf of the Owners and shall deposit any such
amount in the Policy Payments Account and distribute such amount only for
purposes of making the payments for which a claim was made. Such amounts
shall be disbursed by the Paying Agent to the Owners in the same manner as
principal and interest payments are to be made with respect to the Series 2005B
Bonds under the sections hereof regarding payment of the Series 2005B Bonds. It
shall not be necessary for such payments to be made by checks or wire transfers
separate from the check or wire transfer used to pay debt service with other funds
available to make such payments. Notwith§tanding anything herein to the
Contrary, the City agrees to pay to the Bond Insurer (i) a sum equal to the total of
all amounts paid by the Bond Insurer under the Bond Insurance Policy (the "Bond
Insurer Advances"); and (ii) interest on such Bond Insurer Advances from the
date paid by the Bond Insurer until payment thereof in full, payable to the Bond
Insurer at the Late Payment Rate per annum. "Late Payment Rate" means the
lesser of (a) the greater of (i) the per annum rate of interest, publicly announced
from time to time by JPMorgan Chase Bank at its principal office in the City of
New York, as its prime or base lending rate (any change in such rate of interest to
be effective on the date such change is announced by JPMorgan Chase Bank) plus
3%, and (ii) the then applicable highest rate of interest on the Series 2005B Bonds
and (b) the maximum rate permissible under applicable usury or similar laws
.limiting interest rates. The Late Payment Rate shall be computed on the basis of
the actual number of days elapsed over a year of 360 days.
(v) Funds held in the Policy Payments Account shall not be invested
by the Paying Agent and may not be applied to satisfy any costs, expenses or
liabilities of the Paying Agent. Any funds remaining in the Policy Payments
Account following a Bond payment date shall promptly be remitted to the Bond
Insurer.
(vi) The Bond Insurer shall, to the extent it makes any payment 6f
principal of or interest on the Series 2005B Bonds, become subrogated to the
rights of the recipients of such payments in accordance with the terms of the Bond
Insurance Policy. Each obligation of the City to the Bond Insurer under the
Related Documents shall survive discharge or termination of such Related
Documents.
(vii) The City shall pay or reimburse the Bond Insurer any and all
charges, fees, costs and expenses, that the Bond Insurer may reasonably pay or
incur in connection with (i) the administration, enforcement, defense or
preservation of any rights or security in any Related Document; (ii) the pursnit of
any remedies under this Ordinance or any other Related Document or otherwise
afforded by law or equity, (iii) any amendment, waiver or other action with
respect to, or related to, this Ordinance or any other Related Document whether or
not executed or completed, or (iv) any litigation or other dispute in connection
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with this Ordinance or any other Related Document or the transactions
contemplated thereby, other than costs resulting from the failure of the Bond
Insurer to honor its obligations under the Bond Insurance Policy. The Bond
Insurer reserves the right to charge a reasonable fee as a condition to executing
any amendment, waiver or consent proposed in respect of this Ordinance or any
other Related Document.
(viii) After payment of reasonable expenses of the Paying Agent, [he
application of funds' realized upon default shall be applied to the payment of
expenses of the City or rebate only after the payment of past due and current debt
service on the Series 2005B Bonds and amounts required to restore the Series
2005B Reserve Fund to the Reserve Fund Requirement.
(ix) The Bond Insurer shall be entitled to pay principal or interest on
the Series 2005B Bonds that shall become Due for Payment but shall be unpaid
by reason of Nonpayment by the City (as such terms are defined in the Bond
Insurance Policy) and any amounts due on the Series 2005B Bonds as a result of
acceleration of the maturity thereof in accordance with this Ordinance, whether or
not the Bond Insurer has received a Notice of Nonpayment (as such terms are
defined in the Bond Insurance Policy) or a claim upon the Bond Insurance Policy.
CJ) Notice. The notice address of the Bond Insurer is: Financial Security
Assurance Inc., 31 West 52nd Street, New York, New York 10019, Attention: Managing
Director - Surveillance, Re: Policy No. ., Telephone: (212) 826-0100;
Telecopier: (212) 339-3556. In each case in which notice or other communication refers
to an Event of Default, then a copy of such notice or other communication shall also be
sent to the attention of the General Counsel and shall be marked to indicate "URGENT
MATERIAL ENCLOSED."
