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HomeMy WebLinkAboutordinance.council.037-88 × J'"'~e~ ~ ~" (Series of 1988) ?~%.f¢ :, ¢2 AN ORDINANCE AUTHORIZING THE ISSUANCE OF SP~CIA~ ASSESSMENT BONDS IN THE PRINCIPAL AMOUNT OF $275,000 OF THE CiTY OF ASPEN, COLORADO, FOR UNDERGROUND IMPROVEMENT DISTRICT NO. 1; PRESCRIBING THE FORM OF THE BONDS, PROVIDING FOR THE PAYMENT OF THE BONDS AND THE INTEREST THEREON, AND OTHER DETAILS IN CONNECTION THEREWITH. WHEREAS, the City Council of the City of Aspen, Colorado (the "City"), has, by Ordinance No. 44 (Series of 1987), finally passed and adopted on December 14, 1987, created Underground Improvement District No. 1 (the "District"), within the City, to provide for the relocation of overhead electric and communication facilities to underground locations, pursuant to and in accordance with Title 29, Article 8, Part 1, C.R.S. (the Colorado Underground Conversion of Utilities Act (the "Act"); and WHEREAS, an assessment list has been prepared, detailing the total cost to be assessed, the specific properties to be assessed within the District, and the amount of each assessment; and WHEREAS, the total amount of the assessments imposed against the real property specially benefited and included within the District, is $401,895; and WHEREAS, notice of the time and place of the hearing on the assessments has been given in the time and manner required by law; and WHEREAS, the City Council held a hearing on Monday, February 22, 1988, on the proposed assessments, at which time all protests and obligations were heard and considered; and WHEREAS, by Ordinance No. 4, Series of 1988, finally passed on March 14, 1988, the City Council has apportioned a share of the whole cost to each lot or tract of land in the District, in the proportions and amount as set forth in the assessment list; and - 1 - WHEREAS, said ordinance provides that payment of the assessment may be made at any time within thirty days after the final publication of the ordinance; and WHEREAS, after the payment of assessments in full during the thirty-day cash payment period and the deletion from the assessment list of those owners of real property who have elected to complete their own work, there remains unpaid the total amount of $275,000; and WHEREAS, Section 29-8-129 CoR.So provides in part, that the governing body of a county, city or town may borrow money and issue bonds in a principal amount not exceeding the unpaid balance of the assessments levied; and WHEREAS, the City Council has determined that it is necessary to authorize special assessment bonds in the principal amount of $275,000, which amount does not exceed the amount of unpaid assessments; and WHEREAS, it is now necessary to provide for the issuance of such bonds and the form and payment thereof; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. Authorization. By virtue of and pursuant to the City Charter and the constitution and laws of the State of Colorado, in particular the provisions of the Act, Special Assessment Bonds of the City for the District in the principal amount of $275,000 (the "Bonds"), shall be issued for the purpose of paying the costs of the relocation of overhead electric and communication facilities to underground locations within the District. The Bonds shall be secured by and payable from the funds derived from the levy and collection of the special assessments, and do not constitute a debt or an indebtedness of the City within the meaning of the City Charter or any constitutional or statutory limitation or provision, and shall not be considered or held to be a general obligation of the City. - 2 - Section 2. Bond Details. The Bonds shall be issued only as fully registered Bonds, without coupons, in the denomination of $5,000 each or any integral multiple thereof. Unless the District shall otherwise direct, the registered Bonds shall be numbered separately from 1 upward, with the number of each Bond preceded by "R-". The Bonds shall be dated November 1, 1988, and shall bear interest payable semiannually on each April 1 and October 1, commencing on April 1, 1989, and shall mature serially on October 1 each year as follows: Amount Maturity Interest Rate $55,000 1989 [The interest rates and 55,000 1990 net effective interest 55,000 1991 rate will be added on 55,000 1992 second reading] 55,000 1993 The maximum net effective interest ~rate authorized for this issue of Bonds is 10% per annum, and the actual net effective interest rate of this issue of Bonds is %. Section 3. Payment of Bonds; Paying Agent and Bond Registrar. The principal of the Bonds is payable in lawful money of the United States of America to the registered owner of each Bond upon presentation at the principal office of [the Paying Agent and Bond Registrar will be added on second reading], in · Colorado, or its successor, as paying agent (the "Paying Agent"). Notwithstanding anything contained in this Ordinance to the contrary, interest on any Bond is payable to the person in whose name such Bond is registered, at his address as it appears on the registration books maintained by or on behalf of the City by , in , Colorado, or its successor, as Bond Registrar (the "Bond Registrar"), at the close of business on the fifteenth (15th) day of the calendar month next preceding each interest payment