HomeMy WebLinkAboutordinance.council.021-90 ORDINA~ICE NO. ~ L
(Ser~es of 1990)
AN ORDINANCE AUTHORIZING THE ISSUANCE BY THE CITY
OF ASPEN, COLORADO, OF ITS GENERAL OBLIGATION
HOUSING BONDS, SERIES 1990A IN THE PRINCIPAL A~OUNT
OF $5,875,000, FOR THE PURPOSE OF PROVIDING FUNDS
FOR THE CONSTRUCTING AND EQUIPPING A HOUSING
FACILITY ON A PORTION OF THE MAROLT/THOMAS PROPERTY
TOGETHER WITH ALL NECESSARY INCIDENTAL AND
APPURTENANT COSTS AND EXPENSES INCURRED IN
CONNECTION THEREWITH; PRESCRIBING THE FORM OF SAID
BONDS; PROVIDING FOR THE SALE OF SAID BONDS;
ESTABLISHING CERTAIN FUIFDS WITH RESPECT THERETO,
PROVIDING A PLEDGE OF THE FULL FAITH AND CREDIT OF
THE CITY AS SECURITY FOR SAID BONDS; APPOINTING A
PAYING AGENT FOR SAID BONDS; APPROVING THE FORMS
AND AUTHORIZING THE EXECUTION AND DELIVERY OF A
LEASE WITH THE ASPEN/PITKIN COUNTY HOUSING
AUTHORITY, A PAYING AGENCY AGREEMENT, A BOND
PURCHASE AGREEMENT, AND A LEASE AND AGREEMENT AMONG
THE CITY, SAID AUTHORITY AND MUSIC ASSOCIATES OF
ASPEN, INC,, A NONPROFIT CORPORATION; AND PROVIDING
OTHER DETAILS IN CONNECTION WITH SAID BONDS.
WIqEREAS, the City of Aspen, in the County of Pltkin and
State of Colorado (the "City"), is a municipal corporation
duly organized and existing as a home rule city pursuant to
Article XX of the Constitution of the State of Colorado and
the Charter of the City (the "Charter"); and
WHEREAS, Section 10.3 of the Charter provides in
pertinent part as follows:
No bonds or other evidence of indebtedness payable
~n whole or ~n part from the proceeds of general
property taxes or to which the full faith and
credit of the City are pledged, shall be issued,
except in pursuance of an ordinance, nor until the
question of their issuance shall, at a special or
general election, be submitted to a vote of the
electors and approved by a majority of those voting
on the question;
; and
WHEREAS, Section 13.4 of the Charter provides in
pertinent part as follows'
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Council shall not sell, exchange or dispose of
public building, utilities or real property in use
for public purposes, including real property
acquired for open space purposes, w~thout f~rst
obtaining the approval of a ma]or~ty of the
electors voting thereon
; and
WHEREAS, the following question regarding the issuance
of general obligation bonds and the leasing of C~ty property
was submitted to the electors of the City at a February 13,
1990 special election, and was approved by a majority of
those voting on the question:
QUESTION NO. 1 - ISSUANCE OF A GENERAL OBLIGATION
BOND NOT TO EXCEED SIX MILLION DOLLARS
($6,000,0000) FOR THE PURPOSE OF CONSTRUCTING AND
EQUIPPING A HOUSING FACILITY ON A PORTION OF THE
MAROLT/THOMAS PROPERTY
"Shall the C~ty Council of the City of Aspen,
Colorado, be authorized to ~ssue general obligation
bonds, ~n an amount not to exceed Six Million
Dollars ($6,000,000), the term not to exceed thirty
(30) years and at interest rates not to exceed ten
percent (10%) for the purpose of constructing and
equipping a housing facility on a portion of the
Marolt/Thomas Property, which housing facility may
be leased to the Aspen/Pltkln County Housing
Authority or such other nonprofit corporation as
the C~ty Council may determine appropriate~ The
Housing Project shall consist of approximately one
hundred twenty (120) dormitory-style housing units
and related facilities, including, but not l~mited
to, a cafeteria, parking, roadway, walkways and
landscaping"
and
WHEREAS, Section 10.4 of the Charter provides as follows:
The city shall not become indebted for any purpose
or ~n any manner zn an amount which, including
existing ~ndebtedness, shall exceed twenty (20)
percent of the assessed valuation of the taxable
property within the c~ty, as shown by the last
preceding assessment for city purposes; provided,
however, that in determining the limitation of the
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City's power to incur indebtedness there shall not
be included bonds ~ssued for the acquisition or
extension of a water system or public utilities; or
bonds or other obligations issued for the
acquisition or extension of enterprises, works or
ways from which the C~ty will derive a revenue in
accordance with Section 10.5 of this article.
