HomeMy WebLinkAboutordinance.council.042-05ORDINANCE NO. 42 (SERIES OF 2005)
AN ORDINANCE AUIHORIZING IHE ISSUANCE BY IHE CIIY OF
ASPEN, COLORADO, OF liS PARKS AND OPEN SPACE SALES IAX
REVENUE BONDS, SERIES 2005B, 1N IHE AGGREGAIE PRINCIPAL
AMOUNI NOI IO EXCEED $14,900,000, FOR II-rE PURPOSE OF BUYING,
IMPROVING, AND MAINIAINING 3[RAIL, RECREArIION AND OPEN
SPACE PROPERIIES AND ANCILLARY I:ACILIrlES; PRESCRIBING IHE
FORM OF IHE SERIES 2005B BONDS; PROVIDING FOR THE PAYMENI
OF IHE SERIES 2005B BONDS FROM THE CIIY'S ORIGINAL 1 0% OPEN
SPACE SALES ~IAX AND IFS ADDIIIONAL 05% OPEN SPACE SALES
IAX; PROVIDING OIHER DEIAILS AND APPROVING OIHER
DOCUMENIS IN CONNECIION WIIH ][HE SERIES 2005B BONDS;
DELEGAIING IHE AUIHORIIY ][O IHE CIIY'S 1;INANCE DIRECIOR
IO MAKE A I:INAL DEIERMINAIION OF CERIAIN IERMS O1~ IHE
SERIES 2005B BONDS; DIRECIING IHE CIIY'S MAYOR, FINANCE
D1RECIOR, AND OIHER CIIY OFFICIALS IO EXECUIE CERIAIN
DOCUMEN][S IN CONNECIION WIIH SUCH SERIES 2005B BONDS; AND
DECLARING AN EMERGENCY
WHEREAS, the City of' Aspen (the "City"), in the County of Pitkin and State of
Colmado, is a legally and regularly created, established, organized and existing municipal
corporation undei the provisions of Article XX of the Constitution of' the State of' Colorado and
the home ~ule charter of the City (as mote particularly defined in Section 1 hexein, the "ChmteW)
(all capitalized trams used and not othexwise defined in the recitals he~eof shall have the meaning
assigned in Section 1 of this Ordinance); and
WHEREAS, under the Charter, the City is possessed of all powers which ate necessary,
~eqtfisite ox proper fm the government and administration of its local and municipal matters, all
powers which ate granted to home ~ule municipalities by the Colmado Constitution, and all
rights and powem that now m hemafier may be granted to municipalities by the laws of the State
of Colorado; and
WHEREAS, Section 105 of the Chatte~ provides in relevant part:
Ihe City shall, in addition, have the authority to issue xevenue bonds
payable in whole m in part from the imposition of' a sales ox use tax by the State
of Colmadn, or any agency thereof; No revenue bonds shall be issued until
the question of' thei~ issuance shall have been approved by a majority of' the
electors voting on the question at a regular or special election;
; and
WHEREAS, the City, pursuant to Ordinance No 16, Series of 1970 (the "original Parks
and Open Space Sales lax Ordinance"), levies a one percent (100%) sales tax (the "Original
Parks and Open Space Sales Iax") on all sales of tangible propesty and services specified in
Section 23.,32.090 of the City's Municipal Code fo~ the payment of food tax sefimds, and fox the
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acquisition of' real property including open space or construction of' capital impxovements fm
municipal proposes, ox the payment of indebtedness incuned fox such acquisition m conslxuction
of capital improvements for municipal proposes, fox the expenditmes necessary to protect such
p~opeay against loss, damage or destruction; and
WHEREAS, receipts fiom the Original Parks and Open Space Sales '[ax me iequited 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 fox' the acquisition of
parks, trails and open space real property, for' the construction of improvements on any real
property, owned m pmchased by the City fox parks, nails and open space proposes, for' the
maintenance of teal property owned by the city and used for parks, trails and open space, and fox
payment of'indebtedness inctmed fox' acquisition ox improvement of'parks, trails and open space
teal property, food tax xefunds payable by the City, and for' such expenditures as may be
necessary to protect real property ot the improvements thexeon owned by the City fm parks,
nails and open space proposes and fox the payment of sales tax xevenue bonds issued by the City;
and
WHEREAS, the following question (the "Ballot Question") xegarding the imposition of
an additional 0.5% sales tax (as defined herein, the "Additional Parks and Open Space Sales
'[ax" and, collectively with the Original Parks and Open Space Sales lax, the "Parks and Open
Space Sales lax") and the issuance of' sales tax revenue bonds fo~ the propose of buying,
improving and maintaining trail, recreation and open space propexties and ancillary fhdlities 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 CIIY OF ASPEN IAXES BE INCREASED UP ~[O
$2,280,00000 (FIRS]: bULL FISCAL YEAR DOLLAR iNCREASE, NEI Ol~
ANY CONSIIIUIIONALLY REQUIRED ~[AX CUIS) ANNUALLY BY IHE
IMPOSIIION OF AN ADDIIIONAL 05% SALES IAX COMIvW~NCiNG ON
IANUARY 1, 2001, AND IERMINAIING ON DECEMBER 31, 2025, AND
SHALL CIIY O]: ASPEN DEBI BE INCREASED BY AN AMOUNI NOI IO
EXCEED $380 MILLION WIIH A MAXIMUM REPAYMENI COSI OF
$91,065,00000 FOR IHE, PURPOSE OF BUYING, IMPROVING AND
MAINIAINING TRAIL, ILECREAIION AND OPEN SPACE PROPERIIES
AND ANCILLARY FACILIIIES;
SUCH DEBI IO CONSISI O1~ REVENUE BONDS PAYABLE ]:ROM
CIIY SALES IAXES IHAI BEAR INIERESI, MAIURE, ARE SUBJECI
IO REDEMPIION, WIIH OR WIIHOUI PREMIUM, AND ARE ISSUED,
DAIED, AND SOLD, Al SUCH lIMES AS NEEDED IO FINANCE IHE
PURCHASES OR IMPROVEMENIS AS DESCRIBED ABOVE, A1 SUCH
PRICES (Al, ABOVE OR BELOW PAR) AND IN SUCH MANNER AND
CONIAIN SUCH TERMS AS IHE CIIY COUNCIL MAY DEIERM1NE;
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SHALL ANY EARNINGS (REGARDLESS Olz AMOUNI) FROM IHE
INVESIMENI OF IHE PROCEEDS OF SUCH IA.XES AND SUCH BONDS
CONSIIIUIE A VOIER-APPROVED REVENUE CHANGE?
WHEREAS, the City, pursuant to (Zdinance No 7, Series of 2001 (the "Additional Pinks
and Open Space Sales lax Ordinance" and, together with the Original Parks and Open Space
Sales lax O~dinance, the "Parks and Open Space lax Ordinances"), has since January 1, 2001
levied the Additional Pinks and Open Space Sales lax and, pm'suant to Section 23 32 060(c)(7)
of' the City's Municipal Code, deposits the revenues of' the Additional Pinks and Open Space
Sales lax in the Parks and Open Space Fund; and
WHEREAS, on August 21, 2001, the City issued its Parks and Open Space Sales Iax
Revenue Bonds, Series 2001 (the "Series 2001 Bonds") lb! the propose of providing funds fo~
buying, improving and maintaining trail, recreation and open space properties and ancillary
Facilities and the fimding of msmves fob and the costs of' issuance of; the Series 2001 Bonds;
and
WHEREAS, on Masch 24, 2005, the City issued its Sales lax Revenue Refunding
Bonds, Series 2005, in the aggt'egate principal amount of' $12,380,000 (the "Series 2005A
Bonds"), for the proposes of advance refunding all of the City's Sales lax Revenue Bonds,
Sexies 1999; and
WHEREAS, the net revenues of the Parks and Open Space Sales Iax 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, Coloxado, Parks and Open Space Sales lax Revenue
Bonds, Sm/es 2005B (the "Series 2005B Bonds") for the propose of financing the costs of
buying, improving and maintaining t~ail, recreation and open space p~opmties and ancillary
fhcilities; and
WHEREAS, the City Council has determined and does hereby determine that the Series
2005B Bonds shall be issued hereunder and shall be seemed by a pledge of and lien on certain
revenues fiom the Parks and Open Space Sales lax on ptaity with the lien thereon of'the Series
2001 Bonds and the Series 2005A Bonds; and
WHEREAS, pursuant to Section 68 of the Chartm, the City's Director' of Finance (the
"Finance Dii'ectm") shall pe~fbrm such duties pertaining to the City's department Of finance as
tequir ed by the City Council; and
WHEREAS, the City Council desixes to delegate the authority to the Finance Ditectm to
make a fmal determination of'the par' amount, interest rates, amount of principaI matming 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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WHEREAS, the City Council also deshes to delegate the authority to the l~inance
Dhector to determine whether it is economically beneficial to obtain a financial guaranty
instu'anee policy insming the payment of the Series 2005B Bonds and, if' so determined, to
identify the Bond Insmer and execute the Commitment; to determine whethe~ a surety bond is to
be obtained to secme payments on the Series 2005B Bonds, and to execute and deliver the Bond
Purchase Agreement and approve cer~min terms thexeof; all in accordance with the pxovisions of'
this Ordinance;
WHEREAS, pmsuant to Section 4.11 of' the Chmter, the City is authorized to adopt
emergency oxdinances for' the preservation of public property, health, peace, or safety; and
WHEREAS, the xates of' interest at which the Series 2005B Bonds can be issued me
expected to be lower if'the Seiies 2005B Bonds can be issued in a timely fashion, thus benefiting
the City's inhabitants with lower financing costs; and
WHEREAS, there is a need for issuing the Series 2005B Bonds in a timely maunex in
oxder to take advantage of' existing mmket conditions and obtain lower financing costs, thus
fleeing up mounts which would have othexwise be expended on such financing costs fbx the
propose of preserving public property, health, peace and safety; and
WHEREAS, this O~dinance is being adopted to authorize the issuance, sale and delivery
of the Sexies 2005B Bonds, and to provide fox the details of and the secmity fm the Series 2005B
Bonds;
NOW, IHEREFORE, BE II ORDAINED by the City Council of' City of' Aspen,
Colomdo:
Section 1. Definitions. ]~he following te~ms shall have the following meanings as used
in this O~dinance:
"Additional Parka and Open Space Sales Tax" means the 0.5% sales tax that is levied in
addition to the Original Pinks and Open Space Sales lax by the City ptasuant to the authority
g~anted by the Ballot Question, the Additional Pinks and Open Space Sales lax Ordinance and
Section 23 32 060(c)(7) of the City's Murficipal Code;
"Additional Parity Bonds" means any bonds ar othei obligations (which may or may not
be multiple-fiscal year financial obligations) permitted to be issued pursuant to Section 13 he~eof
with a lien that is equal and on a pmity with the lien of the Series 2001 Bonds, the Sexies 2005A
Bonds, and the Series 2005B Bonds on the Pledged Revenues, the Bond l~und and the Revenue
Fund.
"Ballot Question" means the ballot question approved by City votexs on Novembex 7,
2000 authorizing the Additional Ptuks and Open Space Sales Iax.