date (the "Record Date"), irrespective of any transfer or exchange of such Bond subsequent to such Record Date and prior to such - 3 - interest payment date. Such payment shall be paid by check or draft of the Paying Agent. If the date for making any payment shall be a legal holiday or a day on which the principal office of the Paying Agent is authorized or required by law to remain closed, such payment may be made on the next succeeding day which is not a legal holiday or a day on which such banking institution is authorized or required by law to remain closed. The principal of and interest on the Bonds shall be paid in accordance with the terms of a "Bond Paying Agent and Registrar Agreement" between the City and , in , Colorado. Section 4. Prior Redemption. The Bonds are not subject to redemption prior to their respective maturity dates. Section 5. Form and Execution of Bonds. The Bonds shall be signed with the facsimile or manual signature of the Mayor, sealed with a facsimile or manual impression of the seal of the City, attested with the facsimile or manual signature of the City Clerk, and countersigned with the facsimile or manual signature of the City Treasurer. Should any officer whose facsimile or manual signature appears on the Bonds cease to be such officer before delivery of the Bonds to the purchaser, such facsimile or manual signature shall nevertheless be valid and sufficient for all purposes. The Bonds shall be in substantially the following form: - 4 - [Form of Bond] No. R- $ [Front of Bond] UNITED STATES OF AMERICA STATE OF COLORADO COUNTY OF PITKIN CITY OF ASPEN UNDERGROUND IMPROVEMENT DISTRICT NO. 1 SPECIAL ASSESSMENT BOND ORIGINAL INTEREST RATE MATURITY DATE ISSUE DATE November 1, 1988 REGISTERED OWNER: PRINCIPALAMOUNT: The City of Aspen, Pitkin County, Colorado, for value received, hereby promises to pay out of the special fund hereinafter designated, but not otherwise, to the registered owner named above, or registered assigns, on the maturity date specified above, the principal amount specified above. In like manner the City promises to pay interest on such principal amount (computed on the basis of a 360-day year of twelve 30-day months) from the interest payment date next preceding the date of registration and authentication of this Bond, unless this Bond is registered and authenticated prior to April 1, 1989, in which event this Bond shall bear interest from November 1, 1988, at the interest rate per annum specified above. Interest shall be payable semiannually on April 1 and October 1 each year, commencing on April 1, 1989, until such principal amount is paid. The principal of this Bond and premium, if any, are payable in lawful money of the United States of America to the registered owner upon presentation at · in Colorado, or its successor, as Paying Agent. - 5 - Payment of each installment of interest shall be made to the registered owner hereof whose name shall appear on the registration books of the City maintained by or on behalf of the City by , in , Colorado, or its successor, as Bond Registrar, at the close of business on the fifteenth (15th) day of the calendar month next preceding each interest payment date (the "Record Date"), and shall be paid by check or draft of the Paying Agent mailed to such registered owner at his address as it appears on such registration books. If the date for making any payment shall be a legal holiday or a day on which the principal office of the Paying Agent is authorized or required by law to remain closed, such payment may be made on the next succeeding day which is not a legal holiday or a day on which such banking institution is authorized or required by law to remain closed. Bonds of this issue are not subject to redemption prior to their respective maturity dates. REFERENCE IS HEREBY MADE TO FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF FULLY SET FORTH IN THIS PLACE. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the authorizing Bond Ordinance until the certi£i~ate of authentication hereon shall have been signed by the Bond Registrar. IN TESTIMONY WHEREOF, the City Council of the City of Aspen, Colorado, has caused this Bond to be signed with the facsimile signature of the Mayor, sealed with a facsimile of the - 6 - City seal, attested with the facsimile signature of the City Clerk, and countersigned with the facsimile signature of the City Treasurer, all as of the 1st day of November, 1988. CITY OF ASPEN, PITKIN COUNTY, COLORADO (FACSIMILE S E A L ) By: (Facsimile Signature) Mayor ATTESTED: COUNTERSIGNED: By: (Facsimile Siqnature) By: (Facsimile Signature) City Clerk City Treasurer [Form of Bond Registrar's Certificate of Authentication] CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds of the issue described in the within mentioned Bond Ordinance. Date of Registration and Authentication: , Colorado, as Bond Registrar By: Authorized Signatory - 7 - [Back of Bond] ADDITIONAL PROVISIONS This Bond is one of a series aggregating Two Hundred Seventy-Five Thousand Dollars ($275,000) par value, all of like date, tenor, and effect except as to number, principal amount, interest rate and date of maturity, issued by the City of Aspen, in the County of Pitkin and State of Colorado, for the purpose of paying part of the costs of the relocat±on of overhead electric