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HomeMy WebLinkAboutordinance.council.072-82 STATE OF COLORADO ) COUNTY OF PITKEN ) SS. CITY OF ASPEN ) I , Kathryn S. Koch, the duly qualified and acting City Clerk of the City of Aspen, Pitkin County, Colorado, do hereby certify : Attached hereto is a true , full, and correct copy of Ordinance No. 72 (Series of 1982) finally adopted by the City Council of the City of Aspen at its special meeting held Thursday , December 9 , 1982, at the City Hall, and the original Ordinance is kept in my office, in my care and custody. WITNESS my hand and the seal of the City affixed this December 16 , 1982 . 1/11,ity Clerk (SEAL) -2- ORDINANCE NO. 72 (SERIES OF 1982) AN ORDINANCE AUTHORIZING THE ISSUANCE OF THE CITY OF ASPEN, COLORADO, SALES TAX REFUNDING REVENUE BONDS, SERIES DECEMBER 1 , 1982, IN THE PRINCIPAL AMOUNT OF . $1,105,000 FOR REFUNDING PURPOSES; PROVIDING FOR THE PLEDGE THERETO OF THE INCOME DERIVED BY THE CITY FROM DESIGNATED SALES TAXES; PRESCRIBING DETAILS AND COVENANTS CONCERNING THE BONDS, THE TAXES AND THE REFUNDING PROJECT; RATIFYING ACTION PREVI- OUSLY TAKEN; REPEALING ALL ORDINANCES, IF ANY, IN CONFLICT HEREWITH; DECLARING AN EMERGENCY; AND PROVIDING THE EFFEC- TIVE DATE HEREOF. WHEREAS, the City of Aspen (the "City") , in the County of Pitkin and State of Colorado, is a legally and regularly created, established, organized and existing municipal corporation under the provisions of Article XX of the Constitution of the State of Colorado and the home rule charter of the City (the "Charter") ; and WHEREAS, the City has , by Ordinance No. 16 (Series of 1970) , adopted by the governing body of the City on July 13 , 1970, and approved by the qualified electors of the City on September 1, 1970 (the "1970 Sales Tax Ordinance") , levied a tax of 1% (the "Open Space Sales Tax") on the sale of tangible personal property at retail and the furnishing of services in the City and has provided therein that revenue from the Open Space Sales Tax shall be set aside in a separate fund designated the "Land Acquisition Including Open Space and Capital Improvements Fund" and expended as follows: " for the acquisition of real property including open space or construction of capital improvements for municipal purposes, and for the payment of indebtedness incurred for such land acquisition including open space or construction of capital improvements, food tax refunds payable by the City, and for such expenditures as may be necessary to pro- tect the real properties including open space acquired or the capital improvements constructed from any and all threatened, or actual , damages , loss , destruction or impairment from any cause or occurences " and WHEREAS, the City has, by Ordinance No. 15-A (Series of 1972) , adopted by the governing body of t?,e City on August 28, 1972, and approved by the qualified electors of the City on November 7 , 1972 (the "1972 Sales Tax Ordinance") , levied an additional tax of 1% (the "1972 Sales Tax") on the sale of tangible personal property at retail and the furnishing of services in the City and has provided therein that such additional tax shall be expended as follows: " for the payment of food tax refunds , capital improvements and capital expenditures, acquisition of land, payment of indebtedness incurred for such capital improvements, capital expenditures or land acquisition, general operating purposes, and for such expenditures as may be necessary to protect the real property acquired or the capital improvements constructed or purchased from any and all threatened or actual, damages, loss, destruction or impairment from any cause or occurrences. " and WHEREAS , the Board of County Commissioners of Pitkin County, Colorado, has, by Resolution, adopted on October 7, 1968, and approved by the qualified electors of Pitkin County on November 5, 1968, as modified by Resolution No. 78-121 , adopted on October 2 , 1978, and approved by the qualified electors of Pitkin County on November 7 , 1978 (the "County Sales Tax Resolutions") levied a 2% tax (the "County Sales Tax") on the purchase price paid or charged upon all sales and purchases of tangible, personal property at retail and for furnishing services in Pitkin County and has provided therein that a designated portion of such County Sales Tax shall be distrib- uted to the City and other incorporated municipalities within the County; and WHEREAS , the City has heretofore issued its Sales Tax Refunding Revenue Bonds, Series 1978 (the "1978 Refunding Bonds") , in the original principal amount of $6 ,030,000 , of which there remain outstanding bonds in the principal amount of $4 ,950 ,000 , bearing interest, payable semiannually on April 1 and October 1 in each year, and maturing serially on the dates and in the amounts, as follows: Interest Rate Principal Dates (Per Annum) Maturing Maturina 6 .25% $280 ,000 4/1/83 6 .25 100 ,000 10/1/83 6 .25 290 ,000 4/1/84 6 .25 120 ,000 10/1/84 6 .25 300 ,000 4/1/85 6 .25 130 ,000 10/1/85 6 .25 315,000 4/1/86 6 .25 145 ,000 10/l/86 6 .25 330,000 4/1/87 6 .25 160 ,000 10/1/87 6 .25 345 ,000 4/1/88 6 .25 175 ,000 10/1/88 6 .30 355 ,000 4/1/89 6 .30 200 ,000 10/1/89 6 .30 380 ,000 4/1/90 6 .30 210 ,000 10/1/90 6 .40 40J ,000 4/1/91 6 .40 225 ,000 10/1/91 6 .50 415 ,000 4/1/92 6 .50 75 ,000 10/1/92 the 1978 Refunding Bonds having been issued for the purpose of refunding prior outstanding bonds of the City; and WHEREAS , the City Council of the City (the "governing body") has determined and hereby declares that 23.7% of each maturity of the 1978 Refunding Bonds is properly allocable to purposes for -2- which the 1972 Sales Tax may be expended pursuant to the 1972 Sales Tax Ordinance ; and WHEREAS, the 1978 Refunding Bonds are secured in part by, and constitute a first and prior lien on, the Open Space Sales Tax, the 1972 Sales Tax and the City's share of the County Sales Tax; and WHEREAS, Section 10 .6 of the Charter provides in relevant part : "The council may authorize, by ordinance, without an elec- tion, issuance of refunding bonds or other like securities for the purpose of refunding and providing for the payment of the outstanding bonds or other like securities of the City as the same mature, or in advance of maturity by means of an escrow or otherwise. " and WHEREAS , the governing body has determined and hereby declares that the refunding of the 1978 Refunding Bonds (in part with the Bonds herein authorized and in part with the City' s Sales Tax Refunding and Improvement Revenue Bonds, Series December 1 , 1982 , being issued simultaneously with the Bonds herein authorized) will permit the modification and elimination of restrictive contractual limitations imposed by the 1978 Refunding Bonds ; will permit an appropriate segregation of the Open Space Sales Tax and the 1972 h Sales Tax; and will effect other economies ; and WHEREAS, upon the refunding of the 1978 Refunding Bonds, there will be no other obligations of the City having a lien upon the 1972 Sales Tax. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 . Definitions. The terms defined in this section shall have the designated meanings for all purposes of this ordinance and of any amendatory or supplemental ordinance, except where the context by clear implication requires otherwise. Other terms are parenthetically defined elsewhere in this ordinance. A. "Bond Fund" means the special account created in Section 19 of this ordinance and designated as the "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series December 1 , 1982 , Bond Fund. " B. "County Sales Tax" means that portion of the 2% sales tax levied by the County of Pitkin, Colorado, pursuant to the County Sales Tax Resolutions and distributed to the City as provided therein. -3- C. "County- Sales max Resolutions" means the Resolution, adopted by the Board of County Commissioners of Pitkin County, Colorado, on October 7 , 1968, and approved by the qualified electors of Pitkin County on November 5, 1968, as modified by Resolution No. 78-121, adopted by the Board of County Commissioners of Pitkin County on October 2, 1978, and approved by the qualified electors of „Pitkin County on November 7 , 1978. D. "Escrow Account" means that special account credited in Section 12 of this ordinance and designated as the "City of Aspen, Colorado , Sales Tax Refunding Revenue Bonds, Series December 1 , 1982 , Escrow Account. " E. "Escrow Agreement" means that certain agreement between the City and the Escrow Agent, dated as of December 1 , 1982 , and designated as the "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series December 1 , 1982 , Escrow Agreement. " F. "Escrow Agent" means the Central Bank of Denver , Denver, Colorado. G. "1982 Bonds or Bonds" means the "City of Aspen , Colorado, Sales Tax Refunding Revenue Bonds, Series December 1 , 1982 , " authorized by this Ordinance. H. "1972 Sales Tax" means the additional 1% sales tax levied by the City pursuant to the 1972 Sales Tax Ordinance. I. "1970 Sales Tax Ordinance" means Ordinance No. 16 (Series of 1970) , adopted by the governing body of the City on July 13 , 1970, and approved by the qualified electors of the City on September 1 , 1970 . J. "1978 Refunding Bonds" means the "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series 1978, " issued on August 7 , 1978. R. "1978 Refunding Bond Ordinance" means Ordinance No. 9 (Series of 1978) , adopted by the governing body of the City on July 31 , 1978, authorizing the issuance of the 1978 Refunding Bonds. -4- L. "1972 Sales Tax Ordinance" means Ordinance No. 15-A (Series of 1972) , adopted by the governing body of the City on August 2 8 , 1972, and approved by the qualified electors of the City on November 7 , 1972. M. "Paying Agent" means the City Treasurer of the City. N. "Pledged Revenues" means (1) all receipts and revenues derived from time to time by the City from the 1972 Sales Tax pursuant to the 1972 Sales Tax Ordinance, after due provision for any food tax refunds required by the 1972 Sales Tax Ordinance, the 1970 Sales Tax Ordinance, or otherwise ; and (2) all receipts and revenues derived from time to time by the City from any legally available tax or taxes which replace or supercede the 1972 Sales Tax. 0. "Purchaser" means Kirchner Moore & Company, Denver, Colorado. P. "Refunded Bonds" means that portion of the outstand- ing 1978 Refunding Bonds designated in the Escrow Agreement. Q. "Refunding Project" means the payment of the princi- pal of, interest on and any redemption premium due in con- nection with the Refunded Bonds, as provided in this ordi- nance and the Escrow Agreement. R. "Reserve Fund" means the special account created in Section 19 of this ordinance and designated as the "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series December 1 , 1982 , Reserve Fund. " S. "Revenue Fund" means the special account created in Section 19 of this ordinance and designated as the "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series December 1 , 1982 , Revenue Fund. " Section 2 . Ratification. All action heretofore taken (not inconsistent with the provisions of this ordinance) by the Council and officers of the City relating to the levy and collection of the 1972 Sales Tax ; to the Refunding Project; and to the authorization, sale and issuance of the 1982 Bonds is hereby ratified, approved and confirmed. -5- Section 3 . Aut or i zation of Project . The Refunding Project is hereby authorized and the necessity thereof declared. Section 4 . Authorization and Sale of Bonds. There are hereby authorized to be issued the negotiable, coupon, revenue bonds of the City to be designated "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series December 1 , 1982" in the aggregate principal amount of $1 ,105,000 , to be payable and collectible, both as to principal and interest (except as herein otherwise provided) , from the Pledged Revenues. The Bonds as herein authorized shall be sold to the Purchaser at a price consisting of the principal amount thereof, accrued interest from their date to the date of their deliv- ery, less a discount of 2 .1380% . Section 5 . Bond Details. The Bonds shall be dated as of December 1 , 1982, shall consist of 221 bonds in the denomination of $5,000 each, numbered consecutively from 1 to 221, inclusive, shall bear interest from date until maturity at the rates hereinafter des- ignated, as evidenced by one set of interest coupons attached there- to, payable on May 1 and November 1 in each year, commencing May 1 , 1983 , and shall be numbered and mature serially on November 1 , as follows : Amounts Years Bond Numbers Interest Rates Maturing Maturina 1-18 6 .30% $ 90 ,000 1983 19-35 6 .80% 85 ,000 1984 36-53 7 .10% 90 ,000 1985 54-72 7 .70% 95 ,000 1986 73-93 8.10% 105,000 1987 94-115 8 .40% 110 ,000 1988 116-139 8.70% 120 ,000 1989 140-165 8 .95% 130 ,000 1990 166-193 9.10% 140 ,000 1991 194-221 9 .30% 140 ,000 1992 The principal of, interest on, and any redemption premium due in con- nection with (the "Bond Requirements") the Bonds shall be payable in lawful money of the United States of America, without deduction for exchange or collection charges, at the Paying Agent. In the event any of the Bonds shall not be paid at maturity upon presentation, such Bonds shall thereafter continue to draw interest at the same rate per annum until the principal thereof is paid in full. Section 6 . Prior Redemption. Bonds maturing on and after November 1 , 1988 , shall be subject to redemption prior to their respective maturities, at the option of the City, in whole or in part in inverse numerical order, on November 1 , 1987 , or on any interest payment date thereafter, at a price equal to the principal amount of each Bond so redeemed, accrued interest thereon to the redemption date, and a premium of one percent (1%) of the principal amount of -6- each Bond so redeemed, if redeemed on or before November 1, 1990 , and no premium