HomeMy WebLinkAboutordinance.council.048-91 ORDINANCE NO. 48
(Series of 1991)
AN EMERGENCY ORDINANCE AUTHORIZING THE ISSUANCE BY
THE CITY OF ASPEN, COLORADO, OF ITS GENERAL
OBLIGATION ELECTRIC REFUNDING BONDS, SERIES 1991,
IN THE PRINCIPAL AMOUNT OF $6,975,000, FOR THE
PURPOSE OF PROVIDING FUNDS FOR THE ADVANCE
REFUNDING OF A PORTION OF THE CITY OF ASPEN,
COLORADO GENERAL OBLIGATION ELECTRIC REFUNDING
BONDS, SERIES 1985 AND THE CITY OF ASPEN, COLORADO
GENERAL OBLIGATION ELECTRIC BONDS (MAROON CREEK
HYDROELECTRIC GENERATING PROJECT) SERIES 1987,
TOGETHER WITH ALL NECESSARY INCIDENTAL AND
APPURTENANT COSTS AND EXPENSES THEREWITH;
PRESCRIBING THE FOR~ OF SAID SERIES 1991 BONDS;
PROVIDING FOR THE SALE OF SAID SERIES 1991 BONDS
AND APPROVING A BOND PURCHASE AGREEMENT; PROVIDING
A PLEDGE OF THE FULL FAITH AND CREDIT OF THE CITY
AS SECURITY FOR SAID SERIES 1991 BONDS; PROVIDING
OTHER DETAILS IN CON1FECTION WITH SAID SERIES 1991
BONDS; APPROVING THE FORM OF THE OFFICIAL STATEMENT
AND A CERTAIN ESCROW AGREEMENT; DECLARING AN
EMERGENCY AND PROVIDING FOR THE EFFECTIVE DATE OF
THIS EMERGENCY ORDINANCE.
WHEREAS, the City of Aspen, in the County
of
Pitkin
and
State of Colorado (the "City"), is a municipal corporation
duly organized and existing as a home rule city pursuant to
Article XX, Section 6 of the Constitution of the State of
Colorado (the "Constitution") and the charter of the City
(the "Charter"); and
WHEREAS, a portion of Section 10.3 of the Charter
provides in part as follows:
No bonds or other evidence of indebtedness
payable in whole or in 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
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voting on the question; qualified electors of the
City shall mean those duly qualified to vote at a
general or special election in the City of Aspen
unless the city council for sufficient reason shall
by ordinance calling the election, restrict or
limit such classification of electors to tax-paying
electors as may be defined by ordinance adopted by
the city council, provided, however, that such
securities issued for acquiring utilities and
rights thereto, or acquiring improving or extending
any municipal utility system, or any combination of
such purposes, may be so issued without an election.
WHEREAS, Section 10.4 of the Charter provides in
relevant part as follows:
The city shall not become indebted for any
purpose or in any manner in an amount which,
including existing indebtedness, shall exceed
twenty (20) percent of the assessed valuation of
the taxable property within the city, as shown by
the last preceding assessment for city purposes;
provided, however, that in determining the
limitation of the City's power to incur
indebtedness there shall not be included bonds
issued 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 City
will derive a revenue in accordance with Section
10.5 of this article.
WHEREAS, Section 10.6 of the Charter provides as follows:
The council may authorize, by ordinance,
without an election, issuance of refunding bonds or
other like securities for the purpose of refunding
and providing for the payment of the outstanding
bonds or other like securities of the City of the
same nature, or in advance of maturity by means of
an escrow or otherwise.
WHEREAS, pursuant to Sections 10.3 and 10.6 of the
Charter, the Council has determined that the proposed
$6,975,000 principal amount of bonds may thus be issued
without a vote of the qualified electors of the City; and
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WHEREAS, the Council determines to issue its General
Obligation Electric Refunding Bonds, Series 1991 (the
"Bonds"), in the principal amount of $6,975,000 pursuant to
the Charter, for the purpose of providing funds to advance
refund certain of the City's general obligation electric
utility bonds, together with all necessary incidental and
appurtenant costs and expenses in connection therewith; and
WHEREAS, the Bonds shall constitute general obligation
bonds and shall be secured by a pledge of the full faith and
credit of the City; and
WHEREAS, the Council determines to issue the Bonds
pursuant to the Charter; and
WHEREAS, it is now necessary by ordinance to authorize
the issuance, sale and delivery of the Bonds, and to provide
details of and the security for the Bonds.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO THAT:
Section 1. Definitions. In addition to terms otherwise
defined herein, the following terms shall have the following
meanings, as used herein:
(a) "Bond Fund" shall mean the fund by that name
created pursuant to Section 15 hereof.