(k) Information to be Provided by Bond Insurer. Th~ gond Insurer shall be
provided with the following information by the City or Paying Agent, as the case mayl be:
(i) Annual audited financial statements within 150 days after the end
of the City's fiscal year (together ~vith a certification of the City that it is not
aware of any default or Event of Defauk under this Ordinance), and the City's
annual budget within 30 days after the approval thereof together with such other
information, data or reports as the Bond Insurer shall reasonably request from
time to time;
(ii) Notice of any draw upon the Series 2005B Reserve Fund within
two Business Days after knowledge thereof other than (i) withdrawals of amounts
in excess of the Debt Service Reserve Requirement and .(ii) withdrawals in
connection with a refunding of Bonds;
(iii) Notice of any default known to the Paying Agent or City within
five Business Days after knowledge thereof;
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(iv) Prior notice of the advance refunding or redemption of any.of the
Series 2005B Bonds, including the principa! amount, maturities and CUSIP
numbers thereof;
(v) Notice of the resignation or removal of the Paying Agent and Bond
Registrar and the appointment of, and acceptance of duties by, any successor
thereto;
(vi) Notice of the commencement of any proceeding by or against the
City or Obligor commenced under the United States Bankruptcy Code or any
other applicable bankruptcy, insolvency, receivership, rehabilitation or similar'
law (an "Insolvency Proceeding");
(vii) Notice of the making of any claim in 6onnection with any
Insolvency Proceeding seeking the avoidance as a preferential transfer of any
payment of principal of, or interest on, the Series 2005B Bonds;
(viii) A full original transcript of all proceedings' relating to the
execution of any amendment, supplement, or waiver to the Related Documents;
and
(ix) All repons, notices and correspondence to be delivered to Owners
under the terms of the Related Documents.
(1) .Notwithstanding satisfaction of the other conditions to the issuance of Additional
Bonds set forth in this Ordinance, no such issuance may occur (I) if an Event o£ Default (or any
event which, once all notice or grace periods have passed, would constitute an Event of Default)
exists unless such default shall be cured upon such issUance and (2) unless the Series 2005B
Reserve Fund is fully funded at the Debt Service Reserve requirement (including the proposed
issue) upon the issuance of such Additional Bonds, in either case unle~§'otherwise permitted by
the Bond Insurer.
(m) In determining whether any amendment, consent or other action to be taken, or
any failure to take action, under this Ordinance would adversely affect the security for the Series
2005B Bonds or the rights of the Owners, the Paying Agent shall consider the effect of any such
amendment, consent, action or inaction as if there were no Bond Insurance Policy.
(n) No contract shall be entered into or any action taken by which the rights of the
Bond Insurer or security for or sources of payment of the Series 2005B Bonds may be impaired
or prejudiced in any material respect except upon obtaining the prior written consent of the Bond
Insurer.
Section 29. Parties Interested Herein. Nothing in this Ordinance expressed or implied
is intended or shall be construed to confer upon, or to give or grant to, any person or entity, other
than the City, the Paying Agent, the Bond Insurer and the Owners of the Series 2005B Bonds,
any right, remedy or claim under or by reason of this Ordinance or any covenant, condition or
stipulation hereof, and all covenants, stipulations, promises and agreements in this Ordinance
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contained by and on behalf of the City shall be for the sole and exclusive benefit 0fthe C[ty~ the
Paying Agent, the Bond Insurer and the Owners of the Series 2005B Bonds.
Section 30. Events Occurring on .Days That Are Not Business Days. Except as
otherwise specifically provided herein with respect to a particular payment, event or action, if
any payment to be made hereunder or any event or action to occur hereunder which, but for this
Section, is to be made or is to occur on a day that is not a Business Day shall instead be made or
occur on the next succeeding day that is a Business Day.