"Bond Counsel" means (a) as of the date of issuance of the Series 2005B Bonds, Kutak
Rock LLP, and (b) as of any othex 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 Sales lax
Revenue Bonds Bond l~tmd" which fund is reaffirmed as such in Section 10(b) hereof
"Bond Insurance Policy" means the municipal bond insmance policy issued by the Bond
lnstam instaing the payment when due of the principal ot and interest on the Series 2005B
Bonds as provided therein
"Bond Insurer" means l~inancial Sectuity Assmance lnc, a New Yoxk stock insm'ance
company, or any successor thereto or' assignee thereof.
"Bond Purchase Agreemenf' means thc Bond Pta'chase Agreement dated September' 28,
2005 to be executed by the Finance Di~cctox on behalf' of the City pursuant to the authority
delegated undm this Ordinance, pmsuant to which the Original Pumhase! has agreed to pta'chase
the Series 2005B Bonds at the price and on the trams set forth therein.
"Bonds" means, collectively, the Series 2001 Bonds, the Series 2005A Bonds, the Series
2005B Bonds and any Additional Parity Bonds
"Business Day" means any day othe~ than (a) a Saturday or Sunday or (b) a day on which
banking institutions in the State me authorized or obligated by law or executive order' to be
closed for business.,
"Charter" means the Chatter of the City of Aspen, adopted lune 16, 1970, as amended.
"City" means the City of'Aspen, Colmado, and any successor thereto.
"City Council" means the City Council of the City, and any successor body..
"Code" means the Internal Revenue Code of' 1986, as amended Each ~efbmnce to a
section of the Code herein shall be deemed to include the United States heastay Regulations
proposed or in effect thereunder and applicable to the Series 2005B Bonds o~ the use of'proceeds
thmeof, unless the context clearly requires otherwise
"Commitmenf' means that certain oiler to issue the Bond Insmance Policy issued by the
Bond Insut er.
"Defeasance Securities" means Permitted Investments that ate bills, certificates of
indebtedness, notes, bonds ox similar secmifies which ate 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 Ammica.
"Event oJ Default" means any of the events specified in Section 23 hereof;.
"Fitch" means Fitch Investms Service, Inc.. and its successors.
"Interest Pco/ment Date" means any date on which a payment of principal of; premium, if
any, or interest on the Smies 2005B Bonds is due putsuant to Section 3(c) hereof:~
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"Letter of Instructions" means the Lettm of' Instructions, dated the date of issuance of the
Series 2005B Bonds, delivered by Bond Counsel to the City, as it may be supemeded m amended
in accordance with its terms
"Moody's" means Moody's InVestor Smvice and its successms
"Ordinance" means this Ordinance, ~vhich authorizes the issuance of the Series 2005B
Bonds, including any amendments m supplements hereto.
"Original Parks and Open Space Sales Tax" means the L0% Open Space Sales ~lax
levied by the City pmanant to the Original Pinks and Open Space Sales Iax Osdinance
"Original Parks and Open Space Sales Tax Ordinance" means the City's Ordinance No.
16, Series of' 1970..
"Original Purchaser" means Sfifel, Nicolaus & Company, Incorporated Hanifen Imhoft'
Division.
"Outstanding" means, as of' any date, all Bonds, except the following:
(a) any Bond cancelled by the City or the Paying Agent, m 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 Seem/ties 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 theretofom been deposited
in trust fm such propose in accordance with Section 22 hereof; and
(d) any lost, apparently destroyed, m wrongfully taken Bond in lieu of m in
substitution for which another' bond ur other security shall have been executed and
delivered
"Owner" means the Person ur Persons in whose name or names a Series 2005B Bond is
registered on the registration books maintained by the Paying Agent pursuant hmeto.
"Parks and Open Space Func?' means the City's Paxks and Open Space Fund maintained
by the City pur'suant to Section 23 32 060(c)(3) of the City's Municipal Code
"Parks and Open Space Sales Tax" means, collectively, the Original Pinks and Open
Space Sales lax and the Additional Pinks and Open Space Sales lax
"Parks and Open Space Sales Tax Ordinances" means, collectively the Original Parks
and Open Space Sales lax O~dinance and the Additional Parks and Open Space Sales lax
Ordinance.
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"Paying Ageni" 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
l?unds by the Chaxte~ and all other applicable laws which axe included on the following list:
(a) cash (insmed at all times by the Fedmal Deposit insmance Cml>oration);
(b) direct obligations of (including obligations issued or held in book entry
form on the books of) the Depmtment of the rreasmy of the United States of'America;
(c) obligations of' any of the following federal agencies which obligations
represent fiall faith and credit of the United States of America, including:
-- Export - Impo~t Bank
-- Rural Economic Community Development Administration
-- US Maritime Administration
-- Small Business Administration
-- U,S, Depaxtment of'Housing & U~ban Development (PHA's)
-- l~edeml Housing Administration
-- Federal Financing Bank;
(d) direct obligations of any of the following federal agencies which
obligations axe not fully guaxanteed by the full faith and credit of the United States of
America: senior' debt obligations issued by the Federal National Mortgage Association
(FNMA) oT the l~ederal Home Loan Mortgage Cmpomtion (FHLMC); obligations of the
Resolution I:unding Co[potation (RLI:CORP); senio! debt obligations of the Federal
Home Loan Bank System; and senio[ debt obligations of' other Government S. ponso[ed
Agencies approved by Ambac;
(e) U.S dollax denominated deposit accounts, federal funds and banker's
acceptances with domestic commemial banks which have a rating on thei[ sho[~t-term
ceffifieates 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 mom than 360 days after the date of pmchase, whe[e ratings
on holding companies axe not considexed as the rating of the bank;
(f) commercial pape~ which is rated at the time of pmchase in the single
highest classification, "A 1+" by S&P and "P 1" by Moody's, and which matmes not
more than 270 days afleI the date of purchase;
(g) investments in a money market fund rated "AAAm" or "AAAm--G" m
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 axe not
callable at the option of' the obligor' prior to matmity o~ as to which kmvoeable
inslxuctions have been given by the obligor to call on the date specified in the notice; and
(i) which axe rated, based on an hrevocable escrow account or fund (the "escrow"), in the
highest taring category of' S&P and Moody's m any successors thereto; o~ (ii)(A) which
axe fully seemed as to principal and interest and redemption premium, if any, by an
escrow consisting only of' cash or obligations described in paxagraph (a) above, which
escrow may be applied only to the payment of' such principal of and intm'est and
redemption pmminm, if any, on such bonds or other obligations on the matmity date ox
dates thereof ot the specified xedemption date m dates pursuant to such inevocable
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 o~ othe! obligations described in this paxagraph
on the matmity date ox dates thereof or on the redemption date or dates specified in the
irrevocable ins'auctions referred to above, as appropriate;
(i) municipal obligations ~ated "Aaa/AAA", or general obligations of' states
with a rating of'at least "A2/A", or highe! by both Moody's and S&P; and
(j) repmchase agreements with (1) any domestic bank, o~ domestic branch of'
a foreign bank, the long term debt of which is rated at least "A" by S&P and Moody's; or
(2) any bmke~-dealex with "retail customers" or a related affiliate thexeof' which broker-
dealer has, m the paxent company (which guaxantees the provider) of' which has, long-
te~m debt rated at least "A" by S&P and Moody's, which broker-dealer falls under the
jmisdiction of' the Secmities Investor's Protection Cmpomtion; m (3) any other entity
rated "A" or bettex by S&P and Moody's and acceptable to the Bond Insmer, provided
that:
(i) Ihe mmket value of the collateral is maintained at levels and upon
such conditions as would be acceptable to S & P and Moody's to maintain an "A"
rating in an "A" rated stmctmed f'mancing (with a market value approach);
(ii) Ihe Paying Agent or a third paxty acting solely as agent therefor o~
for' the City (the "Holder of the Collateral") has possession of the collateral o~ the
collateral has been lxansferred to the Holder of the Collateral in accordance with
applicable state and federal laws (other than by means of entries on the
transfer m's books);
(iii) The repmchase agxeement shall state and an opinion of' counsel
shall be rendered at the time such collateral is delivered that the Holdm of' the
Collateral has a perfected fast priority sectuity interest in the collateral, any
substituted collateral and all proceeds thereof' (in the case of'beaxe! seem/ties, this
means the Holder of the Collateral is in possession);
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(iv) All othe~ requhements of' S&P in respect of repurchase agreements
shall be met
(v) Ihe teptu,chase agreement shall provide that if' dtning its term the
providei's rating by either Moody's or S&P is withdrawn m suspended m' falls
below "A-" by S&P ot "A3" by Moody's, as appropriate, t~e ptovidm' must, at the
direction of the City m the Paying Agent (who shall give such dkection if' so
directed by the Bond Insure0, within 10 days of' receipt of such direction,
repro'chase all collateral and terminate the agreement, with no penalty m premium
to the City ot Paying Agent.
Notwithstanding the above, if a tepmchase agreement has a term of' 270 days m less
(with no evexgreen provision), collateral levels need not be as specified in (A) above, so
long as such collateral levels me 103% or better and the provider is rated at least "A" by
S&P and Moody's, respectively.
(k) Investment agreements with a domestic m fmeign bank m cmpmation
(other than a life m propeity casualty insmance company) the long-te~m debt of'which,
or, in the case of a guaranteed cmpmation the long-term debt, or, in the case of' a
monoline financial gumanty insmance company, claims paying ability, of the gumantot is
rated at least "AA" by S&P and "Aa" by Moody's; provided that, by the te~ms of the
investment agreement:
(i) interest payments me to be made to the Paying Agent at times and
in amounts as necessary to pay debt service (m, if the investment agreement is fat
the construction fund, construction diaws) on the Bonds;
(ii) the invested funds me available for withchawal without penalty or
premium, at any time upon not mote than seven days' prim notice; the City and
the Paying Agent hereby agree to give m cause to be given notice in accordance
with the terms olthe investment agreement so as to receive funds thereunder with
no penalty ot premium paid;
(iii) the investment agreement shall state that is the unconditional and
general obligation of, and is not subordinated to any other obligation of, the
provider thereof m; if' the ptovidm is a bank, the agreement or the opinion of
counsel shall state that the obligation of' the provider to make payments
thereunder ranks pmi passu with the obligations of the provider to its othex
depositors and its other unsecured and unsuboxdinated creditors;
(iv) the City ox the Paying Agent receives the opinion of domestic
counsel (which opinion shall be addressed to the City and the Bond Insm'et) that
such investment agreement is legal, valid, binding and enforceable upon the
provider in accmdance with its trams and of foreign counsel (if applicable) in
form and substance acceptable, and addressed to, the Bond Insmer;
(v) the investment agreement shall provide that if dining its term
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(A) the providers rating by either S&P of Moody's falls below
"AA-" or "Aa3", respectively, the provide~ shall, at its option, within 10
days of ~ceipt of' publication of such downgrade, either (i) collateralize
the investment agreement by delivering o~ ttansfe~r/ng in accordance with
applicable state and federal laws (other than by means of' enlxies on the
provide~'s books) to the City, the Paying Agent or a third pasty acting
solely as agent therefbr (the "Holder of the Collateral") collateral fiee and
clem of any third-pasty liens or claims the market value of which collateral
is maintained at levels and upon such conditions as would be acceptable to
S & P and Moody's to maintain an "A" rating in an "A" rated structm'ed
financing (with a mmket value approach); or (ii) repay the principal of and
acciued but unpaid interest on the investment, and
03) the providet's rating by either S&P or Moody's is
with&awn or suspended or' falls below "A-" or "A3", respectively, the
provider must, at the dhection of' the City or the Paying Agent (who shall
give such direction if so directed by the Bond Insme0, within 10 days of'
receipt of such direction, ~epay the principal of' and accrued but unpaid
interest on the investment, in either' case with no penalty o~ premium to the
City or Paying Agent, and
(vi) Ihe investment agreement shall state and an opirdon of' counsel
shall be rendered, in the event collateral is required to be pledged by the provider
undm the terms of the investment agreement, at the time such collateral is
delivered, that the Holder of' the Collateral has a perfected first priority secusity
interest in the collateral, any substituted collateral and all proceeds thereof (in the
case of bemea securities, this means the Holder of'the Collateral is in possession);
(vii) the investmeht agreement must provide that if'dining its te~m
(A) the p~ovide~ shall default in its payment obligations, the
provider's obligations under the investment agreement shall, at the
direction of' the City or the Paying Agent (who shall give such direction if
so directed by the Bond Insme~), be accelerated and amounts invested and
accrued but unpaid interest thereon shall be repaid to the City o~ Paying
Agent, as appropriate, and
(B) the provider shall become insolvent, not pay its debts as
they become due, be declased oz petition to be declased hanksupt, etc~
("event of' insolvency"), the providez's obligations shall automatically be
accelerated and amounts invested and accrued but unpaid interest thereon
shall be repaid to the City ox Paying Agent, as appmpziate.