and;
WHEREAS, the City Council (the "Council") of the City
hereby determines that it is In the best interest of the City
to issue the bonds here~nabove referred to in the question
submitted to the electors of the City, and
WHEREAS, the Council hereby determines to issue its
"City of Aspen, Colorado, General Obligation Housing Bonds,
Series 1990A" (the "Bonds") in the aggregate principal amount
of $5,875,000, in order to provide the funds necessary for
the purpose of constructing and equipping a dormitory-style
housing facility consisting of approximately 100 un~ts and
certain residential rental facilities to be located on the
Marolt/Thomas property, lncludin§, but not limited to, a
cafeteria, parking, roadway, walkways, and landscaping (the
"Project") including payment of interest on the Bonds during
construction and equipping of the Project, together w~th all
necessary incidental and appurtenant costs and expenses
~ncurred in connection therewith, the Bonds to be general
obligations of the City and secured by the full faith and
credit thereof; and
WHEREAS, the issuance of the Bonds will not exceed the
limitations provided in Section 10.4 of the Charter and will
be in pursuance of the elect~on question set forth above; and
WHEREAS, the Council hereby determines to lease the
Project to the Aspen/P~tkln County Housing Authority (the
"Authority") pursuant to a Lease Agreement dated as of
May 15, 1990 (the "Lease") between the City and the
Authority, pursuant to which the Authority will act as agent
for the City in carrying out the Project, and
WHEREAS, the Council hereby determines that it is in the
best interests of the City w~th respect to portions of the
Project if the C~ty and the Authority enter into a Lease and
Agreement dated as of May 15, 1990 (the "MAA Lease") with the
Music Associates of Aspen, Inc., a 501(c)(3) nonprofit
corporation ("MAA"); and
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WHEREAS, the Council hereby determines to sell the Bonds
to George K Baum & Company (the "Underwriter") pursuant to a
Bond Purchase Agreement (the "Bond Purchase Agreement") as
provided herein, and
WHEREAS, it is now necessary by ordinance to authorize
the issuance, sale and delivery of the Bonds, and to provide
for the details of and the security for the Bonds, and to
authorize the execution and delivery of the Lease, the Bond
Purchase Agreement, the hereinafter defined Paying Agency
Agreement and the MAA Lease, and to provide for related
matters;
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO THAT:
Section 1. Definitions. In this Ordinance, the
capitalized words and terms not otherwise defined herein
shall have the following meanings'
"Bond Fund" means the Bond Fund established pursuant to
Section 9 hereof.
"Bond Proceeds Fund" means the Bond Proceeds Fund
established pursuant to Section 9 hereof.
"Bond Year" means the period beginning on the date of
delivery of the Bonds and ending April 15, 1991, and each
one-year period thereafter ending on the following April 15.
"Bondowner" or "Owner" or "Owner of Bonds" means the
person or persons ~n whose name or names a Bond shall be
registered on the registration books of the C~ty maintained
by the Paying Agent.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Governmental Obligations" means direct general
obligations of, or obligations the payment of the principal
of and ~nterest on which are unconditionally guaranteed by,
the Un~ted States of America.
"Investment Instructions" means the letter of
instructions provided to the City on the date of ~ssue of the
Bonds ~n accordance with Section 12 hereof.
"Ordinance" means this Ordinance and any supplements
hereto as may be adopted by the Council.
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"Paying Agency Agreement" means the Paying Agency
Agreement dated as of May 15, 1990 between the city and the
Paying Agent.
"Paying Agent" means Central Bank Denver, National
Association, Denver, Colorado, which f~nanclal ~nstltution
has been appointed by the City as Paying Agent for the Bonds,
and any successor or additional paying agents with respect
thereto
"Rebate Fund" means the Rebate Fund established pursuant
to Section 12 hereof
"Record Date" means the April 1 or October 1 preceding
each interest payment date with respect to the Bonds
Section 2 Authorization of Bonds. For the purpose of
providing funds for the Project, together w~th all necessary
~ncidental and appurtenant costs and expenses incurred ~n
connection therewith, the C~ty shall issue the Bonds in the
aggregate principal amount of $5,875,000. The principal of
and ~nterest on the Bonds shall constitute general
obligations of the City and shall be payable from and secured
by a pledge of the full faith and credit of the City, as more
particularly hereinafter set forth
Section 3. Bond Details. The Bonds shall be issued as
fully registered bonds without coupons in the denomination of
$5,000 or any integral multiple thereof. The Bonds shall be
dated May 15, 1990, and shall bear lnterest payable from
their date as hereinafter provided; provided that Bonds
issued ~n exchange for Bonds surrendered for transfer or
exchange shall bear interest from the date to which interest
has been paid, or ~f no interest has been pa~d thereon, then
from May 15, 1990. Interest on the Bonds shall be payable on
each April 15 and October 15, con~enclng on October 15, 1990.
