HomeMy WebLinkAboutordinance.council.032-14 CERTIFIED RECORD
OF
PROCEEDINGS OF THE CITY COUNCIL
OF THE CITY OF ASPEN, COLORADO
RELATING TO AN ORDINANCE
AUTHORIZING THE ISSUANCE OF:
City of Aspen, Colorado
Parks and Open Space Sales Tax Revenue Refunding and Improvement Bonds
Series 2014
This cover page is not a part of the following ordinance and is included solely for the
convenience of the reader.
EMERGENCY ORDINANCE NO. 32 (SERIES OF 2014)
AN ORDINANCE AUTHORIZING THE ISSUANCE BY THE CITY OF
ASPEN, COLORADO, OF ITS PARKS AND OPEN SPACE SALES TAX
REVENUE REFUNDING AND IMPROVEMENT BONDS, SERIES 2014, FOR
THE PURPOSE OF ADVANCE REFUNDING A PORTION OF THE CITY'S
PARKS AND OPEN SPACE SALES TAX REVENUE BONDS, SERIES 2005B
AND PURCHASING AND IMPROVING TRAIL, RECREATION AND OPEN
SPACE PROPERTIES AND ANCILLARY FACILITIES; PRESCRIBING THE
FORM OF THE SERIES 2014 BONDS; PROVIDING FOR THE PAYMENT
OF THE SERIES 2014 BONDS FROM THE SAME REVENUES PLEDGED
TO THE PAYMENT OF THE SERIES 2005B BONDS TO BE REFUNDED
(CONSISTING OF THE CITY'S ORIGINAL 1.0% OPEN SPACE SALES TAX
AND ITS ADDITIONAL 0.5% OPEN SPACE SALES TAX); PROVIDING
OTHER DETAILS AND APPROVING OTHER DOCUMENTS IN
CONNECTION WITH THE SERIES 2014 BONDS; DELEGATING THE
AUTHORITY TO MAKE A FINAL DETERMINATION OF CERTAIN TERMS
OF THE SERIES 2014 BONDS; DIRECTING OFFICERS OF THE CITY TO
EXECUTE CERTAIN DOCUMENTS IN CONNECTION WITH SUCH
REFUNDING BONDS; AND DECLARING AN EMERGENCY
WHEREAS, the City of Aspen (the "City"), in the County of Pitkin and State of
Colorado, is a legally and regularly created, established, organized and 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 (as more particularly defined in Section 1 herein, the "Charter")
(all capitalized terms used and not otherwise defined in the recitals hereof shall have the meaning
assigned in Section 1 of this Ordinance); and
WHEREAS, under the Charter, the City is possessed of all powers which are necessary,
requisite or proper for the government and administration of its local and municipal matters, all
powers which are granted to home rule municipalities by the Colorado Constitution, and all
rights and powers that now or hereafter may be granted to municipalities by the laws of the State
of Colorado; and
WHEREAS, pursuant to Section 10.6 of the Charter, the City Council of the City (the
"City Council") may authorize, by ordinance, without an election, the issuance of refunding
bonds for the purpose of refunding and providing for the payment of the City's outstanding
bonds;
WHEREAS, pursuant to the provisions of Article 56 of Title 11, Colorado Revised
Statutes, as amended (the "Refunding Act"), the City is authorized to issue refunding bonds for
the purpose of refunding, paying and discharging any part of the Series 2005B Bonds (described
below) and for one or more other purposes, including but not limited to effecting certain
economies for the City, subject to the terms, conditions and limitations in the Refunding Act; and
WHEREAS, Article X, Section 20 of the Colorado Constitution ("TABOR") provides
that voter approval in advance is required for the creation of any district (as such term is defined
in TABOR, which includes governmental entities such as the City) direct or indirect debt or
other multiple-fiscal year financial obligation whatsoever except for refinancing district bonded
debt at a lower interest rate; and
WHEREAS, pursuant to the City's Ordinance No. 16, Series of 1970 (the "Original Parks
and Open Space Sales Tax Ordinance"), the City levies a one percent (1.00%) sales tax (the
"Original Parks and Open Space Sales Tax") on all sales of tangible property and services
specified in Section 23.32.090 of the City's Municipal Code for the payment of food tax refunds,
and for the acquisition of real property including open space or construction of capital
improvements for municipal purposes, or the payment of indebtedness incurred for such
acquisition or construction of capital improvements for municipal purposes, for the expenditures
necessary to protect such property against loss, damage or destruction; and
WHEREAS, receipts from the Original Parks and Open Space Sales Tax are required by
Section 23.32.060(c)(2) of the City's Municipal Code to be set aside in a separate fund entitled
"Parks and Open Space Fund" and expended by the City Council solely for the acquisition of
parks, trails and open space real property, for the construction of improvements on any real
property, owned or purchased by the City for parks, trails and open space purposes, for the
maintenance of real property owned by the city and used for parks, trails and open space, and for
payment of indebtedness incurred for acquisition or improvement of parks, trails and open space
real property, food tax refunds payable by the City, and for such expenditures as may be
necessary to protect real property or the improvements thereon owned by the City for parks,
trails and open space purposes and for the payment of sales tax revenue bonds issued by the City;
and
WHEREAS, the following question (the "Ballot Question") regarding the imposition of
an additional 0.5% sales tax (as defined herein, the "Additional Parks and Open Space Sales
Tax" and, collectively with the Original Parks and Open Space Sales Tax, the "Parks and Open
Space Sales Tax") and the issuance of sales tax revenue bonds for the purpose of buying,
improving and maintaining trail, recreation and open space properties and ancillary facilities was
submitted to the electors of the City at the City's November 7, 2000 election, and was approved
by a majority of those voting on the question:
SHALL CITY OF ASPEN TAXES BE INCREASED UP TO
$2,280,000.00 (FIRST FULL FISCAL YEAR DOLLAR INCREASE, NET OF
ANY CONSTITUTIONALLY REQUIRED TAX CUTS) ANNUALLY BY THE
IMPOSITION OF AN ADDITIONAL 0.5% SALES TAX COMMENCING ON
JANUARY 1, 2001, AND TERMINATING ON DECEMBER 31, 2025, AND
SHALL CITY OF ASPEN DEBT BE INCREASED BY AN AMOUNT NOT TO
EXCEED $38.0 MILLION WITH A MAXIMUM REPAYMENT COST OF
$91,065,000.00 FOR THE PURPOSE OF BUYING, IMPROVING AND
MAINTAINING TRAIL, RECREATION AND OPEN SPACE PROPERTIES
AND ANCILLARY FACILITIES;
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SUCH DEBT TO CONSIST OF REVENUE BONDS PAYABLE FROM
CITY SALES TAXES THAT BEAR INTEREST, MATURE, ARE SUBJECT
TO REDEMPTION, WITH OR WITHOUT PREMIUM, AND ARE ISSUED,
DATED, AND SOLD, AT SUCH TIMES AS NEEDED TO FINANCE THE
PURCHASES OR IMPROVEMENTS AS DESCRIBED ABOVE, AT SUCH
PRICES (AT, ABOVE OR BELOW PAR) AND IN SUCH MANNER AND
CONTAIN SUCH TERMS AS THE CITY COUNCIL MAY DETERMINE;
AND
SHALL ANY EARNINGS (REGARDLESS OF AMOUNT) FROM THE
INVESTMENT OF THE PROCEEDS OF SUCH TAXES AND SUCH BONDS
CONSTITUTE A VOTER-APPROVED REVENUE CHANGE?
and
WHEREAS, the City, pursuant to Ordinance No. 7, Series of 2001 (the "Additional Parks
and Open Space Sales Tax Ordinance" and, together with the Original Parks and Open Space
Sales Tax Ordinance, the "Parks and Open Space Tax Ordinances"), has since January 1, 2001
levied the Additional Parks and Open Space Sales Tax and, pursuant to Section 23.32.060(c)(6)
of the City's Municipal Code, deposits the revenues of the Additional Parks and Open Space
Sales Tax in the Parks and Open Space Fund; and
WHEREAS, on August 21, 2001, pursuant to Ordinance No. 29 (Series of 2001) (the
"Series 2001 Ordinance"), the City issued the City of Aspen, Colorado, Parks and Open Space
Sales Tax Revenue Bonds, Series 2001 (the "Series 2001 Bonds"), originally issued in the
aggregate principal amount of$10,.780,000, none of which remains outstanding, for the purpose
of providing funds for buying, improving and maintaining trail, recreation and open space
properties and ancillary facilities; and
WHEREAS, on March 24, 2005, pursuant to its Ordinance No. 19 (Series of 2005) (the
"Series 2005 Ordinance"), the City issued the City of Aspen, Colorado, Sales Tax Revenue
Refunding Bonds, Series 2005 (the "Series 2005 Bonds"), originally issued in the aggregate
principal amount of$12,380,000 and presently outstanding in the aggregate principal amount of
$5,610,000, for the purpose of refunding the City's Sales Tax Revenue Bonds, Series 1999; and
WHEREAS, on October 12, 2005, pursuant to its Ordinance No. 42 (Series of 2005) (the
"Series 2005B Ordinance"), the City issued the City of Aspen, Colorado, Parks and Open Space
Sales Tax Revenue Bonds, Series 2005B (the "Series 2005B Bonds"), originally issued in the
aggregate principal amount of$14,900,000 and presently outstanding in the aggregate principal
amount of$1,540,000, for the purpose of buying, improving and maintaining trail, recreation and
open space properties and ancillary facilities; and
WHEREAS, on December 15, 2009, pursuant to its Ordinance No. 24 (Series of 2009)
(the "Series 2009 Ordinance"), the City issued the City of Aspen, Colorado, Parks and Open
Space Sales Tax Revenue Refunding Bonds, Series 2009 (the "Series 2009 Bonds"), originally
issued in the aggregate principal amount of $7,070,000 and presently outstanding in the
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aggregate principal amount of $5,665,000, for the purpose of refunding a portion of the Series
2001 Bonds (the remainder of which Series 2001 Bonds have now been paid); and
WHEREAS, on September 10, 2012, pursuant to its Ordinance No. 22 (Series of 2012)
(the "Series 2012 Ordinance"), the City issued the City of Aspen, Colorado, Parks and Open
Space Sales Tax Revenue Refunding and Improvement Bonds, Series 2012 (the "Series 2012
Bonds"), originally issued in the aggregate principal amount of $9,385,000 and presently
outstanding in the aggregate principal amount of $9,325,000, for the purpose of (i) buying,
improving and maintaining trail, recreation and open space properties and ancillary facilities; and
(ii) refunding all of the Series 2005B Bonds maturing on November 1, 2019, November 1, 2020,
November 1, 2021 and $530,000 of the Series 2005B Bonds maturing on November 1, 2022; and
WHEREAS, on November 26, 2012, pursuant to its Ordinance No. 26 (Series of 2012)
(the "Series 2013 Ordinance"), the City issued the City of Aspen, Colorado, Parks and Open
Space Sales Tax Revenue Refunding Bonds, Series 2013 (the "Series 2013 Bonds"), originally
issued and currently outstanding in the aggregate principal amount of $8,295,000, for the
purpose of refunding $780,000 of the Series 2005B Bonds maturing on November 1, 2022, and
all of the Series 2005B Bonds maturing on November 1, 2023, November 1, 2024 and November
1, 2025; and
WHEREAS, the net revenues of the Parks and Open Space Sales Tax are pledged to the
payment of the principal of and interest on the Series 2005 Bonds, the Series 2005B Bonds, the
Series 2009 Bonds, the Series 2012 Bonds, and the Series 2013 Bonds pursuant to the Series
2005 Ordinance, the Series 2005B Ordinance, the Series 2009 Ordinance, the Series 2012
Ordinance, and the Series 2013 Ordinance respectively; and
WHEREAS, the Series 2005B Bonds maturing on or before November 1, 2015 are not
subject to redemption prior to their respective maturities, and the Series 2005B Bonds maturing
on and after November 1, 2016 are subject to redemption prior to their maturity, at the option of
the City, on November 1, 2015 at a redemption price equal to the principal amount of the bonds
so redeemed, plus accrued interest to the redemption date; and
WHEREAS, the City Council of the City has determined that it is in the best interests of
the City to refund a portion of the Series 2005B Bonds to be determined by the Mayor, City
Manager or Finance Director in accordance with the delegation authority set forth herein (as
more particularly defined herein, the "Refunded Bonds"), and for the purpose of refunding such
Refunded Bonds at a lower interest rate, funding costs of the Project, acquiring a reserve fund
surety bond or funding a reserve fund, and to fund costs of issuance, to issue the City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Refunding and Improvement Bonds, Series
2014 (the "Series 2014 Bonds"); and
WHEREAS, pursuant to the delegation authority herein, in the event that the principal
amount of the Series 2014 Bonds allocable to the refunding of the Refunded Bonds exceeds the
principal amount of the Refunded Bonds, in accordance with Section 11-56-107, C.R.S., the
principal amount of such allocable portion of the Series 2014 Bonds, when combined with the
principal amount of the Series 2005B Bonds outstanding which is not being refunded, will not
exceed the total original authorized principal amount of the Series 2005B Bonds, such that such
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portion of the Series 2014 Bonds allocated to the refunding of the Series 2005B Bonds will
constitute a refunding at a lower interest rate not requiring electoral authorization in accordance
with TABOR and the Refunding Act; and
WHEREAS, the portion of the Series 2014 Bonds allocated to the funding of the Project
will require electoral authorization in accordance with TABOR and the Refunding Act, and the
City has determined that, based on the limitation of the principal amount thereof set forth herein,
the City has sufficient electoral authorization remaining under the Ballot Question for the same;
WHEREAS, the Series 2014 Bonds will be secured by a lien on the Parks and Open
Space Sales Tax revenue on parity with the lien thereon of the Series 2005 Bonds, the Series
2005B Bonds, the Series 2009 Bonds, the Series 2012 Bonds and the Series 2013 Bonds; and
WHEREAS, a portion of the proceeds derived from the sale of the Series 2014 Bonds
shall be deposited in the Escrow Account solely for payment of the Refunded Bonds and shall be
applied by the Escrow Agent to refund, pay and discharge the Refunded Bonds as shall be more
particularly set forth in the Escrow Agreement and the Sale Certificate; and
WHEREAS, the City Council has been presented with a proposal from Stifel Nicolaus &
Company, Incorporated, of Denver, Colorado, to purchase the Series 2014 Bonds upon specified
terms and conditions, the final terms and conditions of which are to be set forth in the Bond
Purchase Agreement in accordance with the Sale Certificate, and, after consideration, the City
Council has determined that the negotiated sale of the Series 2014 Bonds, subject to the
parameters set forth herein, to said company is to the best advantage of the City; and
WHEREAS, no member of the City Council has a potential conflict of interest in
connection with the authorization, issuance, sale or use of proceeds of the Series 2014 Bonds;
and
WHEREAS, pursuant to Section 4.11 of the Charter, the City is authorized to adopt
emergency ordinances for the preservation of public property, health, peace, or safety; and
WHEREAS, there is a need for issuing the Series 2014 Bonds in a timely manner in order
to take advantage of existing market conditions and obtain the greatest savings to the City's
inhabitants, thus freeing up City revenues which can be used for the purposes of preserving
public property, health, peace and safety; and
WHEREAS, this Ordinance is being adopted to authorize the issuance, sale and delivery
of the Series 2014 Bonds, to provide for the payment of the Series 2014 Bonds and to provide
the details of the Series 2014 Bonds; and
WHEREAS, there has been presented to the City Council, among other things,
substantially final forms of(a) the Preliminary Official Statement, (b)Paying Agent Agreement,
(c) the Bond Purchase Agreement (subject to completion in accordance with the terms of the
Sale Certificate), (d) the Escrow Agreement, and(e) the Continuing Disclosure Undertaking; and
WHEREAS, subject to the limitations set forth in this Ordinance, the City Council
desires, as provided in the Supplemental Public Securities Act, Part 2 of Article 57 of Title 11 of
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the Colorado Revised Statutes, as amended, to delegate the authority to the Mayor, the City
Manager, or the Finance Director, to identify the Refunded Bonds and to determine certain
provisions of the Series 2014 Bonds to be set forth in the Sale Certificate, in accordance with the
provisions of this Ordinance; and
WHEREAS, the City Council also desires to delegate the authority to the City Manager,
or the Finance Director the independent authority to determine whether it is economically
beneficial to obtain a financial guaranty insurance policy insuring the payment of the Series 2014
Bonds and, if so determined, to identify the Bond Insurer and execute the Commitment; to
determine whether a surety bond is to be obtained to secure payments on the Series 2014 Bonds,
and to execute and deliver the Bond Purchase Agreement and approve certain terms thereof, all
in accordance with the provisions of this Ordinance;
NOW, THEREFORE, BE IT ORDAINED by the City Council of City of Aspen,
Colorado:
Section 1. Definitions. The following terms shall have the following meanings as used
in this Ordinance:
"Additional Parks and Open Space Sales Tax" means the 0.5% sales tax that is levied in
addition to the Original Parks and Open Space Sales Tax by the City pursuant to the authority
granted by the Ballot Question, the Additional Parks and Open Space Sales Tax Ordinance and
Section 23.32.060(c)(7) of the City's Municipal Code. It is acknowledged that such 0.5% sales
tax terminates on December 31, 2025. Any extensions or replacements thereof, if any, shall not
constitute Additional Parks and Open Space Sales Tax for purposes of this Ordinance and the
proceeds of any such extension or replacement thereof shall not constitute Pledged Revenues
hereunder.