(b) "Bond Purchase Agreement" shall mean the Bond
Purchase Agreement dated December 16, 1991 between the
City and the Underwriter.
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(c) "Escrow Account" shall mean an account created
pursuant to on the Escrow Agreement for the purpose of
advance refunding the Refunded Bonds.
(d) "Escrow Agent" shall mean The Colorado
National Bank of Denver, Denver, Colorado.
(e) "Escrow Agreement" shall mean the Escrow
Agreement dated as of December 1, 1991 between the City
and the Escrow Agent.
(f) "1985 Refunded Bonds" shall mean the City's
General Obligation Electric Refunding Bond, Series 1985~
maturing on or after October 1, 1994.
(g) "1987 Refunded Bonds" shall mean the City's
General Obligation Electric Bonds (Maroon Creek
Hydroelectric Generating Project) Series 1987, maturing
on or after November 1, 1995.
(h) "Paying Agent" shall mean The Colorado
National Bank of Denver, or any successor paying agent
appointed by the City, acting as, among other things,
paying agents registrar and authenticating agent under
this Ordinance.
(i) "Rebate Fund" shall mean the fund by that name
created pursuant to Section 15 hereof.
(j) "Record Date" shall mean the March 15 or
September 15 (whether or not a business day) prior to
each interest payment date with respect to the Bonds.
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(k) "Refunded Bonds" shall mean the 1985 Refunded
Bonds and the 1987 Refunded Bonds.
(1) "Registered Owner" shall mean any Person or
Persons in whose name or names a Bond shall be
registered on the registration books of the City
maintained by the Paying Agent.
(m) "Tax Code" shall mean the Internal Revenue
Code of 1986, as amended and any Income Tax Regulations
promulgated thereunder.
(n) "Tax Letter of Instructions" shall mean the
Tax Letter of Instructions, dated the date of delivery
of the Bonds, delivered by Kutak Rock & Campbell to the
City, as the same may be superseded or amended as
provided in Section 16 hereof.
(o) "Underwriter" shall mean George K. Baum &
Company, Kirchner Moore Division.
Section 2. Authorization of Bonds. For the purpose of
providing funds for the advance refunding of the Refunded
Bonds, together with all necessary incidental and appurtenant
costs and expenses in connection therewith, the City shall
issue its "General Obligation Electric Refunding Bonds,
Series 1991," in the aggregate principal amount of
$6,975,000. The Bonds shall be general obligation bonds of
the City, and the principal of and interest on the Bonds
shall be payable from and be secured by a pledge of the full
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faith and credit of the City, as more particularly
hereinafter set forth. The Bonds are hereby determined to be
issued pursuant to the Charter.
Section 3. Bond Details.
(a) The Bond shall be issued as fully registered
bonds without coupons in the denominations of $5,000 and
any integral multiple thereof.
(b) The Bonds shall be dated December 1, 1991, and
shall bear interest from their date; provided that if
interest on the Bonds shall be in default, Bonds issued
in exchange for Bonds surrendered for transfer or
exchange shall bear interest from the date to which
interest has been paid in full on the Bonds surrendered
or if no interest has been paid thereon,
then
from
December 1, 1991. Interest on the Bonds shall be
payable on April 1 and October 1 of each year,
commencing April 1, 1992.
(c) The Bonds shall be consecutively numbered,
shall mature on the 1st day of each October in the
principal amounts and years, and shall bear interest at
the rates per annum, as shown in the following schedule:
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Maturity
(October 1) Principal Amount Interest Ratei
1993 $130,000 4.25%
1994 580,000 4.50
1995 650 000 4.75
1996 675 000 5.00
1997 720 000 5.20
1998 75~ 000 5.35
1999 795 000 5.50
2000 845 000 5.70
2001 890 000 5.90
2002 935 000 6.00
(d) If upon presentation of a Bond to the Paying
Agent at maturity, payment of any Bond is not made as
herein provided, interest shall continue to accrue
thereon at the interest rate designated in the Bond
until the principal thereof is paid in full.
(e) Principal of the Bonds shall be payable in
lawful money of the United States of America at the
office of the Paying Agent. Interest on the Bonds shall
be payable by check or draft of the Paying Agent mailed
on the interest payment date to the Registered Owners
thereof as of the Record Date.