"Person" means a corporation, firm, other body corpornte, pattnetslfip, association or
individual and also includes an executor, administrator; trustee, receiver or other representative
appointed according to law
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"Pledged Revenues" means, for each fiscal year, all of' the proceeds of the Parks and
Open Space Sales lax after deduction of' the reasonable and necessmy costs and expenses of'
collecting and enforcing the Parks and Open Space Sales Iax, if any.
"Rebate Fund" means the City of Aspen, Colorado, Parks and Open Spaee Sales Iax
Revenue Bonds, Stoics 2005B, Rebate l:und created in Section 10 hereof
"Reserve Fund" means, as the context requires, any one or more of' the Series 2001
Reserve Fund, the Series 2005A Reserve l:und, the Series 2005B Reserve Fund, and/ox any
reserve fund or funds established foi Additional Parity Bonds
"Reserve Fund Contract" has the meaning specified in Section 16(c)(i) hereof.
"Reserve FundRequirement" 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 m' (c) 125% ot the average annual debt smvice 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
advemely affect the exclusion ftom gloss 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 pm'suant to Section 10(b)
hereof
"Sale Certificate" means the bond sale certificate executed by the Finance Director unde!
the authority delegated pursuant to t}fis Ordinance, including but not limited to the Sections
he~eof entitled "Bond Details," "Redemption ot Bonds P~ior to Maturity,' "Approval of Related
Documents" and "Autho£ization of' Bond Insmance" 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 inincipal and interest payment dates for the
Series 2005B Bonds, interest rates and annual matming principal for the Series 2005B Bonds, as
well as the dates on which the Series 2005B Bonds may be redeemed and the redemption prices
therefbr. Ihe l~inance Directm also has been delegated the authority to detmmine if' the
repayment of' the Series 2005B Bonds shall be seemed by the issuance of the Bond Insmance
Policy, whethm the Reserve Fund shall be funded with a Reserve Fund Contract issued by the
Bond Insurer and the trams of'any agneements with the Bond Inscaer. Ihe Sale Certificate, upon
execution by the Finance Dimctm, is incorporated into this Ordinance as it the provisions thereof
were fully set fbrth herein A default under any terms of the Sale Certificate shall constitute an
event of default under the Ordinance
"S&P" means Standard & Poor's Ratings Services, a division of' the MeG~aw-Hill
Companies, Inc., and its successors.
"Series 1999 Ordinance" means the City's Ordinance No. 31, Series of' 1999, ptesuant to
wlfich the City of Aspen, Colorado, Sales lax Revenue Bonds, Series 1999 were issued (all of
which were subsequently advance mthnded with proceeds of the Series 2005A Bonds)
Kutak Rock - Firm [ibmty4535-2340-8896 4 l l
"Series 2001 Bonch" means the City of Aspen, Colorado, Open Space Sales lax Revenue
Bonds, Series 2001, author/zed pursuant to the Series 2001 Ordinance
"Series 2001 Ordinance" means the City's Ordinance No 29, Series of'2001, pmsuant to
which the Series 2001 Bonds were issued
"Series 2001 Reserve Fund" means the Reserve lmnd established for the Series 2001
Bonds pmsuant to Section 10(a)(ii) of the Series 2001 Ordinance
"Series 2005A Bonds" means the City of'Aspen, Colorado, Sales ]'ax Revenue Refunding
Bonds, Series 2005A, authorized pmsuant to the Series 2005A Ordinance,
"Series 2005A Ordinance" means the City's Ordinance No 19, Series of2005, pmsuant
to which the Series 2005A Bonds were issued.
"Series 2005A Reserve Fund" means the City of Aspen, Colorado, Sales lax Revenue
Refunding Bonds, Series 2005A, Reserve l~und created in Section 10(a)(ii) of the Series 2005A
Ordinance
"Series 2005A Surety Bond" means the Reserve Fund Contract issued by Ambac
Assmance Corporation guaranteeing certain payments fi~m 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
lax Revenue Bonds, Series 2005B, antho~/zed pmsuant to this Ordinance.
"Series 2005B Reserve Furuf' means the City of Aspen, Colorado, Parks and Open Space
Sales ][ax Revenue Bonds, Series 2005B, Reserve Fund created in Section 10(a)(ii) hereof.
"Series 2005B Surety Bond" means the Reserve Fund Contract issued by the Bond
Insurm gumanteeing certain payments fiom the Series 2005B Reserve Fund with respect to the
Series 2005B Bonds
"State" 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 author/zes, and directs that there shall be issued, the
"City of Aspen, Colorado, Parks and Open Space Sales Iax Revenue Bonds, Series 2005B" in
the aggregate principal mount 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; pumhasing the Series 2005B Surety Bond; and paying the costs of'
issuance of the Series 2005B Bonds, Ihe City Council hereby delegates to the Finance Dhector
the authority to determine the aggregate principal mount of the Series 2005B Bonds, provided,
however, that such fmal determination shall be within the pmameters set forth in Section 3Co)(i)
below
Kulak Rock - Finn [ ibrary4835-2340-8896 4 ] 2
Section 3. Series 2005B Bond Details..
(a) Registered Form, Denominations, Original Dated Date and Numbering
Ihe 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 ntmabemd in the manner determined by the Paying
Agent and shall be ~egistered in the names of the Pm'sons identified in the registration
books of the City maintained by the Paying Agent
(b) Maturity Dates, Princ~al Amounts and Interest Rates.. Ihe Series
2005B Bonds shall matm'e on Novembm 1 of the yems and in the principal mounts, and
shall bern' interest at the intes pe~ annum (calculated based on a 360-day yem of twelve
30-day months) set forth in the Sale Cmtificate. ~be City Council hereby delegates to the
l~inance Director the authority to detmnfine the dated date of the Series 2005B Bonds, the
price o~' prices at which the Series 2005B Bonds will be sold, the amount of'principal of
the Series 2005B Bonds maiming in any pa~ficulaz yem; 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
l~inance Directo~ shall be within the pmameters set froth below:
(i) Ihe aggregate original principal amount of the Series 2005B
Bonds shall not exceed $14,900,000;
(ii) Ihe net effective interest rate of the Series 2005B Bonds shall not
exceed 5 25% pet annum;
(iii) Ihe price or prices at which the Series 2005B Bonds me sold shall
be not less than 98% ox mo~e than 108%; and
(iv) Ihe ~edemption price or prices of the Series 2005B Bonds shall not
exceed 101% (stated as a percentage of the principal amount so redeemed).
(c) Accrual and Dates oJPayment oJInterest Intm'est on the Series 2005B
Bonds shall acmue at the rates set forth in the Sale Certificate fiom the late~ of the
original dated date or the latest interest payment date (or in the case of defaulted interest,
the latest date) to which interest has been paid in full and shall be payable on May I and
November 1 of each yem', commencing on the date set forth in the Sale Certificate. Ihe
Finance Director is hereby authorized to determine the f'ust interest payment date fox the
Series 2005B Bonds
(d) Manner' and Form oJPayment. Principal of, premium, if' any, and the
fmal installment of interest on each Series 2005B Bond shall be payable to the Owner
thereof upon presentation and smmndex 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 interesO on each Series 2005B Bond shall be payable
by check or chart of the Paying Agent mailed on thc intmest payment date to the Owne~
thmeof as of the close of business on the fifteenth day (whether m not such day is a
Business Day) of the month preceding the month in which the Interest Payment Date
Kutak Rock - l~irm L ibrary4835-2340-8896 4 1 3
occurs All payments of' the principal of; premium, if' any, and interest on the Series
2005B Bonds shall be made in lawful money of'the United States of Ametica
(e) Book-Entry Registration. Notwithstanding any other' provision hereof,
the Series 2005B Bonds shall be delivered only in book-en~ay form ~egisteted in the name
of Cede & Co, as nominee of' Ihe Depository Ixust Company ("DI C"), New York, New
Ymk, acting as securities depository of' the Series 2005B Bonds and principal
premium, if any, and interest on the Series 2005B Bonds shall be paid by whe transfer to
DIC; pr'ovided, however, if at any time the Paying Agent determines, and notifies the
City of its detarmination, that DIC is no longer able to act as, or is no longer
satisfactorily performing its duties as, secmifies depository for the Series 2005B Bonds,
the Paying Agent may, at its discretion, eithar (i) designate a substitute secmities
depository for D~IC and xemgistet the Series 2005B Bonds as directed by such substitute
secmities depository or (ii) terminate the book-entry registration system and remgistet the
Series 2005B Bonds in the names of the beneficial owners thereof provided to it by DIC.