"Additional Parity Bonds" means any bonds or other obligations (which may or may not
be multiple-fiscal year financial obligations)permitted to be issued pursuant to Section 13 hereof
with a lien that is equal and on a parity with the lien of the Series 2005 Bonds, the Series 2005B
Bonds, the Series 2009 Bonds, the Series 2012 Bonds, the Series 2013 Bonds and the Series
2014 Bonds on the Pledged Revenues, the Bond Fund and the Revenue Fund.
"Ballot Question" means the ballot question approved by City voters on November 7,
2000 authorizing the Additional Parks and Open Space Sales Tax.
"Bond Counsel" means (a) as of the date of issuance of the Series 2014 Bonds, Butler
Snow LLP, and (b) as of any other date, Butler Snow LLP or such other attorneys selected by the
City with nationally recognized expertise in the issuance of municipal bonds.
"Bond Fund' means the "City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds, Bond Fund" which fund is reaffirmed as such in Section 10(b) hereof.
"Bond Insurance Policy" means the municipal bond insurance policy, if any, issued by
the Bond Insurer insuring the payment when due of the principal of and interest on the Series
2014 Bonds as provided therein.
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"Bond Insurer" means the entity, if any, set forth in the Sale Certificate, or any successor
thereto.
"Bond Purchase Agreement" means the agreement between the City and the Underwriter
concerning the purchase of the Bonds by the Underwriter.
"Bonds" means, collectively, the Series 2005 Bonds, the Series 2005B Bonds, the Series
2009 Bonds, the Series 2012 Bonds, the Series 2013 Bonds, the Series 2014 Bonds, and any
Additional Parity Bonds.
"Business Day" means any day other than (a) a Saturday or Sunday or (b) a day on which
banking institutions in the State are authorized or obligated by law or executive order to be
closed for business.
"Charter" means the Charter of the City of Aspen, adopted June 16, 1970, as amended.
"City" means the City of Aspen, Colorado, and any successor thereto.
"City Council" means the City Council of the City, and any successor body.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
section of the Code herein shall be deemed to include the United States Treasury Regulations
proposed or in effect thereunder and applicable to the Series 2014 Bonds or the use of proceeds
thereof, unless the context clearly requires otherwise.
"Commitment" means, collectively, those certain offers, if any, to issue the Bond
Insurance Policy, designated as the Commitment, issued by the Bond Insurer.
"Defeasance Securities" means Permitted Investments that are bills, certificates of
indebtedness, notes, bonds or similar securities which are direct non-callable obligations of the
United States of America or which are fully and unconditionally guaranteed as to the timely
payment of principal and interest by the United States of America.
"Escrow Account" means the special account designated "Parks and Open Space Sales
Tax Revenue Refunding Bonds, Series 2014, Escrow Account" to be maintained by the Escrow
Agent in accordance with the Escrow Agreement and the provisions hereof entitled "Escrow
Account."
"Escrow Agent" means UMB Bank, n.a., Denver, Colorado, in its capacity as escrow
agent under the Escrow Agreement, its successors and assigns.
"Escrow Agreement" means the Refunding Escrow Agreement between the City and the
Escrow Agent, relating to the deposit of funds thereunder for the purpose of defeasing the
Refunded Bonds.
"Event of Default" means any of the events specified in Section 24 hereof.
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"Interest Payment Date" means any date on which a payment of principal of, premium, if
any, or interest on the Bonds is due pursuant to Section 3(c)hereof.
"Moody's" means Moody's Investor Service and its successors.
"Ordinance" means this Ordinance, which authorizes the issuance of the Series 2014
Bonds, including any amendments or supplements hereto.
"Original Parks and Open Space Sales Tax" means the 1.0% Open Space Sales Tax
levied by the City pursuant to the Original Parks and Open Space Sales Tax Ordinance.
"Original Parks and Open Space Sales Tax Ordinance" means the City's Ordinance No.
16, Series of 1970.
"Outstanding' means, as of any date, all Bonds, except the following:
(a) any Bond cancelled by the City or the Paying Agent, or otherwise on the
City's behalf, at or before such date;
(b) any Bond held by or on behalf of the City;
(c) any Bond for the payment or the redemption of which moneys or
Defeasance Securities sufficient to meet all of the payment requirements of the principal
of, interest on, and any premium due in connection with the redemption of such Bond to
the date of maturity or any redemption date thereof, shall have theretofore been deposited
in trust for such purpose in accordance with Section 23 hereof, and
(d) any lost, apparently destroyed, or wrongfully taken Bond in lieu of or in
substitution for which another bond or other security shall have been executed and
delivered.
"Owner" means the Person or Persons in whose name or names a Series 2014 Bond is
registered on the registration books maintained by the Paying Agent pursuant hereto.
"Parks and Open Space Fund" means the City's Parks and Open Space Fund maintained
by the City pursuant to Section 23.32.060(c)(2) of the City's Municipal Code.
"Parks and Open Space Sales Tax" means, collectively, the Original Parks and Open
Space Sales Tax and the Additional Parks and Open Space Sales Tax.
"Parks and Open Space Sales Tax Ordinances" means, collectively the Original Parks
and Open Space Sales Tax Ordinance and the Additional Parks and Open Space Sales Tax
Ordinance.
"Paying Agent" means UMB Bank, n.a., and its successors in interest or assigns approved
by the City.
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"Permitted Investments" means any investment which is permitted for investment of City
Funds by the Charter and all other applicable laws which are included on the following list:
(a) Cash(insured at all times by the Federal Deposit Insurance Corporation);
(b) Direct obligations of (including obligations issued or held in book entry
form on the books of) the Department of the Treasury of the United States of America;
(c) obligations of any of the following federal agencies which obligations
represent full faith and credit of the United States of America, including:
— Export - Import Bank
— Rural Economic Community Development Administration
— U.S. Maritime Administration
— Small Business Administration
— U.S. Department of Housing & Urban Development (PHA's)
— Federal Housing Administration
— Federal Financing Bank;
(d) direct obligations of any of the following federal agencies which
obligations are not fully guaranteed by the full faith and credit of the United States of
America: senior debt obligations issued by the Federal National Mortgage Association
(FNMA) or the Federal Home Loan Mortgage Corporation (FHLMC); obligations of the
Resolution Funding Corporation (REFCORP); senior debt obligations of the Federal
Home Loan Bank System; and senior debt obligations of other Government Sponsored
Agencies approved by Ambac;
(e) U.S. dollar denominated deposit accounts, federal funds and banker's
acceptances with domestic commercial banks which have a rating on their short-term
certificates of deposit on the date of purchase of"A 1" or "A 1+" by S&P and "P 1" by
Moody's and maturing no more than 360 days after the date of purchase, where ratings
on holding companies are not considered as the rating of the bank;
(f) commercial paper which is rated at the time of purchase in the single
highest classification, "A 1+" by S&P and "P 1" by Moody's, and which matures not
more than 270 days after the date of purchase;
(g) investments in a money market fund rated "AAAm" or "AAAm—G" or
better by S&P;
(h) pre-refunded municipal obligations defined as follows:
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Any bonds or other obligations of any state of the United States of America or of any
agency, instrumentality or local governmental unit of any such state which are not
callable at the option of the obligor prior to maturity or as to which irrevocable
instructions have been given by the obligor to call on the date specified in the notice; and
(i) which are rated, based on an irrevocable escrow account or fund (the "escrow"), in the
highest rating category of S&P and Moody's or any successors thereto; or (ii)(A) which
are fully secured as to principal and interest and redemption premium, if any, by an
escrow consisting only of cash or obligations described in paragraph (a) above, which
escrow may be applied only to the payment of such principal of and interest and
redemption premium, if any, on such bonds or other obligations on the maturity date or
dates thereof or the specified redemption date or dates pursuant to such irrevocable
instructions, as appropriate; and (B) which escrow is sufficient, as verified by a nationally
recognized independent certified public accountant, to pay principal of and interest and
redemption premium, if any, on the bonds or other obligations described in this paragraph
on the maturity date or dates thereof or on the redemption date or dates specified in the
irrevocable instructions referred to above, as appropriate;
(i) municipal obligations rated "Aaa/AAA", or general obligations of states
with a rating of at least "A2/A", or higher by both Moody's and S&P; and
0) investment agreements and other forms of investments approved in
writing by the Bond Insurer.
"Person" means a corporation, firm, other body corporate, partnership, association or
individual and also includes an executor, administrator, trustee, receiver or other representative
appointed according to law.
"Pledged Revenues" means, for each fiscal year, all of the proceeds of the Parks and
Open Space Sales Tax after deduction of the reasonable and necessary costs and expenses of
collecting and enforcing the Parks and Open Space Sales Tax, if any.
"Project" means the purchase and improvement of trails, recreation and open space
properties and ancillary facilities, to the extent proceeds of the Series 2014 Bonds may be
expended to such purposes in accordance with the Ballot Question.
"Rebate Fund" means the City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Refunding and Improvement Bonds, Series 2014, Rebate Fund created in Section 10
hereof.
"Refunded Bond Requirements" means the principal, redemption premium, if any, and
interest due in connection with the Refunded Bonds, at maturity or upon prior redemption, as set
forth in the Escrow Agreement.
"Refunded Bonds" means such principal amounts and maturities of the Series 2005B
Bonds as are set forth and designated as the "Refunded Bonds" in the Sale Certificate.
"Refunding Act" means the Public Securities Refunding Act codified in Article 56 of
Title 11, Colorado Revised Statutes, as amended.
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"Reserve Fund" means, as the context requires, any one or more of the Series 2005
Reserve Fund, the Series 2005B Reserve Fund, the Series 2009 Reserve Fund, the Series 2012
Reserve Fund, the Series 2013 Reserve Fund, the Series 2014 Reserve Fund, and/or any reserve
fund or funds established for Additional Parity Bonds.