Section 31. Approval of Documents and Authorization of Officers. The City Council
hereby ratifies and approves the distribution and use of the Preliminary Official Statement
relating to the Series 2005B Bonds prepared in connection with the offering of the Series 2005B
Bonds; authorizes and directs the City staff to prepare a final Official Statement for use in
connection with the sale of the Series 2005B Bonds in substantially the form thereof presented to
or made available to the City Council, with such changes therein, if any, not inconsistent
herewith, as are approved by the Finance Director or the City Attorney of the City; and
authorizes and approves the Bond Pumhase Agreement in substantially the form presented to or
made available to the City Council, with such changes therein, not inconsistent herewith, as are
approved by the Finance Director or the City Attorney of the City. The Mayor or Mayor Pro
Tem is hereby authorized and directed to execute the final Official Statement. For a period of
sixty days following the adoption of this Ordinance, the Finance Director is hereby authorized
and directed to execute the Bond Purchase Agreement with the terms therein as are authorized by
this Ordinance and which, once executed, shall constitute conclusive evidence of approval of the
City. The Mayor or Mayor Pro Tem, the City Clerk and all other officers of the City are hereby
authorized and directed to execute the financial guaranty agreement with respect the Series
2005B Surety Bond between the City and the Bond Insurer; an undertaking to facilitate
compliance with Securities and Exchange Commission Rule 15c2-12 (17 C.F.R. §240.15c2~12);
an agreement with the Paying Agent concerning the duties and obligations of the Paying Agent
with respect to the Series 2005B Bonds; the Escrow Agreement; a "Tax Compliance Certificate"
or similar certificate describing the City's expectations regarding the use and investment of
proceeds of the Series 2005B Bonds and other moneys and the use of the projects on which the
amounts specified in Section 1 l(d) hereof are expended; an Internal Revenue Service Form
8038-G wit?~ respect to the Series 2005B Bonds; and all other documents and certificates
necessary or desirable to effectuate the 'issuance of the Series 2005B Bonds, the investment of
proceeds of the Series 2005B Bonds and the Pledged Revenues, the administration of the Series
2005B Bonds., and the other transactions contemplated hereby.
Section 32. Findings and Determinations. The City Council hereby finds, determines
and declares that (a) it is in the best interest of the City and its residents that the Series 2005B
Bonds be authorized, sold, issued and delivered at the time, in the manner and for the purposes
proyided herein and (b) all actions required by the Charter and any other applicable law to be
taken by the City for the issuance of the Series 2005B Bonds and the application of any of the
provisions hereof have been taken by the City.
' ·Section 33. Ratification of Prior Actions. All actions heretofore taken not inconsistent
with the provisions of this Ordinance or the Charter by the City Council, the Finance Director, or
Kutak Rock - Firm Library4835-2340-8896.1 34
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by the officers and employees of the City directed toward the issuance of the Series 2005B
Bonds for the purposes herein set forth are hereby ratified, approved and confirmed.
Sedtion 34. Repeal of Inconsistent Resolutions; Contract with Owners of Series
2005B Bonds; Resolution Irrepealable. All ordinances and resolutions, or parts thereof, that
are in conflict with this Ordinance are hereby repealed. After the Series 2005B Bonds have been
issued, this Ordinance shall be and remain a contract between the City and the Owners of the
Series 2005B Bonds and shall be and remain irrepealable until all amounts due with respect to
the Series 2005B Bonds shall be fully paid, satisfied and discharged and ali other obligations of
the City with respect to the Series 2005B Bonds shall have been satisfied in the manner provided
herein.
Section 35. Headings, Table of Contents and Cover Page. The headings to .the
various sections and subsections to this Ordinance, and the cover page and table of contents that
appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are
not a part ofthls Ordinance and shall not be used in any manner to interpret this Ordinance.
Section 36. Severability. It is hereby expressly declared that all provisions hereof and
their application are intended to be and are severable. In order to implement such intent, if any
provision hereof or the application thereof is determined by a court or administrative body to be
invalid or unenforceable, in whole or in part, such determination shall not affect, impair or
invalidate any other provision hereof or the application of the provision in question to any other
situation; and if any provision hereof or the application thereof is determined by 'a court or
administrative body to be valid or enforceable only if its application is limited, its application
shall be limited as required to most fully implement its purpose.
Section 37. Recordation. A true copy of this Ordinance, as adopted by the City Council
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 38. Declaration of Emergency and Effective Date. Due to fluctuations in
municipal bond prices and interest rates and due to currently favorable interest rates and due to
the need to preserve public property, health, peace and safety, it is hereby declared that, in the
opinion of the City Council, an emergency exists, and therefore this Ordinance shall be in full
force and effect upon its passage.
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iNTRODUCED, READ AND PASSED ON FIRST READiNG AS AN EMERGENCY
MEASURE by the City Council of the City of Aspen at its meeting on September 19, 2005, as
provided by the City's Charter and applicable law.