Neither the City nor the Paying Agent shall have any liability to DIC, 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
Paying Agent pursuant to the proviso at the end of'the immediately preceding sentence ox
(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 ~ovided by
DIC, Cede & Co.., any substitute secmities depository or any Person in whose name the
Series 2005B Bonds are r'etegistered
Section 4. Form of Series 2005B Bonds Ihe Smies 2005B Bonds shall be in
substantially the form set fbrth 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 signatmes thateon shall constitute conclusive evidence of
such approval) Although attached as an appendix for the convenience of' the reader; Appendix
A is an integxal prat of this Ordinance and is incorporated hetein 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 Ihe Person in whose name any Series 2005B Bond shall be
registered on such xegist~afion books shall be deemed to be the absolute owner thereof for all
purposes, whethe~ ot not payment on any Set/es 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,
Ihe 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
aggxegate principal amount of Series 2005B Bonds of other authorized denominations of the
same matmity and interest rate, upon payment by the transfetee of' a transfer fee, any tax m
governmental charge requi~ed to be paid with respect to such transfer or exchange and any cost
of printing bonds in connection therewith,, Upon surmndet for t~ansfet' of' any Series 2005B
Bond, duly endorsed for transfer or accompanied by an assignment duly executed by the Owne~
Kutak Rock - iZirm [ ibr~y4535-2340-gS96 zl 14
or his or her attorney duly author/zed in vaiting, the City shall execute end the Paying Agent
shah authenticate and deliver in the name of the t~ensferee a new Series 2005B Bond
Section 6. Replacement of Lost, Destroyed or Stolen Series 2005B Bonds If any
Series 2005B Bond shall become lost, appmently destroyed, stolen or vaongfully taken, it may
be replaced in the form end teno~ of the lost, desaoyed, stolen m taken bond end the City shall
execute and the Paying Agent shall authenticate and deliver' a replacement Series 2005B Bond
upon the Owner fmnishing, to the satisfaction of' the Paying Agent: (a) proof of ownership
(wh/ch shall be shown by the registration books of the Paying Agent), Co)proof' of' loss,
des~uction or theft, (c) en indemnity to the City and the Paying Agent with respect to the Series
2005B Bond lost, dest~'oyed m taken, end (d) payment of the cost of preparing and executing the
new bond or' bonds..
Section 7. Execution of Series 2005B Bonds. ~[he Series 2005B Bonds shall be
executed in the name and on behalf of the City with the manual or facsimile signatme of the
Mayor ot Mayor ho Iem of'the City, shall bear a menual or facsimile of'the seal of'the City end
shall be attested by the menual or facsimile signatme of the City Clerk or Deputy or Assistent
City Clerk, all of whom are hereby authorized and directed to p~epare and execute the Series
2005B Bonds in accordance with the requirements hereof'. Should any officer whose menual or
facsimile signatme appears on the Series 2005B Bonds cease to be such officer before delivery
of any Series 2005B Bond, such manual or facsimile signature shall nevertheless be valid and
sufficient for all proposes. When the Series 2005B Bonds have been duly executed, the officms
of'the City me authorized to, and shall, deliver the Series 2005B Bonds to the Paying Agent for
authentication No Sm/es 2005B Bond shall be secured by or entitled to the benefit of this
Ordinance, or shall be valid or obligatory fo~ any propose, unless the certificate of authentication
of'the Paying Agent has been manually executed by an authorized signatory of the Paying Agent
Ihe executed cmtificate of authentication of the Paying Agent upon any Series 2005B Bond shall
be conclusive evidence, end the only competent evidence, that such Series 2005B Bond has been
properly authenticated end delivered hereunde~
Section 8. Redemption of Series 200511 Bonds Prior' to Maturity.
(a) Optional Redemption 3[he Series 2005B Bonds shall be subject to
redemption, at the option of' the City, in whole or in prat, 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. ~lhe City Council hereby delegates to the Finance Directo~
the authority to determine the dates on which the Series 2005B Bonds shall be subject to
optional redemption and the redemption price ot 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 Ihe Series 2005B Bonds shall be
subject to mandatory sinking fund redemption by lot on November 1 of'the years and in
the principal amounts specified in the Sale Certificate, at a redemption pr/ce equal to the
principal amount to be redeemed (with no redemption premium), plus accrued interest to
the redemption date Ihe City Council hereby delegates to the Finance Director the
Kutak Rock - I~irm [ ibrary-4835 -2340-8896 4 1 5
authority to determine the dates on which the Series 2005B Bonds shall be subject to
mandatory sinking fund redemption
If the Sale Cextificate designates mandatmy sirddng fired redemption dates for the
Series 2005B Bonds, the City, at its option, to be exercised on ox' before the forty-fifth
day next preceding each sinking fi~nd redemption date, may (i) pmchase and cancel any
Series 2005B Bonds with the same matmity date as the Sexies 2005B Bonds subject to
such sinking fund xedemption and (ii) receive a credit in respect of its sinking fund
redemption obligation for any Sexies 2005B Bonds with the same matmity date as the
Series 2005B Bonds subiect to such sinking fund redemption which prior to such date
have been redeemed (otherwise than thi'ough the operation of' the sinking fund) and
cancelled and not theretofoxe applied as a cxedit against any sinking fund redemption
obligation. Each Series 2005B Bond so pmchased and cancelled o~ previously redeemed
shall be credited at the principal amount thercof to the obligation of the City on such
sinking fund ~edempfion date, and the principal amount of' Sexies 2005B Bonds to be
redeemed by operation of'such sinking fired 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 fi~st-class, postage prepaid
mail, not less than 30 drys prior to the redemption date, to the Owner of' each Series
2005B Bond being redeemed. Such notice shall specify the numbex or numbeas of' the
Series 2005B Bonds so to be iedeemed (if redemption shall be in paxt) 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
PLY the ~edemption price of' such Series 2005B Bond on the redemption date, then such
Stoles 2005B Bond shall become due and payable at such mdamption date, and fi'om and
afte~ such date interest will cease to accrue thereon Failme to delivex any redemption
notice or any defect in any redemption notice shall not affect the validity of' the
proceeding fo~ the redemption of' Series 2005B Bonds with respect to which such failme
ot defect did not occm. Any Sexies 2005B Bond redeemed prim to its matuxity by prior
~edemption or otherwise shall not be ~eissued and shall be cancelled.
Section 9. Delivery of Series 2005B Bonds Upon Original Issuance Prior to the
authcmtication and delivery by the Paying Agent of the Series 2005B Bonds in connection with
thei~ original issuance there shall be filed with the Paying Agent (a) a c~fified copy o~ this
O~dinance and (b) a request and authorization to the Paying Agent on behalf of the City and
signed by the Mayor ox Mayor Pro Iem to authenticate the Series 2005B Bonds and to deliver
the Series 2005B Bonds to the Oxiginal Pumhaser or' the Persons designated therein, upon
payment to the City ora 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 Ptachaser or its designee as directed in such request
and authorization
Section 10. Creation and Reaffirmation of Funds and Accounts,
(a) Ihere me hereby created by the City the fbllowing fimds and accounts:
Kutak Rock - [ irm [ ibrary4835-2340-8896 4 16
(i) the Series 2005B Rebate Fund, designated as the "City of Aspen,
Colorado, Parks and Open Space Sales l'ax 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 lax Revenue Bonds, Series 2005B,
Reserve Fund,"
Co) Ihe following fimds, originally created pmsuant to Section 13 of the
Series 1999 O~dinance and renamed pmsuant to Section 10(b) of' the Series 2001
O~dinance, are hereby reaft'umed 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 reaffirmed as the "City of' Aspen,
Colorado, Pinks and Open Space Sales lax Revenue Bonds Revenue Fund"
Section 11. Application of Proceeds of Series 2005B Bonds, ~he proceeds received by
the City fi'om the sale of the Sm/es 2005B Bonds shall be applied in the manner set forth in the
Sale Certificate, Ihe 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
Ordinance, Ihe City Council hereby authorizes the Finance Director to allocate such proceeds to
the pmchase of the Series 2005B Surety Bond or to deposit proceeds in the Series 2005B
Reserve Fund, as determined by the Finance Dhector
Section 12. Special Obligations; Pledge and Lien tbr' Payment of Bonds
(a) Series 2005B Bonds Ihe City hereby pledges the Pledged Revenues, the
Bond l:und, 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 Ihe lien of'the Series 2005B Bonds on the Pledged
Revenues, the Bond Fund, and the Revenue Fund is on pmity with the lien of the Series
2001 Bonds, the Series 2005A Bonds, and any Additional Parity Bonds
(b) Series 2001 Bonds Ihe City hereby furthe! 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 propose 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 f~the~ pledges the Pledged
Revenues, the Bond Fund, the Series 2005A Reserve Fund and the Revenue l~und for the
Kutak Rock- };tm~ Libra~4535-2340-8896 4 ] 7
payment of' the principal of', premium, if' any, and interest on the Series 2005A Bonds at
any time Outstanding, and gxants an irxevocable and lust lien (but not necessarily an
exclusive such lien) £or such propose on the Pledged Revenues, the Bond Fund, the
Series 2005A Reserve Fund and the Revenue l:und.. '[he 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, thc Bond Fund and the Revenue l~und for' the
payment of the principal of; premium, if'any, and interest on any Additional Parity Bonds
at any time Outstanding, and g~ants an irrevocable and fi~st lien (but not necessarily an
exclusive such lien) for such ptupose on the Pledged Revenues, the Bond Fund and the
Revenue Fund Ihe lien of any Additional Parity Bonds, if issued, on the Pledged
Revenues, the Bond Fund, and the Revenue l~und 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 Ihe Bonds shall be equally and ratably
secmed by the pledge of and lien on the Pledged Revenues, the Bond l~und and the
Revenue Fund granted by this Section and shall not be entitled to any priority one over
the othe~ in the application of Pledged Revenues or the moneys on deposit at any time in
the Bond Fund and the Revenue Fund.
(1) Superior' Liens Prohibited, Ihe City shall not pledge or create any other
lien on the revenues and moneys pledged ptusuant to this Section that is superio~ to the
pledge thexeof or lien thereon pmsuant hereto
(g) Subordinate Liens Permitted Nothing heroin shall pxohibit the City from
pledging ot 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 pumuant to such subsections, provided that no such subordinate
pledge ox lien shall bc created unless and until them is delivered to the Paying Agent a
wittan certification by the Mayor' that no Event oI Defhult has occmred and is
continuing
(h) No Prohibition on AdditionM SecuriO: Nothing herein shall prohibit the
City fiom (i) using, pledging or granting a lien on any revenues fknm the Pinks and Open
Space Sales lax that are not Pledged Revenues or any othe~ moneys for the payment of
the principal of; !memium, if any, or interest on the Bonds or (ii) depositing any revenues
fiom the Paxks and Open Space Sales Iax that axe not Pledged Revenues or' any other
moneys into the Bond t~und or' the Revenue l~und (and thereby subjecting the moneys so
deposited to the pledge made and lien granted by this Section)
(i) Bonds are Specia~ Limited Obligations of the City. Ihe Bonds are
special, limited obligations of' the City payable solely fiom and secmed solely by the
Pledged Revenues and the othex somces 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
Kutak Rock ~ Firm [ ibrary-4835-2340-8896
Section 13. Conditions to Issuance of Additional Parity Bonds. So long as any Bonds
may be Outstanding:
(a) Limitations Upon Issuance oJ Additional Parity Bonds Nothing in this
Ordinance shall be conslxued to prevent the issuance by the City of Additional Parity
Bonds (including refunding obligations) payable in whole o~ in pa~t finm the Pledged
Revenues (or any designated part thereof) and constituting a lien thereon on a parity with,
but not pfiox ox supexio~ to, the lien of the Series 2001 Bonds, the Series 2005A Bonds,
the Series 2005B Bonds, and any ptevionsly issued Additional Ptuity Bonds; provided,
however; that before any such Additional Parity Bonds are authorized or actually issued,
the following conditions shall be satisfied:
(i) Ihe City is then cmrent in all payments required to have been
accumulated in the Bond Fund, the Series 2005A Reserve Fund, the Series 2005B
Restore 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 defmed in Section 23 hereof
(ii) Ihe revenues derived flora the enthe Hedged Revenues for the
twelve consecutive calendm months immediately p~eceding the month of issuance
of such Additional Paxity Bonds shall have been sufficient to pay an amount equal
to 150% of the combined maximum annual principal and interest r equi~ements (to
and including the final matmity 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) Ihe mdinance authorizing such Additional Parity Bonds shall
requi~e that a teserve fund for Additional Pmity Bonds be created in an amount
equal to the Reserve Fund Requirement for such Additional Parity Bonds, Ihe
City may, howevm, comply with the Resetve Fund Requirement ttu'ough a
Resexve Fund Contract that meets the standmds established in Section 16 hereof,
(b) Certificate oJ Revenues. A uaitten certification by a certified public
accountant who is not a regula~ salaried employee of the City that such Pledged Revenues
are sufficient to pay the mounts required by paragraph (a)(ii) of this Section shall be
conclusively presmed to be accm'ate in determining the fight of the City to authorize,
issue, sell and deliver Additional Pmity Bonds
(c) Subordinate Obligations Permitted, Nothing in this Ordinance shall be
construed to prevent the issuance by the City of' additional obligations (including
refimding obligations) payable from the Pledged Revenues (or any designated part
thereof) and having a lien thereon submdinate or junior to the lien of the Bonds
(d) Superior Obligations Prohibited Nothing in this O~dinance shall be
constr'ued to permit the City to issue additional obligations (including refunding
obligations) payable from the Pledged Revenues (o~ any designated part thereof) having a
lien thereon prior and superior to the lien of the Bonds
Kutak Rock - Fzrm L ibxary~4835-2340-gS96 4 19
(e) Refunding Obligations. Ihe provisions of this Section me subject to the
following exception:
O) 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 os any past of' the
Outstanding Bonds, such Bonds, m any part thereof, may be refunded (but only
with the consent of the Owner or Owner's thereof; unless such Bonds, at the time
of their requked smrende~' for payment, shall then matme, or shall then be subject
to redemption prior to matmity).