if redeemed thereafter. Notice of redemption shall be given by the Treasurer of the City in the name of the City by publi- cation at least once, not less than thirty days before the redemption date, in a newspaper of general circulation in the City, and a copy of the notice shall be sent by first-class mail, postage prepaid, at least thirty days before the redemption date, to the Purchaser. The notice shall specify the number or numbers of the Bonds to be so redeemed (if less than all are to be redeemed) and the date fixed for redemption, and shall further state that on the redemption date there will become and be due and payable upon each Bond so to be redeemed at the Paying Agent, the principal amount thereof plus accrued inter- est to the 'redemption date and the stipulated premium, and that from and after that date interest will cease to accrue. Notice having been given in the manner hereinabove provided, the Bonds so called for redemption shall become due and payable on the redemption" date so designated; and upon presentation thereof at the Paying Agent, together with all appurtenant coupons maturing after the redemption date, the City will pay the Bonds so called for redemption. Section 7 . Negotiability. Subject to the provisions spe- cifically made or necessarily implied in this ordinance, the Bonds and coupons appertaining thereto shall be fully negotiable, and shall have all the qualities of negotiable paper, and the holder or holders thereof shall possess all rights enjoyed by the holders of negotiable instruments under the provisions of the Uniform Commercial Code - Investment Securities. Section 8 . Form and Execution of Bonds and Coupons. Before the execution of the Bonds, each person whose facsimile signa- ture will appear on the Bonds, as hereinafter- provided, if such filing has not previously been made, shall forthwith file with the Secretary of State his or her manual signature certified by him or her under oath. The Bonds shall be executed in the name of the City with the engraved, printed, stamped or otherwise reproduced facsimile signature of the Mayor, shall be manually countersigned by the City Treasurer, shall be sealed with the seal of the City, or with a fac- simile thereof, and shall be signed and attested with the facsimile signature of the City Clerk. The interest coupons attached to the Bonds shall be executed with the engraved, printed, stamped or other- wise reproduced facsimile signatures of the City Clerk and City Treasurer. The Bonds shall be recorded in a book kept by the City Clerk for that purpose. The Bonds and the coupons bearing the manual or facsimile signatures of the officers in office at the time of the signing thereof shall be the valid and binding obligations of the -7- City, notwithstanding that before the delivery thereof and payment therefor any or all of the persons whose manual or facsimile signa- tures appear thereon shall have ceased to fill their respective offices. Section 9 . Special Obligations. The Bond Requirements of the Bonds shall be payable and collectible solely out of the Pledged Revenues, which income is irrevocably so pledged; the holder or hold- ers thereof may not look to any general or other fund for the payment of such Bond Requirements , except the designated special funds pledged therefor ; and the Bonds shall not constitute an indebtedness or a debt within the meaning of the Charter or any applicable consti- tutional or statutory provision or limitation; nor shall they be con- sidered or held to be general obligations of the City. Section 10 . Bond and Coupon Form. Subject to the provi- sions of this ordinance, the Bonds and the coupons attached thereto shall be in substantially the following form: -8- notwithstanding that before the delivery thereof and payment therefor any or all of the persons whose manual or facsimile signatures appear thereon shall have ceased to fill their respective offices. Section 9. Special Obligations. The Bond Requirements of the Bonds shall be payable and collectible solely out of the Pledged Revenues, which income is irrevocably so pledged; the holder or hold- ers thereof may not look to any general or other fund for the payment of such Bond Requirements, except the designated special funds pledged therefor ; and the Bonds shall not constitute an indebtedness or a debt within the meaning of the Charter or any applicable consti- tutional or statutory provision or limitation; nor shall they be con- sidered or held to be general obligations of the City. Section 10 . Bond and Coupon Form. Subject to the provi- sions of this ordinance, the Bonds and the coupons attached thereto shall be in substantially the following form: -8- (Form of Bond) UNITED STATES OF AMERICA STATE OF COLORADO COUNTY OF PITKIN CITY OF ASPEN, COLORADO SALES TAX REFUNDING REVENUE BONDS SERIES DECEMBER 1 , 19 82 $5,000 NO. The City of Aspen ( "City") , in the County of Pitkin and State of Colorado, for value received hereby promises to pay upon presentation and surrender of this bond to the bearer hereof solely from the special funds provided therefor as hereinafter set forth, on November 1 , 19_, the principal sum of FIVE THOUSAND DOLLARS and to pay solely from said special funds interest thereon at the rate of percent per annum, payable semiannually on May 1 and November 1 in each year, commencing May 1, 1983 , upon presentation and surrender of the annexed coupons as they severally become due. Principal, any prior redemption premium and interest (the "Bond Requirements") are payable in lawful money of the United States of America without deduction for exchange or collection charges at the office of the City Treasurer, in Aspen, Colorado. If upon presentation at maturity, payment of this bond is not made as herein provided, interest shall continue at the same rate per annum until the principal is paid in full. Bonds of the series of which this is one (the "bonds") maturing on and after November 1 , 1988, are subject to redemption prior to their respective maturities at the option of the City, in whole or in part in inverse numerical order, on November 1 , 1987, or on any interest payment date thereafter, at a price equal to the principal amount of each bond so redeemed, accrued interest thereon to the redemption date and a premium of one percent (1%) of such principal amount if redeemed on or before November 1 , 1990, and no premium if redeemed thereafter , such redemption to be made upon not less than thirty days' prior notice given in the manner and upon the conditions provided in the ordinance authorizing the issuance of this bond (the "Bond Ordinance") . This bond is one of a series of 221 bonds of like designa- tion, tenor, amount and date, except as to number, interest rate, prior redemption option and maturity, authorized for the purpose of a Refunding Project, as defined and described in the Bond Ordinance. -9- This bond is issued pursuant to and in strict compliance with the Charter of