and communication facilities to underground locations, within Underground Improvement District No. 1, in the City. The Bond is issued under the authority of the City Charter, the constitution and laws of the State of Colorado, in particular the provisions of Title 29, Article 8, Part 1, C.R.S. (the Colorado Underground Conversion of Utilities Act), and the Ordinance authorizing the issuance of Bonds of the City, duly adopted, approved, published and made a law of the City prior to the issuance hereof. Payment of this Bond and the interest thereon shall be made from, and as security for such payment there is pledged, a special fund designated as "City of Aspen, Underground Improvement District No. 1 Bond and Interest Fund", which Fund shall contain initially any moneys in the construction account remaining after the cost and expenses of the relocation of facilities have been paid in full and thereafter to contain the proceeds £rDm special assessments levied against the property included within the District and specially benefited by the construction of improvements therein and any proceeds from the sale of any real property sold for nonpayment of special assessments. The assessments levied constitute a lien on and against each lot or tract of land in the respective amounts apportioned by an ordinance of the City. It is hereby certified and recited that the total issue of Bonds of the City for the District, including this Bond, does not exceed the amount authorized by law; that every requirement of - 8 - law relating to the creation of Underground Improvement District No. 1, the relocation of overhead electric and communication facilities to underground locations, and the issuance of this Bond has been fully complied with by the proper officers of the City, and that all conditions required to exist and things required to be done precedent to and in the issuance of this Bond to render the same lawful and valid, have happened, been properly done and performed, and did exist in regular and due time, form, and manner, as required by law. THIS BOND DOES NOT CONSTITUTE A DEBT OR AN INDEBTEDNESS OF THE CITY OF ASPEN WITHIN THE MEANING OF THE CITY CHARTER, OR ANY CONSTITUTIONAL OR STATUTORY LIMITATION OR PROVISION, AND SHALL NOT BE CONSIDERED OR HELD TO BE A GENERAL OBLIGATION OF THE CITY. THE PAYMENT OF THIS BOND AND THE INTEREST THEREON IS NOT SECURED BY AN ENCUMBRANCE, MORTGAGE, OR OTHER PLEDGE OF PROPERTY OF THE CITY EXCEPT FOR SUCH SPECIAL ASSESSMENTS PLEDGED FOR THE PAYMENT OF BONDS, AS SET FORTH ABOVE. NO PROPERTY OF THE CITY, SUBJECT TO SUCH EXCEPTION, SHALL BE LIABLE TO BE FORFEITED OR TAKEN IN PAYMENT OF THE BONDS. For the payment of this Bond and the interest thereon, the City has imposed and will collect assessments against the real property included within the District and specially benefited by the relocation of overhead electric and communication facilities to underground locations, and take all necessary action to collect any assessments that are in default. The City and the Bond Registrar shall not be required to issue or transfer any Bonds during a period beginning on the Record Date and ending at the close of business on the ensuing interest payment date. The City, the Paying Agent, and the Bond Registrar may deem and treat the registered owner of any Bond as the absolute owner thereof for all purposes (whether or not such Bond shall be overdue) and any notice to the contrary shall not be binding upon the City, the Paying Agent, or the Bond Registrar. - 9 - This Bond may be exchanged at the principal office of the Bond Registrar for a like aggregate principal amount of Bonds of the same maturity of other authorized denominations. This Bond is transferable by the registered owner hereof in person or by his attorney duly authorized in writing, at the principal office of the Bond Registrar, but only in the manner, subject to the limitations, and upon payment of the charges provided in the authorizing Bond Ordinance and upon surrender and cancellation of this Bond. This Bond may be transferred upon the registration books upon delivery to the Bond Registrar of this Bond, accompanied by a written instrument or instruments of transfer in form and with guaranty of signature satisfactory to the Bond Registrar, duly executed by the owner of this Bond or his attorney-in-fact or legal representative, containing written instructions as to the details of the transfer of the Bond, along with the social security number or federal employer identification number of such transferee. In the event of the transfer of this Bond, the Bond Registrar shall enter the transfer of ownership in the registration books and shall authenticate and deliver in the name of the transferee or transferees a new fully registered Bond or Bonds of authorized denominations of the same maturity and interest rate for the aggregate principal amount which the registered owner is entitled to receive at the earliest practicable time. The Bond Registrar may ~harge the owner of this Bond for every such transfer or exchange an amount sufficient to reimburse it for its reasonable fees and for any tax or other governmental charge required to be paid with respect to such transfer. - 10 - [Form of Transfer] ASSIGNMENT FOR VALUE RECEIVED, the undersigned sells, assigns, and transfers unto