The Bonds shall be numbered ~n such manner as the Paying
Agent shall determine, and shall bear interest at the rates
(per annum) and shall mature in the principal amounts and on
Aprll 15 in the years as follows:
,,0
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Maturity
(April 15) Principal Amount Interest Rate
1993 $ 15,000 6 40%
1994 30,000 6 50
1995 50,000 6 60
1996 75,000 6 65
1997 75,000 6 70
1998 75,000 6 80
1999 100,000 6 90
2000 100,000 7 00
2005 700,00 7 10
2010 1,005,000 7 20
2020 3,650,000 7 25
The principal of, premium, if any, and interest on the
Bonds shall be payable in lawful money of the United States
of America. The principal of and premium, if any, on the
Bonds is payable at the principal corporate trust office of
the Paying Agent in Denver, Colorado. Interest on any Bond
is payable by check or draft of the Paying Agent mailed on
the interest payment date to the Owner thereof at his or her
address as ~t appears on the registration books of the City
or at such other address as is furnished to the Paying Agent
in writing by such Owner as of the Record Date. If any Bond
shall remain unpaid upon presentation at maturity, interest
shall continue to accrue until paid at the rate designated ~n
the Bond.
Section 4. Pa¥inq Aqent; Transfer and Exchanqe. The
Paying Agent ls hereby appointed as paying agent, bond
regIstrar and authenticating agent for the City for purposes
of the Bonds. The Paying Agent shall maintain on behalf of
the City books for the purpose of registration and transfer
of Bonds, and such books shall specify the persons entitled
to the Bonds and the r~ghts evidenced thereby, and all
transfers of Bonds and the r~ghts evidenced thereby. Bonds
may be transferred or exchanged at the principal corporate
trust office of the Paying Agent upon payment by the Owner of
the Paying Agent's transfer fee, and any tax or governmental
charge required to be paid with respect to such transfer or
exchange. Bonds may be exchanged for a l~ke aggregate
principal amount of Bonds of other authorized denominations
of the same maturity and interest rate. Upon surrender for
transfer of any Bond, duly endorsed for transfer or
accompanied by an assignment duly executed by the Owner or
his or her attorneys duly authorized in writing, and upon
payment of the fees, taxes, charges and costs described
above, the City shall execute and the Paying Agent shall
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authenticate and deliver in the name of the transferee or
transferees a new Bond or Bonds of the same maturity and
interest rate for a l~ke aggregate principal amount. The
person in whose name any Bond shall be regIstered shall be
deemed and regarded as the absolute Owner thereof for all
purposes, whether or not payment on any Bond shall be
overdue, and neither the City nor the Paying Agent shall be
affected by any notice to the contrary.
Section 5. Redemption. The Bonds maturing on and after
April 15, 1996 are subject to prior redemption, at the option
of the C~ty, in whole or in part, and if in part, ~n inverse
order of maturities and by lot w~thln a maturity, on
April 15, 1995 and on any date thereafter, at the redemption
prices (expressed as a percentage of principal amount), plus
accrued interest to the redemption date as follows'
RedemQtlon Date Redemption Price
April 15, 1995 through April 14, 1996 102 0%
April 15, 1996 through April 14, 1997 101 5
April 15, 1997 through April 14, 1998 101.0
April 15, 1998 through April 14, 1999 100.5
April 15, 1999 and thereafter 100 0
The Bonds maturing on April 15, 2005, April 15, 2010
and April 15, 2020 shall be subject to mandatory sinking fund
redemption and shall be redeemed at a price of par plus
accrued interest to the redemption date on April 15 of each
of the following years, and in the following amounts:
Bonds Maturing
ADrll 15, 2005
Redemption Date Principal
(ADrll 15) Amount
2001 $120,000
2002 130,000
2003 140,000
2004 150,000
2005 160,000
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Bonds Maturing Bonds Maturing
April 15, 2010 ADrll 15, 2020
Redemption Date Principal Redemption Date Principal
(April 15) Amount (ADrll 15) Amount
2006 175,000 2011 $245,000
2007 185,000 2012 270,000
2008 200,000 2013 290,000
2009 215,000 2014 315,000
2010(maturity) 230,000 2015 340,000
2016 370,000
2017 400,000
2018 430,000
2019 470,000
2020(maturity) 520,000
Not more than 45 days nor less than 30 days prior to the
sinking fund redemptIon date for the Bonds maturing on
April 15, 2005, April 15, 2010 and Aprzl 15, 2020, the Paying
Agent shall proceed to select for redemptIon (by lot in such
manner as the Paying Agent may determine), from all Bonds
maturing on such respective date and outstanding, a principal
amount of such Bonds equal to the aggregate principal amount
of such Bonds redeemable with the required sinking fund
payment, and shall call such Bonds for redemption from the
sinking fund on the next April 15, and gzve notice of such
call. At the option of the City to be exercised by delivery
of a written certificate to the Paying Agent not less than 45
days next preceding any sinking fund redemption date, it may
(i) deliver to the Payzng Agent for cancellation Bonds
maturing on April 15, 2005, April 15, 2010 or April 15, 2020,
as the case may be, in an aggregate przncipal amount desired
by the City or, (11) specify a principal amount of such Bonds
which prior to said date have been redeemed (otherwise than
through the operation of the sinking fund) and cancelled by
the Paying Agent and not theretofore applied as a credit
against any s~nking fund redemption obligation. Each Bond
maturing on April 15, 2005, April 15, 2010 or April 15, 2020,
as the case may be, so delIvered or previously redeemed shall
be credited by the Paying Agent at 100% of the principal
amount thereof against the obligation of the Czty on such
respective sinking fund redemption date and any excess shall
be so credzted against future respective sinking fund
redemptIon obligations in chronological order In the event
the City shall avail itself of the proviszons of clause (1)
above, the certificate required above shall be accompanied by
the Bonds to be cancelled
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Notice of any redemption shall be given by the Paying
Agent in the name of the City by sending a copy of such
notice by certified or registered first-class, postage
prepaid mall, at least thirty (30) days prior to the
redemption date, to the Owners of each of the Bonds being
redeemed Such notice shall specify the number or numbers of
the Bonds to be redeemed (if redemption shall be ~n part) and
their redemption date If any of the Bonds shall have been
duly called for redemption, then said Bonds shall become due
and payable at such redemption date, and from and after such
date (mf on or before the redemption date there shall have
been deposited with the Paying Agent funds sufficient to pay
the redemption price of such Bonds at the redemption date)
interest will cease to accrue thereon. Any Bonds redeemed
prior to their maturity shall not be reissued and shall be
cancelled.