the City and the Constitution and laws of the State of Colorado. This bond does not constitute an indebtedness of the City within the meaning of any charter, constitutional or statutory provi- sion or limitation, shall not be considered or held to be a general obligation of the City, and is payable solely from, is lien secured by a pledge of , and constitutes an irrevocable and first necessarily an exclusively first lien) on, the Pledged Revenues, as defined and described in the Bond Ordinance. The holder hereof may not look to any general or other fund for the payment of the Bond Requirements of this bond except the special funds pledged therefor. Reference is made to the Bond Ordinance for the provisions, among others, with respect to the custody and application of the proceeds of the bonds, the receipt and disposition of the Pledged Revenues, the nature and extent of the security, the terms and conditions under which additional bonds payable from the Pledged Revenues may be issued, the rights, duties and obligations of the City, and the rights of the holders of the bonds ; and by the acceptance of this bond the holder hereof assents to all provisions of the Bond Ordinance. This bond is subject to the conditions, and every holder hereof by accepting the same agrees with the obligor and every subse- quent holder hereof, that (a) the delivery of this bond to any trans- feree shall vest title in this bond and in the interest coupons attached hereto in the transferee to the same extent for all purposes as would the delivery under like circumstances of any negotiable instrument payable to bearer ; (b) the obligor or any agent of the obligor may treat the bearer of this bond as the absolute owner hereof for all purposes and shall not be affected by any notice to the contrary; (c) the Bond Requirements of this bond shall be paid, and this bond and each of the coupons appertaining hereto are trans- ferable, free from and without regard to any equities between the obligor and the original or any intermediate holder hereof for any setoffs or cross-claims ; and (d) the surrender to the obligor or any agent of the obligor of this bond and of each of the coupons shall be a good discharge to the obligor for the same. It is further certified, recited and warranted that all the requirements of law have been fully complied with by the City Council and officers of the City in the issue of this bond. IN WITNESS WHEREOF, the City of Aspen has caused this bond to be signed and executed in its name and upon its behalf with the facsimile signature of its Mayor and with the manual countersignature -10- of its City Treasurer, has caused the seal as causedt to be affixed this bond to be hereon or to appear hereon by facsimile, h attested by the facsimile signature of the City Clerk, and has cause the annexed coupons to be authenticated with the facsimile ers 1 ,1 ures of the City Clerk and City Treasurer, all as of Dece CITY OF ASPEN By (Mayor (FACSIMILE SEAL) Attest : ( acsimi19 nom: tin a i-u Lg) City Clerk Countersigned: (Ma City Treasurer (End of Form of Bond) -11- (Form of Coupon) Coupon $ No. On May 1/November 1 , 19_ (unless the bond to which this coupon is attached, if callable, has been duly called for prior redemption on an earlier date and payment duly provided therefor) , the City of Aspen, in the County of Pitkin and State of Colorado, upon surrender of this coupon, will pay to bearer in lawful money of the United States of America, without deduction for exchange or col- lection charges , at the office of the City Treasurer in Aspen, Colorado , the amount herein stated solely from and secured by a pledge of designated special funds, such amount being the interest then due on its Sales Tax Refunding Revenue Bonds, Series December 1 , 1982 , and bearing Bond No. (Facsimile Signature) ` City Treasurer (Facsimile Signature) City Clerk (End of Form of Coupon) -12- Section 11 . Delivery-2f Bonds. When the Bonds shall have been duly executed, and payment therefor duly received, the City Treasurer shall deliver them to the Purchaser. Section 12 . pgnosition of Bond Proceeds. The proceeds derived from the sale of the Bonds, upon the receipt thereof, shall immediately be deposited and accounted for in the following manner and priority : A. Bond Fund. First , there shall be credited to the Bond Fund, created below, all moneys received as accrued interest on the Bonds from their date to the date of their delivery, to apply to the payment of the interest due on the Bonds on May 1 , 1983 . B. Reserve Fund. Second, there shall be cred- ited to the Reserve Fund, created below, the amount of $0 .00 . C. Escrow Account. Third, there shall be cred- ited to a special account hereby created and to be known as the "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series December 1 , 1982 , Escrow Account " such amount, not to exceed $1 ,075 ,000 , as shall be required to effect the Refunding Project. - - - - - -D.- Expenses. Fourth , the -remaining -proceeds - - - derived from the sale of the Bonds shall be credited to a special account hereby created and used to pay the costs of issuance of the Bonds, including without limitation any bond- insurance premiums. Section 13 . Additional Deggsits. Upon the issuance of the Bonds the City Treasurer shall : (1) Escrow Account. From funds of the City legally available therefor to the Escrow Account such amount, not to exceed $150 , as shall be necessary to effect the Refunding Project ; and (2) Reserve Fund. From the reserve fund cre- ated for the 1978 Refunding Bonds transfer to the Reserve Fund, created below, the amount of $165 ,000 . -13- Section 14 . Execution of Escrow .Agreement . The appropriate officials of the City as designated in the Escrow Agreement, are hereby authorized to execute the Escrow Agreement on behalf and in the name of the City and so to enter into a contract with the Escrow Agent as provided in the Escrow Agreement. The Escrow Agreement shall be in substantially the form on file in the of f ice of the City Clerk on the date of the f inal adoption of this ordinance, with such omissions, instructions, endorsements and varia- tions as may be required by the circumstances, be required or permit- ted by this ordinance, or as may be consistent with this ordinance and be necessary or appropriate to conform to the rules and require- ments of any governmental authority or any usage or requirement of law with respect thereto. Section 15 . Maintenance of Escrow Account. The Escrow Account shall be maintained by the City at the Escrow Agent in an amount at the time of the deposit and at all times subsequently at least sufficient, together with the known minimum yield to be derived from the initial investment and any temporary reinvestment of the deposits therein in Federal Securiti-es as provided in the Escrow Agreement (such investment and reinvestment being hereby authorized) , to pay any reasonable charges of the Escrow Agent payable from