Section 4~ Paying Agent; Transfer and Exchange. The
Paying Agent shall act as paying agent, bond registrar and
authenticating agent hereunder for purposes of the Bonds
unless the City shall designate and appoint a successor
Paying Agent. The Paying Agent shall maintain on behalf of
the City books for the purpose of registration and transfer
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of the Bonds, and such books shall specify the person
entitled to the Bonds and the rights evidenced thereby, and
all transfers of Bonds and the rights evidenced thereby.
Bonds may be transferred or exchanged upon payment of a
transfer fee, any tax or governmental charge required to be
paid with respect to such transfer or exchange and any cost
of typing or printing bonds in connection therewith, at the
principal office of the Paying Agent. Bonds may be exchanged
for a like 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 Registered Owner or his or her attorneys duly authorized
in writing, the City shall execute and the Paying Agent shall
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 like 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 any Paying Agent shall be
affected by any notice to the contrary.
Section 5. No Prior RedemDtion. The Bonds shall not be
subject to redemption prior to their respective maturities.
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Section 6. Execution of Bonds. The 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 Tem,
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. Should any
officer whose manual or facsimile signature appears on the
Bonds cease to be such officer 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 directed to prepare and
to execute the Bonds in accordance with the requirements of
this Ordinance. When the Bonds have been duly executed, the
Paying Agent is authorized to, and shall, authenticate the
Bonds as Paying Agent. No Bond shall be secured by this
Ordinance or entitled to the benefit 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 certificate 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 certificate of authentication
shall be deemed to have been duly executed by it if manually
signed by an authorized representative of the Paying Agent,
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but it shall not be necessary that the same representative
sign the certificate of authentication on all of the Bonds
issued hereunder.
Section 7. Delivery of the Bonds. Upon the original
issuance, execution and authentication of the Bonds, the
Paying Agent shall deliver the Bonds to the Underwriter upon
receipt of the purchase price therefor.
Section 8. Replacement of Bonds. If any outstanding
Bond shall become lost, apparently destroyed or wrongfully
taken, it may be reissued in the form and tenor of the lost,
destroyed or taken bond upon the Registered Owner furnishing,
to the satisfaction of the Paying Agent: (i) proof of
ownership (which shall be shown by the registration books of
the Paying Agent), (ii) proof of loss, destruction or theft,
(iii) an indemnity to the City and the Paying Agent with
respect to the Bond lost, destroyed or taken, and (iv)
payment of the cost of preparing and issuing the new
security, in which case the Paying Agent shall then
authenticate the Bonds required for reissuance.
Section 9. Form of Bonds. The Bonds shall be in
substantially the following form with such omissions,
insertions, endorsements and variations as may be required by
the circumstances:
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I of Bond)
(Form
[Front Of Bond]
UNITED STATES OF AMERICA
CITY OF ASPEN, COLORADO
GENERAL OBLIGATION ELECTRIC REFUNDING BOND
SERIES 1991
INTEREST RATE: MATURITY DATE: ORIGINAL ISSUE DATE: CUSIP:
October 1, December 1, 1991
REGISTERED OWNER:
PRINCIPAL SUM:
DOLLARS
The CITY OF ASPEN, in the County of Pitkin and State of
for value received, hereby promises to
Colorado
(the
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 April 1, 1992, and
semiannually thereafter on the 1st day of October and the 1st
day of April of each year, the principal of on this bond
being payable upon the surrender of this bond to The Colorado
National Bank of Denver (together with its successors as
such· the "Paying Agent") at the principal corporate trust
offices of the Paying Agent in Denver· Colorado, and the
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interest hereon to be paid to such person as is the
registered owner hereof as of the close of business at the
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 March 15 or
September 15 (whether or not a business day) preceding any
interest payment date. All payments of principal and
interest shall be made in lawful money of the United States
of America.
THIS BOND CONSTITUTES A "QUALIFIED TAX-EXEMPT
OBLIGATION" WITHIN THE MEANING OF SECTION 265 OF THE INTERi~AL
REVENUE CODE OF 1986, AS AMENDED.
This bond constitutes a general obligation of the City,
and the principal of and interest on the Bonds, including
this bond, are secured by and payable from the City's pledge
of its full faith and credit as set forth in the Ordinance.
It is hereby certified that all conditions, acts and
things required by the constitution and laws of the State of
Colorado, and the Charter and ordinances 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 Bonds do not exceed any limitations
prescribed by said constitution or laws of the State of
Colorado, or the Charter or ordinances of the City.