Section 6. Execution, Delmvery and Replacement of
Bonds. The Bonds shall be executed ~n the name and on behalf
of the City with the manual or facsimile signature of the
Mayor or Mayor Pro Tem, shall bear a manual or facsimile of
the seal of the City and shall be attested by the manual or
facsmm~le signature of the City Clerk or Deputy or Assistant
City Clerk. Should any off~cer whose manual or facsimile
smgnature appears on the Bonds cease to be such off~cer
before delivery of any Bond, such manual or facsimile
signature shall nevertheless be valid and sufficient for all
purposes The Mayor and the City Clerk are hereby authorized
and d~rected to prepare and to execute the Bonds ~n
accordance wmth the requirements of this Ordinance. When the
Bonds have been duly executed, the offmcers of the City are
authorized to, and shall, deliver the Bonds to the Paymng
Agent for authentlcatmon. No Bond shall be secured by this
Ordinance or entitled to the benefmt hereof, or shall be
valid or obligatory for any purpose, unless the certificate
of authentication of the Paying Agent, in substantially the
form set forth in this Ordinance, has been duly executed by
the Paying Agent. Such certif~cste of the Paying Agent upon
any Bond shall be conclusive evidence and the only competent
evidence that such Bond has been authentIcated and delivered
hereunder. The Paying Agent's certlfmcate of authentication
shall be deemed to have been duly executed by ~t if manually
s~gned by an authorized officer of the Paymng Agent, but mt
shall not be necessary that the same s~gnatory sign the
certificate of authentmcatlon on all of the Bonds ~ssued
hereunder.
Upon the authenticatmon of the Bonds, the Paying Agent
shall deliver the same to the Underwrmter or its designees as
directed by the City as her@mnafter provided. Prior to the
delmvery by the Paying Agent of the Bonds, there shall be
f~led with the Paying Agent the following:
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(a) A certified copy of this Ordinance
(b) A request and authorization to the Paying
Agent on behalf of the City and signed by the Mayor to
authenticate and deliver the Bonds to the Underwriter
upon payment to the City of a sum specified in such
request and authorization plus accrued ~nterest thereon
to the date of delivery. The proceeds of such payment
shall be paid over to the C~ty and deposited as provided
in this Ordinance.
(c) Executed cop~es of the Paying Agency
Agreement, the Lease and the M_AA Lease.
If any outstanding Bond shall become mutilated, lost,
stolen or destroyed, the City shall execute and the Paying
Agent shall authenticate a new Bond of like maturity,
interest rate and denomination to that mutilated, lost,
stolen or destroyed, provided that, in the case of any
mutilated Bond, such mutilated Bond shall first be
surrendered to the Paying Agent, and in the case of any lost,
stolen or destroyed Bond, there shall be f~rst furnished to
the City and the Paying Agent evidence of such loss, theft or
destruction satisfactory to the City and the Paying Agent,
together w~th an indemnity satisfactory to the C~ty and the
Paying Agent. In the event any such Bond shall have matured,
Instead of ~ssulng a duplicate Bond, the Paying Agent may pay
the same without surrender thereof, making such requirements
as ~ts deems fit for its protection, including a lost
~nstrument bond. The City and the Paying Agent may charge
the Owner of such Bond w~th ~ts reasonable fees and expenses
in this connection.