such account and to pay the Bond Requirements of the Refunded Bonds, both accrued and not accrued, as the same become due. Section 16 . Use of Escrow Account. Moneys shall be with- drawn by the Escrow Agent from the Escrow Account in sufficient amounts and times to permit the payment without default of the Bond Requirements of the Refunded Bonds as provided in this ordinance and the Escrow Agreement. Any moneys remaining in the Escrow Account after provisions shall have been made for the payment in full of the Bond Requirements of the Refunded Bonds shall, subject to any limita- tions in the 1970 Sales Tax Ordinance, the 1972 Sales Tax Ordinance, or the County Sales Tax Resolutions, be applied in any lawful manner by the City. Section 17 . Insufficiency of Escrow- Account. If for any reason the amount in the Escrow Account shall at any time be insuffi- cient to pay the Bond Requirements of the Refunded Bonds as the same become due, the City shall forthwith from the first moneys available therefor deposit in the Escrow Account such additional moneys as shall be necessary for such purpose. Section 18. purchaser Not Responsible. The Purchaser, any associate thereof, and any subsequent holder of any Bond shall not be responsible for the application or disposal by the City or any agent -14- or employee of the City of the proceeds derived from the sale of the Bonds or of any other moneys herein designated. Section 19. Application of Pledged Revenues. So long as any of the Bonds shall be remain outstanding, as to any Bond Requirements, all Pledged Revenues, as they are received, shall be deposited into a special account hereby created and designated as the "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series December 1 , 1982, Revenue Fund; " and the Pledged Revenues are hereby appropriated for such purpose. The following payments shall be made from the Revenue Fund : A. Bond Fund. First , commencing on May 1 , 1983 , and on each May 1 and November 1, thereafter, there shall be credited to a special account hereby created and designated as to the "City of Aspen, Colorado, Sales Tax Refunding Revenue Bonds, Series December 1 , 1982, Bond and Interest Fund" an amount necessary, together with any moneys therein and available therefor, to pay the next due principal of and interest on the Bonds then outstanding. B. Reserve Fund. `Second , commencing November 1 , 1983, and on each November 1, thereafter to and including November 1 , 1987 , there shall be credited to a special account hereby created and designated as the "City of Aspen, Colorado , Sales Tax Refunding Revenue Bonds, Series December 1 , 1982 , Reserve Fund" such sums as shall be required to increase in equal installments the amount in the Reserve Fund to an amount equal to the maximum annual principal and interest requirements of the Bonds then out- standing (the "Minimum Reserve") . No payment need be made into the Reserve Fund so long as the moneys therein shall equal not less than the Minimum Reserve. The Minimum Reserve shall be accumulated and maintained in the Reserve Fund as a continuing reserve to be used, except as herein- after provided, only to prevent deficiencies in the payment of the Bonds Requirements of the Bonds resulting from the failure to deposit into the Bond Fund sufficient funds to pay the same as they accrue. C. Termination Upon Deposits to Maturity or Redemption Date. No payment need be made into either the Bond Fund or Reserve Fund, if the amounts in the Bond Fund and Reserve Fund total a sum at least equal to the entire amount of the outstanding Bonds , as to any Bond -15- Requirements, to their respective maturities, or to any redemption date on which the City shall have exercised its option to redeem the Bonds then outstanding and thereafter maturing, and both accrued and not accrued, in which case moneys in the two funds in an amount at least equal to such Bond Requirements shall be used solely to pay such as the same accrue, and any moneys in excess thereof in the two funds may, subject to any limitations in the 1970 Sales Tax Ordinance, the 1972 Sales Tax Ordinance or the County Sales Tax Resolutions, be used in any lawful manner by the City. D. Defraying Del ;nguenc, es in Bond and Reserve Funds. If in any period the City shall for any reason fail to pay into the Bond Fund the full amount above stipulated, then an amount shall be immediately paid into the Bond Fund from the Reserve Fund equal to the difference between that paid from the Reserve Fund and the full amount so stipulated. The money so used shall be replaced in the Reserve Fund from the first Pledged Revenues thereafter received not required to be otherwise applied by this sec- tion, but excluding any payments required for any subordi- nate obligations. In the event other obligations are out- standing the lien to secure the payment of which on the Pledged Revenues is on a parity with the lien thereon of the Bonds, and the proceedings authorizing the issuance of those obligations require the replacement of moneys in a reserve fund therefor , then the moneys replaced in the Reserve Fund and in each such other fund shall be replaced on a pro rata basis as moneys become available therefor. If in any period the City shall for any reason fail to pay into the Reserve Fund the full amount above stipulated from the Pledged Revenues, the difference between the amount paid and the amount so stipulated shall in a like manner be immediately paid therein from the first Pledged Revenues thereafter received not required to be applied otherwise by this section, but excluding any payments required for any subordinate obligations. The moneys in the Bond Fund and in the Reserve Fund shall be used solely for the purpose of paying the Bond Requirements of the Bonds; provided, howev- er, that any moneys at any time in excess of the Miminum Reserve in the Reserve Fund may be withdrawn therefrom and, subject to any limitations in the 1970 Sales Tax Ordinance, the 1972 Sales Tax Ordinance or the County Sales Tax Resolutions, used in any lawful manner by the City. -16- E. payment for Additional Obligations. Con- currently with ( in the case of parity lien obligations) or subsequently to ( in the case of subordinate lien obligations) the payments required by paragraphs A and B of this Section, any remaining amounts in the Revenue Fund shall be `used by the City for the payment of interest on and principal of any additional obligations hereafter authorized to be issued and payable from the Pledged Revenues, including reasonable reserves therefor , as the same accrue. F. Use of Remaining Revenues. A f ter ma k i n g the payments required to be made by this section, any remaining amounts in the Revenue Fund may, subject to any limitations in the 1970 Sales Tax Ordinance, the 1972 Sales Tax Ordinance or the County Sales Tax Resolutions, be used in any lawful manner by the City. Section 20 . General Administration of Funds. The accounts designated in Sections 12 and 19 of this ordinance (except the Escrow Account) shall be administered as follows, subject to the limitations stated in paragraph L of Section! 