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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.
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IN WITNESS WHEREOF, the City of Aspen, Colorado, has
caused this bond to be signed with the manual or facsimile
signature of its Mayor, sealed with a manual or facsimile of
the impression of its seal, and attested with the manual or
facsimile signature of its City Clerk.
[MANUAL OR
FACSIMILE SEAL] CITY OF ASPEN, COLORADO
By (Manual or Facsimile Signature)
ATTEST: Mayor
By (Manual or Facsimile Signature)
City Clerk
[End of Front of Bond]
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[Back of Bond]
This bond is one of an issue of bonds of the City
designated General Obligation Electric Refunding Bonds,
Series 1991, issued in the principal amount of $6~975,000
(the "Bonds"). The Bonds are being issued by the City for
the purpose of providing funds for the advance refunding of
certain general obligation electric bonds previously issued
by the City and paying all necessary, incidental and
appurtenant costs in connection therewith, pursuant to and in
full conformity with the constitution and laws of the State
of Colorado, the Charter of the City of Aspen, Colorado (the
"Charter") and an ordinance duly passed and adopted by the
City prior to the issuance hereof (the "Ordinance").
The Bonds are not subject to redemption prior to their
respective maturity dates~
This bond may be transferred or exchanged at the office
of the Paying Agent in Denver, Colorado, but only in the
manner, subject to the limitations and upon payment of the
charges provided in the Ordinance (including any tax or
governmental charge required to be paid with respect thereto
and any cost of printing bonds in connection therewith), and
upon surrender and cancellation of this bond. Upon surrender
for any transfer, duly endorsed for transfer or accompanied
by an assignment duly executed by the registered owner hereof
or his or her attorneys duly authorized in writing, a new
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registered Bond or Bonds of the same maturity and interest
rate and of authorized denomination or denominations ($5,000
and integral multiples thereof) for the same aggregate
principal amount will be issued to the transferee in exchange
therefor, subject to the provisions of the Ordinance. In
addition, subject to the provisions of the Ordinance, this
bond may be exchanged for a like aggregate principal amount
of Bonds of other authorized denominations of the same
maturity and interest rate. Any Bond issued upon transfer or
exchange shall bear interest from the date as described on
the face of this bond, unless interest thereon shall be in
default, in which case interest shall accrue from the last
interest payment date to which interest has been paid, or if
no interest has been paid, from the original issue date. The
City and any Paying Agent may deem and treat the registered
owner hereof as the absolute owner hereof (whether or not
payment on this bond shall be overdue) for the purpose of
receiving payment of or on account of principal hereof and
interest due hereon and for all other purposes, and neither
the City nor any Paying Agent shall be affected by any notice
to the contrary.
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(Form of Paying Agent's Certificate of Authentication)
Date of Authentication:
This is one of the Bonds described in the within
mentioned Ordinance.
THE COLORADO NATIONAL BAi~K,
OF DENVER, PAYING AGENT
By
Authorized Representstive
(End of Form of Paying Agent's
Certificate of Authentication)
(Form of Assignment)
FOR VALUE RECEIVED,
the undersigned, hereby sells, assigns and transfers
unto (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.
(End of Form of Bond)
[Form of Approving Opinion of Kutak Rock & Campbell,
Bond Counsel, may be printed on the Bonds, including a
certification by the City Clerk.]
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Section 10. Sale; Official Statement. The Bonds, when
executed as provided by law, shall be delivered to the
Underwriter. The Bonds shall be sold to the Underwriter for
the price set forth in the Bond Purchase Agreement, plus
accrued interest, if any, from December 1, 1991 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 advance refunding the Refunded Bonds,
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.
The Preliminary Official Statement relating to the Bonds
is hereby approved and the use thereof by the Underwriter is
hereby approved. The Mayor and Mayor Pro Tem are authorized
and directed to execute and deliver a final Official
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Statement in substantially 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 11. 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 and interest on the Bonds.
Section 12. Disposition of the Bond Proceeds. The Bond
proceeds (net of underwriting and original issue discount)
shall be paid as follows:
(a) Accrued interest shall be credited to the Bond
Fund;
(b) An amount of $6,817,500 shall be deposited
into the Escrow Account;
(c) An amount of $40,234 shall be used to pay the
cost of issuance of the Bonds.