"Reserve Fund Contract" has the meaning specified in Section 16(c)(i) hereof
"Reserve Fund Requirement" means, as of any date on which it is calculated, with respect
to each series of Bonds, the least of (a) 10% of the principal amount of such series of Bonds,
(b) the maximum annual debt service in any calendar year on the Outstanding Bonds of such
series or (c) 125% of the average annual debt service on the Bonds of such series; provided,
however, that the Reserve Fund Requirement may be reduced if, in the opinion of Bond Counsel,
the funding or maintenance of it at the level otherwise determined pursuant to this definition will
adversely affect the exclusion from gross income tax for federal income tax purposes of interest
on any of the Bonds.
"Revenue Fund" means the "City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds Revenue Fund" which fund is reaffirmed as such pursuant to Section 10(b)
hereof.
"Sale Certificate" means the certificate executed by any of the Mayor, the City Manager
or the Finance Director under the authority delegated pursuant to this Ordinance, which sets
forth, among other things, the prices at which the Bonds will be sold, the delivery date of the
Bonds, interest rates and annual maturing principal for the Bonds, as well as the dates on which
the Bonds may be redeemed and the redemption prices therefor, the identity of the Bond Insurer
(if any), additional provisions required by the Bond Insurer, including terms of the Commitment,
and details regarding any Series 2014 Surety Bond.
"S&P" means Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies, Inc., and its successors.
"Series 1999 Ordinance" means the City's Ordinance No. 31, Series of 1999, pursuant to
which the City of Aspen, Colorado, Parks and Open Space Sales Tax Revenue Bonds, Series
1999 were issued (all of which were subsequently advance refunded with proceeds of the Series
2005 Bonds).
"Series 2005 Reserve Fund" means the Reserve Fund established for the Series 2005
Bonds pursuant to the Series 2005 Ordinance.
"Series 2005B Reserve Fund" means the Reserve Fund established for the Series 2005B
Bonds pursuant to the Series 2005B Ordinance.
"Series 2009 Reserve Fund" means the Reserve Fund established for the Series 2009
Bonds pursuant to the Series 2009 Ordinance.
"Series 2012 Reserve Fund" means the Reserve Fund established for the Series 2012
Bonds pursuant to the Series 2012 Ordinance.
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"Series 2013 Reserve Fund" means the Reserve Fund established for the Series 2013
Bonds pursuant to the Series 2013 Ordinance.
"Series 2014 Reserve Fund" means the City of Aspen, Colorado, Parks and Open Space
Sales Tax Revenue Refunding Bonds, Series 2014, Reserve Fund created in Section 10(a)(ii)
hereof.
"Series 2014 Surety Bond" means the Reserve Fund Contract, if any, issued by the Bond
Insurer guaranteeing certain payments from the Series 2014 Reserve Fund with respect to the
Series 2014 Bonds.
"State" means the State of Colorado.
"Supplemental Act" means the Supplemental Public Securities Act codified in Part 2 of
Article 57 of Title 11, Colorado Revised Statutes, as amended.
"Underwriter" means Stifel Nicolaus & Company, Incorporated, the original purchaser of
the Bonds.
Section 2. Authorization and Purpose of Series 2014 Bonds. Pursuant to and in
accordance with the Constitution of the State, the Charter, the Supplemental Act and the
Refunding Act, the City hereby authorizes, and directs that there shall be issued, the "City of
Aspen, Colorado, Parks and Open Space Sales Tax Revenue Refunding and Improvement
Bonds, Series 2014" in the aggregate principal amount set forth in the Sale Certificate (the
"Series 2014 Bonds") for the purpose of funding the costs of the Project, refunding the Refunded
Bonds, purchasing the Series 2014 Surety Bond (if any) or otherwise funding the Series 2014
Reserve Fund, and paying the costs of issuance of the Series 2014 Bonds.
Section 3. Series 2014 Bond Details.
(a) Registered Form, Denominations, Original Dated Date and Numbering.
The Series 2014 Bonds shall be issued as fully registered bonds in the denominations set
forth in the Sale Certificate, shall be dated as of the date set forth in the Sale Certificate,
shall be consecutively numbered in the manner determined by the Paying Agent and shall
be registered in the names of the Persons identified in the registration books of the City
maintained by the Paying Agent.
(b) Maturity Dates, Principal Amounts and Interest Rates. The Series 2014
Bonds shall mature on November 1 of the years and in the principal amounts, and shall
bear interest at the rates per annum (calculated based on a 360-day year of twelve 30-day
months) set forth in the Sale Certificate.
(c) Accrual and Dates of Payment of Interest. Interest on the Series 2014
Bonds shall accrue at the rates set forth in the Sale Certificate from the later of the
original dated date or the latest interest payment date (or in the case of defaulted interest,
the latest date) to which interest has been paid in full and shall be payable on May 1 and
November 1 of each year, commencing on the date set forth in the Sale Certificate.
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(d) Manner and Form of Payment. Principal of, premium, if any, and the
final installment of interest on each Series 2014 Bond shall be payable to the Owner
thereof upon presentation and surrender of such bond at the principal office of the Paying
Agent in the city identified in the definition of Paying Agent in Section 1 hereof. Interest
(other than the final installment of interest) on each Series 2014 Bond shall be payable by
check or draft of the Paying Agent mailed on the interest payment date to the Owner
thereof as of the close of business on the fifteenth day (whether or not such day is a
Business Day) of the month preceding the month in which the Interest Payment Date
occurs. All payments of the principal of, premium, if any, and interest on the Series 2014
Bonds shall be made in lawful money of the United States of America.
(e) Book-Entry Registration. Notwithstanding any other provision hereof,
the Series 2014 Bonds shall be delivered only in book-entry form registered in the name
of Cede & Co., as nominee of The Depository Trust Company ("DTC"), New York, New
York, acting as securities depository of the Series 2014 Bonds and principal of, premium,
if any, and interest on the Series 2014 Bonds shall be paid by wire transfer to DTC;
provided, however, if at any time the Paying Agent determines, and notifies the City of
its determination, that DTC is no longer able to act as, or is no longer satisfactorily
performing its duties as, securities depository for the Series 2014 Bonds, the Paying
Agent may, at its discretion, either (i) designate a substitute securities depository for DTC
and reregister the Series 2014 Bonds as directed by such substitute securities depository
or (ii)terminate the book-entry registration system and reregister the Series 2014 Bonds
in the names of the beneficial owners thereof provided to it by DTC. Neither the City nor
the Paying Agent shall have any liability to DTC, Cede & Co., any substitute securities
depository, any Person in whose name the Series 2014 Bonds are reregistered at the
direction of any substitute securities depository, any beneficial owner of the Series 2014
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 or (B) any action taken to
implement such determination and the procedures related thereto that is taken pursuant to
any direction of or in reliance on any information provided by DTC, Cede & Co., any
substitute securities depository or any Person in whose name the Series 2014 Bonds are
reregistered.
Section 4. Form of Series 2014 Bonds. The Series 2014 Bonds shall be in substantially
the form set forth in Appendix A hereto, with such changes thereto, not inconsistent herewith, as
may be necessary or desirable and approved by the officials of the City executing the same
(whose manual or facsimile signatures thereon shall constitute conclusive evidence of such
approval). Although attached as an appendix for the convenience of the reader, Appendix A is
an integral part of this Ordinance and is incorporated herein as if set forth in full in the body of
this Ordinance.
Section 5. Registration, Transfer and Exchange of Series 2014 Bonds. The Paying
Agent shall maintain registration books in which the ownership, transfer and exchange of Series
2014 Bonds shall be recorded. The Person in whose name any Series 2014 Bond shall be
registered on such registration books shall be deemed to be the absolute owner thereof for all
purposes, whether or not payment on any Series 2014 Bond shall be overdue, and neither the
City nor the Paying Agent shall be affected by any notice or other information to the contrary.
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The Series 2014 Bonds may be transferred or exchanged, at the principal office of the Paying
Agent in the city identified in the definition of Paying Agent in Section 1 hereof, for a like
aggregate principal amount of Series 2014 Bonds of other authorized denominations of the same
maturity and interest rate, upon payment by the transferee of a transfer fee, any tax or
governmental charge required to be paid with respect to such transfer or exchange and any cost
of printing bonds in connection therewith. Upon surrender for transfer of any Series 2014 Bond,
duly endorsed for transfer or accompanied by an assignment duly executed by the Owner or his
or her attorney duly authorized in writing, the City shall execute and the Paying Agent shall
authenticate and deliver in the name of the transferee a new Series 2014 Bond.
Section 6. Replacement of Lost, Destroyed or Stolen Series 2014 Bonds. If any
Series 2014 Bond shall become lost, apparently destroyed, stolen or wrongfully taken, it may be
replaced in the form and tenor of the lost, destroyed, stolen or taken bond and the City shall
execute and the Paying Agent shall authenticate and deliver a replacement Series 2014 Bond
upon the Owner furnishing, to the satisfaction of the Paying Agent: (a)proof of ownership
(which shall be shown by the registration books of the Paying Agent), (b)proof of loss,
destruction or theft, (c) an indemnity to the City and the Paying Agent with respect to the Series
2014 Bond lost, destroyed or taken, and (d)payment of the cost of preparing and executing the
new bond or bonds.
Section 7. Execution of Series 2014 Bonds. The Series 2014 Bonds shall be executed
in the name and on behalf of the City with the manual or facsimile signature of the Mayor or
Mayor Pro Tern of the City, shall bear a manual or facsimile of the seal of the City and shall be
attested by the manual or facsimile signature of the City Clerk or Deputy or Assistant City Clerk,
all of whom are hereby authorized and directed to prepare and execute the Series 2014 Bonds in
accordance with the requirements hereof. Should any officer whose manual or facsimile
signature appears on the Series 2014 Bonds cease to be such officer before delivery of any Series
2014 Bond, such manual or facsimile signature shall nevertheless be valid and sufficient for all
purposes. When the Series 2014 Bonds have been duly executed, the officers of the City are
authorized to, and shall, deliver the Series 2014 Bonds to the Paying Agent for authentication.
No Series 2014 Bond shall be secured by or entitled to the benefit of this Ordinance, or shall be
valid or obligatory for any purpose, unless the certificate of authentication of the Paying Agent
has been manually executed by an authorized signatory of the Paying Agent. The executed
certificate of authentication of the Paying Agent upon any Series 2014 Bond shall be conclusive
evidence, and the only competent evidence, that such Series 2014 Bond has been properly
authenticated and delivered hereunder.
Section 8. Redemption of Series 2014 Bonds Prior to Maturity.
(a) Optional Redemption. The Series 2014 Bonds shall be subject to
redemption at the option of the City, in whole or in part, and if in part in such order of
maturities as the City shall determine and by lot within a maturity, at a redemption price
of 100% of the principal amount so redeemed plus accrued interest to the redemption
date, on such dates as are set forth in the Sale Certificate.
(b) Mandatory Sinking Fund Redemption. The Series 2014 Bonds shall be
subject to mandatory sinking fund redemption by lot on November 1 of the years and in
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the principal amounts specified in the Sale Certificate, at a redemption price equal to the
principal amount to be redeemed (with no redemption premium), plus accrued interest to
the redemption date.
If the Sale Certificate designates mandatory sinking fund redemption dates for the
Series 2014 Bonds, the City, at its option, to be exercised on or before the forty-fifth day
next preceding each sinking fund redemption date, may (i) purchase and cancel any
Series 2014 Bonds with the same maturity date as the Series 2014 Bonds subject to such
sinking fund redemption and (ii) receive a credit in respect of its sinking fund redemption
obligation for any Series 2014 Bonds with the same maturity date as the Series 2014
Bonds subject to such sinking fund redemption which prior to such date have been
redeemed (otherwise than through the operation of the sinking fund) and cancelled and
not theretofore applied as a credit against any sinking fund redemption obligation. Each
Series 2014 Bond so purchased and cancelled or previously redeemed shall be credited at
the principal amount thereof to the obligation of the City on such sinking fund
redemption date, and the principal amount of Series 2014 Bonds to be redeemed by
operation of such sinking fund on such date shall be accordingly reduced.
(c) Redemption Procedures. Notice of any redemption of Series 2014 Bonds
shall be given by sending a copy of such notice by first-class, postage prepaid mail, not
less than 30 days prior to the redemption date, to the Owner of each Series 2014 Bond
being redeemed. Such notice shall specify the number or numbers of the Series 2014
Bonds so to be redeemed (if redemption shall be in part) and the redemption date. If any
Series 2014 Bond shall have been duly called for redemption and if, on or before the
redemption date, the City shall have set aside funds sufficient to pay the redemption price
of such Series 2014 Bond on the redemption date, then such Series 2014 Bond shall
become due and payable at such redemption date, and from and after such date interest
will cease to accrue thereon. Failure to deliver any redemption notice or any defect in
any redemption notice shall not affect the validity of the proceeding for the redemption of
Series 2014 Bonds with respect to which such failure or defect did not occur. Any Series
2014 Bond redeemed prior to its maturity by prior redemption or otherwise shall not be
reissued and shall be cancelled.
Section 9. Delivery of Series 2014 Bonds Upon Original Issuance. Prior to the
authentication and delivery by the Paying Agent of the Series 2014 Bonds in connection with
their original issuance there shall be filed with the Paying Agent (a) a certified copy of this
Ordinance and (b) a request and authorization to the Paying Agent on behalf of the City and
signed by the Mayor or Mayor Pro Tern to authenticate the Series 2014 Bonds and to deliver the
Series 2014 Bonds to the Underwriter or the Persons designated therein, upon payment to the
City of a sum specified in such request and authorization plus accrued interest thereon to the date
of delivery. Upon the authentication of the Series 2014 Bonds, the Paying Agent shall deliver
the same to the Underwriter or its designee as directed in such request and authorization.
Section 10. Creation and Reaffirmation of Funds and Accounts.
(a) There is hereby created by the City the following funds and accounts:
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(i) the Series 2014 Rebate Fund, designated as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Refunding and
Improvement Bonds, Series 2014, Rebate Fund;" and
(ii) the Series 2014 Reserve Fund, designated as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Refunding and
Improvement Bonds, Series 2014, Reserve Fund."