25 of this ordinance : A. Investment of Money. Any moneys in any such account may be invested as provided by law. The obliga- tions so purchased as an investment of moneys in such account shall be deemed at all times to be part of said account, and any appreciation or loss resulting therefrom shall be recorded to such account. Interest accruing on the investment of any moneys in the Reserve Fund shall be deposited as received into the Revenue Fund, and interest accruing on the investment of any moneys in any other such account shall be credited to the account from which it is derived. The City Treasurer shall present for redemption or sale on the prevailing market any obligations so pur- chased as an investment of moneys in the account whenever it shall be necessary to do so in order to provide moneys to meet any payment or transfer from the account. B. Deposits of Funds. The moneys and invest- ments comprising each of such accounts shall be deposited in one or more banks or savings and loans associations, each of which is a member of the Federal Deposit Insurance Corporation or Federal Savings and Loans Insurance Corporation. Each payment shall be made into and credited -17- to the proper account on the date specified, such date shall be a Sunday or a legal holiday, in which case the payment shall be made on the next preceding secular day. Nothing herein shall prevent the establishment of one such bank account or more, for all of such accounts, or shall prevent the combination of such accounts with any other bank account or accounts for other accounts of the City. Section 21 . First Lien on Pledged Revenues. The bonds are secured by a pledge of, and constitute an irrevocable and first lien (but not necessarily an exclusively first lien) on, the Pledged Revenues. Section 22 . Equality of Bonds. The Bonds shall not be entitled to any priority one over the other in the application of the Pledged Revenues. Section 23 . Additional Obligations. So long as the Bonds may be outstanding: A. Limitations Upon Issuan a of Parity Obligations. Nothing in this ordinance shall be construed to prevent the issuance by the City of additional obliga- tions (including refunding obligations) payable in whole or in part from the Pledged Revenues (or any designated part thereof) and constituting a lien thereon on a parity with, but not prior or superior to, the lien of the Bonds; pro- vided, however , that before any such additional parity obligations are authorized or actually issued: (1) The City is then current in all payments required to have been accumulated in the Bond Fund and Reserve Fund, and there is not otherwise an "event of default" under this ordinance. (2) The revenues derived from the entire Pledged Revenues for the twenty-four calendar months next preceding the month of issuance of such additional parity obligations shall have been sufficient to pay an amount equal to one hundred forty percent (140%) of the combined maximum annual principal and interest requirements (to and including the final maturity of the Bonds) on the then outstanding Bonds, any then outstanding parity lien obligations theretofore issued, and the parity lien obligations then proposed to be issued ( including any reserve requirements therefor) . (3) The ordinance authorizing such additional parity lien obligations shall require that a reserve fund -18- for such obligations be created or accumulated (in not more than five annual installments) in an amount equal to the maximum annual principal and interest requirements of the parity lien obligations proposed to be issued. B. Certificate of Revenues. A written certifi- cation by a certified public accountant who is not a regu- lar salaried employee of the City that such Pledged Revenues are sufficient to pay the amounts required by paragraph A(2) of this Section shall be conclusively pre- sumed to be accurate in determining the right of the City to authorize, issue, sell and deliver additional obliga- tions on a parity with the Bonds. C. Subordinate Obligations Permitted. Nothing in this ordinance shall be construed to prevent the issu- ance by the City of additional obligations (including refunding obligations) payable from the Pledged Revenues (or any designated part thereof) and having a lien thereon subordinate or junior to the lien of the Bonds. F D. Superior Obligations Prohibited. Nothing in this ordinance shall be construed to permit the City to issue additional obligations ( including refunding obligations) payable from the Pledged Revenues (or any des- ignated part thereof) having a lien thereon prior and superior to the lien of the Bonds. Section 24 . Ref unding Obligations. The provisions of Section. 23 of this ordinance are subject to the following exceptions : A. Privilege ege of Issuing Refunding Obligations. If at any time after the Bonds, or any part thereof, shall have been issued and remain outstanding, the City shall find it desirable to refund all or any part of the out- standing Bonds or other outstanding obligations payable in whole or in part from the Pledged Revenues, such Bonds or other obligations, or any part thereof, may be refunded (but only with the consent of the holder or holders there- of, unless such Bonds or other obligations, at the time of their required surrender for payment, shall then mature, or shall then be callable for prior redemption at the City' s option) . -19- B . Limitations Upon Issuance of Parity Refunding Obligations. No refunding obligations payable from the Pledged Revenues (or any designated part thereof) shall be issued on a parity with the Bonds, unless: (1) The lien on such Pledged Revenues of the outstanding obligations so refunded is on a parity with the lien thereon of the Bonds ; or (2) The refunding obligations are issued in com- pliance with paragraph A of Section 23 of this ordinance. C. Partial Refunding of Bonds. Any refunding obligations so issued to refund any of the Bonds shall enjoy complete equality of lien with any Bonds which are not refunded. D. Limitations Upon Refundinas. Any refunding obligations payable from the Pledged Revenues may be issued with such details as the City may by ordinance provide, but without any impairment of any contractual obligations imposed upon the City by this ordinance. K Section 25 . Protective Covenants. The City hereby addi- tionally covenants and agrees with each and every holder of the Bonds that : A. Use of Bond Proceeds. The City will proceed with the Refunding Project without delay, as hereinabove provided. B. Payment of Bonds Herein Authorized. The City will promptly pay the Bond Requirements of the Bonds at the place, on the dates and in the manner provided in this ordinance and in the Bonds and coupons, according to the true intent and meaning of this ordinance. C. No Repeal or Modification