Section 13. Investments. The proceeds of the Bonds
shall be used exclusively for the purposes recited herein and
in the Bonds; provided, however, that all, or any proper
portion of, the proceeds of the Bonds in the Bond Fund and
other moneys in the Bond Fund may be invested in securities
or obligations which are lawful investments for such fund of
the City. All earnings, income, profits and losses with
respect to such fund shall be retained in the Bond Fund.
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Section 14. Covenant Upon Deficiency in Bond Fund. In
furtherance of said pledge of the full faith and credit of
the City, it is hereby irrevocably covenanted and agreed that
in the event that at any time while any of the Bonds remain
outstanding the payments required to be made from the Bond
Fund are not made in strict accordance with the terms thereof
(unless other moneys sufficient to pay the principal of and
interest on the Bonds when due shall be on deposit in the
Bond Fund), the Council shall promptly transfer from the
general funds of the City to the Bond Fund from moneys
previously appropriated, and shall promptly pass and adopt
supplemental or emergency appropriation ordinances or
resolutions and make such allocations and deposits of moneys
from general funds of the City to the Bond Fund. Thereafter
said appropriations, allocations and deposits shall continue
to be made in such amounts and with sufficient frequency to
assure that the sums of money required to be deposited in 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 15. Bond Fund and Rebate Fund.
(a) There is hereby created and established by the
City a separate special fund to be designated the
"General Obligation Electric Refunding Bonds, Series
1991 Bond Fund." The City shall credit to the Bond Fund
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at least three business days prior to each interest
payment date an amount equal to the principal of and
interest on the Bonds coming due on such date. Moneys
credited to the Bond Fund shall be used solely for such
purposes.
(b) There is hereby created and established by the
City a separate special fund to be designated the
"General Obligation Electric Refunding Bonds, Series
1991 Rebate Fund," which shall be expended in accordance
with the provisions hereof and the Tax Letter of
Instructions. The City shall make deposits and
disbursements from the Rebate Fund in accordance with
the Tax Letter of Instructions, shall invest the Rebate
Fund only in legal investments for funds of the City and
pursuant to said Tax Letter of Instructions, and shall
deposit income from said investments immediately upon
receipt thereof in the Rebate Fund, all as set forth in
the Tax Letter of Instructions. The City shall make the
calculations, deposits, disbursements and investments as
may be required by the immediately preceding sentence,
or, to the extent it deems necessary in order to ensure
the tax-exempt status of interest on the Bonds, shall
employ at its expense a person or firm with recognized
expertise in the area of rebate calculation, to make
such calculations. The Tax Letter of Instructions may
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be superseded or amended by a new Tax Letter of
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 Tax Letter
of Instructions will not cause the interest on the Bonds
to become includible in gross income for purposes of
federal income taxation.
(c) The City shall make the rebate deposits
described in the Tax Letter of Instructions. Any
required deposits to the Rebate Fund shall be made from
general funds of the City. Records of the
determinations required by this Section 15 and the Tax
Letter of Instructions shall be retained by the City
until six (6) years after the final retirement of the
Bonds.
(d) Not later than sixty (60) days after the end
of the fifth Bond Year (i.e. the year ending October 1,
1996 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 payment date. Not later than
sixty (60) days after the final retirement of the Bonds,
the City shall pay to the United States of America one
hundred percent (100%) of the balance remaining in the
Rebate Fund. Each payment required to be paid to the
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United States of America pursuant to this Section 15
shall be filed with the Internal Revenue Service Center,
Philadelphia, Pennsylvania 19255. Each pa~ent shall be
accompanied by a copy of the Internal Revenue Form
8038-G 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 16. Additional Tax Covenants.
(a) 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 Tax Code, or would otherwise cause the interest
on the Bonds to be includible 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 in order to
assure that interest paid by the City on the Bonds
shall, for purposes of federal income taxation, not be
includible in gross income under the Tax Code or any
other valid provision of law.
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(b) In particular, but without limitation, the
City further represents, warrants and covenants to
comply with the following restrictions of the Tax Code,
unless it receives an opinion of nationally recognized
bond counsel stating that such compliance is not
necessary:
(1) Gross proceeds of the Bonds shall not be
used in a manner which will cause the Bonds to be
considered "private activity bonds" within the
meaning of the Tax Code. The City will review the
desirability of the Agreement between the General
Electric Company and the City and Pitkin County for
the Operation, Maintenance and Repairs of the Ruedi
Hydro Electric Facility on at least an annual
basis, and will consult with Bond Counsel~if the
fee payable in any year with respect thereto would
exceed $155,000.