(b) The following funds, originally created pursuant to Section 13 of the
Series 1999 Ordinance and renamed pursuant to Section 10(b) of the Series 2001
Ordinance, are hereby reaffirmed as follows:
(i) the Bond Fund is hereby reaffirmed as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds Bond Fund;" and
(ii) the Revenue Fund is hereby reaffirmed as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds Revenue Fund."
Section 11. Application of Proceeds of Series 2014 Bonds. The proceeds received by
the City from the sale of the Series 2014 Bonds shall be applied generally as set forth below, and
as more particularly provided in the Sale Certificate:
(a) to the Escrow Account, proceeds of the Series 2014 Bonds which are
sufficient to pay the Refunded Bond Requirements in accordance with the Escrow
Agreement; and
(b) to fund the Series 2014 Reserve Fund or to pay for the Series 2014 Surety
Bond (as determined by the Mayor, the City Manager or the Finance Director and set
forth in the Sale Certificate); and
(c) to pay the costs of issuing the Series 2014 Bonds, including any premium
due with respect to a Bond Insurance Policy (if any); and
(d) the remainder shall be separately accounted for by the City to pay the
costs of the Project.
Section 12. Special Obligations; Pledge and Lien for Payment of Bonds.
(a) Series 2014 Bonds. The City hereby pledges the Pledged Revenues, the
Bond Fund, the Series 2014 Reserve Fund and the Revenue Fund for the payment of the
principal of, premium, if any, and interest on the Series 2014 Bonds at any time
Outstanding, and grants an irrevocable and first lien for such purpose on the Pledged
Revenues, the Bond Fund, the Series 2014 Reserve Fund and the Revenue Fund.
(b) Series 2013 Bonds. The City hereby further pledges the Pledged
Revenues, the Bond Fund, the Series 2013 Reserve Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on the Series 2013 Bonds at
any time Outstanding, and grants an irrevocable and first lien (but not necessarily an
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exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the
Series 2013 Reserve Fund and the Revenue Fund. The lien of the Series 2013 Bonds on
the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of
the Series 2005 Bonds, the Series 2005B Bonds, the Series 2009 Bonds, the Series 2012
Bonds, the Series 2014 Bonds, and any Additional Parity Bonds.
(c) Series 2012 Bonds. The City hereby further pledges the Pledged
Revenues, the Bond Fund, the Series 2012 Reserve Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on the Series 2012 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 2012 Reserve Fund and the Revenue Fund. The lien of the Series 2012 Bonds on
the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of
the Series 2005 Bonds, the Series 2005B Bonds, the Series 2009 Bonds, the Series 2013
Bonds, the Series 2014 Bonds, and any Additional Parity Bonds.
(d) Series 2009 Bonds. The City hereby further pledges the Pledged
Revenues, the Bond Fund, the Series 2009 Reserve Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on the Series 2009 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 2009 Reserve Fund and the Revenue Fund. The lien of the Series 2009 Bonds on
the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of
the Series 2005 Bonds, the Series 2005B Bonds, the Series 2012 Bonds, the Series 2013
Bonds, the Series 2014 Bonds, and any Additional Parity Bonds.
(e) Series 2005B Bonds. The City hereby pledges the Pledged Revenues, the
Bond Fund, the Series 2005B Reserve Fund and the Revenue Fund for the payment of the
principal of, premium, if any, and interest on the Series 2005B Bonds at any time
Outstanding, and grants an irrevocable and first lien (but not necessarily an exclusive
such lien) for such purpose on the Pledged Revenues, the Bond Fund, the Series 2005B
Reserve Fund and the Revenue Fund. The lien of the Series 2005B Bonds on the Pledged
Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series
the Series 2005 Bonds, the Series 2009 Bonds, the Series 2012 Bonds, the Series 2013
Bonds, the Series 2014 Bonds, and any Additional Parity Bonds.
(f) Series 2005 Bonds. The City hereby further pledges the Pledged
Revenues, the Bond Fund, the Series 2005 Reserve Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on the Series 2005 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 2005 Reserve Fund and the Revenue Fund. The lien of the Series 2005 Bonds on
the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of
the Series 2005B Bonds, the Series 2009 Bonds, the Series 2012 Bonds, the Series 2013
Bonds, the Series 2014 Bonds, and any Additional Parity Bonds.
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(g) Additional Parity Bonds. Subject to Section 13 hereof, the City also
hereby pledges the Pledged Revenues, the Bond Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on any Additional Parity Bonds
at any time Outstanding, and grants an irrevocable and first lien for such purpose on the
Pledged Revenues, the Bond Fund and the Revenue Fund.
(h) Equally and Ratably Secured. The Bonds shall be equally and ratably
secured by the pledge of and lien on the Pledged Revenues, the Bond Fund and the
Revenue Fund granted by this Section and shall not be entitled to any priority one over
the other in the application of Pledged Revenues or the moneys on deposit at any time in
the Bond Fund and the Revenue Fund.
(i) Superior Liens Prohibited. The City shall not pledge or create any other
lien on the revenues and moneys pledged pursuant to this Section that is superior to the
pledge thereof or lien thereon pursuant hereto.
0) Subordinate Liens Permitted. Nothing herein shall prohibit the City from
pledging or creating a lien on the revenues and moneys pledged and the lien created
pursuant to subsections (a), (b) and (c) of this Section that is subordinate to the pledge
thereof or lien thereon pursuant to such subsections, provided that no such subordinate
pledge or lien shall be created unless and until there is delivered to the Paying Agent a
written certification by the Mayor that no Event of Default has occurred and is
continuing.
(k) No Prohibition on Additional Security. Nothing herein shall prohibit the
City from (i) using, pledging or granting a lien on any revenues from the Parks and Open
Space Sales Tax that are not Pledged Revenues or any other moneys for the payment of
the principal of, premium, if any, or interest on the Bonds or (ii) depositing any revenues
from the Parks and Open Space Sales Tax that are not Pledged Revenues or any other
moneys into the Bond Fund or the Revenue Fund (and thereby subjecting the moneys so
deposited to the pledge made and lien granted by this Section).
(1) Bonds are Special, Limited Obligations of the City. The Bonds are
special, limited obligations of the City payable solely from and secured solely by the
Pledged Revenues and the other sources specified in this Ordinance and shall not be
deemed or construed as creating a debt or indebtedness of the City within the meaning of
any constitutional or statutory limitation.
Section 13. Conditions to Issuance of Additional Parity Bonds. So long as any Bonds
may be Outstanding:
(a) Limitations Upon Issuance of Additional Parity Bonds. Nothing in this
Ordinance shall be construed to prevent the issuance by the City of Additional Parity
Bonds (including refunding obligations) payable in whole or in part from the Pledged
Revenues (or any designated part thereof) and constituting a lien thereon on a parity with,
but not prior or superior to, the lien of the Series 2014 Bonds, the Series 2013 Bonds, the
Series 2012 Bonds, the Series 2009 Bonds, the Series 2005B Bonds, the Series 2005
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Bonds and any previously issued Additional Parity Bonds; provided, however, that before
any such Additional Parity Bonds are authorized or actually issued:
(i) The City is then current in all payments required to have been
accumulated in the Bond Fund, the Series 2014 Reserve Fund, the Series 2013
Reserve Fund, the Series 2012 Reserve Fund, the Series 2009 Reserve Fund, the
Series 2005B Reserve Fund, the Series 2005 Reserve Fund, and any reserve
fund maintained with respect to any then Outstanding series of Additional Parity
Bonds, and there is not otherwise an Event of Default as defined in Section 24
hereof.
(ii) The revenues derived from the entire Pledged Revenues for the
twelve consecutive calendar months out of the last 18 calendar months
immediately preceding the month of issuance of such Additional Parity Bonds
shall have been sufficient to pay an amount equal to 150% of the combined
maximum annual principal and interest requirements (to and including the final
maturity of each then-Outstanding series of Bonds) on the then-Outstanding
Bonds and on the Additional Parity Bonds then proposed to be issued (including
any reserve requirements therefor).
(iii) The ordinance authorizing such Additional Parity Bonds shall
require that a reserve fund for Additional Parity Bonds be created in an amount
equal to the Reserve Fund Requirement for such Additional Parity Bonds. The
City may, however, comply with the Reserve Fund Requirement through a
Reserve Fund Contract that meets the standards established in Section 16
hereof.
(b) Certificate of Revenues. A written certification by the Finance Director
of the City that such Pledged Revenues are sufficient to pay the amounts required by
paragraph (a)(ii) of this Section shall be conclusively presumed to be accurate in
determining the right of the City to authorize, issue, sell and deliver Additional Parity
Bonds.
(c) Subordinate Obligations Permitted. Nothing in this Ordinance shall be
construed to prevent the issuance by the City of additional obligations (including
refunding obligations) payable from the Pledged Revenues (or any designated part
thereof) and having a lien thereon subordinate or junior to the lien of the Bonds.
(d) Superior Obligations Prohibited. Nothing in this Ordinance shall be
construed to permit the City to issue additional obligations (including refunding
obligations) payable from the Pledged Revenues (or any designated part thereof) having a
lien thereon prior and superior to the lien of the Bonds.
(e) Refunding Obligations. The provisions of this Section are subject to the
following exception:
(i) Privilege of Issuing Refunding Obligations. If at any time after
any of the Bonds, or any part thereof, shall have been issued and remain
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Outstanding, the City shall find it desirable to refund all or any part of the
Outstanding Bonds, such Bonds, or any part thereof, may be refunded (but only
with the consent of the Owner or Owners thereof, unless such Bonds, at the time
of their required surrender for payment, shall then mature, or shall then be
subject to redemption prior to maturity).
(ii) Limitations Upon Issuance of Parity Refunding Obligations. No
refunding obligations payable from the Pledged Revenues (or any designated
part thereof) shall be issued on a parity with the Series 2005 Bonds, the Series
2005B Bonds, the Series 2009 Bonds, the Series 2012 Bonds, the Series 2013
Bonds and the Series 2014 Bonds, unless:
(A) the lien on such Pledged Revenues of the outstanding
obligations so refunded is on a parity with the lien thereon of the Series
2005 Bonds, the Series 2005B Bonds, the Series 2009 Bonds, the Series
2012 Bonds, the Series 2013 Bonds and the Series 2014 Bonds; or
(B) the refunding obligations are issued in compliance with
subsection(a) of this Section.
(iii) 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.
(iv) Limitations Upon Refundings. Any refunding obligations
payable from the Pledged Revenues may be issued with such details as the City
may by ordinance provide, but without any impairment of any contractual
obligations imposed upon the City by this Ordinance.
Section 14. Application of Pledged Revenues. So long as any of the Bonds shall
remain Outstanding, all Pledged Revenues, as they are received, shall be transferred from the
Parks and Open Space Fund or any other funds or accounts to which they are required to be
deposited by the Section 23-32-060(c)(7) of the City's Municipal Code or otherwise, and shall
thereupon be deposited into the Revenue Fund, and the Pledged Revenues are hereby
appropriated for such purpose. Moneys on deposit in the Revenue Fund shall be transferred from
the Revenue Fund and applied to the following purposes and in the following order of priority:
(a) FIRST, there shall be credited to the Bond Fund an amount necessary,
together with any moneys therein and available therefor, to pay the next due installment
of principal of,premium, if any, and interest on the Bonds;
(b) SECOND, there shall be credited, on a pro rata basis, to the Series 2014
Reserve Fund, the Series 2013 Reserve Fund, the Series 2012 Reserve Fund, the Series
2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, and
any reserve fund or funds created with respect to any series of Additional Parity Bonds an
amount, if any, necessary to increase the amount on deposit in each of such funds to the
Reserve Fund Requirement for such fund or to repay the provider of a Reserve Fund
Contract for a drawing thereon. No payment need be made into any such fund so long as
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the moneys therein shall equal not less than the Reserve Fund Requirement for such fund
and no draw has been made on any Reserve Fund Contract deposited in such fund. The
Reserve Fund Requirement for each such fund shall be accumulated and maintained in
each such fund as a continuing reserve to be used, except as hereinafter provided, only to
prevent deficiencies in the payment of the principal of, premium, if any, and interest on
the Bonds.
(c) THIRD, there shall be credited to the Parks and Open Space Fund or,
subject to any limitation in the Charter, the Parks and Open Space Sales Tax Ordinances
and the City's Municipal Code, used in any lawful manner by the City, any amounts
remaining after making the deposits required by subsections (a) and (b) of this Section.
(d) Notwithstanding subsections (a) and (b) of this Section, no payment need
be made pursuant to subsection (a) or (b) of this Section into either the Bond Fund, the
Series 2014 Reserve Fund, the Series 2013 Reserve Fund, the Series 2012 Reserve Fund,
the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve
Fund or any reserve fund created for a series of Additional Parity Bonds if the moneys on
deposit in such funds total a sum at least equal to the entire amount of the Outstanding
Bonds as to any principal, premium, if any, and interest requirements, to their respective
maturities, or to any redemption date on which the City shall have exercised its option to
redeem all or a portion of the Bonds then Outstanding and thereafter maturing, and both
accrued and not accrued, in which case moneys in such funds in an amount at least equal
to such principal, premium, if any, and interest requirements shall be used solely to pay
such as the same accrue, and any moneys in excess thereof in such funds may, subject to
any limitations in the Parks and Open Space Sales Tax Ordinances or the City's
Municipal Code, be used in any lawful manner by the City.
Section 15. Bond Fund. Moneys in the Bond Fund shall be used solely for the purpose
of paying the principal of, premium, if any, and interest on the Bonds.
Section 16. Series 2014 Reserve Fund.