of Tax Ordinances. The City shall not repeal the 1972 Sales Tax Ordinance or adopt any modification of such ordinance which would impair the Pledged Revenues derived therefrom. D. Preservation of_ County Sales Tax. The City shall take whatever action may be required to preserve and protect the Pledged Revenues derived from the County Sales Tax Resolutions. -20- E. Duty to Impose Sales Tax. If the 1972 Sales Tax Ordinance or the County Sales Tax Resolutions or any modifying or supplemental instrument not contravening the limitations of paragraphs C and D of this Section, or any part of that ordinance or resolutions, shall ever be held to be invalid or unenforceable, it shall be the duty of the City, to the extent possible under then existing law, to adopt immediately such ordinances, to seek such voter approval, if any, as may then be required by law, or take any other action necessary to produce at least the same amount of Pledged Revenues as would have otherwise been produced under the terms of such ordinance . and resolutions. F. Imt�ai rment of Contract. The City agrees that any law, ordinance or resolution of the City in any manner affecting the Pledged Revenues or the Bonds shall not be repealed or otherwise directly or indirectly modi- fied in such a manner as to impair any Bonds outstanding, unless in the case of this ordinance the required consent of the holders of the then outstanding Bonds is obtained pursuant to Section 33 of this ordinance. G. Records. So long as any of the Bonds remain outstanding, proper books of record and account will be kept by the City, separate and apart from all other records and accounts, showing complete and correct entries of all transactions relating to the Pledged Revenues. The holders of any Bonds shall have the right at any reasonable time to inspect such records and accounts. H. Audits. The City further agrees that it will, within 120 days following the close of each fiscal year, cause an audit of such books and accounts to be made by an independent certified public accountant, showing the revenues and expenditures of the Pledged Revenues. The City agrees to furnish forthwith a copy of each of such audit to the holder of any of the bonds at his request, and without request to the Purchaser. Any such holder shall have the right to discuss with the accountant or person making the audit its contents and to ask for such addi- tional information as he may reasonably require. -21- I. Extending Interest Payments. In order to prevent any accumulation of coupons or claims for interest after maturity, the City will not directly or indirectly extend or assent to the extension of time for the payment of any coupon or claim for interest on any of the Bonds, and it will not directly or indirectly be a party to or approve any such arrangement; and in case the time for pay- ment of any coupons shall be extended, such coupon or installment or installments of interest after such exten- sion or arrangement shall not be entitled in case of default hereunder to the benefit or security of this ordi- nance except subject to the prior payment in full of the principal of all Bonds issued hereunder and then outstand- ing, and of matured interest on such Bonds the payment of which has not been extended. J. Performing Duties. The City will faithfully and punctually perform all duties with respect to the Refunding Project and Improvement and Acquisition Project and to the Pledged Revenues required by the Charter and the Constitution and laws of thk State of Colorado, and the ordinances and resolutions of the City, including but not limited to the proper segregation of the Pledged Revenues and their application to the respective funds. R. Other Liens. There are no liens or encum- brances of any nature whatsoever on or against the Pledged Revenues. L. No Arbitrage Covenant. The City will make no use of the proceeds of the Bonds which will cause the bonds to be arbitrage bonds as defined by Section 103 (c) of the Internal Revenue Code, as amended, or which would result in the loss of exemption from federal income taxa- tion of interest on the Bonds or any other City obligations. M. City ' s Existence. The City will maintain its corporate identity and existence so long as any of the Bonds remain outstanding, unless another body corporate and politic by operation of law succeeds to the duties, privi- leges, powers, liabilities, disabilities, immunities and rights of the City and is obligated by law to receive and distribute the Pledged Revenues in place of the City, -22- without affecting to any substantial degree the privileges and rights of any holder of any outstanding Bonds. Section 26 . Ref easance. When all Bond Requirements of any Bonds have been duly paid, the pledge and lien and all obligations hereunder shall thereby be discharged as to such Bonds and such bonds shall no longer be deemed to be outstanding within the meaning of this ordinance. There shall be deemed to be such due payment when the City has placed in escrow and in trust with a commercial bank located within or without the State of Colorado and exercising trust powers, an amount sufficient (including the known minimum yield from Federal Securities in which such amount may be initially invested) to meet all Bond Requirements on such Bonds as the same become due to their final maturities or upon designated prior redemption dates. The Federal Securities shall become due prior to the respective times on which the proceeds thereof shall be needed, in accordance with a schedule established and agreed upon between the City and the bank at the time of the creation of the escrow, or the Federal Securities shall be subject to the redemption at the option of the holders thereof to assure such availability as so needed to meet such schedule. "Federal Securities" within the meaning of this section shall include only direct obligations of, or obligations the princi- pal of and interest on which are unconditionally guaranteed by, the United States of America and which are not callable before maturity by the issuer of such obligations. Section 27 . Delegated Powers. The officers of the City hereby are authorized and directed to take all action necessary or appropriate to effectuate the provisions of this ordinance, including without limitation the acquisition of bond insurance, the printing of the Bonds and the execution of such certificates as may be required by the Purchaser. Section 28 . Events of Default. Each of the following events is hereby declared an "event of default" : A. Nonpayment of Principal . Payment of the principal of any of the Bonds shall no} be made when the same shall become due and payable, either at maturity, or by proceedings for prior redemption, or otherwise ; or B. Nonpayment of Interest. Payment of any installment of interest shall not be made when the same becomes due and payable or within 30 days thereafter ; or -23- C. Incapable to Perform. The City shall for any reason