[SEAL]
Attest:
By
Mayor
By
City Clerk
READ, PASSED ON SECOND READING, FINALLY ADOPTED AND APPROVED
AS AN EMERGENCY MEASURE AND ORDERED PUBLISHED WITHiN 10 DAYS OF
SUCH FiNAL PASSAGE by the City Council of the City of Aspen at its special meeting on
September 26, 2005, as provided by the City's Charter and applicable law.
[SEAL]
Attest:
By
Mayor
By
City Clerk
[signature page to Bond Ordinance]
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APPENDIX A
FORM OF SERIES 2005 BOND
No. R-
Interest Rate:
%
REGISTERED OWNER:
UNITED STATES OF AMERICA
CITY OF ASPEN, COLORADO
PARKS AND OPEN SPACE SALES TAX REVENUE BOND
SERIES 2005
Maturity Date: Original Dated Date:
November 1,
**CEDE & CO.**
Tax Identification Number: 13-2555119
CUSIP:
pKINCIPAL SUM:
** DOLLARS **
The City of Aspen, Colorado (the "City"), a legally and regularly created, established,
organized and exijting municipal corporation under the provisions of Article XX of the
Constitution of the State of Colorado (the "State") and the home rule charter of the City (the
"Charter") and political subdivision of the State, 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 pri. n..cipal sum stated above,
in lawful money of the United States of America, with interest thereon from the original dated
date stated above, at the interest rate per annum stated above, payable on May 1 and November 1
of each year, commencing November 1, 2005, the principal of and premium, if any, and the final
installment of interest on this bond being payable to the registered owner hereof upon
presentation and surrender of this bond at the principal office of American National Bank, as
Paying Agent (the "Paying Agent"), in Denver, Colorado, and the interest hereon (other th~n the
final installment of interest hereon) to be paid by check or draft of the Paying Agen~ mailed on
the interest payment date to the registered owner hereof as of the close of business on the
fifteenth day of the month (whether or not such day is a Business Day) preceding the month in
which the interest payment date occurs, except that so long as Cede & Co. is the registered
owner of this bond, the principal of, premium, if any, and interest on this bond shall be paid by
wire transfer to Cede & Co.
This bond is one of an issue of bonds of the City of Aspen, Colorado Parks and Open
Space Sales Tax Revenue Bonds, Series 2005B, issued in the principal amount of
$ (the "Series 2005B Bonds"). The Series 2005B Bonds are being issued by
the City for the purpose of buying, improving, and maintaining trail, recreation and open space
properties and ancillary facilities; funding a reserve fund surety bond for, and paying the costs of
Kutak Rock -,Firm Libra~y4835-2340-8896.1
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issuance of, the Series 2005B Bonds, pursuant to and in full conformity With the State
Constitution, the Charter and an ordinance (the "Ordinance") duly adopted by the City prior to
the issuance hereof.
[Redemption provisions to be inserted]
The Paying Agent shall maintain registration books in which the ownership, transfer and
exchange of Series 2005B Bonds shall be recorded. The person in whose name this bond shall
be registered on such registration books shall be deemed to be the absolute owner hereof for all
purposes, whether or not payment on this bond shall be overdue, and neither the City nor the
Paying Agent shall be affected by any notice or other information to the contrary. This bond
may be transferred or exchanged, at the principal office of the Paying Agent in Dem'er,
Colorado, for a like aggregate principal amount of Series 2005B Bonds of other authorized
denominations ($5,000 or any integral multiple thereof) of the same maturity and interest rate,
upon payment by the transferee of a transfer fee, 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.
The Series 2005B Bonds are special, limited obligations of the City payable solely from
and secured solely by the sources provided in the Ordinance and shall not constitute a debt of the
City within the meaning of any constitutional or s~tatutory limitation. Pursuant to the Ordinance
the City has pledged for the payment of the principal of, premium, if any, and interest on the
Series 2005B Bonds, and granted a lien for such purpose on the Pledged Revenues, constituting,
for each fiscal year, all o£ the proceeds of the Parks and Open Space Sales Tax (as defined in the
Ordinance) after deduction of the reasonable and necessary costs and expenses of. collecting and
enforcing the Parks and Open Space Sales Tax, if any, the Bond Fund, the Series 2005B Reserve
Fund and the Revenue Fund (all as defined in the Ordinance). The Series 2005B Bonds are
issued on a parity with the City's Parks and Open Space Sales Tax Revenue Bonds, Series 2001
(the "Series 2001 Bonds") and the City's Sales Tax Revenue Refunding .Bonds, Series 2005A
(the "Series 2005A Bonds"). The City is further authorized by the Ordinan~e to pledge and grant
a lien, on a parity with the lien for the payment of the principal of, premium, if any, and interest
on the Series 2005A Bonds, the Series 2005B Bonds and the Series 2001 Bonds, on the Pledged
Revenues, the Bond Fund and the Revenue for the payment of the principal of, premium, if any,
and interest on additional bonds or obligations (which may or may not be multiple-fiscal year
obligations), upon satisfaction of certain conditions set forth in the Ordinance.