(a) Use of Moneys in Series 2014 Reserve Fund. If on any date specified in
Section 19 hereof, the City shall have for any reason failed to pay to the Paying Agent the
full amount required to pay the next installment of principal of or interest on the Bonds,
then an amount equal to the amount needed to bring the amount in the Bond Fund to the
full amount so required shall be immediately paid, pro rata, to the Paying Agent from: (i)
the Series 2014 Reserve Fund with respect to the portion of the deficiency corresponding
to the amounts due on the Series 2014 Bonds; (ii) the Series 2013 Reserve Fund with
respect to the portion of the deficiency corresponding to the amounts due on the Series
2013 Bonds; (iii) the Series 2012 Reserve Fund with respect to the portion of the
deficiency corresponding to the amounts due on the Series 2012 Bonds; (iv) the Series
2009 Reserve Fund with respect to the portion of the deficiency corresponding to the
amounts due on the Series 2009 Bonds; (v) the Series 2005B Reserve Fund with respect
to the portion of the deficiency corresponding to the amounts due on the Series 2005B
Bonds; (vi) the Series 2005 Reserve Fund with respect to the portion of the deficiency
corresponding to the amounts due on the Series 2005 Bonds; and (vii) any reserve fund
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or funds created with respect to any series of Additional Parity Bonds with respect to the
portion of the deficiency corresponding to the amounts due on such series of Additional
Parity Bonds. The money so used shall be replaced in the Series 2014 Reserve Fund, the
Series 2013 Reserve Fund, the Series 2012 Reserve Fund, the Series 2009 Reserve Fund,
the Series 2005B Reserve Fund, the Series 2005 Reserve Fund and any such other reserve
fund or funds on a pro rata basis from the first Pledged Revenues thereafter received not
required to be otherwise applied hereunder, but excluding any payments required for any
subordinate obligations. If in any period the City shall for any reason fail to pay into the
Series 2014 Reserve Fund, the Series 2013 Reserve Fund, the Series 2012 Reserve Fund,
the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve
Fund or any such other reserve fund or funds the full amount above stipulated from the
Pledged Revenues, the difference between the amount paid and the amount so stipulated
shall in a like manner be deposited therein from the first Pledged Revenues thereafter
received not required to be applied otherwise by this Section, but excluding any payments
required for any subordinate obligations. Moneys in the Series 2014 Reserve Fund, the
Series 2013 Reserve Fund, the Series 2012 Reserve Fund, the Series 2009 Reserve Fund,
the Series 2005B Reserve Fund, the Series 2005 Reserve Fund and any such other reserve
fund shall be used solely for the purpose of paying the principal of, premium, if any, and
interest on the series of Bonds with respect to which such fund is maintained.
(b) Use of Moneys in Excess of Reserve Fund Requirement Any moneys at
any time in excess of the Reserve Fund Requirement in the Series 2014 Reserve Fund,
the Series 2013 Reserve Fund, the Series 2012 Reserve Fund, the Series 2009 Reserve
Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund or any reserve fund
or funds maintained with respect to any series of Additional Parity Bonds may be
withdrawn therefrom and, subject to any limitation in the Charter, the Parks and Open
Space Sales Tax Ordinances and the City's Municipal Code, used in any lawful manner
by the City.
(c) Reserve Fund Contract.
(i) The City may substitute for the cash or Permitted Investments in
any Reserve Fund a surety bond issued by entity rated at least "A" by S&P (a
"Reserve Fund Contract"), so long as the amount on deposit in any Reserve
Fund after such substitution is at least equal to the Reserve Fund Requirement
applicable to such Reserve Fund. In the event the City shall substitute a
Reserve Fund Contract for the cash or Permitted Investments in any Reserve
Fund, the amount on deposit in any Reserve Fund shall be that amount available
to be drawn or otherwise paid pursuant to such surety bond at the time of
calculation. If any Reserve Fund shall include both cash or Permitted
Investments and a Reserve Fund Contract, the cash and Permitted Investments
shall be used before any demand is made on any Reserve Fund Contract.
Notwithstanding the foregoing, prior to such substitution, the City must receive
an opinion of nationally recognized municipal bond counsel to the effect that
such substitution and the intended use by the City of the cash or Permitted
Investments to be released from any Reserve Fund will not adversely affect the
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exclusion from gross income for federal income tax purposes of interest on the
Bonds to which such Reserve Fund applies.
(ii) The Series 2014 Surety Bond (if any) is hereby recognized to be
a Reserve Fund Contract described in paragraph (i) of this subsection (c). Upon
issuance thereof by the Bond Insurer, the Series 2014 Surety Bond (if any) shall
be deposited in the Series 2014 Reserve Fund and shall be used in the manner
described in paragraph(i) of this subsection (c).
(d) Valuation of Deposits. Cash shall satisfy the Reserve Fund Requirement
for the Series 2014 Reserve Fund by the amount of cash on deposit. Permitted
Investments shall satisfy the Reserve Fund Requirement by the value of such
investments. The value of each Permitted Investment on deposit in the Series 2014
Reserve Fund, the Series 2013 Reserve Fund, the Series 2012 Reserve Fund, the Series
2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund and
any reserve fund or funds created with respect to any series of Additional Parity Bonds
shall be (i) its purchase price from the date of purchase until the first date thereafter on
which the Reserve Fund Requirement is calculated pursuant to subsection (e) of this
Section and (ii) following each date on which the Reserve Fund Requirement is
calculated pursuant to subsection (e) of this Section until the next date on which the
Reserve Fund Requirement is so calculated, its fair market value determined as of such
calculation date. A Reserve Fund Contract shall satisfy the Reserve Fund Requirement
by the amount payable to the City pursuant to such contract.
(e) Calculation of Reserve Fund Requirement and Transfers Resulting
from Calculation. The Reserve Fund Requirement for each of the Series 2014 Reserve
Fund, the Series 2013 Reserve Fund, the Series 2012 Reserve Fund, the Series 2009
Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund and any
reserve fund or funds created with respect to any series of Additional Parity Bonds shall
be calculated as of (i)the date of issuance of the Series 2014 Bonds, (ii)the date of
issuance of each series of Additional Parity Bonds and (iii) each November 1,
commencing November 1, 2014. If, on any calculation date, the amount on deposit in
any of such funds is less than the Reserve Fund Requirement for such fund, Pledged
Revenues shall be deposited into such fund as provided in Section 14 hereof to the extent
necessary to satisfy the Reserve Fund Requirement in cash or by the purchase of
Permitted Investments or a Reserve Fund Contract.
Section 17. Escrow Account.
(a) Establishment and Maintenance of Escrow Account. There is hereby
authorized and directed to be established pursuant to the terms of the Escrow Agreement
a special account designated as the "Parks and Open Space Sales Tax Revenue Refunding
Bonds, Series 2014, Escrow Account," which shall be maintained in accordance with the
provisions hereof and of the Escrow Agreement. The Escrow Account shall be
maintained in an amount at the time of the initial deposits therein 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 or any
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part thereof in Federal Securities to pay the Refunded Bond Requirements with respect to
the Refunded Bonds. Except as may be otherwise provided in the Escrow Agreement,
the City shall have no right or title to the moneys credited to or held in the Escrow
Account, and such title shall be and is hereby transferred to the Escrow Agent in trust for
the payment of the Refunded Bond Requirements for the Refunded Bonds pursuant to the
Escrow Agreement. Moneys shall be withdrawn by the Escrow Agent from the Escrow
Account in sufficient amounts and at such times to permit the payment without default of
the Refunded Bond Requirements for the Refunded Bonds. If for any reason the amount
in the Escrow Account shall at any time be insufficient for the purpose hereof, the City
shall forthwith from the first moneys available therefor deposit in such account such
additional moneys as shall be necessary to permit the payment in full of the Refunded
Bond Requirements for the Refunded Bonds.
(b) Call of Refunded Bonds. The City Council does hereby declare its intent
to exercise on behalf of and in the name of the City its option to redeem all of the
Refunded Bonds on the earliest date on which the Refunded Bonds can be called and
redeemed. The City hereby authorizes and irrevocably instructs the Escrow Agent, in its
capacity as paying agent for the Refunded Bonds, to give or cause to be given a notice of
refunding, defeasance and redemption of the Refunded Bonds in accordance with the
provisions of the Series 2005B Ordinance.
Section 18. Rebate Fund. The City shall deposit earnings from the investment of
proceeds of the Series 2014 Bonds, earnings from the investment of moneys on deposit in the
Bond Fund, the Series 2014 Reserve Fund and the Revenue Fund or other legally available
moneys in the Rebate Fund in the amounts and at the times provided in the Tax Certificate.
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 Tax
Certificate.
Section 19. Payments to and by Paying Agent.
(a) Payments to Paying Agent. No later than the Business Day immediately
preceding each Interest Payment Date, the City shall deliver moneys to the Paying Agent
in an amount sufficient to pay the principal of,premium, if any, and interest on the Bonds
on such date from the sources and in the priority order set forth below:
First, from moneys on deposit in the Bond Fund; and
Second, if and to the extent the moneys on deposit in the Bond Fund are
not sufficient to pay the principal of, premium, if any, or interest due on the
Bonds on such date, from the Series 2014 Reserve Fund, the Series 2013 Reserve
Fund, the Series 2012 Reserve Fund, the Series 2009 Reserve Fund, the Series
2005B Reserve Fund, the Series 2005 Reserve Fund and any reserve fund
maintained with respect to any series of Additional Parity Bonds, on a pro rata
basis, pursuant to Section 16 hereof.
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(b) Payments by Paying Agent. The Paying Agent shall use the moneys
delivered to it pursuant to subsection (a) of this Section to pay the principal of, premium,
if any, and interest on the Bonds when due.
Section 20. General Administration of Funds. The funds and accounts established
pursuant to this Ordinance, with the exception of the Rebate Fund, shall be administered as
follows, subject to the limitations stated in Sections 16 and 21 of this Ordinance:
(a) Investment of Money. Any moneys in any such fund and account may be
invested in Permitted Investments. The obligations in which moneys in each fund or
account are invested shall be deemed at all times to be part of the respective fund or
account, and any appreciation or loss resulting therefrom shall be recorded to such fund
or account. Interest accruing on the investment of any moneys in the Series 2014
Reserve Fund shall be deposited as received into the Revenue Fund, and interest accruing
on the investment of any moneys in any other such fund or account shall be credited to
the fund or account from which it is derived. The City Finance Director shall present for
redemption or sale in the prevailing market any obligations so purchased as an
investment of moneys in the fund or account whenever it shall be necessary to do so in
order to provide moneys to meet any payment or transfer from said fund or account.
(b) Deposits of Funds. The moneys and investments comprising each of such
funds and accounts shall be deposited in one or more banks or savings and loans
associations, each of which is a member of the Federal Deposit Insurance Corporation.
Each payment shall be made into and credited to the proper fund or account on the date
specified, but if such date shall be other than a Business Day, such payment shall be
made on the next preceding Business Day. Nothing herein shall prevent the
establishment of one or more such bank accounts, for all of such funds and accounts, or
shall prevent the combination of such funds and accounts with any other bank account or
accounts for other accounts of the City.
Section 21. Additional General Covenants. In addition to the other covenants of the
City contained herein, the City hereby further covenants for the benefit of Owners of the Bonds
that:
(a) Payment of Series 2014 Bonds. The City will promptly pay or cause to
be paid the principal of, premium, if any, and interest on the Series 2014 Bonds, at the
place, on the dates and in the manner provided in this Ordinance, according to the true
intent and meaning of this Ordinance.
(b) No Repeal or Modification of Parks and Open Space Sales Tax
Ordinances or Applicable Sections of City's Municipal Code. The City shall not repeal
the Parks and Open Space Sales Tax Ordinances or adopt any modification of such
ordinances or any provisions of the City's Municipal Code which would impair the
Pledged Revenues.
(c) Duty to Impose Open Space Sales Tax. If the Parks and Open Space Sales
Tax Ordinances, the provisions of the City's Municipal Code referred to in subsection (b)
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of this Section or any modifying or supplemental instrument thereto not contravening the
limitations of subsection (b) of this Section, or any part of such ordinances or such
portions of the City's Municipal Code, shall ever be held to be invalid or unenforceable
or shall otherwise be terminated, it shall be the duty of the City, to the extent possible
under then existing law, to adopt immediately such ordinances, to seek such voter
approval, if any, as may then be required by law, or to take any other action necessary to
produce at least the same amount of Pledged Revenues as would have otherwise been
produced under the terms of such ordinances and such portions of the City's Municipal
Code. Notwithstanding the foregoing, it is hereby acknowledged that: (i) the Additional
Parks and Open Space Sales Tax terminates on December 31, 2025, (ii) the City shall
have no obligation to seek an extension or replacement thereof after such date or to
otherwise take action to produce the amount of Pledged Revenues that would otherwise
be received from a 0.5% sales tax after such date, and (iii) in the event that an extension
or replacement of such 0.5%portion of the Parks and Open Spaces Sales tax is authorized
and imposed, such extension or replacement shall not constitute Additional Parks and
Open Spaces Sales Tax for purposes of this Ordinance and the proceeds of any such
extension or replacement thereof shall not constitute Pledged Revenues hereunder.
(d) Impairment of Contract. The City agrees that any law, ordinance or
resolution of the City in any manner affecting the Pledged Revenues or the Bonds, shall
not be repealed or otherwise directly or indirectly modified in such a manner as to impair
any Bonds Outstanding, unless in the case of this Ordinance the required consent of the
Owners of the then Outstanding Bonds is obtained pursuant to Section 26 of this
Ordinance.
(e) 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 Owners of any Bonds shall have the right at any reasonable time
to inspect such records and accounts.
(f) Audits. The City further agrees that it will, within 180 days following the
close of each fiscal year, cause an audit of such books and accounts to be made by an
independent certified public accountant, showing the revenues and expenditures of the
Pledged Revenues. The City agrees to furnish forthwith a copy of each such audit to the
Owner of any Bond at his request, and without request to the Original Purchaser. Any
such Owner shall have the right to discuss with the accountant or person making the audit
its contents and to ask for such additional information as he may reasonably require.