SOCIAL SECURITY OR FEDERAL EMPLOYER IDENTIFICATION NUMBER OF ASSIGNEE (Name and Address of Assignee) the within Bond and does hereby irrevocably constitute and appoint , attorney, to transfer said Bond on the books kept for registration thereof with full power of substitution in the premises. Dated: Signature of Registered Owner: NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatever. Signature guaranteed: (Bank, Trust Company, or Firm) - 11 - Section 6. Authentication. No Bond shall be valid or obligatory for any purpose or be entitled to any security or benefit under this Ordinance unless and until a certificate of authentication on such Bond substantially in the form hereinabove set forth shall have been duly executed by the Bond Registrar, and such executed certificate of the Bond Registrar upon any such Bond shall be conclusive evidence that such Bond has been authenticated and delivered under this Ordinance. The Bond Registrar's certificate of authentication on any Bond shall be deemed to have been executed by it if signed by an authorized officer or signatory of the Bond Registrar, but it shall not be necessary that the same officer or signatory sign the certificate of authentication on all of the Bonds issued hereunder. Section 7. Delivery of Bonds. Upon the adoption of this Ordinance, the City shall execute the Bonds and deliver them to the Bond Registrar, and the Bond Registrar shall authenticate the Bonds and deliver them to the purchaser thereof as directed by the City, and in accordance with a "Bond Purchase Agreement" between the City and Kirchner Moore & Company, Denver, Colorado (the "Underwriter"). Section 8. Registration, Exchange and Transfer of Bonds; Persons Treated as Owners. The Bond Registrar shall maintain the books of the City for the registration of ownership of each Bond as provided in this Ordinance. Bonds may be exchanged at the principal office of the Bond Registrar for a like aggregate principal amount of Bonds of the same maturity of other authorized denominations. Bonds may be transferred upon the registration books upon delivery of the Bonds to the Bond Registrar, accompanied by a written instrument or instruments of transfer in form and with guaranty of signature satisfactory to the Bond Registrar, duly executed by the owner of the Bonds to be transferred or his attorney-in-fact or legal representative, containing written instructions as to the details of the transfer of such Bonds, along with the social security number or federal - 12 - employer identification number of such transferee. No transfer of any Bond shall be effective until entered on the registration books. In all cases of the transfer of a Bond, the Bond Registrar shall enter the transfer of ownership in the registration books and shall authenticate and deliver in the name of the transferee or transferees a new fully registered Bond or Bonds of authorized denominations of the same maturity and interest rate for the aggregate principal amount which the registered owner is entitled to receive at the earliest practicable time in accordance with the provisions of this Ordinance. The Bond Registrar may charge the owner of such Bond for every such transfer or exchange of a Bond an amount sufficient to reimburse it for its reasonable fees and for any tax or other governmental charge required to be paid with respect to such transfer. The City and Bond Registrar shall not be required to issue or transfer any Bonds during a period beginning on the Record Date and ending at the close of business on the ensuing interest payment date. New Bonds delivered upon any transfer or exchange shall be valid special obligations of the City, evidencing the same obligation as the Bonds surrendered, shall be secured by this Ordinance, and shall be entitled to all of the security and benefits hereof to the same extent as the Bonds surrendered. The City, the Paying Agent, and the Bond Registrar may deem and treat the registered owner of any Bond as the absolute owner thereof for all purposes (whether or not such Bond shall be overdue), and any notice to the contrary shall not be binding upon the City, the Paying Agent, or the Bond Registrar. Section 9. Destruction of Bonds. Whenever any out- standing Bond shall be delivered to the Bond Registrar for cancellation pursuant to this Ordinance and upon payment of the principal amount and interest represented thereby, or whenever any - 13 - outstanding Bond shall be delivered to the Bond Registrar for transfer pursuant to the provisions hereof, such Bond shall be cancelled and destroyed by the Bond Registrar and counterparts of a certificate of destruction evidencing such destruction shall be furnished by the Bond Registrar to the City. Section 10. Lost Bonds. Any Bond that is lost, stolen, destroyed, or mutilated may be replaced or paid by the Bond Registrar in accordance with and subject to the limitations of applicable law. The applicant for any such replacement Bond shall post such security, pay such costs, and present such proof of ownership and loss as may be required by applicable law, or in the absence of specific requirements, as may be required by the Bond Registrar. Section 11. Disposition and Investment of Bond Pro- ceeds. The Bonds shall be issued and sold for the purpose of paying the costs and expenses of the