(2) The Bonds are not and shall not become
directly or indirectly "federally guaranteed."
(3) The City shall timely file Internal
Revenue Form 8038-G which shall contain the
information required to be filed pursuant to
subsection 149(e) of the Tax Code.
(4) The City shall comply with the Tax Letter
of Instructions delivered to it on the date of
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issue of the Bonds with respect to the application
and investment of Bond proceeds, subject to
Section 16 hereof.
(5) The City shall use the proceeds of the
Bonds within time periods such that the Bonds will
not constitute "hedge bonds" within the meaning of
Section 149 of the Tax Code.
(c) The City represents that it reasonably
anticipates to issue (or has issued), together with
governmental entities which derive their issuing
authority from the City or are subject to substantial
control by the City, not more than an aggregate total of
$10,000,000 of governmental or qualified section
501(c)(3) organization bonds (as defined in the Tax
Code) during calendar year 1991. The City recognizes
that governmental bonds include tax-exempt obligations
such as notes, leases, loans and warrants. The City
hereby designates the Bonds as qualified tax-exempt
obligations within the meaning of Section 265 of the Tax
Code allowing banks, thrift institutions and other
financial institutions to avoid the loss of 100% of any
otherwise available interest deduction in direct
proportion to such institutions' tax-exempt holdings.
Section 17. Defeasance. The Bonds may be refunded at
the discretion and by action of the Council, subject to
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provisions concerning their payment and any other contractual
limitations contained in this Ordinance, as authorized and
permitted by law. A Bond shall not be deemed to be
outstanding hereunder if it shall have been paid and
cancelled or if cash funds or direct general obligations of,
or obligations the payment of the principal of and interest
on which are unconditionally guaranteed by, the United States
of America, or evidences of interest in any such obligations
("Governmental Obligations"), shall have been deposited in
trust for the payment thereof. In computing the amount of
the deposit described above, the City may include interest to
be earned on the Governmental Obligations.
Section 18. Approval of Escrow Aqreement and Bond
Purchase Aqreement. The Escrow Agreement and the Bond
Purchase Agreement, in substantially the forms presented to
the Council, are hereby authorized and approved, and the
Mayor or Mayor Pro Tem and the City Clerk or any Deputy or
Assistant City Clerk are hereby directed to execute and
deliver the Escrow Agreement and the Bond Purchase 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.
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Section 19. Miscellaneous Documents. The Mayor or the
Mayor Pro Tem and the City Clerk or Deputy or Assistant City
Clerk, are hereby authorized and directed to execute and
deliver any and all closing documents necessary or desirable
in connection with the issuance of the Bonds and the
refunding of the Refunded Bonds.
Section 20. Severabilit¥. 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.
Section 21. Governinq Law. This Ordinance will be
governed by and construed in accordance with the laws of the
State of Colorado.
Section 22. Repeals. All ordinances, or parts thereof,
in conflict with this Ordinance, are hereby repealed. After
the Bonds have been issued, this Ordinance shall be and
remain irrepealable until the Bonds and the interest thereon
shall be fully paid, satisfied and discharged in the manner
herein provided, or sufficient provision shall have been made
for such payment, satisfaction and discharge. After any of
the Bonds are issued, this Ordinance shall be and remain
irrepealable until the Bonds and interest thereon shall be
fully paid or provided for.
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Section 23. Public Hearing. A public hearing on this
Ordinance shall be held on the 16th day of December 1991, at
5:00 p.m. in the City Council Chambers, Aspen City Hall,
Aspen, Colorado.
Section 24. Emerqency and Effective Date. Due to
fluctuations in municipal bond prices and interest rates, 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 Council, an
emergency exists, and therefore this Ordinance shall be in
full force and effect upon its passage.
Section 25. Records. A true copy of this Ordinance, as
adopted by the Council of the City, shall be numbered and
recorded, and its adoption and publication shall be
authenticated by the signatures of the Mayor and City Clerk.
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INTRODUCED, READ AND ORDERED PUBLISHED IN FULL
as
provided by law by the City Council of the City of Aspen on
the 9th day of December 1991.
[ sEAT.1 ~ By ~ May
Attest:
City CIo~
FINALLY ADOPTED AND APPROVED, AND ORDERED PUBLISHED IN
FULL as provided by law this 16th day of December 1991.
[
- Mayor
!
Att ~st:
City Cle~- '
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