(g) Extending Interest Payments. In order to prevent any accumulation of
claims for interest after maturity, the City will not directly or indirectly extend or assent
to the extension of time for the payment of any claim for interest on any of the Bonds and
it will not directly or indirectly be a party to or approve any such arrangement; and in
case the time for payment of any interest shall be extended, such installment or
installments of interest after such extension or arrangement shall not be entitled in case of
default hereunder to the benefit or security of this Ordinance except subject to the prior
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payment in full of the principal of all Bonds and then Outstanding, and of matured
interest on such Bonds, the payment of which has not been extended.
(h) Performing Duties. The City will faithfully and punctually perform all
duties with respect to the Pledged Revenues required by the Charter and the Constitution
and laws of the State of Colorado, and the ordinances and resolutions of the City,
including but not limited to, the proper segregation of the Pledged Revenues and their
application to the respective funds.
(i) Other Liens. Other than that granted for the Bonds herein, there are
presently no other liens or encumbrances of any nature whatsoever on or against the
Pledged Revenues.
0) 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, privileges, powers, liabilities,
disabilities, immunities and rights of the City and is obligated by law to receive and
distribute the Pledged Revenues in place of the City, without affecting to any substantial
degree the privileges and rights of any Owner of any Outstanding.
(k) Continuing Disclosure. The City hereby covenants that it will comply with
and carry out all of the provisions of the Continuing Disclosure Certificate.
Notwithstanding any other provision of this Ordinance, failure of the City to comply with
the Continuing Disclosure Certificate shall not be considered an Event of Default;
provided that the Registered Owners of the Bonds may take such actions as may be
necessary or appropriate, including seeking a mandatory injunction or specific
performance, to cause the City to comply with its obligations under this Section.
Section 22. Covenants Regarding Exclusion of Interest on Series 2014 Bonds from
Gross Income for Federal Income Tax Purposes. For purposes of ensuring that the interest on
the Series 2014 Bonds is and remains excluded from gross income for federal income tax
purposes, the City hereby covenants that:
(a) Prohibited Actions. The City will not use or permit the use of any
proceeds of the Series 2014 Bonds or any other funds of the City from whatever source
derived, directly or indirectly, to acquire any securities or obligations and shall not take
or permit to be taken any other action or actions, which would cause any Series 2014
Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code, or would
otherwise cause the interest on any Series 2014 Bond to be includible in gross income for
federal income tax purposes.
(b) Affirmative Actions. The City will at all times do and perform all acts
permitted by law that are necessary in order to assure that interest paid by the City on the
Series 2014 Bonds shall not be includible in gross income for federal income tax
purposes under the Code or any other valid provision of law. In particular, but without
limitation, the City represents, warrants and covenants to comply with the following rules
unless it receives an opinion of Bond Counsel stating that such compliance is not
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necessary: (i) gross proceeds of the Series 2014 Bonds will not be used in a manner that
will cause the Series 2014 Bonds to be considered "private activity bonds" within the
meaning of the Code; (ii) the Series 2014 Bonds are not and will not become directly or
indirectly "federally guaranteed"; and (iii) the City will timely file Internal Revenue
Form 8038-G which shall contain the information required to be filed pursuant to
Section 149(e) of the Code.
(c) Tax Certificate. The City will comply with the Tax Certificate, including
but not limited by the provisions of the Tax Certificate regarding the application and
investment of Series 2014 Bond proceeds, the calculations, the deposits, the
disbursements, the investments and the retention of records described in Tax Certificate.
(d) Designation of Bonds as Qualified Tax-Exempt Obligations. The City
hereby designates the Series 2014 Bonds as qualified tax-exempt obligations within the
meaning of Section 265(b)(3) of the Code. The City covenants that the aggregate face
amount of all tax-exempt obligations issued by the City, together with governmental
entities which derive their issuing authority from the City or are subject to substantial
control by the City, shall not be more than $10,000,000 during calendar year 2014. The
City recognizes that such tax-exempt obligations include notes, leases, loans and
warrants, as well as bonds. The City further recognizes that any bank, thrift institution or
other financial institution that owns the Series 2014 Bonds will rely on the City's
designation of the Series 2014 Bonds as qualified tax-exempt obligations for the purpose
of avoiding the loss of 100% of any otherwise available interest deduction attributable to
such institution's tax-exempt holdings.
Section 23. Defeasance. Any Series 2014 Bond shall not be deemed to be Outstanding
hereunder if it shall have been paid and cancelled or if cash or Defeasance Securities shall have
been deposited in trust for the payment thereof (whether upon or prior to the maturity of such
Series 2014 Bond, but if such Series 2014 Bond is to be paid prior to maturity, the City shall
have given the Paying Agent irrevocable directions to give notice of redemption as required by
this Ordinance, or such notice shall have been given in accordance with this Ordinance). In
computing the amount of the deposit described above, the City may include interest to be earned
on the Defeasance Securities. If less than all the Series 2014 Bonds are to be defeased pursuant
to this Section, the City, in its sole discretion, may select which of the Series 2014 Bonds shall
be defeased.
Notwithstanding anything in this Bond Ordinance to the contrary, in the event that the
principal and/or interest due on the Series 2014 Bonds shall be paid by the Bond Insurer pursuant
to the Bond Insurance Policy, the Series 2014 Bonds shall remain Outstanding for all purposes,
not be defeased or otherwise satisfied and not be considered paid by the City, and the assignment
and pledge of the Pledged Revenues and all covenants, 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 Insurer shall be subrogated to the rights of such Owners.
Section 24. Events of Default. If any of the following events occurs, it is hereby
declared to constitute an Event of Default:
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(a) default in the due and punctual payment of the principal of, premium, if
any, or interest on any Bond whether at maturity thereof, or upon proceedings for
redemption thereof; or
(b) the City is for any reason rendered incapable of fulfilling its obligations
hereunder; or
(c) default in the due and punctual performance of the City's covenants or
conditions, agreements and provisions as set forth in this Ordinance, other than those
delineated in paragraphs (a) and (b) of this Section, and such default has continued for 60
days after written notice specifying the default and requiring the same to be remedied has
been given to the City by the Owners of 25% in principal amount of the Bonds then
Outstanding or other than the covenant described in paragraph (k) of Section 21; or
(d) the City shall file a petition for bankruptcy or shall be declared insolvent
by a court of competent jurisdiction.
Section 25. Remedies for and Duties Upon Events of Default.
(a) Remedies for Events of Default. Upon the happening and continuance of
any of the Events of Default as provided in Section 24 of this Ordinance, then and in
every case, the Owner or Owners of not less than 25% in principal amount of the Bonds
then Outstanding, including but not limited to, a trustee or trustees therefor, may proceed
against the City and its agents, officers and employees, to protect and enforce the rights
of any Owner of Bonds under this Ordinance by mandamus or other suit, action or special
proceedings in equity or at law, in any court of competent jurisdiction, either for the
specific performance of any covenant or agreement contained herein or in an award of
execution of any power herein granted for the enforcement of any proper legal or
equitable remedy as such Owner or Owners may deem most effectual to protect and
enforce the rights aforesaid, or thereby to enjoin any act or thing which may be unlawful
or in violation of any right 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. All such
proceedings at law or in equity shall be instituted, had and maintained for the equal
benefit of all Owners of the Bonds then Outstanding. The failure of any such Owner so
to proceed shall not relieve the City or any of its officers, agents or employees of any
liability for failure to perform any duty. Each right or privilege of any such Owner (or
trustee thereof) is in addition and cumulative to any other right or privilege, and the
exercise of any right or privilege by or on behalf of any Owner shall not be deemed a
waiver of any other right or privilege thereof.
(b) Duties Upon Events of Default. Upon the happening of any of the Events
of Default as provided in Section 24 of this Ordinance, the City will do and perform all
proper acts on behalf of and for the Owners of the Bonds to protect and preserve the
security created for the payment of their Bonds and to insure the payment of the principal
of, premium, if any, and interest on Bonds promptly as the same become due. All
proceeds derived from the Pledged Revenues, during such period of default and so long
as any of the Bonds, as to any principal, premium, if any, and interest are Outstanding
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and unpaid, shall be paid into the Bond Fund, and used for the purposes herein provided.
In the event the City fails or refuses to proceed as provided in this Section, the Owner or
Owners of not less than 25% in principal amount of the Bonds then Outstanding, after
demand in writing, may proceed to protect and enforce the rights of the Owners as herein
provided.
Section 26. Amendment of Ordinance. This Ordinance may be amended or
-supplemented by ordinance-adopted by the City Council in accordance with law, without receipt
by the City of additional considerations and without the consent of the Owners, to make any
amendment or supplement to this Ordinance which, in the opinion of Bond Counsel, is not to the
material prejudice of the Owners. This Ordinance may be amended or supplemented by
ordinance adopted by the City Council in accordance with law, without receipt by the City of any
additional consideration, but with the written consent of the Owners of 66-2/3% of the Bonds
Outstanding at the time of the adoption of the amendatory ordinance, excluding any Bonds held
for the account of the City; provided, however, that no such ordinance, without the consent of the
Owners of all Outstanding Bonds which will be adversely affected, shall have the effect of
permitting:
(a) an extension of the maturity of any Bond; or
(b) a reduction in the principal amount of any Bond, the rate of interest
thereon, or the premium payable thereon; or
(c) the creation of a lien upon or pledge of Pledged Revenues ranking prior to
the lien or pledge of Pledged Revenues created by this Ordinance; or
(d) a reduction of the principal amount of Bonds required for consent to such
amendatory or supplemental ordinance; or
(e) the establishment of priorities as between Bonds issued and Outstanding
under the provisions of this Ordinance; or
(f) the modification of or otherwise affecting the rights of the Owners of less
than all of any series of Bonds then Outstanding.
Section 27. Appointment and Duties of Paying Agent.
(a) The Paying Agent identified in Section 1 hereof is hereby appointed as
paying agent, registrar and authenticating agent for the Series 2014 Bonds unless and
until the City or the Bond Insurer removes it as such and appoints a successor Paying
Agent, in which event such successor shall, subject to subsection (b) of this Section,
automatically succeed to the duties of the Paying Agent hereunder and its predecessor
shall immediately turn over all its records regarding the Series 2014 Bonds to such
successor. The Paying Agent, by accepting its duties as such, agrees to perform all duties
and to take all actions assigned to it hereunder in accordance with the terms hereof.
(b) Any successor Paying Agent appointed as such pursuant to subsection (a)
of this Section must: (i) be a trust company or bank in good standing located in or
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incorporated under the laws of the State; (ii) be duly authorized to exercise trust powers
and subject to examination by federal or State authority; (iii) have a capital and surplus at
the time of such appointment of not less than $75,000,000; and (iv) be acceptable to the
Bond Insurer.
(c) Notwithstanding any other provision of this Ordinance, no removal,
resignation or termination of the Paying Agent shall take effect until a successor,
acceptable to the Bond Insurer, shall be appointed.
Section 28. Parties Interested Herein. Nothing in this Ordinance expressed or implied
is intended or shall be construed to confer upon, or to give or grant to, any person or entity, other
than the City, the Paying Agent, the Bond Insurer and the Owners of the Bonds, any right,
remedy or claim under or by reason of this Ordinance or any covenant, condition or stipulation
hereof, and all covenants, stipulations, promises and agreements in this Ordinance contained by
and on behalf of the City shall be for the sole and exclusive benefit of the City, the Paying
Agent, the Bond Insurer and the Owners of the Bonds.
Section 29. Events Occurring on Days That Are Not Business Days. Except as
otherwise specifically provided herein with respect to a particular payment, event or action, if
any payment to be made hereunder or any event or action to occur hereunder which, but for this
Section, is to be made or is to occur on a day that is not a Business Day shall instead be made or
occur on the next succeeding day that is a Business Day.
Section 30. Findings and Determinations. The City Council hereby finds, determines
and declares that:
(a) it is in the best interest of the City and its residents that the Series 2014 Bonds
be authorized, sold, issued and delivered at the time, in the manner and for the purposes
provided herein;
(b) all actions required by the Charter and any other applicable law to be taken
by the City for the issuance of the Series 2014 Bonds and the application of any of the
provisions hereof have been taken by the City;
(c) the interest rate on the Series 2014 Bonds as sold to the Underwriter, shall
be a lower interest rate than the interest rate on the Refunded Bonds; therefore, the Series
2014 Bonds are issued to refinance City bonded debt at a lower interest rate for the
purposes of TABOR and the Refunding Act;
(d) the issuance of the Series 2014 Bonds will not cause the City to exceed its
debt limit under the Charter or applicable State law;
(e) the issuance of the Series 2014 Bonds and all procedures undertaken
incident thereto are in full compliance and conformity with all applicable requirements,
provisions and limitations prescribed by the Constitution and laws of the State and the
City, including the Charter, and all conditions and limitations of the Charter and other
applicable law relating to the issuance of the Series 2014 Bonds have been satisfied;
31
(f) the refunding of the Refunded Bonds with proceeds of the Series 2014
Bonds will, in accordance with Section 11-56-104(1), Colorado Revised Statutes, as
amended, accomplish one or more of the following purposes: (i) reducing the net
effective interest rate on the City's bonds (based on a comparison of the net effective
interest rate on the Refunded Bonds to the net effective interest rate on the Series 2014
Bonds); (ii) reducing total interest payable over the life of the City's bonds, by issuing
bonds of a shorter term, or at a lower net interest cost, or having a lower net effective
interest rate than the Refunded Bonds; (iii) reducing the total principal and interest
payable on the Refunded Bonds or the principal and interest payable thereon in any
particular year or years, or (iv) effecting other economies;
(g) in accordance with Section 11-56-107, C.R.S., the principal amount of the
Series 2014 Bonds allocable to the refunding of the Refunded Bonds, when combined
with the Series 2005B Bonds outstanding principal amount which is not being refunded
will not exceed the total original authorized principal amount of the Series 2005B Bonds,
and the remaining principal amount of the Series 2014 Bonds will not exceed the
principal amount of debt authorization remaining under the Ballot Question; and
(h) as required by Section 11-56-104.5, Colorado Revised Statutes, as
amended: (i) the Underwriter, simultaneously with the submission to the City of its
proposal to refund the Refunded Bonds, disclosed, in writing, to the City Council, the
entire income, from all sources, which it anticipated receiving if its proposal were to be
accepted, specifying all such sources and amounts, as well as disclosing all expenses
which it anticipated the City would incur as a part of the refunding transaction;-(ii) the
City Council will require, as a condition to the issuance of the Series 2014 Bonds, that the
Underwriter provide to the City Council (A) an update of the information described in
clause (i) above and (B) a comparison of annual debt service requirements before and
after the refunding, by year and amount, including funds which are required in addition to
bond proceeds, showing the present value of all annual differences in debt service
requirements, using as a discount factor the net effective interest rate of the Series 2014
Bonds, all computed from the date on which the transaction is closed, including funds
provided by the City as a reduction of, or an addition to, debt service requirements and
showing funds provided by the City in excess of accrued principal and interest, and
earnings on the funds, over the life of, and compounded at the net effective interest rate
of, the Series 2014 Bonds.