This bond, including the interest hereon, is payable solely from and secured solely by the
special funds provided in the Ordinance and shall not constitute a debt of the City within the
meaning of any constitutional or statutory debt limitation or provision.
THE ORDINANCE CONSTITUTES THE CONTRACT BETWEEN THE
REGISTERED OWNER OF THiS BOND AND THE CITY. THIS BOND IS ONLY
EVIDENCE OF SUCH CONTRACT AND, AS SUCH, IS SUBJECT IN ALL RESPECTS TO
THE TERMS OF THE ORDINANCE, WHICH SUPERSEDES ANY INCONSISTENT
STATEMENT IN THIS BOND.
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The City agrees with the owner of this bond and with each and every person who may
become the owner hereof, that it wilI keep and perform all the covenants and agreements
contained in the Ordinance.
The Ordinance may be amended or supplemented from time-to-time, wihh or without the
consent of the registered owners of the Series 2005B Bonds as provided in the Ordinance.
The Ordinance grants certain rights to the Bond Insurer (as defined in the Ordinance),
including, but not limited to, the right to be deemed to be the Owner of the Series 2005B Bonds
for all purposes other than, except as otherwise provided in the Ordinance, the receipt of
payments of principal of, premium, if any, and interest on the Series 2005B Bonds, and the right
to exercise ail rights of the registered owner of the Series 2005B Bonds, other than, except as
otherwise provided in the Ordinance, the right to receive payments of principal, premium, if any,
and interest on the Series 2005B Bonds. These rights of the Bond Insurer include, but are not
limited to, (a)the right to control remedies following an Event of Default pursuant to the
Ordinance; (b) the right to remove or consent to the removal of the Paying Agent or object to the
appointment of a successor Paying Agent pursuant to the Ordinance; (c) the right to consent to an
amendment to the Ordinance pursuant thereto; (d) any right to vote as registered owner of the
Series 2005B B6nds in any reorganization, liquidation or similar proceeding relating to the City
or with respect to any plan of reorganization or liquidation relating to the City; and (e) any other
right to consent, exercise rights or control proceedings by or on behalf of the registered owners
of the Series 2005B Bonds. [To be revised upon identification of Bond Insurer]
It is hereby certified that all conditions, acts and things required by the State Constitution,
the Charter, and the ordinances and resolutions of the City, to exist, to happen and to be
performed, precedent to and in the issuance of this bond, exist, have happened and have been
performed, and that the Series 2005B Bonds do not exceed any limitations prescribed by the
State Constitution, the Charter or the ordinances of the City.
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 si~oned the certificate of
authentication hereon.
[remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the City has caused this bond to be executed with the manual
or facsimile signature of its Mayor and attested by the manual or facsimile signature of the City
Clerk, and has caused the seal of the City to be impressed or imprinted hereon, all as of the date
set forth above.
[SEIki
CITY OF ASPEN, COLORADO
Attest:
By
Mayor
By
City Clerk
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CERTIlelCATE OF AUTI~NTICATION
This is one of the Series 2005B Bonds described in the within-mentioned Ordinance.
AMERICAN NATIONAL BANK, as Paying
Agent
Date of Authentication:
By
Finance Director
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Pl12
STATEMENT OF INSURANCE
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please print or typewrite name and address of Transferee)
(Tax Identification or Social Security No.)
the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints __
attorney to transfer the within bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
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 orany change whatever.
Signature(s) must be guaranteed by a
national bank or trust company or by
a brokerage fwm having a
membership in one of the major
stock exchanges.
TRANSFER FEE MAY BE REQUIRED
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Pl13
PREPAYMENT PANEL
The following installments of principal (or portion thereof) of this Bond have been
prepaid in accordance with the terms of the Indenture.
Date of Principal
Prepayment
Signature of Authorized
Representative of the Depository
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Pl14
**