be rendered incapable of fulfilling its obligations hereunder; or D. Default of any Provision. The City shall make default in the due and punctual performance of its covenants or conditions, agreements and provisions con- tained in the Bonds or in this ordinance on its part to be performed, other than those delineated in paragraphs A, B and C of this Section, and if such default shall continue for 60 days after written notice specifying the default and requiring the same to be remedied shall have been given to the City by the holders of 33 1/3% in principal amount of the Bonds then outstanding. Section 29. Remedies for Defaults. Upon the happening and continuance of any of the events of default as provided in Section 28 of this ordinance, then and in every case the holder or holders of not less than 33 1/3% in principal amount of the Bonds then outstand- ing, including but not limited to a trustee or trustees therefor, may proceed against the City and its agents, officers and employees, to protect and enforce the rights of any holder of Bonds or coupons under this ordinance by mandamus or other suit, action or special proceedings in equity or at law, in any court of competent jurisdic- tion, either for the specific performance of any covenant or agree- ment contained herein or in an award of execution of any power herein granted for the enforcement of any proper legal or equitable remedy as such holder or holders may deem most effectual to protect and enforce the rights aforesaid, or thereby to enjoin any act or thing which may be unlawful or in violation of any right of any Bondholder, or to require the governing body _to act as if it were the trustee of an express trust, or any combination of such remedies. All such pro- ceedings at law or in equity shall be instituted, had and maintained for the equal benefit of all holders of the Bonds and coupons then outstanding. The failure of any such holder so to proceed shall not relieve the City or any of its officers, agents or employees of any liability for failure to perform any duty. Each right or privilege of any such holder (or trustee thereof) is in addition and cumulative to any other right or privilege, and the exercise of any right or privilege by or on behalf of any holder shall not be deemed a waiver of any other right or privilege thereof. Section 30 . Duties URon Default. Upon the happening of any of the events of default as provided in Section 28 of this ordinance , the City, in addition, will do and perform all proper acts -24- on behalf of and for the holders of the Bonds and coupons to protect and preserve the security created for the payment of their Bonds and coupons and to insure the payment of the Bond Requirements of bonds promptly as the same become due. All proceeds derived from the Pledged Revenues, during such period of default and so long as any of the Bonds, as to any Bond Requirements, are outstanding and unpaid, shall be paid into the Bond Fund, and ratably and equitably into sim- ilar funds for parity obligations, if any, hereafter issued pursuant to the terms hereof , and used for the purposes therein provided. In the event the City fails or refuses to proceed as in this section provided, the holder or holder of not less than 33 1/3% in principal amount of the Bonds then outstanding, after demand in writing, may proceed to protect and enforce the rights of the Bondholders as here- inabove provided. Section 31 . Seve ability Clause. If any section, para- graph, clause or provision of this ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceabil- ity of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this ordinance. Section 32 . Repealer Clause. All bylaws, orders, resolu- tions and ordinances, or parts thereof , inconsistent herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any bylaw, order, resolu- tion or ordinance, or part thereof, heretofore repealed. Section 33 . Amendment. This ordinance may be amended by ordinance adopted by the governing body in accordance with law, with- out receipt by the City of any additional consideration but with the written consent of the holders of 66 2/3% of the Bonds and outstand- ing at the time of the adoption of the amendatory ordinance, exclud- ing any Bonds held for the account of the City; provided, however, that no such ordinance, without the consent of the holders of all outstanding Bonds which will be adversely affected, shall have the effect of permitting: A. Extension of Maturity. An extension of the maturity of any Bond authorized by this ordinance ; or B. Reduction of- Principal . A reduction in the principal amount of any Bond, the rate of interest thereon, or the prior redemption premium payable thereon; or C. Creation of Lien. The creation of a lien upon or pledge of Pledged Revenues ranking prior to the -25- lien or pledge of Pledged Revenues created by this ordinance ; or D. Consent. A reduction of the principal amount of Bonds required for consent to such amendatory or supple- mental ordinance; or E. Establishment of Priorities. The estab - lishment of priorities as between Bonds issued and out- standing under the provisions of this ordinance ; or F. Modification of Rights. The modification of or otherwise affecting the rights of the holders of less than all of the Bonds then outstanding. Section 34 . Ordinance Irrepealable. After any of the Bonds herein authorized are issued, this ordinance shall be and remain irrepealable until the bonds and interest thereon shall be fully paid, cancelled and discharged as herein provided. Section 35 . Declaration of Emergency and Effective Date. In order to. complete the issuance and sale of the Bonds prior to the F effective date of federal legislation adversely affecting such issu- ance and prior to the date on which the proceeds thereof will be needed to effect the Refunding Project, it is hereby declared that an emergency exists and that this ordinance is necessary for the preser- vation of the public property, health, peace and safety. This ordi- nance shall be effective upon final adoption and shall be published within ten days following final adoption, or as soon thereafter as possible. Section 36 . Recordation. A true copy of this ordinance, as adopted by the governing body of the City, shall be numbered and recorded and its adoption and publication shall be authenticated by the signatures of the Mayor and the City Clerk, and by a certifica- tion of publication. Section 37 . Public Hearing. A public hearing on the ordi- nance shall be held on :he 9th day of December, 1982, at 12 o'clock noon in the City Council Chambers, Aspen City Hall, 130 S. Galena Street, Aspen, Colorado. -26- INTRODUCED, READ, AND ORDERED PUBLISHED at its regular adjourned meeting on December 1 , 1982 , as provided by law, by the City Council. Mayor (SEAL) Attest : y Clerk FINALLY ADOPTED AND APPROVED at its special meeting on December 9 , 1982 , by the City Council. a y, Mayor (SEAL) Attest: 26�� ity Clerk -27-