(ii) Limitations Upon Issuance of Parity Refunding Obligations. No
~efunding obligations payable fiom 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 refianded is on a parity with the hen thereon of' the Series
2001 Bonds, the Series 2005A Bonds, and the Series 2005B Bonds; or
(B) the refunding obligations me issued in compliance with
subsection (a) of this Section.
(iii) Partial Refunding oJ Bonds. Any refunding obligations so issued
to refund any of' the Bonds shall enjoy complete equality of' lien with any Bonds
which ate not refunded
(iv) Limitatiom Upon Refundings Any refunding obligations payable
flora the Pledged Revenues may be issued with such details as the City may by
o~dinance p~'ovide, 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 me received, shall be ttansfened from the
Parks and Open Space l~und o~ 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 1~und, and the Pledged Revenues ar'e hereby
appropriated for such purpose Moneys on deposit in the Revenue l~und shall be tmnsfened from
the Revenue 1c und and applied to the following proposes and in the following md e~ of'priority:
(a) I~IRSI, there shall be credited to the Bond Fund an amount necessary,
togethe~ with any moneys therein and available therefor, to pay the next due instal/merit
of principal of; p~emium, if'any, and interest on the Bonds;
Co) SECOND, there shall be cmdked, on a pm rata basis, to the Series 2005A
Reserve Fund, the Series 2005B Reserve l~und, the Series 2001 Reserve t~und and any
reserve fund or fiands 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
Kutak Rock - ~ inn [ ibxary4g35-2340-8896 4 2 0
Reserve Fund Requirement for such fund or to repay the pmvide~ of' a Reserve Fund
Contract fox a chaw'mg thereon. No payment need be made into any such fund so long as
the moneys therein shall equal not less than the Reserve Fund Requhement for such fund
and no da'aw has been made on any Reserve Fund Contract deposited in such fund Ihe
Reserve Fund Requirement fo~ each such fund shall be accumulated and maintained in
each such fund as a continuing reserve to be used, except as hereinaftex 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) ~HIRD, them shall be caedited to the Parks and Open Space Fund or,
subject to any limitation in the Charter; the Parks and Open Space Sales Tax Oxdinances
and the City's Municipal Code, used in any lawful manner by the City, any amounts
remaining after making the deposits mqui~ed 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 eithe! the Bond l~und, the
Saries 2005A Reserve Fund, the Series 2005B Restore Fund, the Series 2001 Reserve
Fund o~anY resmYe fired created fma series of'Additional Parity Bonds if the on deposit
in such fimds total a sum at least equal to the enthe amount of'the Outstanding Bonds as
to any principal, premimn, if any, and interest requLtements, to their ~espective matmities,
o~ to any redemption date on which the City shall have exercised its option to redeem all
o~ a portion of the Bonds then Outstanding and thereafter matming, and both accrued and
not accaucd, in which case moneys in such funds in an amount at least equal to such
p~incipal, premium, if any, and interest requixements 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 8ales lax Ordinances or the City's Municipal
Code, be used in any law~l manner' by the City
Section 15. Bond Fund. Moneys in the Bond Fund shall be used solely fo~ the puipose
of'paying the p~incipal of; pxm-aium, if'any, and inteiest on the Bonds.
Section 16. Series 2005B Reserve Fund
(a) Use od'Moneys in Series 200.5B Reserve Fund. If' on any date specified
in Section 18 hareof, the City shall have fo~ any mason failed to pay to the Paying Agent
the full amount mqu/ied to pay the next installment of principal of oI 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 ~equired shall be immediately paid, pro ~ata, to the
Paying Agent fi'om: (i) the Series 2005B Reserve Fund with ~espect to the pmfion of the
deficiency corresponding to the amounts due on the Series 2005B Bonds; (ii) the Series
2005A Reserve Fund with respect to the poition of the deficiency corresponding to the
amounts due on the Series 2005A Bonds; (i/i) the Series 2001 Reserve Fund with respect
to the polfinn of the deficiency coxresponding to thc amounts due on the Series 2001
Bonds; and (iv) any ~esetve fund o~ funds created with respect to any series of Addifional
Parity Bonds with ~espect to the portion of the deficiency conesponding to the amounts
due on such seaies of Additional Parity Bonds. Ihe money so used shall be ~eplaced in
the Series 2005A Reserve Fund, the Series 2005B Reserve Fund, the Series 2001 Reserve
Kutak Rock - firm Library4g35-2340-gg96 4 2 1
Fund and any such othe~ reserve fired or funds on a pm rata basis fiom the first Pledged
Revenues thereafter received not requhed to be otherwise applied hmeunder, 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 ur any such othe~ msmve fund or
fimds the full amount above stipulated fiom the Pledged Revenues, the diffmence
between the amount paid and the amount so stipulated shall in a like manne~ be deposited
therein fi'om the first Pledged Revenues thereafter received not required to be applied
othexwise 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 l~und and any such other reserve fund shall be used solely for the
propose of paying the principal of; premium, if any, and interest on the series of Bonds
with r'espect to which such fired is maintained.
(b) Use oJ Moneys in Excess of Reserve Fund Requirement Any moneys at
any time in excess of the Reserve l:und Requizement in the Series 2005A Reserve Fund,
the Series 2005B Reserve l~und, the Series 2001 Reserve Fund or any reserve fund o~
fimds maintained with respect to any series of Additional Parity Bonds may be
withdiawn therefrom and, subject to any limitation in the Chaxter; the Pa~ks and Open
Space Sales Iax Ordinances and the City's Municipal Code, used in any lawful manne~
by the City
(c) Reserve Fund Contract
(i) Ihe City may substitute for the cash or Permitted Investments in
any Reserve l~und a smety bond issued by an instaance company rated in the
highest rating category by S&P and Moody's (a "Resmve Fund Contract"), so
long as the amount on deposit in any Reserve Fund after such substitution is at
least equal to the Resexve Fund Requirement applicable to such Reserve l~un& In
the event the City shall substitute a Reserve Fund Conttact fox the cash or
Permitted Investments in any Reserve Fund, the amount on deposit in any
Reserve l~und shall be that amount available to be diawn or otherwise paid
pursuant to such surety bond at the time of'calculation.. If'any Reserve l~und shall
include both cash or Permitted Investments and a Reserve l~und ConUact, the cash
and Permitted Investments shall be used before any demand is made on any
Reserve Fund Contract Notwithstanding the furegoing, prior to such substitution,
(A) the City must receive an opinion of' nationally xecognized 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 fiom any Reserve Fund will not
adversely affect the exclusion fi'om gross income fur fedmal income tax purposes
of interest on the Bonds to ~vhich such Reserve Fund applies and (B) other than
the Series 2005B Smety Bond provided by the Bond Insurer, the prior' v~itten
consent of the Bond Insurer shall be a condition precedent to the deposit of any
Restore Fund Contract or Permitted Investments in lieu ora cash deposit into the
Series 2005B Reserve Fund
Katak Rock - firm [ ib~m'y4g35-2340-8896 4 22
(ii) Ihe Seiies 2005B Smety Bond is hexeby recognized to be a
Resexve Fund Contract described in paragraph (i) of this subsection (c). Upon
issuance thereof by the Bond Insmer, the Series 2005B Surety Bond shall be
deposited in the Series 2005B Reserve Fund and shall be used in the marmex
described in pmagt apb (i) of this subsection (c)
(d) Valuation o/Deposits Cash shall satisfy the Reserve Fund Requirement
for the Series 2005B Reserve Fund by the mount of' cash on deposit Permitted
Investments shall satisfy the Reserve Fund Requirement by the value of such
investments.. Ihe value of each Permitted Investment on deposit in the Series 2005A
Reserve Fund, the Series 2005B Reseave Fund, the Series 2001 Reserve Fund and any
reserve fund or funds created with respect to any series of' Additional Pmity Bonds shall
be (i) its pmchase price fi'om the date ofpumhase until the first date thereat'te~ on which
the Resexve l~und Requirement is calculated pmsuant to subsection (e) of this Section and
(ii) following each date on which the Resexve Fund Requirement is calculated pmsuant to
subsection (e) of' this Section until the next date on which the Resexve l:und Requirement
is so calculated, its fab mmket value determined as of' such calculation date. A Reserve
Fund Contract shall satisfy the~ Reserve Fund Requkement by the amount payable to the
City pmsuant to such contract
(e) Calculation oJ' Reserve Fund Requirement and Transfers Resulting
from Calculation. Ihe Reseive l~und Requirement for each of the Sexies 2005A Reserve
Fund, the Series 2005B Reserve Fund, the Series 2001 Reserve Fund and any resexve
fund ox funds meated with xespeet to any series of Additional P~uity 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 Paxity Bonds and (iii)each Novembe~ 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 he, eof'to the extent
necessary to satisfy the Reserve Fund Requirement in cash or by the pmchase of
Pmmitted Investments or a Resexve Fund Contract,
Section 17. Rebate Fund Ihe City shall deposit earnings fiom the investment of
proceeds of the Sex/es 2005B Bonds, emnings fiom the investment of'moneys on deposit in the
Bond Fund, the Series 2005B Reserve Fund and the Revenue Fund m 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 Lettex of'
Instructions
Kulak Rock - t inn I_ ibrary~1835-2340~8896 A 2 3
Section 18. Payments to and by Paying Agent.