Section 31. Delegation and Parameters.
(a) The City Council hereby delegates to the Mayor, the City Manager and the
City Finance Director the independent authority to make the determinations and set forth
in the Sale Certificate: (i) the matters set forth in subsection (b) of this Section, subject to
the applicable parameters set forth in subsection (c) of this Section; and (ii) any other
matters that, in the judgment of the Mayor, the City Manager or the City Finance
Director, are necessary or convenient to be set forth in the Sale Certificate and are not
inconsistent with the parameters set forth in subsection (c) of this Section.
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(b) The Sale Certificate shall set forth the following matters and other matters
permitted to be set forth therein pursuant to subsection (a) of this Section, but each such
matter must fall within the applicable parameters set forth in subsection (c) of this
Section:
(i) the date on which the Bonds will be issued, which shall be the
Dated Date;
(ii) the aggregate principal amount of the Series 2014 Bonds;
(iii) the principal amount of the Series 2014 Bonds maturing in each
year;
(iv) the interest payment dates;
(v) the rate of interest;
(vi) the prices at which the Series 2014 Bonds will be sold pursuant
to the Bond Purchase Agreement;
(vii) the Refunded Bonds, to be identified by the principal amount
thereof maturing in each year;
(viii) the Series 2014 Bonds which may be redeemed at the option of
the City, and the dates upon which such optional redemption may occur;
(ix) the principal amounts, if any, of Bonds subject to mandatory
sinking fund redemption, and the years in which such Bonds will be subject to
such redemption;
(x) the identity of the Bond Insurer (if any); and
(xi) the amount (if any) of net proceeds of the Series 2014 Bonds to
be deposited into the Reserve Fund or applied to pay for the Series 2014 Surety
Bond (if any).
(c) The authority delegated to the Mayor, the City Manager and the City
Finance Director by this Section shall be subject to the following parameters:
(i) in no event shall the Mayor, City Manager or City Finance
Director be authorized to execute the Sale Certificate and Bond Purchase
Agreement after the date that is 360 days after the date of adoption of this
Ordinance and in no event may the Series 2014 Bonds be issued after such date,
absent further authorization by the City Council;
(ii) the aggregate principal amount of the Series 2014 Bonds shall
not exceed $6,000,000;
33
(iii) the final maturity of the Series 2014 Bonds shall be no later than
the date that is 11 years after the date of issuance of the Series 2014 Bonds;
(iv) the maximum annual repayment cost of the Series 2014 Bonds
shall not exceed $1,700,000, and the maximum total repayment cost shall not
exceed $7,300,000;
(v) the net effective interest rate on the Series 2014 Bonds shall not
exceed 5.00%;
(vi) the purchase price of the Bonds, shall not be less than 98.0%;
and
(vii) the Bonds shall (a) not be subject to redemption prior to maturity
at the option of the District, or, (b) subject to optional redemption at such time
or times as permitted by State law and as set forth in the Sale Certificate, at a
redemption price not to exceed 100%;
Section 32. Authorization to Execute Documents. For a period of 360 days following
the adoption of this Ordinance, the City Council authorizes any of the Mayor, the City Manager
or the City Finance Director to execute the Sale Certificate and to execute the Bond Purchase
Agreement in accordance with the provisions hereof. The Mayor or City Clerk, or any other
duly authorized officer of the City, shall, and they are hereby authorized and directed to, take all
actions necessary or appropriate to effectuate the provisions of this Ordinance, including, but not
limited to, the execution of the Escrow Agreement, the Paying Agent Agreement, and the
Continuing Disclosure Undertaking, in substantially the forms presented to this meeting of the
City Council, with such changes therein, if any, not inconsistent herewith, as are approved by the
City (which, once executed by the appropriate City official, shall constitute conclusive evidence
of approval of the City), a "Tax Compliance Certificate" or similar certificate describing the
City's expectations regarding the use and investment of proceeds of the Series 2014 Bonds and
other moneys, an Internal Revenue Service Form 8038-G with respect to the Series 2014 Bonds,
and all other documents and certificates necessary or desirable to effectuate the issuance of the
Series 2014 Bonds, the investment of proceeds of the Series 2014 Bonds and the other
transactions contemplated hereby. The execution by the Mayor or Mayor Pro Tern of the City or
any other duly authorized officer of the City of any document authorized herein shall be
conclusive proof of the approval by the City of the terms thereof.
Section 33. Authorization of Bond Insurance and Series 2014 Surety Bond. The
Underwriter may request, on behalf of the City, the submittal of bids to issue the Bond Insurance
Policy. In the event that the Sale Delegate determines, based in part upon information provided
by the Underwriter, that the premium bid for issuance of the Bond Insurance Policy is less than
the interest cost savings to be realized by the City as a result of the issuance of the Bond
Insurance Policy, the Council hereby delegates to the Mayor the City Manager and the City
Finance Director the independent authority to execute the Commitment with the Bond Insurer,
provided that the Bond Insurer shall be listed in The Bond Buyer's Municipal Marketplace
Directory—Spring 2012, published by Thomson Media. In the event that a Bond Insurance
Policy is to be issued by the Bond Insurer, there is also delegated to the Mayor, the City Manager
34
and the City Finance Director the independent authority to determine whether the Series 2014
Reserve Fund shall be funded with a Series 2014 Surety Bond, which determination shall be set
forth in the Sale Certificate. The officers of the City are also hereby authorized and directed to
take all actions necessary to cause the Bond Insurer to issue the Bond Insurance Policy (if any) in
accordance with the Commitment and to issue the Series 2014 Surety Bond (if any) in
accordance with the Commitment, including without limitation, payment of the premium(s) due
in connection therewith and entering into any authorizing agreement, including a Series 2014
Reserve Policy Agreement. The execution of the Commitment by the Sale Delegate or other
authorized officer of the City is hereby ratified and approved. Any of the Mayor, the City
Manager and the City Finance Director are also independently authorized to set forth in the Sale
Certificate such additional terms, provisions and conditions as may be required to cause the
Bond Insurer to issue the Bond Insurance Policy and the Series 2014 Surety Bond (if any) in
accordance with the Commitment, and the provisions of this Ordinance shall be subject to such
provisions, if any, set forth in the Sale Certificate.
Section 34. Approval of Official Statement. The City Council hereby approves the
distribution and use of the Preliminary Official Statement relating to the Series 2014 Bonds in
connection with the offering of the Series 2014 Bonds and authorizes and directs the City staff to
prepare a final Official Statement for use in connection with the sale of the Series 2014 Bonds in
substantially the form thereof presented to the City Council at the meeting at which this
Ordinance is adopted, with such changes therein, if any, not inconsistent herewith, as are
approved by the City Attorney of the City. The Mayor or Mayor Pro Tern is hereby authorized
and directed to execute the final Official Statement.
Section 35. Application of Supplemental Act. The City Council specifically elects to
apply all of the provisions of Title 11, Article 57, Part 2, C.R.S. (as previously defined, the
"Supplemental Act"), to the Series 2014 Bonds.
Section 36. Limitation of Actions. Pursuant to Section 11-57-212, C.R.S., no legal or
equitable action brought with respect to any legislative acts or proceedings in connection with
the authorization or issuance of the Series 2014 Bonds shall be commenced more than thirty days
after the authorization of the Series 2014 Bonds.
Section 37.Ratification of Prior Actions. All actions heretofore taken not inconsistent
with the provisions of this Ordinance or the Charter by the City Council, the Finance Director, or
by the officers and employees of the City directed toward the issuance of the Series 2014 Bonds
for the purposes herein set forth are hereby ratified, approved and confirmed.
Section 38. Repeal of Inconsistent Resolutions; Contract with Owners of Series
2014 Bonds; Resolution Irrepealable. All ordinances and resolutions, or parts thereof, that are
in conflict with this Ordinance are hereby repealed. After the Series 2014 Bonds have been
issued, this Ordinance shall be and remain a contract between the City and the Owners of the
Series 2014 Bonds and shall be and remain irrepealable until all amounts due with respect to the
Series 2014 Bonds shall be fully paid, satisfied and discharged and all other obligations of the
City with respect to the Series 2014 Bonds shall have been satisfied in the manner provided
herein.
35
Section 39. Headings, Table of Contents and Cover Page. The headings to the
various sections and subsections to this Ordinance, and the cover page and table of contents that
appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are
not a part of this Ordinance and shall not be used in any manner to interpret this Ordinance.
Section 40. Severability. It is hereby expressly declared that all provisions hereof and
their application are intended to be and are severable. In order to implement such intent, if any
provision hereof or the application thereof is determined by a court or administrative body to be
invalid or unenforceable, in whole or in part, such determination shall not affect, impair or
invalidate any other provision hereof or the application of the provision in question to any other
situation; and if any provision hereof or the application thereof is determined by a court or
administrative body to be valid or enforceable only if its application is limited, its application
shall be limited as required to most fully implement its purpose.
Section 41. Recordation. A true copy of this Ordinance, as adopted by the City Council
of the City, shall be numbered and recorded, and its adoption and publication shall be
authenticated by the signatures of the Mayor and the City Clerk and by a certification of
publication.
Section 42. Declaration of Emergency and Effective Date. Due to fluctuations in
municipal bond prices and interest rates and due to currently favorable interest rates and due to
the need to preserve public property, health, peace and safety, it is hereby declared that, in the
opinion of the City Council, an emergency exists, and therefore this Ordinance shall be in full
force and effect upon its passage.
[remainder of this page intentionally left blank]
36
INTRODUCED, READ AND PASSED ON FIRST READING AS AN EMERGENCY
MEASURE by the City Council of the City of Aspen at its regular meeting on October 13, 2014,
as provided by the City's Charter and applicable law.
x
[SEAL] By l -
Mayor -'
Attest:
By o
y Clerk
READ, PASSED ON SECOND READING, FINALLY ADOPTED AND APPROVED
AS AN EMERGENCY MEASURE AND ORDERED PUBLISHED WITHIN 10 DAYS OF
SUCH FINAL PASSAGE by the City Council of the City of Aspen at its regular meeting on
October 27, 2014, as provided by the City's Charter and applicabl4 law.
i
[SEAL] By
Mayor [
Attest:
By �j C
City Clerk
[signature page to Bond Ordinance]
37
INTRODUCED, READ AND PASSED ON FIRST READING AS AN EMERGENCY
MEASURE by the City Council of the City of Aspen at its regular meeting on October 13, 2014,
as provided by the City's Charter and applicable law.
[SEAL] By
Mayor
Attest:
i
By' Q
ity Clerk
READ, PASSED ON SECOND READING, FINALLY ADOPTED AND APPROVED
AS AN EMERGENCY MEASURE AND ORDERED PUBLISHED WITHIN 10 DAYS OF
SUCH FINAL PASSAGE by the City Council of the City of Aspen at its regular meeting on
October 27, 2014, as provided by the City's Charter and applicable law.
[SEAL] By
Mayor
Attest:
By 1 - 1
AAJft Ati
City Clerk
[signature page to Bond Ordinance]
37
APPENDIX A
FORM OF SERIES 2014 BOND
No. R- $
UNITED STATES OF AMERICA
CITY OF ASPEN, COLORADO
SALES TAX REFUNDING AND IMPROVEMENT REVENUE BOND
SERIES 2014
Interest Rate: Maturity Date: Original Dated Date: CUSIP:
% November 1,
REGISTERED OWNER: **CEDE & CO.**
Tax Identification Number: 13-2555119
PRINCIPAL SUM: ** DOLLARS
The City of Aspen, Colorado (the "City"), 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 (the "State") and the home rule charter of the City (the
"Charter") and political subdivision of the State, for value received, hereby promises to pay to
the order of the registered owner named above or registered assigns, solely from the special
funds as hereinafter set forth, on the maturity date stated above, the principal sum stated above,
in lawful money of the United States of America, with interest thereon from the original dated
date stated above, at the interest rate per annum stated above, payable on May 1 and November 1
of each year, commencing , the principal of and premium, if any, and the final
installment of interest on this bond being payable to the registered owner hereof upon
presentation and surrender of this bond at the principal office of UMB Bank, n.a., as Paying
Agent (the "Paying Agent"), in Kansas City, Missouri, and the interest hereon (other than the
final installment of interest hereon) to be paid by check or draft of the Paying Agent mailed on
the interest payment date to the registered owner hereof as of the close of business on the
fifteenth day of the month (whether or not such day is a Business Day) preceding the month in
which the interest payment date occurs, except that so long as Cede & Co. is the registered
owner of this bond, the principal of, premium, if any, and interest on this bond shall be paid by
wire transfer to Cede & Co.