Section 7 Form of Bond. The Bonds shall be
substantially in the form hereinafter set forth, w~th such
variations, omissions and insertions as are permitted or
required by this Ordinance
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(Form of Bond)
[FRONT OF BOND]
UNITED STATES OF AMERICA
STATE OF COLORADO
COUNTY OF PITKIN
CITY OF ASPEN
GENERAL OBLIGATION HOUSING BOND
SERIES 1990A
No R $
INTEREST RATE' MATURITY DATE' ORIGINAL ISSUE DATE: CUSIP'
April 15, May 15, 1990
REGISTERED OWNER:
PRINCIPAL SUM: DOLLARS
The CITY OF ASPEN, In the County of Pltkln and State of
Colorado (the "City"), for value received, hereby promises to
pay to the order of the Registered Owner named above, or
registered assigns, on the Maturity Date stated above, the
PrIncipal Sum stated above, with interest thereon from the
Original Issue Date stated above, at the Interest Rate per
annum stated above, payable on October 15, 1990, and
semiannually thereafter on the 15th day of April and the 15th
day of October of each year, the principal of and premium, if
any, on this Bond being payable at the princmpal corporate
trust office of Central Bank Denver, National Association,
National Association, In Denver, Colorado, as Paying Agent,
or !ts successor (the "Paying Agent"), and the interest
hereon to be pa~d to such person as is the Registered Owner
hereof as of the close of business at the principal corporate
trust office of the Paying Agent on the Record Date by check
or draft of the Paying Agent mailed on the Interest payment
date to said Registered Owner. The Record Date is the
April 1 or October 1 (whether or not a business day)
preceding any interest payment date All payment of the
principal of, premium, if any, and interest on this Bond
shall be made in lawful money of the United States of America
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND
SET FORTH ON THE REVERSE HEREOF WHICH SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH HEREIN.
It is hereby certified, reczted and declared that all
conditions and acts required to be performed precedent to and
in the adoption of the Ordlnance~ and the Issuance of this
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Bond, have been performed mn due tmme, form and manner as
requmred by law; and that the issuance of this Bond and the
sermes of which It forms a part does not exceed or v~olate
any constmtutlonal, statutory or home rule charter limltatmon
or requirement applicable hereto
Th~s Bond shall not be entmtled to any benefit under the
Ordinance, or become valmd or obligatory for any purpose,
until the Paying Agent shall have signed the certificate of
authentication hsreon.
IN WITNESS WHEREOF, the City of Aspen, Colorado, has
caused this Bond to be smgned wmth the manual or facsimile
smgnature of its Mayor, sealed with the impression of ItS
seal or a facsmmile thereof, and attested with the manual or
facsimIle s~gnature of its Cmty Clerk.
[SEAL] CITY OF ASPEN, COLORADO
By
Attest: Mayor
City Clerk
(Form of Paying Agent's Certmfmcate of Authentication)
Date of Authentication:
Th~s ms one of the Bonds described in the Ordmnance
descrzbed here~n.
CENTRAL BANK DENVER, NATIONAL
ASSOCIATION, as Paymng Agent
By (Manual Siqnature)
Authorized Officer
(End of Form of Paying Agent's
Certlfmcate of Authentication)
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[BACK OF BOND]
Thms Bond ms one of a duly a~thorlzed series of Bonds
designated "City of Aspen, Colorado, General Obligation
Housmng Bonds, Series 1990A" (the "Bonds"), limited in
aggregate principal amount to $5,875,000, mssued under and
pursuant to the Constitution and laws of the State of
Colorado, the home rule charter of the City of Aspen,
Colorado, and an ordinance duly adopted by the City Council
of the Cmty (the "Ordinance") prior to the issuance hereof.
The Bonds are being issued by the City for the purpose of
providing funds for the constructing and equipping of a
dormitory-style housmng facmllty to be located in the Cmty,
to be owned by the City and leased to the Aspen/Pltkln County
Housing Authority (the "Authority"), and for payment of all
necessary lncmdental and appurtenant costs and expenses
Incurred in connection therewith. A port,on of the housmng
faelllty will be leased by the Authormty to Music Assocmates
of Aspen, Inc , a 501(c)(3) nonprofit corporation.
The prmnclpal of and interest on the Bonds, includmng
this Bond, shall constitute general obligations of the City
and shall be payable from and secured by a pledge of the full
faith and credit of the City.
The Bonds are lssuable solely in the form of fully
registered bonds, without coupons, mn the denommnatmon of
$5,000 or any integral multiple thereof. Th~s Bond may be
transferred or exchanged at the prmnclpal corporate trust
office of the Paying Agent in Denver, Colorado, but only in
the manner, subject to the lmm~tat~ons and upon payment by
the Registered Owner of the fees and charges provided in the
Ordinance (including any transfer fee of the Paying Agent and
any tax or governmental charge required to be paid with
respect thereto), and upon surrender and cancellation of this
Bond Upon surrender for any transfer, duly endorsed for
transfer or accompanmed by an assignment duly executed by the
Registered Owner hereof or his or her attorneys duly
authorized in writing, a new registered Bond or Bonds of the
same maturity and interest rate and of authorized
denomination or denommnations ($5,000 and integral multiples
thereof) for the same aggregate princmpal amount will be
mssued to the transferee in exchange therefor. In add,tmon,
thms Bond may be exchanged for a like aggregate principal
amount of Bonds of other authorized denommnations of the same
maturity and interest rate. Any Bond mssued upon transfer or
exchange shall bear interest from the last interest payment
date to which interest has been paid, or if no interest has
been paid, then from the original issue date. The City and
the Paying Agent may deem and treat the Registered Owner
hereof as the absolute owner hereof (whether or not payment
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on this Bond shall be overdue) for the purpose of receiving
payment of or on account of prIncipal hereof, premium, if
any, and interest due hereon and for all other purposes, and
neither the City nor the Paying Agent shall be affected by
any notice to the contrary.