(a) Payments to Paying Agent. No later' than the Business Day immediately
preceding each Inter est Payment Date, the City shall delive~ 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 fi'om the sources and in the priority order set forth below:
First, fiom moneys on deposit in the Bond Fund; and
Second, if' and to the extent the moneys on deposit in the Bond Fund me
not sufficient to pay the principal of; premium, if' any, ur interest due on the
Bonds on such date, fi'om the Series 2005A Reserve Fund, the Series 2005B
Reserve Fund, the Series 2001 Reserve l~und and any reserYe fund maintained
with respect to any series of Additional Parity Bonds, on a pro rata basis, pmsuant
to Section 16 hemof~
(b) Payments by Paying Ageng Ihe 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. lhe 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 oJ'Money. Any moneys in any such fund and account may be
invested in Permitted Investments. Ihe obligations in which moneys in each fund or
account me invested shall be deemed at all times to be paxt of' the respective fund ur
account, and any appreciation or loss resulting therefiom shall be recorded to such fund
or account. 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 acmuing
on the investment of' any moneys in any other such fund ur account shall be credited to
the fund or account fi'om which it is derived. Fhc Finance Directox shall present for
redemption or sale in the prevailing maxket any obligations so pmchased as an
investment of' moneys in the fund ur account whenever it shah be necessmy to do so in
order to provide moneys to meet any payment ox transfer fiom said fund or account
(b) Deposits oJFunds, lhe 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 Insmance 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 othex 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 fimds and accounts with any othe~ bank account m
accounts for other accounts of the City.
Katak Rock- firm [ibrary-4835-2340-gg96 4 24
Section 20. Additional General Covenants In addition to the other covenants of the
City contained hmein, the City heicby further covenants for the benefit of' Owners of the Series
2005B Bonds that:
(a) Payment of'Series 2005B Bonds. The City will promptly pay m cause to
be paid the principal of; p~emium, it' 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 oJ Parks and Open Space Sales Tax
Ordinances or Applicable Sections oJ Ci~'s Municipal Code. Ihe City shall not repeal
the Pa~ks and Open Space Sales Iax Ordinances or' adopt any modification of such
ordinances o~ any pr~ovisions of' the City's Municipal Code which would impair the
Pledged Revenues
(c) Dutg to Impose Open Space Sales Tax. If' the Pinks and Open Space
Sales Tax Ordinances, the provisions of' the City's Municipal Code referTed to in
subsection Co) of this Section or any modifying or supplemental inslxumeut thereto not
contravening the limitations of subsection Co) of this Section, or any prat 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 vote~ approval, if any, as may then be required by law, or to take any other action
necessary to produce at least the same mount of Pledged Revenues as would have
otherwise been produced under the terms of' such or'dinances and such portions of the
City's Municipal Code
(d) Impairment oJ ContracL Ihe City agrees that any law, ordinance or
iasolution of'the City in any manner affecting the Pledged Revenues or the Series 2005B
Bonds, shall not be repealed or otherwise directly o~ indirectly modified in such a manner
as to impai~ any Stoics 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) Recotds. So long as any of the Series 2005B Bonds remain Outstanding,
pmpea books of ~ecord and account will be kept by the City, sepmate and apmt fiom all
other records and accounts, showing complete and correct entries of all transactions
relating to the Pledged Revenues~ Ihe Owners of any Bonds shall have the right at any
reasonable time to inspect such recmds and accounts.
(f) Audits. Ihe City fmther agrees that it will, within 120 days following the
close of each fiscal yem, cause an audit of such books and accounts to be made by an
independent certified public accountant, showing the revenues and expenditmes of the
Pledged Revenues. The City agrees to finnish forthwith a copy of'each such audit to the
Owner of' any Bond at his request, and without request to the Original Pmchaser Any
such Owner shah 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.
Kutak Rock - finn l- ibrary4835~2340-88964 25
(g) Extending Interest Payments. In oxdex to prevent any accumulation of'
claims fox intmest after maturity, the City wilt not directly ox indirectly extend or assent
to thc extension of time fox the payment of any claim foe interest on any of' the Series
2005B Bonds and it will not directly ox indirectly be a pmty to or approve any such
mrangement; and in case the time fox payment of any interest shall be extended, such
installment m installments of interest after such extension m mxangement shall not be
entitled in case of default bereundez to the benefit ox' security of this Ordinance except
subject to the pxior payment in full of the principal of' ail Sm/es 2005B Bonds then
Outstanding, and of matmed interest on such Series 2005B Bonds, the payment of' which
has not been extended.
(h) Performing Duties. Ihe City will fh/thfully and punctually pexfurm all
duties with respect to the Pledged Revenues requhed by the Chmtm 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 theix
application to the respective funds.
(i) Other Liens. Othm than that glanted fox the Bonds heroin, the~e ale
pxesently no other liens o~ encumbrances of any nature whatsoever on or against the
Pledged Revenues.
C1) City's Existence Ihe City will maintain its coxpomte identity and
existence so long as any of' the Series 2005 Bonds remain Outstanding, unless anothex
body corporate and politic by operation of'law succeeds to the duties, privileges, powers,
liabilities, disabilities, immurdties and rights of the City and is obligated by law to xeceive
and distribute the Pledged Revenues in place of the City, without affecting to any
substantiai degree the privileges and rights oI a~y Owne~ of any Outstanding Series
2005B Bond.
Section 21. Covenants Regarding Exclusion o! Interest on Series 2005B Bonds from
Gross Income for' Federal Income Tax Pm'poses Fox proposes of ensuring that the interest on
the Series 2005B Bonds is and remains excluded fiom gross income fox fede~ai income tax
purposes, the City hereby covenants that:
(a) Prohibited Actions. Ihe City will not use ox parmit the use of any
proceeds of the Series 2005B Bonds ox any othm funds of'the City fium whatever soume
derived, dkectly ox indirectly, to acquke any secmities or' obligations and shall not take
or permit to be taken any othe~ action ox actions, which would cause any Series 2005B
Bond to be an "albitrage bond" within the meaning of Section 148 of the Code, or would
otharwise cause the interest on any Sexies 2005B Bond to be includible In gross income
for federal income tax proposes
Co) Affirmative Actions Ihe City will at ail times do and pexfoxm all acts
permitted by law that ale necessary in order to assure that interest paid by the City on the
Series 2005B Bonds shall not be includible in gross income fox federal income tax
purposes undcr the Code or any other valid provision of law. In particulax; but without
limitation, the City repxesents, wmxants and covenants to comply with the following roles
Kutak R°ck ' ir irm [ ibrary~835'2340-8896 4 26
unless it ~eceives 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 ur
indirectly "federally guaranteed"; and (iii)the City will timely file Internal Revenue
Furm 8038-G which shall eontain the information requited to be filed pmsuant to
Section 149(e) of the Code
(c) Letter' oJ' Instructions. The City will comply with the Letter of
Instructions, including but not limited by the provisions of' the Lette~ of' Instructions
regmding 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 Lettm 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 pmpases, the City will theteafie~ comply with the
new Lettet of Instructions
Section 22. Defeasance Any S~ries 2005B Bond shall not be deemed to be Outstanding
hetetmder if'it shall have been paid and cancelled or if cash o~ Defeasance Securities shall have
been deposited in trust for the payment thereof' (whether upon or prim to the maturity of' such
Series 2005B Bond, but if'such Series 2005B Bond is to be paid prior to maturity, the City shall
have given the Paying Agent irrevocable directions to give notice of ~edemption 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 stores 2005B Bonds shall
be defeased..
Notwithstanding anything in this Bond Ordinance to the contrary, in the event that the
principal and/ur' interest due on the Stoics 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 consideted paid by the City, and the
assignment and pledge of the Pledged Revenues and all covenants, agreements 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 Insure~ shall be subrogated to the rights of such Owners.
Section 23. Events of' Default If' any of the following events occurs, it is hereby
declared to constitute an Event of Default:
(a) defhalt in the due and punctual paymenI of' the principal of; premium, if'
any, or interest on any Bond whether at matmity thereof; ct upon proceedings for
redemption thereof} or
(b) the City is fbr any ~eason rendered incapable of' fulfilling its obligations
hereunder; or
Kutak Rock- Firm I_ ibrary4835-2340-8896 4 27
(c) default in the due and punctual performance of the City's covenants or'
conditions, agreements and provisions as set .froth in this O~dinance or' the Sale
Certificate, other than those delineated in paragraphs (a) and (b) of this Section, and such
default has continued for 30 days after written notice specifying the defhult and requiring
the same to be remedied has been given to the City by the Owners of' 25% in principal
mount of' the Series 2005B Bonds then Outstanding, which cme period shall not be
extended for' more than 60 days, cunmlatively, without the prior mitten consent of the
Bond Insmet; or
(d) the City shall file a petition for bankruptcy or shall be declared insolvent
by a corot of competent jurisdiction.
Section 24. Remedies for' and Duties Upon Events of Default,
(a) Remedies for Events oJDefault Upon the happening and continuance of
any of the Events of' Default as provided in Section 23 of' this Ordinance, then and/n
every case, the Owner or Owners of not less than 25% in principal amount oftbe Sm/es
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 tights of' any Owner of' Bonds under tiffs Ordinance by mandamus or other
suit, action m special proceedings in equity or at law, in any court of competent
jmisdiction, either for' the specific performance of' any covenant or agreement contained
herein or in an award of' execution of any power herein glanted fur the enfbrcement of'
any proper legal or equitable remedy as such Owner or Ownem may deem most effectual
to protect and enfmec the rights aforesaid, or thereby to enjoin any act or thing which
may be unlawful or in violation of' any right of' 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 Al/such proceedings at law or' in equity shall be instituted, had and maintained
for the equal benefit of all Owners of the Series 2005B Bonds then Outstanding Ihe
failtue of' any such Owner' so to proceed shall not relieve the City oi any of its officers,
agents or employees of any liability for' fhilme to perform any duty Each right or
privilege of' any such Owner (or trustee thru'eof) 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 xlght o~ privilege thereof
(b) Duties Upon Events oJDefault Upon the happening of any of the Events
of Default as provided in Section 23 of this Ch'dinanee, the City will do and perfbrm all
proper acts on behalf of and for the Owners of the Series 2005B Bonds to protect and
preserve the secmity created fox the payment of' their' Series 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 Alt proceeds derived from the Pledged Revenues,
dining 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 l~und, and used fbr the proposes herein provided In the event the City f~ils or
refuses to proceed as provided in this Section, the Owner or Owners of not less than 25%
in principal amount of the Series 2005B Bonds then Outstanding, after demand in
vaiting, may proceed to protect and enforce the rights of the Owners as herein provided.
Kutak Rock - firm kibrary4$35-2340-8896 4 28
(c) Bond Insurer Third Part~ Beneficiary; Right to Control Remedies. Io
the extent that this Ordinance confers upon ur gives oi grants to the Owners any right,
remedy m claim under ur by reason of this Ordinance, the Bond lnsta'er is hereby
explicitly recognized as being a third patty beneficiary hereunder and may enforce any
such right, remedy or claim conferred, given eT gnanted herunnder. Upon the occurrence
and continuance of an Event of Default, so long as it is not in default of' its obligations
under the Bond Insmance Policy, the Bond lnsmer shall be deemed to be the sole holder
of the Bonds and shall be entitled to control and dhect 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 be a remedy upon the
occmrence and continuance of an Event of Defhult hereunder.