This bond is one of an issue of bonds of the City of Aspen, Colorado Parks and Open
Space Sales Tax Revenue Refunding and Improvement Bonds, Series 2014, issued in the
principal amount of $ (the "Series 2014 Bonds"). The Series 2014 Bonds are being
issued by the City for the purpose of refunding a portion of the City's Parks and Open Space
Sales Tax Revenue Bonds, Series 2005B, funding the purchase and improvement of trail,
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recreation, and open space properties and ancillary facilities, and the funding of a reserve fund
surety bond for, and the costs of issuance of, the Series 2012 Bonds, pursuant to and in full
conformity with the State Constitution and the Charter, the laws of the State, including, in
particular, Article 56 of Title 11 and Part 2 of Article 57 of Title 11, Colorado Revised Statutes,
as amended and pursuant to an ordinance (the "Ordinance") adopted by the City Council of the
City prior to the issuance hereof.
[Insert Redemption Provisions from Sale Certificate]
Notice of any redemption of Series 2014 Bonds shall be given by sending a copy of such
notice by first class, postage prepaid mail, not less than 30 days prior to the redemption date, to
the Owner of each Series 2014 Bond being redeemed. Such notice shall specify the number or
numbers of the Series 2014 Bonds so to be redeemed (if redemption shall be in part) and the
redemption date. If any Series 2014 Bond shall have been duly called for redemption and if, on
or before the redemption date, the City shall have set aside funds sufficient to pay the redemption
price of such Series 2014 Bond on the redemption date, then such Series 2014 Bond shall
become due and payable at such redemption date, and from and after such date interest will cease
to accrue thereon. Failure to deliver any redemption notice or any defect in any redemption
notice shall not affect the validity of the proceeding for the redemption of Series 2014 Bonds
with respect to which such failure or defect did not occur. Any Series 2014 Bond redeemed prior
to its maturity by prior redemption or otherwise shall not be reissued and shall be cancelled.
The Paying Agent shall maintain registration books in which the ownership, transfer and
exchange of Series 2014 Bonds shall be recorded. The person in whose name this bond shall be
registered on such registration books shall be deemed to be the absolute owner hereof for all
purposes, whether or not payment on this bond shall be overdue, and neither the City nor the
Paying Agent shall be affected by any notice or other information to the contrary. This bond
may be transferred or exchanged, at the principal office of the Paying Agent in Kansas City,
Missouri, for a like aggregate principal amount of Series 2014 Bonds of other authorized
denominations ($5,000 or any integral multiple thereof) of the same maturity and interest rate,
upon payment by the transferee of a transfer fee, any tax or governmental charge required to be
paid with respect to such transfer or exchange and any cost of printing bonds in connection
therewith.
The Series 2014 Bonds are special, limited obligations of the City payable solely from
and secured solely by the sources provided in the Ordinance and shall not constitute a debt of the
City within the meaning of any constitutional or statutory limitation. Pursuant to the Ordinance
the City has pledged for the payment of the principal of, premium, if any, and interest on the
Series 2014 Bonds, and granted a lien for such purpose on the Pledged Revenues, constituting,
for each fiscal year, all of the proceeds of the Parks and Open Space Sales Tax (as defined in the
Ordinance) after deduction of the reasonable and necessary costs and expenses of collecting and
enforcing the Parks and Open Space Sales Tax, if any, the Bond Fund, the Series 2014 Reserve
Fund and the Revenue Fund (all as defined in the Ordinance). The Series 2014 Bonds are issued
on a parity with the City's Sales Tax Revenue Refunding Bonds, Series 2005 (the "Series 2005
Bonds"), the City's Parks and Open Space Sales Tax Revenue Bonds, Series 2005B (the "Series
2005B Bonds"), the City's Parks and Open Space Sales Tax Revenue Refunding Bonds, Series
2009 (the "Series 2009 Bonds"), the City's Parks and Open Space Sales Tax Revenue Refunding
A-2
and Improvement Bonds, Series 2012 (the "Series 2012 Bonds"), and the City's Parks and Open
Space Sales Tax Revenue Refunding Bonds, Series 2013 (the "Series 2013 Bonds"). The City is
further authorized by the Ordinance to pledge and grant a lien, on a parity with the lien for the
payment of the principal of, premium, if any, and interest on the Series 2014 Bonds, the Series
2013 Bonds, the Series 2012 Bonds, the Series 2009 Bonds, the Series 2005B Bonds and the
Series 2005 Bonds, on the Pledged Revenues, the Bond Fund and the Revenue for the payment
of the principal of, premium, if any, and interest on additional bonds or obligations (which may
or may not be multiple-fiscal year obligations), upon satisfaction of certain conditions set forth in
the Ordinance.
This bond, including the interest hereon, is payable solely from and secured solely by the
special funds provided in the Ordinance and shall not constitute a debt of the City within the
meaning of any constitutional or statutory debt limitation or provision.
THE ORDINANCE CONSTITUTES THE CONTRACT BETWEEN THE
REGISTERED OWNER OF THIS BOND AND THE CITY. THIS BOND IS ONLY
EVIDENCE OF SUCH CONTRACT AND, AS SUCH, IS SUBJECT IN ALL RESPECTS TO
THE TERMS OF THE ORDINANCE, WHICH SUPERSEDES ANY INCONSISTENT
STATEMENT IN THIS BOND.
The City agrees with the owner of this bond and with each and every person who may
become the owner hereof, that it will keep and perform all the covenants and agreements
contained in the Ordinance.
The Ordinance may be amended or supplemented from time-to-time with or without the
consent of the registered owners of the Series 2014 Bonds as provided in the Ordinance.
It is hereby certified that all conditions, acts and things required by the State Constitution,
the Charter, and the ordinances and resolutions of the City, to exist, to happen and to be
performed, precedent to and in the issuance of this bond, exist, have happened and have been
performed, and that the Series 2014 Bonds do not exceed any limitations prescribed by the State
Constitution, the Charter or the ordinances of the City.
This bond shall not be entitled to any benefit under the Ordinance, or become valid or
obligatory for any purpose, until the Paying Agent shall have signed_ the certificate_ of
authentication hereon.
[remainder of this page intentionally left blank]
A-3
IN WITNESS WHEREOF, the City has caused this bond to be executed with the manual
or facsimile signature of its Mayor and attested by the manual or facsimile signature of the City
Clerk, and has caused the seal of the City to be impressed or imprinted hereon, all as of the date
set forth above.
[SEAL] CITY OF ASPEN, COLORADO
t
Y
Mayor
Attest:
By t
City Clerk
A-4
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2014 Bonds described in the within-mentioned Ordinance.
UMB BANK,N.A., as Paying Agent
By
Authorized Signatory
Date of Authentication:
A-5
[STATEMENT OF INSURANCE IF APPLICABLE]
A-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please print or typewrite name and address of Transferee)
(Tax Identification or Social Security No.)
the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within bond in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed:
Signature(s) must be guaranteed by a
national bank or trust company or by
a brokerage firm having a
membership in one of the major
stock exchanges.
TRANSFER FEE MAY BE REQUIRED
A-7
PREPAYMENT PANEL
The following installments of principal (or portion thereof) of this Bond have been
prepaid in accordance with the terms of the Indenture.
Date of Principal Signature of Authorized
Prepayment Representative of the Depository
A-8
STATE OF COLORADO )
) SS.
CITY OF ASPEN )
I, Linda Manning, the City Clerk of the City of Aspen, Colorado, do hereby
certify that:
1. The foregoing pages are a true and correct copy of an ordinance resolution
(the "Ordinance") passed and adopted by the City Council (the "Council") at a regular meeting
held on October 13, 2014.
2. The Ordinance was introduced as an emergency ordinance, duly moved
and seconded, and the Ordinance was adopted at the meeting of October 13, 2014, by the
unanimous vote of Council members present or a vote of four Council members, whichever is
less, as follows:
Name "Yes" "No" Absent Abstain
Steve Skadron, Mayor
Adam Frisch
Art Daily v✓
Ann Mullins
Dwayne Romero
3. The Ordinance was duly moved and seconded, and the Ordinance was
approved on second and final reading, as an emergency ordinance at the meeting of October 27,
2014, by the unanimous vote of Council members present or a vote of four Council members,
whichever is less, as follows:
Name "Yes" "No" Absent Abstain
Steve Skadron, Mayor
Adam Frisch - - - - - - -
Art Daily
Ann Mullins ✓✓
Dwayne Romero
4. The members of the City Council were present at such meetings and voted
on the passage of such Ordinance as set forth above.
1
5. The Ordinance was authenticated by the signature of the Mayor, sealed
with the City seal, attested by the City Clerk, and recorded in the minutes of the City Council.
6. There are no bylaws, rules or regulations of the City Council that might
prohibit the adoption of the Ordinance.
7. Notices of the meetings of October 13, 2014, and October 27, 2014, in the
forms attached hereto as Exhibit A were posted at the City Hall not less than 24 hours prior to
each meeting in accordance with law.
8. The Ordinance was published by posting on the City's internet website,
www.aspenpitkin.com, as provided by Section 4.10(h) of the Home Rule Charter, on October Z&
2014, which publication was within ten (10) days after final passage as required by Section 4.11
of the Home Rule Charter.
WITNESS my hand and the seal of the City affixed this '0 day of October, 2014.
e
City Clerk
(SEAL)
2
5. The Ordinance was authenticated by the signature of the Mayor, sealed
with the City seal, attested by the City Clerk, and recorded in the minutes of the City Council.
6. There are no bylaws, rules or regulations of the City Council that might
prohibit the adoption of the Ordinance.
7. Notices of the meetings of October 13, 2014, and October 27, 2014, in the
forms attached hereto as Exhibit A were posted at the City Hall not less than 24 hours prior to
each meeting in accordance with law.
8. The Ordinance was published by posting on the City's internet website,
www.aspenpitkin.com, as provided by Section 4.10(h) of the Home Rule Charter, on October2h,
2014, which publication was within ten (10) days after final passage as required by Section 4.11
of the Home Rule Charter.
WITNESS my hand and the seal of the City affixed this Z y day of October, 2014.
City Clerk
(SEAL)
2
Exhibit A
CITY COUNCIL AGENDA
October 27, 2014
5:00 PM
I. Call to Order
II. Roll Call
III. Scheduled Public Appearances
a) Proclamation - Community Planning Month
IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues
NOT on the agenda. Please limit your comments to 3 minutes)
V. Special Orders of the Day
a) Councilmembers' and Mayor's Comments
b) Agenda Deletions and Additions
C) City Manager's Comments
d) Board Reports
VI. Consent Calendar (These matters may be adopted together by a single motion)
a) Resolution #131, 2014-- Contract - Van Replacement
b) Board Appointments
c) Minutes - October 13, 2014
VII. First Reading of Ordinances
VIII. Public Hearings
a) Ordinance #33, 2014 - TDR Code Amendment
b) Ordinance #31, 2014 - Double Basements Code Amendment
c) Ordinance #32, 2014 -Authorizing the Issuance of 2014 Park and Recreation
Bonds
IX. Action Items
a) Executive Session - 402(4) (a), (b) and (e): Discussions with counsel re litigation
and negotiations involving litigation and the purchase, acquisition , lease, transfer,
or sale of any real, personal or other property interest.
X. Adjournment
Next Regular Meeting November 10, 2014
COUNCIL'S ADOPTED GUIDELINES
• Invite the Community to Participate with Us in Solution-Making
• Tone and Tenor Matter
• Remember Where We're Living and Why We're Here
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
Exhibit A
CITY COUNCIL AGENDA
October 13, 2014
5:00 PM
I. Call to Order
II. Roll Call
III. Scheduled Public Appearances
IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues
NOT on the agenda. Please limit your comments to 3 minutes)
V. Special Orders of the Day
a) Councilmembers' and Mayor's Comments
b) Agenda Deletions and Additions
c) City Manager's Comments
d) Board Reports
VI. Consent Calendar (These matters may be adopted together by a single motion)
a) Resolution #114, 2014 - Stormwater Cleaning Services
b) Resolution #129, 2014 - Mill Street Bridge Repair Project Construction Contract
Approval
C) Resolution #123, 2014 - Agreement with Twin Lakes Company Regarding
Mitigation of Impacts Associated with Exercise of Junior Water Right
d) Resolution #124, 2014 - Manned Visual Inspection of Concrete Pipe in Raw
Water System
e) Resolution #126, 2014 - Smuggler/Hunter Surface Drainage Master Plan -
Change Order Approval
f) Resolution #128, 2014 -Toro Utility Vehicle Contract Approval
g) Resolution #125, 2014 - Burlingame Ranch Phase II Landscape Maintenance
Contract
h) Minutes - September 22, 2014
i) Resolution #130, 2014 - Burlingame Phase II Construction Contract Change
Orders
VII. First Reading of Ordinances
a) Ordinance #34, 2014 - 1235 Mountain View Drive (Messiah Lutheran church) -
Ordinance Amendment
b) Ordinance #31, 2014 - Code Amendment: Double Basements
c) Ordinance #32, 2014 - Authorizing the Issuance of 2014 Parks and Recreation
Bonds
d) Ordinance #33, 2014 - Code Amendment: Transferable Development Right
Certificates (TDRs)
VIII. Public Hearings
a) Ordinance #28, ,2014 - 1006 E. Cooper Avenue- Transferable Development
Rights, Second Reading
b) Resolution #127, 2014 - Policy Resolution - Double Basement Code Amendment
IX. Action Items
X. Adjournment
Next Regular Meeting October 27, 2014
COUNCIL'S ADOPTED GUIDELINES
• Invite the Community to Participate with Us in Solution-Making
• Tone and Tenor Matter
• Remember Where We're Living and Why We're Here
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.