The Bonds maturing on and after April 15, 1996 are
subject to prior redemption, at the option of the City, in
whole or in part, and if in part, in inverse order of
maturities and by lot within a maturity, on April 15, 1995
and on any date thereafter, at redemption prices (expressed
as a percentage of principal amount), plus accrued interest
to the redemption date as follows:
Redemption Date Redemption Price
April 15, 1995 through April 14, 1996 102.0%
April 15, 1996 through April 14, 1997 101.5
April 15, 1997 through April 14, 1998 101.0
April 15, 1998 through April 14, 1999 100.5
April 15, 1999 and thereafter 100.0
The Bonds maturing on April 15, 2005, April 15, 2010 and
April 15, 2020 are also subject to mandatory redemption at a
price of par plus accrued interest to the redemption date in
the amounts and on the dates set forth in the Ordinance.
Redemption shall be made upon not less than thirty (30)
days prior notice by sending a copy of such notice by
certified or registered f~rst-class, postage prepaid mail at
least thirty (30) days prior to the redemption date specified
in such notice to the Registered Owners of each of the Bonds
being redeemed. Such notice shall specify the number or
numbers of the Bonds so to be redeemed (if redemption shall
be in part) and the redemption date. If th~s Bond shall have
been duly called for redemption, then this Bond shall become
due and payable at such redemption date, and from and after
such date (if on or before the redemptIon date there shall
have been deposited with the Paying Agent funds sufficient to
pay the redemption price of such Bonds at the redemption
date) interest hereon shall cease to accrue.
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[Form of Assignment]
ASSIGNMENT
FOR VALUE RECEIVED the undersigned transfers
unto (Tax Identzflcation or Social
Security No ) this Bond of the City of Aspen,
Colorado, and does hereby irrevocably constitute and
appoint Attorney to transfer this Bond on the
books kept for the 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.
[Form of Bond Counsel Opinion to be inserted here]
(End of Form of Bond)
Section 8. Sale; Official Statement. The Bonds, when
executed as provided by law, shall be delivered to the
Underwriter in accordance with Section 6 hereof The Bonds
shall be sold to the Underwriter for the price set forth in
the Bond Purchase Agreement, plus accrued interest, if any,
from May 15, 1990 to the date of delivery thereof. Such sale
of the Bonds IS hereby found to be to the best advantage of
the City and is hereby approved, subject to the Bond Purchase
Agreement.
The proceeds of the Bonds shall be used exclusively for
payment of the cost of the Project, and all necessary
incidental and appurtenant costs and expenses incurred in
connection therewith and for payment of the costs of issuing
the Bonds.
Neither the Underwriter nor the subsequent Owner or
Owners of any of the Bonds shall be responsible for the
application or disposal of the funds derived from the sale
thereof by the City or any of Its officers. The issuance of
the Bonds by the City shall constitute a warranty by and on
behalf of the City, for the benefit of each and every Owner
of the Bonds, that the Bonds have been issued for a valuable
consideration in full conformity with law
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The Preliminary Official Statement relating to the Bonds
is hereby approved and the use thereof by the Underwriter is
hereby approved The Mayor is authorized and directed to
execute and deliver a final Official Statement in substan-
tially the form of the Preliminary Official Statement, but
with such changes therein as shall be deemed necessary,
within seven business days from the date of execution and
delivery of the Bond Purchase Agreement
Section 9. Funds. The "City of Aspen, Colorado,
General Obligation Housing Bonds, Series 1990A Bond Fund" and
the "City of Aspen, Colorado, General Obligation Housing
Bonds, Series 1990A Bond Proceeds Fund" are hereby created by
and established with the City.
Upon the issuance, sale and delivery of the Bonds, the
accrued ~nterest on the Bonds from May 15, 1990 to the date
of delivery of and payment for the Bonds shall be deposited
into the Bond Fund The remaining proceeds from the sale of
the Bonds will be deposited into the Bond Proceeds Fund. In
addition, $150,000 to be pa~d by Music Associates of Aspen,
Inc , s~multaneously with the issuance of the Bonds shall de
deposited in the Bond Proceeds Fund
In addition, there shall be deposited by the City into
the Bond Fund on or prior to each principal and interest
payment date, sums sufficient to pay the principal of,
premium, if any, and interest on the Bonds when due. Moneys
in the Bond Fund shall be transferred to the Paying Agent on
each date on which the principal of, premium, if any, or
interest on the Bonds shall become due in amounts sufficient
to pay the same 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 when due Moneys on
deposit in the Bond Proceeds Fund shall be used for payment
of the costs of issuing the Bonds and for costs of the
Project (Including interest on the Bonds during construction
of the Project) ~n accordance with the Lease.