Section 25. Amendment of Ordinance
(a) Consent oJOwners Subject to Section 24(c) herein, 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 Oxdinance which, in the
opinion of'Bond Counsel, is not to the material prejudice of'the Owners Ihis O~dinance
may be amended m supplemented by ordinance adopted by the City Council in
accordance with law, without receipt by the City of'any additional considmation, but with
the w~itten consent of' the Owners of 66-2/3% of the Series 2005B Bonds Outstanding at
the time of the adoption of'the amendatury ordinance, excluding any Bonds held for' the
account of' the City; provided, however, that no such urdinance, without the consent of
the Owners of all Outstanding Bonds which will be advemely affected, shall have the
effect of'permitting:
(i) an extension of the maturity of any Bond; m
(ii) a reduction in the principal amount of any Bond, the rate of intmest
thereon, or the premium payable thereon; or'
(iii) the creation ora lien upon ur pledge of' Pledged Revenues Ianklng
priur to the lien or pledge of Pledged Revenues created by this Ordinance; or
(iv) a reduction of the principal amount of Bonds required fbr consent
to such amendatory ur supplemental urdinance; m
(v) the establishment of' p~imifies as between Bonds issued and
Outstanding under' the provisions o£ this O~dinance; et
(vi) the modification of or othmwise affecting the rights of' the Owners
of'less than all of' any set ies of Bonds then Outstanding
(b) Con~ent oJ the Bond Insurer in Addition to Consent oJ Owners, The
Bond Insmer's consent shall be ~equired in addition to the consent of' Owners, when
required, for the following purposes: (i) removal of the Paying Agent and selection and
Kmak Rock - Firm/ibrary4835-2340-g896 4 29
appointment ora successor'; and initiation or approval of any action not described in (a)
above which requites the consent of Owners or which adversely affects the rights and
interests of'the Bond Insurer
Section 26. Appointment and Duties of Paying Agent.
(a) Ihe Paying Agent identified in Section 1 he~eof' is hereby appointed as
paying agent, registrm and authenticating agent fbr the Series 2005B Bonds unless and
until the City ur the Bond Insmer 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 hereunder' and its predecessor
shall immediately tmn over all its records regarding the Series 2005B Bonds to such
successor... Iht 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~
Co) Any successor Paying Agent appointed as such pmsuant to subsection (a)
of this Section must: (i) be a t~ust company or bank in good standing located in or
incmpurated 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 capital and smphis at
the time of' such appointment of' not less than $75,000,000; and (iv) be acceptable to the
Bond Insurer.
(c) Notwithstanding any othe! provision of this Ordinance, no removal,
resignation o~ termination of the Paying Agent shall take effect until a successor',
acceptable to the Bond Insurer, shall be appointed.
Section27. Authorization of the Bond Insurance Policy. Financial Secmity
Asstttance Inc, has submitted a bid to issue the Bond Insmanee Policy~ In the event that the
Finance Director determines, based in pa~t upon information provided by the Underv~itur; that
the premium bid for issuance of'the Bond Insmance 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 Dimctol the authority to execute the Commitment with
the lowest bidder. /he officers of the City me also hereby authorized and directed to take all
actions necessary to cause the Bond Insurer to issue the Bond Insurance Policy in accoxdance
with the Commitment, including without limitation, payment of' the premium due in connection
thmewith and entering into any authorizing agreement ~lhe execution of the Commitment by the
l:inance Director or appropriate officer of the City is hereby ~atified and approved..
Section 28. Bond Insurance Provisions
(a) Covenant Default Grace Period Limitation. No grace period for a covenant
default hereunde~ shall exceed 30 days ot be extended for more than 60 days, without the prior
mitten consent of the Bond Insure! No g~aec peiiod shall be permitted for' payment defaults
(b) Bond ln~urer Sole Holder. Ihe Bond Insurer shall be deemed to be the sole
holder of the Series 2005B Bonds for the purpose of exercising any voting tight ur privilege or
giving any consent or direction o~ taking any othe~ action that the Owners me entitled to take
pmsuant to the provisions of this (Zdinance pertaining to (i) defhults and remedies and (ti) the
Kutak Rock - l'inn [ }brary4835-2340-g896 4 3 0
duties and obligations of the Paying Agent Remedies granted to the Owners expressly include
mandamus pmsuant to Section 24(a) of this Ordinance
(c) Bond lnsuter Third Party Beneficia02. Io the extent that this Ordinance confers
upon or g/yes m grants to the Owners any fight, remedy or claim under or by mason of' this
Ordinance, the Bond Insmer is hereby explicitly recognized as being a third patty beneficiary
hereunder and may enfmce any such fight, remedy m 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 Insmance Policy, the Bond Insurer shall be entitled to
control and direct the enforcement of all fights and remedies granted to the Owners under th/s
Ordinance and pmsuant to State law.
(d) Amendments Require Bond Insurer ConsenL Any amendment, supplement,
modification to, or waivm of; this Ordinance ot any other transaction document including any
underlying secmity agreement (each a "Related Document"), that requires the consent of' the
Owners or adversely affects the rights and interests of the Bond Insmet shall be subject to the
prior mitten consent of the Bond Insure~.
(e) Use oJ Unexpended Bond Proceeds Upon Event of DefaulL Unless the Bond
Insurer otherwise directs, upon the occtmence and continuance of an Event of Def~mlt or an
event which with notice or lapse of' time would constitute an Event of' Default, amounts
repIesenting proceeds of the Bonds then on deposit in the City's Pinks and Open Space Fund
shall be applied solely to the payment of debt service or' ~edemption price of' the Series 2005B
Bond&
(f) Related Docurnentg. 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 pr/or vaitten consent of the Bond
Insurer.
(g) Exercise off Contractual Rights. Ihe lights granted to the Bond Insmer under
this O~dinance or any other Related Document to request, consent to or dkect any action are
rights g~anted to the Bond Insmer' in consideration of its issuance of the Bond Insmance Policy
Any exemise by the Bond Insmer nf such tights is merely an exercise of the Bond Insurer's
contractual tights and shall not be construed or deemed to be taken for the benefit, m on behalf;
of the Owners and such action does not evidence any position of'the Bond Insurer, affirmative m
negative, as to whether the consent of the Owners ot any other person is required in addition to
the consent of the Bond Insmm.
Oa) Defeasance. Only (1) cash, (2) non callable direct obligations of the United
States of America ("Ireasmies"), (3) evidences of ownership of'proportionate interests in future
interest and principal payments on Ireasmies held by a bank or t~nst company as custodian,
under which the owner of the investment is the real patty in interest and has the tight to proceed
directly and individual/y against the obligo~ and the underlying Ireasmies ate not available to
any person claiming tluough the custodian ox to whom the custodian may be obligated, (4)
subject to the prior written consent of'the Bond Insure~, pre-refunded municipal obligations rated
Kulak Rock - l~hrn ~ ibmry4$35-2340-8896 4 3 1
"AAA" and "Aaa" by S&P and Moody's, respectively, or (5) subject to the prim written consent
of'the Bond Insurei; secmities eligible fo~ "AAA" defeasance unde~ then existing criteria orS &
Poi any combination thateof; shall be used to effect defeasance of' the Series 2005B Bonds
unless the Bond Insuse~ otherwise approves,
(i) Io accomplish defeasance, the City shall cause to be delivered (i) a
~epmt of' an independent lam of nationally recognized cexfified public
accountants m such othe~ accountant as shall be acceptable to the Bond Insmer
("Accountant") verifying the sufficiency of the escrow established to pay the
Series 2005B Bonds in full on the maturity o~ redemption date ("Verification"),
(ii) an Esatow Deposit Agxeement (which shall be acceptable in foxm and
substance to the Bond Insurer), (iii) an opinion of' nationally recognized bond
counsel to the effect that the Series 2005B Bonds ate no longer "Outstanding"
unde~ this Oxdinance 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 ad&essed, to the City, Paying Agent and
Bond Insme~ Ihe Bond Instuer shall be pxovided with final drafts of' the above
referenced documentation not less than five business days pfio~ to the funding of
the escrow..
(ii) Bonds shall be deemed "Outstanding" undeI this Ordinance unless
and until they ate in fhct paid and retired o~ the above criteria ate met.
(iii) Amounts paid by the Bond Insmer unde~ the Bond Insurance
Policy shall not be deemed paid fo~ proposes of' this O~dinance and the Series
2005B Bonds ~elating to such payments shall remain Outstanding and continue to
be due and owing until paid by the City in accmdance with this OMinance~ Ihis
Ordinance shall not be dischmged unless all amounts due o~ to become due to the
Bond Insme~ have been paid in full o~ duly provided fbr
Claims Upon the Bond Insurance Poliqy and Payments by and to the Bond
(i) If; on the third Business Day pfio~ to the related scheduled interest
payment date or principal payment date (each, a "Payment Date") there is not on
deposit with the Paying Agent, afiat making all lxansfe~s and deposits ieqalJed
unde~ this Oxdinance, 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 Insm'er and to its designated agent (if any) (the "Bond fusure~'s
l:iscal Agent") by telephone m telecopy of the amount of such deficiency by
12:00 noon, New YoIk City time, on such Business Day If, on the second
Business Day prim to the related Payment Date, the~e continues to be a deficiency
in the amount available to pay the principal of and interest on the Series 2005B
Bonds due on such P~yment Date, the Paying Agent shall make a claim under the
Bond Insurance Policy and give notice to the Bond Insurer and the Bond insmer's
l~iscal Agent (if' any) by telephone of the amount of such deficiency, and the
allocation of such deficiency between the amount ~equiied to pay intexest on the
Kutak Rock - [irm [ ibraxy4835-2340-8896
Series 2005B Bonds and the mount iequixed to pay principal of the Series 2005B
Bonds, confirmed in vaiting to the Bond Insmer and the Bond Insurer's Fiscal
Agent by 12:00 noon, New Ymk City time, on such second Business Day by
filling in the from of Notice of' Claim and Certificate delivered with the Bond
Insmance Policy,
(ii) Ihe Paying Agent shall designate any portion of payment of
pxincipal on Series 2005B Bonds paid by the Bond Insmex, whether by virtue of
mandatory sinking fund redemption, maturity or other' advancement of maturity,
on its books as a reduction in the principal amount of Bonds registered to the then
cm~'ent Owner, whether DIC or' its nominee or otherwise, and shall issue a
replacement Series 2005B Bond to the Bond Insmet, registered in the name of
Financial Secmity Assmunce Inc, in a principal amount equal to the amount of
principal so paid (without regmd to authorized denominations); provided that the
Paying Agent's failme to so designate any payment o~ 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 Insmm
(iii) Ihe Paying Agent shall keep a complete and accmate record of all
funds deposited by the Bond Insmer into the Policy Payments Account (def'med
below) and the allocation of such fimds to payment of'interest on and principal of
any Series 2005B Bond "[he Bond Insmm shall have the right to inspect such
recurds 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 propose trust account for the
benefit of' the Owners tefened to herein as the "Policy Payments Account" and
over which the Pay/rig Agent shall have exclusive control and sole right
withdrawal, Ihe Paying Agent shall receive any amount paid under' the Bond
Insurance Policy in t~ust on behalf of the Owners and shall deposit any such
amount in the Policy Payments Account and distribute such amount only for
purposes of malting the payments for which a claim was made Such amounts
shall be disbmsed by the Paying Agent to the Owners in the same manne~ as
principal and interest payments me 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 necessmy for such payments to be made by checks or wee transfers
sepmate fi'om the check or wire transfer used to pay debt smvice with other funds
available to make such payments.. Notwithstanding 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 Insmer under the Bond Insmance Policy (the "Bond
Insurer' Advances"); and (ii) interest on such Bond Insurer Advances fiom the
date paid by the Bond Insmer until payment thereof in full, payable to the Bond
Insurer at the Late Payment Rate per annam "Late Payment Rate" means the
lesser' of (a) the g~eater of (i) the per annam rate of' interest, publicly announced
fiom time to time by lPMorgan 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 intmest to
Kutak Rock - Firm r iht ary-4835 -2340-§896 4 33
be effective on the date such change is announced by lPMorgan Chase Bank) plus
3%, and (ii) the then applicable highest rate of imerest on the Series 2005B Bonds
and (b) the maximum rate permissible under applicable usmy or similm laws
limiting interest rates Ihe Late Payment Rate shall be computed on the basis of
the actual number of days elapsed over a yeax of 360 days.