relocation of overhead electric and communication facilities to underground locations. In the event that all of the proceeds of the Bonds are not required to pay such costs and expenses, any remaining amount shall be paid into the bond and interest fund as provided in Section 12 hereof, for the purpose of paying the principal of and interest on the Bonds. Neither the original purchaser of the Bonds nor any subsequent owners shall be responsible for the application or disposal by the City or any o£ its officers of the funds derived from the sale thereof. All or any portion of the Bond proceeds may be tempo- rarily invested or reinvested, pending such use, in securities or obligations which are lawful investments. It is hereby covenanted and agreed by the City that it will not make, or permit to be made, any use of the original proceeds of the Bonds, or of any moneys treated as proceeds of the Bonds within the meaning of the Internal Revenue Code of 1986, as amended (the "Code") and applicable regulations, rulings, and decisions, or take, permit to be taken, or fail to take any action, which would adversely affect - 14 - the exclusion from gross income of the interest on the Bonds under Section 103 of the Code and applicable regulations, rulings, and decisions. Section 12. City of Aspen, Underground Improvement District No. 1 Bond and Interest Fund. The Bonds and the interest thereon shall be payable solely from the local improvement fund, designated as the "City of Aspen, Underground Improvement District No. 1 Bond and Interest Fund", which shall contain initially any moneys in the construction account remaining after the cost and expenses of the relocation of facilities have been paid in full and thereafter to contain the proceeds from special assessments levied against the property included within the District and specially benefited by the construction of improvements therein and any proceeds from the sale of any real property sold for nonpayment of special assessments. Section 13. Assessment of Costs. By Ordinance No. 4, Series of 1988, finally passed and adopted on March 14, 1988, the City has caused assessments to be imposed against the real property specially benefited by the relocation of overhead electric and communication facilities to underground locations. The City Council covenants that it will take all necessary action to collect delinquent assessments. Section 14. Designation as "Qualified Tax-exempt Obligations,,. The City hereby designates the Bonds as "qualified tax-exempt obligations,, for purposes of Section 265(b) (3) of the Internal Revenue Code of 1986, as amended. Section 15. Acceptance of Bond Purchase Agreement. The City Council does hereby reaffirm its determination to accept the Bond Purchase Agreement as submitted by the Underwriter, and to sell the Bonds to the Underwriter upon the terms, conditions, and provisions as set forth in the Bond Purchase Agreement. Section 16. Authorization to Execute Collatoral Docu- ments. The officers of the City are hereby authorized and directed to take any and all actions necessary or appropriate to - 15 - effectuate the provisions of this Ordinance, including, but not being limited to, the execution of a Bond Paying Agent and Registrar Agreement, a Bond Purchase Agreement, and such certificates and affidavits as may reasonably be required by the Underwriter. Section 17. Ratification and Approval of Prior Actions. All actions heretofore taken by the officers and members of the City Council, not inconsistent with the provisions of this Ordinance, relating to the authorization, sale, issuance and delivery of the Bonds, be and the same are hereby ratified, ap- proved and confirmed. Section 18. Ordinance Irrepealable. After any of the Bonds herein authorized have been issued, this Ordinance shall constitute an irrevocable contract between the City and the owner or owners of the Bonds, and this Ordinance shall be and remain irrepealable until the Bonds and the interest accruing thereon shall have been fully paid, satisfied, and discharged, as herein provided. Section 19. Severability. That if any one or more sections or parts of this Ordinance shall be adjudged unenforce- able or invalid, such judgment shall not affect, impair or invalidate the remaining provisions of this Ordinance, it being the intention that the various provisions hereof are severable. Section 20. Repealer. A~i ordinances or parts thereof in conflict with this Ordinance are hereby repealed. Section 21. Recordinq and Authentication. This Ordi- nance shall be numbered and recorded in the official records of the City; the adoption and publication shall be authenticated by the signatures of the Mayor or Mayor Pro Tem and the City Clerk and by the certificate of publication. Section 22. Effective Date. This Ordinance shall be effective five (5) days after publication of this Ordinance following final passage. - 16 - A public hearing on the ordinance shall be held on the 10th day of October, 1988, in the city Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the 26th day of September, 1988. ( S E A L ) William L. Stirling, Mayor ATTESTED: Kathryn S. Koch, City Clerk *FINALLY PASSED AND APPROVED on the day of , 1988. ( S E A L ) William L. stirling, Mayor ATTESTED: Kathryn S. Koch, City Clerk *Add after final passage. - 17 -