Section 10 Security for the Bonds. The Bonds
constitute general obligations of the City. The full faith
and credit of the City are hereby pledged as security for the
payment of the principal of, premium, if any, and interest on
the Bonds. The Bonds are not secured by a pledge of any
payments received under the Lease or the MAA Lease.
Section 11. Further Assurances. In furtherance of said
pledge of the full faith and credit of the City, it ~s hereby
irrevocably covenanted and agreed that ~f at any time while
any of the Bonds remain outstanding, the payments required to
be made into the Bond Fund pursuant to Section 9 hereof are
not made in strict accordance with the terms thereof, the
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WP129702-01~/3
Council shall promptly pass and adopt supplementary or
emergency appropriation ordinances or resolutions and make
such allocations and deposits of moneys from general funds of
the City to the Bond Fund as are necessary to bring the
amount on deposit in the Bond Fund to the level at which !t
would have been had the City strictly complied with the
provisions of said Section 9. Said actions shall be
initiated at the first regular or earlier scheduled emergency
meeting of the Council subsequent to such event and completed
as promptly as possible Thereafter, said appropriations,
allocations and deposits shall continue to be made in such
amounts and with sufficient frecfuency to assure that the sums
of money required to be deposited into the Bond Fund,
together with other moneys on deposit in the Bond Fund, shall
be sufficient to pay the principal of and interest on the
Bonds when due.
Section 12. Rebate. There is hereby created and
established with the City a separate fund to be designated
the "City of Aspen, Colorado, General Obligation Housing
Bonds, Series 1990A Rebate Fund," which shall be expended in
accordance with the provisions hereof and the Investment
Instructions The City shall make deposits and disbursements
from the Rebate Fund in accordance w~th the Investment
Instructions, shall invest the Rebate Fund pursuant to said
Investment Instructions and shall deposit income from said
investments immediately upon receipt thereof in the Rebate
Fund, all as set forth in the Investment Instructions. The
City shall employ, at its expense, a person or firm with
recognized expertise in the area of rebate calculations,
which person or firm shall make the calculations, deposits,
disbursements and investments as may be required by the
immediately preceding sentence The Investment Instructions
may be superseded or amended by new Investment Instructions
drafted by, and accompanied by an opinion of, nationally
recognized bond counsel addressed to the City to the effect
that the use of said new Investment Instructions will not
cause the interest on the Bonds to become includable in gross
income for the purposes of federal income taxation.
The City shall annually make the rebate deposit
described in the Investment InstIuctlons. Records of the
determinations required by this Section 12 and the Investment
Instructions shall be retained by the City until slx (6)
years after the final retirement of the Bonds.
Not later than sixty (60) days after the end of the
fifth Bond Year (i.e., the year ending April 15, 1995) and
every five (5) years thereafter, the City shall pay to the
United States of America ninety percent (90%) of the amount
required to be on deposit in the Rebate Fund as of such
palrment date. Not later than sixty (60) days after the final
retirement of the Bonds, the City shall pay to the United
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WP129702-014/3
States of America one hundred percent (100%) of the balance
remaining in the Rebate Fund Each payment required to be
paid to the United States of America pursuant to this Section
12 shall be filed with the Internal Revenue Service Center,
Philadelphia, Pennsylvania 19255. Each payment shall be
accompanied by a copy of the Internal Revenue Form 8038
originally filed with respect to the Bonds, Internal Revenue
Form 8038-T, and, if necessary, a statement summarizing the
determination of the amount to be paid to the United States
of America
Section 13. Investments, No Arbltraqe; Additional Tax
Covenants. Any moneys on deposit in the Bond Fund, the Bond
Proceeds Fund and the Rebate Fund shall be invested only in
obligations, securities or instruments which are legal
investments for funds of the City. Ail earnings, income,
profits and losses (other than on moneys in the Rebate Fund)
shall be credited to the Bend Proceeds Fund prior to
completion of the Project, and thereafter to the Bond Fund.
The City covenants that it shall not use or permit the
use of any proceeds of the 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 of the Bonds to be an "arbitrage bond" within the
meaning of Section 148 of the Code, or would otherwise cause
the interest on the Bonds to be includable in gross income
for federal income tax purposes. The City covenants that it
shall at all times do and perform all acts and things
permitted by law and which are necessary or desirable in
order to assure that Interest paid by the City on the Bonds
shall, for purposes of federal income taxation, not be
includable in gross income under the Code or any other valid
provision of law.
In particular, but without limitation, the City further
represents, warrants and covenants to comply with the
following restrictions of the Code, unless it receives an
opinion of nationally recognized bond counsel stating that
such compliance is not necessary:
(a) Gross proceeds of the Bonds will not be used
in a manner which will cause the Bonds to be considered
"private activity bonds" within the meaning of the Code
other than private activity bonds that constitute
"qualified 501(c)(3) bonds" within the meaning of the
Code.