(v) Funds held in the Policy Payments Account shall not be invested
by the Paying Agent and m~y 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) Ihe Bond Insurer' shall, to the extent it makes any payment of'
principal of or interest on the Stoics 2005B Bonds, become suhiogated to the
rights of the recipients of such payments in accordance with the terms of the Bond
Insmance Policy. Each obligation of' the City to the Bond Insurer under the
Related Documents shall smvive dischaxge or termination of' such Related
Documents.
(vii) Ihe City shall pay m 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 pmsuit of'
any remedies under this O~dinance or any othax Related Document or otherwise
afforded by law or equity, (iii) any amendment, waiver' or othe~ action with
respect to, or' related to, this Ordinance or any other Related Document whether or
not executed ox completed, or' (iv) any litigation or other' dispute in connection
with this Ordinance or any other Related Document or the transactions
contemplated thereby, other than costs resulting fi'om the fhilore of' the Bond
Insmer to hono~ its obligations unde~ the Bond Insorance Policy, Ihe Bond
Insmer reserves the fight to chmge a reasonable f~e as a condition to executing
any amendment, waiver or consent proposed in respect of' this Ordinance or any
othm Related Document,
(viii) After payment of reasonable expenses of the Paying Agent, the
application of funds realized upon default shall be applied to the payment of'
expenses of the City or rebate only afte~ the payment of past due and cmrent debt
service on the Series 2005B Bonds and mounts required to restore the Series
2005B Reserve Fund to the Reserve lmnd Requirement.
(ix) Ihe Bond Insutca shall be entitled to pay principal or interest on
the Series 2005B Bonds that shall become Due for Payment but shall be unpaid
by ~eason of' Nonpayment by the City (as such terms axe defined in the Bond
Insmance Policy) and any amounts due on the Series 2005B Bonds as a result of
acceleration of the matmity thereof in accordance with this Ordinance, whether or
not the Bond Insurex has received a Notice of Nonpayment (as such tetras me
defined in the Bond Insmnnce Policy) or a claim upon the Bond Insurance Policy
Kutak Rock - Firm l_ibrary4835-2340-8896 4 34
O) Notice. Ihe notice address of' the Bond Insmer is: Financial Secmity
Assurance Inc., 31 West 52nd Stteet, New York, New York 10019, Attention: Managing
Director- Smveillance, Re: Policy No , Ielephone: (212) 826-0100;
Ielecopier: (212~ 339-3556.. In each ease in which notice or other commun/cation refer's
to an Event of Default, then a copy of such notice or othe~ communication shall also be
sent to the attention of the General Counsel and shall be marked to indicate "URGEN3[
MAIERIAL ENCLOSED"
(k) Information to be Provided by Bond Insurer. Ihe Bond Insurer shall be
p~'ovided with the following information by the City or Paying Agent, as the case may be:
(i) Annual audited financial statements within 150 days after the end
of' the City's fiscal yem' (together with a certification of the City that it is not
aware of' any default or Event of' Default under' this O~dinance), and the City's
annual budget within 30 days after the approval thereof togethe! with such other'
information, data or repmts as the Bond Insurer shall reasonably request
time to time;
(ii) Notice of' any diaw 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 refimding of Bonds;
(iii) Notice of any default known to the Paying Agent or City within
five Business Days after knowledge thereof;
(iv) Prior notice of the advance refimding or redemption of' any of' the
Series 2005B Bonds, including the principal mount, maturities and CUSIP
numbers thmeof:,
(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 Banlauptcy Code or any
other applicable bankxuptcy, insolvency, receivership, rehabilitation or similax
law (an "Insolvency Proceeding");
(vi/) Notice of the making of' any claim in connection with any
Insolvency Proceeding seeking the avoidance as a lmeferential transfer of any
payment of principal of; or interest on, the Stoles 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
Kutak Rock - Firm I ibr ary4 835-27,40-8896 4 3 5
(ix) All reports, notices and correspondence to be delivered to Owners
under the trams of the Related Documents.
(1) In determining whether any amendment, consent or other action to be taken, or
any failme to take action, under this Ordinance would adversely affect the secmity for' the Series
2005B Bonds oi the rights of the Owners, the Paying Agent shall consider' the effect of any such
amendment, consent, action or inaction as if'them were no Bond Instuance Policy
(m) No contract shall be entered into or any action taken by which the rights of' the
Bond Insmm m secmity form somces 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
]nsmer.
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' ~ant to, any person or' entity, other
than the City, the Paying Agent, the Bond Insmer and the Owners of' the Series 2005B Bonds,
any right, remedy or claim under ot by reason of' this Ordinance or' any covenant, condition or'
stipulation hereof; and all covenants, stipulations, promises and agleements in this Ordinance
contained by and on behalf of the City shall be for the sole and exclusive benefit of the City, the
Paying Agent, the Bond Insmm 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 paxticulat payment, event or action, if
any payment to be made hereunder or any event or action to ocem heaeundat' which, but for this
Section, is to be made o~ is to ocetu on a day that is not a Business Day shall instead be made o~
occtu' on the next succeeding day that is a Business Day..
Section 31. Approval of Documents and Authorization of Officers. Ihe City Council
hereby ratifies and approves the distribution and use of the Prcliminaty 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 prepaxe 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 axe approved by the Finance Director ox the City Attorney of' the City; and
authorizes and approves the Bond Pmchase Agreement in substantially the form presented to or
made available to the City Council, with such changes therein, not inconsistent herewith, as axe
approved by the Finance Director or the City Attorney of' the City Ihe Mayor' or Mayor Pro
rem is hereby authorized and directed to execute the final Official Statement l~or 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 axe atrtho~ized by
this Ordinance, including such detexminations as axe delegated to the l~inance Director pmsuant
to this Ordinance and which, once executed, shall constitute conclusive evidence of approval of'
the City the Mayor or Mayor Pro Iem, the City Clerk and all other officers of the City ate
hereby authorized and directed to execute the financial guaxanty agreement with respect the
Series 2005B Smety Bond between the City and the Bond Insm'at; an undertaking to facilitate
compliance with Secmifies and Exchange Commission Rule 15e2-12 (17 C.I) R. §240.15c2-12);
an agreement with the Paying Agent concerning the duties and obligations of the Paying Agent
Kutak Rock - Firm ][ ibrary4835-2340~8§96 4 3 6
with respect to the Series 2005B Bonds; the Escrow Agreement; a "Iax Compliance Certificate"
or similax 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 speoified in Section Il(d) hereof axe expended; an Internal Revenue Sexvice ~orm
8038-G with respect to the Sexies 2005B Bonds; and all other' documents and certificates
necessary or desiiable 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.. Ihe l~inaneo Director is hereby
authorized to execute and deliver the Sale Certificate pmsuant to the authority delegated
hereunder Ihe Sale Ceafificate, upon execution by the Finance Director, is inco~pmated into
this Ordinance as it the provisions thereof were fully set forth herein
Section 32. Findings and Determinations. ]Yhe City Council hereby fmds, determines
and declaxes 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 fox the proposes
provided 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 ox the Chmter by the City Council, the Finance Dhectm, or'
by the officers and employees of' the City directed towaxd the issuance oX' the Series 2005B
Bonds for the ptaposes herein set forth are hereby ratified, approved and confirmed.
Section 34. Repeal ot Inconsistent Resolutions; Contract with Owners of' Series
2005B Bonds; Resolution Ir'repealable All ordinances and resolutions, or parts thereof, that
arc in conflict with this Ordinance are hereby repealed. After the Series 2005B Bonds have been
issued, this Ordinance shall bc and remain a contract between the City and the Owners of the
Series 2005B Bonds and shall be and remain incpealablc until all amounts duc with rcspeot to
the Stoles 2005B Bonds shall be fully paid, satisfied and discharged and all othe~ 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, Ihe headings to the
vaxious sections and subsections to this Ordinance, and the cover page and table of'contents that
appear' at fi'ont of this Ordinance, have been inserted solely fo~ the convenience of the reader; are
not a prat of this Ordinance and shall not be used in any mannei to interpret this Ordinance~
Section 36. Severabtiity It is hereby expressly declaxed that all provisions hereof and
their application are intended to be and ate severable In mdm to implement such intent, if' any
provision hereof or the application thereof is detmmined by a corot or' administrative body to be
invalid o~ unenfomeable, 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 theaeof is determined by a corot or
administrative body to be valid or enforceable only if its application is limited, its application
shall be limited as requlied to most fully implement its propose.
Kutak Rook - rirm L ibmy4835 -2M0-8896 4 3 7
Section 37. Recordation. A t~ue copy of'this Ordinance, as adopted by the City Council
of the City, shall be numbmed and ~ecm'ded, and its adoption and publication shall be
authenticated by the signatmes 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 p~ices and interest rotes and due to ctu~ently fhvo~able interest rotes and due to
the need to p~ese~-~e public property, health, peace and safety, it is hmeby declared that, in the
opinion of'the City Council, an emergency exists, and thmefore this O~dinance shall be in full
force and effect upon its passage
[~emaindm of this page intentionally left blank]
Kutak Rock - Firm Libmry-4g35 -234198896 4 3 8
INIRODUCED, READ AND PASSED ON FIRSI READING AS AN EMERGENCY
MEASURE by the City Council of'the City of Aspen at its meeting on Septembe~ 19, 2005, as
provided by the City's Chmte~ and applicable law
[SEAL] ~
Attest:
/City Clerk // '
READ, PASSED ON SECOND READING, ]FINALLY ADOPIED AND APPROVED
AS AN EMERGENCY MEASURE AND ORDERED PUBLISHED WIIHIN 10 DAYS OF
SUCH FINAL PASSAGE by the City Council of the City of Aspen at its special meeting on
September 26, 2005, as p~ovided by the City's Chmte~ and a
[SEAL] --
Attest:
By /~'/~~? )~~
/C~ty Clerk ~// - '
[signatme page to Bond O~dinance]
Kulak Rock - Firm Lib~a~4835-2 M0-8896 4 39