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WP129702-01 ~./3
(b) The Pro]ect shall not constitute "r@sldentlal
rental property for family units" wlthln the meaning of
the Code, except for any portion of the Project which ms
not used mn the trade or business of any private person
(c) The average maturity of the Bonds shall not
exceed 120% of the average reasonably expected economic
life of the Project, all as determined in accordance
with Section l~7(b) of the Code.
(d) No portion of the proceeds of the Bonds shall
be used to provide or finance any airplane, skybox or
other private luxury box, facility primarily used for
gambling, or store, the principal business of which is
the sale of alcoholic beverages for consumption off
premises.
(e) Costs of issuance of the Bonds which are
financed from the proceeds of the Bonds shall not exceed
two percent (2%) of the proceeds of the Bonds.
(f) The public approval requirement with respect
to the Bonds imposed by Section 147(f) shall be deemed
satisfied by the election held on February 13, 1990
approving the ~ssuance of the Bonds.
(g) The MAA Lease shall contain such other
requirements as bond counsel shall deem necessary to
ensure that interest on the Bonds shall not be
includable in gross income for federal income tax
purposes.
(h) The Bonds are not and shall not become
directly or indirectly "federally guaranteed."
(i) The City shall timely f~le Internal Revenue
Form 8038 which shall contain the information required
to be f~led pursuant to Section 149(e) of the Code.
(]) The C~ty shall comply with the Investment
Instructions delmvered to it on the date of issue of the
Bonds with respect to the application and investment of
Bond proceeds, subject to Section 12 hereof,
The City w~ll use Its best efforts to enforce all
provisions of the Lease and the MAA Lease necessary to
maintain the exclusion from gross income under the Code of
interest pa~d on the Bonds.
WP129702-014/3
Section 14 Refundinqs and Defeasance. The Bonds may
be refunded at the discretion and by action of the Council,
subject to provisions concerning their payment and any other
contractual limitations set forth in this Ordinance, as
authorized and permitted by the Charter A Bond shall not be
deemed to be outstanding hereunder if it shall have been paid
and cancelled or if cash funds or Governmental Obligations
shall have been deposited in trust with an escrow agent for
the payment thereof (whether upon or prior to the maturity of
any such Bond). In computing the amount of the deposit
described above, the City may ~nclude interest to be earned
on the Governmental Obligations.
Section 15. ADpointment of Paylnq Aqent The City
hereby appoints Central Bank Denver, National Association,
Denver, Colorado, as the Paying Agent.
Section 16. AQDroval of Lease, MAA Lease, Bond Purchase
Aqreement and Pa¥~nq Aqency Aqreement The Lease, the MAA
Lease, the Bond Purchase Agreement and the Paying Agency
Agreement, in substantially the forms presented to the
Council, are hereby authorized and approved, and the Mayor or
Mayor Pro Tem and the Clerk or any Assistant Clerk are hereby
directed to execute and deliver the Lease, the MAA Lease, the
Bond Purchase Agreement and the Paying Agency Agreement, in
substantially the forms approved, but with such changes
therein as shall be deemed necessary or desirable by the
officers executing the same, their execution to be conclusive
evidence of the City's approval of any changes from the forms
hereby approved.
Section 17. Miscellaneous Documents. The officers of
the C~ty are authorized and directed to take all action
necessary or appropriate to effectuate the provisions of this
Ordinance, including, without limiting the generality of the
foregoing, the printing of the Bonds and the execution of
such certificates may be required by the Underwriter relating
to, but not limited to, the signing of the Bonds, the use of
the proceeds thereof, the tenure and identity of the
municipal officials, the receipt of the Bonds' purchase
price, the tax status of the Bonds, and the absence of
litigation, pending or threatened, if in accordance with the
facts, affecting the validity thereof.
Section 18. Severablllt¥. If any provision of this
Ordinance shall be held or deemed to be or shall, in fact, be
illegal, Inoperative or unenforceable, the same shall not
affect any other provision or provisions hereof or render the
same invalid, inoperative or unenforceable to any extent
whatever.
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WP129702-014/3
Section 19 Governlnq Law. This Ordinance w~ll be
governed by and construed in accordance with the laws of the
State of Colorado
Section 20. Repeals. All ordinances or resolutions, or
parts thereof, in conflict w~th this Ordinance are hereby
repealed. This repealer shall not be construed to revive any
ordinance or part of any ordinance heretofore repealed.
After the Bonds have been issued, th~s Ordinance shall be and
remain irrepealable until the Bonds and the interest thereon
shall be fully paid, satisfIed and discharged in the manner
here~n provided, or sufficient provision shall have been made
for such payment, satisfaction and discharge such that no
Bonds are deemed to be outstanding hereunder.
Section 21. Public Hearlnq. A public hearing on this
Ordinance shall be held on the 9th day of April 1990, at 5:00
p m. in the City Council Chambers~ Aspen C~ty Hall, Aspen,
Colorado.
INTRODUCED, READ AND ORDERED published as provided by
law by the C~ty Council of the City of Aspen on the 26th day
of March 1990.
Mayor
Attest:
FINALLY adopted, passed and approved and ordered
published as provided by law this 9th day of April 1990.
Mayor
Attes~
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